more comprehensive view of the basic provisions. If these provisions are read and understood, along with the interpretative comments herein, it is believed that the original purpose of the Military Personnel Claims Act in seeking to relieve some of the financial hardships of service life will have been furthered.

MARITIME COLLISION

(Continued from page 132)

one which occurs without legal fault by either vessel. It is to be expected that on occasion collisions will occur despite the best efforts of all concerned. At such times it is essential that the Commanding Officer or Master insure that all available evidence is developed and preserved. In cases involving mechanical breakdown, the defective material or component and all maintenance and repair records must be preserved for subsequent use in litigation should the need arise.34

CONCLUSION

Awards of damages arising from a collision are based on causative fault and the burden of proving fault is on the party asserting it.

For a ship guilty of a statutory fault to exculpate herself she must show that the fault not only did not contribute, but could not have contributed, to the collision.

Fault is usually based on negligence or on violation of a statutory duty.

Where one vessel is grossly at fault and the other is at fault in a minor degree or in a technical sense a court may under the major-minor fault doctrine excuse the minor fault.

Application of the major-minor rule is allowed only under exceptional circumstances.

Where the evidence is so conflicting that it is impossible to determine to what direct or specific acts a collision is attributable, the collision is the result of inscrutable fault.

If the collision could not have been prevented under the existing circumstances by the exercise of ordinary care, caution, and maritime skill, the accident is inevitable.

The burden of proving inevitable accident and inscrutable fault rests heavily upon the party asserting it.

Damages arising from a collision resulting from inscrutable fault or inevitable accident rest where they fall and are not divided as in cases of mutual fault.

34. See Deutsch, Preliminary Investigative Procedure in Ship Collision and Personal Injury Cases Afloat, JAG J., June 1955, p. 3.

GRANT OF IMMUNITY

(Continued from page 134)

Military Justice but also constitutes an offense against State or Federal law. Under such circumstances, it was thought by some that a witness could refuse a grant of immunity and insist on his right against self-incrimination. In part, the question arose because, while immunity is mentioned some eight times in the Manual for Courts-Martial,16 it is not specifically mentioned at all in the Code. With the case of United States v. Kirsch 18 our body of military criminal law on grants of immunity was greatly increased. Kirsch had been granted immunity by an officer exercising general court-martial jurisdiction for his part in a conspiracy to obtain and deliver instruments connected with the national defense to the agent of a foreign nation and with wrongful delivery of such instruments. However, when Kirsch was called as a witness at the trial of one of his accomplices, he refused to testify on the grounds of self-incrimination. This conduct resulted in Kirsch being charged with willfully refusing to testify in violation of Article 134. He pleaded guilty to this offense but on appeal contended that the specification failed to allege an offense, in that the officer exercising general court-martial jurisdiction had no power to issue a grant of immunity; that he had a right to refuse the grant of immunity; and that the grant of immunity would not protect him from prosecution in a federal civilian court. The United States Court of Military Appeals, speaking primarily through Chief Judge Quinn, but with a concurring opinion by Judge Kilday, effectively struck down each contention of the defense. The court found authority for an officer exercising general court-martial jurisdiction to issue a grant of immunity, not only in the provisions of the Manual but also in certain Articles of the Code. 19 Having found that an officer exercising general court-martial jurisdiction had authority to issue a grant of immunity, the Court lost no time in declaring that a grant of immunity requires no acceptance to be effective, and that a witness could not reject it without subjecting himself to a charge of willful refusal to testify. As to the protection afforded by the grant of immunity against prosecution in a federal civilian court, it was held that the witness is fully protected. Chief Judge Quinn, among other things, referred to the pro

16. MCM 1951, pars. 56c, 67a, 67f, 68a, 68h, 140a, 148e, and 150b. 17. UCMJ, arts. 1-140, 10 USC 801-940.

18. 15 USCMA 84, 35 CMR 56 (1964).

