III. How is the notion of trial by military judge alone affected by these authorities? Article 16 of the Uniform Code of Military Justice44 was amended by the Military Justice Act of 1968 45 to provide for trial by military judge alone. The provisions of article 16 to be considered here are similar to those of the Federal Rules discussed above, and indicate that a court-martial may consist of only the military judge: if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves. It should be immediately apparent that one difference between the Federal Rule previously discussed46 and the portion of article 16 quoted above is the absence of a requirement in article 16 that the Government consent to the waiver of trial by court members. All the article requires is knowledge of the identity of the military judge, a written request executed by the accused, and approval of the military judge. One additional and significant difference should also be noted before proceeding further. In Patton v. United States, the Supreme Court had noted that the portions of the Constitution providing for jury trial in criminal cases were not jurisdictional. Consequently, in the absence of an objection by the Government to waiver of trial by jury, the trial court could undoubtedly properly proceed to a valid judgment. In military jurisprudence, however, article 16 is expressly jurisdictional, and its procedures must be strictly complied with.47 As a result, in the absence of an express approval by the military judge, the court-martial may be without jurisdiction to proceed. The legislative history of article 16 reveals that a procedure not too dissimilar than that under the Federal Rules was contemplated by Congress: The bill as passed by the House made the election of the accused to be tried by such a single-officer court subject to the approval of the military judge and the consent of the convening authority. The committee has amended the provision by deleting the requirement for consent by the convening authority. The report of the Committee on Armed Services of the House of Representatives states that the provision is modeled after rule 23a of the Federal Rules of Criminal Procedure, which provides that both the court and the Government must consent to waiver by the defendant of trial by jury. However, the committee believes that there are differences between the military community and the civilian community which makes such an exact parallel in procedures inadvisable. The command structure in the military presents a possibility of undue prejudicial command influence that is not present in civilian life. In any case, the military judge, after having heard arguments from both trial counsel and defense counsel concerning the appropriateness of trial 44. 10 U.S.C. § 816 (1970). 45. Pub. L. 90-632, 82 Stat. 1335 (1968). 46. See text at note 20, supra. 47. United States v. Dean, 20 USCMA 212, 43 CMR 52 (1970). by a military judge alone, will be in the best position to protect the interest of both the Government and the accused.48 Therefore, while the Government's consent to trial by military judge alone is not strictly required, it is clear that Congress contemplated that the views of trial counsel be considered by the judge. The Manual for Courts-Martial19 amplifies article 16, and provides that the "military judge may hear arguments from both trial and defense counsel prior to acting on a request for trial before him alone." 50 Although the Government's consent is not a requisite to waiver of trial by court members, the Government may still object, and counsel may present argument on the issue. Normal Federal practice "does not require that the Government articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant's proffered waiver.” 51 Courts-martial practice is apparently to the contrary; if the Government desires to have the case heard by court members, it should object and present detailed argument reflecting its position or run the risk of having the accused's requested waiver approved. Military case law on this particular aspect of article 16 has been sparse in some respects and nonexistent in others. For example, there has apparently been no litigation on a military judge's refusal to approve a request for trial by military judge alone. This result may be for any number of reasons including the possibility that the issue has never arisen, the issue has never been presented on appeal, or that any military court considering the issue has dismissed the argument without comment or the opinion has not been reported. On the other hand, some case law exists on the proposition that waiver must be knowing and intelligent. In United States v. Jenkins,52 the Court of Military Appeals noted that the military judge has an "obligation" 53 to assure himself at trial that the accused's choice of fact finder is "understandingly made." 54 Having said so, however, the court proceeded to note that the "absence of appellant's objection . . . is. . . . a waiver of such assurance by the judge. . . .” 