N.Y. Comp. Codes R. & Regs. tit. 9 § 516.5
Current through Register Vol. 46, No. 25, June 18, 2024
Section 516.5 - Court-martial composition and personnel; convening courts-martial(a) Composition and personnel of courts-martial.(1) Composition of courts-martial (ML, 130.16).(i) General courts-martial. General courts-martial consist of: (a) a military judge and not less than five members; or(b) a military judge alone if requested by the accused and approved under N.Y.R.C.M. 903.(ii) Special courts-martial. Special courts-martial consist of:(a) not less than three members;(b) a military judge and not less than three members; or(c) a military judge alone if detailed and if requested and approved under N.Y.R.C.M. 903.(2) Counsel in general and special courts-martial. Military trial and defense counsel must be detailed to general and special courts-martial. Assistant trial and associate or assistant defense counsel may be detailed (ML, 130.27[a]).(3) Other personnel. Other personnel, such as reporters, interpreters, bailiffs, clerks, escorts, and orderlies, may be detailed or employed as appropriate but need not be detailed by the convening authority personally (ML, 130.28).(b) Qualifications and duties of personnel of courts-martial.(1) Members. (i) Qualifications (ML, 130.25). The members detailed to a court-martial shall be those persons who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament. Each member shall be in a duty status and must be: (b) a warrant officer, except when the accused is an officer; or(c) an enlisted person, if the accused is an enlisted person and has made a timely request under N.Y.R.C.M. 503(a)(2), for members of whom at least one-third are enlisted persons.(ii) Duties. The members of a court-martial determine whether the accused is proven guilty and, if necessary, adjudge a proper sentence, based on the evidence and in accordance with the instructions of the military judge. Each member has an equal voice and vote with other members in deliberating upon and deciding all matters submitted to them, except as otherwise specifically provided in these rules. No member may use rank or position to influence another member. No member of a court-martial may have access to or use in any open or closed session this Chapter, reports of decided cases, or any other reference material, except the president of a special court-martial without a military judge may use such materials in open session.(2) President. (i) Qualifications. The president of a court-martial must be the detailed member senior in rank then serving.(ii) Duties. The president has the same duties as the other members and also: (a) presides over closed sessions of the members of the court-martial during their deliberations;(b) speaks for the members of the court-martial when announcing the decision of the members of requesting instructions from the military judge; and(c) in a special court-martial with a military judge, performs the duties assigned by this Chapter to the military judge except as otherwise expressly provided (ML, 130.26).(3) Qualifications of military judge. A military judge must be an officer who is a member of the bar of a force of the organized militia on the State reserve list or State retired list, and who is certified to be qualified for duty as a military judge by the State judge advocate. In addition, the military judge of a general court-martial must be designated for such duties by the State judge advocate, or his designee, certified to be qualified for duty as a military judge of a general court-martial, and assigned and directly responsible to the State judge advocate general or his designee. As used in this paragraph, "military judge" does not include the president of a special court-martial without a military judge.(4) Counsel. (i) Certified counsel required. Only persons qualified under ML, 130-27(b) (in the case of general courts-martial), or ML, 130.27(c) (in the case of special courts-martial), as competent to perform duties as counsel in courts-martial may be detailed as defense counsel or associate defense counsel in general or special courts-martial, or as trial counsel in general courts-martial.(ii) Other military counsel. Any officer may be detailed as trial counsel in special courts-martial, or as assistant trial counsel or assistant defense counsel in general or special courts-martial.(iii) Qualifications of individual military and civilian defense counsel. Individual military or civilian defense counsel who represents an accused in a court-martial must be: (a) a member of the bar of a Federal court or of the bar of the highest court of a State; or(b) if not a member of such a bar, a lawyer who is authorized by a recognized licensing authority to practice law and is found by the military judge to be qualified to represent the accused upon a showing to the satisfaction of the military judge that the counsel has appropriate training and familiarity with the general principles of criminal law which apply in a court-martial.(iv) Disqualifications. No person is to act as trial counsel or assistant trial counsel or, except when expressly requested by the accused, as defense counsel or associate or assistant defense counsel in any case in which that person is or has been: (b) an investigating officer;(d) a member. No person who has acted as counsel or assistant counsel for a party may serve as counsel or assistant counsel for an opposing party in the same case (ML, 130.27[a]).
