United States v. Schuller

5 C.M.A. 101, 5 USCMA 101, 17 C.M.R. 101, 1954 CMA LEXIS 395, 1954 WL 2588

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

In accordance with a number of previous Army decisions, a board of review reversed the accused’s conviction on the ground that the law officer had signed and submitted the pretrial Staff Judge Advocate’s advice to the convening authority. The Judge Advocate General has asked this Court to review the legal correctness of the board of review’s determination. In addition, we granted the accused’s petition for review to determine whether or not there was sufficient compliance with Article 34(a), Uniform Code of Military Justice, 50 USC § 605.

During the challenge procedure, trial counsel asserted that the “records of this case disclose no ground for challenge,” and the law officer, when asked, said that he “knew of no reason” which would constitute a ground for challenge against him. However, the law officer acted as Acting Staff Judge Advocate to the convening authority and had subscribed and submitted the pretrial advice required by Article 34, supra. In that document, he advised the convening authority that the expected evidence would establish that the accused was guilty of rape and wrongful appropriation, and that the specifications, which also included a charge of adultery, were “warranted by the evidence indicated in the report of investigation.” He recommended trial by general court-martial.

' Attached to the pretrial advice are certain certificates. One of' these, dated three days after the trial, is by the law officer. In it he says that on August 3, 1953, about a month before the trial, he reported for duty to Headquarters, Seventh Army. Almost immediately, he was told that he would be the Acting Staff Judge Advocate in the absence of the regular Staff Judge Advocate, who was going on a ten-day leave. He was also told by the regular Staff Judge Advocate that he had “examined the charge sheets and allied papers” in this case and he had directed the preparation of the Staff Judge Advocate’s advice under Article 34. Moreover, he was informed that he would probably be the law officer in this case. On August 12, the written “form advice” was submitted to him as Acting Staff Judge Advocate. He signed it “without reading or checking the file, or knowing anything about the expected evidence.” He gave no thought to the case until September 2, 1953, when he was named as law officer for the court which tried the accused. His first conscious realization of his previous connection with the case occurred when it was brought to his attention the day after the trial. Finally, he certified that he did not prejudge the accused’s guilt, and the advice that he signed was “made and directed” by the regular Staff Judge Advocate before he went on leave.

The law officer’s certificate is supported by one made by the regular Staff Judge Advocate. Since his statements are of particular importance, we set out the certificate in full:

“I certify that on or about 4 August 1953, the case of Sgt John E Schuller, the details of which were already known by me, was brought to my attention with a view to determining appropriate disposition. It was then reported to me verbally that the Investigating Officer was preparing his final report recommending trial by general court-martial.

I had already fully discussed the matter with the Chief of Staff, and knew that the Commanding General expected trial by general court-martial. I therefore directed that the charges be so referred immediately upon receipt of all necessary papers. I also directed the preparation of a formal recommendation of the Staff Judge Advocate to that effect. There was further discussion concerning personnel to comprise the court, in the course of which I indicated to Lt Col Roy H. Steele, JAGC, that he would be designated Law Officer. Lt Col Steele had reported for duty the preceding day, 3 August 1953, and knew nothing of the case.

I was absent from Headquarters from 5 August to 15 August, and upon my return verified that the case had been properly referred for trial. I also learned that Lt Col Roy H Steele, JAGC, had in my absence, signed a recommendation for trial, but it was my conclusion he was merely carrying out my directions as my agent, as I had left him no authority to exercise independent judgment in this matter.”

Two other certificates dated October 1953, are also appended to the pretrial advice. In one, trial counsel has certified that on “several occasions” he submitted his pretrial file, which included the Staff Judge Advocate’s advice, to defense counsel for use in preparation of the defense case. In the other certificate, defense counsel acknowledges receipt and use of the trial counsel’s file. He also states that on September 5, he was informed the law officer had acted as Acting Staff Judge Advocate. He then checked the file furnished him and found a carbon copy of the advice prepared for the signature of the Acting Staff Judge Advocate. However, he unqualifiedly denies he was ever aware of the fact that the law officer had signed the pretrial advice. To complete the background of the pretrial advice, we note the allied papers show that an Article 32 investigation was not ordered by the convening authority until August 5, 1953; the Investigating Officer’s report is dated August 6, 1953, and it was not forwarded until August 7.

