130.25 - Who may serve on courts-martial. - New York Statutes

§ 130.25. Who may serve on courts-martial. (a) Any officer of or on duty with the organized militia shall be eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial. (b) Any warrant officer of or on duty with the organized militia shall be eligible to serve on general and special courts-martial for the trial of any person, other than an officer, who may lawfully be brought before such courts for trial. (c) (1) Any enlisted person of the organized militia who is not a member of the same unit as the accused shall be eligible to serve on general and special courts-martial for the trial of any enlisted person who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of a session called by the military judge under subdivision (a) of section 130.39 of this chapter prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted persons serve on it. After such a request, no enlisted person shall be tried by a general or special court-martial the membership of which does not include enlisted persons in a number comprising at least one-third of the total membership of the court, unless eligible enlisted persons cannot be obtained on account of physical conditions or military exigencies. Where such persons cannot be obtained, the court may be convened and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained. (2) For the purposes of this section, the word "unit" shall mean a duly organized body of the organized militia not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them. (d) (1) When it can be avoided, no person subject to this code shall be tried by a court-martial any member of which is junior to him in rank or grade. (2) When convening a court-martial, the convening authority shall appoint as members thereof such persons as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No person shall be eligible to sit as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case. If within the command of the convening authority there is present and not otherwise disqualified an officer who is a member of the bar of this state and of appropriate rank, the convening authority shall appoint such officer as president of a special court-martial; provided, however that although this requirement shall be binding on the convening authority, failure to follow it in any case shall not divest a military court of jurisdiction.