Smith v. Secretary of Navy, 19960-1.
| Decision Date | 06 May 1974 |
| Docket Number | No. 19960-1.,19960-1. |
| Parties | Joseph Orby SMITH, Jr., Petitioner, v. SECRETARY OF the NAVY, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Asst. Federal Public Defender Thomas M. Bradshaw, Kansas City, Mo., for petitioner.
Asst. U. S. Atty. Frederick O. Griffin, Jr., Kansas City, Mo., for respondent.
On October 4, 1971, petitioner filed a motion for order of mandamus in the United States District Court for the District of Columbia in which, among other things, he alleged that:
It can be determined from these allegations and from subsequent filings that petitioner basically is claiming that the circumstances of his conviction are controlled by the principles of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), that O'Callahan should be given retroactive effect, and that he did not knowingly and intelligently waive his right to counsel at his court-martial. The relief requested is "to erase the conviction and sentence of petitioner and issue a General Discharge."
The United States Attorney for the District of Columbia, upon representation that the questions presented could be more conveniently tried in this Court, obtained an order directing the transfer of the case to this district. On May 2, 1972, we ordered that the Federal Public Defender be appointed to represent petitioner, that petitioner's deposition be taken and that thereafter the parties file statements as to whether any additional testimony or documentary evidence was necessary for the determination of the questions presented in the petitioner's "motion." That order has been complied with; respondent has submitted further documentary evidence and has stated of record that no further testimony is available. Both petitioner and respondent have filed proposed findings of fact and conclusions of law. The case is, therefore, in a proper posture for decision.
There is no dispute about the relevant facts in this case. On January 3, 1942 a summary court martial was convened by Ralph E. Forsyth, Major, U. S. Marine Corps, at Headquarters, Third Battalion, Tenth Marines, San Diego, California. At that time petitioner, then a private in the U. S. Marine Corps assigned to the Third Battalion, Tenth Marines, Second Marine Division, Fleet Marine Force at Camp Elliott, was charged with having committed three offenses while serving in the Marine Corps by specifications which stated:
The record of the proceedings states that at the court martial "the accused stated that he did not wish counsel." It further states that "the requirements of section 356, Naval Courts and Boards, were complied with." Section 356, as it appeared on January 3, 1942, read as follows:
356. Accused entitled to counsel. — The accused is entitled to counsel as a right, and whenever practicable to counsel of his choice. The court can not properly deny him the assistance of a professional or other adviser. Enlisted men to be tried shall be advised particularly of their rights, and should be represented by counsel, if practicable, unless they explicitly state in open court that they do not desire such assistance. Should the accused state that he does not desire counsel he shall be informed by the court that counsel will be assigned him should he so desire, and he shall be advised to consult counsel before deciding to proceed with the case without counsel. A statement that this section has been complied with shall be entered upon the record of proceedings. It should be borne in mind, however, that the convening authority has no power to force counsel upon an accused unless the accused is mentally incompetent and thereby unable to look after his own interests. In such a case, when mental incompetency becomes known, the case becomes one for a doctor rather than a court. Failure to comply with request of accused that counsel be provided him is a fatal error. Emphasis in text
The record states that petitioner indicated that he had received on that date a copy of the specifications against him and that he had no objections to them. It also states that petitioner indicated that he was ready for trial.
The specifications were then read to the petitioner and petitioner pleaded guilty to each of the three counts. The record states that "The accused was duly warned as to the effect of his plea and persisted therein." After a recess, petitioner was sentenced to a loss of pay, which was later remitted, and a bad conduct discharge, which was ordered executed on January 27, 1942.
At the time of his court martial, petitioner was just seventeen years old, had a sixth grade education and had no previous experience with criminal proceedings.
At the deposition of the petitioner, taken pursuant to this Court's order of May 2, 1972, petitioner stated several times that he did not recall any of the proceedings at the Summary Court Martial nor whether the entries made in the Record of the Court Martial were correct.
Petitioner's first ground for his petition, that his conviction by court martial is invalid because his crimes were not service connected, must be rejected in light of the United States Supreme Court's decision in Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L. Ed.2d 873 (1973).1
Petitioner's second ground for his requested relief, that he did not knowingly and intelligently waive his right to counsel, presents an extremely close question. It is not entirely clear from the cases but it does not seem to admit of much doubt that the Sixth Amendment guarantees the right of counsel to servicemen charged before a court martial. Harris v. Ciccone, 290 F.Supp. 729 (W.D.Mo. 1968), aff'd 417 F.2d 479 (8 Cir. 1969), cert. den. 397 U.S. 1078, 90 S.Ct. 1528, 25 L.Ed.2d 813 (1970), a case decided at the district court level by Chief Judge Becker, mentions a Sixth Amendment right to counsel. It concludes, however, that petitioner, in fact, received effective assistance of counsel at his court martial. The Court of Appeals opinion also alludes to a Sixth Amendment right to counsel but also relies on the provision of the Uniform Code of Military Justice which requires counsel for general or special courts martial. The Court of Appeals held that the representation petitioner received at his court martial by a non-lawyer officer was adequate.
In any event, a serviceman is guaranteed a right to counsel by the Uniform Code of Military Justice, or in 1942 by the Articles of War of 1920, art. 17, ch. 227, Ch. 2, 41 Stat. 790 (1920). That provision guaranteed counsel for the accused in general and special courts martial only, but Section 356, Naval Courts and Boards, guaranteed counsel in all cases.
Given a right to counsel, it is axiomatic that a person may not be convicted of an offense without representation by counsel unless he has knowingly and intelligently waived his right to counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Supreme Court most recently restated this principle in Argesinger v. Hamlin, 407 U.S. 25 at 37, 92 S. Ct. 2006 at 2012, 32 L.Ed.2d 530:
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
The Supreme Court also concluded that:
Beyond the problem of trials and appeals is that of the guilty plea . . . Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution. 407 U.S. at 34, 92 S.Ct. at 2011.
It is, of course, a matter of record that petitioner in this case did not have counsel at his court mart...
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Kaiser v. Secretary of the Navy, 81-K-912.
...U.S. 683, 693, 89 S.Ct. 1876, 1882, 23 L.Ed.2d 631 (1969); Angle v. Laird, 429 F.2d 892, 894 (10th Cir. 1974); Smith v. Secretary of Navy, 392 F.Supp. 428, 431 (W.D.Mo.1974), aff'd 506 F.2d 1250 (8th Cir. 1974); Kaiser v. Secretary of Navy, 525 F.Supp. 1226, 1229 (D.Colo.1981).2 The policy ......