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Navy lawyers have a definite role in the administration of military justice, not by choice, but by regulation.
But, exactly what the Judge Advocate General’s Corps and its operational arm, the Naval Legal Service, are supposed to do is misunderstood by a significant number of line officers.
. here is a saying: "If you have a problem, take it first to your division officer, second to your commanding officer, third to the chaplain, finally to God. If you still need help, see a lawyer.” The saying can have two meanings. To the commanding officer who has had a less than satisfactory encounter with Navy lawyers, it may represent how he thinks lawyers feel about their own importance. Alternately, it could mean that lawyers have a limited role, and other approaches should be tried before seeking their assistance. Neither is correct.
Currently, the Navy trains command representatives in military justice, usually legal officers, at the Naval Justice School in Newport, Rhode Island, and the Fleet Training Center in San Diego, California.1 The courses at these commands attempt to educate line officers concerning the practical ramifications of the military justice system and the nonlawyer’s role within it. The limited resources available for this pursuit- combined with the rapid turnover of command legal officers—leave, however, a vast and forbidding area which renders legal, executive, and commanding officers ill prepared to meet their obligations under the Uniform Code of Military Justice (UCMJ). Experience often cannot compensate; many changes have occurred in military justice since most senior officers were exposed to it on the practical level, and changes continue to take place on an almost daily basis. This article is intended to assist in filling this educational void and to aid line officers in maintaining an effective and just disciplinary program. Much of what is written about military justice is phrased in technical and professional jargon; this article will attempt to convey the information in clear and ordinary English prose.
An obvious starting point for this endeavor is a discussion of the symbiotic relationship between the line and lawyer communities. Neither community can exist without the support of the other. By law and regulation, the commanding officer is vested with certain powers, rights, and responsibilities, with which lawyers cannot tamper.2 On the other hand, because of their specialized education and training, judge advocates are given certain rights and responsibilities which they alone must exercise.
This relationship is, in many respects, akin to the roles played by the solicitor and the barrister of England. The English system of jurisprudence, which has evolved through custom, intrigue, and tradition, has created a specific division of labor. A solicitor is the person to whom a client goes for legal documents and advice. If the case requires litigation, the solicitor pre-
Sound policy considerations exist for this division of tabor. The personnel involved in military justice infrac- ri°ns are usually located at the command, fruits of the crime are there, and it is there the investigation will be conducted. Moreover, this system allows a commanding °fficer to decide an appropriate forum at which to handle the infraction, and that forum may or may not be a court-martial. In-house problems can be kept in bouse. Frequently, UCMJ violations are the result of a basic failure in leadership. Allowing the commanding officer to handle these matters ensures that delinquents in leadership are corrected at an appropriate level, ^ith the authority to decide an appropriate course of action, however, comes the responsibility to prepare the case for trial, if the court-martial is chosen as the mode °f handling the charge. Much of this "solicitor’s” work 'Uvolves running errands and doing clerical work, but bis preparation of the case is a very important consider
pares the case and turns it over to a wig-bedecked barrister who argues the case before the court. Analogously, in the Navy the client is the commanding officer, the solicitor is the command’s legal officer, and the barrister is the judge advocate. The client decides ffie type of action (nonjudicial punishment, summary, special, or general court-martial), he controls the purse strings, and he has the authority to negotiate pretrial agreements which have an impact on the outcome. The command legal officer-solicitor does the staffing, and the barrister-judge advocate tries the case.
A frequent misconception among line officers is that lawyers are required to handle all the work when a court-martial is involved. On the contrary, the Eng- lish-style division of labor has been established by iaw and regulation. The Uniform Code of Military Justice, Manual for Courts-Martial, and Navy Regulations place primary responsibility for handling disciplinary '^fractions in the hands of the commanding officer. The executive officer is delegated the responsibility of directing . . the investigation for the commanding °fficer of alleged violations of the Uniform Code of Alilitary Justice, U. S. Navy Regulations, and other military and civil law; and recommending appropriate disciplinary action.” The command legal officer acts as an advisor to the commanding and executive officers. Specifically, he is tasked with recommending courts- martial in appropriate cases, preparing the court-martial convening orders, supervising the technical and clerical Preparation of charges, training command personnel assigned to courts-martial in their duties, reviewing the mcord of trial, and assisting the convening authority in bis post-trial action.3 In practice, the command legal officer also coordinates the investigation. The rest of the Judicial proceeding, essentially the court-martial, is the bailiwick of the judge advocate.4 ation. A barrister is only as good as his solicitor. An inadequately investigated case, improperly drawn charges or convening orders, or a failure to produce proper witnesses can result in a botched prosecution— and a consequent breakdown in military justice.
