(dissenting):
I dissent to the denial of the accused’s petition for a new trial at this stage of the proceedings. Rather, I believe good cause has been shown to set down for argument the issue whether a fraud was committed upon the court-martial — and, indeed, upon this Court — by the Chief, Military Justice, of the jurisdiction which tried accused. While the matter warrants further investigation, it appears from the affidavits before us that accused’s appointed trial defense counsel made every effort to find out why and upon whose authority Airman Malumphy was sent to an Air Force hospital for psychiatric treatment and evaluation. Despite the fact that he admittedly performed his duties under the direct supervision of the Chief, Military Justice, he was unable to develop the identity of the person responsible. For the reason that the record reflected that accused was examined and treated solely for medical purposes, this Court unanimously held that there was no duty on the psychiatrists who interviewed him to advise him of his rights under Uniform Code of Military Justice, Article 31, 10 USC § 831. United States v Malumphy, 12 USCMA 639, 31 CMR 225. Indeed, we there said, at page 639:
“. . . Considering the whole record, including the matters elicited in closed session before the law officer and those in open court, we are compelled to conclude the Government’s rebuttal witnesses were under no obligation to warn accused of his rights before interviewing him. It is clear that accused was not, in the eyes of the psychiatrists, a suspect within the purview of Article 31 at the time they saw him. And it is manifest from the uncontroverted evidence that accused was admitted to the hospital for medical examination. The latter, and not whether accused had committed any offense nor other possible legal eventualities, was the concern of the doctors. They interviewed him, as was their duty, with a mind toward medical diagnosis as to whether he was a sick man mentally, possibly in need of care and treatment.”
Now, we are coolly informed by defense counsel’s immediate military superior, that he, in his capacity of Chief, Military Justice, directed that the accused be hospitalized, not for treatment or diagnosis, but for the purpose of mental evaluation concerning his capacity to stand trial and his responsibility for his offenses. In view of the defense counsel’s sworn allegations concerning his extensive efforts to develop this information before the trial and his inability to do so, I am left to wonder whether the Chief, Military Justice, knew of the course of the defense investigation and deliberately remained silent in order to create a false impression before the court-martial and gain the admissibility of any statement accused might make to the doctors and their ultimate opinions.
If such were true, I am of the view that it would constitute deliberate sup*63pression of evidence favorable to the accused by an officer of the United States and, as such, a fraud upon the court-martial. Moreover, since the suppression, if it occurred, led to the affirmance of accused’s conviction in this Court, it would equally be a fraud upon this Court. Alcorta v Texas, 355 US 28, 2 L ed 2d 9, 78 S Ct 103 (1957); Napue v Illinois, 360 US 264, 3 L ed 2d 1217, 79 S Ct 1173 (1959); United States v Rutkin, 212 F2d 641 (CA3d Cir) (1954); United States v Dye, 221 F2d 763 (CA3d Cir) (1955). Indeed, the conscious suppression of material evidence is so inconsistent with our concept of ordered liberty that it constitutes a denial of due process. United States v Dye, supra.
It is not my position that there was in fact such deliberate suppression of material evidence in this case. Rather, I believe the respective allegations in the affidavits, considered in light of the close relationship between the Chief, Military Justice, and his counsel, constitute good cause to set this petition down for oral argument and further investigation either at the hands of the appellate counsel or by an impartial individual appointed by this Court. When we do not do so, I fear that we leave open a distinct possibility of a substantial miscarriage of justice. I would simply close that door by finding out all of the facts before ruling on the merits of the petition.