Amicus Curiae Brief — Solorio v. United States

No. 85-1581

IN THE

Supreme Court, U.S,

FILED

JUL 31 1986

ANIOL, JR.

CLERK

Supreme Court of the Gnited States

OCTOBER TERM, 1986

RICHARD SOLORIO

Yeoman First Class, U.S. Coast Guard.

Petitioner.

UNITED STATES OF AMERICA.

Re

On Writ Of Certiorari To The

spondent.

United States Court Of Military Appeals

BRIEF OF THE APPELLATE DEFENSE DIVISION

UNITED STATES NAVY-MARINE CORPS

APPELLATE REVIEW ACTIVITY

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

DAVID C. LARSON

Captain, Judge

Advocate General’s

Corps (JAGC), U.S

Attorney of Record

for Amicus Curiae

SUSAN R. CORNELL

Lieutenant, JAGC

U.S. Naval Reserve

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202)

347-8203

QUESTIONS PRESENTED

1. Whether the United States Court of Military

Appeals has slowly expanded court-martial jurisdiction

thereby eroding the constitutional principle announced

in O'Callahan v. Parker?

2. Whether, in light of the changes in the military

justice system, the constitutional principle announced

in O’Callahan v. Parker is still valid?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......scsssssessssseresseeeeesennsnensenens i

TABLE OF AUTHORITIES _ ......ccccccssccccccccsccccscssessscceses ili, IV

INTEREST OF THE AMICUS .......:cccccccccssseeceeeeseeesserenss 1

STATEMENT OF THE CASE .......csccccssesceecesscecesccessenees 2

SUMMARY OF ARGUMENT ......cccccsecsceeseeereeeeeeees stiles 3

Lt 3

1. THE UNITED STATES COURT OF MILI-

TARY APPEALS HAS SLOWLY ERODED

THE CONSTITUTIONAL PRINCIPLE AN-

NOUNCED IN O’CALLAHAN V. PARKER .. 3

II. THE CONSTITUTIONAL PRINCIPLE AN-

NOUNCED IN O’CALLAHAN V. PARKER

IS STILL VALID ........ccccccseceereerereeeeeenenennenees 8

A. THE MILITARY JUSTICE SYSTEM

STILL DOES NOT PROVIDE SUFFI-

CIENT SAFEGUARDS TO WARRANT

AN EXPANSION OF COURT-MARTIAL

JURISDICTION ..........ccceeeeeseeeseeerenenenneeees 12

B. THE SACRIFICE OF OTHER CONSTI-

TUTIONAL AND STATUTORY RIGHTS

HAS ALWAYS BEEN JUSTIFIED BY

THE MILITARY’S NEED FOR DISCI-

PLINE AND ORDER. ............::scceeeeeeeeeeees 14

CORICLAIIBORE cccccococcccccsecccsccsossscssnsenenes RT ON Ra se 17

Cf eee ES la

ili

TABLE OF AUTHORITIES

CASES: Page

Chappell v. Wallace, 462 U.S. 304 (19838) ............ 14, 16

Goldman v. Weinberger, _. U.S. ___, 106 S.Ct.

EE 16

Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983) _... 6

O’Callahan v. Parker, 395 U.S. 258 (1969) ........ passim

Parker v. Levy, 417 U.S. 733 (1974) occ 14, 15

Relford v. Commandant, 401 U.S. 355 (1971) ..... passim

Toth v. Quarles, 350 U.S. 11 (1955) eee cece lu

United States v. Alef, 3 M.J. 414 (C.M.A. 1977) .. 4

United States v. Brace, 11 M.J. 795 (C.M.A.

se ssctennsocseccees 6

United States v. Conn, 6 M.J. 351 (C.M.A. 1979) .. 5

United States v. Henderson, 18 U.S.C.M.A. 601, 40

i ccssucnsococee 5

United States v. Lockwood, 15 M.J. 1 (C.M.A.

I csecwees 6, 7

United States v. McArthur, Misc. Dkt. No. 85-11

(N.M.C.M.R. 29 Nov. 1985) oo. eeeeeeeceees 13

United States v. McCarthy, 2 M.J. 26 (C.M.A.

ES SST LT 4

United States v. McGonigal, 19 U.S.C.M.A. 94, 41

a ssecncceosocceees 5

United States v. Moore, 1 M.J. 448 (C.M.A.

IESE TOOL 4

United States v. Rojas, 15 M.J. 902 (N.M.C.M.R.

1983), aff'd, 20 M.J. 330 (C.M.A. 1985) _........ 11

United States v. Scott, 21 M.J. 345 (C.M.A.

I sceeuceceevecee 7

United States v. Shockley, 18 U.S.C.M.A. 610, 40

I sss scccnccencvcccccoce

United States v. Solorio, 21 M.J. 251 (C.M.A.

Ey Ee 3,7

qr

iV

Table of Authorities Continued

Page

United States v. Solorio, 21 M.J. 512 (C.G.C.M.R.

BOE vccetceececsesscsselishsbaliianbennnemnesntntaminssbnncomencnss 2

United States v. Strangstalien, 7 M.J. 255 (C.M.A.

BOTY ccececocceccnsscssncenevnsdbetnbosnnecscnsacnneatocesssooocoses 5

United States v. Trottier, 9 M.J. 337 (C.M.A.

BID ceviccccececsccccosvesncnsccnsnangncsnpnsncnmmnscsosesnensscosees 5, 6

United States v. Williams, 2 M.J. 81 (C.M.A.

