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LT JOHN THOMAS MONTAG, USNR* ed as relse 'In all criminal prosecutions, the accused shall shal could exclude all persons other than those

enjoy the right to a speedy and public trial, by an required to be present, refused to permit the deimpartial jury of the State and district wherein the

fendants' counsel to be present at the proceedcrime shall have been committed, which district shall

ing. The defendants declined to be sworn and to have been previously ascertained by law, and to be in

testify without the immediate presence of their formed of the nature and cause of the accusation; to

counsel, who had accompanied them to the hearbe confronted with the witnesses against him; to have

ing. Their refusal was treated as a violation compulsory process for obtaining witnesses in his

of another provision of the Ohio Code which favor, and to have the Assistance of Counsel for his defence."

provided that no witness should refuse to be

sworn or should refuse to testify. Pursuant to one nones

NE OF THE rights guaranteed to an ac still another provision of the Ohio Code providhile e

cused in a criminal prosecution by this, ing that whoever did refuse to be sworn or to the Sixth Amendment to the Constitution of the testify could be summarily punished by the offiUnited States, is the right to have the assistance cer concerned by commitment to the county jail of counsel in his defense.

until such time as they should be willing to testiThis consitutional right to counsel has tradi fy, the Fire Marshal committed the defendants the tionally been interpreted by the courts as pro to the county jail. histu

viding only that an accused has the right to such The defendants applied for a writ of habeas ratis assistance of counsel at his actual criminal trial. corpus, which application was denied by the

Consequently, if the proceedings in question Ohio Court of Common Pleas. This denial was were not designed to adjudicate the accused's affirmed by the Ohio Supreme Court.

criminal responsibilities in any way, he had no The United States Supreme Court held that Endran

right to be heard through his counsel at such the defendants had no constitutional right to be proceedings. This point was made clear by the assisted by their counsel in giving testimony at Supreme Court of the United States in the case the investigatory proceeding conducted by the of In Re Groban. The question presented to

Fire Marshal. The Court reasoned that while pits the Court was whether the accused had a consti it is clear that a defendant in a state criminal e ftoi tutional right under the Due Process Clause of trial has the unqualified right, under the Due sueti the Fourteenth Amendment to the assistance of Process Clause, to be heard through his own ights their own counsel in giving testimony as wit counsel, the prosecution of an individual is

nesses in a proceeding conducted by the Ohio greatly different from an administrative invesState Fire Marshal to investigate the causes of a tigation of incidents damaging to the economy fire.

or dangerous to the public. The Court noted A fire had occurred on the premises of a cor that the proceeding before the Fire Marshal was poration owned and operated by the defendants.

not a criminal trial nor an administrative proThe Fire Marshal instituted an investigation to ceeding that would in any way adjudicate the inquire into the causes of the fire and the de appellants' responsibilities for the fire, but was fendants were subpoenaed to appear as wit

a proceeding solely to elicit facts relating to the nesses. The defendants had retained counsel,

causes and circumstances of the fire. but the Fire Marshal, relying on a provision of

Strangely enough, however, the Court further the Ohio Code which provided that the investi noted that the Fire Marshal's duty was to detergation could be private and that the Fire Mar mine whether the fire was the result of careless*Lieutenant John Thomas Montag, USNR, is presently assigned

ness or design and to arrest any person against to the Appellate Defense Division in the Office of the Judge

whom there was sufficient evidence on which to He holds the B.A. and LL.B. degrees from Duquesne University and is a member of the bar of the Supreme

base a charge of arson. Considering these facts Court of Pennsylvania. He is admitted to practice before the

in the light of the recent decision of the Supreme United States Court of Military Appeals and is a member of the Allegheny County and American Bar Associations.

Court in the Escobedo case,” to be discussed hereinafter, it is doubtful whether the present 2. Escobedo v. Illinois, 378 U.S. 478 (1964).

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Supreme Court's holding in a similar case would be the same.

Nonetheless, the Supreme Court held that the mere fact that the defendants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them did not mean that they possessed a constitutional right to the assistance of their counsel at the proceeding. If charges are ultimately made in a criminal proceeding against the defendants as a result of their testimony before the Fire Marshal, they may then demand the presence of their counsel for their defense, but until then, their protection must be found in the Fifth Amendment privilege against selfincrimination.

This, then, represents the traditional view taken by the courts concerning the Sixth Amendment right to counsel. In May and June of last year, however, the Supreme Court rendered two decisions which reflect a complete departure from this narrow, traditional view of the scope of the right to counsel provision.

The first of these decisions was handed down on 18 May 1964. The case was Massiah v. United States.

