FREQUENTLY AN ACCUSED awaiting trial by court martial may have the feeling that he will not be able to obtain a "fair trial" at the place or within the Command where the case is to be tried.

Such being the case, he may desire to initiate some form of action to attempt to have his case tried at some other place or to have it convened by some other command.

The proper action to take under this circumstance would be to make a motion for a change of venue and it is this motion which will be the subject of the presentation submitted herewith.

VENUE IS DEFINED in the law as the place wherein a cause is to be tried. "Change of venue" then obviously means a change in that place of trial. A motion for such a change is frequently made on both the civil and criminal sides of the law in this country, and said motion is based upon various considerations.2 - However, for our purposes the motion will be considered as it applies in courts-martial, with only occasional reference to its application outside the military.

It might be well at the outset to discuss briefly what a motion for a change of venue in military jurisprudence is not and how it cannot be utilized.

First, such a motion cannot attack the jurisdiction of the court (that is, the power of the court to hear the case) on the grounds that the court hearing the case is not sitting where the offense was committed. While in civilian practice an accused may in certain instances properly make said motion on these grounds, in military law the place where the offense was allegedly committed does not control the jurisdiction of a court-martial, nor are military tribunals confined to any territorial limitations.1

3

Lieutenant James J. McHugh, USN, is presently assigned to the Civil Law Division in the Office of the Judge Advocate General, having completed a tour of duty with the Naval Missile Test Center, Point Mugu, California. He received the degrees B.A. and LL.B. from the University of Pennsylvania where he was elected to Phi Beta Kappa and the law review. Admitted to the Bar of the Commonwealth of Pennsylvania, Lieutenant McHugh is a member of the American Bar Association and is serving as a vice-chairman of the Military Service Committee of the Junior Bar Conference of the American Bar Association. He is also the present Chairman of the Navy-Marine Corps Junior Bar Association.

1. 56 Am. Jur., Venue, § 2, p. 4.

2. See 56 Am. Jur., supra, n. 1, for a general discussion of the law of venue and its various applications.

3. Ibid.

Again a motion for a change of venue is not properly presented when it is used as an objection to the President or membership or the law officer of a court-martial. Objections in this regard are properly registered by the use of challenges either to the President, individual members or the Law Officer, as appropriate." It may be even appropriate to challenge all the members of the court, but a motion for a change of venue on the grounds that all the members of a court-martial are prejudiced, without more, will not lie.'

Having considered then what the motion for a change of venue is not, let us turn to what it is. STRICTLY SPEAKING, a "motion for a change of venue" in the technical sense does not exist in military law. By this is meant that it is not one of the formalized motions set forth in the Manual for Courts-Martial. However, there is a "Motion for Appropriate Relief" set forth in the Manual and this broad motion has been held to include motions for a change of venue and when made using this phraseology, they are considered as being in fact motions for appropriate relief.10

Most simply put, a motion for a change of venue is made when an accused does not believe that he can receive a fair trial at the place where the court has been or is to be convened. The most usual grounds for such belief are bias and prejudice. It is not enough that any person or persons are felt to be against the accused. It must be shown that, for whatever reason, there is an actual and concrete bias which is of sufficient magnitude so as to reasonably preclude the accused's right to an impartial trial."

In the military service and particularly in the Navy where communities are frequently

4. MCM 1951 ch. VI, § 8, p. 14; U.S. v. Schreiber, 16 CMR 638, aff'd. 5 USCMA 602, 18 CMR 226; U.S. v. Sorrell, 11 CMR 930. 5. USMJ (1951) Art. 41, MCM, 1951, § 62, p. 89.

6. This may not be accomplished by one motion challenging the array but each member must be individually and separately challenged so that the others may vote on the challenge without his presence. MCM 1951, ch. XI, par. 62, p. 89.

7. If this prejudice was the result of a general atmosphere of hostility or partiality existing at the place of trial, however, the accused would be entitled to be tried in some other place. See U.S. v. Gravitt, 5 USCMA 249, 17 CMR 249.