TOT. cnccnscesscccictncsensncrvecscctiocisnnniensuinianbetepncesqnes 5

CONSTITUTION, STATUTES, AND RULES:

U.S. Const.:

Age, 1 OG, U6 ccccccccccccccsccccccssccccssscsvecesesessess )

ee. Fs pccciciesinnatnnnindismmnianmianetinenditns 9

De | WE... ccsccacticeertninnsttiinainsenbbisetinnnianiempiiee 9

U.S. Code:

10 U.S.C. § 801 et seg. (1982) — ........cecceceeeeeeeees 9

CB tomes F: eee 14

10 UBC. 8 GBB CIDER) — cccoccsccscesccccesccocccocsescosee 13

10 U.S.C. § 862 (Supp. II 1984) ........ceeeeeeeeeees 2

10 U.S.C. § 870 (Supp. II 1984) ..........e eee eeeeees

CRs toe) 7) | || 15

TR tm! F: 15

Rules for Courts-Martial, Manual for Courts-Martial,

United States (1984):

EE: I acinar nmananennecbnonnien seiabah ieee i3

ft i fees i a 13

Tek Se Geter Pe a Se en eT ae 14

MISCELLANEOUS:

Saltzburg, Schinasi & Schleuter, Military Rules

of Evidence Manwal (1981) ........sseeeeseeeees 13

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

—__- ——

No. 85-1581

RICHARD SOLORIO

Yeoman First Class, U.S. Coast Guard,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On A Writ Of Certiorari

To The United States

Court Of Military Appeals

BRIEF OF THE APPELLATE DEFENSE DIVISION

UNITED STATES NAVY-MARINE CORPS

APPELLATE REVIEW ACTIVITY

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Petitioner and Respondent have consented to the sub-

mission of this amicus curiae brief by the Appellate

Defense Division. Copies of the consents have been

filed with the Court.

INTEREST OF THE APPELLATE DEFENSE

DIVISION

The Appellate Defense Division represents con-

victed members of the Naval Service before the U.S.

Navy-Marine Corps Court of Military Review, the US.

Court of Military Appeals and the U.S. Supreme

Court. This representation is provided for by Article

70, Uniform Code of Military Justice, 10 U.S.C. § 870

(Supp. IIT 1984).

The Appellate Defense Division is the principal

source of representation for all Navy and Marine

Corps members convicted by court-martial and sen-

tenced to a punitive discharge or more than one year’s

confinement. The decision of the court below is an

unprecedented and unconstitutional expansion of

court-martial jurisdiction. If allowed to stand, that

decision will have an adverse impact on Navy and

Marine Corps personnel by depriving them of the fun-

damental rights available in civilian courts.

STATEMENT OF THE CASE

The facts are cogently and completely set out in

the petition. Essentially, petitioner was charged with

committing various sex offenses with two young girls.

Some of the alleged offenses occurred while petitioner

was stationed in Juneau, Alaska, while the others

allegedly occurred after petitioner was transferred to

Governors Island, New York. The court-martial was

convened at Governors Island. At trial the defense

successfully moved to dismiss the Alaska based

charges for lack of subject matter jurisdiction. The

Government appealed pursuant to Article 62, Jniform

Code of Military Justice, 10 U.S.C. § 862 (Supp. II

1984). The U.S. Coast Guard Court of Military Review

reversed the military judge’s ruling. United States v.

Solorio, 21 M.J. 512 (C.G.C.M.R. 1985). Petitioner

appealed to the U.S. Court of Military Appeals which

affirmed the lower court’s decision. United States v.

— — A ee

— —_— —_——

Solorio, 21 M.J. 251 (C.M.A. 1986). Petitioner was

subsequently convicted of eight offenses committed in

Alaska.

SUMMARY OF ARGUMENT

In O'Callahan v. Parker the Court announced the

constitutional principle that court-martial jurisdiction

must be limited to those cases which are service-con-

nected. In recent years, the U.S. Court of Military

Appeals has eroded that principle by basing jurisdic-

tion on the type of offense involved, rather than on

a case by case analysis. Because the sacrifice of con-

stitutional rights can only be justified by an overriding

interest in maintaining discipline and order, the mil-

itary should still be required to show that each in-

dividual case is service-connected before exercising

jurisdiction.

ARGUMENT

I. THE UNITED STATES COURT OF MILITARY

APPEALS HAS SLOWLY ERODED THE CONSTI-

TUTIONAL PRINCIPLE ANNOUNCED IN O’CAL-

LAHAN V. PARKER.

In O'Callahan v. Parker, 395 U.S. 258 (1969), this

Court first set forth the service-connection test for

determining court-martial jurisdiction. The Court bal-

anced the constitutional rights of trial by jury and

indictment by grand jury with the military’s need for

discipline and obedience. Because courts-martial do

not provide those constitutional safeguards, their ju-

risdiction can extend only to those offenses which are

service-connected. Jd. at 261.’

In Relford v. Commandant, 401 U.S. 355 (1971),

this Court applied the service-connection test. The

Relford Court applied several factors to the facts and

determined that the offenses were service-connected.’

Following the O’Callahan and Relford decisions, the

U.S. Court of Military Appeals began a strict appli-

cation of the service-connection test. United States v.

Moore, 1 M.J. 448 (C.M.A. 1976). The court frequently

relied upon the factors enunciated in O’Callahan and

Relford in ruling on subject-matter jurisdiction issues.

United States v. Alef, 3 M.J. 414 (C.M.A. 1977); United

States v. McCarthy, 2 M.J. 26 (C.M.A. 1976). Appli-

!The O'Callahan Court considered the following factors in

determining whether O’Callahan’s offenses were service-con-

nected: his proper absence from the base, the commission of the

offenses off base, the civilian status of the victim, the absence

of military control over the location of the offenses and the

availability of civilian courts to prosecute. O'Callahan at 273.

2 The Relford Court enunciated the following factors: 1) the

serviceman’s proper absence from the base; 2) the crime’s com-

mission away from the base; 3) its commission at a place not

under military control; 4) its commission within our territorial

limits and not in an occupied zone of a foreign country; 5) its

commission in peacetime and its being unrelated to authority

stemming from the war power; 6) the absence of any connection

between the defendant’s military duties and the crime; 7) the

victim’s not being engaged in the performance of any duty re-

lating to the military; 8) the presence and availability of a civilian

court in which the case can be prosecuted; 9) the absence of

any flouting of military authority; 10) the absence of any threat

to a military post; 11) the absence of any violation of military

property; 12) the offense’s being among those traditionally pros-

ecuted in civilian courts. Relford at 356.

cations of those factors resulted in determinations that

many offenses were not service-connected.*

In United States v. Trottier, 9 M.J. 337 (C.M.A.

1980), the Court of Military Appeals departed from

its strict adherence to the O’Callahan-Relford factors.

