The opinion
WHITAKER, Judge
(dissenting).
Plaintiff, a colonel in the United States Marine Corps, stationed in China, was convicted by a United States Marine Corps court-martial and, as a part of the sentence was dismissed from the service. He says the court-martial was without jurisdiction to pass this sentence, because it had forfeited its jurisdiction to do so by depriving plaintiff of his constitutional right to be confronted by the witnesses against him. Hence, he says he was unlawfully dismissed and, therefore, is entitled to the pay for which he sues.
Plaintiff asserts grounds other than the denial of the right to be confronted by the witnesses against him, to show the court-martial did not have jurisdiction to pass the sentence, but this is the only one that, in my opinion, has substance.
The question presented to us is whether the alleged violation of plaintiff’s constitutional right to be confronted by the witnesses against him deprived the court-martial of jurisdiction to pass sentence on the accused. If it did, plaintiff was unlawfully dismissed, and we have jurisdiction to render judgment for the pay of which he has been unlawfully deprived. On the other hand, if the court-martial had jurisdiction to pass the sentence, we have no jurisdiction to entertain his petition, for we are foreclosed by the judgment of the court-martial, which we have no jurisdiction to review.
The gravamen of the charges against plaintiff was that he got the United States Navy mail service to send to the United States for sale certain merchandise belonging to one Boellhoff, on the pretense that it was plaintiff’s personal property, and that he had received through the same channels merchandise shipped from the United States for the said Boellhoff, on the same false representation. Violations of certain Chinese custom regulations were also alleged.
The principal witness against plaintiff was Boellhoff. I think I am warranted in saying that plaintiff could not have been convicted without his testimony. The trial was held in China; Boellhoff was a citizen, subject, a comrade, by whatever name they áre called, of the Union of Soviet Socialist Republics; he refused to testify at the court-martial proceedings, and could not be compelled to do so. However, when wind of plaintiff’s alleged activities came to the attention of plaintiff’s superiors, a court of inquiry was appointed to investigate the matter. It was apparent that Boellhoff’s testimony was of paramount importance. So, the Marine Corps requested the assistance of the Chinese police in securing his testimony. The Chinese police arrested Boellhoff, put him in jail and held him incommunicado for some eight or nine days, and then brought him before a United States court of inquiry, which proceeded to interrogate him about the matter. His testimony was taken down and transcribed. When Boellhoff refused to testify in the court-martial proceedings, the transcript of his testimony before the court of inquiry was offered by the prosecution and was received in evidence, over plaintiff’s objection.
Plaintiff objected on the ground that Article 60, Articles for the Government of the Navy, were not satisfied in this case, and that Boellhoff’s testimony before the court of inquiry was not voluntary. Plaintiff filed a brief in support of his position, to which the judge advocate replied, and plaintiff filed a reply brief.
Plainly the testimony was not admissible under Article 60, supra. That article permits the introduction in evidence before a court-martial of testimony taken in court-of-inquiry proceedings only in cases not capital and not involving the dismissal from the service of a commissioned or warrant officer; plaintiff was dismissed from the service. But this is not determinative of the question pre *904 sented. The admission of incompetent evidence does not deprive the court-martial of jurisdiction to pass sentence unless the admission of it deprives the accused of a constitutional right.
Plaintiff says its admission in evidence violated the constitutional right of an accused to be confronted by the witnesses against him; and, when the court-martial deprived him of this constitutional right, it then and there lost jurisdiction to proceed further.
The right of an accused to be confronted by the witnesses against him is one of the most sacred of the cherished rights of free men. It is imbedded in the Bill of Rights. It has been jealously guarded by the bench and bar for centuries of Anglo-Saxon jurisprudence. However heinous the crime of the accused, however much the finger of suspicion points toward him, no affidavit, no deposition of a missing witness is admitted in evidence against him; the witness must be there in person, to look the accused in the eye and, under his scrutiny, to make his accusations against him; and to subject himself to cross-examination by the accused and his counsel.