The certificates of the law officer and the Staff Judge Advocate indicate a surprising deprivation, by legal officers of the Judge Advocate General Corps, of an important pretrial protection granted to an accused by the Uniform Code. Our decision in United States v. Guest, 3 USCMA 147, 11 CMR 147, clearly delineates the obligations of a Staff Judge Advocate. Yet, here a fundamental part of the pretrial procedures is described as mere “form.” Certainly, Congress never intended that the Staff Judge Advocate’s advice be regarded as an empty formality. See: Hearings before House Armed Services Committee, 81st Congress, 1st Session, on H.R. 2498, Uniform Code of Military Justice, pages 910-911. In disregard of his .statutory duty, a high-ranking legal officer has placed his signature on an instrument which purports to show that he personally examined the evidence, and that it was his considered professional opinion it supported the charges which he recommended for trial by general court-martial, when, actually, the report was signed and the recommendation made “without reading or checking the file, or knowing anything about the expected evidence.”

The Government maintains that the Acting Staff Judge Advocate was really only an agent of the regular Staff Judge Advocate, and the latter was the one who directed the preparation of the advice. This does not constitute a satisfactory answer. Apart from the fact that the Acting Staff Judge Advocate did not indicate he was merely acting for the regular Staff Judge Advocate, the responsibility for the advice is that of the person occupying the office at the time it is signed. Under Article 34, it is his duty to consider the evidence before making any recommendation. In this case, the-proper exercise of that responsibility was particularly important. The file contained a report'by a Medical Service Corps officer, who had been ordered by the accused’s Commanding Officer to investigate the incident out of which the charges arose. This report stated that the evidence did not support the charge of rape. In the pretrial advice it was set out that the “expected evidence . . . shows that accused . . . raped” the alleged victim. Significantly, the court acquitted the accused of that charge.

Even if we accept the Government’s claim of agency, it conclusively appears that the regular Staff Judge Advocate also overlooked his statutory duty to examine and evaluate the expected evidence before submitting the advice. He may have had some knowledge of the “details,” but it is obvious he never saw the investigating officer’s report. By his own admission, he was absent from August 5 to August 15; the formal pretrial investigation under Article 32 was not ordered until Au-¡ gust 5; and the investigation report itself is dated August 6, and was not forwarded until August 7. Manifestly, this officer could not have known what the investigating officer would find and what his recommendations would be. Thus, he certainly had not made an independent and informed appraisal of the evidence. The obvious conclusion to be drawn from their own certificates is that both these officers, however honest their intentions, deprived the accused of his right to have a qualified Staff Judge Advocate make an independent and professional examination of the expected evidence and submit to the convening authority his impartial opinion as to whether it supported the charges.

In addition to the plain disregard of Article 34, there is the failure of trial counsel and the law officer to disclose the latter’s prior connection with the case. Trial counsel declared that the records contained no ground for challenge; and when asked if he knew of any facts which would constitute a ground for challenge, the law officer replied, “I know of no reason.” But, according to the Manual, the fact that the law officer had acted as Staff Judge Advocate to the convening authority is a proper ground for challenge. Manual, paragraph 62/, page 92. It seems unusual that the latter should have forgotten his previous action as Staff Judge Advocate, since a rape case is by no means a run-of-the-mill affair; and he was specifically told by the regular Staff Judge Advocate, less than a month before, that he would probably be the law officer. We are, nevertheless, willing to accept his forgetfulness as a fact. However, under the Manual, trial counsel and the law officer have an affirmative duty to disclose any ground for challenge which may exist. Manual, supra, paragraph 62d, page 90. Neither made any such disclosure. In his own certificate, trial counsel does not even suggest that he did not know of the disqualification of the law officer. Instead, he says only that he made his pretrial file available to the defense counsel, and that the file contained the original advice. On the other hand, defense counsel has unequivocally denied he knew the law officer had signed the pretrial advice as Acting Staff Judge Advocate. He admits, however, that the file given to him contained an unsigned carbon copy of the advice. The Government has seized upon these circumstances to assert a claim of waiver of the right to challenge.

