United States v. Coulter

BROSMAN, Judge

(concurring):

I concur in the opinion of the Chief Judge. This memorandum is prepared not because I feel that his opinion does not rest safely and comfortably on its own bottom, but rather because some aspects of the dissenting opinion disturb and confuse me.

II

The dissenting judge has freely conceded that “if the convening authority in this case had required that trial counsel act as his staff judge advocate to review the record, within the meaning of that Article [Article 6(c) of the Code], then there would be prejudicial error.” (Emphasis supplied.) How —-I must inquire — does he know that a “review” was not “required” by the convening authority? It is indeed true that the Uniform Code does not “require” that a convening authority refer records of trial by special court-martial to “his staff judge advocate or legal officer . . . for his written opinion thereon.” The reason for this is not far to seek— and is soundly based in practical considerations. Very many officers who exercise special — but not general — court-martial jurisdiction command units which are simply too small to enjoy the luxury of such a functionary. Yet the staffs of many other such convening authorities do include a “staff judge advocate or legal officer.” And when he is to be found, he functions as such, and frequently, if not usually, “reviews” records of trial by special court-martial. By local ground rules he may even be “required” to do so. And why not? After all, that is what he is there for— that is, to advise his “client” concerning legal matters. It does not seem to follow, therefore, that, merely because a procedure is not required by the Code or Manual, that it is not required at all.

But I find real difficulty in understanding why we should be troubled about the question of requirement. Lieutenant Jungman in the instant case was, in fact and in law, the staff judge advocate to the convening authority. He certified that he occupied this position — and under Air Force practice, the senior legal officer in any command is appropriately designated as the staff judge advocate of that command: Of what moment then is the question of whether the Lieutenant was “required” to do what he did in this case? He did it in fact, and he did it as staff judge advocate. Moreover, he had served as trial counsel when the accused was tried. I am sure, therefore, that he had fully accomplished whatever harm was envisioned by the draftsmen of the Code and Manual.

Ill

The dissenting judge does not believe that Lieutenant Jungman effected a “review” in this case. What is a review? Is a review not a review because a staff judge advocate does not do all that he might have done? Judge Latimer has indicated that he conceives of the review contemplated by the Code as a procedure which is concerned primarily with the consideration of possible “legal errors or irregularities.” This assumption— for it is no more than this — seems to me to be wholly gratuitous, for fully one-half of the contents of the typical field review relate to nothing other than appropriateness of sentence and clemency considerations. The Manual demands not only that the staff judge advocate comment on errors and irregularities, but requires as well that he provide “specific recommendation as to the action to be taken.” Paragraph 85b. Moreover, the conclusion is inescapable *662that the same source has sought to place a substantial amount of pressure on the convening authority to accept the recommendation of his staff judge advocate as to “the action to be taken.” Paragraph 85c. Thus, it appears that the Manual and the author of the dissenting opinion are in overt discord over the question of whether a staff judge advocate lays down his reviewer’s pen when he recommends concerning a sentence in terms other than those of legality or the reverse.

Let us concede for the sake of argument, however, that the “primary” concern of a field review is the discovery of legal error. Does it follow that this function is the only one exercised by the staff judge advocate with respect to a record of trial? Of course it does not. It strikes me that in this case the staff judge advocate simply performed one of the other functions of his office in this setting- — and one which is certainly of considerable importance to the accused concerned.

But why are we at all preoccupied with the nature of a field review, or with whether the staff judge advocate here “reviewed” the record of accused’s trial? Article 6(c) of the Code — the provision of special concern to the dissenting judge — says nothing whatever about the drafting of a review. Indeed, it does not even make use of the term. Instead, it merely announces that, if one has served as trial counsel in a court-martial proceeding, then he may not thereafter “act as a staff judge advocate . . . upon the same case.” May not a staff judge advocate act as such with respect to a record of trial other than as a reviewer? I feel sure that he may.

