Military Contempt Law and Procedure

• Author: By Major John A. McHardy, Jr.
• Pages: 04

After several 'decades of judicial tmnquility, "order in the court" has become R phwe of real meaning. The military, though less spectacuhdy than the civdian courts, has suffered from the contemptuow witness, attorney, or spectator. The author emmines the history of militand contempt powers and traces their influence on artiole 48 of the Uniform Code of .Military Jutice. After an esamimtion of constitutional issues involved, he proposes several changes to remedy present weaknesses in the wwer of mditaw courts to maintain order. Unless oder is maintained in the oourtroom and dismption prevented, vea8on cannot prevail end eonstit* tional rights to liberty, freedom and equality under law cannot be protected. The dignity, decorum and courteay which have traditionallu characterized the courts of civilized nations 6% noi empty formalities. They are essential to an atmosphere in which justice can be done.'

I. INTRODUCTION

These are tumultuous times. These are times of dissent and discord. Times when the most basic of our values and the most sacrosanct of our institutions are being questioned, challenged and tried The values and institutions that will ultimately survive are those that can withstand the questions of reason and the challenges of truth, but none can survive anarchy. The courts of law have not escaped the incursion of the tumult. The news media are rife with reports of trials being disrupted by disorder. The events of the trial of the "Chicago I" are too well known to bear repetition, and now we read of the "Seattle 8":

[The C.S. District Court Judge1 ordered m e epeetator elected and 10 others followed, yelling, "Youth cannot get a fair trial in thia court," and "Heil Hitler."

*This article was adanted from a theaia .resented to The Judge Advoeate General's Sehaai, U.S. -Amy, Chsrlottea~lle, Virginia, while -the author was B member of the Nineteenth Advanced Course. The opinions and eonel~simsmeiented herein m e thore of the author and do not neeesaariiY reo-resent ti;e views of The Judge Advocate General's School or m y pivex& mental agency.

..JAGC, U.S. Amy; Military Judge, 17th Judicial Circuit, MACV. B.S.L..

1965. J.D., 1967, University of Minnesota.'Report ad Reommendatlam of the Arnenoon Cdiar; a/ T h i Larvyeva, Dkptian of the 3udioial Pwccaa, C A ~ E COM. 28 (Sept.-Oct. 1910).

Earlier, Jefferey Dowd, a defendant yelled at US Attorney Stan Pitkin, "1'11 nhaat to kill the next time *n agent comes to my house and 111 bring him right tc you."

Dowd Shook his filita and pointed his finger at Pitin when the mvernmenr denied federal aeenta were keeoins the defendant8

. .

and Their attorneys under swveiilame.

Dowd Bereamed that his girl friend was afraid to live at home hewuse FBI men were around the house.'

. . . .

The military courts have not been immune from the tumult. The Presidio Mutiny cases engendered a good deal of newspaper space for the disruption surrounding them. But it is not only the well publicized trial that earns the rancor of the unruly. A special court-martial at Fort Eustis experienced difficulties:

Before the dismissal, sevei.4 witneraes in the esse held up cavrt proceedings for almost an hour by defying [the military judge's1 order that they leave the eourtrmm until ealied to testify.

After the ritnesses were eaiied to the bench aeverai *peetatmS, including Mrs. Steven P. Wineburg, whose husband, an Army private, was eanvieted last month on similar charges, gathered around Blue. [The military judge.]

Blue then ordered the military p~liceman to ensure that those not testifying would remain outside the courtroom and had ~e~ersl spectators removed."

Nor is the problem new in either the civilian courts or the military.' A professor at the University of Virginia Law School in 1838, explained the reasons courts m e subject to contemptuous behavior:

Whilst the judieiary 19 the weakest branch of dl governments, its duties from their very mtwe, are p~'u1iarly eslculated tc arou~e the angry pa mi on^ of the dieemtented and turbulent, and to excite them tc acta of outrage, disobedience and innuit."

In an effort to discover the extent to which courts-martial had been experiencing difficulty with disruptive behavior, and the manner in which military judges had been dealing with the problem, the author conducted a survey of seventy-five general and special courts-martial military judges during the months of November through December 1970.O All judges were assigned to

:The Washington Port, No". 20, 1870, at A26, e d

Richmond Time8 Dispatch, No". 6, 1970, at C12.'One of the earliest reports of contempt procedure is found in a treatise written by First Lieutenant Stephen Pame Apde, Judge Advocate tc GeneralThomas Gage, the British Commander BY the time of the American Revolu-tion. S. AWE, A marnr ON COURTS-MARTIAL

67-69, 72 (lit ed. 1769).