In United States v. Glaze, 3 USCMA 168, 11 CMR 168, we pointed out that defense counsel may be chargeable with knowledge of such facts constituting a ground for challenge as can be ascertained from “a cursory glance” at the order appointing a court member. We reached that conclusion because a copy of the order appointing the court is given directly to defense counsel at the start of the challenge procedure, and it is plainly intended to be used by him for challenge purposes. See: Manual, supra, Appendix 8<x, page 501. These conditions do not apply to the pretrial advice. See: Manual, paragraphs 35c, 44h, pages 50, 65. However, we need not determine whether the inclusion of the advice in the file given to defense counsel would, by itself, be a sufficient predicate for application of a doctrine of implied waiver. We are satisfied that to apply that doctrine to the facts of this case would be unjust.

The primary responsibility for disclosing grounds for challenge, which appear from the preliminary proceedings, rests upon the trial counsel. Manual, paragraph 626, pages 89-90. Even if the law officer was unaware of his own disqualification, the trial counsel does not assert a like lack of awareness. On the other hand, the defense counsel unequivocally states that he did not know of the law officer’s previous connection with the’ case. We are unwilling to charge the accused with the consequences of a,' failure to exercise due care, when it-appears that trial counsel had actual knowledge of the disqualification, but still failed to disclose it, as it was his; duty to do.

We turn now to a consideration of' the effect of the errors on the substantial rights of the accused. In United States v. Bound, 1 USCMA 224, 2 CMR 130, we discussed the failure to excuse forthwith a member of the court who had acted as an investigating officer in the same case. Although wes found that the ground of disqualification was self-operating within the meaning of the Manual, we expressly refused to decide whether the error was of such a nature as to require application of the doctrine of general prejudice. In that ease, we preferred to reverse the conviction on a finding of specific prejudice. The disqualification here affects the law officer. This difference may require a different approach. Thus, disqualification by reason of prior action as Staff Judge Advocate to the convening authority may perhaps be generally equivalent to the disqualification of a Federal judge who has previously acted as District Attorney in the same case. Disqualification of that nature precludes the judge from sitting in the case, and any proceedings taken by him must be set aside. 28 USC § 455; United States v. Vasilick, 160 F2d 631 (CA3d Cir 1947). However, in view of the action which we propose to take, we need not pass upon this difference, and we express no opinion on the effect of the disqualification.

' We recognize that, under Article 34, the convening authority, not the Staff Judge Advocate, actually makes the final decision as to whether the expected evidence is sufficient to support the charges, and whether they should be referred to trial. This factor may have a bearing on the nature of the disqualification of the law officer which we have just discussed, but, again, we express no opinion on that matter. Our interest is in the fact that the convening authority was given an advice which purported to show a legal evaluation of the sufficiency of the evidence. If we presume regularity, we cannot doubt that his decision to refer the charges to trial was substantially influenced by the advice of his Staff Judge Advocate. Yet, that advice was not based upon any ex-animation of the evidence. Essentially, therefore, the convening authority himself did not make a proper determination of the sufficiency of the evidence. On the other hand, if we look to the statement of the regular Staff Judge Advocate that he discussed the case with the Chief of Staff and knew the expectations of the convening authority, we find a disturbing intimation that the convening authority himself had determined to refer the charges to trial, without first finding, as required by Article 34(a), that the evidence indicated in the report of investigation warranted such action. The Staff Judge Advocate knew that on August 4 the convening authority “expected trial by general court-martial.” However, the order directing an Article 32 investigation was not made until August 5, the report itself is dated August 6, and was forwarded on August 7. In either event, the convening authority could not have properly complied with the requirements of Article 34. The importance of compliance with, at least, this part of Article 34 is self-evident. In fact, Article 34 has recently been referred to by the United States Court of Appeals for the District of Columbia Circuit as justification for denial of a petition for habeas corpus. After he had been taken into custody on a charge of murder alleged to have been committed before his separation, a discharged service man sought release from the military authorities. One of the claims advanced was that to permit the military to try him would be a denial of basic due process rights, in the preliminary proceedings, which are accorded civilians. In rejecting this argument, the Court of Appeals said:

