When a lawyer wants you to watch out for something and wants to be erudite about it, he uses the word caveat, or beware. The time has now come when the word caveat must apply to the Manual for Courts- Martial. In the past, a commander could be pretty sure of himself in dealing with legal matters, if he knew what was in the familiar red book. But no longer. In the last few years many changes have been made by the Court of Military Appeals in the application of the Uniform Code of Military Justice. These changes are not reflected in the Manual for Courts-Martial; but to administer the law, commanders should be familiar with many of these changes and with the point of view on the part of the court which has brought them about.
When the Court of Military Appeals began to sit almost nine years ago, the complaints raised in Congress and elsewhere about the shortcomings of the court-martial system were still in the air. The principal objections were to something called “command control” and to the fact that an accused tried by court-martial lacked certain constitutional rights accorded an accused tried in civilian courts. During the nine years of its existence the Court of Military Appeals has been principally concerned with protecting the accused from command influence and providing him with rights analogous to those of a civilian tried in the criminal courts. In its efforts to safeguard the accused, the Court of Military Appeals has in many instances enlarged the rights of the accused beyond the limits provided in the Manual for Courts-Martial.
Command control is the term used to describe the authority of commanding officers to appoint and control courts-martial. Under the old system the same official could:
Accuse the offender.
Direct what charge would be preferred. Select the prosecutor, defense counsel and members of the court.
Review the record.
Admonish the court if he disagreed with the result.
It was believed that this much power in the hands of one man would prevent the accused from getting an impartial trial. The record of Congressional debate on the Uniform Code of Military Justice is full of references to commanders and their
“Unfair and arbitrary practices.”
“Capricious and whimsical action.”
“Overbearing and authoritarian spirit.”
“Hardboiled and arrogant methods.”
So strong were these objections to command control that it was seriously proposed that court-martial authority be removed from military commanders and given to the civilian courts or to a judge advocate general corps. The majority of the Congress, however, recognized that the trial of a military offender could not be removed from a military commander without destroying discipline. The problem of command control was summed up by Congressman Vinson in the following words: “Our problem stems from our desire to create an enlightened system of military justice which not only preserves and protects the rights of the members of our armed forces, but also recognizes the sole reason for the existence of a military establishment—the winning of wars.”
To eliminate command control Congress attempted to draw a line between the commander’s duty to enforce military law and his power to influence its administration. The general Congressional intent to remove command control was spelled out in Article 37 of the Uniform Code of Military Justice and the accuser concept. Article 37 provided that no person could coerce or influence a court-martial or any member with respect to his judicial acts. A convening authority was specifically forbidden from punishing anyone connected with judicial proceedings. As stated in the Uniform Code of Military Justice, the accuser concept provides in substance: Anyone who has “an interest other than an official interest” in the prosecution of the accused is an accuser, and an accuser cannot convene a special or general court-martial.
But exactly what did the law mean when it said an accuser was anyone who had an “interest, other than an official interest, in the prosecution of the accused?”
An answer to this question was provided in the case of U. S. v Gordon (2 CMR 162). On 5 March, Gordon, an airman, broke and entered General Edwards’ house at Bolling Air Force Base. On 9 March, Gordon burgled General Lee’s house. General Lee was the Base Commander at Bolling. On 10 March, Gordon was apprehended and confessed to both offenses. On 27 March, charges were preferred by the provost marshal against Gordon and on 2 April General Lee convened a General Court-Martial. Upon completion of the pre-trial investigation which must precede a General Court-Martial, the Investigating Officer recommended that Gordon be tried by General Court-Martial for breaking into General Edwards’ house, but that the charge of breaking into General Lee’s house be dropped. The Staff Legal Officer recommended the same thing. General Lee ordered Gordon to be tried for breaking into the Edwards house and the charge of burglary of the Lee house was dropped. Gordon was duly convicted of burglary of General Edwards’ quarters. After the trial Gordon appealed on the grounds that General Lee was an accuser and had no power to convene a court in his case.
