Daigle v. Warner

• Decision Date: 29 January 1974
• Docket Number: No. 72-2801.,72-2801.
• Parties: Robert M. DAIGLE, and Terry Lee Crosby, Individually and on behalf of all persons similarly situated, Petitioners-Appellees, and Jack Nazimek et al., Petitioners, Intervenors-Appellees, v. Honorable John E. WARNER, Individually and in his capacity as Secretary of the Navy, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

490 F.2d 358 (1974)

Robert M. DAIGLE, and Terry Lee Crosby, Individually and on behalf of all persons similarly situated, Petitioners-Appellees, and Jack Nazimek et al., Petitioners, Intervenors-Appellees, v. Honorable John E. WARNER, Individually and in his capacity as Secretary of the Navy, et al., Respondents-Appellants.

No. 72-2801.

United States Court of Appeals, Ninth Circuit.

October 24, 1973.

As Amended on Denial of Rehearing January 29, 1974.

Lt. E. Alan Hechtkopf, Staff Atty., Judge Advocate General's Office, Washington, D. C. (argued), Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, James L. Browning, Jr., U. S. Atty., Chester G. Moore, III, Asst. U. S. Atty., San Francisco, Cal., William J. Eggers, III, Asst. U. S. Atty., Honolulu, Hawaii, for respondents-appellants.

Stanley E. Levin, Waianae, Hawaii (argued), Paul Alston, Legal Aid Society, Waianae, Hawaii, John S. Edmunds, Mattoch, Edmunds, Kemper & Brown, Honolulu, Hawaii, David F. Addlestone, Lawyers Military Defense Committee, Washington, D. C., for petitioners-appellees.

Before KOELSCH, WRIGHT and TRASK, Circuit Judges.

OPINION

EUGENE A. WRIGHT, Circuit Judge:

In this habeas corpus proceeding, petitioners attack their convictions at summary courts-martial on the basis that they were not afforded representation by counsel. We must decide whether the Sixth Amendment's guarantee of counsel in criminal prosecutions, as interpreted and applied in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972),¹ is applicable to trials before summary courts-martial. We hold that it is not. We must also decide whether the Fifth Amendment's guarantee of due process of law requires the military to appoint counsel in every case in which the defendant is sentenced to confinement. We hold that it does not. We therefore reverse the judgment of the district court, 348 F.Supp. 1074 (D.Haw.1972), granting petitioners writs of habeas corpus.^1a

I. The Facts

There were six petitioners before the district court, including the four intervenors. Each was an enlisted member of the Marine Corps stationed in Hawaii.

In June, 1972, Petitioner Daigle was informed that he would be tried by a summary court-martial on charges of disobeying an order and possession of two identification cards with intent to deceive. He requested information concerning the assistance of counsel and was advised that he could consult with a legal officer prior to the court-martial but did not have the right to the assistance of military counsel during the proceedings.

Daigle consulted with a member of the Judge Advocate General's Corps prior to his trial, and was advised of his options with respect thereto. He asked the Judge Advocate officer to assist him at trial but was told that under the Uniform Code of Military Justice hereinafter UCMJ and the Manual for Courts-Martial hereinafter MCM he was not entitled to have military counsel represent him at trial, although he could have retained civilian counsel.

Daigle appeared at the court-martial, pleaded guilty and was sentenced, inter alia, to confinement at hard labor for twenty days.

Also in June, Petitioner Crosby was informed that he would be tried on three charges by a summary court-martial on July 6, 1972. He, too, was told that he might first consult a legal officer and did so. No lawyer was provided for him at trial. He pleaded guilty to the first charge (disobeying an order) and not guilty to the other two charges. On these latter two he was acquitted after a trial and was sentenced, inter alia, to confinement at hard labor for thirty days.

Petitioner Chadwick's situation generally resembled that of Daigle and Crosby, except that when he went to the Naval Law Center to seek advice he was told by a non-lawyer that he should plead guilty because he would probably receive only a light sentence. He, too, was sentenced to confinement at hard labor for thirty days.

Petitioner Robinson was convicted after a plea of not guilty to a charge of sleeping on guard duty. He did not have assistance of counsel at his trial nor does the record indicate that he ever consulted with an attorney before trial. He was sentenced to multiple punishments, including confinement at hard labor for thirty days. He has always maintained his innocence of the charges against him.