Handling the Investigation: As previously mentioned, the responsibility of investigating offenses is the executive officer’s. In practice, the command legal officer is delegated this duty. An officer is assigned to conduct an impartial investigation and gather evidence which will be used at nonjudicial punishment, employed by trial counsel in a court-martial or presented to an Article 32 [of the UCMJ] officer. One item must be checked before ordering the command’s investigation. The investigation of certain offenses has been reserved to specialized organizations of the Navy or federal government, which possess a greater degree of expertise than that usually found at the command level. The Navy’s primary investigatory body is the Naval Investigative Service (NIS). To it, a command must refer all investigations concerning security violations, espionage, sabotage, subversive activities, any matter involving fraud against the United States, and major criminal offenses.5 Regarding the last category, NIS has investigative jurisdiction over crimes involving personal property worth more than $500 and government property worth more than $100, as well as the theft of controlled substances, ordnance, and contraband. The NIS also has investigative responsibility for "narcotic violations,” but policy seems to differ on marijuana, which is technically not a narcotic. With regard to marijuana, commands should check with their local NIS office, since many offices prefer that the command investigate simple use and possession cases, while sale, transfer, introduction, and possession of large amounts of marijuana are investigated by NIS.
This division of investigative responsibility ensures that serious criminal offenses receive the professional efforts which usually result in conviction. A command usually cannot provide the necessary expertise, manpower, or resources to conduct a complicated investigation. However, even though NIS or some other specialized agency is handling the investigation, the legal officer should make sure the command itself is kept apprised of developments. The command cannot blame an outside body if the investigation phase of a case is not completed in a diligent manner; NIS works for the command, and the commanding officer is ultimately responsible for the speedy and effective resolution of the case.
The Function of the Investigation: Military criminal law contemplates two types of investigation. The first is the preliminary inquiry guidance for which is contained in paragraph 33, Manual for Courts-Martial (MOM)
1969(Rev.). A preliminary inquiry must be conducted in every nonjudicial punishment or court-martial case. The second is the so-called Article 32 investigation which draws its name from Article 32, UCMJ and is described in paragraph 34, MCM 1969 (Rev.). The latter is a close cousin of the grand jury indictment in civilian criminal law. It is not a substitute for the preliminary inquiry and is convened only for serious felony offenses, as a required procedural step in bringing a case to general court-martial.
At the Article 32 hearing, the information from the preliminary inquiry is presented to an officer. He impartially weighs this evidence and the evidence produced by the defense. He then recommends an appropriate disposition of the charges. If a recommendation for general court-martial is made and the convening authority concurs, the charges and the result of the Article 32 investigation are forwarded to the officer exercising general courts-martial jurisdiction.
Obviously, the preliminary inquiry is the core of the military justice system, and it is the most important service a solicitor provides to his client, the commanding officer and his barrister, the judge advocate. The preliminary inquiry and the evidence it produces will be used by the officer imposing nonjudicial punishment and the lawyers assigned to conduct a court-martial.
Every case should be investigated as though it will be referred to trial. When brought to nonjudicial punishment, an accused has a right to be confronted by evidence which establishes his guilt. Hunch or conjecture will not suffice.6 Recent changes in the nonjudicial punishment appeal procedures have reemphasized the importance of a complete investigation. (Commanding officers cannot "bootstrap” their nonjudicial punishment appeal endorsement by "re-investigating” the case after an accused contends he was unjustly punished.) Since the JAG Manual requires an investigation to be attached to a command’s appeal endorsement, and since no one can be certain when an accused will appeal, each case must be investigated on the presumption an appeal will occur. Although some may consider this an extreme requirement and a waste of time, it is neither. In fact, a well-documented investigation streamlines non judicial punishment procedures and reduces the likelihood of an appeal. The time spent investigating the case is offset by the time the command saves in the hearing and appeal phases. It makes unnecessary a "Cecil B. DeMille production” with many witnesses standing by to provide orally what could just as easily be provided in a written statement.
The JAG Manual requires the commanding officer at nonjudicial punishment to let the accused see "all items of information in the nature of physical or documentary evidence.” If the case is open and shut, little time will be spent during the hearing, since witnesses are not necessary unless there is a controverted question of fact.7 Following the captain’s mast or office hours, the airtight investigation will preclude appeals, since the accused realizes there is sufficient evidence to support the imposition of punishment.
