Opinion of the Court
FERGUSON, Judge:
Tried by general court-martial, the accused was found guilty of conspiracy, absence without leave, offering violence to a superior officer, escape from custody, resisting apprehension, wrongful sale of Government property, larceny, and aggravated assault, in violation, respectively, of Uniform Code of Military Justice, Articles 81, 86, 90, 95, 108, 121, and 128, 10 USC §§ 881, 886, 890, 895, 908, 921, and 928. He was sentenced to dishonorable discharge, forfeiture of all pay .and allowances, reduction, and confinement at hard labor for eight years. The convening authority modified one of the findings of guilty and reduced the confinement portion of the sentence to five years. With one member dissenting, the board of review affirmed but found only four years of confinement, together with the other penalties adjudged, appropriate. We granted accused’s petition for review upon numerous assignments of error. It is, however, necessary only to discuss the contention that:
“The accused was denied the right to a fair and impartial trial.”
[672]*672The evidence adduced at the trial tends to establish that the accused, together with other Marines and Native Okinawans, took advantage of the deplorable lack of security measures at his station to engage in large scale thefts and sales of Government property. In January 1961, he apparently became aware of a tendency on the part of one of his fellow conspirators to talk to others about their criminal activities. In order to impress a need for silence upon this Marine — one Corporal Bres-lin — accused and another sergeant subjected him to a severe beating. Bres-lin’s need for medical attention led to exposure of the entire ring.
On January 26, 1961, accused was confined to the station brig. There, he was placed in what the United States euphemistically describes as “segregation.” His accommodations consisted of a cell five feet wide, seven feet long, six and one-half feet in height, known colloquially as the “box.” The walls and floor were of solid concrete. The door was of solid steel construction. Two small hooded ventilators served to admit air. There was no light and no furniture. Accused was provided with four blankets and received three full meals daily. These were delivered to him cold and he was required to eat in the dark with a spoon. He was not allowed to lie down between reveille and retreat, and his sole infraction of brig regulations consisted of being found asleep on the cell floor during daylight hours by the medical officer to whom he was “disrespectful” by failing promptly, and in accordance with confinement rules, to come to attention with his toes against a painted yellow line. He was not punished for this “offense,” as the sole additional penalty which could have been imposed was reduction of his diet. The latter constituted the only distinction between accused’s solitary confinement and that imposed upon other prisoners as a purely punitive measure.
West remained in solitary confinement from January 25 until January 28. On the latter date, he was transferred to an Army hospital for treatment of delirium tremens. He was returned to the brig and confined again in the “box” on February 3. On the following day, he was released from confinement to assist criminal investigators in apprehending his Okinawan co-conspirators. He remained free of restraint until February 22. On that day, he absented himself without authority. On March 6, he was apprehended and again placed in the “box.” On April 8, while outside the brig in the custody of a unit guard, he escaped. He was recaptured a few hours later and returned to the “box.” West remained there until April 22, on which date he was released from “segregation” upon the complaint of his individual defense counsel. He, however, remained confined in the brig until transferred to the Joint Services Stockade on July 7, 1961.
Accused’s trial commenced on July 12, 1961. He was driven to and from the court in a box mounted on the rear of a truck and, surrounded by guards, was required to change clothing in a position easily visible to the court members. At the commencement of the trial, five guards armed with shotguns were also permitted to patrol the courtroom. For the first three days of the trial, accused was required to appear in a prisoner’s uniform marked with yellow paint. From the fourth day onward, he was permitted to dress in utility clothing. He was not allowed to shave before attending court. At the commencement of the proceedings, individual defense counsel brought the foregoing matters to the law officer’s attention. He ruled that the security arrangements would be modified in order to make the guards and truck less conspicuous. He also ordered that the trial counsel take appropriate action to see that the accused was allowed to shave and to wear an appropriate uniform and those decorations to which he might be entitled. Repetition of the defense request for relief apparently resulted, as noted above, in accused’s appearance, still unshaven, in fatigues on the fourth day of the trial.
It is also worthy of note the trial counsel declared that he had contacted accused’s commanding officer four times with respect to West’s appearance but nothing had been done. Trial counsel [673]*673also stated, with respect to the original security measures, that, “I dislike the atmosphere as it affects, or I should say what is going on here as it affects the judicial atmosphere.” Nevertheless, it appears that the court members were still permitted to view the accused, with his “army of guards” being unloaded from and loaded into his vehicular “box” throughout the trial.
