United States v. Walters

LatimeR, Judge

(concurring in part and dissenting in part) :

I concur in part and dissent in part.

The first important question in this case offers us an opportunity to fill in one of the interstices in military justice procedure. While the author judge has reached the correct conclusion on our right to consider the out-of-court conferences, I do not believe his reasoning will bear up under close examination. I, therefore, offer my views on the procedural question labelled “the battle of affidavits.” I shall first state my conclusions, then set out the reasoning which leads me to my results. I conclude the documents filed at the level of the convening authority are part of the record on appeal and before us properly, while the one filed at the time the case was in the bosom of this Court is not.

I cannot adopt the certificate of correction approach because it is an artificial adaptation of a means to prevent an alleged injustice and it is not necessary to resort to artificiality to reach the error complained of herein. Moreover, it may miss one important step in military justice procedure, i.e., some officer or judicial tribunal with authority to weigh facts must consider and decide the issue. I use the word, artificial, because if the issue was not presented to and decided by the court-martial, then it did not occur at the trial and an arbitrary treatment of post-trial papers as certificates of correction is contrary to well-known methods of raising matters properly for the first time after trial. Furthermore, the court’s reasoning, that whether a document is part of the record depends upon whether the irregularity occurs before or after findings, is not genuine. The time an irregularity happens should not be the touchstone, as all out-of-court incidents which deny, an accused a fair trial must, of neeessity, happen before the trial is over, but they are not all part of the record of trial. Those which occur subsequent thereto may prejudice his rights to an adequate appeal and be part of that record but they do not infect the findings and sentence as such. The criteria I would rely on to determine whether the documents reflecting out-of-court irregularities are in the record on appeal and can be considered by us are the time and manner in which the issues were raised and by whom they were decided. The Code recognizes that matters dehors the record may be raised properly before a board of review, and before this Court, by a petition for a new trial, and those petitions may be founded on circumstances and events which occurred prior to findings. In petitions for new trials, certificates of correction need not be used to frame the issues; and I fail to see why written documents composed in any legal and recognizable form, which are filed with the convening authority and which seek to invoke his power to correct injustices that brought about an unfair trial, should not be considered as petitions for rehearing. One can hardly say the issue in this case was presented to and passed on by the court-martial, and yet those are the proceedings which should be reflected in the record of trial. That is not to say that had the same issue been presented to and considered by the law officer or the court-martial, it would not be part of the record of trial. But the timing makes a difference; and I fail to understand how officers of a court-martial can certify to incidents which were raised after they had completed their task. In short, the method adopted by the court co-mingles trial issues and collateral issues and I would prefer to keep them separate and apart.

I might fortify my reasons by referi ring to the particular documents in this case. All that appears in the record are four unsworn but signed statements from four parties participating in the trial which relate different versions of two events. Not one fact contained in them was brought properly before the court-martial. If I assume that the collateral proceedings were initiated by counsel for the accused, a fact which is *638not supported by the record, then I pose the following question. Can counsel for one convicted of and sentenced for a crime add to a record of trial by attaching to a record in the hands of a reviewing authority a signed letter in which he states there were irregularities which happened out of the presence of the Court? If he can, then every record becomes subject to revision by the simple expedient of writing a letter to the first reviewing authority. In this instance, defense counsel’s own statement merely avers he is calling the out-of-court hearings to the attention of reviewing officers and if that amounts to a certificate of correction then it is a most informal process. Certainly if all I could find in this record were four un-sworn statements attached to the record of trial, I would have no hesitancy in declaring that we could not consider their contents. I would arrive at that conclusion regardless of when it was alleged the irregularities occurred. Furthermore, we should not consider letters addressed to a convening authority in the nature of certificates of correction. After all there is some merit in requiring compliance with rules of procedure and they should not be warped because the dispute in facts is not serious.

