C-Lesser Included Offenses The court members must be instructed on all lesser included offenses reasonably raised by the evidence.10 It follows, of course, that if the issue is not raised, there is no duty to instruct.10 If an issue is raised and the court is uninstructed thereon, even if the Court renders a verdict on the lesser included offense, the accused is nonetheless prejudiced.103 The defense, however, may affirmatively waive on an "all or nothing basis" 10 In other words, the defense may request the law officer not to give an instruction on the lesser offense, preferring to go for an outright acquittal or conviction of the major offense. Instructions must be given so that the members of the court-martial are provided with a legal yardstick to which they may fit the evidence in order to reach an intelligent finding.100 105 When the instructions are considered in their entirety, or as a whole, if they are sufficiently clear to be understood-for the court to make an intelligent finding-they will not be considered prejudicial even though one sentence or so may be technically incorrect.108 Yet the instructions as a whole test will not be applied where one correct and one wrong instruction is given on a material issue. They do not cancel out since there is no way of knowing upon which instruction the court relied.107 D-Miscellaneous In United States v. Endsley, 10 USCMA 255, 27 CMR 329, the Court of Military Appeals held that the law officer's advice in open court of the accused's right to testify or remain silent, as recorded in the trial procedure section of the Manual, was not a comment on the accused's failure to testify. However, a majority of the court did recognize that such an instruction does in effect high-light the accused's silence and pointed out that the advice should only be given if the accused has not been informed of his right to remain silent and then only outside the presence and hearing of the court members. In United States v. Polak, 10 USCMA 13, 27 CMR 87, the Court held that the law officer was not required 98. United States v. Ornelas, 2 USCMA 96, 6 CMR 96; United States v. Johnson, 6 USCMA 320, 20 CMR 36. 99. United States v. Amie, 7 USCMA 514, 22 CMR 304. 100. United States v. Hinton, 8 USCMA 39, 23 CMR 263; see also United States v. Powell, 8 USCMA 381, 24 CMR 191. 101. United States v. Richardson, 2 USCMA 88, 6 CMR 88. 106. United States v. Hatchett, 2 USCMA 482, 9 CMR 112. to give a requested defense instruction that "if the members of the court-martial found that any witness testified falsely on any material matter, it should disregard the entire testimony of the witness ("falsus in uno, falsus in omnibus")". The Court pointed out that such a principle of law merely permits the members of the court to draw a permissible inference; that it is not a mandatory rule.108 Recent rulings have held: that if the law officer or president gives definitions on his own motion-absent request he must make sure they are correct; 109 that instructing on the great interest of the accused in the outcome of the case is not a good practice—his interest should not be singled out; 110 that multiplicity ordinarily goes only to the sentence but a law officer or president may instruct the court-martial only to convict of one of the multiple offenses; " that repeated references to proof beyond a reasonable doubt is sufficient even though the instruction was not given in the statutory language; that identifying a particular instruction as presented by the defense is error; 118 that the defense "waives" where no objection is made to an instruction that merely lacks clarity but is otherwise correct; " and, that the defense counsel cannot induce error into the record and then take advantage of it on appeal. 112 REVIEW A-By the Convening Authority 115 Any case tried by general court-martial must be reviewed by the officer exercising general court-martial jurisdiction, and any case tried by a special court-martial which carries a sentence of punitive discharge must be reviewed by a supervisory authority. As a part of this review an accused is entitled to an impartial review by a staff legal officer. This review must not be written by the trial counsel, the law officer, the law officer in a companion case, or a staff legal officer whose pretrial actions in the case were such as to render him biased and prejudiced against the accused. In reviewing the record and advising the convening or supervisory authority as to the recommended action to be taken, the staff legal officer must use the same standards that will be used by the convening authority— whether the guilt of the accused has been established beyond a reasonable doubt. The staff legal officer must not suggest in his review that either he or the convening authority is bound by the court-martial on questions of fact, since both must be independently convinced of the accused's guilt beyond a reasonable doubt. In a 108. But compare United States v. Baldwin, 10 USCMA 193, 27 CMR 267. 109. United States v. Kloh, 10 USCMA 329, 27 CMR 403. 110. United States v. McClary, 10 USCMA 147, 27 CMR 331, but Court found no prejudice. 111. United States v. Littlepace, 10 USCMA 245, 27 CMR 319. 112. United States v. McClary, 10 USCMA 147, 27 CMR 221. 113. United States v. Jones, 10 USCMA 122, 27 CMR 196. 114. United States v. Kloh, 10 USCMA 329, 27 CMR 403. 