(v) Duties of trial and assistant trial counsel. The trial counsel prosecutes cases on behalf of the State and causes the record of trial of such cases to be prepared (ML, 130.38[a]). Under the supervision of trial counsel an assistant trial counsel may perform any act or duty which trial counsel may perform under law, regulation, or custom of the service (ML, 130.38[d]).(vi) Duties of defense and associate or assistant defense counsel. Defense counsel represents the accused in matters under the code and these rules arising from the offenses of which the accused is then suspected or charged (ML, 130.38[b]). Under the supervision of the defense counsel an associate or assistant defense counsel may perform any act or duty which a defense counsel may perform under law, regulation, or custom of the service (ML, 130.38[e]).(5) Interpreters, reporters, escorts, bailiffs, clerks, and guards.(i) Qualifications. Interpreters and reporters shall have the same qualifications as persons performing equivalent functions in the courts of the State of New York, or on active duty in the military forces of the United States. Any person who is not disqualified under subparagraph (ii) of this paragraph may serve as escort, bailiff, clerk, or orderly, subject to removal by the military judge (ML, 130.28).(ii) Disqualifications. In addition to any disqualifications which may be prescribed by the Chief of Staff to the Governor, no person is to act as interpreter, reporter, escort, bailiff, clerk, or orderly in any case in which that person is or has been in the same case:(c) an investigating officer;(d) counsel for any party; or(e) a member of the court-martial or of any earlier court-martial of which the trial is a rehearing or new or other trial.(iii) Duties. In addition to such other duties as the Chief of Staff to the Governor may prescribe, the following persons may perform the following duties: (a) Interpreters. Interpreters must interpret for the court-martial or for an accused who does not speak or understand English.(b) Reporters. Reporters must record the proceedings and testimony and must transcribe them so as to comply with the requirements for the record of trial as prescribed in these rules.(c) Others. Other personnel detailed for the assistance of the court-martial are to have such duties as may be imposed by the military judge.(iv) Payment of reporters, interpreters. The Chief of Staff to the Governor may prescribe regulations for the payment of allowances, expenses, per diem, and compensation of reporters and interpreters.(6) Action upon discovery of disqualification or lack of qualifications. Any person who discovers that a person detailed to a court-martial is disqualified or lacks the qualifications specified by this subdivision must cause a report of the matter to be made before the court-martial is first in session to the convening authority or, if discovered later, to the military judge.(c) Detailing members, military judge, and counsel.(1) Members. (i) In general. The convening authority must detail qualified persons as members for courts-martial (ML, 130.25[d][2]).(ii) Enlisted members. An enlisted accused may, before assembly, request orally on the record or in writing that enlisted persons serve as members of the general or special court-martial to which that accused's case has been or will be referred. If such a request is made, an enlisted accused may not be tried by a court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total number of members unless eligible enlisted members cannot be obtained because of physical conditions or military exigencies. If the appropriate number of enlisted members cannot be obtained, the court-martial may be assembled, and the trial may proceed without them, but the convening authority shall make a detailed written explanation why enlisted members could not be obtained which must be appended to the record of trial (ML, 130.25[c]).(iii) Members from another command or component. A convening authority may detail as members of general and special court-martial persons under that convening authority's command or made available by their commander, even if those persons are members of a force of the organized militia different from that of the convening authority.(2) Military judge. (i) By whom detailed. The military judge must be detailed by the convening authority and is directly responsible to the State judge advocate.(ii) Record of detail. The order detailing a military judge must be reduced to writing and included in the record of trial or announced orally on the record at the court-martial. The writing or announcement must indicate by whom the military judge was detailed.(iii) Military judge from a different armed force. A military judge from one force of the organized militia may be detailed to a court-martial convened by another force of the organized militia when permitted by the State judge advocate. The State judge advocate may delegate authority to make military judges available for this purpose.(3) Counsel. (i) By whom detailed. For general and special court-martial, trial and defense counsel, assistant trial and defense counsel, and associate defense counsel are to be detailed by the authority convening the court-martial (ML, 130.27[a]). If authority to detail counsel has been delegated to a person, that person may detail himself or herself as counsel for a court-martial.(ii) Record of detail. The order detailing a counsel must be reduced to writing and included in the record of trial or announced orally on the record at the court-martial. The writing or announcement must indicate by whom the counsel was detailed.(iii) Counsel from a different component. A person from one force of the organized militia may be detailed to serve as counsel in a court-martial in a different force of the organized militia when permitted by the State judge advocate. The State judge advocate may delegate authority to make persons available for this purpose.(d) Convening courts-martial. (1) In general. A court-martial is created by a convening order of the convening authority.