8. U.S. v. Gravitt, supra. n. 7; U.S. v. Carter et al 9 USCMA 108, 25 CMR 370.

9. MCM 1951, ch. XII, § 66-69, pp. 96-107.

10. U.S. v. Gravitt, supra. n. 7; U.S. v. Doyle, et al. 17 CMR 615. 11. See, inter alia, U.S. v. Gravitt, supra, n. 7.

small and closely knit, it might be supposed that a motion for a change of venue would often be made and generally be granted. It might be argued that frequently the very size of the unit, ship or station would present a color of prejudice and preclude a fair trial being conducted therein.12 However, such an argument in and of itself has not been recognized. This is so because a presumption exists that whatever the size of the community, impartiality can and does exist.18 To hold otherwise could produce unlooked for results. The logic of precluding a trial on the ground of the size of the community is based on the premise that in small communities matters are well known, discussed and consequently prejudged. However, in this day of rapid and widespread communication, the same reasoning could be applied to any and all communities. Thus, if this reasoning were to be applied, a case could be envisaged where no trial could be held anywhere.

Therefore there must be more, much more than the mere size of the community or the close fraternity of its members to warrant a change of venue. At this point, let us examine the cases wherein the motion for a change of venue has been made and attempt to develop some ground rules for its application.

AGAINST THE BROAD TAPESTRY of "fair trial", several specific situations have been presented which, it has been alleged, rend that tapestry and preclude a fair trial. In the case of the United States v. Carter, et al 14 it was asserted, inter alia, that statements of policy issued by command had precluded the accused's receiving a fair trial and hence he should be granted a change of venue. Specifically in this case, the Commanding General of the Seventh Army promulgated a document which was distributed throughout the convening authority's command and in which it was stated that violations affecting German-American relationship should be dealt with severely.15 It was held that this document did not constitute command influence so as to preclude a fair trial where it appeared that it was issued prior to the commission of the offenses being tried and was not brought to the court's attention during trial. The document was considered merely an administrative regulation dealing with measures

12. This was essentially the basis of a motion made by defense counsel in the case of U.S. v. Click, NCM 59-02339 Dec. 28 Oct. 1960. 13. U.S. v. Doyle, supra, n. 10. 14. Supra, n. 8.

15. Said document provided in pertinent part: "c. Officers and NCO's must set the example by avoiding participation in incidents. Any violations must be severely dealt with. They must take action promptly to step in when the stage is being set for trouble." U.S. v. Carter, et al, supra n. 8 at p. 373.

which should be taken to improve discipline within the command. Again in this same case, the Commander in Chief of the United States Army in Europe had made comments at an Ambassador-Army Commanders Conference, which were specifically brought to the attention of the members of the court, indicating his abhorrence of the crimes being tried and further indicating that said offenses should be brought to an irreducible minimum.16 These comments were also considered as not to preclude the accused's right to a fair trial.

17

Another situation which it was contended precluded the accused being afforded a fair trial can be found in the case of U.S. v. Cox." In this case, the accused requested a change of venue from Hawaii to the Philippines so as to conduct further investigation of his case, avail himself of the live testimony of a principal witness, and possibly uncover additional witnesses favorable to the defense. The motion was denied. However, the Board of Review ruled that the motion should have been granted. In so doing, they stated that one of the requisites of a fair trial is complete pre-trial investigation and that the situs of the trial should have been moved to a place where this could have been facilitated. It is noted that contrary to the usual situation, in this case there was no con16. Said document provided in pertinent part:

"Now as most of you know, during the past six weeks it has been necessary for me to issue several directives on the prevention and elimination of serious incidents between our soldiers and German civilians.

"I think it is a very sad commentary on us, as commanders, when the reputation of the United States Army-as a matter of fact, when the reputation of the United States-is permitted to be jeopardized by a few 'bums'. Now it shouldn't have been necessary, in my opinion, to issue more than one directive on this subject and I think that the directive that came out on 16 June if it had gotten down to the lowest echelon and was executed as was intended by this headquarters we would have saved ourselves at least the July incidents. Because, if you go back and reread the 16 June directive of this headquarters there is everything in it that is necessary, in general terms. It shouldn't be necessary for the larger headquarters, and I mean all those immediately subordinate to this one, to have to spell out things in great detail but apparently from the results we must do so and I am going to spell them out. Again, it matters little that the U.S. Army personnel in Germany participated in about 700 worthwhile community events during the past three months when one rape case, in which seven soldiers repeatedly attacked a 15-year old girl, draws unfavorable world-wide publicity. That one incident knocked out those 700 good deeds. The cold-blooded murder of an aged ferryboat operator by a soldier bent on robbery overshadows by far all the positive and worthwhile projects our people have accomplished for their German neighbors. Then, of course, this was followed by a rape case by four enlisted men. The grenade case was ahead of this. I don't expect people to work miracles but I do expect, and I am going to demand, that these criminal acts against the citizens of our host nation be brought to an irreducible minimum immediately. I hope that the directives that have been issued from here will assist you in reducing these incidents and I expect them to be vigorously and continuously carried out." Ibid. at p. 372.