The question presented to the Court of Military Appeals hinged on this matter of what interest General Lee had in the proceedings. General Lee did not sign the charges nor did he direct that charges be signed. He was, however, a victim of the burglary and he did convene the court-martial which convicted the accused. This, said the accused, made him an accuser. The Court of Military Appeals ruled that General Lee was an accuser. Not only did he know of the offense, but it was reasonable to believe that he had more than official interest in the prosecution of the accused. The Court of Military Appeals said that the accused is entitled to an impartial trial and to an impartial review by an officer free from any connection with the controversy.
But suppose the convening authority was not personally involved with the accused’s offense? Suppose the offender is charged with violating an order signed by the convening authority? The Marsh case (11 CMR 48) provides an answer to this question.
After a period of AWOL, Marsh, a soldier, reported into an army post. He was given stragglers orders directing him to report to a port of embarkation. In addition, he was given another piece of paper captioned “Direct Order.” This “Direct Order” was signed “By Command of Lt. General Hodges” the commanding general of the post. It directed him to proceed to the port of embarkation and indicated trial by General Court-Martial if he disobeyed. Marsh went UA again and was tried for disobedience of a direct order by a court convened by General Hodges. After conviction, Marsh appealed claiming Lt. General Hodges was the accuser because his direct order had been violated. The Court of Military Appeals agreed with Marsh and said that because a direct order issued by General Hodges has been violated that General Hodges had a personal interest in the matter and was therefore an accuser.
The Gordon and the Marsh case indicated that as commanders we must insure that our interest in the enforcement of military law is always kept on the official level and that we should never become involved in what could be construed as a personal controversy or a direct relationship with the accused.
Another kind of involvement by the convening authority in a court-martial is exemplified by the McClenny case (18 CMR 131). McClenny was tried for unauthorized absence. One of the documents used in proving the period of his absence was a unit diary. This document had been authenticated by the convening authority. At the trial the Defense Counsel introduced evidence which reflected on the accuracy of the unit diary. McClenny was convicted and after conviction appealed on the following grounds. The introduction of the unit diary signed by the convening authority made the convening authority a prosecution witness. As a prosecution witness, the convening authority became an accuser and therefore ineligible to convene the court.
In this case the Court of Military Appeals drew a fine line. Yes, they said, the convening authority did become a prosecution witness when the unit diary was introduced. But the document was signed by him in his official capacity and did not indicate any personal dislike or animus against McClenny. Therefore, the convening authority was not an accuser. But because the accuracy of the unit diary had been questioned, the convening authority should not review the case. The McClenny case is an example of the Court of Military Appeals declining to enforce the accuser concept even though they felt that the convening authority had sufficient interest in the case to preclude him from acting as reviewing authority. It represents a practical compromise in a practical situation.
So much for the accuser concept and the problem of personal interest versus official interest. Let us now look at some examples of interference by the convening authority in court-martial processes.
Cases where the convening authority has interfered directly with a court-martial are rare. One example is the Whitley case (19 CMR 82). During the trial of Whitley by special court-martial, the Defense Counsel objected to one of the questions by Trial Counsel. After some argument, the president ruled for the defense. Thereupon Trial Counsel asked for a recess. A few minutes later Trial Counsel returned and announced that the “Convening authority requested a recess pending appointment of a more qualified president of the court.” The removal of a president in the middle of a trial under these circumstances was held to be improper interference in a court-martial by the convening authority.
Examples of interference by a convening authority in court-martial processes have been found most frequently in connection with paragraph 38 MCM. This paragraph provides that a convening authority through the staff legal officer, or otherwise, may give general instruction “to personnel of courts- martial relating to “rules of evidence, burden of proof, and presumption of innocence, and may include information as to the state of discipline in the command . . . and command measures . . . taken to prevent offenses.” In both of the cases which follow the accused claimed that the convening authority had improperly influenced the court under the guise of giving instruction.
Three months before the trial of an accused by the name of Navarre (U. S. v Navarre, 17 CMR 32), the convening authority assembled all of his officers and gave them two hours instruction on the Uniform Code of Military Justice. He discussed improper findings and sentences in previous courts-martial and presented statistics which indicated that noncommissioned officers were more often acquitted and given lighter sentences than other enlisted men. He stated that he would make notations on the fitness reports of officers who failed to carry out their duties under the Uniform Code of Military Justice. Three months after this session, Navarre was convicted by a court-martial which included members who had been instructed by the convening authority. Navarre claimed improper command influence.
