(concurring in part and dissenting in part):
I concur in part and dissent in part.
I fully agree with the author of the principal opinion that it was erroneous for the law officer to deny the defense counsel and accused the unconditional right to communicate with any of the Government’s witnesses after they had appeared on the stand and testified. United States v Aycock, 15 USCMA 158, 35 CMR 130; United States v Enloe, 15 USCMA 256, 35 CMR 228; United States v Meyer, 15 USCMA 268, 35 CMR 240; United States v Beck, 15 USCMA 269, 35 CMR 241; United States v Williams, 15 USCMA 270, 35 CMR 242; Manual for Courts-Martial, United States, 1951, paragraph 42c. Indeed, the Manual, supra, expressly notes that, if it is found desirable to place a witness “under the rule,” he should be advised as follows:
“You are instructed not to discuss your testimony in this case with anyone except the counsel or the accused. You will not allow any witness in this case to talk to you about the testimony he has given or which he intends to give. If anyone, other than counsel or the accused, attempts to talk to you about your testimony in this case, you should make the circumstances known to the counsel for the side originally calling you as a witness.” [Emphasis supplied.] [Manual, supra, Appendix 8a, page 511.]
This instruction, constituting a Presidential regulation which is neither forbidden by nor inconsistent with the Code, has the force and effect of a statutory enactment. United States v Smith, 13 USCMA 105, 32 CMR 105. Thus, even if the cited authorities were deemed inapplicable, the matter of contact between defense counsel and witnesses who have testified has been completely set at rest by what amounts to a binding rule of law.
I must respectfully disagree, however, on the conclusion there is no prejudice to the accused here. When one tampers with or restricts the right of defense counsel and the accused to interview witnesses, whether prospective or having already appeared in the case, he effectively delimits the preparation of the defense for trial and denies the accused his right to counsel. Prejudice, therefore, is inherently present, and the error is not of the sort intended to be cured by application of a harmless error statute. Kotteakos v United States, 328 US 750, 90 L ed 1557, 66 S Ct 1239 (1946). I commend to my brothers’ attention the excellent opinion therein of Mr. Justice Rutledge, speaking for the Court, regarding the interpretation to be placed on such enactments as Uniform Code of Military Justice, Article 59, 10 USC § 859. Particularly, should it be noted that the approval of a comparable statute for the Federal court system was attended by “fear of too easy relaxation of historic securities thrown around the citizen charged with crime” and the Supreme Court’s statement, at page 762, is worthy of repetition:
“. . . Although the final form of the legislation was designed, and frequently has been effective, to avoid some of the absurdities by which skilful manipulation of procedural rules had enabled the guilty to escape just punishment, § 269 did not make irrelevant the fact that a person is on trial for his life or his liberty.”
In short, as was said in Bruno v United States, 308 US 287, 84 L ed 257, 60 S Ct 198 (1939), the rule of harmless error, as embodied in the statute, is “intended to prevent matters con*49cerned with the mere etiquette of trials and with the formalities and minutiae of procedure from touching the merits of a verdict. Of a very different order of importance is the right of an accused to insist on a privilege which Congress [and, a fortiori, the Constitution] has given him.” Id., at page 294. And that the doctrine of harmless error does not embrace the right to counsel and the hindrance of that right by denying accused his means of further preparation through renewed interviews with the Government's witnesses is also shown by the same Court’s declaration in Glasser v United States, 315 US 60, 86 L ed 680, 62 S Ct 457, at page 75:
“To determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” [Emphasis supplied.]
Indeed, such is the teaching of our own cases. In United States v Tellier, 13 USCMA 323, 32 CMR 323, we refused to search for prejudice in reversing accused’s conviction for denial to him of the services of appointed counsel. In United States v Enloe, supra, confronted with an order denying the right to interview witnesses privately, we relied in part on Tellier, supra, and rejected the argument there was no prejudice to the accused. Thus, we said, at page 262:
“Finally, the Government argues that, assuming the invalidity of the order [regarding interview of witnesses], there was no prejudice to the accused. We point out that the testimony of the agents dealt with the accused’s pretrial statement and the conduct of a search and seizure of his belongings. Their interview was an important part of his counsel’s pretrial preparation and, as such, involved his right to be represented by counsel. United States v Tellier, 13 USCMA 323, 32 CMR 323. We decline to speculate as to what the results of such interviews of these important witnesses would have been, absent the restriction thereon sought to be imposed by the Government. Bobo v Commonwealth, supra; Gallman v State, supra. Prejudice, therefore, is apparent on the face of the record, and reversal must be had.” [Emphasis supplied.]
See also United States v Aycock, supra, and cases cited therein.
In like manner, the Supreme Court of Appeals of Virginia sought not for prejudice in reversing the conviction below in Bobo v Commonwealth, 187 Va 774, 48 SE2d 213 (1948). There, it said:
“When the court is dealing with mandatory requirements of the law the principle strictissimi juris obtains. In the instant case human life is involved and the question to be determined is whether or not the accused, who has been sentenced to suffer the extreme penalty of the law, has had that fair trial guaranteed to him by the Constitution. Here it may be, according to the evidence, that a homicide w.as committed in cold blood, yet notwithstanding the enormity of the crime the prisoner, nevertheless, is entitled to the trial which the mandate of the Constitution requires. We must not permit the doctrine of harmless error or the requirement that prejudice must be shown to over-balance those fundamental rights.” [Emphasis supplied.]
I need not remind my brothers that the accused Strong, as Bobo, was on trial for premeditated murder, without limitation of punishment.
In Leahy v State, 111 Tex Cr 570, 13 SW2d 874 (1928), on which the principal opinion relies and in which the court found it error to deny defendant an opportunity to interview a witness in private, its refusal to reverse. was premised on the record’s affirmative showing “that the appellant knew in advance everything that the witness Martinez would testify to at the trial.” Leahy, supra, at page 883, Moreover, it pointed out:
*50. . The circumstances of this case were very unusual. The trial court perhaps had reasons which were to him amply sufficient for his action. The court is of the opinion that the record as a whole shows an absence of injury to appellant arising from the matter complained of.”
Here, there are no unusual circumstances. The law officer merely ruled twice, and over repeated objection, that there would be no contact by defense counsel with adverse witnesses, except on the basis of surprise or inadequate pretrial opportunity to interview them. Having objected and made his position clear, the defense counsel was required to abide by the erroneous ruling, on pain of being held contumacious. The record does not, as in Leahy, supra, show that he did not wish to speak to the witness further. On the contrary, his objections to the warning indicate he might have wished to do so. At most, the record is simply silent. Counsel, therefore, could do nothing further in interviewing the witnesses, no matter how important to his case, unless he could meet the law officer’s unlawfully imposed conditions.
Such being the case, it seems clear that accused’s right to be properly defended may fairly be said to have been hampered here. And, as I have noted, we deal with the right to counsel, one so sacredly imbedded in our Anglo-American jurisprudence that we dare not, from these Olympian heights, pretend to judge the effect of so egregious an error at a capital trial, whose transcript is merely silent — in accordance with the law officer’s rulings — as to whether counsel wished to examine the witnesses further but was prevented from doing so by the illegal conditions imposed on him. To require him uselessly to parrot such a desire at trial or in a brief, when represented by different counsel on appeal, is to give comfort to the pettifogger who will make such representations falsely and to deny relief to the honest lawyer who seeks ethically to stay within the bounds of the judge’s ruling after having respectfully noted his objection.
I would reverse the decision of the board of review and order a rehearing.