(concurring in the result) :
I concur in the result for two reasons. First,_.I desire to join Judge BrosmaiiTnJiis reservations. Second, there are certain matters found in this record which cast such- doubt on the validity of the findings and sentence that no appellate court could find reasonably that this accused was granted a fair trial within the letter or spirit of the Code.
In making the latter assertion I do not consider the question of whether a permanent court is advis- able or inadvisable, nor do I reflect upon other policy considerations, which may be found in this record. I do, however, consider that if a permanent court system is in operation, care must -be exercised to make certain that several independent functions are not centered in one person. Here, the president of the court-martial became all-powerful and, in view of his. pronounced views and his opportunity to influence other court members, he should not have been permitted to sit after challenge.
In some ways this ease can be likened to the so-called “blue ribbon” civilian jury cases. Three senior officers were the cadre for all courts-martial in the District and they formed a formidable team. In this instance the order appointing the .court-martial designated seven officers as members. In spread of *54seniority they reached- -from ■ the rank of Rear Admiral to Lieutenant Junior Grade. The three permanent members outranked those who were appointed for temporary duty as the former consisted of a Rear Admiral, a Captain, and a Commander. The Admiral was assigned to the Twelfth Naval District by the Bureau of Personnel of the Navy, and he was detailed as permanent president of the court by the same authority. While orders appointing him as a member of the court were issued by the Commandant of the Naval district, the appointing authority hardly had the same free mental choice in selecting court-martial personnel as would a commander unfettered by orders from high, headquarters. I make no contention that the three permanent members were not qualified to sit on this or any other case, nor that we can or should look behind the Naval district order to test its validity. I mention the Department order only because it initiated a series of assignments which permitted the Admiral to perform in three complementary posts. Those were: the permanent president of .the courts-martial; the instructor arid orientor-of the members of the courts-martial; and the reporting officer on efficiency reports of the other permanent members of the courts-martial.
The Chief Judge sets out in detail the opinions expressed by the Admiral. As is pointed out in that opinion, it could hardly be contended that he was not fixed in his beliefs about certain concepts of law. He had openly declared that every member who appeared before the court-martial was guilty of some offense. He acknowledged the rules governing presumption of innocence and burden of proof, but he must have had some misconception about -both. I have tried to reason out how the mental processes of a mind possessed of his views could objectively determine the guilt or innocence of one charged with an offense. In doing so, I have been unable to escape the conclusion that he believed the presumption of innocence was not applicable in a general court-martial case. If he knew the accused was guilty of some offense because he was on trial, the presumption of innocence could never be riiore than a presumption that an accused did not commit the most serious crime charged. Under that belief, one accused of a crime would be required’ to prove his innocence before he could expect a finding of not guilty.
The impact of the Admiral’s views would increase in direct proportion to the influence he could exert on the other members of the court-martial. As will later appear, I do not mean to convey the impression that the Admiral attempted to exert any improper influence, but he did occupy positions which permitted him to mold opinions, be they good or bad. The Chief Judge’s decision deals adequately with his assign-merit as president of’ the court, so I pass that and dwell more fully on his roles as orientor of the court-martial and initiator of efficiency ratings.
