(dissenting):
I dissent.
In my opinion, the conduct of this trial, resulting in the imposition of a death penalty, was so atrocious that the accused was denied due process. In no manner does it measure up to the standards laid down by Congress in the Uniform Code of Military Justice nor does it possess the high judicial character which we have sought to impress upon general courts-martial since 1951. Accordingly, I cannot concur in the judgment of my brothers that the proceedings are sufficiently regular to justify affirmance of the findings and sentence.
Tried by general court-martial for premeditated murder, in violation of Code, supra, Article 118, 10 USC § 918, and two specifications of aggravated assault, in violation of Code, supra, Article 128, 10 USC § 928, the accused was found guilty and sentenced to death. Intermediate appellate authorities affirmed, and the case is before us on mandatory review. Numerous assignments of error have been made by appellate defense counsel, and we have been deluged with voluminous briefs, motions, and petitions. Not all of the errors which I shall hereinafter discuss are formally before us. Nevertheless, I am sure that my brothers join me in the belief that, in capital cases, we must search the record in order to determine that nothing occurred which was prejudicial to accused’s substantial rights. With that standard in mind, my examination of the proceedings convinces me that accused’s rights were repeatedly invaded.
The factual picture set forth in the transcript is relatively simple. Accused was a twenty-year-old Negro sailor assigned to the U.S.S. UVALDE. He gained the rating of Disbursing Clerk Third Class and was the only enlisted man assigned to the UVALDE who performed duties concerning the pay of the ship’s officers and crew. His immediate superior was a young officer, Ensign Arthur L. Morris, who reported for duty aboard the UVALDE sometime after Henderson had been assigned to the crew. Apparently, some friction developed between Ensign Morris and the accused over the manner in which the latter performed his duties. Henderson repeatedly told his shipmates that he would “get” Mr. Morris prior to his discharge. The accused eventually became involved in the theft of a wrist watch, and Ensign *571Morris placed him on report. On May 27, 1957, a special court-martial was convened on board the UVALDE to try him. Henderson was represented by Ensign Harrison and entered a plea of guilty to larceny. He was sentenced to confinement at hard labor for four months and reduction to seaman. Enraged by the sentence, he announced his intention to kill Ensign Morris. During the early morning hours of May 28, 1957, Henderson assaulted the ship’s security watch, one Verbeek, with a hammer and obtained from him a .45 caliber service pistol and two clips of ammunition. During the assault, Ver-beek’s hand was fractured and he suffered numerous severe head cuts. Henderson then proceeded to the Executive Officer’s stateroom, intending also to shoot that officer. When he found the .stateroom vacant, he entered a similar chamber shared by Ensigns Morris and Harrison. After an extremely brief •discussion of his sentence, Henderson •shot both officers. Morris died instantly from a penetrating wound of the heart, while Harrison was seriously wounded. Henderson then reloaded his weapon and left the stateroom. He subsequently seized a hostage and proceeded to the ship’s bridge where he held a considerable force at bay for several hours. He finally was persuaded to surrender.
Dr. Bernard L. Diamond appeared as an expert medical witness for the defense. He testified that he had been a psychiatrist since 1939, having graduated from the University of California Medical School and completed a residency in the Neuropsychiatric Clinic of the University of Michigan. Following five years of military service as a psychiatrist, he engaged in private practice in San Francisco. He was certified in 1946 as a diplómate of the American Board of Psychiatrists and Neurology.
Dr. Diamond examined the accused on September 18, 1957. He reviewed his complete medical records and the reports of other psychiatrists and psychologists who had studied Henderson. He was advised of the family’s history of mental illness, tie had also read certain bizarre letters originated by accused while in confinement. He believed Henderson “to be mentally ill, having a very sick and disordered mind,” his delusions being principally of a racial nature. He was incapable of premeditating Morris’ murder or of entertaining the specific intent required in the charges. Initially, he expressed the view that he was not “unequivocally certain” that Henderson was unable to distinguish right from wrong and “reluctantly” agreed that he was able to adhere to the right. These impressions appeared to be based upon a belief that his testimony must accord with the strict requirements of the “tech manual.” He subsequently described Henderson’s behavior as “almost like a leaf in the wind, the wind being the turmoil of his mental abnormalities.” When specifically asked on cross-examination whether the accused could adhere to the right, he ultimately declared that:
“His ability to adhere to the right is extremely badly impaired; it is somewhat questionable whether he can adhere to the right at all under any circumstances.”
