The Twenty-Ninth Kenneth J. Hodson Lecture on Criminal Law

• Author: Honorable Robinson O. Everett
• Pages: 05

178 MILITARY LAW REVIEW [Vol. 170

THE TWENTY-NINTH KENNETH J. HODSON LECTURE ON CRIMINAL LAW1

HONORABLE ROBINSON O. EVERETT2

SENIOR JUDGE, UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

How pleased and privileged I feel to have been invited to give the Hodson lecture this year. I recall that in the 1970's I lectured here once at The Judge Advocate General's (JAG) School and discussed Parker v. Levy,3 and that was a memorable experience for me. Most important, by presenting this lecture today, I help honor the memory of a Judge Advocate General for whom I have always had the greatest respect and admiration and whose contributions to military justice are legendary. Although I did not have as close a contact with Ken Hodson as did my colleague Walter Cox, who at one time served as his aide, I certainly had ample opportunity to observe his immense talent and his dedication to military justice.

Because my career as a judge advocate began in 1951, only a few months after the Uniform Code of Military Justice (UCMJ or Code) took effect, I decided that my Hodson lecture would center on some personal reflections concerning military justice and would conclude with a brief look to the future.

During law school, I received no instruction about military justice and courts-martial. In retrospect, this seems ironic since I believe courts-martial were the first national courts-courts established by an act of a national legislative body, the Continental Congress, rather than by a state legislature. In my last semester in law school at Harvard, my evidence teacher was Professor Edmund M. Morgan, whom Secretary Forrestal had

1. This article is an edited transcript of a lecture delivered on 6 April 2001 by the Honorable Robinson O. Everett, Senior Judge, United States Court of Appeals for the Armed Forces, to members of the staff and faculty, distinguished guests, and officers attending the 49th Graduate Course at The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia. The Kenneth J. Hodson Chair of Criminal Law was established at The Judge Advocate General's School on 24 June 1971. The chair was named after Major General Hodson who served as The Judge Advocate General, United States Army, from 1967 to 1971. General Hodson retired in 1971, but immediately was recalled to active duty to serve as the Chief Judge of the Army Court of Military Review. He served in that position until March 1974. General Hodson served over thirty years on active duty, and he was a member of the original staff and faculty of The Judge Advocate General's School in Charlottesville, Virginia. When the Judge Advocate General's Corps was activated as a regiment in 1986, General Hodson was selected as the Honorary Colonel of the Regiment.

   appointed to chair a drafting committee for what became the UCMJ; but I don't believe that I heard Professor Morgan mention this project. I do recall that a fellow law student, John Gibbons, who later served as Chief Judge of the 3rd Circuit, told me that he was doing a law review note on a proposed code of justice for all the armed services.

   The Korean War began during the week that I graduated from law school and I realized then that I might soon be in the armed forces. Su

   sequently, during the luncheon break on the second day of my Bar exam, I enlisted in the Air Force reserve and thereafter applied to be a judge advocate. Ultimately, I was commissioned as a judge advocate and ordered to active duty. Instead of being sent to a JAG school for training, I was to learn my duties by means of on-the-job training. When I reported in at Amarillo Air Force Base (AFB), Texas, I discovered that everyone was trying to learn how to apply the recently enacted UCMJ.

   None of us really understood the importance of innovations contained in the Code. For example, the right to defense counsel was made available in general and special courts-martial and without respect to indigency. This, of course, was before Gideon v. Wainwright4 was decided. The Code's Article 31(b) warning, which must be given to anyone who is accused or suspected of a crime, preceded Miranda v. Arizona,5 and was later cited by the Supreme Court in seeking to justify the warning requirement imposed there.6 Moreover, even today the Miranda warning requirement is much narrower than Article 31(b), which does not apply only to custodial interrogation.

   Free military counsel on an appeal from conviction where the sentence included a punitive discharge or a year or more of confinement was another protection that went far beyond that available in state and federal criminal appeals either in 1950 or even today. Automatic appellate review, which included free records of trial and consideration of appropriateness of sentence and not only of the sufficiency of government evidence, but also the weight of its evidence, provided extra protection for service members. The Article 32 investigation constitutes an important screening device to protect accused persons prior to trial and also offer an accused discovery of the prosecution case, which usually is not available through grand jury review and otherwise in civilian court systems.