Even more important, a thorough preliminary investigation also assists in a prompt disposition of courts- martial. Defense counsel is entitled to a copy of the investigation. If it is weak, full of holes, and subject to attack, the defense may decide to plead not guilty. The accused has a legal right to do so, even if he knows he is guilty, and thus force the government to prove the case against him beyond reasonable doubt.8 On the other hand, the airtight investigation usually results in a plea of guilty and concentration by the defense on plea bargaining or the pre-sentence phase of trial known as extenuation and mitigation. The guilty plea is far less costly in terms of time, money, and manpower. Trial counsel must present the case to the court and argue that it establishes guilt beyond reasonable doubt. However, articulate he might be, he cannot prosecute a case successfully if the evidence produced by the preliminary inquiry is insufficient. Reinvestigation is not the responsibility of the trial counsel. If he discovers deficiencies in the investigation, either the command’s investigator or the Naval Investigative Service, whichever is appropriate, must acquire the additional evidence. All these considerations make it imperative that, in every command investigation, care be taken in the selection of the investigator.
Who Should Investigate? The command should appoint as soon as possible an investigating officer whose selection will depend on a number of factors: the size of the command, the number of disciplinary problems it encounters, the complexity of the particular case, and the experience of the investigator. If at all possible, two persons should be disqualified from acting as the investigator: the command’s legal officer and the suspect’s division officer. The legal officer usually evaluates the preliminary inquiry and recommends its disposition to the executive and commanding officers. It would be virtually impossible for him to evaluate his own work objectively. Moreover, if the charges are referred to a court-martial, the legal officer will be needed to assist the convening authority with the post-trial review and action. It would probably be impossible to do impartially if the legal officer investigated the case originally' Obviously, the commanding officer should not actually participate in the investigation, since it is his duty to impartially weigh the fruits of the inquiry before de-
CIding how to dispose of the offense.
As contrary to custom as it may seem, the division °fficer is very often a poor choice. Not only does the law require an impartial investigation, but the success the disciplinary system usually turns on the accused’s elief that he has been treated fairly. Most often, divi- S1°n officers have one of two opinions about a suspect: man is either an excellent worker (his off-duty assaults are immaterial when compared to his skill at keeping the boilers operational), or he is a troublemaker who should be kicked out of the Navy. Neither °pmion is impartial. Another reason not to use the division officer is that many minor offenses may have een contributed to by leadership failures on the part of 'vision officers. In such a circumstance, the preliminary 'nquiry will not provide the information the command needs to take corrective action.
Perhaps the best solution to this problem is a list of °fficers and chief petty officers who will be assigned '"vestigative duty on rotation. This procedure spreads (he workload and enables an accused to be assigned an 'mpartial investigator. Since an investigator need only e senior to the person who is the subject of the mvestigation, use of noncommissioned officers as inves- t'gators is perfectly acceptable. Allowing senior petty °fficers to assist in the administration of military justice may help to eliminate questions among the crew about how disciplinary decisions are made. Influential petty °fficers are more likely to support the decisions of the c°rnrnand when they have had a role in determining 'hem.
How to Investigate: Since it is his responsibility to
The outcome of a nonjudicial punishment hearing or court-martial often turns on documentary evidence. Log books, command instructions, plans of the day, official correspondence, and a variety of other documents may be vital to the prosecution of a case.
direct the command investigation, the executive officer should take the necessary steps to ensure that the command investigators possess an adequate amount of guidance on how to conduct a preliminary inquiry. No standard investigation guide exists for command use, since each case will develop according to its particular circumstances. There are, however, five basic steps to any investigation.
Step 1: Learn what to look for. The investigator should examine the report chit and determine the basic nature of the offense.9 Once the jurisdictional issue is solved, the investigator should consult Chapter 28 of the Manual for Courts-Martial. It contains a discussion of each punitive article under the UCMJ and the "elements of proof” necessary to prove the offense. These elements, listed under the "proof” section of the particular paragraph, should be written down, and, as the investigation progresses, the investigator should check his evidence against each element. Failure to establish proof beyond reasonable doubt on every element of the offense will result in an acquittal.