The appellate defense counsel urges upon us the contention that the foregoing security measures, deprivation of proper uniform and accessories, and the pretrial confinement were tactics in which the accused’s superiors deliberately engaged in order to present him to the court-martial, from the hour of its assembly, as a desperate criminal deserving of severe punishment. The Government responds with the hollow argument that accused’s remedy was to prefer charges under Code, supra, Article 98, 10 USC § 898, and that, in any event, he suffered no prejudice from the circumstances of his pretrial detention or his appearance in court.
Although we find it strange that neither the brig officer, the provost marshal, nor the criminal investigators who testified were able to state the source of authority or motivation for accused’s solitary confinement prior to his eventual escape from custody, we are reluctant on the basis of this jumbled record specifically to impute to the convening authority or his subordinates a designed attempt to strip West of rights so clearly secured to him under the Uniform Code of Military Justice. That we hestitate exactly to place responsibility does not mean we are not clearly aware of the pernicious result of these measures, for we are certain they designedly operated to deprive the accused of the fair and impartial hearing to which he was entitled.
The first factor which leads us to this conclusion is accused’s solitary confine-ment. Aside from any coercive effect it may have had with respect to his pretrial statements and cooperation with criminal investigators, it is chiefly important as a framework adding depth and color to subsequent events transpiring in connection with the actual trial.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
FERGUSON, Judge:
Tried by general court-martial, the accused was found guilty of conspiracy, absence without leave, offering violence to a superior officer, escape from custody, resisting apprehension, wrongful sale of Government property, larceny, and aggravated assault, in violation, respectively, of Uniform Code of Military Justice, Articles 81, 86, 90, 95, 108, 121, and 128, 10 USC §§ 881, 886, 890, 895, 908, 921, and 928. He was sentenced to dishonorable discharge, forfeiture of all pay .and allowances, reduction, and confinement at hard labor for eight years. The convening authority modified one of the findings of guilty and reduced the confinement portion of the sentence to five years. With one member dissenting, the board of review affirmed but found only four years of confinement, together with the other penalties adjudged, appropriate. We granted accused’s petition for review upon numerous assignments of error. It is, however, necessary only to discuss the contention that:
“The accused was denied the right to a fair and impartial trial.”
[672]*672The evidence adduced at the trial tends to establish that the accused, together with other Marines and Native Okinawans, took advantage of the deplorable lack of security measures at his station to engage in large scale thefts and sales of Government property. In January 1961, he apparently became aware of a tendency on the part of one of his fellow conspirators to talk to others about their criminal activities. In order to impress a need for silence upon this Marine — one Corporal Bres-lin — accused and another sergeant subjected him to a severe beating. Bres-lin’s need for medical attention led to exposure of the entire ring.
On January 26, 1961, accused was confined to the station brig. There, he was placed in what the United States euphemistically describes as “segregation.” His accommodations consisted of a cell five feet wide, seven feet long, six and one-half feet in height, known colloquially as the “box.” The walls and floor were of solid concrete. The door was of solid steel construction. Two small hooded ventilators served to admit air. There was no light and no furniture. Accused was provided with four blankets and received three full meals daily. These were delivered to him cold and he was required to eat in the dark with a spoon. He was not allowed to lie down between reveille and retreat, and his sole infraction of brig regulations consisted of being found asleep on the cell floor during daylight hours by the medical officer to whom he was “disrespectful” by failing promptly, and in accordance with confinement rules, to come to attention with his toes against a painted yellow line. He was not punished for this “offense,” as the sole additional penalty which could have been imposed was reduction of his diet. The latter constituted the only distinction between accused’s solitary confinement and that imposed upon other prisoners as a purely punitive measure.
West remained in solitary confinement from January 25 until January 28. On the latter date, he was transferred to an Army hospital for treatment of delirium tremens. He was returned to the brig and confined again in the “box” on February 3. On the following day, he was released from confinement to assist criminal investigators in apprehending his Okinawan co-conspirators. He remained free of restraint until February 22. On that day, he absented himself without authority. On March 6, he was apprehended and again placed in the “box.” On April 8, while outside the brig in the custody of a unit guard, he escaped. He was recaptured a few hours later and returned to the “box.” West remained there until April 22, on which date he was released from “segregation” upon the complaint of his individual defense counsel. He, however, remained confined in the brig until transferred to the Joint Services Stockade on July 7, 1961.