There is no substitute for this opportunity to cross-examine a witness. It is the best of all ways to test a witness’ credibility, and this cross-examination must be conducted in the presence of those who are trying the accused, so they can observe the witness and make up their own minds what manner of man he is, whether he is evasive or straight-forward, whether his manner and demeanor inspires confidence in what he says, whether it shows him to be a man of passion or prejudice, or one speaking without bias, a man honestly and sincerely trying to tell the truth, the whole truth, and nothing but the truth. The writer of this dissenting opinion will never forget the sound philosophy of the remark of one negro to another, in the course of their argument many years ago, “Boy, what you are speaks so loud, I can’t hear what you say.” A witness’ manner and demeanor on the stand is as important as what he says. No court-martial, nor any other court, can know whether or not to give full credit to a witness unless it sees him when he is testifying. This is the reason the prosecution is not permitted to introduce depositions, although the accused cross-examined the deponent.
The testimony before the court of inquiry was subject to the vice that the judges on the court trying the accused did not see this witness against him when he was testifying.
The court of inquiry was sort of a “shotgun” proceeding. There had been rumors, whisperings, tales going around, some accusations, perhaps, but no one knew whether they had any basis in fact. So a court of inquiry was appointed to look into the matter to-see whether any charges should be preferred. It was much in the nature of a grand jury proceeding — with this exception, however, that the person under suspicion had- the right to be present and hear what the witnesses had to say and to interrogate them himself.
The proceedings were exploratory; they were not aimed in any particular direction ; they ranged a wide field; some things said were relevant to charges that might later, be preferred; others not. No one was on trial; the court had no power to punish and the proceedings were loose and informal, with little observance of the rules governing the admissibility of evidence on a formal trial before a court with the power of imposing sentence. The witnesses had their say and those implicated had the right to ask them questions, in the hope that they might be exonerated. But these questions could not be aimed at specific charges; none had been preferred. The accused was not advised in advance of what might be brought out against him and had had no opportunity to prepare himself to ask the questions that might bring out facts that would explain, modify or contradict statements the witness had made. He was not prepared to adequately cross-examine the witness.
Later, six or seven definite charges were preferred, supported by one or more specifications. Plaintiff has never been accorded the right to interrogate these *905 two witnesses 1 with respect to these specific charges and specifications. That right has been denied him. That right was guaranteed to him by the Constitution. Those who tried him had no opportunity of hearing what these witnesses had to say about these charges and specifications, nor of seeing them on the stand; of observing their manner and demeanor. The Constitution guaranteed to an accused that the judges who tried him should have the opportunity of hearing what the witnesses had to say about the charges preferred and of seeing them when they were testifying, to judge for themselves whether they were telling the truth, and whether their testimony supported the charges preferred.
We are living in a changing world, in a day of revolution, but there are certain principles that are immutable (see Greene v. McElroy, 360 U.S. 474, 496-497 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 ), that cannot be surrendered or impaired, if we wish to maintain our tradition of justice under law. The right of an accused to be confronted, in the court that is trying him, by the witnesses against him is not the least of them.
There can be no doubt that plaintiff has been deprived of this constitutional right. It is a right contained in the same sentence of the Sixth Amendment in which an accused is also guaranteed the right of counsel, and the Supreme Court in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 , said that a court which denied the accused the right of counsel lost its jurisdiction to sentence him. On the authority of this ease I would hold that by the admission in evidence in the court-martial proceedings of this testimony before the court of inquiry, in violation of the right of the accused to be confronted by the witnesses against him, the court-martial lost jurisdiction to proceed further.
I do not think Graham v. United States, 136 Ct.Cl. 324 , is controlling in this case, because Graham did not object to the introduction of the testimony before the court of inquiry; plaintiff in this case did object. When, in the Graham case, the judge advocate offered only the evidence taken after Graham became a party to the proceedings, Graham insisted that all of it be put in evidence. He thereby waived his constitutional rights. Plaintiff in this case never waived his rights, but objected throughout to the admission of this testimony.
In Mullan v. United States, 212 U.S. 516 , 29 S.Ct. 330 , 53 L.Ed. 632 , it was held that an accused might waive this constitutional right and might validly consent that testimony received before a board of inquiry should be received in evidence in subsequent court-martial proceedings.
The clear intimation from the opinion in the Mullan case is that, in the absence of consent or waiver, the introduction of the evidence taken at the board-of-inquiry proceedings would violate the accused’s constitutional right to be confronted by the witnesses against him and that this would oust the court of jurisdiction to pass sentence. This was an appeal from the judgment of this court dismissing petitioner’s suit for pay.
In the Graham case the court considered the question as if it were nothing more than an error in the admission of evidence and said that we had no jurisdiction to review matters of that sort. This is quite true, unless the admission of evidence deprives the accused of a constitutional right. The Court did not deal with this question. It is squarely presented in the case at bar.
