United States v. Clisson

5 C.M.A. 277, 5 USCMA 277, 17 C.M.R. 277, 1954 CMA LEXIS 373, 1954 WL 2603

• Court: United States Court of Military Appeals
• Decided: December 17, 1954
• Docket: No. 4635
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

This case concerns the legality of the initial post-trial review of the accused’s conviction.

The accused was tried by a general court-martial convened by the Commander, Flying Training Air Force, whose Headquarters are in Waco, Texas. The court sat at Ellington Air Force Base, Houston, Texas. Pursuant to the appointing orders, Major Dean E. Delafield prosecuted the case as trial counsel.

After the accused’s conviction and in compliance with a Flying Training Air Force regulation, Major Delafield prepared a report entitled “Post-Trial Interview.” This report sets out the highlights of the accused’s civilian and military background. In respect to the latter, it appeax-s that, prior to his transfer to Ellington Air Force Base, the accused was assigned duties of a highly technical nature. Among his accomplishments in this field was the perfection of the installation of aural null equipment for link trainers. This earned the accused a special commendation. Parenthetically, at the time of commission of the offenses, the accused was acting as prison sergeant at the base stockade. The report also related the substance of interviews with the accused’s squadron commander, the prison chaplain, and the confinement officer. The Chaplain specifically recommended that the accused be retained in the service, because he believed that the accused’s personal problems, which apparently led to the commission of these offenses, could be eliminated; and that, if properly utilized, the accused’s unique abilities would be of great value to the Air Force. The confinement officer does not appear to have made any specific recommendations, but the report notes that it was his opinion “the accused has a fine character. That evidently family trouble had caused the recent troubles of the accused, and he would like to speak a good word for him.” The squadron commander also adverted to the accused’s special capabilities, but he indicated he did not believe that the accused’s personal problems were solved. Major Delafield, however, advocated approval of the entire sentence imposed by the court. In the concluding parts of his repoi't, he said:

“. . . However, the accused is a person who, in the present state of mind, cannot be trusted. It is believed that he has suffered considerably with his family problems. It was evident that he dislikes his wife very much by the fact that he refuses to talk about her. There appears to be an emptiness in his life which cannot be filled by work. He is highly capable, but I do not believe the military can offer him any type of work which would relieve his inward tension created by his family problems.

“Considering the seriousness of the offenses of which this accused stands convicted, the fact that he was given an opportunity within the last half year to correct his attitude and to display his trustworthiness, in which he failed by committing these present acts, and because the accused is not a person who will be able to overcome his family situation within the forseeable future, it is recommended that the sentence as adjudged by the court be approved.”

Major Delafield signed the report as “Staff Judge Advocate.” It was forwarded to the Commander, Flying Training Air Force, with the record of trial. A paraphrase of it constitutes the Clemency Section of the review by the Commander’s staff judge advocate. That part of the Delafield report which is quoted above is also quoted in the staff judge advocate’s review. The latter ends with the following remark:

. . In my opinion the sentence imposed by the court in this case upon conviction of the accused for offenses for which punishment of dishonorable discharge and confinement for over ten years could have been imposed constitutes sufficient clemency action and I agree with the conclusions of the Wing Staff Judge Advocate that the sentence should be approved and executed.”

In United States v. Coulter, 3 USCMA 657, 14 CMR 75, we pointed out that under Article 6(c), Uniform Code of Military Justice, 50 USC § 556, a trial counsel may not thereafter act as staff judge advocate to the reviewing authority. The Government contends that the Coulter case is distinguishable because Major Delafield did not at any time act as staff judge advocate to the Commander, Flying Training Air Force, the initial reviewing authority in this case. Under the facts of this case, the distinction is one of form and not of substance.

Article 6(c) of the Uniform Code is designed to assure a fair and impartial review. Fairness and impartiality are demanded not only with respect to the law, but in connection with the sentence. Here, as in United States v. Coulter, supra, we do not doubt the personal integrity of trial counsel, but we cannot overlook the fact that his previous antagonistic role prevents his exercising that degree of impartiality required by the Code.

No doubt trial counsel may be asked for his personal recommendations regarding the sentence, and these may be considered by the staff judge advocate even though they are colored by the former’s previous connection with the case. But that is not the situation here. It is apparent that Major Dela-field’s report was not considered by the convening authority as that of a trial counsel, but rather as that of the staff judge advocate of the command at which the court sat. Undeniably, it was expressly described as a report emanating from the person occuyping that office. Implicit in that description is a representation that the report was prepared by a person having no disability by reason of previous association with the case. Therefore, it seems that the reviewing authority’s staff judge advocate’s report is so tainted by the impropriety of Major Delafield’s report as to fall short of that degree of impartiality contemplated by Article 6 of the Uniform Code.

Having determined that prejudicial error is present in the post-trial review, the question arises as to what corrective action should be taken. Con-cedely, the error did not deprive the accused of important pretrial protections. It did not in any way affect the findings of guilt or the sentence adjudged by the court. Consequently, it appears appropriate to return the case for corrective action to the level of proceedings at which the error occurred. See United States v. Sonnenschein, 1 USCMA 64, 1 CMR 64. True, in United States v. Crunk, 4 USCMA 290, 15 CMR 290, and United States v. Coulter, supra, we thought it advisable, in the interests of justice, to order a rehearing rather than return the case to the convening authority for corrective action. Cf. United States v. Deain, 5 USCMA 44, 17 CMR 44. But, in the instant case, we believe that the accused will have the full benefit of all protections afforded him if we direct a new review and a reconsideration of the case by the convening authority on the basis of that review. Accordingly, we reverse the decision of the board of review and return the case to the convening authority. We order that, in accordance with Article 61, Uniform, Code of Military Justice, 50 USC § 648, he refer the record for post-trial review to a qualified staff judge advocate who has had no previous connection with this case, and who will review the record with the impartiality and fairness required by the Uniform Code.