We are not without power to consider the merits of this controversy and I can find a well-accepted and legal method of considering the documents. There are certain well-recognized legal means by which issues can be framed. If this same issue were not raised until the case had reached the board of review or this Court, it would be incumbent upon counsel for the accused to file a petition for a new trial supported by affidavits. Counsel for the Government would be afforded an opportunity to file counter-affidavits and the board of review or this Court could proceed by one of two methods. If the petition and affidavits on their face failed to show that the petitioner was entitled to any relief, then the petition could be denied. On the other hand, if they were sufficient or either party desired to present further evidence, steps could be taken to see it was obtained. That process permits the framing of issues, the taking of testimony, and it affords each party an opportunity to be heard. If necessary, a factual determination could be made and a decision reached. As previously stated, the Code recognizes this type of procedure by providing that when the case is on appeal, at any time within one year after the convening authority has acted, the accused may petition for a new trial. I am of the opinion that comparable proceedings can be recognized by all reviewing authorities. I do not believe that Congress, when it mentioned the time element of one year after the action of the convening authority, intended to preclude asking for similar relief prior to the time of his action. Rather I am convinced that it concluded the convening authority possessed that power and could exercise it on his own motion, if he were inclined to act. It would indeed be an expensive absurdity to permit a board of review, or this Court, to grant a new trial on the well-recognized grounds of fraud on the court, and at the same time deny the first reviewing person the same authority when he had as much or more power than subsequent reviewing authorities.

The Uniform Code grants the convening authority the right to disapprove the findings and sentence of a court-martial and to grant a rehearing. It grants him unlimited power to benefit an accused as Article 64, 50 USC § 651, limits his determination only by his sound legal discretion. The Manual amplifies the Code and paragraph 866 enumerates the matters he must determine before he can approve the findings and sentence. Subsection e of the paragraph is a general clause which requires that he determine there are no errors in the proceedings which materially prejudice the substantial rights of the accused. That particular subsection refers to paragraph 87c of the Manual, and an illustration is used therein to show what might be considered:

“Regardless, however, of the test in the subparagraph above, if the error is such a flagrant violation of a fundamental right of the accused as to amount to a denial of due process (e.g., when the disloyalty of defense counsel directly aids the prosecution) the finding must be disapproved re*639gardless of the compelling nature of the competent evidence of record.”

I am content to use the illustration as the basis for an argument that the convening authority may permit a formal or informal hearing before him. Ordinarily disloyalty of defending counsel will not be reflected in the record of trial. One very appropriate method by which I believe this could be called to the attention of the convening authority would be by petition for rehearing supplemented by accompanying affidavits. I do not believe that Congress or the President intended to grant wide discretionary powers to him, and then defeat the grant by requiring application of the strict rules of procedure governing appellate courts. Neither do I believe they intended to grant an accused the right to have a convening authority grant a rehearing for any matter which denied accused a fair trial and not grant him a remedy to reach it. Common sense dictates that issues which go to the very heart of a fair trial should be raised at the first opportunity, and to require an accused to wait until his conviction had reached a board of review or this Court before he could raise matters affecting the integrity or fundamental fairness of the trial would be costly and time-consuming, and inconsistent with orderly appellate procedure. The fact that due diligence may be involved in this type of a hearing argues for an early disposition even though it might not have been present in this instance. The convening authority has always been considered an important and necessary part of the trial and appellate processes of the court-martial system and I am positive that no member of the court is inclined to limit his authority to consider matters which may tend to benefit an accused. Certainly all I demand is that proceedings be initiated before he acts. While the Code and the Manual do not prescribe the precise method by which a denial of a fair trial may be brought to his attention and preserved for appellate review, I believe this case affords a vehicle for us to prescribe the means. The one adopted by the Court is, however, far from the best.

