MIDDENDORF v. HENRY

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Argument of Nathan R. Zahm

Chief Justice Warren E. Burger: We'll hear arguments next in 74-175 and 74-5176, Middendorf against Henry and the consolidated case.

Mr. Zahm, you may proceed whenever you're ready.

Mr. Nathan R. Zahm: Mr. Chief Justice, if the Court please.

I think it is fair to say that the facts of these particular consolidated cases are simple and are not in dispute.

The named plaintiffs were marines stationed at El Toro Marine Base near Los Angeles, California.

They were all in pay grades E1-E4, the lowest pay grades in military services and, therefore, subject to summary court-martial under Article 20 of the Uniform Code Military Justice and, if convicted, they could stand confin -- they would be confined for up to 30 days and five of the named plaintiffs were so-convicted and sentenced to -- up to 30 days respectively for various minor offenses.

And, at their summary courts-martial, they did not have their own retained or -- their own retained counsel nor were they appointed counsel.

Three of the named plaintiffs were ordered to stand trial subject at the summary courts-martial.

Those trials were not yet convened at the time the action was brought but they, too, were advised that they would not have appointed counsel at summary courts-martial.

A class action, worldwide in scope, was brought for habeas corpus relief of the five imprisoned as result of the summary courts-martial convictions and sentenced, and there was a prayer for relief in the nature of mandamus, also for injunction against the topmost officials of the Navy and the Marine Corps.

And, the named plaintiffs' commanding officers at El Toro Marine Base requiring the relief -- required that the accused servicemen at summary courts-martial resulting in confinement be provided the opportunity to have the assistance of defense counsel who does not also represent the prosecution and, in the District Court, all of the -- this requested relief was granted.

Chief Justice Warren E. Burger: You mean a member of the Bar or a helper of some kind?

Mr. Nathan R. Zahm: Pardon, Your --

Chief Justice Warren E. Burger: Do you mean a member of the Bar or simply someone to help him?

Mr. Nathan R. Zahm: In all of this discussion, Mr. Chief Justice, we are referring as counsel being not necessarily a lawyer, but a person who, in some degree at least, might be of assistance to the accused.

Chief Justice Warren E. Burger: In other words, the “next friend” concept is what you're talking about.

Mr. Nathan R. Zahm: The “next friend” might be a proper term, Your Honor, yes.

There have been cases which we could go into later if the court pleases where the military Court of the highest nature, the United States Court of Military Appeals, is determined that, constitutionally speaking, unless Congress has otherwise required, counsel does not mean lawyer counsel and so here, we, in this case, are speaking of counsel from the constitutional standpoint of being a person who assists the accuse at trial who is not necessarily lawyer-counsel.

At any rate, the District Court in this case granted habeas corpus relief to those who had been confined, and issued relief in the nature of mandamus on a worldwide level.

Now, the issue before this Court is whether the holding of this Court in Argersinger versus Hamlin, 407 U.S. in the year 1972, in which this Court held in a landmark decision that an accuse in any criminal prosecution for whatever offense, petty or otherwise, may not be deprived of his liberty if he was denied the assistance of counsel at trial and, this, by virtue of the right to assistance of counsel guaranteed by the Sixth Amendment and also the Due Process Clause of the Fifth Amendment.

Chief Justice Warren E. Burger: I suppose, well, what would be your answer to this, suppose instead of confinement, following a summary court-martial of this kind, the penalty provided was six months -- loss of pay for six months.

That would be much more painful perhaps than 30 days for many people, wouldn't it?

Mr. Nathan R. Zahm: Your Honor, it might be more painful, we might agree.

But, from the standpoint of the decision of this Court in Argersinger, we are limited to the decision of this Court with reference to loss of liberty.

Chief Justice Warren E. Burger: I just wanted to be sure that you were only arguing to the Argersinger point and not any penalty, however heavy it might be.

Mr. Nathan R. Zahm: Most specifically, Your Honor, we are in this case limiting ourselves to the decision of this Court in Argersinger with regard to loss of liberty.

Now, this question, of course, would never have arisen with regard to any other kind of courts-martial in the military for the reason that the Congress of the United States has seen to it in the Uniform Code of Military Justice that, in the general court-martial and the special court-martial, defense counsel shall be provided the accused.

And so, the problem arises, therefore, only with regard to summary court-martial because, under Article 20 of the Uniform Code of Military Justice, no provision is made in that article for defense counsel for the accused such as in the case of general court-martial and special court-martial.