Dr. Diamond summed up his impression of Henderson in the following manner:
. I believe in my own heart with all my intuition and experience as a psychiatrist, having seen a number of these cases years afterwards, of having had — after they have arrived in prison and getting the full story and everything from the beginning and evaluating their case with my knowledge as derived from other cases — I feel that this man is insane in every sense of the word; legally, medically and in the ordinary layman sense of being crazy.”
Navy psychiatrists testified that Henderson suffered from no more than a character disorder; that he knew right from wrong; was able to adhere to the right; and possessed the capacity to premeditate and entertain the required specific intent. Post-trial mental examinations, depending upon the psychiatrist involved, tend to support both the defense and prosecution experts.
*572At the outset, I must note the accuracy of Judge Latimer’s observation that the accused judicially admitted the foregoing facts. Aside from that confession, the evidence overwhelmingly established the occurrence of these events. There is a sharp distinction, however, between proof of these facts and proof of Henderson’s guilt of the crimes charged, for the evidence also raises an issue concerning both his mental responsibility for the offenses and his capacity to premeditate or to entertain a specific intent. It is in this light that the trial proceedings must be viewed. Accordingly, I turn to a chronological discussion of the various errors which infest the trial.
I
At the commencement of the trial, counsel for the accused conducted an extensive voir dire examination of the court members. He specifically made inquiry concerning whether they were willing to heed the law officer’s instructions on the law. Eventually all, except one, replied that he would abide by the law officer’s advice. The remaining member, Captain Clarke, stated that he would follow the law officer’s instructions if the latter “quoted” the law. Otherwise, he would permit his conscience to guide him. A final inquiry by the law officer and Captain Clarke’s answer thereto provide a summary of his position:
“Q. Captain Clarke, I’m sure by this time you are familiar with the question. If you are chosen to sit upon the court, could you and would you abide by the instructions which I give you with respect to the law, or would you on the other hand let your own conscience be your guide as to what the law is or ought to be?
“A. I think, as I previously stated, I will abide by the law officer’s instructions with regard to the law, and if the law officer made an interpretation or an opinion, then my opinion would be weighed against his.” [Emphasis supplied.]
Elsewhere in the record, Captain Clarke declared that “if he [the law officer] is quoting an interpretation of the law, he has got to convince mé that his interpretation is correct, or I will follow my own conscience.” He expected the law officer not only to “quote” the law, “but also to make certain arguments in support thereof.”
We have frequently pointed out that the law officer is the sole source of the law for a general court-martial and that a member may become disqualified for service if he is unwilling to concede controlling significance to that functionary’s instructions. United States v Deain, 5 USCMA 44, 17 CMR 44; United States v Parker, 6 USCMA 274, 19 CMR 400. Here, Captain Clarke placed a very precise limitation upon his intention to abide by the law officer’s advice. If the latter could “quote” the law or support his “interpretations and opinions” by an argument sufficiently convincing to persuade the member that his instructions were correct, then the law officer’s instructions would be followed. Otherwise, Captain Clarke stated that it was his intention to follow his own, unexplained views. It should also be noted that the member adhered to this position despite every attempt by trial personnel to rehabilitate him. Accordingly, we are faced with a case involving service by a juror who has obdurately refused to acknowledge that he must consider the accused’s guilt according to the law. Under such circumstances, I am sure that his participation in trial was prejudicial.
True it is that, following the unsuccessful challenge of Captain Clarke, the defense counsel did not exercise his right peremptorily to excuse the member. Normally, this would completely waive any error arising from his participation. In capital cases, however, we are usually more solicitous of the accused’s right to a fair trial. Thus, in United States v Parker, 6 USCMA 75, 19 CMR 201, Judge Latimer pointed out, at page 88, that “waivers are seldom, if ever, relied on by appellate courts when a death sentence has been imposed.” See also United States v McMahan, 6 USCMA 709, 21 CMR 31; Austin v United States, 208 F2d 420 (CA 5th Cir) (1953). There is an aura of finality about the adjudged *573penalty which rightfully prevents us from basing affirmance upon such a slender reed.