19. UCMJ, arts. 30, 44, and 64, 10 USC 830, 844, and 864, and particularly art. 36, 10 USC 836, which authorizes the President to prescribe rules of procedure for courts-martial.

visions of Article 76 of the Code, which direct that "the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all . . . courts, agencies, and officers of the United States." 20 Judge Kilday, in his concurring opinion, relied extensively on two recent decisions by the United States Supreme Court,21 and pointed out that a grant of immunity in one sovereignty is effective in the courts of the other sovereignty. He thus reasons that "if immunity granted by the court of a state could protect against incrimination before a Federal court, or vice versa, it seems abundantly clear such is true between two courts created by Federal law." 22

That grants of immunity in the administration of military justice are here to stay appears quite clear. When necessary to prevent the defeat of justice, we should not overlook this important weapon.

20. United States v. Kirsch, supra note 18 at 96, 35 CMR at 68. 21. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964); Malloy v. Hogan, 378 U.S. 1 (1964). 22. United States v. Kirsch, supra note 18 at 99, 35 CMR at 71.

COMPTROLLER GENERAL OPINIONS

(Continued from page 118)

The Comptroller continued, however, that should the member become otherwise eligible for retirement, excluding his Public Health Service duty, the computation of his retired pay under section 6323 (e) would be based on the years of service creditable under 10 U.S.C. 1405 and 37 U.S.C. 205. Under those definitions, active service as a commissioned officer in the Public Health Service may be included. The net result, therefore, is that the captain may not count such service toward retirement, but should he become retired without it, he may count it toward computation of his retired pay. (Comp. Gen. Dec. B-129286 of 29 October 1964)

ERRATA

In the article entitled "Getting the Most Out of the Captain's Mast", by Captain Benjamin R. Fern, USN, which appeared at page 57 of the January-February 1965 issue of the JAG Journal, the last sentence of note (5) following the table on page 60 should read as follows: "Pay grades E-6 and above in the Marine Corps may be reduced only by the Commandant."

NEW RULES OF THE ROAD

(Continued from page 136)

navigate only inside such channel." Comment: Both of these new rules presumably will be greeted with wild enthusiasm by the large ship pilots who have spent many an anxious moment in channels hoping for a course change by a privileged motor boat or sailing sportsman. The effect of these new rules, while not going so far as to grant universal privileged status on channel-bound ships, has at least laid a burden on sailing vessels and small boats where none was present before. Initially, these rules must, of course, be applied by Naval vessels with restraint until education and custom have conjoined to give them wide recognition and acceptance.

(4) "A power-driven pilot vessel when engaged on pilotage duty, may, in addition to normal fog signals prescribed, . . . sound an identity signal consisting of four (4) short blasts." New Rule 15 (c) (x).

Comment: U.S. Naval vessels will be well forewarned to take note of this new signal. Since most of our pilot vessels off continental ports will be encountered near the dividing line between International and Inland Rules, it may well become, on occasion, urgent to distinguish this signal as a pilot vessel identity signal from an Inland Rules danger signal. It is clear that the introduction of this signal is intended to supersede the local customized usage of various identity signals currently employed by pilot vessels in the vicinity of different ports. Since the International Rules will continue to have no application in Inland Waters, since no identity signal was previously authorized for pilot vessels in International Waters, and since the prospective signal is optional, Naval vessels, which pass many a pilot vessel in the fog, should be advised to be alert to observe what new practice, if any, takes final form among our pilot vessels.

Insofar as Naval vessels are concerned, the U.S. federal courts will be the final arbiters, if necessary, in the matters discussed herein. The sole purpose of this article is to prevent that contingency from arising.

9. Enacting clause, act 24 Sep. 1963, P.L. 88-131, 77 Stat. 194.

Every officer in the naval service will acquaint himself with... the laws, regulations and orders relating to the Naval Establishment...

U.S. Navy Regulations 1948, Article 1209

Ability to discharge duties on courts-martial, consonant with his rank, has always been considered as one of the qualifications of a military officer.

