Comments

• Pages: 02

THE COURT OF MILITARY APPEALS:

A SURVEY OF RECENT DECISIONS*

Captain Stephen L. Buescher""

Captain Donald S. Zillman***

This comment studies the work of the United States Court of Military Appeals from 1 September 1911 to 31 August 1972.' In most respects the term was a quiet one. Public interest in military justice was largely focused on the conclusion of the My Lai courts-martial and the court-martial af a Sary chaplain for alleged sexual misconduct. At term's end the military's most significant case of the last decade, Cnited States v. Calley, awaited decision before an Army Court of Xilitary Review.

The old issues of search and seizure and speedy trial again occupied a significant portion of the Court's time. Fourth Amendment cases were less significant far principles of law established than for the frequency of dissenting opinions. The speedy trial caaes, on the other hand, appeared to cut significant new ground in this disturbing area. Confession and counsel issues also drew the Court's attention.

Significant conflicts between convening authorities and military judges tended to resolve in favor of the former. Dissenter's rights faired poorly. Cnited States v. Priest sustained military good order and discipline against the attacks of a serviceman underground newspaper editor. Also, three years of confusion may have ended with the Court's apparent rejection of the conscientious objector defense at court-martial. Lastly, the rare "service connected jurisdiction" and guilty plea explanation cases suggest that O'Cahhan 7. Parker a and Cnited States v. Care *

'The pinions and ~ ~ n e l u i i ~ n s presented herein are those of the authors

and do not mecensarily represent the wewe of The Judg-e Advocate General's

School OT any governmenhi agency.

"JAGC. US Ami-: Editor, Judge Advoeate Legal Service and The Army L % W W .

*'*SAGC. US Amy: Editor, Military Law Review. The authore' work hsa been preatly aided by the contribution of Captain Stephen Davis. SAGC.USAR.

'A P I ~ ~ ~ B Y B mwe? by the same avthara examined the work of the Court

from 1 January 1910 to 31 August 1971. See MIL. L. RN. 187 (1872).

:21 U.S.C.M.A. 664, 45 C.Y.R. 338 (1972)

'18 U.SC.YA. 536, 40 C.M.R. 247 (1969).

385 U.S. 256 (1968).

and their progeny have been succemfulig incorporated in the military practice.

1. JURISDICTIOS

   A O'CALLAHAS 1STERPRETATIO.I'

   It has been three rears since the Supreme Court's decision in O'Cnllakan v. Parker, and while many of the question8 posed by this case have been answered, the Couit dealt with two problems dunng the last year The first decision ted States v. Boiinzitn; A marine stole an automobile lian outside a military reservation. However. he con-ear at the Marine Corps Base, Quantico, and the court-martial connctian WBS far this unlawful concealment

   rather than the theft, For this reason the Court found sufficient

   serrice connection and affirmed the conviction. The other, mare significant, O'Cnllnhnn case w'as Cmted States Y. Woifmn.a The offenses under consideration concerned the issuance of bad checks in violation of Article 1?3n, UCIIJ. Kolfson cashed five of the bad checks at a department store in the civilian community. The checks bore no indication of military status on their face. However, on the back of each check was the imprint of a charge card far the store which listed an account number and accused's name with his military rank. Howerer, testimony by the store's credit rnana~er indicated that neither the issuance of the card nor the cashing of the check bore any relation to the fact of accused's military status. The Court held, therefore, that accused's military stntus was not the "moving force" on the occasion that he cashed his checks in the store.

   Two other checks in dispute were given to two loan companies in payment of installments on loans made by each to accused. Again, it was clear that membership in the military was not significant in the transaction, and the Court held that the court-martial was without jurisdiction.

   E. OTHER JCRISDICTIOSAL MATTERSIn addition to the O'Calinhnn related decisions the Court decided 8ever.d other cases which turned on jurisdictional matters. In Johnson v. The Judge Adtoeate General of the Cnited States

   COMA REVIEW

   Army,' accused petitioned for extraordinary relief, seeking permission for his detailed appellate defense counsel to participate in related proceedings (seeking a writ of habeas corpus for discharge as a conscientious objector) before a United States District Court. The Court dismissed the petition stating that the jurisdiction of the Court did not encompass orders relating to the representation of litigants before the District Courts.