55 Military practice, therefore, is not as strict in its requirement as to what "the record must reflect." 56 In United States v. Greene,57 the court examined the record of trial, concluded that the accused's choice of trial by military 48. 1968 U.S. CODE CONG. & ADM. NEWS 4504-05. 49. MCM, 1969 (REV.). 50. Id., para. 53 (d) (2). 51. Singer v. United States, 380 U.S. 24, 37 (1965). 52. 20 USCMA 112, 42 CMR 304 (1970). See also United States v. Turner, 20 USCMA 167, 43 CMR 7 (1970). 53. Id. at 114, 42 CMR at 306. 54. Id. 55. Id. at 115, 42 CMR at 307. 56. See text at note 43, supra. 57. 20 USCMA 232, 43 CMR 72 (1970). judge alone was not "unfettered,” 58 and reversed the conviction. Clearly, the accused's choice of mode of trial may not be influenced by improper actions of the convening authority. Denial by a military judge of an accused's request to be tried by the judge alone, admittedly, does not often occur. There are several factors which could influence a military judge to disapprove the proffered request, however, and these are: that the accused does not appreciate the difference between trial by court members and trial by judge alone; that the accused fails to respond to questions by the military judge at trial; or that the judge determines that trial before court members would provide the most impartial forum for findings and/or sentence. Whenever it becomes apparent to the military judge that an accused does not understand the various modes of trial, it is incumbent upon the judge to instruct the accused on the difference between trial by court members and trial by the judge alone.59 Should the military judge remain convinced that the accused does not appreciate the differences, it is recommended that the request for trial by judge alone be disapproved. This procedure would seem to preclude an assignment of error on appeal that the accused was deprived of trial by court members because he did not understand his rights to such proceeding.60 The accused, of course, has an unqualified right to enlisted membership under such circumstances,61 but he must elect such membership in writing and once having done so any contention of prejudice from the fact of such membership should strike an unresponsive chord.62 A special problem is always presented when the accused refuses to participate in the trial proceedings by failing to respond to the military judge's inquiry or standing mute when asked to plead. When an accused refuses to plead his innocence or guilt, a plea of not guilty must be entered on the record in his behalf.63 By anology, the military judge should disapprove a request to be tried by judge alone whenever the accused refuses to respond to questions designed to apprise the accused of his alternative trial rights. Finally, for any or no reason the military judge may disapprove an accused's request to be tried by the court alone. In much the same manner as the written request of the accused is "an indispensable jurisdictional prerequisite" so too, apparently, is the approval of the military judge.65 Consequently, the military judge may be able to disapprove the request with impunity. Under the circumstances, abuse of discretion does not appear to be 64 58. Id. at 238, 43 CMR at 78. 59. United States v. Jenkins, 20 USCMA 112, 42 CMR 304 (1970). 60. Cf., Singer v. United States, 380 U.S. 24 (1965). 61. UCMJ, art. 25 (c) (1), 10 U.S.C. § 825 (c) (1) (1970). See also United States v. White, 21 USCMA 583, 45 CMR 357 (1972). 62. Cf., United States v. Diaz, 22 USCMA 52, 46 CMR 52 (1972). 63. UCMJ, art. 45 (a), 10 U.S.C. § 845 (a) (1970). 64. United States v. Dean, 20 USCMA 212, 43 CMR 52 (1970). 65. UCMJ, art. 16 (1) (B), 10 U.S.C. § 816 (1) (B) (1970). the standard for consideration of the judge's decision. A more enlightened approach, however, would recommend that the military judge disapprove the request whenever such action would be in the interest of the accused. Trials should be conducted by the tribunal which is "most likely to produce a fair result," 66 and the tendency to interject bias into a criminal trial should be scrupulously avoided. In United States v. Jackson,67 the Court of Military Appeals stated: law officers must be careful to maintain an impartial and scrupulously fair attitude throughout the trial, for their conduct perforce influences the tone of the entire proceeding... 