Massiah had been indicted for violating the federal narcotics laws. He retained a lawyer, pleaded not guilty and secured his release on bail. While he was free on bail a man named Colson, who had been indicted with Massiah for violation of the federal narcotics laws, decided to cooperate with the federal authorities and permitted the installation of a concealed radio unit in his car. While seated in Colson's car, Massiah made certain admissions which were overheard by the police over this concealed radio set. These admissions were introduced into evidence against Massiah at his trial. Massiah contended that this procedure violated his right against unreasonable search and seizure and that the admission of these incriminating statements which had been made in the absence of his retained counsel violated his rights under the Fifth and Sixth Amendments. Massiah was convicted and his conviction was affirmed by the Court of Appeals. The Supreme Court granted certiorari to consider whether the prosecution's use at the trial of evidence of the petitioner's own incriminating statements deprived him of any right secured to him under the Federal Constitution.

The Supreme Court held that these incriminating statements had been improperly admitted into evidence, basing its decision on the right to

counsel argument, thus finding it unnecessary to decide the search and seizure question. The nga Court relied on the concurring opinion of four Justices in the case of Spano V. New York, wherein the Court had reversed a state criminal conviction because a confession had been

1 wrongly admitted into evidence against the defendant at his trial.


, I The Court noted that in the Spano case four concurring Justices had indicated that the Constitution required that the conviction be reversed upon the sole and specific ground that the police had deliberately elicited the confession from the defendant after he had been indicted, a time when he was clearly entitled to a lawyer's aid. The Justices had pointed out that worse inasmuch as due process of law under our sys- maand tem of justice contemplates that an indictment tunit be followed by a fair and orderly trial,

... a Constitution which guarantees a defendant the Me aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant "effective representation by counsel at the only stage when legal aid and advice would help him."

The Court held that Massiah was denied the basic protections of the constitutional guarantee when there was used against him at his trial de evidence of his own incriminating statements, Com which had been deliberately elicited from him by federal agents in the absence of his counsel after he had been indicted.

The decision in the Massiah case was followed, on 22 June 1964, by the case of Escobedo v. Illinois. Any doubt as to the meaning and extent of the Court's pronouncement concerning the right to counsel as laid down in the Massiah case, was put to rest by its decision in the Escobedo case,

Escobedo had been convicted of the murder of his brother-in-law. The question presented to the Supreme Court was whether the refusal by the police to honor the petitioner's request to consult with his lawyer during the course of an interrogation constituted a denial of the assistance of counsel in violation of the Sixth Amendment and thus rendered any statement elicited by the police during the interrogation inadmissible in a state criminal trial.

On the night of the fatal shooting the petitioner had been arrested without a warrant and

4. 360 U.S. 315 (1959). 5. Massiah v. United States, supra note 3, at 204. 6. Supra note 2.

3. 377 U.S. 201 (1964).

9. Escobedo v. Nilinois, supra note 2, at 487.

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his tri unsolved crime. he pe ination.' In re Groban, 352 U.S. 330, 344

interrogated by the police. Petitioner made no

statement and was released the next afternoon of fa

pursuant to a state writ of habeas corpus ob

tained by a lawyer whom the accused had recrimi

tained. Ten days later the petitioner was again d he

taken into custody, although he was not formally inst

charged, upon the basis of statements made by

a co-accused claiming that the petitioner had se fa

fired the fatal shots. the la

Escobedo was subjected to extensive interro. be :

gation, during the course of which he repeatedly und tu asked to speak to his lawyer. Moreover, petie confé tioner's counsel had proceeded to the police stabeen: tion and had asked to see his client. Notwithtled # standing the repeated requests by each, during out to the course of the entire investigation the peti

tioner and his retained lawyer were afforded no dictme opportunity to consult.

The Supreme Court, reciting its observation in the Massiah case that an indicted defendant under interrogation by the police is entitled to

the aid of counsel, noted that although the interpoveis rogation of Escobedo was conducted before he

had been formally indicted, that fact made no only difference in the determination of the case. The

important factor was not whether the defendant had been indicted, but whether the investigation had ceased to be a general investigation of an

The Court observed that the petitioner needed rom bs the advice of counsel in the delicate situation in COLD which he had been placed. The petitioner was

then at the stage where legal aid and advice Follows were most critical, since what happened at this Pov. I interrogation could affect the entire trial. The dere Court held that "it would exalt form over subning " stance to make the right to counsel, under these jah cas circumstances, depend on whether at the time of

the interrogation, the authorities had secured a formal indictment." ?

