United States v. Davis

FERGUSON, Judge

(dissenting):

I dissent.

By its decision today, the Court ef*415fectively reverses our holding in United States v Brown, 10 USCMA 498, 28 CMR 64, and leaves the law regarding denial of speedy trials in chaotic condition. Moreover in order to attain this result, we have gone beyond the limits of our grant and permitted the Government to reach a basic issue which, because of the lapse of time, it could not certify to us.

The accused pleaded not guilty to a charge of attempted arson, in violation of the Uniform Code of Military Justice, Article 80, 10 USC § 880, and guilty to a charge of larceny, in violation of Code, supra, Article 121, 10 USC § 921. He was found guilty of both offenses, and sentenced to bad-conduct discharge, confinement at hard labor for twelve months, forfeiture of $85.00 per month for a like period, and reduction to the lowest enlisted grade. The convening authority approved the sentence. The board of review concluded that the law officer erred prej-udicially in denying accused’s motion for dismissal of the charges on the basis that he was not granted a speedy trial. However, it found the error was partially purged by accused’s plea of guilty to larceny. Accordingly, it dismissed the attempted arson charge, but affirmed the findings of guilty of larceny, appropriately reassessing the sentence. We granted review on the narrow issue whether the accused’s right to a speedy trial was waived by his subsequent plea of guilty.

My brothers conclude that accused’s plea did not have this effect. With this proposition, I have no disagreement, for both Judge Latimer and I expressed that belief in our separate opinions in United States v Brown, supra. However, the author of the principal opinion probes beyond our grant in order to determine whether the board of review, as a matter of law, erred in concluding that the law officer ruled improperly on accused’s motion. It is in this area that my views sharply diverge from those of my brothers, and an examination of the record will serve to demonstrate the basis for my inability to join them.

At the commencement of his trial, the accused moved for dismissal of the charges on the basis that he had been denied his right to a speedy prosecution. He pointed out that both offenses were alleged to have been committed on December 7, 1958. They consisted of the larceny of various items from the base hobby shop and the attempted destruction of the premises by fire in order to destroy any evidence against him. Accused was apprehended in the midst of his preparations for the burning and immediately confined. On December 16, 1958, he confessed his guilt. On December 18, he enlarged upon that confession after an adverse polygraph examination disclosed he specifically intended to commit arson. Significantly, the same examination established his innocence concerning two other suspicious fires which occurred on the same naval station.

The pretrial investigation of the charges was held on February 13, 1959. The subsequent report was forwarded to the officer exercising general court-martial jurisdiction, with a notation that the delay was occasioned by “further investigation,” and remained in that officer’s control for two months prior to its reference for trial on April 23, 1959. The trial counsel stipulated to the accuracy of the above-mentioned dates and periods of time. However, he argued that the motion should be denied, as defense had not demonstrated wherein the pretrial delay prejudiced him. The law officer denied the motion.

In United States v Brown, supra, the accused was confined on April 13, 1958, upon the termination of his absence without leave at a station other than the one to which he was assigned. On April 25, 1958, he was transferred to his home station for disposition. On the same day, charges were preferred. These were received by the convening authority and referred for trial on June 12, 1958. His hearing before a general court-martial opened on July 23, 1958. The law officer denied a motion for dismissal of the charges, predicated upon the denial of a speedy trial, upon the ground that accused had failed to show wherein the delay caused him harm. In that case, we said, at page 503:

“From these provisions [Code, su*416pra, Articles 10, 33, and 98, 10 USC §§ 810, 833, 898], read in the light of the intent of Congress as ascertained from the views of the framers of the Code, set out in our opinion in United States v Hounshell, supra [7 USCMA 3, 21 CMR 129], it is clear that whenever it affirmatively appears that officials of the military services have not complied with the requirements of Articles 10 and 33, supra, and the accused challenges this delict by appropriate motion, then, the prosecution is required to show the full circumstances of the delay. Of course, an accused is not automatically entitled to a dismissal of all charges against him. Rather, the law officer must decide, from all the circumstances, whether the prosecution has proceeded with ‘reasonable dispatch.’ ” [Emphasis supplied.]

We also declared that the law officer’s ruling must be predicated upon the exercise of his discretion in light of “the facts before him.” (Emphasis supplied.) United States v Brown, supra. When we found no explanation of the 108-day delay involved in that case, we reversed.

Review of the facts before the law ■officer in the instant case reveals that he was informed of a total delay of 144 ■days between accused’s confinement and the trial. My brothers seek to reduce this period to 60 days — the time spent in processing the record at the convening authority level — on the basis that the officer forwarding the charges noted the undue delay resulted from “further investigation.” I am not content to accept that conclusion as a reasonable explanation of the procrastination between accused’s confinement and receipt of the charges by the Commandant, Twelfth Naval District, for, if our language in United States v Brown, supra, has any efficacy, “the prosecution is required to show the full circumstances of the delay.” United States v Brown, supra, at page 503. Surely, no staff judge advocate or legal officer would accept that bare expression of a conclusion as exemplifying the cause of the lack of promptness here present. We equally should not afford it the dignity of the term “explanation.”

Moreover, like the trial defense counsel, I am at a loss to understand the need for further investigation of the offenses charged when, on December 18, 1958, the Government had procured a complete, voluntary confession from the accused and knew that he had been apprehended while spreading inflamma-bles about the hobby shop. Indeed, the stolen property itself had even been recovered, and I deem it worthy of note that the Government adduced no evidence at the trial which was not known to it within a few days of the commission of the offenses.

It is arguable, however, that the reference to “further investigation” involved the other fires which allegedly occurred at the naval station. If this be the case, there is yet no ground established for the delay, for the trial counsel made no attempt in the record to establish the circumstances which required that forwarding of the charges be delayed beyond the eight-day period for which provision is made in Code, supra, Article 33. In addition, there is no explanation at all of the sixty days which elapsed between receipt of the charges in the office of the officer exercising general court-martial jurisdiction and their reference for trial. My brothers believe the law officer must have taken into consideration the requirement of the Code that a pretrial advice be prepared by the staff legal officer and considered by the convening authority. Code, supra, Article 34, 10 USC § 834. Of course this is true, but any judge advocate or legal officer worth his salt also knows that, in an open and shut case like this one, preparation and consideration of an advice consumes very little time. Again, however, I suggest we engage here in little more than speculation, for the trial counsel made no effort to show the period was unduly prolonged because of the advice or to establish any other circumstances which would justify an individual being held under the rigors of military confinement for such a lengthy period.

In sum, I believe an unexplained 144-day delay between accused’s confinement and his trial is sufficient, as was the 108-day delay in United States v Brown, supra, either to require a *417demonstration of reasons therefor by the prosecution or to warrant granting of the defense motion. When we hold here, as a matter of law, that such procrastination did not require explanation, we overturn the salutary holding in the Brown case. I find that inconsistent with the scheme set forth in Code, supra, Articles 10 and 33, supra, and the unavailability of bail or other remedies to persons held in confinement by the armed forces. Moreover, what was good law for Brown should also be good law for Davis. I can only hope that The Judge Advocates General will again step into the breach we now create and assert their authority over staff judge advocates and legal officers to the extent that persons charged with offenses against the Code are, in the future, promptly brought to trial.

I would reverse so much of the decision of the board of review as affirms the findings of guilty of larceny, and order the charges dismissed.