A preferred practice would be to file a petition for rehearing setting forth the reasons why a fair and impartial trial was denied the accused. The petition should be fortified by affidavits of the parties having knowledge of the facts. Copies of the petition and affidavits should be served on trial counsel, and if there is any merit to the contention the Government should be afforded an opportunity to meet the issue. The convening authority should then consider the questions raised and he should pursue the matter in the same manner as would any other fact-finding body. If he concludes the allegations of the petition state a cause for relief, and they are supported by evidence, he should grant a rehearing. If he concludes otherwise, then the motion should be denied. The pleadings filed, the evidence taken in support thereof, and the ruling made become part of the record on appeal, to be reviewed by the board of review and possibly this Court. While such formality may not be demanded, it is desirable or the issues may not be preserved adequately for review. This is not an unknown method of attacking the fairness of a trial or of raising out-of-court incidents. While the steps I •have detailed are not prescribed in the Code or the Manual, implicit in its provision is authority for my contention that the error is reachable in some such manner. If other methods are to be used, it is of importance to remember that the basic requirement of any proceeding is that each party have notice of the contemplated action and a fair opportunity to present its side of the dispute.

While the procedure used in this case was informal and does not meet the standards which I have prescribed, for the reason I hereinafter mention, the Government is precluded from contending it fails to meet minimal requirements. The record does not show the manner in which this proceeding was initiated. The convening authority may himself have heard of the incident and concluded to have the facts developed. Again, it may be it was initiated by either defending or trial counsel. The reason for the uncertainty is that the documents are not properly captioned; the dates the letters were submitted are *640not shown, unless they were filed on the days of execution, and one is undated. If they were filed on the dates of execution, statements of the Government officials were filed prior to those of the defense. However, regardless of the informality, the convening authority and both parties were content to treat them as sufficient to present the issue and call for a ruling. Had the prosecution elected to require a more formal presentation, it could have demanded the filing of an initiatory pleading and insisted that the testimony be submitted in affidavit form or under oath. Likewise, defending counsel could have required that the Government formalize its contribution to the dispute. Instead of demanding formality, all parties at that level were satisfied and the matter in dispute was decided by the convening authority. Irregularities in titling papers can be waived; and in this instance there can be no complaint about lack of notice as each party was afforded an opportunity to present its side of the issue. If a convening authority, with power to decide a question, and counsel for the Government are satisfied that a matter is before that authority, and he acts, they are estopped from contending the predicate for his action is not part of the record. For the foregoing reason I would necessarily hold that the post-trial proceedings before the convening authority and the statements contained in the letters were in substance a proceeding for rehearing and properly in the record for the purpose of review.

Because I believe that collateral matters which involve the resolution of factual disputes must be treated in substantially the same manner as questions of fact posed at trial, I would strike the affidavit filed while the case was on appeal. Had the Government requested permission to furnish additional evidence to present to the reviewing authority, or had the accused desired to be accorded the same right, a request should have been submitted to the reviewing officer. Parties cannot litigate factual matters at one level and seek merely to strengthen their case, or weaken their opponent’s, by filing additional affidavits after a decision has been reached and the case is on appeal. All evidence should be presented to the fact-finding body and, except in unusual situations, it is too late to strengthen a factual issue after it has been decided. The principles controlling collateral issues are the same as those governing the trial proper.