115. United States v. Clisson, 5 USCMA 277, 17 CMR 277; United States v. Crunk, 4 USCMA 290, 15 CMR 290; United States v. Hill, 6 USCMA 599, 20 CMR 315; United States v. Turner, 7 USCMA 38, 21 CMR 164. 116. United States v. Grice, 8 USCMA 166, 23 CMR 390. not-guilty case, it is prejudicial for the staff legal officer to fail to advise the convening or supervisory authority of his independent opinion as to the sufficiency of the evidence-pointing out, however, that the convening or supervisory authority must also make such an independent determination.117 118 In affirming a finding of guilty, the action of a convening authority must be based only on the evidence of record, but an action disapproving a sentence may be based on collateral matters outside the record.119 A convening authority may not lay down a policy of refusal to consider remitting or suspending a punitive discharge, and a staff legal officer may not advise a convening authority that a sentence is appropriate because of military necessity.120 To determine an appropriate sentence, the convening authority may consider many things, but he must not consider adverse matters outside the record without affording the accused an opportunity to rebut or explain the matter." Where a new review is required-in acting on either the findings or the sentence-a convening authority cannot approve more than did the previous convening authority. Any reviewer should be familiar with the minimum requirements set out in United States v. Fields, 9 USCMA 70, 25 CMR 332. Review of a record which contains a punitive discharge or any general courtmartial conviction should contain: (1) a summary of the evidence; (2) (if not guilty plea) the reviewer's opinion as to the adequacy and weight of the evidence; (3) an opinion as to the effect of any error or irregularity; (4) a recommended action; and (5) reasons for the opinions and recommendations. See also U.S. v. Bennie, 10 USCMA 159, 27 CMR 233. B-By the Board of Review 123 By statute, a Board of Review may affirm only so much of the findings as it determines to be correct in law and fact.122 A Board of Review is, in effect, an appellate court, with unlimited jurisdiction, with a wider review over a military criminal case than a U.S. Court of Appeal exercises over a civilian criminal case." A Board has the inherent power to correct its own clerical errors, inadvertent erroneous decisions, and to modify the correct judgments. Article 66, however, restricts the Board to action on the record and the allied papers accompanying the record.125 A Board cannot refuse to decide a jurisdictional issue and compromise the case by disapproving the offense on the 117. United States v. Johnson, 8 USCMA 173, 23 CMR 397; United States v. Jenkins, 8 USCMA 274, 24 CMR 84; United States v. Fields, 9 USCMA 70, 25 CMR 332. 124 118. United States v. Duffy, 3 USCMA 20, 11 CMR 20. 120. United States v. Wise, 6 USCMA 472, 20 CMR 188; United States v. Plummer, 7 USCMA 630, 23 CMR 94. 121. United States v. Vara, 8 USCMA 651, 25 CMR 155. 122. Article 66(c), Uniform Code of Military Justice. 123. See Klein, JAG Justice Today, 2 Cath. Un. L.R. 57 (May 59). 124. United States v. Reeves, 1 USCMA 388, 3 CMR 122. 125. United States v. Simmons, 2 USCMA 105, 6 CMR 105. But see United States v. Roberts, 7 USCMA 322, 22 CMR 112, wherein the Court of Military Appeals held appellate tribunals may consider matters outside record which amount to supplemental or additional designations of the trial record. basis of "substantial justice", because of the accused's past record. This was the holding at least in United States v. Waymire, 9 USCMA 252, 26 CMR 32. As Commissioner Tedrow points out in his digest of Court of Military Appeals decisions, Article 66 emphasizes affirmative approval by Boards of Review, not disapproval. May the Court direct a Board of Review to approve a finding as a ministerial act? In United States v. Drexler, 9 USCMA 405, 26 CMR 185, a majority of the Court held that a Board may dismiss even the valid finding to correct an error in the trial record and ensure justice. A Board of Review finding is binding on the Court of Military Appeals, if the finding is based on substantial evidence of record and unless all reasonable men would reach a different result.128 A Board's fact-finding powers must not be exercised arbitrarily, capriciously, or unreasonably. The test appears to be that the Board's findings are binding on all if reasonable men might differ as to the facts." A Board may always affirm a finding of a lesser included offense, but it probably cannot affirm another offense involving a material item of proof not raised at trial below." 127 128 In Jackson v. Taylor, 77 S. Ct. 1027, the Supreme Court indicated that under the Uniform Code of Military Justice, a Board of Review could take corrective action in any type of sentence error. The Court of Military Appeals has not seen fit to go that far. In certain cases, it has felt that justice demands that the accused be given another chance at the trial level.129 In any event, a Board of Review is duty bound to reduce any sentence it finds excessive.130 Although it may reduce a life sentence-even though that sentence was mandatory at the trial level—a Board may not commute a death sentence to life imprisonment without changing the finding which formed the basis for the sentence.131 C.