United States v. Smith

FERGUSON, Judge

(concurring in part and dissenting in part) :

I concur in part and dissent in part.

I agree with my brothers that accused’s confession is sufficiently corroborated and that the offenses of larceny and possession of narcotics, in violation of Uniform Code of Military Justice, Articles 121 and 134, 10 USC §§ 921, 934, respectively, are, under the circumstances of this case, separately punishable. I cannot, however, agree with *63their disposition of the issue involving speedy trial. I cannot concur with a judicial repeal of Code, supra, Articles 10 and 33, 10 USC §§ 810, 833.

The record indicates the accused was placed in pretrial confinement on February 3, 1966, immediately following his confession of guilt of the offenses on which he was ultimately arraigned. He was released from confinement on April 7, 1966, when his presence without charges was discovered during the course of disposing of a Congressional inquiry regarding another individual. Charges were not placed against him until May 4, 1966, and he was brought to trial on June 2, 1966.

Defense counsel moved to dismiss the charges, based primarily on the failure to prefer charges on a timely basis, and his statement of the foregoing facts was not contested by the Government. Indeed, at this level, the United States concedes such to have been the case.

In rebuttal to the defense presentation, serious difficulties were alleged in securing evidence to corroborate accused’s confession, requiring “numerous phone calls and several letters up and back between Amarillo and California.” When defense counsel denied such was the case, trial counsel conceded his lack of personal knowledge of the facts, and asked for an opportunity to establish relevant times and dates. The law officer saw no need to obtain such information, ruled there had been no “serious injury . . . done to the accused as a result of this delay,” and overruled the motion. Earlier, he had asked defense counsel whether accused had “been injured ... in any way” by his confinement for 63 days without preference of charges. In reply, counsel quite cogently pointed out:

“I would believe that the injury to the accused has been his being in the guardhouse without charges. I think a man has a right to know what he’s charged with. I think a man has a right not to be held if there’s no reason for holding him; prejudice to the individual. I think it’s an unreasonable confinement for no purpose.”

Defense counsel’s thoughts accurately reflect what Congress positively provided in the Uniform Code. Thus, it declared, in Code, supra, Article 10:

“. . . When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” [Emphasis supplied.]

More specifically, it provided in Code, supra, Article 33:

“When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.” [Emphasis supplied.]

When considered by the House Armed Services Committee, these Articles excited considerable attention. See Hearings before House Armed Services Committee on HR 2498, 81st Congress, 1st Session, pages 905-912. Congressman Anderson expressed considerable concern over the delays in prosecution of confined accused which occurred during World War II — “where a fellow was put in the clink and held there for weeks, sometimes months, before he was brought to trial.” Id., at page 906. Mr. Felix Larkin, General Counsel, Department of Defense, testified “the combination of [Articles] 33 and 98 is pretty good assurance that the cases will be speedily processed,” and “there is great desirability in that.” Id., at page 908. To insure that such was the case, Code, supra, Articles 10 and 33 were duly recommended for enactment and passed. House Report No. 491, 81st Congress, 1st Session, pages 13, 20; Senate Report No. 486, 81st Congress, 1st Session, pages 10,17.

In United States v Brown, 10 USCMA 498, 28 CMR 64, we carefully examined the import of these two statutory provisions, and declared, at page 503:

*64“From these provisions, 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, it is clear that whenever it affirmatively appears that officials of the military services have not complied with the requirements of Articles 10 and S3, 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.’ United States v Callahan, 10 USCMA 156, 27 CMR 230.” [Emphasis supplied.]

In the Brown case, the accused was confined on April 13, 1958. Charges were preferred twelve days later and received by the officer exercising general court-martial jurisdiction forty-eight days after his incarceration. This, we held, was sufficient to raise an issue of speedy trial in violation of Articles 10 and 33 and demand an explanation of delay by the Government. Lacking such, we reversed.