In the Ferguson case (U. S. v Ferguson, 17 CMR 68) the accused and three others were charged with mutiny in the brig. The day before the trial, the commanding officer, chief of staff, staff legal officer, the law officer and the members of the court were assembled for instruction by the staff legal officer. He stated the general duties of court members and then discussed disciplinary problems at the post. He mentioned “dissident elements” and “trouble makers” and the need for prompt and firm handling of such cases. Ferguson was convicted, and he appealed on the grounds of command influence.
How do the cases compare?
Instruction Navarre Ferguson
When given Three months before trial One day before trial
Who instructed Commanding Officer Staff Legal Officer
Who was present All officers of the Command Commanding Officer,
Chief of Staff,
Law Officer, and
members of court-martial only
Scope of instruction Reference to fitness reports No reference to fitness reports
General guidance General or specific guidance?
The Court of Military Appeals in the Navarre case said that the commanding officer acted properly to take affirmative action to insure fair trials. Under the circumstances, Court of Military Appeals said the reference to fitness reports was not improper. But in the Ferguson case they held that the connection between the staff legal officer’s advice and the trial of the accused for mutiny the following day was so direct as to create a bias against the accused.
So far we have dealt with situations where the command influence has been held to be a direct or personal influence exerted by the commanding officer or the convening authority. But the most important application of the doctrine of command influence does not involve the commanding officer or the convening authority at all. This new twist to the doctrine has only recently been announced.
We are all familiar with various Secretary of the Navy and Secretary of the Defense policy instructions regarding discipline in the Naval Establishment. For example, Secretary of the Navy Instruction 5815.2A dated 12 March 1956 states Navy Department policy regarding larceny and other offenses involving moral turpitude. The instruction indicates that a thief should not be retained in the service. Paragraph 33 h of the Manual for Courts-Martial contains a similar policy statement; “ . . . that the retention in the armed forces of thieves and persons guilty of moral turpitude injuriously reflects upon the good name of the military service.” Do these statements reflect command influence?
In the case of an accused named Estrada (U. S. v Estrada, 23 CMR 99) the Trial Counsel invited the courts attention to the policy of the Secretary of the Navy regarding larceny and offenses involving moral turpitude. The Court of Military Appeals held this was error. The court said that reading Secretary of the Navy Instruction 5815.2A to the court is the same thing as calling the Secretary of the Navy to the stand and asking him what instructions he has with regard to the case before the court. This, said the Court of Military Appeals, is the strongest kind of command influence.
In the case of a Coast Guard officer named Rinehart (24 CMR 212) the Trial Counsel directed the court’s attention to paragraph 33h, Manual for Courts-Martial. The Court of Military Appeal held that the introduction of any policy directive, whether in the Manual for Courts-Martial or not, was for the purpose of influencing the court in its deliberations and was improper. Again, the Court of Military Appeals stressed the doctrine of command influence. The Rinehart case is particularly important to us. This case does more than extend the doctrine of command influence to the Manual for Courts-Martial. It prohibits court members, except the president of a special court-martial, from using the Manual for Courts-Martial during the course of the trial for any purpose. We will return to this aspect of the Rinehart case later.
Before leaving the doctrine of command control, let us review how it has been applied by the Court of Military Appeals. In the early cases the issue of command control centered on the question of the personal influence or interference by the commanding officer or convening authority in courts-martial. In the case of Airman Gordon who broke into General Lee’s house, the question was one of General Lee’s personal interest in the prosecution. Recently the doctrine of command influence has been broadened in its application to include policy directives from higher authority. The reason for this shift is the insistence of the Court of Military Appeals that courts-martial should be subject to as little control by the executive branch of the government as possible. To get the picture of what the Court of Military Appeals has in mind, remember the doctrine of separation of powers in our federal government between the executive, legislative, and judicial branches. It is apparently the Court of Military Appeals’ objective to develop military courts which will have the same freedom from executive control that civilian courts enjoy.