Justice William H. Rehnquist: Mr. Zahm.

Mr. Nathan R. Zahm: Yes, Your Honor?

Justice William H. Rehnquist: You say that you're confining your argument to loss of liberty.

Can a man go the brig as a result of a Summary Court?

Mr. Nathan R. Zahm: Most positively, he may be confined in the brig for up to 30 days, Your Honor, and that is the problem here that these named plaintiffs and the hundreds of thousands of others in the class.

Under summary courts-martial, not only maybe confined for up to 30 days but for some perhaps 200 years have been so-confined.

Justice Potter Stewart: He can go to the brig from a Captain's Mast, at least that used to be correct.

Mr. Nathan R. Zahm: I would have to say that that is not correct, Your Honor.

Under Captain's Mast, as we refer to it in the Navy, and I am a former Navy man myself, Captain's --

Justice Potter Stewart: That was the old navy, at least for me.

It was the old navy.

Mr. Nathan R. Zahm: Yes.

Captain's Mast, as we refer to it today, is referred more technically as proceedings under Article 15, non-judicial administrative punishment.

Correctional custody is what might result from a Captain's Mast from Article 15.

Justice Potter Stewart: On a ship and on a ship at sea, doesn't that include the power of the commanding officer to have the man locked up in the brig on reduced tractions still?

Mr. Nathan R. Zahm: It would still be, even at chip at sea, would be correctional custody and not confinement.

Justice William H. Rehnquist: But he's in the brig.

Justice William J. Brennan: He's in the brig, is he not?

Mr. Nathan R. Zahm: I would have to say he is not in the brig, to my knowledge.

Correctional custody, he will be still in the position of performing his regular duties but under a very strict guidance and counseling, as the distinction is made to my knowledge, in the Navy.

Justice Byron R. White: I think --

Mr. Nathan R. Zahm: He is not in the brig.

Justice Byron R. White: You wouldn't want to be arguing for counsel for people faced with that kind of custody, correctional.

Mr. Nathan R. Zahm: Well, at the present time, I'm satisfied to be arguing strictly on the matter of summary courts-martial because, as a matter of fact, I will be getting to it.

The --

Justice Potter Stewart: Mr. Zahm, having interrupted you at once, let me ask you another question that's a little --

Mr. Nathan R. Zahm: Yes, Your Honor.

Justice Potter Stewart: -- confusing to me.

Is what we're talking about here what used to be called a Deck Court?

Mr. Nathan R. Zahm: Originally, it was called a Deck Court.

Justice Potter Stewart: In the Navy at least, a Deck Court.

Mr. Nathan R. Zahm: Yes.

Justice Potter Stewart: And a Summary Court, back in the World War II, was quite a different thing, that was a three-officer Court in which you did have a right to counsel.

Mr. Nathan R. Zahm: Well, my only difference would be --

Justice Potter Stewart: In the Navy, not the Army.

Mr. Nathan R. Zahm: -- from a historical standpoint, I believe by the time of World War II --

Justice Potter Stewart: I mean, were -- yes, World War II.

Mr. Nathan R. Zahm: We had Summary Court as we have it today.

Historically speaking, the first one-man Court, which is what a Summary Court is, a one-officer Court.

Justice Potter Stewart: But that used to be called a Deck Court.

Mr. Nathan R. Zahm: Yes, originally.

It started in 1909.

So, the concept of a one-officer Court is only that old, since 1909.

It does not date back to the revolutionary war period or the time of the adoption of the Bill of Rights.

Justice Potter Stewart: But a Summary Court used to be a three-member Court.

Mr. Nathan R. Zahm: That is correct, originally.

Justice Potter Stewart: Well, maybe originally --

Mr. Nathan R. Zahm: They changed the name.

Justice Potter Stewart: That would end up to 30 years ago, it was.

Mr. Nathan R. Zahm: Yes.

Justice Potter Stewart: And in the Summary Court in those days, you had a right to counsel.

Mr. Nathan R. Zahm: That is correct.

The --

Justice Potter Stewart: And in the Deck Courts you didn't and you didn't count the offense.

Mr. Nathan R. Zahm: The Summary Court that we revert to today and the one to which great objection is made in this suit and by the authorities and by the commentators, is the one-officer Court who is serving as the judge, as the prosecutor and, to some extent, if at all, assistance of defense to the accused.

Justice Potter Stewart: Right.