The Court then noted its decision in Gideon v. Wainwright, wherein it held that every person accused of a crime, whether state or federal, is

entitled to a lawyer at trial. The court observed se of that “the rule sought by the State here, however,

would make the trial no more than an appeal Amar from the interrogation; and the ‘right to use elic counsel at the formal trial (would be] a very

hollow thing [if], for all practical purposes, the conviction is already assured by pretrial exam

enied t uarant

The Court next disposed of the State's contention that if the right to counsel be afforded a defendant prior to indictment, the number of confessions obtained by the police would diminish significantly because most confessions are obtained during the period from arrest to indictment and a lawyer would tell the suspect to make no statement to the police under any circumstances, by observing:

No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise these rights. I the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.20 The Court then concluded:

We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as “made obligatory upon the States by the Fourteenth Amendment,” Gideon v. Wainright, 372 U.S., at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."

Thus, when a police interrogation has ceased to be a general inquiry into an unsolved crime but has focused on the accused with a view toward obtaining a confession, the accused must be allowed to consult with his lawyer if he so requests.

The decision of the Supreme Court in Escobedo calls to mind the dissenting opinion of Mr. Justice Black in In re Groban, a portion of which was quoted by the Court in Escobedo. In his dissent in the Groban case, Justice Black stated :

I believe that it violates the protections guaranteed every person by the Due Process Clause of the Fourteenth Amendment for a state to compel a person to appear alone before any law-enforcement officer and give testimony in secret against his will. Under the reasoning of the majority every state and federal lawenforcement officer in this country could constitutionally be given power to conduct such secret compulsory examinations. This would be a complete departure



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ante (Black, J., dissenting).

7. Id. at 486, 8. 392 V.S. 335 (1963).

10. Id. at 490. 11. Id. at 490.

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from our traditional methods of law enforcement and would go a long way toward placing “the liberty of every man in the hands of every petty officer.” By sanctioning the Ohio statutes involved here the majority disregards “this nation's historic distrust of secret proceedings” and decides contrary to the general principle laid down by this Court in one of its landmark decisions that an accused "... requires the guiding hand of counsel at every step in the proceedings against him. ..

It may be that the type of interrogation which the Fire Marshal and his deputies are authorized to conduct would not technically fit into the traditional category of formal criminal proceedings, but the substantive effect of such interrogation on an eventual criminal prosecution of the person questioned can be so great that he should not be compelled to give testimony when he is deprived of the advice of his counsel. It is quite possible that the conviction of a person charged with arson or a similar crime may be attributable largely to his interrogation by the Fire Marshal. The right to use counsel at the formal trial is a very hollow thing when, for all practical purposes, the conviction is already assured by pretrial examination.

Finally, it is argued that the Fire Marshal and his deputies should have the right to exclude counsel and such other persons as they choose so that their "investigatory proceedings" will not be "unduly encumbered.” From all that appears the primary manner in which the presence of counsel would "encumber" the interrogation would be by protecting the legitimate rights of the witness. It is undeniable that law-enforcement officers could rack up more convictions if they were not “hampered” by the defendant's counsel or the presence of others who might report to the public the manner in which people were being convicted. But the procedural safe-guards deemed essential for due process have been imposed deliberately with full knowledge that they will occasionally impede the conviction of persons suspected of crime.12

It is basically Justice Black's position in the Groban case which the Supreme Court has reflected in its decision in the case of Escobedo. Thus, the pendulum has reached a new position.

Turning now to the corresponding area of military jurisprudence, it should be noted that as long ago as 1957, the United States Court of Military Appeals recognized the position which the Supreme Court has now assumed in this constitutional area of right to counsel. In the case of United States v. Gunnels,13 the accused had been informed of charges which were pending against him and had been advised of his rights under Article 31, Uniform Code of Military Justice, 10 USC $ 831. At that point the accused told the investigating agent that he desired to make no statement until he had an op


Under the United States Constitution, in “all crim pampe inal prosecutions” the accused is entitled “to have the Assistance of Counsel for his defense." United States Constitution, Amendment VI. The right is not limited to the trial itself, but includes the pretrial proceedings during which counsel investigates the facts and prepares the defense.14

The Court then noted that while an accused in the military is entitled to have counsel assigned to him only in an actual criminal proceeding and

on the not in an investigation, this does not mean that he is precluded from obtaining necessary legal advice in those situations wherein he is not entitled to assigned counsel. Accordingly, the Court held:

We, therefore, strongly condemn the practice, which appears to be common in the military, of telling a suspect that he cannot consult with counsel in con

Soft nection with interrogation by enforcement agents.

It seems to us to be a relatively simple matter to advise an uninformed and unknowing accused that, while he has no right to appointed military counsel, he does have a right to obtain legal advice and a right to have his counsel present with him during an interrogation by a law enforcement agent.