To provide the military accused with the same rights enjoyed by a civilian tried in the criminal courts, the Court of Military Appeals has not only spent much time in the explanation and definition of those rights, but has often expanded them beyond the limits set forth in the Manual for Courts-Martial. This process falls under three general headings:
The development of the doctrine of military due process.
The expansion of the rights of the accused beyond the Manual for Courts-Martial.
The expansion of the rights of the accused beyond the Uniform Code of Military Justice.
One of the earliest doctrines announced by the Court of Military Appeals was the doctrine of “military due process.” According to the court “Congress intended to Place military justice on the same plane as civilian justice.” Therefore, said the court, its duty was to give the same legal effect to the rights granted by Congress to military personnel as do the civilian courts to those granted to civilians by the constitution and other federal statutes. The phrase “military due process” is analogous to the phrase “due process of law” found in the Constitution and refers to the minimum standards of military justice which must be met before an accused can be convicted.
The first group of cases illustrating the application of military due process involve Article 31, Uniform Code of Military Justice. That article provides that a person suspected or accused of an offense cannot be questioned without being warned of his right to remain silent. Article 31 also provides that any evidence obtained in violation of its provisions is not admissible in a court-martial.
The case of U. S. v Wilson (8 CMR 48) arose over the shooting of a Korean. On hearing the shooting, an MP approached a group of soldiers in the vicinity and without the warning required by Article 31 asked, “Who did the shooting?” The accused, Wilson, said he had “shot at a man.” At the trial of Wilson for murder the statement was admitted. After conviction, Wilson appealed contending that his admission was improperly admitted because no warning was given. The Court of Military Appeals agreed that a warning should have been given under the circumstances.
In the case of U. S. v Josey (14 CMR 185) the accused was suspected of larceny. In the presence of the accused and a CID man, the victim said, “If I get my money back, I don’t want to press charges.” Thereupon the accused returned the money and told the CID man he was almost drunk when the theft took place. At no time was a warning given. Could this statement be used against the accused? No, said the Court of Military Appeals, the accused should have been warned.
In the Holmes case (U. S. v Holmes, 19 CMR 277) CID agents were investigating the theft of some gasoline. The accused’s ID card had been found at the scene of the crime. Without warning, Holmes was asked to produce the clothing he had worn earlier in the day. The clothes reeked of gasoline. Testimony to this effect was introduced at the trial. On appeal, the Court of Military Appeals held that the accused should have been warned before being asked to identify his clothing. The court reasoned that when an official asks a suspect a question, the suspect’s reply is a statement whether it is an oral declaration or a physical act.
The second group of cases illustrating the doctrine of military due process involves improper conduct by people connected with the trial. At the trial of an accused for sodomy, the principal witness, the alleged victim, suddenly said he couldn’t remember the incident. With its principal witness gone, the government’s case collapsed and the defense counsel asked for a finding of not guilty. At this point the law officer recessed the court and consulted with the staff legal officer. The law officer apparently told the staff legal officer that, if requested, he would be willing to grant the government a five-day delay. When the court opened the trial counsel asked for the five-day delay, and during this period the victim was persuaded to testify against the accused, who was convicted. The Court of Military Appeals held that the law officer departed from his impartial role and joined the trial counsel in influencing the conviction of the accused. It was suggested that the law officer’s action was motivated by concern for his career and promotion. This approach did not appeal to the Court of Military Appeals. The law officer, said the Court of Military Appeals, “should re-evaluate his duties and responsibilities as a judge in the military system . . . and let the ratings on his efficiency report fall where they may.” U. S. v Kennedy (24 CMR 61).
Another example of improper conduct concerns the president of a General Court-Martial. At the trial of an accused for desertion the president of the court-martial, an admiral, was challenged for cause. Testimony was given that on occasion the admiral had remarked that “anyone sent up here for trial must be guilty of something.” The admiral, when challenged, had to explain what he meant by these words. He said that he meant that there was a likelihood that an offense had been committed and that the accused had done it. The court-martial did not sustain the challenge for cause and permitted the admiral to sit as president. The Court of Military Appeals tossed out the case saying that the admiral’s testimony demonstrated a disposition to give less than full effect to the presumption of innocence. (U. S. v Deain, 17 CMR 44).
