United States v. Butler

14 M.J. 72, 1982 CMA LEXIS 16067

• Court: United States Court of Military Appeals
• Decided: September 7, 1982
• Docket: No. 40,139; ACM 22778
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Judge:

At his general court-martial,¹ appellant properly requested trial before a military judge, sitting alone. This was summarily disapproved by the military judge without explanation. Appellant then moved for reconsideration of this denial, which motion was, likewise, denied. We granted review to consider whether the military judge erred in denying, without reasons, appellant’s request for trial by military judge alone. 10 M.J. 392 (1981).

We conclude that, under Article 16, Uniform Code of Military Justice, 10 U.S.C. § 816, discretion lay with the military judge to treat this request by an accused. Such discretion, however, is not peremptorily absolute and is subject to review for abuse. Under the present facts, the summary denial of appellant’s request, with no articulation of reasons for this judicial exercise of discretion, renders our review impossible. Thus, we are compelled to reverse.

There is of course no absolute right by the accused to a trial by military judge alone. Article 16; paras. 4e and 53d (2)(a), Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Ward, 3 M.J. 365 (C.M.A.1977). The most recent amendment to Article 16 ² was patterned after Fed.R.Crim.P. 23(a),³ the constitutionality of which was upheld in United States v. Singer, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). In Singer, appellant urged unsuccessfully a violation of constitutional rights by the placing of conditions on his ability to waive trial by jury. The High Court upheld the validity of Fed.R.Crim.P. 24(b), observing that “[a] defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury.” United States v. Singer, supra at 36, 85 S.Ct. at 790.

With this clear principle in mind, the Government now argues before us that there is no support in law or logic to require a military judge to state on the record his reasons for judicial disapproval of a proper request for a bench trial. To sustain this argument, they appropriate an argument successfully made in Singer, that is, “[bjecause of ... confidence in the integrity of the federal prosecutor, Rule 23(a) 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.” United States v. Singer, supra at 37, 85 S.Ct. at 791. Thus, government counsel before us extrapolates that equal trust ought to repose in the judges of the military justice system and judicial reasons should not be required on the record in the denial of the instant request. Notwithstanding our undiminished confidence in the integrity, professionalism, and capability of federal military judges, we are unable to concur with the Government’s line of reasoning.

In point of fact, it is precisely because of our confidence in the military judge’s pivotal role that we here rule that this judge erred by summarily denying this request for a bench trial while failing to make the rationale for his exercise of discretion a matter of record. There are at least two practical reasons to impose on the military judge a burden of elucidation. Primarily, it has become clear in the military justice system that the military judge has become the central active figure in the trial process; he is no mere referee; he assures the fairness of the trial and the adequacy and completeness of the record. His exercise of discretion may well be based on grounds other than those motivating the accused’s request. His discretionary power to deny cannot be reviewed by appellate courts unless his reasons can be reviewed. Secondly, although of much lesser importance, cost efficiencies should encourage bench trials where appropriate and properly requested by an accused. Thus, military judges cannot be allowed to abuse their discretion by summarily denying such requests for no reviewable reasons.

Thus, we rule that a military judge is required as a matter of judicial responsibility to make the basis of his denial a matter of record. This ruling in no way should be construed as a fettering of his discretionary power; rather, it allows his fairness to be rendered explicit.

The decision of the United States Air Force Court of Military Review is reversed. The findings and sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

1 . Appellant was tried before a general court-martial with members. Contrary to his pleas, he was found guilty of five specifications alleging willful disobedience of orders and one specification alleging unauthorized absence, in violation of Articles 90 and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 890 and 886, respectively. He was sentenced to dismissal from the service, confinement at hard labor for 6 months, forfeiture of $1,200.00 pay per month for 6 months and a fine of $10,000.00. The convening authority approved only so much of the sentence as provided for dismissal from the service,- confinement at hard labor for 6 months, forfeiture of $1,009.00 pay per month for 6 months and a fine of $10,000.00. The Court of Military Review affirmed.

2 . See Hearing Before and Special Reports Made by Committee on Armed Services, 90th Cong., 2d Sess., 8307-70 (1968).

3 . “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” Fed.R.Crim.P. 23(a).