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Military Justice and the Right to Counsel

Military Justice and the Right to Counsel

S. Sidney Ulmer
Copyright Date: 1970
Pages: 128
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    Military Justice and the Right to Counsel
    Book Description:

    InMilitary Justice and the Right to Counsel, S. Sidney Ulmer seeks to explore and compare the right to counsel that has been afforded the American serviceman and that which has been granted his citizen counterpart in the civil courts. The civil and constitutional rights of the serviceman and the civilian in the context of criminal prosecutions are implemented in two distinct legal settings a civil system of state and federal courts, including the United States Supreme Court, and a military system composed of courts martial, boards of review, and the United States Court of Military Appeals. Ulmer suggests that in a political system in which individual preferences are given equal weight, the values of the priorities adopted in the civil society will inevitably encroach upon the variant values of any military sub-society involving substantial numbers of people who participate in both.

    eISBN: 978-0-8131-6475-5
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. 1-12)

    In social and political systems, two questions are always paramount: What behavior is to be controlled and what methods are to be employed? Citizens, philosophers, governments, and gods are continuously agreeing and disagreeing about adequate answers to these questions. Out of such disputes grow international treaties and alliances, schools of philosophy and political theory, constitutions for government, statutes, and court decisions. All provide answers that emphasize the relative importance of the two sides of the issue as well as the acceptable posture to be taken on each.

    In Western democracies, suppression of undesirable behavior is often attempted through removal of...

  5. One
    (pp. 13-15)

    It is a truism of American politics that Congress and the Supreme Court both respond to the pressures of public opinion. A problem arises, however, in trying to tie particular acts of the Congress or the Court to the opinion of particular publics. Some mitigation of this difficulty is derived from the fact that the Congress and the Court are not equally responsive to all publics. Indeed, response in the area of policy formulation, development, and implementation is more often directed to those publics that “count for something” in the political arena. The publics that count, in turn, are characterized...

  6. Two
    (pp. 16-18)

    Our difficulties stem, in part, from our past. In general, a British heritage has not prevented major changes in procedures and concepts governing the relationships between the individual and his government. The Declaration of Independence focused on the deficiencies of British justice, and our federal and state constitutions establish a number of rights which were unrecognized in contemporary British law.28Since the Declaration complained at length about British abuse of certain personal rights, it is not surprising that early state and federal constitutional provisions departed from British practice. It may be recalled, however, that the Declaration also accused George III...

  7. Three
    (pp. 19-23)

    On the American scene the recent work of the Supreme Court in modifying, formulating, and sustaining the rights of the individual is well known and needs no emphasis. In general that effort has served to broaden the protections granted the individual against state or federal governmental action.³³ We may wonder whether a similar liberalizing trend has occurred in military law, whether the disparity between governing concepts in military and civilian legal systems with which we began our “experiment in democracy” has been maintained, narrowed, or enlarged, and whether doctrinal developments in military law have paralleled, led, or lagged behind similar...

  8. Four
    (pp. 24-27)

    The earlier British practices undoubtedly influenced the adoption by the states of the right to counsel in criminal cases. By 1787 all eleven states had recognized such a right in fairly broad terms in constitution or statutes. South Carolina, as early as 1731, provided for court-appointed counsel in capital cases if the accused would be undefended otherwise.38Consequently, the adoption of the right in the Sixth Amendment broke no new ground—it emphasized a principle already widely approved. The meaning of the federal principle, however, remained to be established. In the 1789 Judiciary Act39and the 1790 Federal Crimes Act,⁴⁰...

  9. Five
    (pp. 28-31)

    Further revisions of procedural guarantees for defendants in courts-martial occurred in 1874.42In 1806 a general court could be appointed by either a general officer or a colonel commanding a department. In 1874, this authority was restricted to general officers. In addition, a stipulation was added that when the general officer was the accuser or prosecutor of any officer under his command, the court was to be appointed by the president, with its proceedings and sentence being sent directly to the secretary of war and then to the president for final approval or orders in the case.

    Article 80 of...

  10. Six
    (pp. 32-38)

    In 1916 Congress legislated a third revision of the Articles of War.⁴⁸ In this version we encounter a threefold division of courts-martial into general, special, and summary courts. The general court is equated with that provided for in 1806; the special court replaced the regimental or garrison court; and the summary court, consisting of one officer, replaced the field officer designation or field court established in 1874. Whereas in 1874 only general officers could appoint general courts, in 1916 this authority was delegated to the president and various commanding officers down to the brigade level. This change could be viewed...

  11. Seven
    (pp. 39-45)

    During the period April 6, 1917, to June 30, 1919, 145 death penalties were handed down by military courts-martial. Execution was consummated in thirty-five; ten in France and twenty-five in the United States.⁵⁷ Additional thousands of American troops were subjected to military detention and court-martial procedures which left many of them aghast. Soldiers’ complaints do not necessarily establish a basis for fundamental changes as opposed to procedural changes in military legal practices. Nor can we evaluate with certainty all the allegations made by those who expressed their dissatisfactions. But these are not the critical questions. The focal issues are the...