The third group of cases illustrating the doctrine of military due process involves the improper review of records of trial by the convening authority. Not only is an accused entitled to an impartial trial, he is entitled to an individualized review. In the case of U. S. v Wise (20 CMR 188) the accused was tried for unauthorized absence and sentenced to a BCD. A few days before the case was reviewed by the staff legal officer, the convening authority announced the following policy. “During the period of personnel reduction in the Army, no consideration will be given to the retention of any individual sentenced to a punitive discharge.” Legal officers in the command were instructed not to recommend suspension or remission of punitive discharges. The Court of Military Appeals reversed the conviction stating that a convening authority must consider each case on its own merits.
A similar situation arose in the case of U. S. v Plummer (23 CMR 94). Plummer had been convicted of theft. The staff legal officer in his review made the following statement: “It is the custom of the Army to deal severely with a barracks thief and I strongly recommend that we adhere to the elimination of all barracks thieves.” The Court of Military Appeals held that the review was in error as it could be construed to mean that the convening authority was obliged to approve the sentence and that he had no discretion in the matter. The Court of Military Appeals reiterated the fact that an accused is entitled to a careful and individualized review and that the convening authority cannot be bound by an inflexible administrative policy.
Through the doctrine of military due process the court has announced its intention to provide liberal protection for the accused throughout the whole field of military law. Under the doctrine of military due process, the accused is protected by a strict interpretation of his rights as stated in the Manual for Courts-Martial and the Uniform Code of Military Justice. In its desire to protect the accused, however, the court has often given him many additional rights which the Manual for Courts-Martial as written does not give him. It is in this area of judge-made extensions to the Manual for Courts-Martial that we must be particularly careful to avoid error. The discussion that follows does not cover all of these judge-made extensions to the Manual for Courts-Martial but only some of the most important.
The first group of cases extending the rights of the accused beyond the Manual for Courts-Martial concern Paragraph 150, Manual for Courts-Martial. This paragraph deals with the privilege against self-incrimination. After explaining the privilege which prohibits a person from being forced to give evidence against himself, the Manual for Courts-Martial makes the following statement: “This prohibition . . . relates only to the use of compulsion in obtaining ... a verbal or other communication . . . and does not forbid compelling (an accused) to exhibit his body or other physical characteristics . . . .” The paragraph goes on to say it is all right to use force to take a person’s fingerprints, to take samples of his handwriting, to make him speak for purposes of voice identification and ends with the statement that “the prohibition is not violated by requiring a person ... to submit to having ... a sample of his blood taken.” (Paragraph 150 b, MCM.) If it is all right to take blood samples, it would seem that urine samples could be properly obtained. Urine samples are often important in drug addiction cases.
In the case of an accused named Williamson (15 CMR 320), a sample of urine was obtained by catheter and analyzed. The accused was unconscious when the sample was taken. Later at his trial he objected to using the analysis of his urine against him on the grounds that he was compelled to give evidence against himself. The Court of Military Appeals, following the Manual for Courts- Martial, said that there was nothing improper in the procedure.
The court reached a different result a few months later. In the Jones case (18 CMR 161), urine was also obtained from an accused by catheter. This time the accused was conscious and he objected strenuously. In the case of U. S. v Jorden (22 CMR 242) the accused disobeyed an order to provide a sample of urine and was tried for disobedience of orders. In both the Jones and the Jorden cases the Court of Military Appeals said that to require an accused to provide a urine sample was a violation of the privilege against self-incrimination.
Why did the court change its mind? The answer lies in a decision by the U. S. Supreme Court in the case of Rochin v California (342 U. S. 165). In the Rochin case the civilian authorities had used a stomach pump on a narcotics suspect to obtain evidence from his stomach. The pump was applied by force against the violent objections of the accused. The Supreme Court said such procedure violated the Fifth Amendment which provides that no person shall be compelled to be a witness against himself.