   More typical of the Court's work in this area was Cnited States v. Singleton,' where a defective convening order deprived the court-martial of jurisdiction. The convening order contained a statement that "Military judge, trial and defense counsel will be appointed as cases are referred to this Court for trial." When the court convened, an oral modification of the convening order was referred to which designated coumel and the military judge and stated their qualifications. A written modification of the convening order was made after trial to include military judge and counsel, but without reference to the oral modification. Other than these facts, the Court was unable to find any reference to the composition of the court in the record of trial. Since the court-martial was not convened in conformity with the provi-sions of the Code and the Manual it was without jurisdiction.

   Cnited States v. White: extended the rationale of (Inited States V. Dean,'o to requests for enlisted members an courts-martial. It was heid that such requests must be made in writing and signed personally by the accused. In the absence of e signed writing, the convening authority is without power to designate enlisted members and an attempt to do 80, as was the case here, will result in a failure to create a court and a resultant lack of juriadictian.

   Finally, on the basis of Cnited States v. Dean, jurisdictional error was found in L'nited States Y. Brown?, when the request for trial by military judge done did not contain the name of the military judge.

   11. COUSSEL RIGHTS

   An accused's rights with respect to counsel was one of the predominant concem~ of the Court during the last year. The first case was Cnited States v. Andrews,'* which held that the

   accused had been improperlv denied the counsel of hls choice.4ndrews was represented at his Article 32 Investigation by Captain W' When trial began, the defense raised the issue of insanity: and a continuance was granted, over defense abjection, for a zanity board hearing The objection was based on the fact that the government had been forewarned that the insanitv issue would be raised by the defense and that Captain W's term af service was nearing an end. A further delay was secured bv the defense to obtain the services of a pri\-ate psvchiatriat.

   Captain It' was released from actii-e duty, but agreed to continue as accused's counsel. Andrew was to pay W s travel expendes but no other compensation. However, 1Y nas informed br the post judge advocate that "higher military authoritr" had determined that it would be improper for W to act as civilian counsel. As a result li' did not again appear on accused's behalf. On these facts the Court held that 1Vs representation of accused would hare been proper and that "the unwarranted intervention of [Ws] superiors deprired Andrew of his statutory right to hare the civilian counsel of his choice." The futility of ques-tioning the decision of the suwrior officers prevented the doctrine of wirer from being invoked.

   The accused in Cnited States v. KinnrdgAfound that while

   the right to civilian coun~el may not be improperlv denled, the burden is on the accused to obtain such counsel. K i n d was to be tried in Vietnam He obtained two continuances due to his claimed inability to find satisfactory military counsel. When court convened for the third time, accused claimed he had not had an opportunity to obtain clvilian counsel. The Court held that it was proper for the military judge to order the caurt-martial to proceed in that Kinard had been given "ample opportunitf' to obtain counsel of his chaasinp

   In Cnlted States i.

   Ensoii." the Court found that accused's attarnei--client relationship with his military counsel was improperly severed. Eason was originally to be tried in Vietnam where he was represented by Captain P, appointed counsel Civilian counsel was involved but did not come to Vietnam. Ultimately accused was returned to the U.S. for psychiatric evaluation, and the case was referred to trial at Quantico. Trial ~ouii~elalso rotated and remained the same. Captain P had returned to the L! S but was stationed in California. Accused's request for Captain P as appointed defense coun~el was denied

   300, 45 C Jl R 74 11972) 335. li Ch1.R 109 (1972)

   COMA REVIEW

   on the basis of unavailability. The Court found the basis for severing the relationship to be insufficient in light of Captain P's involvement in Vietnam, Eason's preference for him, and the fact that the case was a capital one. "L'nder the eirei~mtances of this case, something more than unacailsbility of counsel because of workload was necessnry before this attorney-client re-lationship could be validly terminated" (emphasis by the Court).

   Distinguished from Enson was Stnnten P. rnited States.'" Inthis case, prior to his assignment as counsel, counsel was notified that his tour would not be extended and that he would not be retained an active dutl- beyond his term of obligated service. Thereafter he was assigned as counsel for accused, but returned to the U S prior to trial. The fact that the decision concerning the termination of coun~el's duties had been made prior to the establishment of the attorneyclient relationship distlngushed this case from Eason.

   Three other cases dealt not with...