Rehearings Today in Military Law

• Author: by Captain Hugh J. Clawsen
• Pages: 05

The word 'rehearing' in militan. law, is a word of srt and refers to B second trial rhieh is ordered, u~ually, hause of home enor occurring during the trial which prejudiced the aoeused.1

1. INTRODUCTION

   When the Uniform Code of Military Justice' bfcame effective on 31 May 195L8 a single system of criminal law for all of our armed forces'came into being for the first time. As a result, some

   Of our armed forces also had 8 statutory basis for rehearings for the first time.'

   &The Articles for the Government of the Naw, R.S. 5 1624 (1815), BLI

   amended; I 2, act of 22 Jun 1874, 18 Stat. 192; act of 3 Mar 189.8, 21 Stat. 716; act of 25 Jan 1806, 28 Stat. 639, BI amended; 55 1-12, 1611, act of 18 Feh 1909, S5 Stat. 623; sat of 29 Aug 1916, S9 Stat. 686; act of 6 Oet 1917, 40 Stat. 393, as amended: act of 2 Apr 1018, 40 Stat. 601, the p'e-code system of erlminsl lav amoliesble to Nsvv and Marine aerionnei had nn stehtnrv

   Prior to 1920 the concept known today as a rehearing did not exist in any of the services. Before this time, Colonel Winthrap records, a second trial could be ordered with the accused's cansent.l There was a theory, however, advanced by some, that The Judge Advocate General of the Army did have the authority to order something in the nature of a rehearing.' This thesis was Premiaed on an old statute which appeared to aay The Judge Advocate General could "revise" the proceedings of courts-martial.8 The validity of this proposition was never directly decided, In any event, the then Judge Advocate Generals did not believe he possessed such authority and apparently never attempted to use it." His position was very likely influenced by an early case which, in dicta, indicated the mentioned statute conferred no judicial functions, but rather recited a list of clerical duties."

   11. HISTORICAL DEVELOPMENT

   A. THE ARTICLES OF WAR OF 1910

   The Articles of War of 1920,'z enacted for the government of the Army, became effective on 4 February 1921.L8 Article of War 501h14 was the first statutory provision for rehearings, and was

   Laws for the Coast Guard, $5 2.7. act of 26 May 1806, 34 Stat. 200; a d Of 5 sun 1820, 41 Stat. 880, no statutorg evtbrrib for reheari2lm

   States Coast Guard CG221 22 Nav 1848. The pre-Code system of the Army,eh. I1 5 1 act of i

   June lsh0 41 Stat. 187 %a *mended made applicable to the Alr Fbrce when meated, &le 11, act & 26 July 18i7, 61 Stat. 488. did provide for rehearings by statute.

   6 Winthrop Military La- and Precedents 463 (2d ed. 1820 Reprint). See

   dsn Dlg. Ope: JAG 1812, Articles of War par. CII A (Mar. 1808),

   ,See 58 Cong. Roe. 6843-5844 (1820). See aim Morgan, The Bockground

   of the Uniform Code a t Militmy Juhos, 6 Vand. L. Rev. 168, 171 (1858).

   II R.S. 5 1188 (1875) provided: "The Judge Advocate General shall receive. revise, and eau~eto be recorded the proceeding% of 811 EoYTts.maTtia1. eourttl of inquiry, snd military commissions, and perform aueh other duties PI have been performed hemtofore by the Jvdge Admate Genersl of the Army."

   I Major General Enoeh B. Crowder was The Judge Advocate General of the Army from 15 Feb 1811 to 14 Feb 1823. See 1 CMR at Vii (1852).losee 68 Cong. Ree. 58Pb5844 (1820). See also Morgan, ap. ait. mpla note 7, at 171.

   IIEipartaManon.268Fsd.384 (C.C.N.D.N.Y.1882). 1P Ch. 11, 5 1, act of 4 Jun 1820, 41 Stat. 787.

   II See eh. 11, 5 2, Pet of 4 Jun 1820, 41 Stst. 787.812.14 Ch. 11, 8 1, act of 4 Jun 1820. 41 Stat. 787. 789.146

   REHEARIXGS

   considered by some to be the most radical change" from the Articles of War of 1916." Articles of War 47 and 49 of the Articles of War of 1916, declaring, respectively, the powers incident to the power to approve and confirm, only authorized approval or disapproval of the findings and sentence in whole or in part." These same articles under the Articles of War of 1920 were identical except for the following addition: "(c) The power ta remand a case for rehearing, under the provisions of Article 60%."1s Thus, the convening authority of any type court could order a rehearing.l8 The Board of Review, whose review was required in certain general court-martial cases, could order a rehearing-but only with the concurrence of The Judge Advocate Generd.zo The President, whose confirmation was required in some cases, was empowered to order a rehearing in such cases.li In time of war, the commanding general of an Army in the field could, because of his authority to confirm certain death sentences, order a rehearing.%%

   Although an officer exercising general court-martial jurisdiction had supervisory authority over all special and summary courts-martial tried within his cmnmand,~a he did not possess authority to order a rehearing when revieKing such cases.14 His authority, as supervisory authority, was limited to remission, mitigation, or suspension.16

   Article of War 50% of 1920 remained unchanged until 1937, when it was amended to provide that the functions of the Presi-dent thereunder could be preformed by the Secretary or Acting Secretary of War.24 It was further amended in 1942 to provide, when a branch office of The Judge Advocate General was established in a distant command, that the commanding general of such distant command could exercise the Same functiops 88 the President in ordering rehearings-provided such officer was not the

   16 See 58 Cone. Ree. 6844 (1920).

   16 See. 3, act of 28 Aug 1916, 39 Stat. 650.17 See 5 3,

   Bet of 29 Aug 1816,39 Stat. 650,657-658,18 See oh. 11, § 1, act a i 4 Jun 1920,41 Stat. 737,796-197.