As an example of another part of the Manual for Courts-Martial changed by the Court of Military Appeals, let us turn to cases dealing with Paragraph 164 of the Manual for Courts-Martial. Paragraph 164 of the Manual for Courts-Martial discusses desertion and includes the following statement: “If the condition of absence without proper authority is much prolonged and there is no satisfactory explanation of it, the court will be justified in inferring from that alone an intent to remain absent permanently.”
Since the Cothern case (23 CMR 382) was decided, it is prejudicial error for this statement to be read to the court. In the Cothern case the accused was charged with desertion for seventeen days absence. He presented evidence of family difficulties and denied an intention to desert. As part of his instructions, the law officer read the passage from the Manual for Courts-Martial about prolonged absence being enough from which to infer an intent to remain away permanently from the service. The accused was convicted of desertion and the conviction was approved by a Navy Board of Review. On appeal the Court of Military Appeals threw the conviction out. The court said that neither the law officer nor the Manual for Courts-Martial may substitute a period of absence, regardless of its length, for the ingredient of intent. They pointed out that length of absence is merely one fact from which an intent to desert can be inferred.
The same line of reasoning was employed by the court in the Rushlow case (10 CMR 139). In that case the accused stated that he planned to return to the service as soon as his brother was released from active duty. In instructing the court the law officer read another portion of Paragraph 164, Manual for Courts-Martial: “ . . . a purpose to return, provided a particular but uncertain event happens in the future may be considered an intent to remain away permanently.” The court said that this instruction was prejudicial in the absence of other evidence of intent.
These cases do not mean that an accused cannot be convicted of desertion. Convictions for desertion are being obtained and sustained right along. What the Cothern and the Rushlow cases mean is this: A court cannot convict on the basis of a formula. Apparently the Court of Military Appeals feels that the provisions of Paragraph 164 of the Manual for Courts-Martial offer a formula for conviction rather than a guide to impartial consideration of all the facts.
A third example of the Courts of Military Appeals changing the Manual for Courts- Martial is found in the cases dealing with false official statements. In the case of U. S. v Price (23 CMR 54) the court extended Article 31, which requires a warning, to a person charged with making a false official statement. This is directly contrary to paragraph 140a of the Manual for Courts-Martial which is quoted as follows: “In a prosecution for . . . false official statement . . . the fact that the accused was not warned of his right against self incrimination before he made the statement is not a ground for excluding . . . the statement . . . .”
Price was in charge of a ship’s storeroom. Some cigarettes had been stolen and an investigator was making the rounds of various storerooms to inquire if anyone had seen any of the missing cigarettes. Without the warning required by Article 31, the investigator asked Price if any of the cigarettes, which he described, were in the storeroom. Price said, “No,” when in fact he was concealing some of the stolen cigarettes. Price was convicted of false official statement. The Court of Military Appeals ruled the conviction improper. Article 31, they said, provides that any statement made without a warning is not admissible. The Manual for Courts-Martial in paragraph 140a is in error because it conflicts with the Uniform Code of Military Justice.
In the case of U. S. v Arthur (24 CMR 20) the court had to decide the meaning of the following words of the Manual for Courts-Martial (Paragraph 186) discussing false official statements. “The false representation must be made officially . . . The rank ... of the person intended to be deceived is immaterial if that person was authorized in the execution of his office to require the statement from the accused.” Arthur, the accused, was in a public place with a girl, also a member of the armed forces. Arthur struck the girl, and an officer who was nearby came up, identified himself, and asked Arthur for his identification. Arthur refused to give it. The officer then ordered Arthur to come with him to the MP station. Arthur again refused and the officer placed him under arrest. Arthur then stated that he was a member of the Air Police and could not be arrested. This statement was false, and Arthur was convicted of false official statement.
The Court of Military Appeals again held that conviction was improper. The court said that the officer was not discharging the functions of his office when the statement was made to him, but was acting by virtue of his status. The court explained its reasoning in these words: “The rights and obligations of a person as an officer are separate from his performance of a governmental function ... a material difference exists between the status rights and duties of an officer, and his action in carrying out his military duty.” Judge Latimer dissented in this case. He said the officer was doing his official duty, and the accused’s statement was a false official statement.
