United States v. Allen

Quinn, Chief Judge

(concurring in the result) :

I concur in the result.

The pretrial investigation and the *640pretrial advice of the staff judge advocate are not mere formali- ties. They are substantial proceedings prescribed by the Uniform Code of Military Justice, and they constitute the military equivalent of essential pretrial procedures which obtain in the civilian community. See Talbott v. Toth, 215 F2d 22 (CA DC Cir 1954). A departure from the Code in the matter of these pretrial procedures will not make all subsequent proceedings null and void; but, in an appropriate case, a failure to adhere to the Code may constitute a ground for setting aside a conviction. Humphrey v. Smith, 336 US 695, 696, 93 L ed 986, 69 S Ct 830; United States v. Schuller, 5 USCMA 101, 17 CMR 101. See also Manual for Courts-Martial, United States, 1951, paragraph 34, page 45.

The claim of error in the pretrial investigation has no merit. The accused must be charged with the consequences, if any, resulting from the alleged omission in his statements to the investigation officer. The statements were short. They were personally signed by the accused. Presumably he read them. In fact, he does not contend otherwise. Hence, he certainly knew there were omissions. Yet, he chose to submit the statements, without addition or change. In effect, he changed his mind and decided to say nothing about the omitted details. As the accused, he had a right to say as much or as little as he desired. Having expressed his desires on two separate occasions, he cannot change his mind again after the trial, and advance the purported omissions as a basis for a claim of error.

As for the pretrial advice of the staff judge advocate there may have been, as suggested by Judge Brosman, no prejudicial violation of the Uniform Code. The date of the advice indicates that it was submitted after, rather than before, reference of the charges to trial. However, a proper advice was, in fact, prepared before the charges were served upon the accused. If the advice was actually submitted to the convening authority, he would have had before him the staff judge advocate’s professional examination of the expected evidence and his impartial opinion as to its sufficiency to support the charges. Cf. United States v. Schuller, supra. The staff judge advocate’s evaluation of the evidence and recommendation were in accord with his own appraisal of the investigation report. Under these circumstances there would have been no need for the convening authority to go through the “empty and useless gesture” of recalling his earlier order of reference for the sole purpose of reissuing it under a later dateline. United States v. Self, 3 USCMA 568, 572-573, 13 CMR 124. Since there is other prejudicial error, however, I need not decide whether this Court may properly assume either that the staff judge advocate’s advice is wrongfully dated or that it was submitted to the convening authority at an appropriate time.

Turning to the question of court membership, in my opinion, the power to excuse from attendance is an integral part of the power to select. It may, as in this case, actually control the membership of the court. Hence, the power to excuse should be exercised personally by the convening authority. Article 29 of the Uniform Code, 50 USC § 593, expressly recognizes this requirement. It prohibits absence or excuse after arraignment except for physical disability, challenge, or “by order of the convening authority for good cause.” See also Manual, supra, paragraphs 37c, 41c. If a member is absent without excuse by the convening authority, the accused may object to further proceedings. However, if he does not object, unauthorized absence of a member will not deprive the court of the right to proceed. The Manual sets out the applicable rule as follows:

“(3) Before arraignment. — The unauthorized absence of a member of a general or special court-martial from a session of the court may be a military offense, but his absence prior to the arraignment of the accused will not prevent the court from proceeding with the trial if a quorum is present. However, the trial counsel will report any unauthorized absence of a member to the convening au*641thority.” [Manual, supra, paragraph 41d(3).]

In this case the defendant objected. Thus, he preserved his right to be tried by a court composed of members appointed by the convening authority not lawfully absent or excused. It matters not that the evidence establishes his guilt. He is entitled to be tried in accordance with the requirements of the Uniform Code. He was deprived of that right. He is, therefore, entitled to a rehearing. Accordingly, I concur in setting aside the findings of guilt and ordering a rehearing.