The Twenty-Seventh Annual Kenneth J. Hodson Lecture: Echoes and Expectations: One Judge's View

• Author: Walter T. Cox, Iii
• Pages: 04

1999] 27TH ANNUAL KENNETH J. HODSON LECTURE 183

THE TWENTY-SEVENTH ANNUAL KENNETH J. HODSON LECTURE:1

ECHOES AND EXPECTATIONS: ONE JUDGE'S VIEW

WALTER T. COX, III

CHIEF JUDGE, COURT OF APPEALS FOR THE ARMED FORCES2

On 5 June 1964, thirty-five years ago, I, then, Second Lieutenant Walter Cox, reported to the Staff Judge Advocate at Fort Jackson, South Carolina. I stood proudly before Colonel Herbert Meeting, a tough World War II infantryman from Oklahoma who had attended law school on the GI Bill after the war. The Army called him to active duty during the Korean War, and he decided to stay. He took one look at me and said, "Why in the hell did those clowns in Washington send me a second lieutenant who has never been to law school. Cox, report to the Courts and Boards Officer at the first brigade. You are now a trial counsel. Maybe something good will rub off on you."

Fort Jackson was at the tail end of what we called the "Gator Run." The local law-enforcement officers in the southeast routinely picked up absentees and deserters, and they sent them to us for processing. At any

given moment, the head count in the local stockade would number two or three hundred soldiers, consisting of both sentenced and pretrial confinees. We would prosecute the soldiers before special courts-martial, five at a time. We would march them in, line them up, arraign them, and accept their guilty pleas. Then we would hear testimony on sentencing, one at a time. There was no military judge, no law officer. The defense counsel were line officers detailed for the duty just as they would be detailed for staff duty officer, pay officer, or the like. Every now and then, someone would plead not guilty and cause a stir in the courtroom, but not often.

As trial counsel, I organized the court-martial, located the members and witnesses, summarized the proceedings, and served the necessary papers on the accused. I would provide the president of the court-martial with the elements of proof and the boilerplate script for the trial. If the soldier had a really bad record, I would recommend to the brigade commander that he consider a general court-martial. The court-martial sentenced almost every accused to six months' confinement, reduction in rank-if he had any rank-and forfeiture of two-thirds of his pay and allowances. His commander would then visit him in the stockade a few days after the court-martial to see if the soldier was ready to train and serve. If so, the sentence was suspended and the soldier returned to duty. The rule was that every soldier was going to serve his two-year obligation to the Army, either as a good soldier or as a prisoner.

In September 1964, I took excess leave from the Army and entered the University of South Carolina to study law. The following June, I once again reported to Colonel Meeting. He said, "Cox, with one year of law school you still can't practice law but you are too experienced as a trial counsel. It would be unfair to send you in against those line officers defending the cases. You are now a defense counsel." I now went from prosecuting ten to fifteen cases a week to defending a like number.

In the summer of 1967, following graduation from law school, I returned for the fourth time to Fort Jackson. Colonel Meeting was still the staff judge advocate, and by this time, he and I had become the "old hands" on the post. He assigned me to assist, as a paralegal, the two judge advocates he had selected to prosecute Captain Howard Levy.3 One task assigned to me after the trial was to serve Captain Levy with the staff judge advocate review and the record of trial at his place of confinement in a

wing of the post hospital.4 Considering his circumstances, he was most gracious.

I recall these memories to put some perspective into my views about military justice. This was the period that Colonel St. Amand spoke of in his opening reminiscences of Major General Hodson.5 This was the 1964-1969 period. I was there for the transition occasioned by the Military Justice Act of 1968, of which much has been said.

Before I begin my journey through these thirty-four years of association with military justice, I would make an observation. In 1987, I had the occasion to present a paper at the Army War College as part of a symposium on the Army and the Constitution. This project turned into a seminarian like experience for me as I studied the development of military justice throughout the history of our country.6 From this experience, I came to realize that military justice has never been a static concept. Rather, it has evolved in tandem with changes in civilian justice.