In many other instances the court has gone beyond the provisions of the Manual for Courts-Martial in protecting the accused. Of equal significance to us is the additional protection which the Court of Military Appeals has given the accused which seems to extend beyond the code itself. The first example of this extra protection to the accused concerns the enlargement of the right of the accused to counsel prior to trial.
The Uniform Code of Military Justice provides that an accused is entitled to appointed defense counsel on three occasions: at the pretrial investigation, during the trial, and on appeal. The code specifies that the defense counsel in trials by General Court-Martial must be a lawyer. It specifies that an appellate defense counsel must also be a lawyer. The code does not require that a lawyer must be appointed as counsel at pre-trial investigations. Recently, however, in the case of U. S. v Tomaszewski (24 CMR 76) the court ruled that an accused at a pre-trial investigation is entitled to a lawyer as counsel.
But what about a suspect’s right to counsel during a preliminary investigation? The Gunnels case (23 CMR 354) provides an answer to this question. During a preliminary investigation by the CID, Gunnels, the accused, asked for counsel. The CIC took him to the staff legal office but none of the lawyers would talk to him. The investigation was resumed and Gunnels answered several questions. A few days later, after charges were preferred against Gunnels, the CID reopened the investigation. This time Gunnels was accompanied by a military lawyer. But the lawyer was not permitted to be present during the interrogation. Gunnels was convicted on evidence obtained from him at the preliminary inquiry. On appeal the conviction was reversed.
The Court of Military Appeals said three things were wrong in the Gunnels case: (1) A suspect has the right to consult a civilian lawyer of his choice or a staff legal officer even before charges are preferred. (2) He has a right to have a counsel present during preliminary investigation. (3) He must be advised of his right to consult counsel and to have counsel present during interrogation.
Putting these cases together we can state this rule with respect to the right of the accused to counsel prior to trial: At a preliminary investigation, an accused, upon request, is entitled to be represented by military or civilian counsel or to consult a staff legal officer. At a pre-trial investigation, the accused is entitled to appointed military legal counsel or to a civilian lawyer of his choice.
The next two points are somewhat technical. They are important to us because they enlarge the rights of the accused by limiting the power of a court-martial to punish certain offenses. The Court of Military Appeals has limited the power of courts-martial by cutting down on the number of charges for which an accused can be punished for one act of misconduct and by giving the accused additional defenses which are new to military law.
As an example of how the Court of Military Appeals has enlarged the rights of an accused by reducing the charges for which he can be punished for one act of wrongdoing, take the Posnick case and the Brown case. In U. S. v Posnick (24 CMR 11) the accused went AWOL prior to the departure of his ship for overseas. Posnick was convicted of two offenses—unauthorized absence and missing movement through neglect. His sentence included punishment for both offenses. This, said the Court of Military Appeals, was wrong. Posnick had committed only one act of misconduct and should not be punished for two offenses. Likewise in U. S. v Brown (23 CMR 242) the accused was convicted of larceny (Article 121) and wrongful disposition (Article 108) of an Air Force parka. He was punished for both offenses. Again the court said this was an error. There was one act of wrongdoing, and the accused should be punished for only one offense.
To some, the court’s reasoning in these cases may seem fairly logical. Outside the Court of Military Appeals, however, most lawyers don’t reason this way. The settled rule of law is that an accused may be punished for all the offenses he commits. The number of offenses he commits depends upon whether the elements of proof for each offense are different. Let’s look at Posnick again. When he went over the hill he committed the offense of UA. Its elements are as follows: (1) Absence, and (2) lack of authority. The offense is committed when the period of absence begins. But Posnick also missed his ship. The elements of missing movement are these: (1) Movement of a ship, aircraft, etc., (2) duty on part of accused to move with the ship, aircraft, etc., and (3) accused missed the movement through neglect on design.
If we follow the normal rule of law, we must conclude that Posnick committed two offenses because the elements of UA are different from the elements of missing movement.