This brings me to the heart of the controversy. My associates seem to treat the issue as one of originality in this Court. I do not. One reviewing authority with fact-finding powers hp,s passed on the question involved and I consider our review limited to a question of whether the ruling of the convening authority was incorrect as a matter of law. If we were to use that test, the conviction would have to be sustained as the facts contained in the post-trial statements would support clearly a finding in favor of the prosecution. However, for the purpose of deciding this case, I will consider the evidence most favorable to the accused. Prior to discussing the out-of-court conferences, I shall discuss the three incidents my associates use to bulwark the conclusion that the law officer fundamentally misconceived his duties as a judge. There is a mild concession in the Court’s opinion to the effect that the law officer was engaged in a trial of a difficult case. I concur in that concession. Moreover, defending counsel did his best to aggressively defend his client. In that setting it is not difficult to single out comments made in the heat of battle from a record and inflate them to the proportions of serious breaches of judicial deportment. In this instance the “in court” incidents were, in my opinion, kept within the bounds of a fair trial and perhaps the most persuasive way for me to meet the arguments of my associates is to reproduce the record. There are three instances which are referred to in the majority opinion. In chronological trial order they are found in the following separate distinct comments by the law officer: (1) A statement made in a course of ruling on exclusion of witnesses, (2) a reference to defending counsel returning to law school, and (3) a remark about defend*641ing counsel being presumptuous. Torn out of context and presented in a most unfavorable light, they have a tendency to create the impression that the law officer spent his time berating defense counsel. My reading of the record convinces me to the contrary. These instances occurred during a vigorously contested trial which occupied the better part of five days. It is conceded that the number might be unimportant if they were of an aggravating nature, as one untimely comment might have an adverse effect on accused’s defense and the good faith of his counsel. But we are not presented with that kind of a record and I suggest we look at these three through the medium of the written words.

The background of the first may be gleaned from the following statement. The trial stage had progressed through the arraignment; trial counsel had presented his authorities; defense counsel had waived their presentation; and trial counsel had just announced he would like to make an opening statement. The record furnishes us with complete information of what followed, and the relevant part is as follows:

“Law OFFICER: One moment. Are any of the people sitting in the audience to be witnesses in this case? Are any of the people sitting in the audience agents or representatives of persons who are to be witnesses in this case?
(Several persons withdrew from the spectators’ section of the courtroom and withdrew from the courtroom altogether)
Law OFFICER: Does the defense have any objection to the action taken by the law officer?
Defense : The defense possibly has an objection to a discussion with the law officer by the prosecution out of the presence of the defense.
Law OFFICER: State your objection. We will note it on the record.
Defense : I have stated it. That’s my objection.
Law OFFICER: It will be noted.
Defense : Prosecution discussed this matter with the law officer without the defense being present.
PROSECUTION: I’d like the record also to reflect, if the law officer please, that any discussion that took place between the law officer and the trial counsel took place before this court was called to order and that the only statement made by the trial counsel to the law officer was that witnesses were present in the courtroom with their attorneys.
Law OFFICER: The whole matter is insignificant and not worthy of any more comment. There is no rule that I know of that precludes the prosecution’s discussing something with the law officer out of the presence of the defense counsel.”

The next quotation from the record must be considered in the light of what had occurred previously. On a previous day it appeared that the trial might be delayed because of the failure to have witnesses available. The law officer directed defense counsel to have their witnesses available on the following morning at 9 o’clock. Individual counsel, in no uncertain terms, informed the law officer he would try his case as he pleased. Near the end of the taking of testimony in the fourth day all parties had finished with a witness and it appeared the taking of evidence might be concluded. This is the relevant part of the colloquy with which we are concerned.

“Law OFFICER: Does the court members have any pleasure with respect to continuing at this time without dinner?
PROSECUTION: I want to ask this now. The prosecution has one rebuttal witness and if he can have just a few minutes to work with defense on a stipulation . . .
Law OFFICER: Let’s have a five minute recess.”

After the recess, defending counsel presented a stipulation which contained evidence of good character of the accused. The colloquy continued after the stipulation was admitted.

“Defense: This is an oral stipulation to be admitted into the record. *642We defer to the prosecution at this time who is desirous of calling a rebuttal witness out of order.
PROSECUTION: May I proceed, sir?
Law OFFICER: What is the status of the defense at this time?
Defense: The defense is not determined whether it will rest its case yet until after the supper hour. The prosecution apparently has this witness present.
Law OFFICER: Aren’t you being presumptious [sic] in presuming that we are going to eat?
Defense: I think that is a fair presumption to make.
Law OFFICER: Aren’t you ready to proceed at this time?
PROSECUTION: Sir, I have a rebuttal witness. The witness is available at the present time. Defense counsel has asked me whether I would consent to letting him wait to make his decision as to whether he will rest his case at this particular time, and I said it was perfectly all right with me, but I asked him if he would let me call a rebuttal witness out of order. Defense counsel says that he has no objection, and if the court sees no objection, I would like to call the rebuttal witness at this time.
Law OFFICER: Call your witness.”