TH

United States v. Culp, 14 USCMA 199, 203, 33 CMR 411, 415 (1963) (Kilday, J.)

INTRODUCTION

HIS ARTICLE IS dedicated to all who may become defense counsel, to unit legal officers and to commanding officers in the hope that by the suggestions contained herein the path to military justice may be straightened and smoothed. More specifically, it is hoped that the information and analysis furnished will "acquaint" counsel with pitfalls to be avoided during the sentencing phase of trial and to better "qualify" counsel and other officers charged with the administration of justice at the unit level. In many military cases the efforts of counsel, other than reading from a trial guide, are concentrated after the findings have been announced. This is true because so many cases involve guilty pleas. It is therefore important that potential defense counsel be provided with a full appreciation of their duties as to sentence efforts on behalf of the accused and that unit level administrators of military justice, commanding officers and legal officers be provided with standards for their initial determination of the adequacy of the defense provided for any accused in this area.

The Court of Military Appeals demands a high degree of professional competence from counsel even though they be non-lawyers,1 and the Court has demonstrated no hesitation in reversing convictions resulting from any serious departure

*Major McConnell received his LL.B. degree from the University of Indiana in 1954. He is admitted to practice before the Supreme Court of the State of Indiana, Federal District Courts for the Northern District of Indiana, the Supreme Court of the United States, the United States Court of Military Appeals, and the Court of Claims of the United States. For the past two years he has been serving as an Appellate Government Counsel in the Office of the Judge Advocate General of the Navy and prior to that was Chief, Trial Counsel Section, 3rd Marine Division Legal Office.

1. Annual report of the United States Court of Military Appeals, 1960.

from this standard.

A defense counsel must adequately represent his client, the accused, or that accused will not have been accorded due process. Inadequate representation during the findings stage of trial is unquestionably deprivation of due process. Where defects in the representation of an accused affect the sentence, a full scale retrial is not always required because reassessment or a rehearing on the sentence alone will oftentimes ⚫ (but not always) cure the deficiency. Errors which require that all or part of a court-martial be done over are an expensive luxury and should be avoided. This is certainly true as to the court-martial sentence. Whatever the requirement to purge error, justice requires certainty of individualized retribution. A major part of a defense counsel's function is to assure that the retribution demanded by justice is based upon a full understanding of the accused as an individual.

EVIDENCE IN MITIGATION AND EXTENUATION

It might be well to pause here to re-define the distinction between "mitigation" and "extenuation." As defined in the Manual for CourtsMartial, 1951,6 matter in extenuation serves to explain the circumstances surrounding the commission of the offense, including the reasons that actuated the accused, but not extending to legal justification (e.g., provocation, misfortune, poor judgment). Matter in mitigation, on the other hand, has for its purpose the lessening of the punishment to be assigned by the court or the furnishing of grounds for a recommendation for clemency (e.g., prior non-judicial punishment for the same offense, first offense with otherwise good record, restitution, or any other information which would support the conclusion that this accused has learned his lesson or is apt not to again offend).

A defense counsel is bound to present such evidence as is known and available to him which would manifestly and materially affect the outcome of the case. A rehearing on the sentence

2. United States v. Hunter, 2 USCMA 37, 6 CMR 37 (1952). 3. United States v. Best, 6 USCMA 39, 19 CMR 165 (1955). 4. United States v. Winchester, 12 USCMA 74, 30 CMR 74 (1961). 5. United States v. Huff, 11 USCMA 397, 29 CMR 213 (1960); United States v. Gewin, 14 USCMA 224, 34 CMR 4 (1963).