The Court of Military Appeals has also enlarged the rights of the accused by providing additional defenses which are new to military law. In the case of U. S. v Pinkston (21 CMR 22) the accused was ordered to obtain certain uniforms within three days. He failed to comply and was tried for disobedience of orders. At the trial his defense was that he didn’t have any money. The court-martial said that this was no defense and Pinkston was convicted. Under the law as it was before the Pinkston case the court-martial was right. The elements of the offense of disobedience of orders are four: (1) That a lawful order was issued, (2) that the accused knew of the order, (3) that it was his duty to obey the order, and (4) that the accused failed to obey the order. The government proved each of these elements. The accused did not deny them. Under the law before the Pinkston case the fact that the accused was broke was immaterial; it might be a matter in mitigation or extenuation, but it was not a defense. However, the Court of Military Appeals said that Pinkston’s defense of no money—or in legal terms, impossibility—
was a good defense to a charge of willful disobedience of orders.
In the case of U. S. v Walters (23 CMR 274) the accused was convicted for issuing several worthless checks. Walters admitted that the checks were no good but that he’d written them during a gambling session to obtain funds from his fellow gamblers. The Court of Military Appeals tossed out Walters’ conviction, stating that a court-martial cannot be used to enforce gambling debts. Here again the government proved the commission of an offense. Under the law before the Walters’ case the fact that the bad checks were used in a gambling transaction was immaterial, and Walters could have been punished both for gambling and writing bad checks.
Apparently it is all right with the Court of Military Appeals to write bad checks if you can show that you gave them to a gambler or a crook. Judge Latimer dissented in this one saying: “We make unique law to say that we won’t countenance the conviction of a thief because he stole from a gambler.”
The Court of Military Appeals has also protected the accused by careful scrutiny of the conduct of personnel connected with courts-martial and by careful scrutiny of court-martial procedures.
In the case of U. S. v Rinehart, the Trial Counsel called the court’s attention to Paragraph 33h, Manual for Courts-Martial. This paragraph states a policy against the retention of thieves in the service. As we saw above, the Court of Military Appeals objected to this injection of command influence into the proceedings. But there was another even stronger objection to the procedure in the Rinehart case. In that case the court members had access to the Manual for Courts-Martial and apparently were guided by it rather than the instructions of the law officer. This, said the Court of Military Appeals, was an error. “The Court members must reach a decision on the findings and sentence on the basis of the evidence presented and the law officer’s instructions and nothing else.” In other words, court members should decide the case on the basis of facts presented by the witnesses and the law stated by the law officer; reference to the Manual for Courts-Martial or any other source of information during the trial was improper.
In the Rinehart case the Court of Military Appeals took aggressive action to stop courts-martial from referring to the Manual for Courts-Martial. The Court of Military Appeals directed “that the practice of using the Manual by members of a general court-martial or a special court-martial (except the president) during the court of the trial or while deliberating on findings and sentence be completely discontinued” within 30 days.
In the Rinehart case, by this mandate, the Court of Military Appeals steps out and tells people what to do. The Court of Military Appeals is making rules of court-martial procedure. Under the Uniform Code of Military Justice the power to prescribe procedure for courts-martial belongs to the President. Nothing is said in the code about the Court of Military Appeals acting for him. But here we have another instance of the Court of Military Appeals reaching out beyond the code in its effort to shape our system of military justice.
All of us are affected by this tendency. The task of administering our military law is steadily becoming more and more demanding. As we have seen, we can no longer rely on the Manual for Courts-Martial for guidance to the extent that we could in the past. Nor can we unload our responsibility in this field on the legal officer. The task of shaping our military law rests on all of us. As stated by the court in the Plummer case, it is our responsibility to hasten the day when “all military personnel, legal and non-
legal, will realize that they have a joint obligation with civilians to share in the development of military law as an integral part of American Jurisprudence.”
A graduate of Columbia College and of the Harvard Law School, Colonel Hoyler is Chief, Logistics Section, Marine Corps Educational Center, Marine Corps Schools, Quantico, Virginia. During World War II he was a battalion commander in the 4th Marines and then in the 9th Marines. His recent assignments have included duty as Legal Officer at Camp Lejeune, Commanding Officer, 5th Marines, 1st Marine Division, and as G-l, 2nd Marine Division.