555 F.2d 785 | Ct. Cl. | 1977
delivered the opinion of the court:
Plaintiff Gary Hendrix served with the United States Marine Corps as a Lance Corporal in the Republic of Vietnam. On May 19, 1971, he was convicted by a general court-martial of aggravated assault, attempted murder and premeditated murder in violation of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 928, 880, 918. The charges against him arose from a "fragging” incident — he was convicted of having thrown fragmentation grenades into a bunker where three of his company’s sergeants were sleeping, killing one and injuring the other two. His sentence was to hard labor for life, reduction to grade E-l, dishonorable discharge, and forfeiture of pay and allowances. After the convening authority reviewed and approved the findings and sentence, the Navy Court of Military Review affirmed the conviction by written opinion.
At this point plaintiff had exhausted his formal appellate rights under the Uniform Code of Military Justice. Nevertheless, he filed an Article 138 Complaint of Wrongs
Hendrix’s case is based essentially upon two premises. The first is that the military personnel, especially his defense counsel, who were responsible for plaintiffs court-martial proceedings did not act in accordance with constitutional requirements. The second theory plaintiff advances is that the UCMJ, insofar as it empowers a court-martial to hear this type of controversial case, is inherently unfair and therefore unconstitutional. We deal separately with each of these contentions.
A.
For plaintiff to succeed on his first claim — based on biased or ineffective military counsel and court-martial personnel — he must show that the alleged errors in his trial mounted to an unconstitutional deprivation of his Fifth and Sixth Amendment rights. Cf. United States v. Augenblick, 393 U.S. 348, 356 (1969); Wimberley v. Laird, 472 F.2d 923, 925-26 (7th Cir.), cert. denied, 413 U.S. 921 (1973). This is not an easy burden.
The first thing to say on this aspect of the case is that the prosecution’s case against Hendrix was not at all weak if its witnesses were believed. The night of the "fragging,” plaintiff had been on guard duty, not too far from where the "fragging” incident took place; during his watch
The assault here is on certain action by defense counsel, the military judge, and staff psychiatrists which, plaintiff says, deprived him of the effective assistance of counsel and of a trial comporting with due process. First, plaintiff states that his originally assigned defense counsel immediately suggested a guilty plea and told plaintiff to throw himself on the mercy of the court.
Plaintiff claims, however, that the suggested guilty plea was merely the first step in his counsels’ further incompetent and biased approach. He argues that counsel thereafter conducted a weak and disspirited defense, made other prejudicial errors and participated with military psychiatrists in convincing plaintiff that he was probably guilty but suffered from a "mental block” which prevented him from recalling the events on the night of the murder. But a review of the record indicates that military counsel did not demonstrate a defeatist attitude toward plaintiffs case. Rather, counsel argued for a change of venue back to the United States,
Another contention is that, at the psychiatric proceedings, which were ordered to test plaintiffs sanity, military counsel and psychiatrists "brainwashed” him to abandon his belief in his own innocence and to accept the fact that he may have been repressing his memories of the murder.
Still another charge is that plaintiffs court-martial was tainted because one of his counsel told the military judge, outside the hearing of the court-martial members, that plaintiff wished to plead guilty to all charges. (No guilty plea was in fact entered — and none could be to the charge of murder.) The implication plaintiff urges is that the judge was thereafter biased and that his bias prejudiced his ruling on the admissibility of plaintiffs oral confession and other trial decisions. This assumes, without any proof whatsoever, that the judge could not act, and did not act, as a judge should. An allegation of this type must be specifically demonstrated and cannot rest on the merest speculation, which is all that plaintiff offers.
Another in the litany of plaintiffs complaints is that he was deprived of his constitutional right to counsel. He had military counsel throughout, but urges that he also had a right to civilian counsel. The UCMJ, in Article 38(b), declares that a military defendant is entitled to civilian counsel, but only if furnished by the defendant, as well as the services of any military counsel if reasonably available. Plaintiff, who had expressed his desire to have civilian counsel, was notified by the judge of his right to obtain one. It is clear that the judge also made sure that sufficient time was allowed to obtain a civilian lawyer, and a three-month continuance period elapsed before the trial really commenced. When asked at this session whether he wished to proceed with his military counsel, plaintiff answered affirmatively. While the military judge did not elicit for the record the extent of the efforts made to procure civilian counsel,
We apply the same analysis to plaintiffs arguments concerning the retaining of civilian psychiatric witnesses. The judge denied plaintiffs change of venue motion, suggesting that civilian psychiatric assistance could be obtained in or brought to Vietnam if counsel really wanted it. There is no proof (or proffer of specific proof) that this assessment of the situation was a clear abuse of discretion amounting to a constitutional deprivation. Defense counsel’s decision to utilize a military sanity board was a practical and tactical one which should not be second-guessed. It certainly did not cause the later proceedings to be unfair and may well have aided plaintiff in avoiding the extreme sanction.