In order to present the third instance in its true perspective, it is necessary to state that trial counsel was examining a witness on an apparently inconsistent statement. Without the prompting of defense counsel, the law officer interjected himself into the examination and this is the part played by the cast of characters:

“Law Officer: Is this the prior inconsistent statement you are proving?
Prosecution: Just a moment.
Defense: I will object.
PROSECUTION: State your objection.
Defense : It’s improper.
Law Officer: Sustained.
Defense : I feel like I am back in law school.
Law OFFICER: It might not be a bad idea.”

I shall not belabor my opinion by arguing that the law officer dignified his calling by his comments, but I am considering the guilt of the accused and not the shortcomings of the presiding judge. The latter are only important if they can be converted into conduct prejudicial to the accused. To realize how little they could bear on that subject, one need only keep in mind that no act or statement bears on the guilt or innocence of the accused or suggests any opinion by the law officer on the merits of the cause. At worst they are unnecessary trial banter which is present in many hotly contested law suits but they are not of such a damaging character that the triers of fact would be swayed in their judgment on the merits. To convert these incidents into prejudice is to raise minor imperfections in human behavior to the level of an unfair trial. Some latitude must be allowed for comments made during unexpected happenings as time does not permit perfection in the choice of words.

I pass now to the out-of-court conferences. Two references to the record might throw some light on this issue, particularly in regard to the holding that the law officer embarrassed the defense. The first sheds light on the legal capacity of individual counsel. Parenthetically, I might add assistant defense counsel was a major who had been certified by The Judge Advocate General of the Army and he seems to be the forgotten man. In relating his own .qualifications individual counsel stated:

“Individual Counsel, M. Philip Lorber is a member of law firm Lor-ber and Yogel, practicing law in this command by special permission of HICOG and USAREUR. I am a member of the Bar of the Supreme Court of the United States and a Lieutenant Commander in the U. S. Naval Reserve with a Legal Specialist designation.
“I would like to be heard and I would like to state that in twelve years that I have been before court-*643martial boards in the Army and Navy . .

The second reference compromises in some degree the claim that the law officer involved defense counsel in a difficult position when he suggested the latter might enlighten the court-martial members on German law. At one stage in the course of the trial defense counsel called a colonel to the witness chair as a character witness. After his direct and cross-examination had been completed, a court member sought to question him. Without any prompting on the part of defense counsel, the law officer refused to permit the question to be answered on the grounds it was outside the scope of the direct examination. He, however, suggested that if the court desired to make the witness its own, the question could be answered without the necessity of holding the witness for recall, a practice which I venture to suggest is not without precedent. Before permitting an answer, he asked defense counsel if there was any objection. Counsel refused to state whether he would or would not object as he contended it would place him in the embarrassing situation of arousing the ire of court members if he opposed an answer to the question. If the court members were uninformed about the inferences they should draw from the acts, conduct, and tactics of defense counsel prior to that time, the matter was set at rest by the law officer when he stated:

“Law OFFICER: Mr. Lorber, as you are here defending the rights of the accused nothing can put you in an embarrassing position. Your duty, as you and I know it, is to safeguard the rights of the accused.”

In the light of this and other incidents reflected in the record, I have no doubt that members of the court did not convert Mr. Lorber’s refusal to express an opinion on the German laws into a hostility toward the accused.