I am not unaware that the Supreme Court in Mattox v. United States, 156 U.S. 237 , 15 S.Ct. 337 , 39 L.Ed. 409 ; held that the testimony of a witness in a former trial of the accused might be introduced in evidence in a subsequent trial, where the witness had died before the subsequent trial. But this is not controlling here. In the first place, the *906 charge against the accused was the same in both trials. Therefore, the cross-examination in the former trial was directed to the same issue being tried in the second. On the other hand, in the court-of-inquiry proceedings in the case at bar no charges had been preferred and, hence, there could have been no cross-examination with respect to the specific charges upon which the accused was tried later on. The accused, therefore, did not have an opportunity to adequately cross-examine the witnesses. Not having been apprised of what might be brought out in the court-of-inquiry proceedings, the accused had had no opportunity to prepare his cross-examination.
The Court of Appeals for the District of Columbia Circuit in Christoffel v. United States, 91 U.S.App.D.C. 241 , 200 F.2d 734 , at pages 741 and 742, recognizes that the rule laid down in Mattox v. United States, supra, assumes that the charges against the accused in the two trials are the same. After quoting from the Mattox opinion, the Court of Appeals said:
“The rule thus approved assumes that the issue on the first trial is the same as on the later, otherwise the right of cross-examination has not been fully available. In the case at bar the second trial was upon the same indictment as the first. In a very literal sense, therefore, the ultimate issue was the same.”
Mattox v. United States, supra, is not controlling here for another reason: The testimony received in evidence in that case had been given before a judge and jury which had the power to try, convict, and punish the accused, and they had convicted him. Those who had the power of punishment, therefore, had the opportunity of observing the manner and demeanor of the witness while he was under cross-examination. Here the court-martial which convicted the accused had no opportunity to observe these witnesses while testifying. This, in my opinion, is a fatal objection to the admissibility of the testimony. It is true that in some of the States this is not considered necessary, but it is to be observed that the provision for confrontation in the Federal Constitution is not applicable to trials in a State court under State law. West v. State of Louisiana, 194 U.S. 258 , 24 S.Ct. 650 , 48 L.Ed. 965 .
The Mattox decision is not controlling here for still another reason: In that case the witness was dead; whereas in this case the witnesses were present in the court room, but refused to testify for fear of possible prosecution of them for acts disclosed by their testimony. A refusal to testify presents a very different situation from an inability to testify. Why did they refuse to testify? Surely not because they were unwilling to re-< iterate what they had said before the court of inquiry. That testimony was already available for use against them and they could not have been harmed by a reiteration of it. Was it because something new might be elicited from them, something that had not come out in the court-of-inquiry proceedings ? Would this testimony have explained or modified their former testimony ? Would it have been helpful to the accused? There is some indication that it might have been. Boellhoff said at the court-martial proceedings.
“I am sorry that I cannot be able to clarify questions which might clear also the defendant in some charges which he probably has against him.”
How can we know, in the face of their refusal to testify further, that their testimony before the court of inquiry was the whole truth?
Boellhoff’s testimony before the court of inquiry had been obtained under duress. He had been kept in jail for eight or nine days without having been permitted to see anyone, and brought from the jail before the court of inquiry. When, at the time of the court-martial no charges were pending against him and he was no longer in custody, would he reaffirm that testimony? We do not know what he would say. When called in the court-martial trial, he would nei *907 ther affirm nor deny his former testimony.
Such testimony cannot be given full credence. If ever there was a case where the witnesses should be subjected to rigid cross-examination, this is it. If there ever was a case where the judges should observe their manner and demean- or when testifying, this is it. Boellhoff was evidently holding something back. Whatever it is, it should be brought to light before credence is given to anything he says.
If under such circumstances their piecemeal testimony before this inquisitorial body is admitted, I cannot escape the conclusion that plaintiff has been deprived of his constitutional right to be confronted by the witnesses against him, before the judges who try him and pass sentence upon him.