-By the Court of Military Appeals 132 The Court of Military Appeals may obtain jurisdiction over a case by certification from one of the service Judge Advocates General, by action of the Court itself in granting an accused's petition for grant of review, or by mandatory review of cases involving general or flag officers or where the death penalty has been adjudged. The Court has no fact-finding powers and it cannot concern itself with the appropriateness of the sentence, if within legal limits; inasmuch as these are powers which are exercised by the intermediate tribunals, the Boards of Review.134 If there is any substantial evidence of record to support a conviction, the Court in the absence of error-will not set aside the conviction, but the Court will not permit a conviction to stand which is based upon suspicion, conjecture, or speculation.135 133 After the Court makes a determination that error 126. United States v. Bunting, 6 USCMA 170, 19 CMR 296. 130. United States v. Jefferson, 7 USCMA 193, 21 CMR 319. 133. United States v. Bunting, 6 USCMA 170, 19 CMR 296; United States v. Keith, 1 USCMA 442, 4 CMR 34. 134. See supra note 132. 135. United States v. McCrary, 1 USCMA 1, 1 CMR 1; United States v. O'Neal, 1 USCMA 138, 2 CMR 44. has been committed, it must then decide whether the error is prejudicial to the substantial rights of the accused. But, there are some areas so important to an accused's right to a fair trial that the Court will not search for specific prejudice. For instance, Article 31 of the Code is so important that the Court of Military Appeals will not sanction any departure from its clear mandate. It will not affirm a conviction where the evidence used at trial was obtained in violation of that Article, no matter how compelling the other evidence.1 The Court of Military Appeals will review the proceedings to ensure that the accused has received a fair trial. It has broad authority to supervise and regulate the conduct of courts-martial. The mere failure of Congress or the Manual for Courts-Martial to condemn a certain practice does not render the Court powerless to disapprove such practice when it destroys the integrity of the trial. Regardless of any trial or appellate theories, the Court of Military Appeals may always intervene to prevent a miscarriage of justice, or protect public policy, or the fairness of the proceedings.139 138 THE FOREGOING TOUCHES only lightly upon some of the high points of military law. The Uniform Code of Military Justice has been in operation now for only about nine years. By and large, it has gone a long way in ensuring to service personnel a fair trial-as fair, or fairer, as one would receive were one a civilian. A substantial amount of the credit for this must go to the Court of Military Appeals and its insistence upon strict adherence to all rights guaranteed to accused persons under the Code. Certainly, most will agree that an individual charged with a serious criminal offense must be accorded an experienced lawyer for defense; that the trial court must be presided over by a judge— law officer of judicious manner and learned in military law; and that the case be given an impartial and painstaking review. All of this can be done expeditiously without impairing in the least military discipline. Rather, even-handed justice to all will strengthen instead of weaken discipline in our armed forces. 140. United States v. Brown, 8 USCMA 516, 25 CMR 20; United States v. Varnadore, 9 USCMA 471, 26 CMR 251; United States v. Holt, 9 USCMA 476, 26 CMR 256. 141. United States v. Solinsky, 2 USCMA 153, 1 CMR 29; United States v. Swain, 10 USCMA 37, 27 CMR 111. But see United States v. Uasenor, 6 USCMA 3, 19 CMR 129. 142. United States v. Mulvey, 10 USCMA 242, 27 CMR 311. and substance to effectively transpose, in and of themselves, the event or circumstances in question from the scene of the incident to the mind of the reader. CONCLUSION THOROUGH, TIMELY AND accurate, well conducted investigations concerning incidents have an appreciable impact upon the naval service. Investigations surrounding a death or injury have been found to be as important to individuals or survivors as any proceeding by court-martial. While undertaking this heavy 1esponsibility it should be kept in mind that the primary purpose of an investigation is to impartially ascertain all pertinent facts about the subject investigated and to report them to the officer ordering the investigation together with the opinions and recommendations. In this manner the Navy as a whole may benefit from the experience of one command and from your analysis of that experience either in the report or by endorsement. NAVAL LEADERSHIP Remarks of a Defense Counsel at a Trial by Court-Martial "People are strange animals and understanding their problems depends as much on pity as on judgment. A man wants to be understood and appreciated, and yet so often when he wants and needs this the most he seems to deserve it the least. Long unsatisfied needs make men sick. That is why 3 out of 10 hospital beds in the United States today are occupied by the mentally ill. That's why you see educated men and women pay the palmist for words of comfort and hope. Even understanding, love and consolation have a price tag on them. Everywhere there are unfulfilled emotional needs and if they are not satisfied the results can be mental sickness, showing up in poor work, poor discipline, or irresponsible behavior. For the man working without some motivating goal is subject to mental sickness in much the same way a man is subject to cold when he walks out into a winter rain without a coat. "Henry Ford was one of the