No. 23,418 | United States Court of Military Appeals | Dec 18, 1970
Lead Opinion
Opinion of the Court
Issues concerning the failure of the military judge to assure himself that accused’s pretrial request for trial by military judge alone was understandingly made and his failure to advise the accused of his right to retain appointed military counsel if he elected civilian counsel or military counsel of his own choosing, if reasonably available, were the subject of consideration in our recent cases of United States v Jenkins, 20 USCMA 112" date_filed="1970-11-06" court="None" case_name="United States v. Jenkins">20 USCMA 112, 42 CMR 304 (1970), and United States v Turner, 20 USCMA 167" date_filed="1970-11-27" court="None" case_name="United States v. Turner">20 USCMA 167, 43 CMR 7 (1970). The findings and sentence in this case, however, must be overturned because the appellant did not submit before or at the inception of trial his request, in writing, to be tried by military judge alone. United States v Dean, 20 USCMA 212" date_filed="1970-12-18" court="None" case_name="United States v. Dean">20 USCMA 212, 43 CMR 52 (1970).
Accordingly, the decision of the United States Navy Court of Military Review is reversed. The findings of guilty and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. Another trial may be ordered.
Dissenting Opinion
(dissenting) :
I would affirm jurisdiction on the basis of my dissent in United States v Dean, 20 USCMA 212" date_filed="1970-12-18" court="None" case_name="United States v. Dean">20 USCMA 212, 43 CMR 52 (1970), and uphold the sufficiency of the advice as to counsel on the authority of United States v Turner, 20 USCMA 167, 43 CMR 7 (1970).