MILITARY LAW SECTION
COMMAND INFLUENCE: THE EFFECT OF MILITARY
DISCIPLINE ON MILITARY JUSTICE
The question of command influence has for many years troubled both
military and civilian jurists concerned with military justice. The military
contend that a troop commander's personal responsibility for the discipline,
morale and welfare of his men require him to possess power to punish them
and that consequently courts should be appointed by the commander to
carry out his will. The civilians charge that the system of military justice
frequently breaks down because the courts are denied independence of action,
since the commander appoints the members of the court and reviews their
judgments. It is generally recognized that military justice and military discipline are essentially interwoven. The 'Uniform Code of Military Justice is
a compromise between these two factions and presents a balance of justice
and discipline.
Both the Code, Art. 37, and the Manual for Courts-Martial, Sec. 38, admonish the convening authority against censuring, reprimanding or coercing
any person connected with a court-martial in such a way as to affect the
findings or sentence in any case. At the same time, the manual permits a
convening authority to give general instructions to the members of a courtmartial, including information as to the state of discipline in the command,
the prevalence of certain offenses and all measures which have been taken
by him to prevent such 'offenses.
In the case of United States v. Littrice, 3 U.S.C.M.A. 487, 13 C.M.R. 43,
decided December 11, 1953, the members of a court-martial were assemblea,
knowing the nature of the accusation and the identity of the accused, and
were read by the commander certain directives received from higher headquarters. Involved in the dissertation were statements to the effect that
sentences which permit one convicted of harceny to remain in the service
are improper; that imposition of inadequate sentences brings the armed
forces into disrepute; that prerogatives of the 'convening authority should
not be usurped; that the court-martial's findings and sentence are relatively
unimportant in view of the thorough review given by division headquarters;
that failure to recognize that the army is no place for thieves is a serious
deficiency; that great care must be used in selecting officers to serve on
courts-martial; and, that when individuals selected for that duty have verified
by their performance that they have certain qualifications, appropriate )notations will be made on their efficiency reports. The defendant was found
guilty. He petitioned the Court of Military Appeals for a review of his
conviction of larceny; the court granted the petition but limited the scope
to the single issue of whether the pretrial conference of the commander
with the members of the trial court-martial denied the accused a fair trial.
The decision of the Court of Military Appeals reviews the consideration
of command influence in the preparation of the Uniform Code of Military
Justice. In order to permit military justice to operate properly, the court
decided that commanders must use discrimination in the manner in which,
by directions to members of courts-martial they seek to maintain discipline.
The Court of Military Appeals, noting the commander's instructions,
stated, "With those admonitions ringing in their ears, the members began to
hear this case on its merits. It requires little imagination to arrive at the
reason why a finding of guilty was returned and the maximum sentence
imposed." The court set aside the sentence and ordered a rehearing.
In a separate concurring opinion, Judge Brosman said, "On the whole, I
incline to believe that seances of this nature are less necessary than dangerous
-and, all in all, they appear to me to be inconsistent with the character of
law administration elsewhere contemplated by the Uniform Code."
The concept of command influence, however, is not unique in military
justice. If properly controlled and limited to general instructions not inflencing a court as to its future action in a particular case, it should have
no greater or lesser effect on justice than public opinion and local conditions
which may affect civilian judges and jurists.
R. A. Noble
RFV AEW OF COURTS-MARTIAL: HABEAS CORPUS
The Pitioners in Burns v. Wilson, 346 U. S. 137 (1953), were military
prisoners who had been convicted by courts-martial of rape and murder. The
conviction was upheld by the military reviewing authorities and was affirmed
by the President. The petitioners then filed application in the district court
in the District of Columbia for a writ of habeas corpus, claiming that they
had been denied due process of law because they had been held incommunicado and denied the right of counsel; their confessions had been obtained
through coercion and deceit and then used to convict them; witnesses had
been coerced to testify; "planted evidence" had been used; and the trial had
been held in an atomsphere of "hysteria".
The district court dismissed the application, determining that the courtsmartial had jurisdiction over the prisoners, the crimes charged, and the
sentence imposed. 104 F. Supp. 310, 312 (1952). The court of appeals
affirmed after giving full consideration to the allegations. 91 App. D. C. 208,
202 F. 2d 335 (1953). Chief Justice Vinson delivered the opinion of the
Supreme Court affirming the decisions below. He pointed out that although
the federal civil courts have jurisdiction over applications for habeas corpus
from military prisoners, such jurisdiction is limited to determining whether
the military courts have dealt "fully and fairly" with the allegations raised
in the application for habeas corpus. Once this is established, the federal
courts cannot grant habeas corpus to review the evidence and allow petitioners
an opportunity to prove a case which they were not able to prove in the
military courts.
It is interesting to note that the same statute, 28 U. S. C. 2241, which is
construed to grant this limited review by the federal civil courts on a military
prisoner's application for habeas corpus, is also construed to grant to these
same federal courts a much broader jurisdiction over applications for habeas
corpus from persons confined by civil courts.
The court mentioned that although Congress provided that the decisions
of the appellate military tribunals should be final on all courts, Rev. Art.
War, 10 U.S.C. 1521h, Unif. Code Mil. Justice, 50 U.S.C. 663, Art. 76, the
Supreme Court has held that this does not displace the jurisdiction of the
federal civil courts over applications for writs of habeas corpus from a military prisoner. Gutsik v. Sctilder, 340 U. S. 128 (1950).