'DAV~~.CRIMINAL bw,

388 (1636).'Trial Judiciary Officer Statim List of General and Special Court.Martia1 Military Judges, 1 Jon. 1870.

CONTEMPT

the trial judiciary and representatives of ail judicial areas and circuita were contacted. Of the forty-four officers who responded, aixteen had had experience as law offleers prior to being certi-fled 88 military judges. Altogether these men had tried aver ten thoysand general courts-martial and over fourteen thousand special courts-martial. Nearly all of the officers had experienced some form of contempt in their court-rooms, but baaed on the number of times this had happened, the experience with such behavior had been very smalL The significant reply, however, was that although contempt had been almost infinitesimal in the past, the incidence of contemptuous behavior in courts-martial had been on the rise since about mid-1970. A sampling of the acts described which the judges considered to be contemptuous were refusal of the accused to appear in military uniform; failure of military personnel to testify when ordered to do 80; reference tothe trial as "these illegal proceedings" while continually interrupting the trial; sarcastic and scornful behavior to counsel and the judge, and refusal to participate further in the conduct of the trial; disrobing in the court-rooom during the trial by the accused; continued argument on a point after an adverse ruling thereon; vulgarity and obscenity; an accused tearing off his ribbons and throwing them across the court-room; failure of stockade and company personnel to have an accused ready for trial; disobedience to court's instructions on what evidence could be admitted by counsel; intoxication; tardiness of a witness or counsel; communication of a threat to a witness; disruption of trials by spectators; prevention of the testimony of a young girl by the act of her mother in screeching, shouting, sobbing and simply overbearing any attempt to wear and examine the witness; failure by counsel to appear in court; an accused trying to fling himself out a second story window; and feigning of mental illness.

The problem of contemptuous behavior before courts-martial clearly exists. It has been stated that courts must have "competent authority to repress such acts, to protect themselves . . . and. to give due efficacy to their lawful powers. , , .'I. Do courts-martial have this competent authority? Let us begin to find the answer to this inquiry by tracing the history of the present law.

11. THE HISTORY OF XILITARY CONTEMPT LAWS Further yet. far prerervmg Order, and keeping up the Authorityof those Caurta, it ib also appointed, That if any Officer or Soldier,

'DAYIS, mprq note 5.

shall presume to draw hii Sword I" any Plsee of Judicature. while the Covrt is sitting, he shall suffer an arbitrary Punishment: And the Provost Martial is there empowered and directed by his own Authority to apgrehend such Offenders . . .

The like also with Respect to using any braving or menseing Words, Signs or Gestures. . . .'

The above reference appears to be one of the very earliest pronouncements an the problem of the contempt of a military court. Although the author does not identify his source, it is strikingly similar to Articles 66 and 73 of the Prince Rupert Code.'O Writing in 1898, George B. Davis traced the Articles' evolution into American military law:

Klth a slight verbal change, thx p~avision [Article 731 appears as Article 16. Section 15 a i the Britlrh Code of 1774. .

With [an inmgniheant] nubstitution . . . it appeara as Article 14, Seetian 14 of the American Code of 1776."

.

The original rules and Articles of War enacted by Congress 20 September 1776, as Section XI\'. Article 14 provided:

No person whatever shall me menacing words, signa, or gestures. in the presence of B court-msrnal, then mttlw, or shall cause any dir-order 07 not, SO as to diaturb their proceedings. on the penalty of being punirhed at the diseretnon of the rad

The Articles of 1786 were twice re-enacted and on 10 April 1806, the contempt article became Article 76 of the Articles of War.

So perran whatsoever shall u e any menacing words, signs, or gestures I" prerence a i a court-martml, OF shall cause any disorder or iiot, or diaturb their proceedings, on the penalty of being punished st rhe discretion of the raid court-msrtla1.l"

At the time the Constitution and the Bill of Rights were belng debated and enacted the scape of Federal military law was

*BRUCE, THE I I S I ? T L T ~ ~ ~ ~ or MILITARY LAW, ANCIESI AND MODERN 309

(1717).

'Prince Rupert (called Rupert a i the Rhine, 07 af the Palatinate) (1819-1682). WBQ B roya11st cavalry commander in the Enriish Civil War (1642-1846) He became General of the King's Army (Charles 1) in 1644. 19ENCICLOP~DIA

BRIIANMCX

669 (1965).

"G. DA~IS. MILITART LAW OF TXE UN-ITD STATE.% 505 (1st ed. 1888). Wlnthrap rtatee that thla became Article 54 of the Code a i James 11. R. WINTHROP, >lIIIITARI LAW AZD PRLCmElTS 301 i2d ed. 1920)

* CALLAY,

7. D*>lS. ivpro note 10. at 507-08.

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