The remaining errors which the court piles on those previously mentioned to find prejudice arise out of two. out-of-court transactions. We are all agreed that the first conference on January 20, 1953, was relatively unimportant. That conclusion is inescapable when the evi-dentiary contents of the statement of defense counsel is weighed. It contains no showing of any impropriety or irregularity, except the presence of the law officer in a room with court members; and it avers the reason the alleged error was not mentioned until sometime after trial was that since the date of the occurrence defense counsel has been more fully apprised of the law. He, of course, had a fair appreciation of the law on unauthorized communications on the first day of the trial when he registered his objection to the trial counsel talking over courtroom administration with the law officer.

The second conference is the only irregularity appearing in the record which I find of sufficient importance to warrant serious consideration. However, when it is viewed as a part of the total picture, it vanishes into obscurity. The written statements to support the events were prepared some three months after trial; and, as can be expected, in certain details they appear inconsistent with the record of trial. I need not point out these inconsistencies as I will accept defense counsel’s statement at face value. According to him the subjects discussed were: (1) hours of attendance; (2) time of adjournment; (3) the procuring of additional evidence, particularly with respect to whether the accused still had the tires and the car; and (4) the status of German laws. One cannot contend reasonably that discussion concerning hours of attendance and time of adjournment are of any significance prejudicially speaking. More to the point on those matters is the fact that counsel for accused knowingly consented that they be the subject of discussion. The subjects encompassed in my third subdivision are not identified clearly by counsel’s statement; but, accepting it in its broadest implications, I believe the record will establish that everything mentioned fairly in the affidavit was the subject of debate in open court in the presence of the accused and his counsel. To sup*644port this statement, I will quote two exchanges between the president and other members of the court which are found in the transcript:

“PRESIDENT: The court would like to determine at some time during the proceedings what kind of tires Col Walters has on his car, if he still has a car.
PROSECUTION: Yes, sir. I will try to determine that.”
“PRESIDENT: Do we want to bring up this question of witnesses in order to aid calling the witnesses for the trial.
Law OFFICER: I might say for the record that the proper time to ask for additional witnesses, and as we call them ‘court witnesses’, would be at the end of the case. But since it would be more convenient and would give people an opportunity to obtain these witnesses, the court might now make known its desires and requirements.
PRESIDENT: The court expects the testimony of Mr. Karle or a suitable deposition; a tax expert to answer questions relative to laws governing exemption from liquor taxes in the Federal Republic; German Taxes; a qualified witness to testify as to Lt Col Walters’ functions and duties during the summer and fall of the year 1951; the testimony of Capt Marcus and Col Cassidy. That completes the list of witnesses at this time.”

These statements disclose the area of uncertainty in the minds of court members and identify generally the eviden-tiary fields which were to be explored. The subjects of discussion in the out-of-court colloquy are encompassed within the enumerated fields; and it would, therefore, appear to me that for the law officer and members of the court-martial to discuss the same information in the presence of defending counsel, but not in the presence of accused, would not infringe on any substantial right of the accused. If there had been ground for any objection on the part of the accused or his counsel to the court discussing with the law officer the necessity of calling additional witnesses, there was ample opportunity to note the objection while the court was announcing its desires in open session. Defending counsel did not register any complaint; but, on the contrary, he joined in the discussion directly with the president of the court.

