(concurring in the result) :
I concur in the result.
Were it not for the attempt to excuse defense counsel’s failure to grapple with the situation in the trial forum, I would not record my reservations. However, I believe it unwise for this Court to suggest that an objection or challenge by defense counsel was not required, because he might have prejudiced the court-martial against his client. For the purposes of this case, the best answer to that contention is that the president had spoken forcibly and without equivocation to the effect that he and the other court-martial members were so antagonistic to the accused that conviction was bound to follow. A timely objection could not have worsened the cause of the accused and it might have helped. Of course, the law officer should have exercised some control over the proceedings but that does not discharge the defense counsel from his primary duty to protect his client. Both were derelict in the performance of their assigned tasks. Here the accused was openly accused of being a perjurer and guilty of at least two offenses by one or more court members who were supposed to be impartial and unbiased, and the majority find the “do nothing” role of his advocate an excusable practice.
In my view, the principal opinion overlooks the fact that defense counsel has some duty to keep error from creeping in, and the further duty to have it corrected or removed at the earliest *529possible time, if it does find its way into a hearing. Every challenge may offend the person against whom it is directed, and perhaps other members of the court-martial; but if grounds for disqualification become apparent during the course of a trial, the challenge should be exercised regardless of nettled sensibilities. This record bespeaks a shocking disregard of the duties of one who is to weigh the guilt or innocence of an accused person, yet who knows whether an objection timely made might not have changed the course of the inquiry. To say the least, proper representation would have made it possible for us to identify the offenders and pass intelligently upon the mental processes of those members of the court-martial who had apparently joined hands with the prosecution. As the case now stands, this Court corrects the error without an objection and it could have accomplished the same result even had someone’s feelings been hurt by counsel preserving the error properly. If the latter course had been pursued, it would have been a much easier and more satisfactory task for us, because we would know full well that defending counsel had fought to prevent the irregularity from occurring. While this record speaks to the contrary, the rule announced in the majority opinion makes legal skullduggery possible and offers us some difficulty in separating trickery from skill or ignorance. Surely if we wish to encourage an ever higher standard of proficiency in practice before military tribunals, we should speak out against this sort of inaction by defense counsel.
Even were I to accept the philosophy —which I do not — that counsel should be timid ere they offend a court member, this ease is a poor vehicle to support the rule. The trial had not been long under way when it became clear that certain court-martial members were determined to fix responsibility for this homicide upon someone, and in short order. First of all, they directed their misguided efforts on a prosecution witness, and openly suggested he was testifying falsely on what turned out to be a collateral matter. They were, however, quite willing to accept his version of the tragic accident. When the accused became a witness in his own behalf, they shifted their line of .attack and it became crystal clear that some of the questioners were anti-accused. That situation was bad, but it was made worse by defense counsel, who twice permitted his client to be recalled to the witness stand and badgered by court members who very definitely charged him with lying. The law officer did have the foresight to advise, defense counsel that the accused need not return to the stand, but even that advice was disregarded. I doubt that feelings would have been ruffled had defense counsel seized upon that proffered right.
Anyone reading this record would characterize the proceedings as a trial by ordeal, and I am at a loss to understand why defense counsel remained so unaware of the unjudicial attitude of court members. The author Judge discloses adequate grounds for error and prejudice, but to those I add the modus operandi of the court. After both sides had rested, the court recalled the accused. He was then challenged with the testimony of all witnesses, accused of falsifying when he had testified for himself, and given a choice of admitting perjury or of being convicted. When he protested his innocence, he was excused from the chair, and a witness was called to dispute his protestations of freedom from sin. He was then recalled by the court, his attention was directed to the newly produced evidence, he was informed that he was falsifying, and finally he was informed that the court would be willing to listen if he would change his story. This is the final colloquy, and it establishes quite conclusively why the court-martial required only five minutes to find the accused guilty of involuntary manslaughter, an offense which could not be affirmed by the convening authority because of insufficiency of the evidence:
“Q. These are not the issue, Private Smith. The issue is were you at the KM AG Club or were you not; were you in the vehicle or were you *530not; were you driving the. vehicle or were you not?
A. No, sir.
“Q. All the circumstantial evidence indicates you were driving the vehicle, and there is no object in persisting in tell [sic] the court that you were not at the KMAG Club. If you want to tell the court the truth, the court will be glad to listen? Do you have anything to say?
A. No, sir.”
We have never invoked the doctrine of waiver when to do so would work a manifest miscarriage of justice. United States v Fisher, 4 USCMA 152, 15 CMR 152; United States v Parker, 6 USCMA 75, 19 CMR 201. A fundamental guarantee of military law is that an accused who pleads not guilty has a right to a hearing before impartial and unbiased fact-finders. While their opinion is molded as the drama unfolds, they should not prejudge an accused prior to the time when all of the evidence has been presented and they have been instructed on the law. Here the record does not establish how many court members participated in the offensive questioning, but from the number of questions asked and the posture of the. record, it is reasonable to suppose that more than just the president chose to hammer away at the accused until his defense collapsed. Even if I be wrong as to number of members involved, at least the president of the court transgressed, and because of his rank and prestige, he may have exerted considerable influence on other members. As to him, it appears certain that he changed his cloak of a juror for the sword of a prosecutor. He somehow or other became obsessed with the idea that he must establish guilt. His questions indicated the zeal of an advocate not the reflection of one who is to judge. The consistency of the accused seemed to rankle him, and his comments show the utter futility of giving instructions and requiring the members to deliberate.
To escape the rule that a waiver will not be imposed if it results in a miscarriage of justice, the Government advance the argument that the error, if any, was harmless because the evidence of guilt is compelling. I do not so find it. Trial counsel apologetically announced that some of the Government witnesses could not be held up as paragons of honesty. Found in his closing remarks is a statement that their testimony could be characterized as ‘'real shaky.” That comment, of necessity, included the witness Beau-lieu, who was the chief witness for the prosecution. However, it is not necessary to weigh the credibility of witnesses or to reconcile the many conflicting statements found in this record. It is sufficient for this point merely to say this: The issue of importance was the identity of the driver of the vehicle. If prosecution witness Beaulieu was to be believed, the accused was the driver of the truck. If the accused was to be believed, he was not present at the time of the collision. If both were in the truck, a disinterested Korean witness placed Beaulieu at the steering wheel and the accused in the passenger’s seat immediately after the collision. His testimony argues strongly against Beaulieu and in favor of the accused. No one else testified on the crucial issue and that factual situation does not compel a finding of guilt by reasonable men.