Accused’s trial commenced on July 12, 1961. He was driven to and from the court in a box mounted on the rear of a truck and, surrounded by guards, was required to change clothing in a position easily visible to the court members. At the commencement of the trial, five guards armed with shotguns were also permitted to patrol the courtroom. For the first three days of the trial, accused was required to appear in a prisoner’s uniform marked with yellow paint. From the fourth day onward, he was permitted to dress in utility clothing. He was not allowed to shave before attending court. At the commencement of the proceedings, individual defense counsel brought the foregoing matters to the law officer’s attention. He ruled that the security arrangements would be modified in order to make the guards and truck less conspicuous. He also ordered that the trial counsel take appropriate action to see that the accused was allowed to shave and to wear an appropriate uniform and those decorations to which he might be entitled. Repetition of the defense request for relief apparently resulted, as noted above, in accused’s appearance, still unshaven, in fatigues on the fourth day of the trial.
It is also worthy of note the trial counsel declared that he had contacted accused’s commanding officer four times with respect to West’s appearance but nothing had been done. Trial counsel [673]*673also stated, with respect to the original security measures, that, “I dislike the atmosphere as it affects, or I should say what is going on here as it affects the judicial atmosphere.” Nevertheless, it appears that the court members were still permitted to view the accused, with his “army of guards” being unloaded from and loaded into his vehicular “box” throughout the trial.
The appellate defense counsel urges upon us the contention that the foregoing security measures, deprivation of proper uniform and accessories, and the pretrial confinement were tactics in which the accused’s superiors deliberately engaged in order to present him to the court-martial, from the hour of its assembly, as a desperate criminal deserving of severe punishment. The Government responds with the hollow argument that accused’s remedy was to prefer charges under Code, supra, Article 98, 10 USC § 898, and that, in any event, he suffered no prejudice from the circumstances of his pretrial detention or his appearance in court.
Although we find it strange that neither the brig officer, the provost marshal, nor the criminal investigators who testified were able to state the source of authority or motivation for accused’s solitary confinement prior to his eventual escape from custody, we are reluctant on the basis of this jumbled record specifically to impute to the convening authority or his subordinates a designed attempt to strip West of rights so clearly secured to him under the Uniform Code of Military Justice. That we hestitate exactly to place responsibility does not mean we are not clearly aware of the pernicious result of these measures, for we are certain they designedly operated to deprive the accused of the fair and impartial hearing to which he was entitled.
The first factor which leads us to this conclusion is accused’s solitary confine-ment. Aside from any coercive effect it may have had with respect to his pretrial statements and cooperation with criminal investigators, it is chiefly important as a framework adding depth and color to subsequent events transpiring in connection with the actual trial. The equivocal and evasive testimony of those charged with his safekeeping clearly establishes that security and discipline played little if any part in the decision to place him in the darkened “box.” And deprivation of furniture, bedding, reading material, hot meals, and illumination smack strongly of punishment. Indeed, the brig officer testified that the only additional punitive measure available in the facility was reduction of diet. It appears, therefore, necessary forcibly to call attention to our decision in United States v Bayhand, 6 USCMA 762, 21 CMR 84. Therein, we stated, at page 768:
“From the foregoing, the conclusion is inescapable that Congress, the framers of the Manuals for Courts-Martial, and the Army must have recognized that gross injustices might result from any confinement system in which one accused of crime was treated no better than one proved guilty. Therefore, to eliminate any and all forms of punishment prior to trial, except that which is inherent in all confinement, laws and regulations were enacted to protect the untried confinee. It must be remembered that the only valid ground for ordering confinement prior to trial is to insure the continued presence of the accused, as where he has earlier indicated that his obligation to remain with his unit weighs lightly with him, or where the seriousness of the offense alleged is likely to tempt him to take leave of his surroundings.” [Emphasis supplied.]
If an accused should not be confined except upon these “valid grounds,” then a fortiori, the limitation upon his freedom of action should not extend to punishment which is not only unauthorized but, indeed, forbidden to be adjudged by courts-martial. United States v Stiles, 9 USCMA 384, 26 CMR 164. Cf. Code, supra, Articles 13, 15, 10 USC §§ 813, 815, and United States v Williams, 10 USCMA 615, 28 CMR 181.