IV

It has also been suggested that the action of the acting assistant staff judge advocate here, and that of his superior, the staff judge advocate, were concerned wholly with clemency. But how can this be known ? Why am I not able to assert with equal assurance that both of these officers firmly believed that they were acting solely with respect to appropriateness of sentence? I do not do this, of course — and for the reason that I cannot be sure. And one who is certain in these premises must indeed possess a clearer idea than I of the practical distinction between a recommendation of clemency and one as to appropriateness of sentence. There is undeniably a clear theoretical distinction between the power to grant clemency and the power to determine appropriateness. However, in a situation in which both authorities reside in the same functionary, it is a little difficult for me to be sure of which is being exercised. And I labor under the same dubiety as to the run-of-the-mine recommendation of a staff judge advocate in this area.

V

I suspect that my real difficulty with Judge Latimer’s approach is that it seems baldly to ignore the significant role of the staff judge advocate — indeed of the lawyer — under the Code and Manual. It must be granted, of course, that most of the language of these two sources, in treating of the matter at hand, relates to the staff judge advocate of a general court-martial convening authority. This is so for the plain reason, adverted to earlier, that many— if not most — special court-martial convening authorities do not command the services of a legal officer. However, there is nothing of which I am aware in either the Code or Manual which — expressly or impliedly — excludes from their general provisions the staff judge advocate serving a special court-martial convening authority who does not at the same time exercise general court-martial jurisdiction.

It seems safe to say that the Air Force — perhaps to a somewhat greater extent than any other Armed Service— has been able to supply professional legal advisors to the staffs of officers exercising only special court-martial jurisdiction. When they are present, such officers are generally treated no differently from those performing similar functions in higher headquarters, and by regulation are characterized as staff judge advocates. AFR 21-8, paragraph 4c, as amended, May 28, 1952. When such a convening authority is furnished with a professional advisor, it strikes me as absurd — as well as unfortunate in many respects — to regard the latter as *663functionally different from, and distinctly inferior to, his exact counterpart in a more elevated echelon. Especially does this seem true when he has in fact acted in his official capacity — -indeed has acted with respect to sentence appropriateness or clemency, matters peculiarly within the ambit of the knowledge and judgment of personnel of the convening authority’s command.

We are repeatedly told that a principal weakness of the current, but no longer new, system of military justice is to be found in its administration at the special court-martial level — this almost wholly because of the lay composition of the tribunal involved, and the absence of professional legal supervision in most instances. In the present case, however, the convening authority had been furnished with a legal staff, which should have, and had in fact, performed as such. Yet it is suggested that we should accord its members, and Lieutenant Jungman in particular, an inferior — even a trifling position. Such a view, it seems to me, simply sells the military lawyer short, and — to boot— violates the clear intendment gatherable from all four corners of the Code and Manual.

VI

Of course, Judge Latimer is correct in suggesting that a special court-martial convening authority is not “limited in the sources from which he may obtain information Tand advice] upon which to form an opinion as to the appropriateness of a particular sentence.” Neither, so far as I am informed, is an officer who exercises general court-martial jurisdiction. Either, I would say, is entirely free to consult, say, a member of his medical staff, the president of the court-martial which returned the findings of guilty, or “a guy named Joe.” Thus, I would in no way consider the trial counsel, himself, disqualified for this purpose. However, when the latter does express his point of view, I believe that he should make it entirely clear that he is doing so qua trial counsel, with all of the possible partisanship and zeal of advocacy not improperly inherent in that capacity— rather than as a staff judge advocate, safely cloaked in the sanctity of detachment imparted by the Code and Manual to that role.

But all of this seems quite beside the point. The Uniform Code provides clearly and simply that “no person who has acted as . . . trial counsel . . . in any case shall subsequently act as a staff judge advocate . . . upon the same case.” Admittedly, Lieutenant Jungman had acted as trial counsel in the case at bar. Subsequently — and within the very terms of Air Force directives — he acted as “a staff judge advocate . . . upon the same case.” This must end the matter so far as I am concerned — for I cannot torture the language of Article 6(c) into meaning other than that which it plainly says.