17. 23 CMR 535.

tention of prejudice or bias as the grounds for precluding a fair trial.

IN STILL ANOTHER situation it was contended that a change of venue should be granted on the grounds that the accused could not be afforded a fair trial. In the case of U.S. v. Click 18 it was contended inter alia by defense counsel that the convening authority's handling of the pretrial investigation evidenced a bias which pervaded the entire community. In this case the accused was on trial for premeditated murder allegedly committed at the U.S. Naval Air Station on the Island of Kodiak, Alaska. Counsel argued that the fact that the convening authority had referred the case to trial within four days after receiving the lengthy pretrial examination indicated that he had not read or considered the arguments of counsel presented therein and reflected a prejudice which extended to the entire community.19 However, it was held that these assertions did not provide sufficient evidence so as to warrant a change of venue.

Again, in U.S. v. Gravitt 20 the accused, an Air Force enlisted man, was being tried for the murder of an Army Officer. The Court was composed entirely of Air Force personnel but the place of trial was an Army installation. At the trial, defense counsel moved for a change of venue on the grounds that the Army installation was "hostile territory." The motion was denied and the ruling upheld by the Court of Military Appeals on the grounds that without more than a mere assertion of "hostility" there was not sufficient evidence so as to establish that the accused could not be afforded a fair trial.

Finally, in U.S. v. Genesee 21 evidence was presented that the charges had been generally discussed on the base prior to trial and several persons had expressed the belief that the accused was guilty. However, this was also held to be not sufficient evidence so as to warrant a change of venue.

Having taken a sample of cases where some specific action was alleged to preclude fair trial and require a change of venue, let us now consider the ground generally and most usually set forth to support the motion: that is, newspaper publicity.

18. Supra, n. 12. In this case the defense counsel did not term his motion as one for "change of venue." Rather he used the more accurate phraseology, “motion for appropriate relief."

19. This argument can be found on p. 1-7 of Appellate Exhibit A of the trial record appended to the Board of Review decision. Supra, n. 12.

20. Supra, n. 7.

21. 26 CMR 845.

Either as a sole ground or in connection with other allegations, in most cases in this area, the accused has introduced evidence of extensive newspaper publicity to show bias, prejudice or prejudgment which would preclude fair trial and require a change of venue.

IN THE CASE of U.S. v. Hurt,22 the accused was being tried for murder committed in the course of a felony, and rape. Specifically, it

De

was alleged that he had violated and murdered a five year old Okinawan girl. The offense caused a great deal of distress and tension in the civilian community in Okinawa and was the subject of considerable newspaper comment. fense counsel moved for a change of venue on the ground that the native population was "aroused to hatred and frenzy." 23 The motion was denied and the denial was subsequently upheld by the Court of Military Appeals on the ground that whatever tension was created in the civilian community was not directed specifically at the accused but against the American occupation and administration of Okinawa and furthermore, that the court members had testified on voir dire examination that they would not be effected by the political significance of the case.

Again in the case of U.S. v. Vigneauit,24 a motion for a change of venue was made on the ground that fair trial had been precluded by reason of newspaper reporting of the case. However, the motion was denied and this denial was upheld by the Court of Military Appeals. In affirming the action of the Law Officer, the Court stated:

We fail to see anything of possible influence in them (the newspaper stories). They are no more than factual reporting of news. They do not embellish the happenings of the trial and they are not false or inflammatory. They reported fully and fairly the events of the investigation and trial as they proceeded and for the most part the articles were published on inside pages. They make no attempt to influence the reader against the accused and they do not editorialize upon the merits of the trial.25

Finally, in the Carter case previously mentioned 26 where the offense was a mass rape of a young German girl, newspaper articles were

22. 9 USCMA 735; 27 CMR 3.

23. Ibid p. 30. In this connection the trial defense counsel argued that "... Reading the press summaries one gets the feeling that there was not much tension prevalent until it was learned that the accused was an American serviceman. From that time on the press worked themselves into a frenzy of hatred. They have implied that Ryukyuan-American friendship hinged upon the conviction of SGT. Hurt. . . ." Ibid p. 30.

24. 3 USCMA 247, 12 CMR 3.

