United States v. Edwards

COX, Chief Judge

(dissenting):

Article 59(a),' Uniform Code of Military Justice, 10 USC § 859(a), teaches us this:

(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accüsed.

This applies to an error affecting any aspect of the proceedings.

Although I agree with the majority view that the participation by the legal officer in this case was a bit too much, it nevertheless did not create any prejudicial error. If it did, no one, including the majority, has convinced me what that prejudice was. Certainly trial defense counsel, the learned and very experienced military judge, and the experienced judges of the United States Navy-Marine Corps Court of Criminal Appeals have not seen any prejudice worthy of note.

Accordingly, I would affirm under principles of waiver, lack of prejudice, common sense, and the mighty legal doctrine of de minimis non curat lex.