MILITARY JUSTICE PERSONNEL: Convening
Authority: Generally
2007
United States v. Canchola, 64 M.J. 245 (where
operational requirements affect post-trial processing delays, staff
judge advocates and convening authorities should ensure that those
reasons are documented in the record of trial).
2006
United
States v. Harvey, 64 M.J. 13 (there is no rule
that the convening authority
cannot attend a court-martial; but the presence of the convening
authority at a
court-martial may raise issues).
United
States v. Harvey, 64 M.J. 13 (before attending
a court-martial, a convening
authority should give prudent and careful consideration as to the
impact one’s
presence could have on both the proceedings and the perception of
fairness of
the court-martial; a convening authority is encouraged to initiate a
dialogue
with both the command staff judge advocate and the trial counsel before
entering a courtroom; discussing this matter with these lawyers would
permit
them to advise the convening authority of both general and case
specific issues
that may be raised by the convening authority’s presence at the
court-martial;
it would also afford the trial counsel the opportunity to advise both
the
military judge and the trial defense counsel of the presence of the
convening
authority in advance, so that the matter can be discussed with the
military
judge and any issues litigated before the convening authority is
present in
court before the panel members).
2004
United
States v. Dowty, 60 MJ 163 (actual appointment of fair
and
impartial members is the duty and responsibility of the convening
authority; a
convening authority’s power to appoint a court-martial is one
accompanying the
position of command and may not be delegated; it is blackletter law
that the
convening authority must personally select the court-martial
members).
(the
convening
authority, while charged with the personal responsibility for the
selection of
court members, must have assistance in the preparation of a panel from
which to
choose those members; in order to carry out his function under Article
25, he
must necessarily rely on his staff or subordinate commanders for the
compilation of some eligible names).
(the
military
judge’s finding of fact that the convening authority personally
selected the
court-martial panel was not clearly erroneous where the convening
authority
stated that he selected the panel members based on the member
questionnaires,
did not review the list of nominations submitted by his staff until
after he
had selected the panel, and personally signed the selection sheet and
convening
order modification).