The case now before us presents an even more serious picture. Here, the accused was confined for sixty-three days without the preference of any charges. He was found in the stockade and released only because of a Congressional inquiry regarding another prisoner. And if this is not a sufficient indication on its face of a palpable disregard for duly enacted procedures regarding the prompt disposition of charges, it should be also pointed out that charges were not even preferred until twenty-seven additional days had elapsed, and these were in fact not tried until another twenty-nine days had passed. In short, this accused, though he confessed on the day of his confinement, was not tried thereafter until approximately 119 days had gone by. Were Congressman Anderson to note these figures, how well he might reflect that the days have not vanished when “a fellow was put in the clink and held there for weeks, sometimes months, before he was brought to trial”! House Hearings, supra, page 906.

Such a flat disregard of the Code’s provisions is more than sufficient to place the accused’s right to prompt prosecution in issue and to cast upon the Government the burden of explaining away the conceded delay. United States v Brown, supra. Rather than require such, however, the law officer inquired of defense counsel the manner in which this violation of law harmed the accused and, rather than require presentation of an explanation by the United States, ruled that such was not necessary — declaring, “I don’t feel it’s essential that we question it.”

The initial question of the law officer needed no answer, unless the Government believes a man suffers no injury by virtue of illegal imprisonment. He further expressed the view, without the slightest evidence to support it, that he was sure the trial counsel was correct in stating it had been necessary to get further evidence “and this information may not have been returned to this base as rapidly as other types of information.” (Emphasis supplied.) He found no “serious injury” to the accused “as a result of this delay,” and refused to dismiss the charges.

Of course I do not believe, as I did not in Brown, supra, that the accused was here entitled to an automatic dismissal of the charges. Under that case and Code, supra, Articles 10 and 33, he was, however, entitled to have the Government explain the circumstances of the delay and to dispel the aura of prejudice which surrounds an incarceration in excess of two months without charges. Though it conceded the defense presentation represented the facts, it offered, as my brothers admit, no evidence in explanation, and trial counsel declared that he had no personal knowledge of the matters. Indeed, as accused’s imprisonment was, on the record, accidentally discovered, it would seem there in fact may be no acceptable reasons for this unconscionable breach of the law. In any event, under United *65States v Brown, supra, an explanation was required. When the law officer refused to hear any, he committed prejudicial error and a rehearing should be ordered.

Turning to the views expressed in the principal opinion, much of what I have said above indicates the grounds for my disagreement therewith. It asserts no burden was placed on the defendant to show an unjustified delay. But the record shows the contrary. Not only did the law officer look solely to the defense in inquiring whether accused was injured, but he also expressly declined to hear the trial counsel’s offer of evidence in explanation. While the Government conceded the truth of the defense’s statement and a violation on its face of Code, supra, Articles 10 and 33, it, as the majority concede, presented not the slightest bit of evidence in explanation. Under these circumstances, a clear violation of the principle we enunciated in United States v Brown, supra, occurred, for we there said that, under such facts, it was the burden of the Government to explain the delay. Lacking such, it is obvious the law officer ruled simply on the basis that defendant had not shown he was injured and, hence, there was no need for the Government to explain the delay. In my view, his ruling was clearly and prejudicially erroneous.

I cannot leave this matter without expressing my continuing dismay at the cavalier disregard which has been shown by the armed services for the duly enacted provisions of the Code regarding prompt disposition of charges. This record and others which have come before us indicate the situation has not materially changed from that which led to the enactment of Code, supra, Articles 10 and 33. I am informed that, at one time, it was the services' practice to enforce time limits rigidly and to demand from commanders and staff judge advocates explanations of situations such as exist here. Apparently, these controls have either been discontinued or rendered largely ineffective. I suggest a return to their use. Otherwise, it is apparent that further legislation will be necessary to insure the right of an accused person to speedy prosecution of charges levied against him. Certainly, the Congress will be interested in noting how its mandates are ignored, and I should think the Department of the Air Force would be both embarrassed and ashamed that, in a day of push button warfare and rocketry, an American accused can be locked up in the stockade and forgotten for over two months, without even the preference of charges!

I would reverse the decision of the board of review and remand the case for a rehearing at which the reasons for the delay, if any, might be presented by the Government in accordance with our decision in United States v Brown, supra.