25. Ibid p. 10. It may be noted here that the court while denying the motion lays down some fundamental rules for the measurement of newspaper articles against a charge of prejudice. 26. U.S. v. Carter, et al., supra n. 8.

impassioned, clamored for the apprehension of the guilty parties, applauded the dispatch with which the suspects were apprehended and demanded an increase in discipline in the American military community. However, these comments were held not to require a change of venue where the accused were being tried 60 miles from the place where the incident occurred and where the most adverse articles were printed in German which most of the court members could not read, and where the court members stated that they would not be influenced by the German reaction to the offenses.

In summary then, while it appears that newspaper publicity may be advanced as a ground for a change of venue, it also appears that there will be little chance of having the motion granted on this ground unless the publicity is of such magnitude as to clearly indicate that the community has actually prejudged the case.

HAVING CONSIDERED THE various grounds for a motion for a change of venue, let us next direct our attention to some procedural aspects thereof.

A motion for a change of venue may be made orally or in writing either to the convening authority prior to trial or to the law officer or President of a Special Court-Martial at the time of trial and prior to the arraignment." When the motion is made to the convening authority prior to trial it is considered an administrative procedure. The action taken is without prejudice to the renewal of the assertion by motion to the court.28

The motion having been made at either of the forgoing times, the moving party has the burden of establishing the ground for his motion. by a preponderance of the evidence.29 In this connection, when the motion is made at trial he can and should call witnesses and present evidence to support his claim. Mere assertion of prejudice will not suffice.30 When the motion. is made prior to trial, the moving party should stand ready to present such evidence as the convening authority might desire to hear. However, since this, as has been noted, is an administrative procedure and the convening authority's action is without prejudice, there is no requirement that evidence be heard.

The motion having been made (or reasserted) at trial and supporting evidence having been presented, it then rests in the discretion of the

27. MCM 1951, ch. XII, § 67c, p. 97.

28. MCM 1951, ch. XII, § 67a, p. 96.

29. U.S. v. Doyle, et al, supra n. 10; U.S. v. Gravitt, supra n. 7; MCM 1951, ch. X, § 57g, p. 81.

30. U.S. v. Buxton and Roy, 16 CMR 732; U.S. v. Hagelberger, 3 USCMA 259, 12 CMR 15.

Law Officer in the case of General CourtsMartial or the President in the case of Special Courts-Martial subject to objection by any member thereof to grant or deny the motion." Denial of the motion will not be considered error unless it can be shown that in so doing, the Law Officer or the President 32 has abused his discretion.

If the motion is granted, the case is referred back to the convening authority to effect the change. At this point, the following question arises. What if the convening authority does not agree with the Law Officer or President? IN THE CASE of U.S. v. Schrieber,34 it was stated by a Board of Review that the convening authority in the exercise of his discretion may order the same court to continue its proceedings. Again in U.S. v. Johns,35 which was tried before the adoption of the UCMJ, the same statement was made. However, in each case the afore-mentioned statement was obiter dictum. Since the motions were held to have been properly denied at trial in each case, it cannot be said that the statement that the convening authority could order a court to proceed amounted to a holding to that effect. Moreover, it appears from other sources that this in fact is not the law but rather that the ruling │ of the Law Officer or President of a Special Court-Martial is final on the subject.

Several Court of Military Appeal cases cited previously, while not answering the question specifically, indicate that the motion for a change of venue is properly one upon which the Law Office can rule as an interlocutory question.* Also, in the analogous area of a motion for a continuance, it has been held that the ruling of the law officer is final and the convening authority has no power to set it aside.37 Finally, the Manual for Courts-Martial provides that:

to the extent that the court and the convening authority differ as to a question which is solely one of law such as whether the charges allege an offense cognizable by a court martial the court will accede to the views of the convening authority but if the matter as to which the convening authority disagrees are issues of fact, such as those which may be presented on an objection to trial on the ground that the accused lacks the requisite mental capacity at the time of trial the court will exercise its sound discretion in reconsidering the motion (emphasis supplied)."

31. MCM 1951, ch. X, 8 57, p. 79 et seq.

32. U.S. v. Carter, et al, supra n. 8; U.S. v. Schreiber, supra n. 4. 33. MCM 1951, ch. XII, § 67f, pp. 98, 99.

34. Supra n. 4.

35. CM 317064, 66 BR 169, 184 (1947).

36. See U.S. v. Gravitt, supra n. 7; U.S. v. Carter, et al, supra n. 8. 37. U.S. v. Knudson, 4 USCMA 587; 16 CMR 161.

38. MCM 1951, ch. XII, § 67f, pp. 98, 99.

U.S. GOVERNMENT PRINTING OFFICE: 1961