As was stated by the Supreme Court in Fisher v United States, 328 US 463, 90 L ed 1382, 66 S Ct 1318, at page 467:
“Although no objection ... is urged here by counsel for petitioner, this Court in a criminal case may notice material error within its power to correct even though that error is not specifically challenged and certainly should do so, . . . where life is at stake.”
Accordingly, the doctrine of waiver should not be invoked here when it is clear beyond cavil that the challenge should have been sustained.
II
During the course of the trial, the president of the court-martial, Captain McMillian, became alarmed at the lackadaisical attitude of accused’s Marine guards. He concluded that corrective action was required. Accordingly, he summoned the Commanding Officer of the Naval Station at which accused was confined, the Brig Officer, and the Brig Guard Officer to a conference in his office. It was also attended by the law officer and the trial counsel. During the conference, the Guard Officer informed the president that new guards had already been assigned. Captain McMillian was also told that it was planned to have the accused attend “office hours” that day for other misconduct and that, as the Guard Officer had passed him in the hall, the accused had purposely applied a profane epithet to him. The Naval Station Commanding Officer also stated that “special precautions” might be required to handle the accused. At that point, the law officer intervened and the discussion ended.
In United States v Adamiak, 4 USCMA 412, 15 CMR 412, this Court initially considered the effect of extra-record consultations between members of the court-martial and other parties concerning the case. We adopted the Federal rule that such private communications are absolutely forbidden and invalidate the verdict unless the Government is able satisfactorily to show that the contact was harmless to the defendant. The Chief Judge separately pointed out that prejudice of this kind strikes at the very heart of a fair trial and warrants reversal regardless of the possible effect of the consultation. See also United States v Lowry, 4 USCMA 448, 16 CMR 22, and United States v Walters, 4 USCMA 617, 16 CMR 191. It is of interest to note that in the latter case, at page 633, the author of the principal opinion stated, concerning the effect of a recess conference involving the law officer and members of the court:
“. . . Accordingly, we prefer to adhere to the view that any presumption of prejudice arising from such contracts may be overcome when a clear showing is made that no subject of discussion could possibly bear on the court’s determination of a case before it. Cf. United States v Adamiak, supra.” [Emphasis supplied.]
Turning to the instant record, no showing is made by the Government to rebut the presumption of prejudice arising from the extrajudicial conference. It demonstrates nothing more than the consultation was eventually spread upon the record at the insistence of the defense counsel. In my opinion, the report of the proceedings thus obtained, rather than overcoming the presumption of prejudice, clearly demonstrates harm to the accused. At the outset, it is immediately apparent that the subject discussed bore upon the case before the court-martial. United States v Walters, supra. Secondly, it is clear that the president was made aware of the Commanding Officer’s proposed inquiry into other misconduct by the accused. Thirdly, it is patent that he was informed that this accused, on trial for the murder of one officer and the grievous wounding of another, had evinced hostility to a third in no uncertain terms. Finally, the Commanding Officer of the Naval Station mentioned the necessity for “special1 precautions.” The discussion could' hardly redound to the accused’s benefit, particularly when it became necessary to determine the penalty to be adjudged. *574United States v Shipman, 9 USCMA 665, 26 CMR 445. On the contrary, parties completely unconnected with the trial were permitted, in the absence of accused and his counsel, to depict circumstances which must have weighed heavily against him. The situation is as if the foreman of a civilian jury had consulted with the sheriff, in the presence of the prosecuting attorney and judge, concerning the dangerous propensities of the defendant. No court in the land would sanction such proceedings, and we should not place the stamp of our approval upon them. Accordingly, I conclude the Government has not sustained its burden of demonstrating that no prejudice resulted from the consultation between the president, the Commanding Officer, brig personnel, the law officer, and trial counsel, in the absence of accused and his counsel.
Ill
During the testimony of Ensign Harrison, the witness was asked to display the scars resulting from the bullet wounds inflicted by Henderson. Following the demonstration, the following colloquy occurred between the witness, the law officer, and a member of the court:
“A. Yes. The bullet entered in this position, right here.