Step 2: Question the witnesses. The investigator should next interrogate all witnesses. The accused should be interviewed last. The accused’s supervisor or division officer should always be consulted, even though he may have no knowledge of the offense itself. That officer’s statement—containing a discussion of the accused’s job description; length and intensity of observation; performance evaluation; his traits, problems, and relationships with others; as well as a "guesstimate” as to why he committed the offense—is invaluable in assisting the commanding officer in disposing of the charge and determining a suitable punishment. With one exception, in every case a witness’s testimony should be put in the form of a written statement and signed. If the case will result in trial by court-martial, the statement should be sworn. However, no signed and sworn statement can be used at trial by court-martial unless the accused consents. Therefore, material witnesses should immediately be placed on legal hold if a court-martial is anticipated. They should not be released without the express consent of trial counsel. Although statements cannot be used as a substitute for a witness at trial, they are very valuable assets for trial counsel. They can be used to formulate stipulations of fact and testimony, refresh a witness’s memory, and impeach the opposi-
tion’s witnesses. Signed statements are also necessary when a witness will be unavailable for captain’s mast or office hours.10 The one exception to the requirement for signed statements is when a witness will be available to appear at the nonjudicial punishment hearing. Then, a summarization of what the witness will say can be prepared by the investigator and attached to the preliminary inquiry package, and, unless the accused asks that the witness be present at the hearing, the summary can be used in lieu of the witness being called. The investigator can acquire the information for the summary over the phone.
The investigator need not use overkill; each man who was at the muster the accused allegedly missed is not necessary to prove an unauthorized absence. On the other hand, when opinion testimony will be required to prove an element of the offense (eg-, drunkenness, disrespect, knowledge of a verbal order) more than one reliable witness, if available, is beneficial.
Witnesses who are not suspected of committing a crime themselves should not be advised of their right against self-incrimination. Such a procedure wastes time and often chills the otherwise willing witness’ response to questions. If, however, during the course of questioning a witness provides information which makes him a suspect, the investigator must immediately stop the interrogation and warn the witness of his rights.
Step 3: Collect the documentary evidence. The outcome of a nonjudicial punishment hearing or court-martial often turns on documentary evidence. Log books, record entries, command instructions, plans of the day, official correspondence, and a variety of other documents may be vital to the prosecution of a case; they should all be collected and preserved. Extreme care should be taken with attachments to Naval Investigative Service reports of investigation. Lose the laboratory analysis, or the accused’s confession and lose the case. NIS reports should be locked up and not handled by routine procedures. Documents can seldom be introduced into evidence at trial without a proper foundation being laid. In laying a foundation, trial counsel must present proof that the document is authentic and relevant. To do this it is necessary to call as a witness the custodian of the documents or the person who made the document. At mast or office hours, documentation is not as important, since the rules of evidence are relaxed.
Step 4: Collect the real evidence. Real evidence is any physical object which aids in proving that a crime has been committed: e.g. the contraband drug, the weapon, the bad check, or similar items. At trial, key to admissibility of real evidence rests with identification and chain of custody. When the Naval Investigative Service has the jurisdiction over the investigation, the command should seal the area of the crime and allow NIS to seize the real evidence, unless the circumstances require prompt action to preserve it. Since physical evidence cannot speak for itself, a witness must be used to lay a foundation before the item can be accepted as evidence, and the witness must be able to identify the object. Command personnel who seize items should mark or scratch their initials and the date of seizure onto the object. When an item cannot be marked, as is often the case with drugs, it should be placed in a suitable unused container and the container marked for identification.
A chain of custody should then be started and attached to the item. A chain of custody is a necessary prerequisite to admissibility. It is a document which records the names of all persons who possessed the item. Through the chain, it can be established that the item offered into evidence is the same one seized, and it provides the names of witnesses who can be called to lay a foundation for the item of real evidence.
Step 5: Confront the accused. An accused should always be questioned last. A case which relies on the accused’s confession is weak. Questioning the accused last allows the investigator to confront him with the proof he committed the offense, and he will either realize he has been caught, or he will lie. The documented lie is often just as valuable as a confession since it can be used to impeach the accused at trial.
There are two serious risks in questioning the accused at an early stage of the investigation. If the accused is improperly warned of his rights and a statement acquired, all evidence thereafter gathered may be inadmissible as "fruit of the poisoned tree.” This picturesque phrase is simply the law’s method of providing that evidence acquired from tainted, or illegally acquired evidence, cannot be used against an accused. The second reason for not immediately questioning the accused is the urge he possesses for self-preservation. If the person has been caught in the act, he will often exercise his right to counsel and remain silent.
Before questioning an accused, care should be taken to warn him of his rights and to secure a written waiver if he elects to make a statement. Appendix-l-n of the JAG Manual or a similar form should be utilized. Should the command investigator determine that the accused is providing a fraudulent statement, the statement should nevertheless be taken. It may be very useful at trial.
