(concurring in part):
ROM 912(g)(1), Manual for Courts-Martial, United States, 1984, prescribes, “Ordinarily the trial counsel shall enter any peremptory challenge before the defense.” I agree with the majority that the military judge violated this provision when he permitted trial counsel the extraordinary option of exercising his peremptory challenge after the defense, regardless that the record reflects only rather ordinary trial circumstances. Notwithstanding the judge’s expression to the contrary, regular is not whatever he says it is. The rule establishes the norm here, not the military judge.
However, I agree with the court below that, additionally, the judge’s misstep caused a situation in which Master Sergeant Cody never was subject to peremptory challenge by appellant. It is not an answer, as the majority suggests, that, “[i]f MSG Cody was the man the defense wanted off the panel, they could obviously have been rid of him by simply exercising no challenge. In other words, they could have let the Government make the challenge for them.” 29 MJ 17,19. Tactically, the norm of RCM 912(g)(1) entitles the defense to rely upon an earlier peremptory challenge by the prosecution of a member that the defense also found undesirable and then to remove another member that the defense finds undesirable, too. However, where, as here, the first undesirable member suddenly is resurrected, the defense’s tactical option of challenging him instead of the second member has been coopted. The practical result was that Cody fully escaped any defense opportunity of peremptory challenge. See generally United States v. Carter, 25 MJ 471 (CMA 1988).
However the issue is viewed, I agree that defense counsel’s objection to the unusual procedure was broad enough to preserve the matter for our review. Upon that review I also agree with the majority that the error did not prejudice appellant’s substantial rights.