“LO: Indicating in the left side in the lower — Doctor, where would that be?
“COURT MEMBER (Doctor Staggers) : The last rib within the abdomen.”
It is well-settled that a member of the court-martial may not testify in the •case and continue to serve as a member. Code, supra, Article 25, 10 USC § 825; United States v Mansell, 8 USCMA 153, 23 CMR 377; United States v McBride, 6 USCMA 430, 20 CMR 146; United States v Moore, 4 USCMA 675, 16 CMR 249. It is not necessary for the witness to deliver sworn testimony in order to become disqualified. United States v McBride, supra; United States v Mansell, supra. Indeed, we have applied the prohibition to the law officer when it appeared that he had, by his ■certificate, indicated the legal sufficiency of a previous conviction. United States v Wilson, 7 USCMA 656, 23 CMR 120. Here, the member of the court-martial equally became a witness, for, by utilizing his medical expertise, he assisted the other members in determining the precise location of the entrance wound of one of the bullets fired at Harrison. The seriousness of the wound was unquestionably placed in issue by accused’s plea of not guilty to the offense of assault whereby grievous bodily harm was intentionally inflicted. It is equally apparent the member thereby became a witness for the Government, for his medical knowledge was utilized to further a demonstration by one who specifically appeared for the prosecution. So to use a juror who is permitted to continue in the cause and deliberate on the basis of his own specialized knowledge is one of the evils which Congress sought to dispel by enactment of Code, supra, Article 25, 10 USC § 825. While it does not involve the contested issue of sanity, I am compelled to conclude that the member’s expert aid in describing Harrison’s wounds disqualified him from further participation in the trial. Here, the question is one of capacity to sit rather than bias or similar considerations. United States v Mansell, supra. Hence, the weight of the evidence is immaterial.
IV
The next area in which I perceive error prejudicial to the substantial rights of the accused is found in permitting the prosecution to adduce evidence of the deceased’s excellent general character when that matter had not been placed in issue. Compare United States v Desroe, 6 USCMA 681, 21 CMR 3.
Lieutenant (jg) John Richard Hart was called as a witness by the Government. On direct examination, he testified that he knew Ensign Morris well and that, of all the junior officers aboard the UVALDE, the deceased “was probably more sincere and more conscientious in what his duties consisted of probably than any of us.” He put in many extras hours of work, participated extensively in athletics, and was *575well liked by the crew. As an indication of the respect in which he was held, “the crew got together and made a spontaneous contribution for the family in his memory.” Two defense witnesses were also cross-examined in such a manner that the deceased was presented as an outstanding officer.
The Manual for Courts-Martial, United States, 1951, points out, in paragraph 138/(3), that evidence of a victim’s character for violence or peace-ableness may be introduced in a homicide prosecution only where an issue of adequacy of provocation or self-defense is raised. United States v Desroe, supra. Otherwise, the deceased’s character is irrelevant, for its adduction can serve only to inflame the members of the court-martial against the accused. The military rule is derived from Wigmore, Evidence, 3d ed, §§63 and 246. Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 213.
In Hillen v State, 108 Tex Cr 516, 1 SW2d 883 (1928), the admission of similar testimony was held erroneous. Of it, the court said, at page 885:
“. . . The question arises: Why such proof, and why show the jury that appellant had killed the most highly thought of deputy sheriff the town ever had? That appellant’s cause was harmed by such proof is plain.
“. . . The proposition that the citizens of Tenaha valued more highly the services of deceased as a peace officer than any other man was not an issue in this case, and such proof could have been only harmful to the cause of appellant.”
See also 2 Warren on Homicide, perm ed, § 204, page 337, and the cases collected in 40 CJS, Homicide, § 222.
The obvious intent of the prosecution in thus adducing proof of the deceased’s excellent reputation and character was to arouse the court members against accused and to insure his conviction and imposition of the maximum penalty. While the accused’s judicial admission of the facts surrounding the slaying normally might serve to overcome the harmful effects of the evidence of deceased’s character, the question of mental responsibility was also-in issue. Moreover, it was undoubtedly considered on the question of the punishment to be awarded. Under the circumstances, I am of the view that the error justifies a rehearing.