   18 Ch. 11, $1, act of 4 Jun 1920. 41 Stat. 737, 786.20 Ch. 11, P 1, act of 4 Jun 1820, 41 Stst. 787, 781-799.11 See Al'n 43, 49, and 50% of 1920, Ch. 11, 5 1, act a i 4 Jun 1920, 41 Stat. 737,796799.

   I* Ibid.

   24 Dig. Ope. JAG 1912.1910 $403(5) (Aug, 30, 1932).SI Ibid.

   28 See. 1, aft of 20 Aug 1837. 60 Stat. 724.

   28 ~ianusi for courtn-brartiai, U.S. A ~ ~ ~ ,

   m a , 91~.

   ,(io 48208 147

   appointing or confirming auth0rity.~7 No further statutory amendments to the Articles of War affecting rehearings were made until after World War 11.

   BY executive order, however, President Roosevelt delegated (along with other powers) his authority to order rehearings to the Undersecretary and Assistant Secretary of War, and, at the same time, provided that The Assistant Judge Advocate General for Miiitary Justice could exercise ail the functions, duties, and Powers of The Judge Advocate General conferred upon the latter by Article of War XI%.^^ Similarly, President Truman delegated all his functions, duties, and powers under Article of War 50% to the Secretary and Undersecretary of War.lQ

   B. THE ELSTON ACT

   The next statutory development in the law of rehearings oe-curred with the passage of the so-called Elston Act.80 Although this act effected considerable changes in language and the numbering of the articles, there was practically no change in sub-stance in the law of rehearings.

   Article of War 50% of 1920 was rescinded and, in the main, rehearings were provided for in Article of War 528' while appellate review was provided for in Article of War 50.8a The latter article did, however, contain some provisions filch implemented the rehearing article. Article of War 52 provided, in part, that when ". , , any reviewing or confirming authority disapproves a

   REHEARINGS

   sentence or when any sentence is vacated by action of the Board of Review or Judicial Council and The Judge Advocate General, the reviewing or confirming authority or The Judge Advocate General may authorize or direct a rehearing." Here again, as under the 1920 act, the convening authority could order a re-hearing, his "power to approve" remaining unchanged.88 Similarly, the President, as conhing authority, could still order a rehearing in those cases where his cominnation was required: although his confirmation was not required in as many instances as was previously the ase.8' The newly established Judicial Council with the coneurrencp of The Judge Advocate General, the Judicial Council alone, and the Secretary of the Army, were confirming authorities in certain instances, and as such could order a rehearing." Further, a board of review, with the concurrence of The Judge Advocate General, could order a rehearing when acting oncertain cases.aa

   In addition, the approval of the officer exercising general court-martial authority over the command was required before a special court-martial sentence which included a bad conduct discharge could be executed, and such general court-martial authority could order a rehearing in such eases.87

   C. THE UCMJ

   Probably because the concept developed in the Army, Congress patterned the rehearing provisions of the Code after the pre-Code practice of the Army.ag In fact, the term "rehearing" itself was adopted from Army usage." With this historical and legislative background as a general frame of reference, the remainder of this article will be devoted to an analysis of the law of rehearings under the Uniform Code of Military Justice-as interpreted by the United States Court of Military Appeals,

   111 See Article of War 41, eh. 11, 5 1, act of 4 Jun 1920. 41 Stat. 787, 796, 8.8

   amended hg Title 11, I 228, act pf 24 Jun 1948, 62 Stat. 627, 664.

   84 See Articles of War 48 and 49, ch. 11. I 1. act of 4 Jun 1920, 41 Stat. 187, 796787, 88 amended by Title 11, 05 22&226, act of 24 Jun 1948, 62 Stat. 627, 63&636.

   16 Ibd.taAr&le of War KO, eh. 11, I1, aet of 4 Jun 1920, 62 Stat. 627, 635,87 Article of War 47, ah. 11, 5 1, act of 4 Jun 1920, 62 Stat. 627, 614. Thin was D power not pomessed by the general court-martial mperviaory authority under pdor prsctiee. See nn. 23-25 mpm and accompanying text.aRSee H.R.

   Rep. No. 491, 81st Gong., 1st Sori%. 30 (1949) i S. Rep. No. 486, 8lst Cang., 1st Seas, 26 (1949).

   89 Ibid.*oo 41108 149

   111. THE AUTHORITY TO ORDER REHEARINGS TODAY

   A. THE CONVENING AUTHORITY

   The officer who convenes any type court-martial, i.e., the convening authority, has the power to order a rehearing.40 There are, however, at least...