United States v. Reinking

2 C.M.A. 360, 2 USCMA 360

• Court: United States Court of Military Appeals
• Decided: March 26, 1953
• Docket: No. 2028
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

This ease is here on certificate from The Judge Advocate General of the Army. The board of review has reversed a general court-martial conviction on the ground that an illegal consultation between the law officer and the court outside the presence of the accused and his counsel resulted in prejudicial error.

The record reveals that the law officer was twice called into the closed session. The first time, the president inquired as to the effect of differences in dates between the evidence and the specification. The law officer advised the court as to the page reference in the Manual for Courts-Martial, United States, 1951, for the form of making exceptions and substitutions but told them that he could give no instructions on the law in closed session. The second conference occurred when the court was deliberating on a defense motion for a finding of not guilty. The president inquired as to the vote necessary to sustain or deny the motion. The law officer repeated his previous open-court reference to a certain page in the Manual and went no further.

It is our conclusion that in neither of these conferences did the law officer participate in the deliberations of the court. Accordingly, reversal is not required. United States v. Miskinis and Pontillo (Nos. 1535, 1536, 1579), 8 CMR 73, decided March 5, 1953. The decision of the board of review is reversed and the case is remanded to The Judge Advocate General for referral to the board of review for further consideration in the light of this opinion.