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Withdrawal of Charges - 14135_212
Enlisted  members—An  enlisted  accused  has  a right  to  be  tried  by  a  court  consisting  of  at  least one-third  enlisted  members.  The  accused  desiring  en- listed membership submits a personally signed re- quest  before  the  conclusion  of  any  Article  39(a), UCMJ, session (pretrial hearing), or before the assem- bly of the court at trial, or makes the request orally on the record. Only enlisted persons who are not of the same  unit  as  the  accused  can  lawfully  be  assigned  to the court. Unit means company, squadron, battery, ship, or similar sized element, If, when requested, enlisted members cannot be detailed to the court, the CA may direct the original court to proceed with the trial. Such actions should only  be  taken  when  enlisted  service  members  cannot be assigned because of extraordinary circumstances. In such a case, the CA sends to the TC for attachment to the record of trial, a detailed explanation of the extraordinary circumstances and why the trial must proceed  without  enlisted  members. QUALIFICATIONS  OF  THE MILITARY  JUDGE The military judge of an SPCM must be a com- missioned  officer,  a  member  of  the  bar  of  the  highest court of any state or the bar of a federal court, and certified by the Judge Advocate General as qualified to be a military judge. A military judge qualified to act on GCM cases can also act on SPCM cases. QUALIFICATIONS  OF  COUNSEL Articles  19  and  38,  UCMJ,  describe  the  accused’s right to counsel at SPCMs. Article 27, UCMJ, sets forth  the  qualifications  for  counsel. Trial  Counsel The  TC  in  military  criminal  law  serves  as  the prosecutor.  For  an  SPCM,  the  TC  need  only  be  a commissioned  officer. Defense Counsel There are various types of defense counsel (DC) in military practice. The detailed DC is the DC in- itially assigned to the case. Individual counsel is a counsel requested by the accused and can be a civilian or military lawyer. DETAILED  DEFENSE  COUNSEL.—  Article 27(c),  UCMJ,  describes  the  qualifications  for  detailed DCs at SPCMs. An Article 27(b) DC is detailed at no cost  to  the  accused  unless,  due  to  military  exigencies or  physical  conditions,  one  cannot  be  obtained. The  protection  given  to  an  accused  by  Article 27(c)  is  expanded  in  that  it  requires  Article  27(b) counsel  to  be  detailed  as  detailed  DCs  in  SPCMs. INDIVIDUAL COUNSEL.— The term individ- ual counsel is used to refer to a counsel specifically requested by an accused. Such counsel may be mili- tary or civilian. CIVILIAN COUNSEL.— At any SPCM, the ac- cused has the right to be represented by civilian coun- sel provided by him or her at his or her own expense. When the accused retains such counsel, the detailed DC remains to assist the individual counsel unless expressly  excused  by  the  accused.  The  accused  is entitled to a reasonable delay before trial for the pur- pose of obtaining and consulting with civilian indi- vidual  counsel. INDIVIDUAL  MILITARY  COUNSEL.—   At an SPCM, the accused has the right to be represented by a military counsel of his or her own choice at no cost to the accused if such counsel is reasonably avail- able. No Defense Counsel An accused has the right to represent himself herself at an SPCM without assistance of counsel. REFERRAL  OF  CHARGES or The process of referring a given case to trial by SPCM is essentially the same as that for referral to an SCM. Thus, the principles that apply to the prelimi- nary inquiry, preferral of charges, informing the ac- cused,  and  receipt  of  sworn  charges  also  apply  to  the SPCM. As far as the referral process is concerned, the only essential difference between the referral of an SCM and an SPCM is the information contained in block 14 on page 2 of the charge sheet. Referral to Trial If, after reviewing the applicable evidence, the CA determines that trial by SPCM is warranted, he or she executes Part V of the charge sheet in the proper manner.  In  addition  to  the  command  data  entered  on the appropriate lines of block 14, the CA indicates the type  of  court-martial  to  which  the  case  is  being referred, the particular SPCM to which the case is 7-13

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