2022 (October Term)
United States v. King, 83 M.J. 115 (court members are, unless properly waived, an indispensable jurisdictional element of a general court-martial).
(jurisdictional error in the convening of a court-martial occurs when a court-martial is not constituted in accordance with the UCMJ; a court-martial composed of members who are barred from participating by operation of law, or who were never detailed by the convening authority, is improperly constituted and the findings must be set aside as invalid because such error is jurisdictional).
(administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ).
(in this case, the error arising from the government’s failure to document at trial the convening authority’s reason for excusing a member was an administrative error and not jurisdictional in nature; and the member’s unanticipated assignment to a professional military school was a military exigency, not a temporary inconvenience, and a proper reason and good cause for excusal).
2019 (October Term)
United States v. Hennis, 79 M.J. 370 (when challenged at trial, the prosecution must prove jurisdiction by a preponderance of evidence).
2008 (Transition)
United
States v. Adams, 66 M.J. 255 (jurisdictional
error occurs when a
court-martial is not constituted in accordance with the UCMJ;
jurisdiction
depends upon a properly convened court, composed of qualified members
chosen by
a proper convening authority, and with charges properly referred).
(a court-martial composed of
members who are
barred from participating by operation of law, or who were never
detailed by
the convening authority, is improperly constituted and the findings
must be set
aside as invalid).
(administrative errors in the
drafting of a convening
order are not necessarily fatal to jurisdiction, and may be tested for
prejudice under Article 59(a), UCMJ).
(the convening authority’s
failure to transfer
members named in previous special convening orders to the final special
order
convening appellant’s court-martial was administrative error, rather
than
jurisdictional error, that did not materially prejudice the substantial
rights
of appellant, where none of the members who participated in the
court-martial was
an interloper, where each member was selected by the convening
authority to
consider the charges against appellant, where there was no evidence
that the
convening authority excused any of the members who sat on appellant’s
court-martial, where there was also no evidence that the convening
authority
withdrew the charges in order to refer them to a new court-martial, and
more
important, where the record reflects that the members named in final
special
order were selected to bring the court-martial up to quorum and were
not
selected to serve as a separately constituted court-martial).
2006
2004
United
States v. Henderson, 59 MJ 350 (Article 19, UCMJ,
provides
that special courts-martial have jurisdiction to try persons for any
noncapital
offense, and, under such regulations as the President may prescribe,
for
capital offenses; R.C.M. 201(f)(2)(C), a regulation prescribed by the
President, withholds jurisdiction over mandatory capital cases from
special
courts-martial, but does provide for jurisdiction over non-mandatory
capital
offenses under two circumstances: (1) when permitted by an officer
exercising
general court-martial jurisdiction over the command which includes the
accused;
and (2) when authorized by regulation by the Secretary
concerned).
(in United
States v. Bancroft, 3 C.M.A. 3, 11 C.M.R. 3 (1953), this Court held
that where
neither the officer exercising general court-martial jurisdiction over
the
accused nor the Secretary of the Navy had authorized the referral of a
non-mandatory capital offense to trial by special court-martial, the
special
court-martial lacked jurisdiction to try such an offense, and the
findings and
sentence on that charge were void; we take this occasion to reaffirm
our
holding in that case).
(the
situation
in the present case is strikingly similar to Bancroft; as in Bancroft,
the officer making the referral here exercised only special
court-martial
jurisdiction and referred a capital charge, willfully hazarding a
vessel, to a
special court-martial without authorization to do so from the officer
exercising general court-martial jurisdiction over the accused or the
Secretary
of the Navy; we therefore find that the court-martial in the present
case
lacked jurisdiction over the capital charge).
(the
case before
us involves a challenge to the jurisdiction of a special court-martial
to try a
non-mandatory capital offense in the absence of authorization from
either the
officer exercising general court-martial jurisdiction over the accused
or from
the Secretary of the Navy - - it is not simply a challenge to the
“form” of the
referral; under the circumstances found in this case, the special
court-martial
lacked jurisdiction ab initio; when a criminal action is tried before a
court
which does not have jurisdiction, the entire proceedings are a nullity).
(the
primary
distinction between this case and Bancroft is that appellant
was not
convicted of a capital offense but only of a noncapital,
lesser-included
offense; that distinction, however, does not change the result; because
the
offense of negligently hazarding a vessel never achieved the status of
an
independent charge, the court’s jurisdiction over it derived only from
the
improperly referred capital offense of willfully hazarding a vessel,
and thus
rises and falls with the jurisdiction over the greater offense; to
recognize
the pretrial agreement in this case as the functional equivalent of a
new
referral would require this Court to find jurisdiction where it does
not
otherwise exist; this we cannot do).
(appellant’s
special court-martial had no jurisdiction to try a capital charge
without
authorization from either the officer exercising general court-martial
jurisdiction over the accused or from the Secretary of the Navy; since
the
lesser-included charge of negligently hazarding a vessel was never
formally
referred under R.C.M. 601, it was dependent on the greater charge and
was
fatally tainted by the lack of jurisdiction).
(jurisdiction
over a charge unrelated to a jurisdictionally-defective charge or a
lesser-included offense of the unrelated charge remains valid; only the
finding
and sentence related to the defective charge are a nullity).
2002
United
States v. Morgan, 57 MJ 119 (where the record
established that
the selection of an enlisted forum was appellant’s choice and there
were many
opportunities to voice an objection to having enlisted members on the
panel,
the failure to get appellant’s request on the record was a procedural
error,
not a jurisdictional defect).
United
States v. Oliver, 57 MJ 170 (a court-martial requires both in
personam and subject matter jurisdiction, in addition to a properly
constituted
and referred court-martial).
(jurisdiction is an interlocutory issue, to be decided by the
military
judge, with the burden placed on the Government to prove jurisdiction
by a
preponderance of the evidence).
2001
United
States v. Williams, 55 MJ 302 (a court-martial retains
jurisdiction over
a case from the point of referral through authentication of the record
by the
military judge, except when the convening authority withdraws the
charges from
the court-martial under RCM 604(a); and unless those charges have been
withdrawn for an improper reason, the convening authority may re-refer
the
withdrawn charges to a different court-martial).
2000
United
States v. Townes, 52 MJ 275 (the military judge erred
in not
obtaining on the record the accused’s personal request for trial by
enlisted
members; however, on this record, the error was not jurisdictional in
that
there was sufficient indication by appellant orally and on the record
that he
personally requested enlisted members).