Mr. Nathan R. Zahm: He is serving in a tri-partite manner, and this is called a court where one man is serving as the judge, if you will, the jury, and the prosecutor.

And, in this Court --

Justice Potter Stewart: Maybe the columnist wanted nomenclature if he were to call an investigator or something like that, maybe.

Mr. Nathan R. Zahm: Whatever the nomenclature, Your Honor, it is a single man serving in -- under three hats at the same time presuming to be a court.

Justice Potter Stewart: In a -- well, in a quasi-investigative capacity, it's a quasi-inquisitorial --

Mr. Nathan R. Zahm: No.

Justice Potter Stewart: -- proceeding, is it not?

I used to serve as a Deck Court officer and that's the reason I asked you.

Mr. Nathan R. Zahm: Your Honor, that is not correct under the Uniform Code of Military Justice because a summary courts-martial is a court.

It is not an investigation.

Justice Thurgood Marshall: But you're -- you're not complaining about the investigation, you're complaining about if he ends up putting a man in the brig, that --

Mr. Nathan R. Zahm: That is correct.

Justice Thurgood Marshall: That's what you're complaining.

Mr. Nathan R. Zahm: Conviction puts him --

Justice Thurgood Marshall: Regardless of what the other two think.

Mr. Nathan R. Zahm: Your Honor, that is precisely the point.

Whatever you call it, whatever nomenclature, it is a decision by the court, a Military Court, in which, upon conviction, the man loses his liberty just as the civilian indigent under this Court's ruling in Argersinger loses his liberty.

Whether it be for a moment, an hour, or a day, the result is the same.

The question--

Justice William H. Rehnquist: Okay, go down a notch on the scale that -- what was in my days, now we call it company punishment, and I take it Justice Stewart's reference is to some sort of an investigative thing like that, which you say you're not complaining about, where you can have conditions of closed confinement and supervision.

There, the company commander simply investigates.

You're there, he probably asks you your side of the story, and what he ends up doing is frequently confining you to the post or something like that.

He may not put you on the stockade.

Now, there's some loss of liberty there and, yet, no one would call it a court.

I don't think -- it seems to me, your emphasis on the fact that this is a court is why to the mark.

I think the analysis has got to be in terms of loss of liberty.

Mr. Nathan R. Zahm: Your Honor, the United States Court of Military Appeals has decided on this very question, the distinction between proceedings under an Article 15 and summary courts-martial and, most positively, this is the court incidentally which this Court in Noyd versus Bond said we look to for the development of military expertise.

Well, that court with its military expertise sees a tremendous significant difference between proceedings under Article 15 and summary for the following reasons.

That, under Article 15, there is no conviction of crime, so to speak, of military crime on the man's record.

The explosive effects of a conviction under summary courts-martial may be drastic, as a matter of fact, due to the escalator clauses that we find in the military regulations.

Two convictions of summary courts-martial, when later brought up at a special Court-Martial, may result very positively in a bad conduct discharge with the result that, for the rest of the man's life, in and out of service he suffers a tremendous lifetime economic disability.

None of that accrues as the result of any number, any number of Article 15 proceedings.

Chief Justice Warren E. Burger: Well, -- but there, you're addressing yourself now not to the punishment, but to the proceeding itself.

What if he had a summary courts-martial and didn't get any confinement?

Your complaint would be the same in terms of your last point, but I thought you were only arguing about a confinement case ala Argersinger.

Mr. Nathan R. Zahm: Your Honor, if, as we feel this Court should rule, making Argersinger, if you will, the requirements of Argersinger apply to the military, then the Navy would either appoint counsel for the man in summary courts-martial or not.

If they did not, the man would not have a conviction, you see, to confinement.

And, without that, the Escalator Clause would not apply to the future.

So, therefore, he would not suffer in that regard.

Justice Lewis F. Powell: Mr. Zahm.

Mr. Nathan R. Zahm: Now the basic --

Justice Lewis F. Powell: Mr. Zahm.

Mr. Nathan R. Zahm: Yes, Your Honor?

Justice Lewis F. Powell: As I understand it, under Article 20 of the Uniform Military Code, an enlisted man has the privilege of not being tried by Summary Court, is that correct?

Mr. Nathan R. Zahm: He may reject the summary courts-martial under Article 20.

You're correct, Your Honor.

Justice Lewis F. Powell: Then what --

Mr. Nathan R. Zahm: He may reject it.

Justice Lewis F. Powell: Then what happens to him?

