United States v. Hodges

Darden, Chief Judge

(concurring):

An accused is entitled to trial by military judge alone if "knowing the identity of the military judge and after consultation with defense counsel, [he] requests in writing a court composed only of a military judge and the military judge approves.” Article 16(1)(B), Uniform Code of. Military Justice, 10 U.S.C. §816(1)(B). The accused cannot request trial by a particular judge for, as the statute indicates, he is entitled only to know the identity of the assigned judge before he elects between trial by judge alone and trial by a full court. .

In this case, the accused and his counsel were not only aware of the military judge’s identity but also knew that the judge possessed some conclusory information concerning the accused’s unsuccessful attempt to negotiate a pretrial agreement with the convening authority. While I agree that this information did not require the military judge to recuse himself, I also believe that the accused’s deliberate choice of trial by judge alone, made while fully aware of the military judge’s possession of information concerning the case, was a knowing and informed waiver of his challenge. United States v Walker, 473 F2d 136 (DC Cir 1972). Had the accused proceeded with trial by a full court, he would not have waived the right to challenge the judge who presided at such a trial. See United States v Greene, 20 USCMA 232, 43 CMR 72 (1970). Yet, having challenged the military judge "for the record,” the accused, after full explanation of his choices, personally proceeded to elect in writing trial before the same judge. Having made that deliberate choice, he should not now be heard to say that he did not wish the military judge to try the case, decide his guilt or innocence, and impose a sentence.

I concur in the reversal of the decision of the U. S. Army Court of Military Review.