United States v. Bartlett

ERDMANN, Judge

(concurring):

I agree with the majority’s holding that the Secretary of the Army impermissibly contravened the provisions of Article 25, Uniform Code of Military Justice, 10 U.S.C. § 825 (2000), and with the conclusion that on the facts of this case, the error was harmless beyond a reasonable doubt. While I also agree that a structural-error analysis is not warranted in this case, I write separately to emphasize that the issue as to whether a structural-error approach could ever be the appropriate framework for considering alleged eiTors in the selection of courts-martial members was neither briefed nor argued by the parties and is not an issue that is necessary to the resolution of this case. The majority opinion states, “Both before and after the Supreme Court’s decision in Fulminante, this Court has employed a case-specific rather than a structural-error analysis in deciding issues of improper court member selection.” United States v. Bartlett, 66 M.J. 426, 430 (C.A.A.F.2008). I do not believe that language should be read to foreclose the possible application of structural-error analysis to other member-selection cases.