Instead of applying the principle announced in O’Cal-

lahan to the specific facts of the case, the court based

its ruling on the type of offense involved. Trottier

was convicted of three offenses involving the sale of

narcotics. Two of the offenses took place off base.

Trottier at 337. In ruling that all of the offenses were

service-connected the court concentrated on the mil-

itary’s drug problems and the need for maintaining

a drug free military environment. Jd. at 345-350. That

need is so great, the court concluded, that ‘‘very few

drug involvements of a service person will not be

service-connected.”” Jd. at 351. The court identified

two drug related offenses which might not be service-

connected:

[I]t would not appear that use of marijuana

by a service person on a lengthy period of

leave away from the military community

* 3. See United States v. Strangstalien, 2 M.J. 81 (C.M.A. 1979)

and United States v. Williams, 2 M.J. 81 (C.M.A. 1976) (off base

drug offenses held not service-connected after application of

O’Callahan-Relford factors); United States v. Conn, 6 M.J. 351

(C.M.A. 1979) (off base use of marijuana by an officer, in the

presence of enlisted members under his command, not service-

connected). See also United States v. McGonigal, 19 U.S.C.M.A.

94, 41 C.M.R. 94 (1969); United States v. Shockley, 18 U.S.C.M.A.

610, 40 C.M.R. 322 (1969); United States v. Henderson, 18

U.S.C.M.A. 601, 40 C.M.R. 313 (1969) (all holding that off base

sex offenses against military dependents were not service-con-

nected).

would have such an effect on the military as

to warrant the invocation of a claim of spe-

cial military interest and significance ade-

quate to support court-martial jurisdiction

under O’Callahan. Similarly, the interest of

the military in the sale of a smail amount of

a contraband substance by a military person

to a civilian for the latter’s personal use

seems attenuated.

Trottier at 350 n.28 (citations omitted).

The U.S. Court of Military Appeals subsequently

expanded court-martial jurisdiction to include the first

of the above situations. In United States v. Brace, 11

M.J. 795 (C.M.A. 1981), the court again concentrated

on the nature of the offense and held that court-

martial jurisdiction existed over an accused’s off base

use of marijuana 275 miles from his duty station.

Finally, in Murray ~ Yaldeman, 16 M.J. 74 (C.M.A.

1983), the court held that if a servicemember returns

to a military installation subject to any physiological

or psychological effects of a controlled substance, then

the use of that drug, regardless of the duration of

the absence or the location of the use, is service-

connected. Thus, the lower court has essentially made

any drug offense punishable by court-martial, in total

disregard of the O’Callahan-Relford mandate to de-

termine military jurisdiction based on the specific facts

of each case.

In United States v. Lockwood, 15 M.J. 1 (C.M.A.

1983), the court once again departed from a strict

application of the O’Callahan-Relford test. Rather, the

Lockwood court created its own factors in determining

2A

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$$

that an off base forgery and larceny were service-

connected.‘

In United States v. Scott, 21 M.J. 345 (C.M.A. 1986),

the court included the accused’s status as an officer

as a factor in determining that an off base offense

was service-connected. While Chief Judge Everett,

writing for the court, stopped short of holding that

all officer misconduct is service-connected, Judge Cox

in his concurring opinion stated that officer miscon-

duct is always service-connected. Jd. at 347 and 350.

Just as Trottier created a nearly per se rule regarding

drug offenses, the Scott decision creates nearly au-

tomatic subject matter jurisdiction if the accused is

an officer.

Finally, in United States v. Solorio, 21 M.J. 251

(C.M.A. 1986), the court has created automatic subject

matter jurisdiction for a third category of cases: sex

offenses against dependent children. Solorio at 256.

This continuing trend of the lower court to make the

service-connection test applicable to ‘‘types’’ of offen-

ses rather than applying the O’Caliahan-Relford anal-

ysis must stop. By categorizing military cases and

creating per se rules of subject matter jurisdiction the

lower court has slowly circumvented the O’Callahan

Court’s constitutional principle that military jurisdic-

tion should be limited to only those offenses that are

service-connected. Furthermore, the Lockwood court’s

reliance on damage to the military’s reputation has

‘The Lockwood court considered such factors as: the adverse

impact off base crimes have on morale, readiness and the mil-

itary’s reputation in the civilian community, the use of a Gov-

ernment identification card during the offenses and the military’s

policy of trying all known offenses at a single trial. Lockwood

at 9-10.

the potential to make any offense service-connected.

Theoretically, any offense committed by a service-

member off base lowers the military’s esteem. The

lesson of O’Callahan and Relford is that the deter-

mination of what cases may or may not be service-

connected must be made on a case by case analysis.

By holding that drug offenses, sex offenses against

dependent children, offenses committed by officers

and offenses that lower the military’s esteem are au-

tomatically service-connected, the lower court has ac-

tually expanded court-martial jurisdiction, thereby

eroding the constitutional principle that military ju-

risdiction must be limited to that which is absolutely

necessary to maintain discipline and order.

Il. THE CONSTITUTIONAL PRINCIPLE AN-

NOUNCED IN O’CALLAHAN V. PARKER IS

§..LL VALID.

The fifth amendment of the Constitution provides:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land er

naval forces, or in the Militia, when in actual

service in time of War or public danger; nor

shall any person be subject for the same off-

ence to be twice put in jeopardy of l'fe or

limb; nor shall be compelled in any criminal

ease to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall privace property

be taken for public use, without just com-

pensation.

a

emenns ee ae ee nt a

U.S. Const. amend. V. In addition, the sixth amend-

ment provides that “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the state and district

wherein the crime shall have been committed... .”

U.S. Const. amend. VI. The Constitution gives Con-

gress the power “to make Rules for the Government

and Regulation of the land and naval Forces.’”’ U.S.

Const. art. I, §8, cl. 14. Pursuant to that authority,

Congress has enacted the Uniform Code of Military

Justice, 10 U.S.C. § 801 et seg. (1982), which estab-

lishes a system of courts-martial. This system, how-

ever, does not provide the constitutional protections

available in civilian courts. O’Callahan v. Parker, 395

U.S. 258, 262 (1969).