Turning to the effect of the errors, we hold that they constitute a denial of the accused's right to counsel. Of course, the Staff Judge Advocate was not bound to assign military counsel to the accused. However, he was obligated to give him correct advice. Had he given the accused such advice the accused would have known that he had a right to have his counsel present during his interrogation.95

This principle was again recognized by the Court of Military Appeals in the recent case of United States v. Brown.16 In this case the accused requested legal advice during an interrogation. He was referred to a non-lawyer officer who had been detailed as Battalion Legal Officer. While the accused was not affirmatively misadvised of his right to consult an attorney, he was misled into thinking that he was in fact consulting with a lawyer. The advice which he received from this officer allegedly in

(Continued on page 82)

12. In re Groban, supra note 1, at 337. 13. 8 USCMA 130, 23 CMR 354 (1957).

14. Id. at 133, 23 CMR at 357. 15. Id. at 134, 135, 23 CMR at 358, 359. 16. 13 USCMA 14, 32 CMR 14 (1962).

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view—a statutory requirement." XPERIENCE AS THE sole legal officer at

The convening authority's review, judicial in a shore command has prompted this article.

nature, should be comprehensive and impartial.? Its purpose is to suggest how the only legal ofo have ficer, lawyer or non-lawyer, aboard ships and The legal officer's review, therefore, if it is to

the relatively small shore stations may best be be of value to the convening authority, should

utilized in relation to certain problem areas. meet the same standards. It follows, then, the trial :

Initially, it is recognized and should be, that legal officer, like the convening authority, should the first

the utilization of a legal officer is a prerogative not participate in the same case in any manner

of the commanding officer. This discussion is which would render him unable to accomplish "cused: no attempt to alter that fact; it is to offer sugges such review.3 2881gb tions which may be of some assistance in exer Nonetheless, it seems to be the practice in linge cising that authority.

many small commands for the legal officer to beNormally, the legal officer is a special assist come involved in cases to an extent inconsistent ry legs ant to the commanding officer. (In the small with a position in which he would be able to

command, there is usually no legal department.) give a proper review. In some commands, for
The legal officer's primary duty is, in part, to example, the legal officer may be called upon to
advise the commanding officer on matters within conduct a preliminary inquiry into a suspected
the legal officer's expertise, consistent, of course, offense, or he may draft charges and specifica-
with whatever applicable standards limit the tions preparatory to Captain's Mast or a possi-
scope of his participation in any given situation. ble court-martial.
It is in this general context the legal officer's ac And it is not illogical for the legal officer to
tivities will be discussed.

perform such duties. The legal officer, even if The approach of this article is to analyze two not a lawyer, is usually a graduate of Naval specific problem areas involving the legal officer Justice School or has other training which suits and to suggest appropriate solutions to each. him for dealing with all matters concerning the The specific areas are Courts-Martial Review Uniform Code of Military Justice, such as inand Personnel Legal Problems.

vestigating offenses and preparing charges and


But such duties are inconsistent with the imThe problem in this area may be raised by

partiality necessary for an objective, compreposing the question: to what extent may the

hensive review of a court-martial arising out of

the same incident. (It must be noted that if no legal officer participate in a case involving an offense under the Uniform Code of Military Jus

court-martial resulted, performance of such

duties by the legal officer would not be incontice without being precluded from reviewing a

sistent; but as explained below, at the time an resulting summary or special court-martial?

offense is suspected there is no way of foreseeThe question assumes, of course, the legal officer

ing the outcome.) The person conducting a will perform some sort of reviewing function. preliminary inquiry into a suspected offense has

And as advisor to the commanding officer, the the responsibility of determining whether or not Ć

legal officer is usually charged with the responsi an offense has probably been committed, ascer2 bility of reviewing summary and special courts

1. UCMJ art. 60, 10 U.S.C. 860, martial and aiding the commanding officer

2. See MCM 1951, Chapter XVII, particularly par. 865(1).

3. This conclusion also applies to review of certain claims against convening authority in accomplishing his re the U.S. Government, as for example, Personnel Claims which

may be reviewed by the commanding officer or the legal officer, *Lieutenant Swoboda is currently assigned to the Appellate De

JAG Manual, sec. 2123a. And, to some extent, although the fense Division, Office of the Judge Advocate General. A graduate

standards of impartiality are perhaps less formal, the conclusion of Harvard University, A.B. 1957, LL.B. 1960, he is member of also applies to review of administrative investigations, particthe Massachusetts Bar. He was commissioned a line officer,

ularly those conducted in accordance with the JAG Manual. (See later became a law specialist, and has had prior duty as legal especially “line of duty-misconduct" determinations, JAG Manofficer at U.S. Naval Station, Annapolis, and U.S. Naval Air ual Chapter VIII, which may on certain occasions result in disFacility, Sigonella, Sicily.

ciplinary action or court-martial.)


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