In Begalke v. United States, Ct.Cl., 286 F.2d 606 , decided January 20, 1960, we held that, if the court-martial and the reviewing authorities had given full and fair consideration to the claim of the accused that he was being deprived of his constitutional rights, it was not incumbent on a civil court to go over the same ground again. We said we understood this to be the holding of the Supreme Court in Burns v. Wilson, 346 U.S. 137 , 73 S.Ct. 1045 , 97 L.Ed. 1508 . That, at least, was the view of the Chief Justice and three other Justices who concurred in his opinion. A Justice who concurred in the judgment of the Court thought there was no right of review of the court-martial by civil tribunals. The two Justices who dissented thought that it was incumbent on civil courts to take cognizance of a habeas corpus application to determine for themselves whether there had been a violation of constitutional rights, where the military tribunal had not “fairly and conscientiously” given consideration to the question.
In that case it appeared that the court-martial itself had considered the constitutional question and that it had been extensively discussed in an opinion by the Board of Review. Plaintiff’s petition for modification of the sentence was denied by the Court of Military Appeals. Under such circumstances we said the civil courts would not again consider the question.
However, there is no such showing in this case. We only know that plaintiff filed with the court-martial a brief on the question, to which the judge advocate replied. The accused then filed a reply brief. We are told that the court-martial cleared the court room in order to consider the question; but to what extent they considered it is not disclosed. We are not told whether the matter was considered by the reviewing authority, or by the Board of Review, or by the Judge Advocate General. The Court of Military Appeals refused to entertain plaintiff’s appeal, for lack of jurisdiction. I think that where the accused asserts-that his constitutional rights are being violated, the requirement of Burns v. Wilson, supra, that the military authorities must give “fair and conscientious”' consideration to the question is not satisfied unless the question is considered, not only by the court-martial itself, but also by the reviewing authorities. The court-martial itself is composed of laymen naval officers; not lawyers. They are not familiar with the constitutional guaranties of the Bill of Rights, nor alert to prevent a violation of them. There is-no one in the military hierarchy competent to judge whether the constitutional rights of an accused have been violated other than the reviewing authorities.
Now, I think, where an appeal is made to a civil court for protection of the constitutional rights of an accused, and it appears to that court that those rights-have probably been violated, and where the record does not show that the military courts and reviewing authorities have given full and adequate consideration to the matter, it is incumbent on the civil court to afford the accused the protection guaranteed him by the Constitution, insofar as it has power to do so, or to give him such relief as it may for the deprivation of his constitutional rights.
*908 There is no such showing in this case, and it appears to me that there has been a gross violation of plaintiff’s constitutional right to be confronted, in the court that tried him and passed sentence on him, by the witnesses against him. Under the holding of Johnson v. Zerbst, supra, this denial of plaintiff’s constitutional right ousted the court of jurisdiction to pass sentence upon him.
The Chief Judge says plaintiff did not raise in the court-martial proceedings the objection that he had been denied the right to be confronted by the witnesses against him. I think he is mistaken in this. He objected to the admission of this evidence on the ground that it violated article 60 of the Articles of War. This article limits the right of an accused to be confronted by the witnesses against him. It permits the introduction into evidence in the court-martial proceedings of testimony given before a court of inquiry in cases of minor importance. To this extent it is in derogation of the constitutional rights of an accused. But it preserves this constitutional right in the graver offenses, capital offenses, or offenses involving the dismissal of an officer. When, therefore, plaintiff objected to the admission of this evidence against him because it was in violation of article 60 of the Articles of War, this was tantamount to objecting because it violated his constitutional right to be confronted by the witnesses against him.
In my opinion plaintiff did not waive his constitutional right, but insisted upon it.
The Chief Judge seems to think that he waived it by not insisting upon it in a brief filed with the reviewing authorities. Plaintiff filed nothing with the reviewing authorities. Indeed, so far as I am aware, the Manual for Courts-Martial makes no provision for the filing of briefs with the reviewing authorities, although briefs are accepted when filed. Since plaintiff made his objection before the court-martial and filed briefs in support thereof, I do not think his omission to reiterate the objection in a brief filed with the reviewing authorities can be considered to be a waiver of the objection. When he did file a petition for relief from the judgment on July 24, 1953, he did insist that his constitutional rights had been violated because he had been denied the right to be confronted by the witnesses against him.
After mature reflection, I have come to the conclusion that plaintiff did not waive his constitutional rights; I think they have been denied him, and that the denial of them deprived the court-martial of jurisdiction to pass sentence on plaintiff. If so, he has been illegally dismissed from the service, and I think he is entitled to recover the pay of which he has been wrongfully deprived.
I am authorized to say that Judge DURFEE joins me in this opinion.
. The testimony of another witness before the court of inquiry was also read in the court-martial proceedings.