O’Callahan was an Army corporal convicted by

court-martial of various sex offenses committed off

base in a leave status. The victim was a civilian with

no military connections. O’Callahan filed a petition

for a writ of habeas corpus arguing that the court-

martial iacked jurisdiction to try him. In holding that

the military was without jurisdiction, the O’Callahan

Court balanced the constitutional rights protected by

civilian courts with the exclusion of military cases

from the fifth amendment and Congress’ authority

under article I, section 8.5 The Court concluded that

in order for the military to have jurisdiction the ac-

cused must not only be a service-member but the

offense must also be service-connected. O’Callahan at

272.

° Significantly, the framers did not exclude “persons in the

land and naval forces” from the fifth amendment’s protections

but ‘“‘cases.”’

10

In reaching its holding the Court restated what it

said in Toth v. Quarles, 350 U.S. 11 (1955), that:

We find nothing in the history or consti-

tutional treatment of military tribunals which

entitles them to rank along with Article IT]

courts as adjudicators of the guilt or inno-

cence of people charged with offenses for

which they can be deprived of their life, lib-

erty or property. Unlike courts, it 1s the pri-

mary business of armies and navies to fight

or be ready to fight wars should the occasion

arise. But trial of soldiers to maintain dis-

cipline is merely incidental to an army’s pri-

mary fighting function. To the extent that

those responsible for performance of this pri-

' mary function are diverted from it by the

necessity of trying cases, the basic fighting

purpose of armies is not served. And con-

ceding to military personnel that high degree

of honesty and sense of justice which nearly

all of them undoubtedly have, it still remains

true that military tribunals have not been

and probably never can be constituted in such

way that they can have the same kind of qual-

ifications that the Constitution has deemed

essential to fair trials of civilians in federal

courts.

Id. at 262 (emphasis added) (quoting Toth v. Quarles,

350 U.S. 11, 17 (1955)). The Court further recognized

the limitations of military courts in that:

A court-martial is tried, not by a jury of

the defendant’s peers which must decide

unanimously, but by a panel of officers em-

powered to act by a two-thirds vote.

ee

11

The presiding officer at a court-martial is

not a judge whose objectivity and independ-

ence are protected by tenure and undimin-

ishable salary and nurtured by the judicial

tradition, but is a military law officer. Sub-

stantially different rules of evidence and pro-

cedure apply in military trials. Apart from

those differences, the suggestion of the pos-

sibility of influence on the actions of the

court-martial by the officer who convenes it.

selects its members and the counsel on both

sides, and who usually has direct command

authority over its members is a pervasive one

in military law, despite strenuous efforts to

eliminate the danger.

A court-martial is not yet an independent

instrument of justice but remains to a sig-

nificant degree a specialized part of the over-

all mechanism by which military discipline is

preserved.

Id. at 263-65 (footnote omitted). Because of those

limitations and the absence of important constitutional

protections, the O'Callahan Court held that the ju-

risdiction of courts-martial must be limited to that

necessary to fulfill the military’s purpose—the main-

tenance of military readiness and discipline. Jd. at

272.

* The provision authorizing a conviction by a two-thirds vote

has recently been upheld. United States v. Rojas, 15 M.J. 902

(N.M.C.M.R. 1983), aff'd, 20 M.J. 330 (C.M.A. 1985).

12

A. THE MILITARY JUSTICE SYSTEM STILL DOES NOT

PROVIDE SUFFICIENT SAFEGUARDS TO WAR-

RANT AN EXPANSION OF COURT-MARTIAL JURIS-

DICTION.

The O’Callahan Court enumerated many deficien-

cies in the military justice system:

For instance, the Constitution does not pro-

vide life tenure for those performing judicial

functions in military trials. They are ap-

pointed by military commanders and may be

removed at will. Nor does the Constitution

protect their salaries as it does judicial sa-

laries.

O’Callahan at 263. The Court also recognized that

there is in the military system:

[T]he suggestion of possible influence on the

actions of the court-martial by the officer who

convenes it, selects its members and the

counsel on both sides, and who usually has

direct command authority over its mem-

bers. ...

Id. at 264. Although many changes have occurred in

the military justice system in the 17 years since

O’Callahan, most of the conditions set forth above

remain the same.

In 1980, the Military Rules of Evidence were pro-

mulgated. The military rules were taken in large part

from the Federal Rules of Evidence with only minor

changes.’ In addition, improvements have been made

7 The Military Rules of Evidence were adopted by the Pres-

ident on 1 September 1980. The drafter’s analysis of many of

the rules indicates that they were taken without change or mu-

13

in the quality of representation an accused receives.

The accused is entitled to an appointed licensed

attorney and may also retain a civilian attorney to

represent him. Uniform Code of Military Justice, art.

38, 10 U.S.C. § 838 (1982). In the U.S. Marine Corps,

however, the appointed counsel as well as the pros-

ecutor are assigned to the staff of the convening au-

thority. In the U.S. Navy, the defense counsel and

the prosecutor do not work for the convening au-

thority but both do work for the same person, a senior

officer in the Judge Advocate General’s Corps.* Thus,

the prosecutor and the defense counsel in the U:S.

Navy ultimately have their evaluations written by the

same person.

Military judges still do not serve under the protec-

tion of life tenure. They are appointed by and serve

at the discretion of the Judge Advocates General.

Their salaries are controlled by Congress just as are

the salaries of all military personnel.

The accused’s commanding officer, the convening

authority, is responsible for referring the charges to

court. R.C.M. 306 and 404. He also selects officers

(or at the accused’s request senior enlisted personnel)

from his own command to sit in judgment of the

tatis mutandis, from the Federal Rules of Evidence. In addition,

the Military Rules of Evidence include subjects not within the

compass of the Federal Rules. See generally Saltzburg, Schinasi

& Schleuter, Military Rules of Evidence Manual, Foreward

(1981).

* Because in the U.S. Navy trial counsel and defense counsel

work for the same command, attorneys can change roles every

several months. That creates the potential for a conflict of in-

terest. See United States v. McArthur, Misc. Dkt. No 85-11

(N.M.C.M.R. 29 Nov. 1985), Appendix A.

