United States v. Livingston

FULTON, Senior Judge,

concurring:

I concur in our disposition of each of the assigned errors. There is, however, a very disturbing aspect of this case that warrants special mention. After the charges against the appellant were referred to trial, the military judge detailed to the court was changed by amendment of the convening order. The assistant trial defense counsel questioned the substituted judge, who happened to be the chief judge of the circuit, about the rumored possibility that the change in detailed judges had come about because the convening authority disagreed with the originally detailed judge’s view of the law pertaining to ration control violations.1 When no information to support such a conclusion appeared, the defense abandoned the effort and did not challenge the trial judge or seek other relief.

The record of trial discloses the following interesting and questionable sequence of events. Court-Martial Convening Order No. 2, dated 26 January 1978, convened a special court-martial consisting of Judge Kaplan and ten officer members. A trial counsel and defense counsel also were detailed. On 25 April 1978, the Charge that appellant violated Article 92 (UCMJ, 10 U.S.C. § 892 (1976)) with six specifications alleging excessive purchases of controlled merchandise was referred to trial by that court. An amendment (Court-Martial Convening Order No. 11) dated 18 May 1978 relieved the trial and defense counsel for the appellant’s case only and substituted the counsel who actually conducted the case (an assistant defense counsel was added by a subsequent amendment). The same orders relieved Judge Kaplan for the trial of two named accused (not the appellant) and substituted Judge Hammack in those two cases.

*643On the day before the appellant’s court convened in an Article 39(a) session,2 Court-Martial Convening Order No. 16, 19 June 1978, was promulgated, relieving Judge Kaplan and all ten officer court members for the appellant’s trial and substituting Judge Hammack and six new officer members for the appellant’s trial.3 It was at this Article 39(a) session that the assistant defense counsel questioned the reason for the change in detailed judges.

The assistant defense counsel broached his inquiry into the change of trial judges by stating that, “Recently we have been informed that the convening authority will not detail Captain Kaplan to any ration control cases, as before, the case was put on trial with Captain Kaplan. Do you have any idea why this has been done?” I interpret Judge Hammack’s reply (he being the chief circuit judge) as indicating clearly that he, rather than convening authorities, determined judicial assignments within the circuit and that there had been no change in judicial assignments for this case so far as he was concerned. Counsel seemed satisfied with that explanation. When he again alluded to the rumor concerning referrals to Judge Kaplan, the trial counsel responded that he had found no basis for the rumor, and the assistant defense counsel then suggested that it may have come from the 2d Division (a different court-martial jurisdiction). As I have previously indicated, I do not regard the chief circuit judge’s assignment responsibilities, which presently are reflected in paragraphs 9-6 and 9-7 of Army Regulation 27-10, Military Justice (November 1968, as changed by amendments through Change No. 17, 15 August 1977) , as conflicting with the decision in United States v. Newcomb, 5 M.J. 4 (C.M.A.1978).4

The absence of evidence of impropriety in the detail of a military judge to this case does not, however, make me entirely comfortable with the procedures involved. In United States v. Hardy, 4 M.J. 20 (C.M.A.1977), the Court of Military Appeals dealt with a possibility that the discretion of a subordinate convening authority may have been improperly interfered with by a superior authority and the subordinate required to withdraw charges from the inferior court to which he had referred them. Because of the difficulty in reviewing such cases, the Court of Military Appeals now requires “an affirmative showing on the record of the reason for withdrawal and rereferral of any specification.” That is because, the Court said, “Only in this way can we assure compliance with the admonition of paragraph 56a of the Manual that ‘[i]n no event will a specification or case be withdrawn arbitrarily or unfairly to the accused.’ ” Id. at 25. We have held that this requirement applies as well to cases in which the only convening authority involved withdraws all charges from one court and refers them to another of his own choosing having the same jurisdiction. United States v. Meckler, 6 M.J. 779 (A.C.M.R.1978), pet. denied, 6 M.J. 779 (C.M.A.1979).

An analogous event transpired here. Changing the military judge and all of the members after the case was referred to trial (not to mention changing all of the members a second time and after the trial had begun at that) is analogous to withdrawing the charges from one court and referring them to another. Unexplained, it is a move that scarcely can enhance the reputation of the military justice system; in fact, such actions feed the fires of criticism. One experienced in the administration of military justice in the field readily can conceive of cogent administrative and *644entirely innocent reasons why such maneuvers might be necessary. Silence on the record, however, requires too much of appellate imagination (which in any event cannot rise to the level of judicial notice). I strongly suggest that trial counsel follow the Hardy rule in such cases as this one.5 Respect for the military justice system deserves no less.

. It is the chief circuit judge’s reply that he, rather than a convening authority, determined which judge would sit in a given case that affords the basis for the contention, advanced for the first time on appeal, that the convening authority did not personally “detail” the military judge as required by Article 26(a), Uniform Code of Military Justice, 10 U.S.C. § 826(a) (1976). See United States v. Newcomb, 5 M.J. 4 (C.M.A.1978). The lead opinion holds this record sufficient to support a conclusion that the convening authority did personally detail the trial judge. “Detail” does not, of course, connote that a convening authority may “pick and choose” from among some or all of the judges designated as such by The Judge Advocate General for any reason, much less because of dislike for a judge’s ruling in some prior case. The longstanding Army procedure of having a chief circuit judge determine the availability of judges in the circuit (including himself) for particular trials may have implied legislative sanction since the Congress chose to make statutory the Army’s independent judiciary system by means of the Military Justice Act of 1968, Pub.L. 90-632, 82 Stat. 1335. Once the question of availability is determined, the convening authority, and not one of his subordinates, must make the final decision that the named judge will be detailed to the particular court. 1 read Newcomb as saying no more.

. Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a) (1976).

. Nor was this the last change made. When, in the Article 39(a) session, the trial counsel was accounting for the absent members, he, besides naming the six officers, also named four enlisted men who are neither mentioned in Convening Order No. 16 nor in any other order in our copy of the record. Furthermore, two days later and one day before trial on the merits, the six new officer members were replaced by still six more officers (one of whom had been among the ten originally appointed).

. Note 1, infra.

. I subscribe to the view that rules of judicial convenience “should not be utilized to impose onerous burdens upon the Government that are not within the framework of the Uniform Code and the procedural requirements of the Manual for Courts-Martial, United States, 1969 (Revised edition).” United States v. Iverson, 5 M.J. 440, 447 (C.M.A.1978) (Cook, J., concurring in the result). Accordingly, and despite having adopted the view that the procedural requirement imposed in United States v. Hardy, 4 M.J. 20, 25 (C.M.A.1977), is not limited to the particular facts of that case — United States v. Meckler, 6 M.J. 780 (A.C.M.R.1978), pet denied, 6 M.J. 779 (C.M.A.1979) — I do not suggest the formalization of a rule; only the wisdom of a practice to avoid needless appellate litigation if not indeed harsher results.