Can a military judge preside over a court-martial of a higher-ranking officer?

Richard Wilbanks — Thu, 27 Dec 2018 22:27:08 -0500

Hypothetical: A 4-star general/admiral is court-martialed. There are no 4-star ranking ranking military judges, so who presides over the trial?

Response by MSgt Steve Sweeney made Dec 27 at 2018 10:30 PM

MSgt Steve Sweeney — Thu, 27 Dec 2018 22:30:09 -0500

Yes to your first question. The military judge to your second.

Response by SGT Michael Thorin made Dec 27 at 2018 11:00 PM

SGT Michael Thorin — Thu, 27 Dec 2018 23:00:34 -0500

DISCLAIMERS: While I have served next to many MP’s, and witnessed a couple of court martials, I am definitely not a subject matter expert, so if anyone sees anything wrong in what follows, please correct me, as I would like to make sure the info I’m providing is reliable.

With that being said Richard Wilbanks, as a caveat to MSgt Steve Sweeney’s response, think of it this way.

Justice supersedes rank. The easier way to understand is that MP’s have arresting powers, regardless of rank.

There are more junior enlisted MP’s on patrol by virtue of the rank structure and organization (from what I have experienced) than NCO’s and Officers.

That responsibility requires the lesser ranking MP’s have authority for everything from initiating a traffic stop to apprehending a suspect who may have committed a crime or murder.

They can only do this if their actions are based on justice and not on rank. If it were based on rank and not justice, every MP unit would have to have a General or Admiral patrolling to be able to enforce justice.

So, justice trumps rank in matters of law enforcement and judicial punishment.

That being said, I would hate to be a PFC who has pulled over a 4 star General, LOL.

COL Mikel J. Burroughs,SPC Douglas Bolton,Brig Gen Jim Jaeger,CPT Jack Durish,Maj Marty Hogan,SPC Christopher Smith,Lt Col Charlie Brown,Cpl Scott McCarroll,SGT David A. 'Cowboy' Groth,SP5 Mark Kuzinski,PVT Mark Brown,SGT Elizabeth Scheck,PFC Jacob Wrubel,MSgt Ken "Airsoldier" Collins-Hardy,SFC Joe S. Davis Jr., MSM, DSL,SSG William Jones,TSgt Joe C.,SSgt Robert Marx,

Response by SFC Private RallyPoint Member made Dec 27 at 2018 11:10 PM

SFC Private RallyPoint Member — Thu, 27 Dec 2018 23:10:55 -0500

Yes, in fact a general was tried by a colonel a few years ago at Bragg.

Response by CSM Darieus ZaGara made Dec 28 at 2018 6:34 AM

CSM Darieus ZaGara — Fri, 28 Dec 2018 06:34:07 -0500

The judge who presided over the CM does not have to outrank the offender, however, most likely the convening authority will. Thank you for your service.

Response by LTC Private RallyPoint Member made Dec 28 at 2018 8:11 AM

LTC Private RallyPoint Member — Fri, 28 Dec 2018 08:11:41 -0500

It's not the rank of the judge that is the problem, it's the rank of the panel members (jury in civilian terms). Each panel memberr is required to be senior in DOR or rank to the accused. Here's an article about the court martial of BG Sinclair at Ft Bragg that talks to the problem they had seating the panel.

https://www.fayobserver.com/764f1e92-4b86-5eca-820a-8259e3aeedc5.html

Jury selection for Brig. Gen. Jeffrey Sinclair's court-martial set to resume

The unusually challenging task of jury selection for the court-martial of Brig. Gen. Jeffrey Sinclair resumes today at Fort Bragg.

Response by LTC Jason Mackay made Dec 28 at 2018 1:49 PM

LTC Jason Mackay — Fri, 28 Dec 2018 13:49:40 -0500

Who is preferring the charges? The CJCS isn’t a Commander.

Response by LTJG Richard Bruce made Dec 29 at 2018 12:17 AM

LTJG Richard Bruce — Sat, 29 Dec 2018 00:17:09 -0500

Judges are selected from a pool controlled by JAG. If senior ranking flag officers are not available from the armed service of the accused, flag officers from the other services can be selected.

From the Manual of Courts Martial;
Q u a l i f i c a t i o n s o f m i l i t a r y j u d g e . A m i l i t a r y judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member. In addition, the military judge of a general court-martial shall be designated for such duties by the Judge Advocate General or the Judge Advocate General’s designee, certified to be qualified for duty as a military judge of a general court-martial, and assigned and directly responsible to the Judge Advoca t e G e n e r a l o r t h e J u d g e A d v o c a t e G e n e r a l ’ s designee. The Secretary concerned may prescribe additional qualifications for military judges in spec i a l c o u r t s - m a r t i a l . A s u s e d i n t h i s s u b s e c t i o n “military judge” does not include the president of a special court-martial without a military judge.

