Curry v. Secretary of Army

• Decision Date: 19 April 1979
• Docket Number: No. 78-1031,78-1031
• Parties: Robert E. CURRY, Appellant, v. SECRETARY OF the ARMY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 873

595 F.2d 873

194 U.S.App.D.C. 66

Robert E. CURRY, Appellant, v. SECRETARY OF the ARMY et al.

No. 78-1031.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 1, 1978.

Decided March 14, 1979.

Rehearing Denied April 19, 1979.

J. Francis Pohlhaus, Washington, D. C., for appellant.

Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and William H. Briggs, Jr., Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before TAMM and MacKINNON, Circuit Judges, and JOHN H. PRATT, ^* United States District Judge for the District of Columbia.

Opinion for the court filed by TAMM, Circuit Judge.

TAMM, Circuit Judge:

We review in this appeal a due process attack on provisions of the Uniform Code of Military Justice (UCMJ) which assign multiple roles to the convening authority ¹ in court-martial proceedings. The district court (Gesell, J.) upheld the constitutionality of these provisions, and we affirm.

I

The facts of this case are not in dispute. Curry was an enlisted man, stationed in Germany, in the United States Army. On March 8, 1975, he was convicted of two homicides ² by a general court-martial. The sentence imposed by the court-martial included hard labor for twelve years, reduction to the lowest enlisted grade, and dishonorable discharge. The convening authority approved Curry's conviction and sentence. ³ The Army Court of Military Review affirmed his conviction, but reduced his sentence to eight years. ⁴ The United States Court of Military Appeals declined review. ⁵ Curry later requested relief from the Board for Correction of Military Records, ⁶ which was denied.

Curry then brought suit in the United States District Court for the District of Columbia against appellees, the Secretary of the Army, Et al. (Army), ⁷ seeking injunctive and monetary relief. Curry collaterally attacked the validity of his conviction ⁸ on the ground that provisions of the UCMJ assigning multiple roles to the convening authority in the initiation, prosecution, and review of courts-martial deprive military defendants of a fair and impartial trial in violation of the due process clause of the fifth amendment. Both parties filed motions for summary judgment. Judge Gerhard Gesell heard arguments on the cross-motions and, in a memorandum opinion and order, granted the Army's motion. See Curry v. Secretary of Army, 439 F.Supp. 261, 262 (D.D.C.1977). This appeal ensued.

II

General courts-martial are judicial tribunals ⁹ that try members of the Armed Forces who are charged with violations of the UCMJ. ¹⁰ They can consist of either a military judge and not less than five members who are military personnel, or, at the request of the accused, a military judge alone. ¹¹ The members of a court-martial decide whether the accused is guilty and, if so, what sentence should be imposed. The military judge rules on questions of law and instructs the members on what they must find to convict the accused. If the court-martial is composed only of a military judge, the judge rules on all matters. ¹²

The convening authority, who is generally the commanding officer, See note 1 Supra, participates in various levels of the court-martial process. He determines whether charges should be referred to the court-martial, ¹³ selects the members of the court-martial, ¹⁴ details the military judge, ¹⁵ and details the prosecuting and defense counsel. ¹⁶ The convening authority also reviews the court-martial record. ¹⁷ He can approve the findings and sentence, ¹⁸ return for reconsideration and appropriate action specifications dismissed without a finding of not guilty, ¹⁹ or disapprove findings of guilty and the sentence imposed. ²⁰

Curry maintains this system places the convening authority in the position of grand jury, selector of the trial judge, jury, and counsel, and appellate court. Brief for the Appellant at 8-9. He submits that the convening authority, having initiated the prosecution, has an interest in the result of the case and is therefore constitutionally incapable of insuring that the accused receives a fair and impartial trial. See generally In re Murchinson, 349 U.S. 133, 136-37, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Curry suggests that the convening authority, because of his prior interest, is likely to appoint individuals to serve as counsel and court members who generally are more inclined to find an accused guilty than would a random sampling of military personnel. The accused could thus be denied vigorous representation as well as the wide spectrum of attitudes basic to the American idea of trial by jury.

