United States v. Self

Brosman, Judge

(concurring);

I concur. I am convinced that we must measure the misconduct here— and it can be regarded in no other light — by the yardstick of specific prejudice. When we do this, we must conclude — as the majority opinion has demonstrated — that Self, as the accused in this case, could not have been harmed materially.

There is no question in my mind about the presence of positive error in this case. Behavior of the sort with which we are presently concerned certainly does not conduce to the dignified and orderly trial procedure contemplated by the Uniform Code. It is even possible that it would be regarded as shocking by civilian professional thinking. However, it must be noted that the presence of the staff legal officer in the courtroom at the time in question was prompted by no sort of improper purpose, and that defense counsel expressly had denied objection thereto. It is further to be observed that participation by the former was not volunteered, but rather took place following a clear invitation from the president. Finally —and despite arguments based on undesirability in some particulars — I am aware of no provision of either the Code or the Manual which prohibits broadly the presence of a staff legal officer or a staff judge advocate as an auditor during a trial by court-martial.

It is true that the courtroom presence of such an official should be scrutinized closely to assure that the members of the special court are in no way intimidated thereby — or feel that not only may they solicit his legal advice, but that they must do so. In this latter event, there would seem to me to be danger that the legal officer would have improperly usurped the role of the president in ruling on interlocutory questions — and perhaps the functions of- all court members in other particulars.

In the last analysis, however, the impropriety which is here before us appears to constitute rather an instance of procedural irregularity than one of generally and inherently prejudicial misconduct. At the same time, I must regard it as a misstep which clearly reaches the level of error, although I am convinced that — after branding it as such — we are quite safe in leaving the protection of accused persons in this area to the mercies of the concept of specific prejudice and other similar prophylactic devices. This seems particularly true of a situation where the colloquy is distinctly on the record, with full opportunity available to defense counsel to hear and to object to the legal advice supplied. United States v. Souey, 73 BR 25; United States v. Seery, 24 BR 65. That the legal officer’s advice was not furnished pursuant to a sworn duty does not compel reversal in my view. United States v. Morin and Tallman, 75 BR 17.

Finally, it is not inappropriate to observe that the draftsmen of the Manual were alert to ¿nvision that in a trial by *576special court-martial — and in light of the frequent, if not usual, lay composition of such a tribunal — legal issues may arise which are insoluble by the tribunal without external aid. In such an event, its members may, through the trial counsel, obtain opposite legal information from the convening authority. Manual for Courts-Martial, United States, 1951, paragraphs 44/(4), 73a, 74e. Under normal circumstances, and of course, this information will stem from the command’s staff legal officer or staff judge advocate. These factors seem to present a further sound reason for considering the instant problem through the spectacles of specific prejudice.