United States v. Wilson

FERGUSON, Judge

(concurring in the result) :

In United States v Hobbs, 7 USCMA 693; 23 CMR 157, and United States v Walker, 7 USCMA 669, 23 CMR 133, I disassociated myself from the majority’s method of disposing of a case by returning it to the board of review to permit that appellate tribunal to cure trial level error by an arbitrary reduction in the degree of the crime, together with an accompanying reassessment of the sentence. I believe error committed at the trial forum should be cured at that level by a rehearing rather than by a referral to a board of review for the approval of a lesser offense. The practice adopted by a majority of this Court is foreign to civilian appellate courts. The only apparent advantage such a practice offers is that it permits a ease to be disposed of without the necessity of a rehearing thereby resulting in a savings to the Government of both time and money. Such an advantage — if one in fact does exist — is a dubious one indeed and is a poor substitute for a full-dress rehearing at the trial forum. My associates, however, are firmly wedded to this procedure and I have been unsuccessful in divorcing them from it. Their views have established the law of the Court in this area and I now reluctantly concur in this method of disposition.