The petitioners complained that confessions obtained during illegal detention
are not admissible in criminal prosecutions in the federal courts under the
rule of McNabb v. United States, 318 U. S. 332 (1943). The Supreme Court
pointed out that this particular rule does not arise from the due process
guarantees of the Constitution but from the supervisory power of the Supreme
Court over the lower federal courts. The court said that it had no such
supervisory power over the military courts, but that under the Constitution,
Art. I, Sec. 8, cl. 14, it is Congress and not the civil courts which must establish the balance between the rights of men in the armed forces and the
demands of discipline and duty. Congress has defined the rights and responsibilities of men in the armed forces and has established a system of review
in the military department to guard against irregularities in courts-martial
cases and supervise procedural safeguards. This system of review existed
under the Articles of War, and now exists under the Uniform Code of Military Justice, by which Congress established, in addition to the military reviewing authorities, a Court of Military Appeals comprised of civilian judges.
Petitioners failed to prove that the military review was legally inadequate
to consider their allegations, and the Supreme Court upheld the convictions.
William V. Vitale
SELF-INCRIMINATION: REQUIRING A PERSON TO UTTER
WORDS FOR THE PURPOSE OF VOICE IDENTIFICATION
In the case of United States v. Greer, 3 U.S.C.M.A. 576, 13 C.M.R. 132
(1953), the Court of Military Appeals held invalid the provisions of paragraph 150b of the Manual for Courts-Martial (1951) which permitted an
order requiring an accused to utter words for the purpose of voice identification, and which specifically stated that such an order was not violative of the
prohibition against self-incrimination. This decision brings to a logical conclusion the reasoning recently applied in military courts with regard to the
Fifth Amendment and its applicability to members of the military services.
The accused in the principal case was charged with assault with a dangerous
weapon. The victim testified that after the assault he overheard the accused
talking and notwithstanding the fact that he could not identify the accused
by sight, he was able to recognize his attacker's voice. The accused was then
called upon, over objection of defense counsel, to read a passage from the
Manual for Courts-Martial, in order to permit the prosecution to point out
certain characteristics of the accused's voice, and to assist the witness to
identify the accused !as his assailant.
The court followed the reasoning it had charted in the cases of United
States v. Rosato, 3 U.S.C.M.A. 143, 11 C.M.R. 143 (1953), and United
States v. Eggers, 3 U.S.C.M.A. 191, 11 C.M.R. 191 (1953). The court decided that the provision in paragraph 150b of the Manual which specifically
permitted compelled utterances for voice identification went beyond the general framework promulgated as Article 31 of the Uniform Code of Military
Justice which "guarantees the accused the right to remain silent "and violated
the privilege against self-incrimination as contained in the Fifth Amendment.
The cases which the court relied upon were discussed by Albert C. Naum,
Compelled Handwriting Specimens A Violation of the Privilege Against SelfIncrimination, 3 Am. U. Int. L. Rev. 9 (1953), wherein the author analogized
between compelled handwriting specimehts and compelled utterances. At
page 15 he concluded that since the latter compulsion as well as the former
required "the affirmative conduct and . . . active participation in the creation of incriminating evidence ... it would appear that compelled utterances
are within the privilege and any such evidence . . . would be inadmissible."
United States v. Greer bears out Mr. Naum's conclusion.
While the rule is variously stated, by the court in this case as relating.
to "the exercise of mental and physical faculties," and by Mr. Naum to
"affirmative conduct and active participation," the rule might also be stated:
"An accused cannot be compelled to do anything, if with a conscious effort
he could do the act compelled in a manner not habitual as well as in a customary manner." It is not that the accused may simulate, but rather that
the act is innately voluntary, and that an order to do an act within the
privilege is in reality an order compelling an innately voluntary act. Hence,
were an attempt made to construe the provision of paragraph 150b which
states, "the prohibition does not forbid compelling [an accused] to exhibit
his body or other physical characteristics as evidence" as permitting the prosecution to compel an accused to exhibit a limp or a shuffling walk for identification purposes, it is this writer's opinion that such a construction would also
be violative of the prohibition against self-incrimination
Charles R. Mayer
PREJUDICIAL ERROR: DUAL FUNCTION
The accused was tried and convicted by special court-martial for drunkenness and disorderly conduct and sentenced to a bad-conduct discharge and
six months' confinement at hard labor. After trial, an assistant staff judge
advocate officer made recommendation to the convening authority that the
bad-conduct discharge be remitted and that only that part of the sentence
relating to confinement be executed and that the place of confinement be a
re-training command. He stated that he felt the man was amenable to
rehabilitation and could be of service to the air force at some future time.
The staff judge advocate did not accept this recommendation but took it
upon himself to write his own recommendation to the convening authority
stating that in view of the accused's four previous convictions and manifest
deficiencies in character, the man was a "worthless individual" and "a liability
to the air force" which made mandatory execution of the sentence as adjudged. The staff judge advocate was the same individual who had been
trial counsel for the case he was now reviewing.
The Court of Military Appeals United States v. Coulter, 3 U.S.C.M.A.
657, 14 C.M.R. 75 (1954), one judge dissenting, held such a dual function to
be patent error as in violation of Art. 6 (c) of the Uniform Code of Military
Justice, the effect of which was to create such general prejudice as to require
reversal, even in view of the "harmless error" provisions of the Uniform
Code.
The majority opinion, quoting from United States v. Gordon, 1 U.S.C.M.A.
255, 2 C.M.R. 161 (1952), further stated that "human behavior is such that
when a person, interested in the outcome of a trial, is called upon to pass
upon the results of that trial, his decision is necessarily different from that
of a person who had no interest in the matter." Applying those principles
to the instant case, the danger of a partial and biased review was held so
strong that prejudice was presumed.
Floyd C. Bagley