(2) Who may convene courts-martial. (i) General courts-martial. General courts-martial may be convened by order of the Chief of Staff to the Governor, the commander of a force of the organized militia, the commanding officer of a division or corresponding unit of the Army National Guard, or the commanding officer of a wing or corresponding unit of the Air National Guard (ML, 130.22).(ii) Special courts-martial. Unless otherwise limited by competent authority, special courts-martial may be convened by persons occupying positions designated in ML, 130.23(a). (a) Definition. For purposes of ML, 130.22 and 130.23(a), a command or unit is separate or detached when isolated or removed from the immediate disciplinary control of a superior in such manner as to make its commander the person held by superior commanders primarily responsible for discipline. Separate or detached is used in a disciplinary sense and not necessarily in a tactical or physical sense.(b) Determination. If a commander is in doubt whether the command is separate or detached, the matter is to be determined: (1) in the Army National Guard or the Air National Guard by the officer exercising general court-martial jurisdiction over the command; or(2) in the Naval Militia, by the flag or general officer in command or the senior officer present who designated the detachment.(iii) Summary courts-martial (see N.Y.R.C.M. 1302[a]).(iv) Delegation prohibited. The power to convene courts-martial may not be delegated.(3) Disqualification. (i) Accuser. An accuser may not convene a general or special court-martial for the trial of the person accused (ML, 130.23[b]).(ii) Other. A convening authority junior in rank to an accuser may not convene a general or special court-martial for the trial of the accused unless that convening authority is superior in command to the accuser. A convening authority junior in command to an accuser may not convene a general or special court-martial for the trial of the accused.(iii) Action when disqualified. When a commander who would otherwise convene a general or special court-martial is disqualified in a case, the charges must be forwarded to a superior competent authority for disposition. That authority may personally dispose of the charges or forward the charges to another convening authority who is superior in rank to the accuser, or, if in the same chain of command, who is superior in command to the accuser.(4) Convening orders. (i) General and special courts-martial. A convening order for a general or special court-martial must designate the type of court-martial and detail the members and may designate where the court-martial will meet. If the convening authority has been designated by the Chief of Staff to the Governor, the convening order must so state.(ii) Summary courts-martial. A convening order for a summary court-martial must designate that it is a summary court-martial and detail the summary court-martial, and may designate where the court-martial will meet. If the convening authority has been designated by the Chief of Staff to the Governor, the convening order must so state.(iii) Additional matters. Additional matters to be included in convening orders may be prescribed by the Chief of Staff to the Governor.(5) Place. The convening authority must ensure that an appropriate location and facilities for courts-martial are provided.(e) Changes of members, military judge, and counsel.(1) In general. Subject to this subdivision, the members, military judge, and counsel may be changed by an authority competent to detail such persons. Members also may be excused as provided in subclause (3)(i)(b)(2) and clause (3)(ii)(a) of this subdivision.(2) Procedure. When new persons are added as members or counsel substitutions are made as to any members or counsel or the military judge, such persons are to be detailed in accordance with N.Y.R.C.M. 503. An order changing the members of the court-martial, except one which excuses members without replacement, must be reduced to writing before authentication of the record of trial.(3) Changes of members (see ML, 130.29). (i) Before assembly. (a) By convening authority. Before the court-martial is assembled, the convening authority may change the members of the court-martial without showing cause.(b) By convening authority's delegate. (1) Delegation. The convening authority may delegate authority to excuse individual members to the staff judge advocate or legal officer or other principal assistant to the convening authority.(2) Limitations. Before the court-martial is assembled, the convening authority's delegate may excuse members without cause shown; however, no more than one-third of the total number of members detailed by the convening authority may be excused by the convening authority's delegate in any one court-martial. After assembly the convening authority's delegate may not excuse members.(ii) After assembly. (a) Excusal. After assembly no member may be excused, except:(1) by the convening authority for good cause shown on the record;(2) by the military judge for good cause shown on the record; or(3) as a result of challenge under N.Y.R.C.M. 912.(b) New members. New members may be detailed after assembly only when, as a result of excusals under clause (a) of this subparagraph, the number of members of the court-martial is reduced below a quorum, or the number of enlisted members, when the accused has made a timely written request for enlisted members, is reduced below one-third the total membership.(4) Changes of detailed counsel. (i) Trial counsel. An authority competent to detail trial counsel may change the trial counsel and any assistant trial counsel at any time without showing cause.(ii) Defense counsel. (a) Before formation of attorney-client relationship. Before an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail defense counsel may excuse or change such counsel without showing cause.(b) After formation of attorney-client relationship. After an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail such counsel may excuse or change such counsel only: (1) under N.Y.R.C.M. 506(b)(3);(2) upon request of the accused or application for withdrawal by such counsel under N.Y.R.C.M. 506(c); or(3) for other good cause shown on the record.