I have concluded from my studies that there are at least six readily identifiable eras of military justice. The first period, naturally, would be the Continental Army period. One might well imagine what courts-martial looked like in this period.7 First, there was no defense counsel active in the trial. Second, the court-martial consisted of thirteen members when practicable, presumably a president and twelve members resembling a civil tribunal.8 Shortly after a court-martial handed down a sentence, the commanding officer approved and executed it.9 The punishments were often corporal, such as lashes with the cat-o'-nine-tails. There was no appeal.

If you looked at the civilian justice system during that same time-period, you would find that the jurors were all male freeholders. Although

lawyers did appear in the courts of that day, they only appeared if the defendant could afford to pay for one. Many jurors could not read or write and few participants were formally trained in law. In other words, a civilian trial did not differ greatly from a court-martial, and society commonly understood that these were both acceptable methods to judge innocence or guilt and set punishments for the guilty.

The second era might be called the frontier era. The size of the Army diminished greatly after the Revolutionary War. Many of the soldiers were immigrants who were used to living a hard life. They accepted the discipline of the Army. Likewise, life on the frontier was hard, as was the pioneers' justice system.10

The next era would be the Civil War era. During this period, there was so much turmoil and so many people involved that there were too many complications for Congress or anyone else to become concerned about courts-martial. Thus, the Articles of War adopted for the Revolutionary War were still in place, with only minor changes.11

Military justice in the first one hundred and forty years of our country can be characterized as the period in which the court-martial was an instrumentality of the executive branch of our government. It gave the President and military commanders a tool to assist them in maintaining good order and discipline in the ranks.12 "The commander was not free to ignore the law but he was free to interpret it and apply it without any institutional checks or balances, legal or otherwise."13

The first serious movement to change the military justice system came in the World War I era. An incident in Houston, Texas, sparked a controversy in the office of the judge advocate general of the Army over whether the judge advocate general had the power to revise and review courts-martial proceedings. Brigadier General Samuel T. Ansell, as the senior officer in the office of the judge advocate general, took the position that the power to review and revise existed in that office. At that time, General Crowder was the provost marshal general and was administering the Selective Service Act. He took the position that the review and revision responsibilities of the office were advisory, and not binding on the

field commanders. General Crowder prevailed, at that moment, but as one commentator noted:

The controversy ultimately caused a nationwide clamor for revision of the Articles of War: bitter newspaper denunciation of military justice as administered during World War I; vitriolic speeches in both Houses of Congress; two independent investigations of the military justice system of the United States Army; a statement by the president of the American Bar Association that the military code was archaic and that it was a "code unworthy of the name of law or justice"; lengthy congressional hearings; and finally revision of the Articles of War and the Manual for Courts-Martial.14

The clamor for change, however, only produced modest revisions. The Army lapsed back into a peacetime existence. The country focused on, initially, postwar prosperity and, later, the dark days of the depression. There was little interest in military justice during this era; however, World War II soon followed.

After World War II, over sixteen million men and women returned from very difficult service abroad. The incredible facts are that there were over 2,000,000 courts-martial, 80,000 of which were general courts-martial.15 Many of these veterans became leaders in the Congress and in the various bar associations throughout the country.16 These veterans wanted changes made in the military justice system, primarily to combat command influence over the proceedings. In response, some major revisions were made to the Articles of War in the late 1940s. These changes, however, were short lived. The newly formed Defense Department opened the door to create the Uniform Code of Military Justice, which was signed into law on 5 May 1950 and took effect on 31 May 1951.17

The military operated under this new military justice code throughout the Korean War and into the 1960s without any significant changes. Then came the Military Justice Act of 1968. Congress enacted this during my

service as a judge advocate, 1964-1972. To understand how and why this Act came about, it seems important to consider the societal and judicial issues of our nation at the time. My views of military justice were shaped in this social and military environment.

First, this was the era of the great Civil Rights movement in...