V
The next issue presented by this record is somewhat akin to the conference between the president and persons unconnected with the trial concerning accused’s security. Accordingly, much of what I have stated with respect to that proceeding is also applicable here.
It appears that defense counsel noted an off-the-record conference between the president and the law officer. Subsequent examination of these worthies disclosed that the president presented two slips of paper to the law officer, containing questions proposed to be put to Dr. Diamond, a civilian psychiatrist testifying for the defense. He asked if the questions were proper. One contained a reference to the nature of an infection from which accused’s girl friend was suffering. The law officer advised the president to ask the initial question in a manner which was not leading, “or did not show any advocacy.” He also suggested that the word “gonorrhea” be stricken from the second question and that reference be made only to “an infection.” He then presented to the president a copy of this Court’s opinion in United States v Blankenship, 7 USCMA 328, 22 CMR 118. The president familiarized himself with the gist of that case.
It next appeared that the court had submitted numerous questions to the law officer in writing in order to obtain his ruling concerning their propriety. He indicated his view by either nodding or shaking his head — a procedure which the record nowhere reflects. The law officer conceded that “it’s possible I may have shown one or two” questions to the defense counsel, but was unsure that he had done so. Most of the questions were “irrelevant and immaterial.” One of the interrogatories was submitted by Lieutenant *576Trueblood and involved whether Henderson’s reduction in grade was more important than the loss of Ensign Morris’ life. The law officer described the frequency with which the questions were submitted in the following manner:
“A. Well, I received so many notes in the past couple days that I really can’t say. Perhaps the court members themselves would be in a better position.”
This Court has frequently pointed out that a court member may not become a partisan advocate for either side. United States v Sears, 6 USCMA 661, 20 CMR 377; United States v Smith, 6 USCMA 521, 20 CMR 237; United States v Blankenship, supra. Heretofore, it has been my understanding that disqualification of a member on that basis did not depend upon the artfulness with which he framed his questions in order to conceal his advocacy but upon whether he had actually aligned himself with one side prior to entering upon the final deliberations. 'Certainly, it is true that the wording of members’ questions frequently reveals their bias for the Government. United States v Smith, supra. It appears to me, however, that we did not intend to approve concealment of bias by suggesting in United States v Blankenship, supra, that court members submit their" questions in writing to the law officer. On the contrary, I thought it clear that the suggested procedure was designed to permit the law officer, after learning the views of counsel for both sides, to make timely and appropriate rulings in order that the accused’s representative would not be constantly faced with the undesirable task of objecting in open court to members’ inquiries.
In the instant case, we possess no real knowledge concerning the questions which the court members desired to ask. The written inquiries were not made a part of the record, and we cannot scrutinize them to determine whether the members had, from the commencement of the trial, aligned themselves with the prosecution. See United States v Caldwell, 11 USCMA 257, 29 CMR 73. While we are given a hint concerning their nature by Lieutenant Trueblood’s comparative inquiry into the relationship between accused’s loss of rating and Ensign Morris’ death, I am simply unable to conceive the route by which my brothers are able to conclude that the presumption of prejudice is overcome.
Moreover, in order to have an adversary proceeding, it seems clear to me that the law officer must consider members’ questions and rule thereon in such a manner that counsel for both sides are afforded an opportunity to state their objections. We said as much in our consideration of the use of former testimony in United States v Johnson, 11 USCMA 384, 29 CMR 200, although we affirmed there as we could discern no basis on which counsel could have opposed the matter in question. In short, what we do here is make the law officer a member of the court again, despite the contrary command of Code, supra, Articles 51 and 39, 10 USC §§ 851 and 839.
It is in the light of these factors, aside from its extrajudicial nature, that I discern prejudice in the law officer’s presentation of our opinion in United States v Blankenship, supra, to the president of the court. The untutored reader might well believe that the substance of our holding there was to point up the need for concealing advocacy rather than to withhold formation of a fixed opinion until all the evidence is in. Winebrenner v United States, 147 F2d 322 (CA 8th Cir) (1945). Accordingly, I cannot join my brothers in their conclusion that this matter was harmless.