14

accused. R.C.M. 503. Therefore, the individuals who

compose the panel have their evaluations prepared by

the same person who originally decided that the ac-

cused should be court-martialed.°

Changes in the military justice system have resulted

in improvements in the quality of military justice.

However, many of the basic deficiencies recognized

in O’Callahan have not been improved. Furthermore,

regardless of the quantity or quality of improvements,

the court-martial system will always be fundamentally

and systemically different from the civilian criminal

justice system. For those reasons, the exercise of

court-martial jurisdiction should still be reserved for

those cases having service-connection.

B. THE SACRIFICE OF OTHER CONSTITUTIONAL AND

STATUTORY RIGHTS BY SERVICE-MEMBERS HAS

ALWAYS BEEN JUSTIFIED BY THE MILITARY’S

NEED FOR DISCIPLINE AND ORDER.

Military servicemembers ‘“‘may not be stripped of

basic rights simply because they have doffed their

civilian clothes.” Chappell v. Wallace, 462 U.S. 304

(1983) (quoting Warren, The Bill of Rights and the

Military, 37 N.Y.U.L. Rev. 181, 188 (1962)). Only

when the military’s need for discipiine and order out-

weighs the interest protected, must a servicemember

surrender the right.

In Parker v. Levy, 417 U.S. 733 (1974), the Court

balanced the due process rights of the fifth amend-

ment and che first amendment’s protections of free

expression with the military’s special needs to main-

® But see Uniform Code of Military Justice, art. 37, 10 U.S.C.

§ 837 (1982) (a commanding officer is prohibited from basing a

member’s evaluation on his court-martial performance).

°

.

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15

tain discipline and order. Levy, an Army captain,

challenged his conviction for violating Articles 133

and 134, Uniform Code of Military Justice,’ on the

grounds that they were unconstitutionally vague and

that they prohibited protected speech. In denying

petitioner’s claim, the Court stated that the standard

for determining constitutional vagueness is less strin-

gent when a military criminal statute is involved. Par-

ker v. Levy at 756. The Court based its holding on

the recognition that, as opposed to the goals of a

civilian community, it is the primary purpose of the

military to prepare for and fight wars. Jd. at 743.

Because of this special purpose, the military must

have the tools necessary to enforce discipline and

duty. Consequently, the individual rights of due proc-

ess must fall in light of those overriding concerns.

Id. at 744. The Court concluded that Congress may

‘legislate with greater breadth and with greater flex-

ibility when prescribing rules which govern the mil-

itary.”’ Id. at 756.

In denying Levy’s first amendment challenge, the

Court again balanced a basic constitutional right

against the military’s special needs and interests. The

Court justified the military’s suppression of Levy’s

constitutional right with the military’s “fundamental

necessity for the imposition of discipline... .” Id. at

758. Because the military must be able to command

obedience, servicemembers may not speak as freely

as civilians.

10 U.S.C. § 933 and 934 (1982). Article 133 prohibits ‘‘con-

duct unbecoming an officer and a gentleman’ while Article 134

prohibits all conduct prejudicial to good order and discipline or

of a nature to bring discredit upon the armed forces.

16

Similarly in Chappell v. Wallace, 462 U.S. 296

(1983), the Court held that military members may not

sue their commanding officers for violations of con-

stitutional rights. In denying servicemembers this

right, the Court again concentrated on the military’s

mission and the need for strict obedience and disci-

pline to accomplish that mission. The Court concluded

that the “unique disciplinary structure’’ of the mili-

tary justified denying servicemembers legal recourse

for the deprivation of constitutional rights.

Most recently, in Goldman v. Weinberger, —— U.S.

___ , 106 S.Ct. 1310 (1986), the Court upheld a U.S.

Air Force regulation prohibiting the wearing of any

headgear while indoors. Goldman challenged the reg-

ulation, arguing that it prohibited religiously moti-

vated conduct protected by the first amendment. The

Court held that ‘‘to accomplish its mission the military

must foster instinctive obedience, unity, commitment,

and esprit de corps.”’ Goldman, 106 S.Ct. at 1313.

Therefore, because the regulation was necessary to

the needs of the military for discipline and order, the

first amendment right had to be sacrificed.

These precedents are consistent with O'Callahan.

They all require the armed services to point to a

legitimate military interest that must be protected in

order to justify depriving a servicemember of a basic

constitutional right. Absent that interest, there is no

justification. The legitimate military interest common

to these precedents is the need to maintain obedience,

order and discipline.

Therefore, before a servicemember can be deprived

of those rights he loses in trial by court-martial, the

military must demonstrate that trial by court-martial

is necessary to protect obedience, order and discipline,

OM

f

H

17

i.e., that the offense is truly service-connected. Fur-

thermore, O’Callahan and Relford make clear that

this demonstration of service-connection must be

based on an analysis of the facts of a specific case.

The O’Callahan Court found that placing those lim-

itations on the exercise of military jurisdiction was

fully consistent with the fifth amendment’s exclusion

of “cases arising in the land or naval forces... .”

Thus, the O’Callahan Court’s holding that cases must

be “service-connected’”’ is consistent with the fifth

amendment’s language.

CONCLUSION

The lower court has slowly eroded the constitutional

principle announced in O’Callahan. Military jurisdic-

tion is now based on the type of offense involved

rather than an analysis of the specific facts of each

individual case. The military, however, still does not

provide the basic procedural safeguards and consti-

tutional rights provided by civilian courts. This Court

should reaffirm the constitutional principle that the

military cannot force servicemembers to sacrifice their

basic constitutional rights unless the military can

demonstrate that the offense is service-connected.

18

Respectfully submitted,

Davip C. LARSON

Captain, Judge

Advocate General’s

Corps (JAGC), U.S. Navy

Attorney of Record

for Amicus Curiae

SUSAN R. CORNELL

Lieutenant, JAGC

U.S. Naval Reserve

APPENDIX

ENS IE ence pte Pek Dy ee

la

APPENDIX

UNITED STATES NAVY-MARINE CORPS COURT

OF MILITARY REVIEW

Mise. Dkt. No. 85-11

UNITED STATEs,

Appellant,

v.

JAMIE L. MCARTHUR

464 82 9661 Radioman Third Class (E-4) U.S. Navy,

Appellee.