Rule 503. Detailing members, military judge, and counsel (a) Members. (1) In general. The convening authority shall detail qualified persons as members for courts-martial.
Discussion
The following persons are subject to challenge under R.C.M. 912(f) and should not be detailed as members: any person who is, in the same case, an accuser, witness, preliminary hearing officer, or counsel for any party; any person who, in the case of a new trial, other trial, or rehearing, was a member of any court-martial which previously heard the case; any person who is junior to the accused, unless this is unavoidable; an enlisted member from the same unit as the accused; or any person who is in arrest or confinement/
( 3 ) M e m b e r s f r o m a n o t h e r c o m m a n d o r a r m e d force. A convening authority may detail as members of general and special courts-martial persons under that convening authority’s command or made available by their commander, even if those persons are members of an armed force different from that of the convening authority or accused.

Response by LT Terry Lober made Dec 29 at 2018 9:10 PM

LT Terry Lober — Sat, 29 Dec 2018 21:10:58 -0500

A military judge is appointed by the Convening Authority and for a SPCM or GCM , will be a JAGC officer. They can sit as a judge over a SM of any rank. A "Military Court composed of members" , the people that decide guilt or innocence will be equal to or higher in rank than the accused. Junior's never decide the guilt or innocence of a senior officer, unless the accused specifically waives a "members" Court at an Art 39 session.

Response by SSG William Bowen made Dec 31 at 2018 8:01 AM

SSG William Bowen — Mon, 31 Dec 2018 08:01:53 -0500

Just sharing a funny story since a few people mentioned being that PFC who pulls over a colonel or general. I was a DA civilian dispatcher at Fort Gordon (911, police, fire, EMS, alarms, gate guards, etc). We had very up to date high quality radio and computer systems. So we get a new commanding general of the Cyber Center of Excellence and Fort Gordon. Prior to this, it was just the Signal Corps and Fort Gordon, and was a Brigadier General. This was during a transition time where they were renaming all the posts to the such and such centers of excellence, so this new general was a 2 star general. He visits all the organizations on the post to get familiar with their mission and the people. So this 2 star is impressed by our communication center, the enhanced 911 tracking, and GPS in the patrol vehicles, so he decides he wants to ride with the police, so his aid sets him up.

They put him with a DA civilian police officer in the traffic unit. So the officer explains things to him, if they pull someone over, he can sit in the car and watch the video and hear what is going on. The general asks about getting out, and the officer tells him basically, well sir, it's your base so I guess you can. So this active duty SSG pulls out of the shoppette near one of the gates and blows the stop sign, so the officer pulls him over and walks up to the driver's window with the Major General (did I mention he is the commander of Fort Gordon?) standing to the right rear of the vehicle; probably would have ended up with a warning. BUT...this E6 decides it would be a good idea to start calling the DA civilian officer a rent a cop and he should take a walk somewhere else, just general disrespect. So the general says something to the effect of, "What did he say?", and the guy in the car kind of turns around and says "and who is that?". The general (oh yeah did I mention he is a 2 star general?) walks up and practically pushed out officer out of the window and leans in and says, "Say it again, I dare you. Do you know who I am?, Say it again". I know this guy had to be shitting bricks, probably looking at the two stars in the middle of shirt and the 2 stars shining on his cap, looking at his name tag, thinking his picture is on our unit wall, oh my God. You know he was not saying shit! The general tells him to have his entire chain of command in his office the next morning. Now that's just what your brigade commander, and battalion commander, and company commander, and platoon sergeant and whoever else wants to do...go to Signal Towers to see the 2 Star Commanding General of Fort Gordon because of some E6 is a smart ass when he gets pulled over. Don't know whatever happened to the E6, but I know our officer was doubled over laughing when he was telling us. He said he couldn't even begin to describe the guys face when the general was leaning all in his window. Anyway, that's the story.

Response by LTC Charles T Dalbec made Nov 5 at 2019 9:28 AM

LTC Charles T Dalbec — Tue, 05 Nov 2019 09:28:03 -0500

A military judge appointed by the DOD

Response by LTC Charles T Dalbec made Nov 14 at 2019 2:18 PM

LTC Charles T Dalbec — Thu, 14 Nov 2019 14:18:53 -0500

The military appointed Judge