VI
Following announcement of the findings, defense counsel brought to the attention of the law officer and the court information to the effect that one of the members had consulted outside sources in connection with the evidence presented in court. Nothing appears in the record to indicate that counsel was aware of the matter prior to the occasion on which he raised the question.
*577Interrogation of Lieutenant Mulder-rig established that the member had consulted a psychiatric dictionary in order to ascertain the meaning of four terms used by Dr. Diamond in his testimony. The words involved were “psychosis, psychoneurosis, paranoid, [and] schizophrenia.” Lieutenant Mulderrig also stated stated that if “any word was used in the courtroom, I went to Websters and looked it up.” He was unable to recall the name of the psychiatric dictionary to which he referred, and could not state whether the definitions were “in any way inconsistent with the knowledge . . . later learned in the courtroom.” However, his research assisted him in understanding the testimony of the various expert witnesses.
Subsequently, defense counsel sought also to question Lieutenant Mulderrig concerning whether he had referred to the Manual for Courts-Martial, supra, during the course of the trial. The law officer immediately ruled that there could be no inquiry into the use of the Manual, as it had not been left in closed session and “I know of nothing in the present state of the law that prohibits a court member from looking at a Manual at other times.” Finally, after due deliberation, he permitted the defense counsel to question the court members concerning their possible use of any “outside sources.” It appeared that no member, except as hereinbefore stated, had engaged in such research. Contrary to the assertion in the principal opinion, however, I believe it patent that the law officer, counsel, and court members, because of the former ruling, did not consider the Manual, supra, to be such a source.
Defense counsel’s challenge for cause of Lieutenant Mulderrig was not sustained by the court-martial.
As the majority point out, we unanimously reversed a conviction of trafficking in narcotics in United States v Webb, 8 USCMA 70, 23 CMR 294, because of a court member’s consultation of a volume entitled, “Narcotics, U.S.A.” In that case, the author of the principal opinion stated, at page 76:
“In the case at bar, we need not consider whether the accused has the burden of showing prejudice or the Government the duty of showing its absence. To us, contrary to the finding of the board of review, prejudice is apparent. On the first day of the trial, the expert witness, who left something to be desired in his expertise in the field of narcotics, had identified a substance as marihuana. . . . Some doubt was cast on his qualifications and credibility as an expert . . . yet it is entirely probable that the use of the outside text rehabilitated him in the eyes of the court member. In net effect, what was uncertain became fixed in the mind of the offending member.”
The Chief Judge, concurring, emphasized that “prejudice to an accused is presumed from the fact that a juror consulted ‘outside sources’ for evidence bearing on the accused’s guilt.” United States v Webb, supra, at page 77. I also concurred, pointing out that these issues go to the heart of a fair trial. See also United States v Guest, 3 USCMA 147, 11 CMR 147; United States v Lowry, supra.
Our holding in United States v Webb, supra, and the other cases cited establish that we also commence our examination of Lieutenant Mulderrig’s misconduct with the presumption that it was prejudicial. The burden again rests upon the Government to dispel that cloud. Judge Latimer concludes they have succeeded, for he construes the record to mean that the member did no more than to refresh his recollection concerning the terms involved and that the reference to the dictionary did not result in gaining information different from that already furnished by the experts. As I have already pointed out, I read Lieutenant Mulder-rig’s testimony differently and am of the view that it establishes only that the terms, undefined by the experts, were, after his research, made meaningful to him. He stated that each definition extended to as much as fifty words. Although he concluded that his extra-record activity had not influenced him, I am certain that all are aware of the inability of jurors accurately to gauge the effect upon their *578deliberations of such matters, particularly when they are made aware, as in this case, that they have erred. In brief, Lieutenant Mulderrig’s conclusion and statements should be treated as no more than attempts to defend himself against counsel’s appropriately aimed allegations of misbehavior.
Aside from differing interpretations of the record, however, it is still certain that the presumption of prejudice has not been dispelled.