GENERAL COURT-MARTIAL

OPINION OF THE UNITED STATES NAVY-

MARINE CORPS COURT OF MILITARY REVIEW

ON THE APPEAL BY THE UNITED STATES

Decided 29 November 1985

LTCOL STEPHEN MITCHELL, USMCR. Appellate Gov-

ernment Counsel

LT STEVEN P. BENSON. JAGC, USNR, Appellate Gov-

ernment Counsel

MAJ MICHAEL E. CANODE, USMC. Appellate Defense

Counsel

LT GARY K. VAN METER. JAGC, USNR, Appellate De-

fense Counsel

PER CURIAM:

This case is now before us on appeal by the Government.

A brief recitation of the proceedings to date will suffice

at this stage to provide a frame of reference; additional

2a

information will be added at the proper points in our anal-

ysis. In the course of preparing this case for trial Lieu-

tenant S, the trial defense counsel, consulted his immediate

superior, the Senior Defense Counsel (Lieutenant Com-

mander M) regarding several particular aspects of defense

strategy and problems, receiving specific advice in re-

sponse. Later, Lieutenant Commander M’s duties were

changed to Senior Trial Counsel at the same Naval Legal

Service Office. Lieutenant S, when he discussed this case

with Lieutenant Commander M, was not aware that this

reassignment would occur, and the record does not reveal

whether Lieutenant Commander M had such knowledge.

Lieutenant Commander M then performed the duties of

trial counsel in this case from its earliest stages, accu-

mulating evidence, advising the convening authority on the

charges, serving the accused, representing the Government

at the Article 32 (UCMJ) pretrial investigation, and acting

as prosecutor during ‘initial stages of the trial. Prior to

pleading the appellant moved to dismiss the Charge or, in

the alternative, to remove Lieutenant Commander M from

trial counsel duties due to disqualification resulting from

his earlier connection with the case. The military judge

denied the motion to dismiss but granted the motion to

disquality Lieutenant Commander M as trial counsel. Lieu-

tenant M then assumed duties as trial counsel. Subse-

quentlv, >owever, after further presentation of evidence

and a:yruent, the military judge announced that he was

reconsidering the earlier motion to dismiss and granted

the motion. The trial counsei then obtained a continuance

and filed the instant appeal. We have determined that this

case is within our jurisdiction as its resolution involves a

question of law. Article 62(b), UCMJ.

We see two issues for resolution: (1) Was Lieutenant

Commander M disqualified from acting as trial counsel and

(2) is dismissal warranted? In regard to grounds for dis-

qualification of counsel, Article 27(aX2) points out.

nor may any person who has acted for the defense act

‘é

3a

later in the same case for the prosecution.’’ The meaning

of the phrase “person who has acted for the defense’’ is

vital. Restricting application of the phrase to the conven-

tional attorney-client relationship appears unwarranted, as

the drafters could easily have so specified if that was their

intent; the use of a more expansive phrase instead con-

vinces us that the drafters intended to allow for a broad

range of eventualities. This less-restrictive interpretation

is echoed in the Discussion of R.C.M. 901(d), which ex-

plains that disqualification of an attorney may result merely

from “duties or actions which are inconsistent with the

role of counsel.”’

The Government has protested that liberality in con-

struction of the phrase “acted for the defense” will tor-

pedo the Naval Legal Service Office fleet. We are not

inclined to accept the Government’s alarmist assertions

that the fate of the Naval Legal Service Office concept is

at stake in this case. Such establishments have been in

operation for a lengthy period with few problems of the

present nature called to our attention, probably because

an appreciation of the potential for conflict and the ap-

plication of common sense have resulted in sound plans to

avoid the type of conflict we see here. But, this very

potential for conflict still cannot be ignored and instead

neccessitates scrupulous attention:

In the delicately bala ed system of military jus-

tice, where potential ror such situations is always

present due to regular office assignment rotation,

counsel sensitivity to this issue is particularly im-

portant. It is not enough, however, for the mil-

itary lawyer to avoid any actual conflicts of

interests, but also to avoid even the slightest ap-

pearance of impropriety.

United States v. Hannon, 19 M.J. 726, 728 (NMCMR 1984).

It is precisely this “appearance of impropriety” which

is so vividly evident in the case at hand. Although the

4a

appellant and appellee differ over many aspects of the

case, they do agree that substantial matters bearing on

the defense of appellee were discussed between Lieutenant

Commander M, as senior defense counsel, and Lieutenant

S. These included the appellee’s denial of the allegations

against her, the existence of blood in her room and a

bloody towel, steps to obtain full discovery of Naval In-

vestigative Service reports, methods to force a speedy trial,

and drug-induced hypnosis to elicit information possibly

repressed in the appellee’s memory. They further agree

that no privileged communications were revealed to Lieu-

tenant Commander M and that he did not act in bad faith

or out of improper motive in assuming as trial counsel

after conferring while Senior Defense Counsel with the

detailed defense counsel. Based on these facts we find that

Lieutenant S committed no impropriety in discussing de-

fense-related matters with Lieutenant Commander M, a

fellow defense counsel, that Lieutenant S could reasonably

believe that the information about appellee’s case shared

with Lieutenant Commander M would not be used ad-

versely to appellee, and that Lieutenant Commander M,

through these discussions, gained this information solely

by reason of his status as senior defense counsel. Once in

possession of this information Lieutenant Commander M

could not reasonably be expected to expunge it from his

memory, so he was under an obligation not to place himself

in a position of apparent conflict. Although we have found

no attorney-client relationship between Lieutenant Com-

mander M and the appellee in the normal sense, no com-

munication of privileged information from Lieutenant S to

Lieutenant Commander M, and no apparent bad faith on

the part of Lieutenant Commander M, we still have a set

of circumstances which graphically raises the potential for

conflict of interest, where an attorney comes into posses-

sion of substantial information about the defense case by

virtue of his official position and consultation with the

defense counsel, but then switches sides to prosecute the

5a

case from its outset. Moreover, we cannot ignore the ex-

hortations of United States v. Green, 5 U.S.C.M.A. 610,

18 C.M.R. 234 (1955), to resolve doubts in favor of the

accused and of United States v. Stringer, 4 U.S.C.M.A.