08 68 Should the military judge conclude, therefore, that he is to any degree shocked or biased by a particular offense, it is recommended that he disapprove a request to be tried by judge alone in the interest of fairness to the accused.69 IV. In State v. Carr, the defendant's request to be tried by the court was disapproved because the judge concluded that the explanation of the accused's alternative trial rights "never did get through to the defendant." 70 It is submitted that on the basis of the authorities discussed above, the decision in Carr is both proper and appropriate. It was proper because it was permitted as a matter of constitutional doctrine. More importantly, however, it was appropriate because it safeguarded the accused's fundamental right to be tried by a jury of his peers. It is further submitted that Carr is applicable within military jurisprudence. In United States v. Mason," Judge Duncan stated: "We strive to make the system of military justice equally as fair, if not more fair, than any other." 72 To ensure fairness, the military judge should determine that waiver of the right to be tried by court members is knowing and intelligent. In the absence of such assurance, the request should be disapproved. Only in this manner will appellate authorities be convinced that an accused's rights have been protected. Only in this manner will our system of military justice be “equally as fair, if not more fair, than any other." 66. Singer v. United States, 380 U.S. 24, 36 (1965). 67. 3 USCMA 646, 14 CMR 64 (1954). 68. Id. at 652, 14 CMR at 70. 69. Cf., MCM, 1969 (REV.), para. 62ƒ (10) and (13). It should be noted that there is a difference between petty prejudices and decided hostility or compassion. In the event of marked hostility or friendliness, a challenge for cause should be sustained. See United States v. Hill, 21 USCMA 203, 44 CMR 257 (1972). Compare United States v. Lynch, 9 USCMA 523, 26 CMR 303 (1958). 70. State v. Carr, 499 P.2d 832, 833 (Ore. App. 1972). 71. 21 USCMA 389, 45 CMR 163 (1972). 72. Id. at 397, 45 CMR 171. Robinson v. United States Navy FEDERAL TORT CLAIM: ACTS FILING AN ADMINISTRATIVE CLAIM: Robinson v. United States Navy, 342 F. Supp. 381 (E.D. Pa. Lieutenant William R Trail, JAGC, USNR* I. ON 26 FEBRUARY 1970 a vehicle driven by Eugene Robinson was involved in a collision with a U.S. Navy vehicle. Mr. Robinson alleged that the driver of the Navy vehicle was responsible for the accident and filed several copies of the Standard Form 95 which had been provided by the Navy. Standard Form 95 is provided by the Navy to assist claimants in filing administrative claims which will comply with the requirements set forth in Title 28 U.S.C. §§ 2401 (b),1 2672,2 and 2675.3 Filing an administrative claim is a prerequisite to filing suit against the United States.1 The Standard Form 95 submitted by Mr. Robinson on 21 April 1970 was incomplete in several respects. While the claimant stated a definite sum for damages to his automobile, Mr. Robinson listed his personal injuries as "unknown." The total claim presented was for "$2135.45 plus personal injuries." The claimant did not include any estimates to support his allegations of property damages. He also failed to supply any documentation to support his allegation of personal injuries. The instructions on the reverse side of the Standard Form 95 5 and subsequent correspondence from the Navy informed * Lieutenant Trail is currently serving in the Litigation and Claims Division, Office of the Judge Advocate General of the Navy. He received the J.D. degree from University of Virginia law school in 1972. 1. 28 U.S.C. § 2401 (b) (1970). 2. 28 U.S.C. § 2672 (1970). 3. 28 U.S.C. § 2675 (1970). 4. Id. § 2675 (a). 5. Standard Form 95-104, Revised February 1963, Bureau of the Budget Circular A-5 (Rev.). "Claims for damage to or for loss or destruction of property, or for personal injury, must be signed by the owner of the property damaged or lost or the injured person. If, by reason of death, other disability or for reasons deemed satisfactory by the Government, the foregoing requirement cannot be fulfilled, the claim may be filed by a duly authorized agent or other legal representative, provided evidence satisfactory to the Government is submitted with said claim establishing authority to act. If claimant intends to file claim for both personal injury and property damage, claim for both must be shown in item 8 on this form. Separate claims for personal injury and property damage are not acceptable. |