“This contention as to preliminary hearing really falls into two parts. The first concerns a hearing preliminary to trial. The second concerns a hearing preliminary to removal to the place of trial. In criminal cases in the courts the constitutional requirement for indictment affords opportunity for inquiry by an independent tribunal into probable cause before the accused is put to his defense. The Constitution specifically excepts cases arising in the land or naval forces from the requirement of indictment. But the Uniform Code of Military Justice makes elaborate provisions for preliminary hearing before the accused is put to trial. Article 32 of the Code provides that charges shall not be referred to a general court-martial for trial until a ‘thorough and impartial’ investigation has been made. At such ‘investigation’ the accused has the right to counsel, civilian or military, and full opportunity to cross-examine witnesses against him. and to present anything he may desire in his own behalf. If the charges are then forwarded, a statement of the substance of the testimony taken on both sides must accompany them. Article 34 provides that before directing trial the convening authority must secure the consideration and advise of his legal officer and shall not refer a charge for trial unless he has found that the charge is warranted by the report of the evidence upon investigation. These provisions of the Uniform Code seem to afford an accused as great protections by way of preliminary inquiry into probable cause as do requirements -for grand jury' inquiry and indictment. The record indicates, and indeed we must assume in the absence of showing to the contrary, that Toth will be afforded the full protection provided by the Uniform Code. Thus the basic purpose of a hearing preliminary to trial is being met by a method designed pursuant to constitutional provisions, and the method meets all elements essential to due process in that feature of the proceedings.” [Talbot v. Toth, 215 F2d 22, 28 (CA DC Cir).]

We need not decide whether Article 34 was completely disregarded. It is clear that the Staff Judge Advocate’s advice was prepared without compliance with the Article. Since this fictitious advice was given to the convening authority, there can be no doubt that he was influenced by it. These actions deprived the accused of important pretrial protections. When these deprivations are coupled with the failure of trial counsel and the law officer to disclose the latter’s previous connection with the case, we think that reversal of the conviction is proper.

In reaching this conclusion, we have not overlooked the respective claims of the Government and the accused that a board of review does not have the power to consider the pretrial advice as part of the record subject to review. The Government maintains that the advice is not part of the record. Conversely, the accused argues that the advice is part of the record, but claims that the certificates should not be considered with the advice.

The Uniform Code does not indicate what constitutes the record of trial. Article 60, 50 USC § 647, provides that after trial by general court-martial, “the record shall be forwarded to the convening authority.” After taking final action, the convening authority is required to “forward the entire record” to the appropriate Judge Advocate General. Article 65, Uniform Code, 50 USC § 652. In cases required to be reviewed by a board of review, “the record” is referred to that body and it makes its determination “on the basis of the entire record.” Article 66, Uniform Code, supra, 50 USC § 653. Further review by this Court is “on the record.” Article 67 (5), Uniform Code, supra, 50 USC § 654.

The Government relies on our opinion in United States v. Harvey, 2 USCMA 609, 10 CMR 107. In that case we pointed out the record did not include evidence which was not presented to the court-martial but was considered by the Staff Judge Advocate in his post-trial review. That principle does not apply to the issue in this case. The problem here is whether an appellate tribunal may consider the validity of important pretrial procedures, which are not only intended for the personal protection of an accused, but constitute an essential part of the military justice system. Military appellate tribunals have long regarded the pretrial advice as subject to their review for that purpose. See: United States v. Thorpe [CM 360188], 9 CMR 351, and cases cited therein. In United States v. Anderten, 4 USCMA 354, 15 CMR 354, this Court looked to the pretrial advice for the purpose of determining whether there had been compliance with Article 49 (/), 50 USC § 624. We think it may also be considered for the purpose of showing compliance with Article 34, and for appellate review of the grounds for challenge, particularly since the Manual clearly contemplates that trial counsel will refer to the advice to ascertain whether the law officer previously participated in the case. Manual, supra, paragraph 626, pages 89-90. Inasmuch as the advice may be considered in the appellate review, surely papers intended as corrections to it may also be considered. See United States v. Walters, 4 USCMA 617, 16 CMR 191. Consequently, we hold that the board of review had the power to review, as part of the case, the pretrial advice and its corrective certificates.

The decision of the board of review is affirmed.

Judge BROSMAN concurs.