494, 16 C.M.R. 68 (1954), to disquality the trial counsel

where the possibility of prejudice exists, without resorting

to refined calculations as to the precise quantity of prej-

udice or its probable effect on the results of trial. See also

Discussion to R.C.M. 901(d), Manual for Courts-Martial,

1984. For these reasons we find that Lieutenant Com-

mander M “acted for the defense” and was therefore dis-

qualified from service as trial counsel.

Next we examine the military judge’s decision to dismiss

the charge. In their briefs the appellant and the appellee

have argued the doctrines of general versus specific prej-

udice. We see no need to enter this murky area of the

law. See United States v. Jerasi, 20 M.J. 719 (NMCMR

1985) (en banc); compare United States v. Green, 5

U.S.C.M.A. 610, 18 C.M.R. 234 (1955) with United States

v. Brooks, 2 M.J. 102 (C.M.A. 1977). Instead, we are con-

vinced that, as a matter of law, the military judge abused

his discretion by imposing the draconian remedy of dis-

missal, when a less drastic means of relief was available.

The issue before the military judge was not of the type

that demanded dismissal as exclusive relief, see R.C.M.

907(bX1), and the circumstances, even though serious, were

not of the egregious sort which cry out for terminal dis-

position. Rather than dismissal, the proper remedy would

balance the equities by allowing the government to con-

tinue with the proceedings but protect the appellee from

any improper influence of Lieutenant Commander M’s par-

ticipation, and the exact nature of such protection would

be determined by Lieutenant Commander M’s involvement.

Moving from general to specific, it logically follows from

Lieutenant Commander M’s disqualification at the trial it-

self that he is disqualified from participation at earlier

Stages of the case as well. This derives from the language

6a

of Article 27(aX2) which warns that someone who acts for

the defense may not ‘‘act later in the same case,’ (not

just at trial), thus imposing a flexible standard dependent

on the exact circumstances. Based on the extensive in-

volvement by Lieutenant Commander M from the earliest

stages of this case we cannot discount the possibility that

the information gleaned from his consultations with the

trial defense counsel influenced his actions, even if sub-

consciously and unintentionally. Furthermore, the same ap-

pearance of impropriety results from Lieutenant

Commander M’s involvement at whatever stage.

We therefore reverse the decision of the military judge

dismissing the charge and order that this case be returned

to the convening authority, who may either (1) dismiss the

Charge, or (2) forward the Charge to another convening

authority who shall determine if further action on the

Charge is appropriate. If alternative (2) is followed, the

following constraints shall apply: (a) The transferee con-

vening authority shall be neutral and have no prior knowl-

edge of the case; (b) The transferee convening authority

shall make an independent determination, completely free

of influence from prior proceedngs and any new proceed-

ings must commence with a new preferral of charges; (c)

The transferee convening authority may, in arriving at his

disposition, consider only matters of factual/evidentiary na-

ture and not the opinions/conclusions/work product of any

prior trial counsel in the case; (d) Any new trial counsel

shall have no access to this record, other earlier proceed-

ings in the case, or work product of the prior trial counsels

and the prior trial counsels in the case shall have abso-

lutely no further involvement with it; (e) Our intent is that

this case be treated as a new case, developed from its

earliest stages without any taint whatsoever from the prior

proceedings—all further proceedings must be governed by

this intent and doubts shall be resolved by referring to

this intent. We are aware from comments in the record

that the statute of limitations may constrain further pro-

Ta

ceedings, presenting us with the option of dismissing the

charges as a matter of judicial economy. As this matter

was not fully expounded in the record we consider the

convening authority in the best position to weigh the avail-

able alternatives and choose the fairest disposition.

/s/ John W. Kercheval IT

John W. Kercheval II, Senior

Judge

/s/Michael D. Rapp, Judge

Michael D. Rapp, Judge

See Concurring/Dissenting Opinion)

John E. Grant, Jr., Judge

8a

GRANT, Judge (concurring/dissenting):

I disagree with the majority that the relevant issues in

this case can be resolved without squarely addressing the

matter of specific versus general prejudice, and I will ad-

dress such matters below after expanding on the sum-

marization of evidence set forth in the majority opinion.

SUMMARY OF EVIDENCE

The original trial counsel, Lieutenant Commander M, in

his previous capacity as Senior Defense Counsel, was con-

sulted by Lieutenant S, the appellee’s former defense

counsel, in regard to the proper defense strategy to be

employed in the defense of the appellee. Lieutenant Com-

mander M did not enter into an attorney-client relationship

with the appellee, but did discuss with Lieutenant S, before

preferral of charges, the Article 32 Investigation, and re-

ferral of charges to trial, matters which included the ap-

pellee’s denial of wrongdoing and the advisability of

subjecting the appellee to hypnosis. It was conceded by

the appellee that no confidential communications related

to Lieutenant S by the appellee were disclosed to Lieu-

tenant Commander M, who subsequently was transferred

to prosecution and specifically assigned as trial counsel at

appellee’s Article 32 investigation and court-martial. The

trial judge initially denied appellee’s motion to dismiss

charges because of Lieutenant Commander M’s prior par-

ticipation as a defense consultant, but did disqualify Lieu-

tenant Commander M from acting in a prosecutorial role,

believing that any prejudice to appellee as the result of

Lieutenant Commander M’s prior relationship with Lieu-

tenant S could be headed off by removing the source of

prejudice.

Lieutenant M, was duly assigned to replace Lieutenant

Commander M as trial counsel, and the matter might have

ended there except that Lieutenant Commander M con-

tinued to operate in the background in support of the

9a

prosecution of appellee. Lieutenant M admittedly utilized

Lieutenant Commander M in an administrative capacity in

preparing for trial, although Lieutenant M denied con-

sulting with Lieutenant Commander M on strategy or in

regard to any previous discussion between Lieutenant

Commander M and Lieutenant S. To further complicate

matters, Lieutenant M was alleged to have engaged in an

ex parte conversation with the trial judge following the

relief of Lieutenant Commander M and after having sought

Lieutenant Commander M’s counsel, in regard to matters

involving the statute of limitations and the effect thereof

Should the trial judge require preferral of new charges

pursuant to a defense motion; Lieutenant Commander M

delivered a document to trial defense counsel, after his

relief, denying the defense a material witness and allegedly

misrepresented that the requested defense witness would

no longer support the defense’s position, which document

Lieutenant Commander M prepared apparently before he

was relieved as trial counsel; and finally, Lieutenant Com-

mander M, after his relief, approached the defense counsel

and requested that he agree to dispose a prospective wit-

ness.

