1. Prior to assembly, RCM 505(c)(1) allows delegation to staff judge advocate or convening authority’s deputy authority to excuse up to one of the members. See AR 27-10, para. 5-18c. United States v. Cook, 48 M.J. 434 (C.A.A.F. 1998). The excusal of more than one-third of the members of a panel by the convening authority’s delegate rises to the level of reversible and jurisdictional error only if the defense objects to the excusals and substitutions of members at trial, and the record somehow indicates that the accused was deprived of a right to make causal or peremptory challenges. The accused was convicted of violating a lawful general regulation and possession of marijuana with intent to distribute. Prior to trial, the SJA excused five of nine members who were detailed to sit as members. The accused suffered no prejudice because he failed to object to the excusals at trial. The CAAF skirted an issue regarding the appropriate number to determine whether one-third of the members were excused (five of nine detailed for the accused’s case or five of thirty-one total members on primary and alternate member lists).
2. Excusal after assembly can occur only as the result of a challenge or by the military
judge for good cause shown. United States v. Latimer, 30 M.J. 554 (A.C.M.R. 1990)
(panel member’s upcoming appointment for physical examination was not “good cause”).
3. A sleeping member is good cause for excusal. United States v. Boswell, 36 M.J. 807
(A.C.M.R. 1993). Military judge could have rehabilitated member by reading portions of
transcript. Not an abuse of discretion, however, to excuse. What if excusal dropped
court JAA Inn of Court below quorum? Mistrial? See RCM 806(d)(1).