6. MCM, 1951, pars. 75c (3) and (4).

7. United States v. Rosenblatt, 13 USCMA 28, 32 CMR 28 (1962).

has been ordered where the defense counsel presented no matter in mitigation and extenuation but where it was developed on appeal that restitution had been made (and that the defense counsel was aware of this).8

Motives inducing a defense counsel not to present evidence in mitigation and extenuation will be scrutinized. For example, at the first trial of a case the accused pleaded guilty and was convicted. At the presentencing proceeding he gave testimony which impugned his plea. The plea was set aside and the trial proceeded on a not guilty plea but the accused was convicted. His counsel made a strong presentation in mitigation and evidence of restitution was presented. Nevertheless because of other error a rehearing was ordered when the case was reviewed. At the second trial the accused again pleaded guilty. This time the defense counsel maintained that he had nothing to offer in mitigation and extenuation. In his review the staff legal officer criticized this representation and opined that the defense counsel's refusal to present the evidence was based upon a determination to "avoid a repeat of the prior fiasco" by eliminating the possibility that the accused might again repudiate his plea. The conviction was approved none the less by the convening authority. When the case reached the Court of Military Appeals it was held that the accused had been inadequately represented.

In another example, an Army case,10 an accused was charged with assault with a dangerous weapon. He pleaded guilty to assault and battery and sought to contest only the issue of whether a dangerous weapon was used. The law officer questioned the providence of his plea because his testimony indicated a possible issue of self defense. The defense counsel attempted to clarify the accused's testimony by questioning him. A rehearing was required because the defense counsel addressed questions to the accused which effectively destroyed any advantage arising from the plea because the accused was, in effect, forced to retract his version of the incident.

The lesson taught is simple. Defense counsel should beware of an effort to keep a plea of guilty before the court if this activity affects adversely any benefit which an accused could expect. Here, too, is an example of a situation where inadequate sentence efforts cause reversal of the whole case including the finding of guilty even though the findings were based upon a plea of guilty.

8. United States v. Hamilton, 14 USCMA 117, 33 CMR 329 (1963). 9. United States v. Rose, 12 USCMA 400, 30 CMR 400 (1961). 10. CM 404568, Hayes, 30 CMR 470 (1960).

A defense counsel's duty to the accused does not end with announcement of the findings." He should appeal to the conscience of the court with respect to the assessment of the sentence. This is an opportunity with challenge.

PREPARATION

Other instances where inadequate representation has been found would indicate that defense counsel must consult with prosecution witnesses so that his questions to those witnesses in crossexamination will not embarrass the accused.12 This requirement is applicable to the defense preparation on the findings phase and the sentence phase of trial alike. Even though the cause of an accused may appear dark indeed the defense counsel should endeavor to present all facts and circumstances in a light most favorable to the accused.13 Any favorable entries in his record such as campaigns participated in, favorable evaluation reports, and absence of any record for disciplinary infractions must be brought to the attention of the court. It is suggested, too, that evidence which it may be expected will be used by the prosecution, be carefully inspected for flaws which would preclude admissibility, for example, whether documentary evidence meets the tests for admissibility under an exception to the hearsay rule; whether service record entries reflect the correct date of termination of an unauthorized absence, etc.

A defense counsel must be alert to inferences permitted the court and innuendos which come up at trial.1 A good example of this may be seen in a case where the defense counsel did not object or attempt to lessen the impact of material read to the court in the pre-sentence stage of trial. The personal data read from the charge sheet was such as to raise an inference that the accused because of previous convictions had suffered reduction in grade (even though no evidence of previous convictions was offered). In the same case counsel was criticized for showing that the accused had enhanced his economic condition by obtaining a job while an absentee and that his employer was holding the job pending discharge of the accused from service. The innuendo being that the accused would gain economically by a punitive discharge.

