(concurring in the result):
I concur in the result.
When court-martial members decide to try their hands at the art of cross-examination, they usually select the witnesses favorable to the defense as their victims. Very seldom do they make a full-scale assault on the testimony of prosecution witnesses. It may be that the testimony offered by the defense gives them a better field in which to display their skills, but it also makes it easier to conclude they are pseudo-prosecutors seeking to salvage a case for the Government. There were seven members of this court, and at least four of them actively joined with trial counsel in seeking to weaken the testimony of those who sought to aid the accused. Every person who has acted judicially on this record on appeal has commented on the excessive cross-examination by the court members so that it is fair to say they went way beyond the necessity of clarifying any doubtful areas. As a *641matter of more than passing interest, the cross-examination went right to the heart of the credibility of the witnesses, and some of the questions were preceded by a veiled suggestion that before answering the witness should pause and reflect on the penalty of perjury.
I believe much of the trouble in this case was brought about by the law officer’s misconception of the rights of court members. He knew they were skirting on dangerous territory, for even before they had completed their questioning of Specialist Ellison, which was prior to presentation of the defense case, he made the following observation :
“I’d like to caution the court that the court should not take over the roll of either the prosecution or — now, the court hasn’t but I think it — well, it’s tending that way and I’d just like to caution the court on that.”
He failed to follow up on his cautionary remark for thereafter, in answer to a question by the president of the court, he informed the members they could question the accused about any aspect of the case. That was an open invitation for a mass attack on the accused and the witnesses aiding him, and it was readily accepted. The Manual provides, in paragraph 54a, that “in a general court-martial, the examination by the court is ordinarily conducted by the law officer; thereafter, if necessary, members of the court may ask questions of the witness.” With qualified counsel and a law officer on the court, there should be little necessity for the court members to assist either party. Their duty is to weigh the facts and judge the credibility of the witnesses and above all not to aid the Government by extensive cross-examination conducted for the purpose of cinching the guilt of the accused. Until law officers better control the avid desire of some court members to aid in the production of evidence, we are sure to be faced with records which reflect partisanship and not unbiased judgment. Human nature impels individuals to ferret out flaws in the testimony of witnesses, and once an untruth is suspected an inquisition follows. To avoid that consequence, a law officer must assert his authority and keep the trial in balance. He has means to deter the excessive zeal of court members and in this case that functionary failed to exercise his powers to protect the accused.
The board of review recognized that the court-martial members “overly extended” their cross-examination of the witnesses but found no prejudice. I disagree with that finding, for the crux of this case was the credibility of accused and other defense witnesses, and if they were believed, a crime had not been committed. It is incredible to believe the scales were in balance on that question when the examination by the members disclosed a dedicated purpose to prove the untrustworthiness of those who testified favorably to the accused. It is reasonably certain they were convinced that the testimony for the defense was fabricated and, by their own efforts, they confirmed their own convictions. No trial counsel was ever better aided and abetted by coui't members. To me prejudice is apparent in that setting, for court members are to judge, not prosecute, and if they assist the Government and aid in destroying the credibility of defense witnesses, they shed their robes as impartial triers of fact and substitute therefor the garb of advocacy. Certainly an accused is harmed when his guilt is ascertained by members who champion the cause of the prosecution.
For the foregoing reasons, I join with my brothers in reversing the findings and sentence.