■ The record discloses that the Admiral had been detailed, or he assumed the prerogative, to orientate all court-martial members on the law and their duties as officers of the court-martial. If he implanted in their minds the pronounced views he held, then all members of the-court-martial were misinformed in legal areas which would not be covered by the law officer. I have in previous cases expressed the view that we must find from the record that the members of the court-martial followed the law expounded by that functionary. I have no desire to depart from that principle, but this case offers a classic example of how misinformation given by one in apparent authority may lead a court-martial into error without the members failing to follow the instructions. The instructions sometimes given to court-martial members are meager and there are many fields undeveloped. This happens to be one of those cases. To make my point clear, I will deal only with an offense involved in this case. In instructing on desertion, this law officer merely stated to the court-martial members that they must find: that the accused absented himself without proper authority from his ship; that he intended at the time he absented himself, or at some time during his absence, *55to remain away permanently; that the desertion was of a duration alleged; and that it was terminated on or about the date alleged. It is to be noted that the instruction on intent was not amplified and nothing was said concerning the oft-expressed view that if an absence without authority is much prolonged, and there is no satisfactory explanation, the court may infer from that fact alone an intent to remain absent permanently. As pointed out in the opinion of the Chief Judge, the Admiral had a strong and abiding conviction that sixty days was a fixed factor in the formula for determining intent. If that concept was taught to the members of the court-martial in the orientation lectures, and if it was discussed in the private deliberations of the members, it would not be contrary to, nor conflict in any way with, the instructions of the law officer. It would, nevertheless, be erroneous and prejudicial. That formula not only fixed an arbitrary period for a prolonged absence, but it failed to consider the question of the reasonableness of any explanation offered by an accused. We thus have a situation where a senior member of the court is permitted to instruct on the law prior to trial and his students must deliberate in secret with him during the trial. The probabilities preponderate heavily in favor of their following his teachings. I, of course, do not believe the Code contemplated that a person who is detailed as president of a court-martial should be selected as the one to orient the other members on the law and on the procedure. By this assignment alone an impression would be created that he is an authority on both, and other court members undoubtedly would look to him to fill in the legal interstices in the instructions. The principles he would expound in the role of an instructor might — as they did here — become controlling on the issues. If they were not in conflict with the instructions given by the law officer, they would carry error into the secret deliberations and the instructor would be there present to perpetuate the error. That procedure smacks too much of a one-man operation. The lecturer from the stand would become the president of the court-martial and the leader in the deliberations. Be that right or wrong, his views on the law would be given undue weight.
There is yet another factor in this case which weighs in favor of the conclusion that the court mem- bers followed the Admiral’s unquestioned concept. He was not only the teacher and the 'proctor of the findings, he was the officer selected to render efficiency reports on the two permanent members of the court. In addition, he had requested permission to submit similar reports on other officers who performed as court members. This, of course, placed him in the preferred position of reporting on the manner in which court-martial members performed their duties. One of the traits requiring rating in an efficiency report is the judgment of the officer reported upon. Assuming, as we must, that the Admiral instructed the court members in the same vein as he testified in court, and assuming further, as I must, that the officers were left free to exercise their own independent judgment and to decide the case in accordance with the facts and their own conscience, independence on their part does not overcome the vice. They would have no reason to depart from the belief that sixty days of absence established desertion as a matter of law, nor from the view that persons tried before a court-martial were guilty of some offense. They were not instructed to the contrary on either of those precepts. I can understand how officers might feel free to evaluate factual disputes even in the presence of one who might report adversely on them. But I feel reasonably certain that in those areas they would not possess the same freedom of expressing their views as they would in a different personnel climate. But more to the point, the probabilities are that they would not contest an interpretation of the law as announced by the reporting officer. There would be no occasion for them to take issue, and always in the background would be the desire to accomplish a task to the satisfaction of a reporting officer. The task is being performed under his close scrutiny; he rates solely on the performance of du*56ties as a court-martial member; he is part of the deliberating team; and his satisfactory performance of duties is so closely tied in with the success or failure of the court that the correctness of its findings are of paramount importance to him. If his beliefs of guilt are fixed before trial, a finding of guilty of some offense is required; and if a contrary finding is returned, because the Government failed to prove a case beyond a reasonable doubt, in his view a miscarriage of justice results. One who voted for such a finding could hardly expect a commendation from him. Furthermore, if several findings of not guilty were returned during a reporting period, the efficiency report might reflect a lack of judgment. If the power to render efficiency reports, which usually vests in the convening authority, exerts any influence on court members there is much more here. Some of the insulating factors present in that situation are sadly lacking in this case. There the convening authority does not participate in the deliberations, his views on the law are not declared, his desires for a finding of' guilt are unexpressed, and the proceedings are detached from his immediate influence. Under the arrangement used in the present instance, the reporting officer is so strategically positioned that he hears all, sees all, knows all, and can report on all. He is the captain who plots the course to be followed and the deviates are well known by him. A fair and just trial cannot flourish in that climate.