  12. Eight
    (pp. 46-49)

    In April 1920 the Senate Military Affairs Committee reported a bill designed to alter drastically the 1916 Articles of War—the stated aim being to improve the system of military justice.73Although the War Department Board was not happy with the proposals, major portions of the bill were enacted into law in the same year.

    In the 1920 revision,⁷⁴ general, special, and summary courts-martial were retained in essentially the same form, with the general court to consist of any number of officers not less than five as compared to the earlier provision for some number between five and thirteen. A...

  13. Nine
    (pp. 50-60)

    World War II involved something like eleven million men in the United States Army alone. Of this number, 80,000 were convicted by general courts-martial and many thousands more by special and summary courts.⁷⁵ Of course, most of these soldiers were drafted into military service and their large numbers guaranteed that their views would be of considerable interest to Congress, particularly upon returning to civilian life. For Congress was alert not only to the number of persons actually serving in the armed forces but also to the even larger number of relatives and friends who were subject to influence by the...

  14. Ten
    (pp. 61-69)

    The Morgan Committee appointed by Secretary Forrestal in 1949 ultimately produced the Uniform Code of Military Justice (ucmj). The military services have operated under the code, as amended by the Military Justice Act of 1968 (mja), since 1951.⁹⁶ The effect of the enactment was to nullify the Articles of War and the governing codes of the navy and air force. The ucmj, then, is the constitutional law of the armed forces. Manuals of courts-martial are promulgated by the president and have the force of law but must be, in content, pursuant to the ucmj.

    Although the code retains many of...

  15. Eleven
    (pp. 70-80)

    Prior to 1960 the Bill of Rights in the federal Constitution was applicable to the federal government but not to the states. The First Amendment may be considered an exception to this general statement, since provisions of that Amendment had been incorporated in the due-process clause of the Fourteenth Amendment. The search and seizure provision of the Fourth Amendment is also a possible exception, since the Court held in 1949 that the security of one’s privacy against arbitrary intrusion by the police was implicit in the concept of ordered liberty and as such enforceable against the states through the due-process...

  16. Twelve
    (pp. 81-87)

    In comparing the right to counsel for military personnel tried by courts-martial with that of criminal defendants in civil courts, one is immediately struck with the disparity in the questions which appellate courts are frequently asked to decide. This is not totally unexpected, since the ucmj specifically establishes certain trial rights which have been added to the federal Constitution through court decisions. The accused before a general or a special court-martial not only has the absolute right to be represented by civilian counsel if provided by him or by military counsel of his own selection if reasonably available, but Article...

  17. Thirteen
    (pp. 88-92)

    A second dimension that has attracted attention is that of counsel behavior during trial. Assuming that qualified counsel has been retained or appointed, a serviceman being tried by a court-martial has the right to competent and effective representation by counsel. Since it is a simple matter to charge counsel with inadequate representation, the Court of Military Appeals has consistently held that the competency of defense counsel cannot be impeached unless the complaining party is able to show disloyalty or gross carelessness which was of direct aid to the prosecution. This means, in effect, that errors in judgment alone are not...

  18. Fourteen
    (pp. 93-96)

    In exercising his right to individual counsel, the military defendant may choose a civilian lawyer or a military person. The qualifications required for appointed defense counsel are not imposed on individual counsel. If the defendant chooses a military officer as individual counsel, that officer is not required to be qualified in the sense of Article 27 (b). However, the serviceman making such a choice must run the risk of any damage accruing from inadequate representation. One who is convicted in a general court may not complain that he was inadequately represented by his own deliberately selected counsel. InAdamsv....

  19. Fifteen
    (pp. 97-106)

    Having said all this is in no way to suggest that the uscma and the Supreme Court have found no common problems in the right to counsel area in recent years. Indeed, both courts have had to face the question “At what stage of criminal proceedings is counsel necessary?” The Supreme Court has required counsel at the critical stage, at the point at which the arrested person has become the focal object of a particular investigation and whenever, after arrest, interrogation begins. The Court of Military Appeals reached similar conclusions somewhat earlier than the Supreme Court.

    Under Article 32 the...

  20. Sixteen
    (pp. 107-112)

    In summarizing, we have interpreted the concern of the public with the rights and obligations of thePueblocrewmen in 1968 and 1969 as reflecting, in part, a broader, long-term interest in military justice. The behavioral controls imposed on the American serviceman and those who prosecute him, coupled with the institutional structure in which such prosecution occurs, have attracted the steady attention of particular publics during most of this century. This study suggests that these publics have been effective in promoting reform.

    Our expectation that the liberalization of military law through acts of Congress would correlate with the use of...

  21. Index
    (pp. 113-115)