   Some of the practices I encountered at that time would not be tolerated today. For example, at my base the trial counsel and the staff judge advocate conferred to determine what officers should be appointed as court-martial members. I served as defense counsel for a year, but because of some confusion in my records, I was not certified as a defense counsel by The Judge Advocate General, and the court-martial orders had to designate a certified co-counsel to serve with me. I never won a complete

4. 372 U.S. 335 (1963).

5. 384 U.S. 436 (1966).

6. See id. at 489.

   acquittal, but gradually I began to get lighter sentences, whereupon I was switched over to the prosecution side.

   Early in 1952, the Air Force established at Amarillo AFB the 3320th Retraining Group to rehabilitate enlisted persons convicted by court-martial and to restore them to active duty. Almost a decade later when Amarillo AFB was closed down, this retraining program was transferred to Lowry Air Force Base in Colorado, and subsequently it was consolidated into an inter-service retraining project at Charleston, South Carolina, which I believe the Navy [today] manages. In creating its retraining program in 1952, the Air Force truly pioneered and paved the way for similar endeavors in civilian penal systems. Currently, when recruitment shortfalls may be in prospect, rehabilitating experienced persons convicted of drug offenses may again become very important.

   In the fall of 1953, after being released from active duty, I had the privilege of serving as a commissioner to Judge Paul W. Brosman, one of the three original judges of the Court of Military Appeals. The judges were very unique and interesting people. Chief Judge Robert E. Quinn was a trial court judge when appointed to the Court of Military Appeals, but previously he had been lieutenant governor and governor of Rhode Island and during World War II had served as a Navy captain. Judge George Latimer came to the Court of Military Appeals from the Utah Supreme Court, and during World War II he had served overseas as an Army colonel. Judge Brosman had been dean of the Tulane Law School when appointed to the court, but had actually been called to active duty during the Korean War as an Air Force Reserve colonel and was playing a major role in the selection of judge advocates for the recently created Air Force Judge Advocate General's Department. Thus, unlike any other judge in the court's history, Judge Brosman went on to the court directly from active military status, and he remained a member of the Air Force Reserve until his untimely death in December 1955.

   Consistent with his great interest in military justice, President Truman interviewed each of the judges before appointing them to the court, and I assume that appointing a judge with experience in each of the armed services was intended to emphasize that the new Code was applicable to all the services. Although fifteen years was to be the term of office for a judge of the Court of Military Appeals, the terms of the first judges were stag-gered-with fifteen years for Chief Judge Quinn, ten years for Judge Latimer, and five years for Judge Brosman. Incidentally, I have heard that the Court of Military Appeals got its splendid courthouse at 450 E Street,

   N.W. as a result of a personal appeal by Chief Judge Quinn to President Truman, wherein Quinn suggested that if the new court was to be the Supreme Court for service members, it should have its own courthouse and that the courthouse just vacated by the D.C. Circuit would be especially suitable. Truman agreed and that was the end of the matter.

   Chief Judge Quinn never moved to Washington during his two decades of service as a judge and instead flew down for court sessions and would usually stay at the Army-Navy Club. Judges Brosman and Latimer, on the other hand, lived near each other out in the Chevy Chase area and sometimes drove to work together. Fortunately, Quinn had an excellent Clerk of Court, Fred Proulx, who also was from Rhode Island. Of the three judges, Judge Brosman was the most scholarly and was especially precise and colorful in the language of his opinions. Chief Judge Quinn was probably the most result-oriented of the three, and Judge Latimer was probably the most pro-government. Interestingly, unlike almost every other federal court at the time, appointments to the court were subject to a political test [because] not all the judges could be appointed from the same political party; Judge Latimer was a Republican, while Quinn and Brosman were Democrats.

   Incidentally, my appointment to serve as a commissioner to Judge Brosman was a real fluke. When I was on leave shortly before leaving active duty in 1953, I had gone to Washington, and while there I visited the Court of Military Appeals to...