Petitioner Nazimek was convicted of unauthorized absence. He had consulted with a Judge Advocate officer prior to trial and pleaded guilty at the trial. He was sentenced to confinement for fifteen days.

Petitioner Johnson was also convicted of a variety of specifications upon his plea of guilty and sentenced to 29 days confinement.

The proceedings in the district court are described in some detail in that court's opinion filed on August 31, 1972. Daigle v. Warner, D.C., 348 F.Supp. 1074. There is no need to repeat that description here. The court held that Argersinger does apply to the military and further:

"Whether considered in terms of due process or the Sixth Amendment right to counsel, this court holds that the type and quality of representation which must be provided under Argersinger to summary courts-martial perforce may vary with the context of each particular case." 348 F.Supp. at 1080.

The court concluded that, in light of the number of available military lawyers in Hawaii, counsel should have been provided to each accused and granted the writ of habeas corpus as to Petitioners Robinson and Crosby, the only petitioners who had not completed their sentences when the court ruled. As to the other petitioners, the court ordered the records of their convictions expunged.

II. The Summary Court-Martial System

The UCMJ provides for three types of courts-martial: general, special and summary.² A general court martial has jurisdiction, subject to constitutional limitations,³ over all persons subject to the UCMJ for any offense thereunder.⁴

The special court-martial has jurisdiction concurrent with the general court-martial as to all non-capital offenses.⁵ However, the special court does not have power to sentence the accused to dismissal from the service, to a dishonorable discharge, or to confinement for more than six months.⁶

The jurisdiction of summary courts-martial is set out in Article 20 of the UCMJ, 10 U.S.C. § 820, as follows:

Subject to section 817 of this title (article 17) summary courts-martial have jurisdiction to try persons subject to this chapter, except officers, cadets, aviation cadets, and midshipmen, for any noncapital offense made punishable by this chapter. No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate. Summary courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, hard labor without confinement for more than 45 days, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month\'s pay.

The function of a summary court-martial is to dispense justice and administer discipline promptly for relatively minor offenses under simplified procedures. MCM, Para. 79a (1969).

The accused before a special or general court-martial is ordinarily entitled to full assistance of counsel.⁷ A summary court-martial, however, has no adversary counsel on either side. The court consists of one commissioned officer (generally a non-lawyer) who acts as judge, fact finder, prosecutor and defense counsel.⁸

The record of trial of every summary court-martial is first reviewed by the officer who convened the court.⁹ Thereafter, it must be reviewed by a judge advocate, an officer generally on the staff of the supervisory authority.¹⁰ An additional appeal may then be made to the Judge Advocate General of the appropriate service.¹¹

III. The Applicability of the Sixth Amendment Right to Counsel to Trials by Courts-Martial

Some courts and scholars, notably the United States Court of Military Appeals and its Chief Judge, Robert E. Quinn, have taken a broad view of the applicability of the provisions of the Bill of Rights to members of the military service. See United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967); United States v. Jacoby, 11 USCMA 428, 29 CMR 244 (1960) ("The protections of the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces."); Quinn, The United States Court of Military Appeals and Military Due Process, 35 St. John's L.Rev. 225 (1961); Quinn, United States Court of Military Appeals and Individual Rights in the Military Service, 35 Minn.L.Rev. 49 (1960). In United States v. Culp, 14 USCMA 199, 33 CMR 411 (1963) two judges of the three-judge COMA held that the Sixth Amendment right to counsel applies to special courts-martial, but that the right was not abridged in that case.¹² There is little textual or historical support, however, for the conclusion that the framers of the Bill of Rights intended the Sixth Amendment right to counsel to apply to trials before courts-martial.

The Sixth Amendment was not intended to revolutionize criminal procedure. All rights secured by it were available to the accused at common law or under modifications to the common law adopted in the American colonies.¹³ The Sixth Amendment's impact was as a "full and distinct recognition" of the rights secured to an accused at common law. Callan v. Wilson, 127 U.S. 540, 549, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). Thus, the Amendment secures to the accused the right to jury trial for all "serious offenses"¹⁴ because that was the extent of the colonial right to jury trial. District of Columbia v. Clawans, 300 U.S. 617, 624, ...