Moreover, Curry asserts that the possibility for unfairness persists, even if the individuals selected by the convening authority are not predisposed toward conviction. The court members and the counsel, usually under the command of the appointing officer, may be particularly susceptible to his influence. They are dependent upon him for their promotions, their efficiency ratings, their assignments of duty, and their furloughs. Curry argues that because the court members and counsel know they are subject to the convening authority, who has ample opportunity to manifest his displeasure with the manner in which those under his command have handled a case, the likelihood is increased that the court-martial will return a guilty verdict.

Curry alleges, and it is undisputed, that the convening authority referred the charges against him to the court-martial for trial. The convening authority detailed the military judge who presided at the court-martial, and he selected the members of the court and the counsel. The convening authority reviewed the record on both the facts and the law. Curry therefore claims his conviction is invalid.

Although Curry can demonstrate no specific prejudice, See Curry v. Secretary of Army, 439 F.Supp. at 262, a showing of actual prejudice is not a prerequisite to finding a conviction constitutionally invalid on due process grounds. If a procedure "involve(s) such a probability that prejudice (may) result," it will be struck down and the conviction reversed. Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965); See, e. g., Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); McGill v. United States, 121 U.S.App.D.C. 179, 181, 348 F.2d 791, 793 (1965). Curry urges that the prior interest of the convening authority in the outcome of the case, coupled with the specter of his influence over those in his command, irreparably taint the system and preclude the possibility of a fair and impartial trial. These allegations, although not new, raise important questions of constitutional law that merit careful evaluation.

III

A person convicted by a court-martial is entitled to due process of law under the fifth amendment. What process is due, however, depends upon "an analysis of the interest of the individual and those of the regime to which he is subject." Middendorf v. Henry, 425 U.S. 25, 43, 96 S.Ct. 1281, 1291, 47 L.Ed.2d 556 (1976); See Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1943) ("(T)he rights of men in the Armed Forces must perforce be conditioned to meet certain overriding demands of discipline and duty."). At the outset, we note the difficult burden a litigant shoulders when he challenges congressional decisions governing military practices. Article I, section 8 of the Constitution empowers Congress to "make Rules for the Government and Regulation of the land and naval Forces." The importance of maintaining an effective military to insure national security renders this power especially broad. Consequently, a court reviewing legislatively approved military procedure "must give particular deference to the determination(s) of Congress." Middendorf v. Henry, 425 U.S. at 43, 96 S.Ct. at 1291; See Schlesinger v. Councilman,420 U.S. 738, 757-58, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975).

Curry premises his challenge on two points. First, he contends that the present structure of the court-martial system is fundamentally incompatible with the fifth amendment guarantee of due process and clearly would be prohibited in a civilian context. Next, he argues that the military has failed to produce Any justification for the system. Absent compelling military exigencies, Curry submits, departure from the traditional structure of the civilian system of criminal justice is unwarranted. Brief for Appellant at 6, 15, 34. We agree that the system established in the UCMJ would be inconsistent with due process if instituted in the context of a civilian criminal trial. ²¹ We do not agree, however, with Curry's second contention.

We begin with the unassailable principle that the fundamental function of the armed forces is "to fight or be ready to fight wars." Toth v. Quarles,350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955). Obedience, discipline, and centralized leadership and control, including the ability to mobilize forces rapidly, are all essential if the military is to perform effectively. The system of military justice must respond to these needs for all branches of the service, at home and abroad, in time of peace, and in time of war. ²² It must be practical, efficient, and flexible.

The Supreme Court has recognized that the military is "a specialized society separate from civilian society," and its unique circumstances and needs justify a departure from civilian legal standards. See Parker v. Levy, 417 U.S. 733, 743-44, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974) ("fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it"); See also Middendorf v. Henry, 425 U.S. at 38-39, 96 S.Ct. 1281; Schlesinger v. Councilman, 420 U.S. at 757, 95 S.Ct. 1300; Burns v. Wilson, 346 U.S. at 140, 73 S.Ct. 1045....