If there was any subject discussed in the questionable conference which remotely suggests prejudice, it must be found in the dissertation on the status of German laws. In disposing of that issue, I first reiterate the language found in the majority opinion which states in substance that the “off the cuff” opinion given by the law officer in the anteroom became the law of the case when he instructed the court-martial members at the end of the trial. Those instructions were given in the presence of accused and his counsel. No objections were taken and there is no valid contention that the instruction incorrectly states the law. We have held under more aggravated circumstances that error committed out of court may be cured by repeating the performance in court; so this incident must be measured to determine the possibility of prejudice which might flow from the asserted inferences suggested by my associates. My imagination must be lacking for I am unable to find in the conduct of defense counsel any predicate for a reasonable person to draw the inferences so carefully spelled out in the court’s opinion. In the quiet of an appellate chamber many finely drawn inferences can be supposed, but during the trial of a case the court personnel have their time occupied with the merits of the case. If any unfavorable inference might have been drawn from defending counsel’s failure to render any opinion, it would be that he was willfully withholding information the court was entitled to be given. If that were the inference, which I cannot believe, it would amount to a belief that counsel was dishonest with the court-martial and he would be thoroughly discredited. The Court’s opinion could not stand if that conclusion was reached as it would require skillful manipulation to hold that that type of prejudice did not infect all findings. If we are to venture *645into a world of reality and not one of speculation, then I suggest court-martial members are human and they may form opinions of defending counsel; but if they do, and it is unfavorable, the predicate is found in the behavior, deportment and tactics displayed throughout the trial and I find nothing in this record to suggest to me that the members of the court-martial took umbrage of counsel’s method of conducting his defense and literally “took it out” on the accused. According to defense counsel’s statement, trial counsel, not he, broke up the meeting by announcing the discussions should be discontinued, so it is a bit difficult to conceive why court members should be offended against the accused. It is informative to mention that while appellate defense counsel chose some nineteen errors to substantiate a claim of cumulative error, a claim that defense counsel was discredited was never mentioned. The individual trial counsel in this case was a Lieutenant Commander in the Navy, with twelve years’ experience in Army and Navy court-martial cases; he was a member of the bar of the United States Supreme Court; had been authorized by United States authorities to practice in Germany; and I believe he will be astonished to find that this Court suggests the court-martial members might have inferred that his refusal to answer was because a true answer might prejudice his projected arguments. Perhaps I should ask, were they to be founded on principles which were not the law?

It would serve no useful purpose for me to argue each inference which my associates suggest might have entered the minds of the court-martial members. Suffice it to state that the difficulties I encounter in this ease are two-fold. First, I cannot convert the errors mentioned by my associates into a mass of sufficient size or importance to have any measurable impact on the finding of guilty on any specification. Second, if I could join with them on the shock of the law officer’s acts, I would be required to reverse all findings. In connection with the first difficulty, the alleged effect is so imaginary that it cannot be seen regardless of the magnifying power of the spectacles used by the observer and it cannot possibly reach the level contended for by the Court. I do not believe any reasonable man who is charged with the responsibility of determining the guilt or innocence of an accused person would toss the alleged irregularities on the part of the law officer, as to the first specification, into the scales of justice and permit them to influence a decision.

Assuming for the sake of argument that I am in error on the first ground then the character of the errors are such that I would be required to vote for a reversal on all specifications. Generally speaking, there are six grounds that the Court uses in arriving at the totality of cumulative error. These are: (1) The law officer fraternized with court members, (2) the acts gave the appearance of “impurity” on his part, (3) he was impatient with defending counsel, (4) he placed defending counsel in a position where the latter was compelled to criticize him, (5) he placed defense counsel in a difficult position by requesting an opinion on the law, and (6) a question was asked by a court member concerning the conspiracy charge which the law officer ruled was improper and it was not answered. The first four grounds would affect all specifications and their nature is such that if accused was entitled to a rehearing on one offense because he was denied a fair trial he should be given the same consideration on all offenses. As to the fifth ground, the same reasoning can be applied. If inferences mentioned in the Court’s opinion can be drawn reasonably, they would affect adversely the integrity of defense counsel and, if he lost face with the court members, the impact would affect his legal and factual contentions on all offenses. The last ground is so trivial that I would give it no weight.

The evidence on the specifications affirmed by the Court is compelling but the same thing can be said about the particular one reversed. The accused took the stand to testify on one specification but did not offer any testimony on the conspiracy charge. There is no dispute in the evidence and while the testimony of witnesses who testified *646for the Government was reluctantly given it was ample to compel a finding of guilty. Moreover, accused admitted to a fellow officer his complicity in the conspiracy. Viewing the record from its four corners, the accused is entitled to all or nothing.

I would affirm the findings and sentence.