The accused’s confession and his judicial statements leave in issue only the questions of his mental responsibility and capacity to premeditate. There is evidence on both sides of the issue, and, upon the record, it must be concluded that the opinions of the experts concerning accused’s mental condition differed only in degree. Those appearing for the prosecution stated that he possessed a paranoid personality but was not psychotic. The defense psychiatrist testified that accused had probably progressed from a paranoid state to a point at which he was suffering from the psychosis of paranoid schizophrenia. His reluctance so to testify was based upon his inability conclusively to demonstrate that Henderson, at the time of the offense, had broken with reality. Under the circumstances, whether the accused was believed by the court members to be suffering from a psychosis or a psychoneurosis, as well as the exact nature of his malady, became extremely important. Hence, it is obvious that the definitions of the terms which Lieutenant Mulderrig found are of tremendous importance. We are nevertheless left in the dark concerning their tenor or, indeed, their source. To say that, under such circumstances, the veil of ignorance is removed and the presumption of prejudice overcome is to conclude that harm is not present if a member of the court admits no more than the fact of his misconduct. As that approach completely eliminates the pi*esumption attaching to such behavior, I must record my disagreement.
The second aspect of the voir dire of Lieutenant Mulderrig raises a slightly different problem. As I have noted, the defense counsel was absolutely prohibited from conducting an interrogation of the member, or of the court, for that matter, concerning any use of the Manual for Courts-Martial during the proceedings.
In United States v Rinehart, 8 USCMA 402, 24 CMR 212, a majority of this Court, over Judge Latimer’s dissent, held that no member of a general court-martial might have access to the Manual either during closed or open sessions of the court. We pointed out that such use would be per se reversible error from “a date no later than thirty days after the promulgation of the mandate in this case.” United States v Rinehart, supra, at page 410. With reference to cases tried prior to that date, we stated that the doctrine of specific prejudice would be applied. United States v Rinehart, supra, at page 409; United States v Shaughnessy, 8 USCMA 416, 24 CMR 226. The accused’s trial falls into the category which must be measured by the standard of specific harm. The author of the principal opinion agrees with the conclusion of the board of review that no prejudice to the accused is shown by the record. The rationale by which he reaches this conclusion is rather elusive, for the very matter concerning which accused complained is the prohibition by the law officer of any interrogation of a court member concerning his use of the Manual. Thus, defense counsel was unable to discover whether the volume was used in a prejudicial manner. As far as we know, each member may have referred at length to those sections of this text which discuss insanity, premeditation, murder, presumption, evidence, or what have you. The defense counsel sought to clarify the matter, and it hardly becomes us to state that he did not establish harmful use when he was not permitted to do so. I might also point out that he was not engaged in a mere fishing expedition, for his examination of Mulderrig demonstrated the accuracy of his information that this member had consulted other sources beyond the courtroom. Under the circumstances, I suggest that the limita*579tion upon his voir dire examination also requires reversive action.
In according detailed treatment to the foregoing errors, I have not overlooked the other matters discussed by the author of the principal opinion. For example, I note that the use of the presumption of sanity in the law officer’s final instructions was not so clearly limited as it was in United States v Oakley, 11 USCMA 187, 29 CMR 3, and some question remains in my mind whether the abrupt change in the interpretation of the powers of the board of review, set forth in United States v Russo, 11 USCMA 352, 29 CMR 168, does not require us, in the exercise of our discretion, to return the case for further consideration of the appropriateness of sentence — particularly in light of the additional evidence relating to accused’s mental condition at the time of the offense. These matters, however, fade into insignificance in view of the major deficiencies which I have pointed out. The latter affect the very fairness of the proceedings which led to accused’s condemnation and, in my opinion, deny him due process. It may well be that Henderson is sane and deserves the extreme penalty for his actions. Our society has nevertheless prided itself upon having the same standards of fair play applied to both the guilty and the innocent. Congress, incensed by the ex parte court-martial proceedings of World War II, passed the Uniform Code in order to secure these same safeguards to members of our armed forces. When we, because of a subjective reaction to a brutal crime, draw unwarranted distinctions between the case at hand and our previous decisions, we subvert the Congressional purpose and abdicate our judicial function. That approach inevitably results in degradation of the law in the interests of personalized justice. I have many times indicated my opposition to such a standard of review, and no matter how horrible the circumstances of accused’s crime, I cannot subscribe to it in this case.
I would reverse the decision of the board of review and direct a rehearing.