Application of Stapley

• Decision Date: 01 October 1965
• Docket Number: No. C 188-65.,C 188-65.
• Parties: Application of James E. STAPLEY, P.F.C., United States Army, for a Writ of Habeas Corpus.
• Court: U.S. District Court — District of Utah

246 F. Supp. 316

Application of James E. STAPLEY, P.F.C., United States Army, for a Writ of Habeas Corpus.

No. C 188-65.

United States District Court D. Utah, Central Division.

October 1, 1965.

COPYRIGHT MATERIAL OMITTED

James P. Cowley, Salt Lake City, Utah, for petitioner.

Ralph Klemm, Asst. U. S. Atty., for respondent.

CHRISTENSEN, District Judge.

This case involves the question of whether the Sixth Amendment to the Constitution of the United States requires the appointment of counsel to represent military personnel on serious charges before special as well as general courts-martial and, if so, whether minimal constitutional requirements were met in this case with respect to the qualification and representation of appointed counsel.

The case for good cause came on for expedited hearing before this court pursuant to rule on the 17th day of September, 1965. The petitioner James E. Stapley was present in person and was represented by his counsel, James P. Cowley, Esquire. The respondent was represented by Ralph Klemm, Esquire, Assistant United States Attorney for the District of Utah and by a representative of the command under which the petitioner served. Evidence, both oral and documentary, was received, and arguments were heard. Whereupon the court, being fully advised in the premises, announced its decision, and now in accordance with such oral decision, makes and enters the following written

FINDINGS OF FACT

1. James E. Stapley, Private First Class, United States Army, assigned to the U.S. Army Garrison (6001-00) Ft. Douglas, Utah, on July 29, 1965, was arraigned and tried before a special courtmartial for violation of the Uniform Code of Military Justice, Articles 86, 90, 117, 123 and 134. While a general court-martial was not involved, these charges were substantial and serious, involving not only breaches of military orders and discipline, but also repeated acts of claimed fraud in the issuance of checks some of which, if established, could have constituted felonies in a civil court and all of which imputed moral turpitude. Such charges involved problems of substantive law as well as practice, reasonably necessitating knowledgeable legal counsel, advice, and assistance.

2. The petitioner Stapley at the time he faced these charges was of the age of nineteen years, apparently immature even for this age, suffering from emotional difficulties, and of limited experience notwithstanding his prior exemplary service as a trainee and in Korea. There had been no previous experience on his part with disciplinary problems or with proceedings under the Code of Military Justice as far as the record discloses.

3. When the charges were first served upon petitioner by trial counsel he requested the appointment of a lawyer as defense counsel but this request was not granted. There were appointed as his defense counsel and assistant defense counsel, respectively, a captain and a second lieutenant from the command under which petitioner served. The captain had been in service about two years. He was a veterinarian without training or experience in, or acquaintanceship with, legal proceedings of any kind. He was naive and unknowledgeable with regard to legal matters, devoid of experience with them, possessed no aptitude with respect to such matters, and was uncertain of his functions or duties. He estimated that his total training as an officer in military law had been accomplished in two days. The second lieutenant was at the time twenty-two years of age, had been in the service about one year, and, while he had had academic background in history and political science and had studied the Code of Military Justice in an R.O.T.C. program, he had no special knowledge or ability in these fields and no practical experience whatsoever in legal matters or procedures. Moreover, it appears that he deferred largely to the senior officer. Neither defense counsel had any experience before or with any court-martial or in advising persons charged with offenses. Their advice to the accused on various legal matters was based upon consultation with the officer who had drawn up the charges, and probably was garbled in its being so relayed, as was illustrated by the captain's concept that intoxication could be no defense for a "specific intent" crime. And counsel advised the accused to plead guilty to all charges, including one thereafter ordered dismissed by the convening authority for legal insufficiency to state an offense.

4. The defendant upon a preliminary consultation with his assigned counsel requested that he be permitted to have qualified attorneys to represent him, but was told that there was none available to him from the military service and that if he wished a civilian attorney he would have to pay approximately $150.00 for his services, which the accused was financially unable to do. The accused was further advised not to raise any question with regard to his legal representation with the convening authority or before the court-martial; that he should not request any non-commissioned officer upon the court because it would go harder with him if he did, that he should enter into a "deal" with the commanding officer to return pleas of guilty to all charges in return for an agreement that if he were sentenced to more than two months confinement, his sentence would be commuted to that sentence.

5. The accused, petitioner herein, entered into such an agreement and pursuant to the suggestion of his attorneys made no statements other than "Yes sir" or "No sir" before the court-martial but entered pleas of guilty to all charges, except for one which had been dismissed pursuant to the order of the commanding officer because patently insufficient on its face. Before the court-martial when the accused was asked whether he had any objection to defense counsel, defense counsel himself answered "no", although the accused probably would have given the same answer in view of the prior conversation with defense counsel concerning his request for other counsel and the belief that defense counsel's views in this and other matters should be accepted. Defense counsel was assigned approximately one week before the trial and spent several days studying the Code of Military Justice and the Manual for Courts-Martial and otherwise attempting to properly advise or represent the accused and there is no doubt that both he and the assistant defense counsel were in good faith in attempting to properly handle the case. Trial counsel representing the prosecution were not certified counsel, nor were they lawyers, and the evidence does not otherwise indicate their qualifications or competency.

6. The consultations with his assigned "counsel" did not involve counseling or legal advice in any proper sense. The services of "defense counsel" did not constitute the assistance of counsel, in any proper sense. Notwithstanding the conscientious attitude of his assigned counsel they were wholly unqualified to act and failed to act as "counsel" with respect to military law, procedure, trial or defense practicality, or at all.

7. The trial before the court-martial notwithstanding that all participants acted in good faith, constituted no more than an idle ceremony or form in accordance with a script arranged beforehand, and limited and determined by defense counsel in their instructions for the accused not to raise any problems or to make any statement except "Yes sir" or "No sir" to questions asked, the pre-trial agreement with the commanding officer and the pleas of guilty agreed upon pursuant thereto. By reason of the circumstances above mentioned, the representation of the accused by defense counsel was in the nature of a mere mockery or sham and did not in fact or law constitute representation by "counsel" either civil or military.

8. Upon the petitioner's pleas of guilty he was adjudged and found guilty by the special court-martial of all charges and specifications then pending and was sentenced to be confined at hard labor for three months and to forfeit $55.00 per month of his pay for six months and to be demoted. No appeal or proceeding for review were advised by counsel or taken by the accused, although the accused was advised of his rights to review in accordance with the provisions of paragraph 48j(3), MCM 1951. Pursuant to the pre-trial agreement the convening authority, petitioner's commanding officer, declined to approve the sentence imposed by the court-martial in excess of confinement at hard labor for two months...