[674]*674Passing to the trial, we come directly to grips with the question whether ac-cused received a fair hearing. At the outset, it is apparent once again that unusual security measures were taken at the court-martial. We have no disposition to argue with the occasional need for special restraints to insure against the possible escape of an accused or to prevent violent conduct on his part. Indeed, the circumstances may dictate that he be shackled or that a sufficient number of guards be provided in or out of the courtroom. United States v Henderson, 11 USCMA 556, 563, 29 CMR. 372, 379; United States v Payne, 12 USCMA 455, 462, 31 CMR 41, 48, The issue is one ultimately to be resolved by the law officer in the exercise of a sound discretion. While he acted here and directed that the guards be made more inconspicuous and that accused’s entry and departure from the scene of the trial take place less obviously, it does not appear that his order was wholly followed. Rather, it would seem that those responsible for accused’s security continued to surround him with guards and caused him to dress and undress in the presence of the court members. At no time was any instruction given to the court-martial with respect to disregarding these actions in connection with their deliberations. See United States v Payne, supra. Moreover, we are impressed by the effect which the guards and prison transport admittedly had upon the trial counsel in connection with the atmosphere in which the court-martial was conducted. Recognizing that the law officer sought to correct the situation, we are forced to conclude that his orders were rendered ineffective by the failure fully to comply with their terms. Accordingly, we believe that more than a fair risk exists that the security measures here employed contributed in no small part to depriving accused of an opportunity to be heard impartially.
Finally, we turn to the apparent refusal of accused’s commanding officer to provide him with a proper uniform and to see that he had the opportunity to appear before the court-martial neatly dressed and groomed. The staff legal officer’s post-trial review characterized this lack of compliance with the law officer’s instructions as “difficult to understand” and “most improper.” We agree with his comments but are unable to join in the conclusion that accused was not thereby prejudiced.
The Manual for Courts-Martial, United States, 1951, explicitly provides, at page 84:
“The convening authority, the ship or station commander, or other proper officer in whose custody or command the accused is at the time of trial is responsible for the attendance of the accused before the court. The accused will be properly attired in the class of dress or uniform prescribed by the president for the court. An accused officer, warrant officer, or enlisted person will wear the insignia of his rank or grade and may wear any decorations, emblems, or ribbons to which he is entitled.” [Emphasis supplied.]
The purpose of the foregoing provision is plain. It enables an accused to present himself physically as an innocent and decent member of military society until the court-martial has found to the contrary and sentenced him. It does not require citation of authority to note the difference in the impression made upon the court members by a clean-shaven, well-dressed young Marine, wearing his decorations and the insignia of his grade, and that created by a whiskery defendant clad in an ill-pressed prison garment decorated only with splotches of yellow paint. We have heretofore emphasized the importance of evidence of an accused’s good military character. United States v Browning, 1 USCMA 599, 5 CMR 27; United States v Gagnon, 5 USCMA 619, 18 CMR 243. His appearance before the court-martial in a respectable condition is but another facet of this rule.
Viewed in the light of the other matters disclosed in this record and dis[675]*675cussed, supra, we cannot avoid the belief that denial of appropriate uniforms and grooming served to cap the presentation of Sergeant West to the members of the court-martial as a dangerous individual whose guilt had been previously established and concerning whom a hearing was no more than a formality. In light of these circumstances, we are certain that the deprivation operated to his material prejudice and contributed to the denial to him of a fair and impartial trial.
Prior to disposing of this matter, we believe it important to emphasize what we do not decide. We are not here concerned with “second-guessing” appropriate service officials concerning whether the “security” measures employed at the trial or during pretrial confinement were necessary in light of the accused’s behavior or reputation. What we do decide is that, although an issue was raised and witnesses were called, there was no showing in the record of the need for these steps. To the contrary, the testimony of the accused, the brig officer, and the provost marshal, as well as the comments of the trial counsel, indicate they had no basis in law or fact. Moreover, only the most unusual circumstances would justify placing an accused under the strictures here depicted. Indeed, we are at a loss to state precisely what they would be. In almost eleven years of administration of military justice under the Uniform Code of Military Justice, we have not seen the like of this case before, and it bears the unmistakable in-dicia of a return in one jurisdiction to those practices which led to the Code’s enactment. We are confident that appropriate measures will be taken in the future to insure that the record before us remains unique in the annals of military law.
The decision of the board of review is reversed and the record of trial is returned to The Judge Advocate General of the Navy. A rehearing may be held.
Judge Kilday concurs.