Defense counsel's pre-sentence activities were recently the subject of a very important case decided by the Court of Military Appeals.15 The

11. United States v. Allen, 8 USCMA 504, 25 CMR 8 (1957).
12. United States v. Parker, 6 USCMA 75, 19 CMR 201 (1955).

13. United States v. McMahan, 6 USCMA 709, 21 CMR 31 (1956). 14. United States v. Huff, supra note 5.

15. United States v. Broy, 14 USCMA 419, 34 CMR 199 (1964).

accused represented by a civilian lawyer protested that he had not been brought to trial with the necessary promptness required by the Sixth Amendment. At an out-of-court hearing evidence was presented by the defense claiming illtreatment while the accused was in the brig awaiting trial. The defense theory at the time was that the treatment in the brig was relevant to a showing of vexation and oppression suffered during the delay before trial. After an adverse ruling on the speedy trial issue the accused pleaded guilty. The same evidence was not presented to the court during the pre-sentence proceeding. The United States Court of Military Appeals reversed as to the sentence saying in effect that the accused had been inadequately represented because of the "fair possibility" that a showing of the rigors of pre-trial restraint would have resulted in a less severe sentence. The Broy case is an important one in that it shows the high standard of representation which the Court will require; because it again shows that the fair possibility of prejudice to an accused will induce a reversal; and most important it shows that no incident in the experience of an accused before trial can be overlooked as a factor in the presentation of the defense case on the sentence.

ARGUMENT ON THE SENTENCE

It has been conjectured that failure to present evidence in mitigation and extenuation or to argue on the sentence could cause a court to conclude that a pre-trial agreement had been made as to the sentence.16 Such conclusion might cause the court members to see no real purpose in devoting time and effort to a consideration of an appropriate punishment. Serious consideration should be given to the presentation of an argument on the sentence, for even if there is a pre-trial agreement, the accused could still receive a sentence from the court which would be less severe than the one contemplated by the pre-trial agreement.

In

While trial defense counsel should strongly consider making an argument on the sentence this is not always required if the record displays a reasonable effort to minimize punishment. one case," the accused pleaded guilty to the crime of robbery. Some time prior to trial, the defense counsel entered into a stipulation with the trial counsel. It was introduced in evidence and the facts agreed upon were read to the court members. The language was such that the part played by the accused in the robbery was mini

16. United States v. Welker, 8 USCMA 647, 25 CMR 151 (1958). 17. United States v. Williams, 8 USCMA 552, 25 CMR 56 (1957).

mized and he was portrayed as the moving party in making restitution for the funds stolen from the victim. Personal data concerning the accused, which was also introduced in evidence, informed the court that he had no previous military convictions. After findings of guilty were returned, the defense offered no evidence in extenuation or mitigation, and the defense counsel waived argument. Under the circumstances of this case, waiver of any argument on the sentence did not indicate the accused was denied effective representation of counsel, particularly in view of the fact that it appeared there was other unfavorable evidence available which could have been used in rebuttal if the defense had opened up the subject of extenuation and mitigation. In United States v. Sarlouis 18 it was held that the accused was not deprived of adequate representation at the trial because his counsel presented no argument on the sentence where there were stipulations of testimony admitted into evidence from which the surrounding circumstances appeared substantially less aggravating than the actual facts.

CONCLUSION

The efforts of defense counsel as respects the sentence have been given consideration in determining the overall effectiveness of the accused's representation by his counsel. For example, in one case 19 the defense counsel, as part of his effort to obtain a favorable pre-trial agreement, but treading rather close to the line dividing good and poor judgment, arranged a pretrial conference between the accused, police personnel and the trial counsel. At this conference the accused made a statement in which he detailed his connection with a number of offenses charged against him. At the same time he revealed information concerning an offense with which he was not then charged but with which he was subsequently charged. That the defense counsel permitted this revelation was later the basis for an appellate claim that the accused had been inadequately represented. In deciding otherwise, the Court of Military Appeals gave heavy consideration and compliments to the activities of defense counsel because that counsel's overall efforts on behalf of the accused resulted in dismissal of a number of the charges and the negotiation of a pre-trial agreement providing for a sentence even less severe than that the accused had previously indicated a willingness to accept.

The writer has found value in the use of a Data Sheet to obtain information concerning

18. 9 USCMA 148, 25 CMR 410 (1958).

19. United States v. Chadwell, 13 USCMA 361, 32 CMR 361 (1962).