In sum, we find that plaintiffs court-martial was conducted well within the limits of the Constitution and any errors which may have been made did not so taint the proceedings as to vitiate the plaintiffs conviction from the constitutional standpoint.
B.
The second major theory upon which plaintiff relies is that the court-martial was without jurisdiction to hear his case because the military justice system, insofar as it empowers courts-martial to hear a controversial case such as one involving "fragging” in Vietnam, is inherently unfair and therefore unconstitutional. This attack on the military justice system basically reiterates the broad argument against "command influence” which has been
This court has heard and rejected similar arguments before. We state again that we have not been persuaded that the military justice system is unconstitutional per se and we will not assume unfairness or prejudice against a court-martial defendant merely because the operative legislative scheme delegates to the convening authority multiple roles in the proceedings. Sec McDonald v. United States, 209 Ct. Cl. 62, 531 F.2d 490 (1976), Gross v. United States, 209 Ct. Cl. 70, 531 F.2d 482 (1976), Jones v. United States, 205 Ct. Cl. 270, 499 F.2d 631 (1974). As we stated in Gross, supra, Congress has at least twice seriously considered complaints about command influence and has designed safeguards to protect defendants’ rights from prejudicial influence on the part of the convening authority.
For this court to consider voiding a court-martial conviction, the Supreme Court has indicated that we must be certain that any infirmities in the proceedings amounted to a violation of the defendant’s constitutional rights. United States v. Augenblick, supra, 393 U.S. 348, 356 (1969). To convince us that unconstitutional violations occurred, a plaintiff must show proof of serious official impropriety particular to his case or at least demonstrate convincingly the actual injurious impact of the UCMJ’s provisions on cases similar to his. For the reasons stated above in Part A, plaintiff here has failed to meet the first burden; he does not come near showing that there was any undue command influence in his particular case. The attempt to demonstrate the general invalidity of the military justice system is essentially the same as it was in McDonald, supra — a combination of affidavits giving the affiants’ own experience with military justice (not involving plaintiffs case)
Plaintiffs motion for summary judgment is denied, the Government’s motion for summary judgment is granted, and the petition is dismissed.
United States v. Hendrix, NOM 71-2473 (1972),
UCMJ, Art. 138, 10 U.S.C. § 938 (1970).
This particular accusation has been expressly denied by that counsel, former Captain Grant, in an affidavit filed by defendant here.
Defense counsel was quite aware that plaintiff had allegedly made severely incriminating statements immediately after the "fragging,” again a few hours after the incident, and then allegedly made an almost immediate full oral confession when questioned by investigative agents the following morning.
This motion was designed to assist plaintiff to obtain desired non-military counsel and civilian psychiatric evaluation, a point discussed more fully, infra.
Though plaintiff did not take the stand on the merits, he did testify at the hearing on the admissibility of the oral confession.
See, e.g., United States v. Emerson, 44 CMR 604 (1971).
The most that Hendrix ever said at the time of the inquiry by the psychiatrists was that, though he actually remembered nothing of the incident, it was possible that he had killed the sergeant and then repressed this memory,
The military do not recognize the doctor-patient privilege in these circumstances.
See, e.g., Gallagher v. United States, 191 Ct. Cl. 546, 423 F.2d 1371, cert. denied, 400 U.S. 849 (1970); Griffiths v. United States, 145 Ct. Cl. 669, 172 F.Supp. 691, cert. denied, 361 U.S. 865 (1959).
According to an affidavit by one of the military defense counsel, two civilian legal-aid lawyers in Vietnam reviewed plaintiffs file and determined that civilian legal assistance would not contribute significantly to plaintiffs defense in light of the competence of assigned military counsel.
See, for example, the UCMJ sections, cited in Gross, supra, at 80-82, which Congress designed to protect against command influence.
Two of the affidavits are by individuals who also filed affidavits in the
In view of our disposition, the defendant’s motion to strike the plaintiffs affidavits becomes moot and need not be decided. The same is true of plaintiffs belated motion for leave to file an affidavit and report relating to the recent West Point cheating scandal. Plaintiffs equally late motion for call for information from the Marine Corps on alleged command influence in marijuana cases is denied.