first great leaders to recognize this need for understanding and a goal. Someone asked him how he could afford to pay his workers such huge wages and give fringe benefits, unheard of in 1914. He said simply, "The workers pay me back." The pilferage factor at Ford's plant was so low it was no problem at all. A well-paid sweeper picked up tools instead of sweeping them out. Machinists discovered that the crate in which the cylinder blocks were shipped could be used for floor boards in the Model T, and so on. All these things saved Ford thousands of dollars JAG BULLETIN BOARD (Continued from page 2) Division in 1953, remaining in this assignment until 1956. Captain Carnes is a member of the Georgia State Bar Association, the American Bar Association, the Federal Bar Association and the U.S. Court of Military Appeals. MILITARY PERSONNEL DIVISION The following is a list of change of duty or station orders issued o all officers transferred to or from the Office of the Judge Advoate General and to all Navy law specialists regardless of assignnent. The list includes orders issued before 15 December 1959. CDR George T. Boland, USN, from NOTS, Inyokern, Calif., to ComSubPac. T James R. Bruner, USN, from NATC, NAS, Patuxent T Lester S. Cook, Jr., USNR, from NavSta, Subic TJG Henry W. Croskey, USNR, from JAGO, Navy T Joseph P. Devane, Jr., USNR, from BuPers to TJG James D. Henry, USNR, from SNJ (under inst.) CDR William O. Hitchcock, USNR, from 3dMarDiv (Reinf), FMF to ComEleven. and left him time to dispose of the few inevitable bad apples. But there was no doubt about it; Ford got the most out of his workers. They were understood, appreciated, recognized. Anywhere there are men, this is true. It works in the Navy; on any ship. "Good leadership is so simple in principle that it can be defined in one sentence. Good leadership demands, receives, and rewards. It is demanding in that orders must be explicit and clear as to what is to be done, by whom, and how soon to be completed. It receives the benefit of having the job well done. It rewards the man who has done the job. Reward must be as consistent as the demand. Reward can be punishment for the man's failure to do his best. Or it can be a pat on the back, liberty, leave or holiday routine for a job well done. These are the things men understand. These are the tangibles that make for good morale. "A man is court-martialed. He has done something for which he must receive a reward. The reward is punishment. We may spend 8 to 10 man-hours determining the punishment. The next time the man does a good job or does his work well, how many minutes or seconds will be spent on meritorious rewards as opposed to disciplinary rewards? Good deeds must be consistently noted as well as bad ones. If not, the emphasis is on punishment. This is not Naval leadership. For leadership demands, receives, and rewards fairly and faithfully the good job as well as the bad deed." CDR Willard D. Hoot, USN, from Armed Forces Staff LT Arthur J. Johns, USN, from ComEleven to Com- LTJG Thomas H. Johnson, USNR, from SNJ (under LTJG Henry O. Lestage, III, USNR, from SNJ (under LT James J. McHugh, USN, from RecSta, Treasure LT John M. Meighan, Jr., USNR, from NAS, Memphis, CDR Kenneth F. Williams, USNR, from ComThree to CDR John P. Gleeson, USN, from JAGO to LT James T. Hawk, USNR, from SNJ, Newport (un- LTJG Ronald R. Sogge, USNR, from SNJ, Newport (under inst.) to NAVSTA, Norfolk. Under the vigorous leadership of its Commander, Vice Admiral George W. Anderson, Jr., U.S. Navy, the Sixth Fleet-flexible, alert and powerful-is today displaying another of the many-sided rewards of seapower. This same naval strength which was applied with precision and success in Lebanon to deter aggressors and restore stability, now stands ready-its effectiveness proved by past performance-to support President Eisenhower's campaign for "peace with freedom." Constantly on the move, our Sixth Fleet in the Mediterranean, like our Seventh Fleet in the Far East, shows the free world-friends, allies, and uncommitted neutrals-that we are never far away. When the support of our strength is needed, all free peoples subjected to aggressive threats can be reassured by this capability of the United States to act. They know that the American aircraft carriers can bring sea-borne airpower to their assistance immediatelyand with reliability. They know that naval strike forces are hard for the enemy to find; and harder still to hit. Together with a powerful U.S. Air Force, the fleets continue to exercise a deterrent airpower to guarantee freedom. With mobility that derives from control of the sea, the proven weapons of Marine amphibious forces and Army forces can add swiftly to the immediately available seapower with which we support the spirit and defend the freedom of our friends in time of crises. Through the responsibilities assigned the Commander Sixth Fleet, our Nation exemplifies its inherent capability of meeting military threats and missions within the framework of the rules and standards of established international law. The above photograph seems symbolic of the traditional regard of naval commanders for law; and of the appreciation by Navy lawyers of the privilege of serving Command. It was taken aboard the flagship of the Sixth Fleet, the USS Des Moines, during the recent visit of the Judge Advocate General of the Navy, Rear Admiral Chester Ward, U.S. Navy. JAG JOURNAL 24 U.S. GOVERNMENT PRINTING OFFICE: 1960 |