Conclusion: Just as an army moves on its feet and a navy moves in its ships, the military justice system moves on the strength of the preliminary inquiry. Effective leaders realize that today’s Navy is manned by a highly sophisticated group of people who are aware of and concerned about their "rights.” The command that
conducts a thorough and impartial investigation into every offense, serious or minor, will provide visible proof to its members that their "rights” are important and protected. But the investigation is useful not only ln administering nonjudicial punishment, it is also the keel of the summary, special, and general courts-martial. The coordination and review of the inquiry is the bailiwick of the legal officer. He and the executive officer have an obligation to ensure that their client, the commanding officer, and their barrister, the judge advocate, acquire the necessary information to perform their roles. This responsibility should not be taken lightly.
The great American jurist, Oliver Wendell Holmes, was once asked why England used the solicitor-barrister system. Holmes said the distinction had been explained by a barrister friend of his; if the law is to be practiced, somebody had to be damned and his friend preferred that it should be somebody else.
Lieutenant Bannerman graduated in 1969 from the University of New Mexico with a bachelor’s degree in political science. He got his commission through the NROTC program. In 1972, he received his juris doctor degree from the University of New Mexico School of Law. His first tour of duty was as head trial counsel, head defense counsel, and legal assistance officer for the Naval Legal Service Office, Guam. His second tour was at the Fleet Training Center, San Diego, where he served as staff judge advocate and an instructor in the nonlawyer military justice course. In October 1976, Lieutenant Bannerman left active <luty to join the law firm of Shaffer, Butt, Jones, Thornton and Dines in Albuquerque, New Mexico.
Quotas for Newport can be acquired by calling Autovon 948-3121, and for ^an Diego, by calling ComTraPac Quota Control at Autovon 958-4216 or 4218.
The UCMJ places the primary responsibility in the hands of the convening authority, who normally is the commanding officer of the offender. Paragraphs 33 and 34, Manual for Courts-Martial 1969 (Revised, as amended 27 January 1975) and Articles 0708, 0713, 0723, and 0730 of Navy Regulations, dated 26 February 1973, also apply.
3The executive officer’s duties are set forth in paragraph 302 of the Standard Organization and Regulations of the Navy, Opnav Instmction 3120.32, and the command legal officer’s duties in paragraph 303.8.
4NavLegSvcInst 5800.1.
5SecNav Instruction 5520.3 (which canceled SecNav Instruction 5430.13B) addresses all offenses except security violations. The latter are handled by OpNav Instruction 5510.1E.
6The Navy has not defined the burden of proof necessary to justify the imposition of nonjudicial punishment. It is recommended that "beyond reasonable doubt” be used as the NJP standard. The Air Force has adopted this standard on the grounds that should the accused refuse NJP, as any sailor not attached or embarked in a vessel can do, the "beyond reasonable doubt” standard will be used. Air Force Regulation 111-9, paragraph 4.
7JAGMan 0101.b(l) and (2).
instruction 3-1, Military Judges’ Guide, Department of the Army Pamphlet 27-9.
9 It is recommended that a command report chit be utilized instead of the standard NavPers 1626/7 or NavMC 10132. These latter two forms are official in nature, and are addressed to the commanding officer. Under regulations, documents addressed to the commanding officer must be forwarded to the commanding officer. The utilization of a command report chit, which is not addressed to any particular person, allows the disposition of an offense at any level considered appropriate within the command. The provisions of the BuPers Manual require that any dismissed 1626/7 form be placed in the unit punishment book. The use of a command report chit, however, allows dismissal without the assertion of the offense in an official record system, thereby avoiding complications with the privacy act.
10JAGMan 0101.d(l)(iv) states an accused has the right to ". . . be present during the presentation of all information against him, either by testimony of a witness in person or by the receipt of his written statements.” JAGMan 0101.d(2), in the second sub-paragraph, requires that of there is a controverted question of fact raised during the hearing, witnesses be called if present at the command or otherwise available at no cost to the government. If a witness is unavailable, a statement is necessary. JAGMan 0101.f.(7)(d) requires the appeal endorsement to have enclosed ". . . all documents and signed statements which were considered as evidence . . .” Collectively, these provisions necessitate signed statements by witnesses.
Custom Made
At the conclusion of his second term as president, General Grant, in 1878, took a trip around the world visiting all the great courts and kings of the leading nations. In Japan, the Premier, Prince Kung, tried to compliment Grant by assuring him that he was born to command, but his faulty English words were; "Sir, brave general, you were made to order.”
Captain Edgar K. Thompson, USN (Retired)
{The Naval Institute will pay $23.00 for each anecdote published in the Proceedings.)