(5) Change of military judge. (i) Before assembly. Before the court-martial is assembled, the military judge may be changed by an authority competent to detail the military judge, without cause shown on the record.(ii) After assembly. After the court-martial is assembled, the military judge may be changed by an authority competent to detail the military judge only when, as a result of disqualification under N.Y.R.C.M. 902, or for good cause shown, the previously detailed military judge is unable to proceed.(6) Good cause. For purposes of this subdivision, good cause includes physical disability, military exigency, and other extraordinary circumstances which render the member, counsel, or military judge unable to proceed with the court-martial within a reasonable time. Good cause does not include temporary inconveniences which are incident to normal conditions of military life.(f) Accused's rights to counsel. (1) In general. The accused has the right to be represented before a general or special or summary court-martial by civilian counsel if provided at no expense to the State. The accused has the right to be represented by either the military counsel detailed under ML, 130.27, or military counsel of the accused's own selection, if reasonably available before a general or special court-martial. The accused is entitled to be represented by both the military counsel detailed under ML, 130.27, and military counsel of the accused's own selection, if reasonably available, if the accused so requests, in which event the detailed military counsel will act as associate counsel to the individual military counsel (ML, 130.38[b]).(2) Individual military counsel. (i) Reasonably available. Subject to this paragraph, the Chief of Staff to the Governor must define "reasonably available". While so assigned, the following persons are not reasonably available to serve as individual military counsel because of the nature of their duties or positions: (a) a general or flag officer;(b) a trial or appellate military judge;(d) an appellate defense or government counsel;(e) a principal legal advisor to a command, organization, or agency and, when such command, organization, or agency has general court-martial jurisdiction, the principal assistant of such an advisor;(f) An instructor or student at a service school or academy. The Chief of Staff to the Governor may determine other persons to be not reasonably available because of the nature or responsibilities of their assignments, geographic considerations, exigent circumstances, or military necessity. A person who is a member of a force of the organized militia different from that of which the accused is a member is reasonably available to serve as individual military counsel for such accused to the same extent as that person is available to serve as individual military counsel for an accused in the same force of the organized militia as the person requested. The Chief of Staff to the Governor may prescribe circumstances under which exceptions may be made to the prohibitions in this paragraph when merited by the existence of an attorney-client relationship regarding matters relating to a charge in question. However, if the attorney-client relationship arose solely because the counsel represented the accused on review under ML 130.67, this exception does not apply.
(ii) Procedure. Subject to this paragraph, the Chief of Staff to the Governor may prescribe procedures for determining whether a requested person is reasonably available to act as individual military counsel. Requests for an individual military counsel are to be made by the accused or the detailed defense counsel through the trial counsel to the convening authority. If the requested person is among those not reasonably available under subparagraph (i) of this paragraph or under regulations of the Chief of Staff to the Governor, the convening authority must deny the request and notify the accused, unless the accused asserts that there is an existing attorney-client relationship regarding a charge in question or that the person requested will not, at the time of the trial or investigation for which requested, be among those so listed as not reasonably available. If the accused makes such claim, or if the person is not among those so listed as not reasonably available. If the accused's request makes such a claim, or if the person is not among those so listed as not reasonably, the convening authority must forward the request to the commander or head of the organization, activity, or agency to which the requested person is available in accordance with the procedure prescribed by the Chief of Staff to the Governor. This determination is a matter within the sole discretion of that authority. An adverse determination may be reviewed upon request of the accused through that authority to the next higher commander or level of supervision.(3) Excusal or withdrawal. Except as otherwise provided in N.Y.C.R.M. 505(d)(2) and paragraph (1) of this subdivision, defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown.(4) Waiver. The accused may expressly waive the right to be represented by counsel and may thereafter conduct the defense personally. Such waiver is to be accepted by the military judge only if the military judge finds that the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary and understanding. The military judge may require that a defense counsel remain present even if the accused waives counsel and conducts the defense personally. The right of the accused to conduct the defense personally may be revoked if the accused is disruptive or fails to follow basic rules of decorum and procedure.(5) Nonlawyer present. Subject to the discretion of the military judge, the accused may have present and seated at the counsel table for purpose of consultation persons not qualified to serve as counsel under N.Y.R.C.M. 502.N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.5