Given these new revelations, the trial judge reconsidered

and granted appellee’s motion to dismiss. In dismissing

the charges, however, the trial judge did not address the

effect of Lieutenant Commander M’s continued partici-

pation in the trial of appellee subsequent to his relief from

duties as trial counsel, apparently because the trial judge

was content to premise his decision on general rather than

specific prejudice, citing United States v. Green, 5

U.S.C.M.A. 610, 18 C.M.R. 234 (1955), and the third prong

of Judge Fletcher’s concurring opinion, in United States

v. Brooks, 2 M.J. 102 (C.M.A. 1977). The trial judge simply

found that trial strategy was discussed in Lieutenant Com-

mander M’s conversation with Lieutenant S, when the for-

mer was a Senior Defense Counsel and the latter

represented the appellee, and as it was impossible to de-

10a

termine what subconscious use may have been made of

such conversations by the prosecution in the pretrial stages

of the court-martial, any doubt must be resolved in favor

of the appellee by dismissing the charges.

I

I do not share with the trial judge his interpretation of

the Green case, nor do I believe that the facts in the case

sub judice rise to the levei of Judge Fletcher’s third prong

application of general prejudice in Brooks. Green involved

a flagrant breach of the attorney-client relationship where

the duly assigned defense counsel provided the staff judge

advocate confidential information detrimental to his client’s

interest. In the case sub judice, Lieutenant S admittedly

did not disclose any confidential communications of the

appellee, but rather discussed trial strategy with the Sen-

ior Defense Counsel, and therefore, the extreme remedy

of dismissal based on general prejudice is not mandated

by Green. Secondly, Brooks generally stands for the prop-

osition that where privileged communications are made to

third persons outside the attorney-client relationship (The

trial defense counsel made disclosures of a confidential

nature to the military justice officer, who traditionally is

a government representative), the test to be applied for

dismissal is specific, not general, prejudice, and where an

accused is convicted, under such circumstances, the con-

viction can be affirmed if the record demonstrates that

the use made of the communication was harmless to the

accused and that the conviction was otherwise valid. Judge

Fletcher, in concurring in the result, would apply the doc-

trine of general prejudice only in three situations, namely,

(1) where the defense counsel abandons his client; (2) where

the government initiates the breach in a manner outside

permissible legal confines; and (3) where the actions of the

attorney so impregnate the proceedings as to make an

appellate determination of extent of prejudiced impossible.

In each of the three situations, according to Judge Fletcher,

lla

“the very integrity of our judicial system and the concept

of a fair trial are so violated as require this Court to

dispose with a search for prejudice.” In the case sub judice,

the trial judge makes no specific factual determinations to

support his conclusion that the actions of Lieutenant Com-

mander M were so pervasive in nature as to inherently

taint the entire proceedings and constitute prejudicial error

per se. On the contrary, the trial judge failed to assess

such actions and particularly declined to address the ef-

fects of Lieutenant Commander M’s post-relief activities

in this regard.

I cannot agree, as a matter of law, with the trial judge

that it is impossible to assess the effects of Lieutenant

Commander M’s participation in pretrial proceedings for

specific prejudice. The case file turned over to Lieutenant

M by Lieutenant Commander M could have been reviewed

and assessed for taint, and both Lieutenant Commander

M and Lieutenant M were available to testify. Lieutenant

Commander M’s subsequent activities after being relieved

as trial counsel also may be assessed for specific prejudice,

as well as his prejudicial influence, if any, in the preferral

of charges, the Article 32 investigation, and the referral

of charges to trial, upon the proper presentment of evi-

dence. The trial judge failed to address the issue of specific

prejudice, although the competent evidence of record in-

dicates that either on the motion or during the course of

the trial, there was or would have been ample opportunity

to assess the impact of Lieutenant Commander M’s artiv-

ities on the appellee’s right to confidentiality in an |

attorney-client relationship and to determine whether any |

error in this regard prejudiced the rights of the appellee

to a fair trial. The trial judge’s reliance upon the unproven,

subconscious thought processes of members of the trial

team effectively emasculates the majority opinion in United

States v. Brooks, supra, and goes far beyond Judge Fletch-

er’s third prong invoking geueral prejudice, where, re-

spectively, the trial judge did not pursue the search for

12a

specific prejudice in Lieutenant Commander M’s conduct

and the record of trial does not contain such evidence to

sustain a finding, as a matter of law, that Lieutenant

Commander M’s conduct so impregnated the proceedings

as to make impossible appellate review on the extent of

the prejudice. The teachings of Brooks would effectively

be reduced to an assessment of specific prejudice by sup-

position, unfounded in fact, in sanctioning the trial judge’s

rationale.

Accordingly, I join with the majority in reversing the

trial judge’s dismissal of the charges, where the trial judge

failed to address the issue of specific prejudice. Although

I concur with the majority that Lieutenant Commander M

was properly relieved by the trial judge from further par-

ticipation as trial counsel for the reasons indicated in the

majority opinion, I decline to adopt the further position

of the majority: (1) requiring the convening authority to

either dismiss the charges or defer to a new convening

authority for action; (2) mandating the preferral of new

charges should the new convening authority elect to pro-

ceed; and (3) imposing restrictions on the turnover of case

records to the new trial counsel which go beyond obviating

any taint occasioned by Lieutenant Commander M’s past

association with Lieutenant S and make any subsequent

prosecution of the appellee extremely difficult. I would

return the record of trial for further proceedings, where

the matter of specific prejudice may be fully assessed and

evidence of specific prejudice, if any, introduced on all

matters relating thereto, including but not necessarily lim-

ited to the circumstances under which the original charges

were preferred and referred to trial.

/s/ John E. Grant, Jr.

John E. Grant, Jr.