Mr. Nathan R. Zahm: Then he will either have the charges dismissed or he will subject himself to trial Court-Martial, special Court-Martial, or even general Court-Martial.

And, as a result of that, the possibilities of his punishment, of his confinement, will be tremendously greater than if he had taken summary courts-martial.

The distinction being that if he's opts for the special or the general, he will have the opportunity to have the assistance of defense counsel.

That is the difference.

Justice Lewis F. Powell: If he has a good defense with the assistance of defense counsel, presumably he'd get off.

Mr. Nathan R. Zahm: That is one of the reasons perhaps why he would take the greater risk, if you will, of greater punishment in order to get his constitutional right of the assistance of counsel.

That would be perhaps the only basis for his taking that risk, if you will.

What he does by not opting to reject his summary courts-martial is to feel that he does not wish to take the risk of even greater punishment.

Better, I should get in the brig for 30 days and all the rest of the punishment that may accrue later in life than to have an even greater punishment.

Justice Lewis F. Powell: You refer to the Summary Court as exercising prosecutorial functions.

My reading of the regulations indicate that the Summary Court has a duty to function not as a prosecutor but as a fact finding officer with an equal responsibility to safeguard the rights of the accused and those of the government.

Mr. Nathan R. Zahm: That is correct, Your Honor.

Justice Lewis F. Powell: Do you differ from that general summary of the regulation?

Mr. Nathan R. Zahm: When we study, Your Honor, the provisions of the Manual of Courts-Martial as to the functions of the Summary Court officer, we find that he is to be the prosecutor.

The language used in the Manual of Courts-Martial requires him to do the same as a trial counsel at a general Court-Martial or a special Court-Martial, including the obtaining of witnesses for the prosecution against the accused, the questioning, the interrogation, the cross-examination of those witnesses and, in every sense therefore, he must in fact be doing what a prosecutor would be doing.

Justice Lewis F. Powell: But he must subpoena witnesses for the enlisted man also.

Mr. Nathan R. Zahm: He must do that, but this is the very problem and the criticism of the summary courts-martial that has been exempted by all authorities for many years.

He must do all of those things and, in the First Circuit case of Figueroa Ruiz versus Delgado which is cited in the brief the court says, it was a Puerto Rican District Court that points out, that it is literally impossible for a man to be a judge and function to whatever degree as a prosecutor.

He just simply cannot successfully do it.

Justice William H. Rehnquist: Oh, but that--

Justice Lewis F. Powell: Then before some of the administrative tribunals around the country.

Mr. Nathan R. Zahm: Well, perhaps so, they are administrative tribunals but, here, we're speaking of Courts of law where men are subject, upon conviction, to loss of liberty, Your Honor, which this Court thought in the landmark case of Iverson, no matter how petty the offense, he deserves the assistance of counsel at trial.

Justice Lewis F. Powell: Confronted with a professional prosecutor, and there is this difference here, isn't there?

Whether it's controlling or not is an issue obviously, but in the Argersinger situation, the city or county prosecutor is there in Court and if you are by yourself, you have nobody to look out for you.

But, here, you have a man who, by law, is required to be impartial and to serve the interest of both sides.

Mr. Nathan R. Zahm: Your Honor, Mr. Justice Powell, may I suggest, under 820, a Summary Court consists of one officer, that's one individual.

The only other person physically in that courtroom, therefore, is the accused, obviously, and perhaps any other witnesses who may have been called as witnesses.

Now, somebody has to prosecute that case against the accused.

We certainly can't expect that the accused will be serving as the prosecutor against himself.

Somebody has to be acting as prosecutor and, obviously, by the very regulations of the Manual of Courts-Martial, that is the man who is also serving as judge, the man who will find whether or not the accused is guilty or innocent.

Justice William H. Rehnquist: Mr. Zahm, I find your reference to the -- certainly, the First Circuit supports what you say but, it seems to me, that disregards the whole Courts of civil law adjudication which we couldn't have in this country in criminal cases because of the guarantee of jury trial, but your judge (Inaudible) in your French Courts and the typical civil law is just what Justice Powell says it is.

It's an inquiring magistrate who is supposed to find out the truth and, whereas, you couldn't have it in civil proceedings here because of the jury trial guarantees.

I'm not persuaded that you've carried any burden of showing it's basically unfair, which you have to under the Due Process Clause.

Mr. Nathan R. Zahm: Under the Due Process Clause, this Court has enunciated in Gideon versus Wainwright that the rule of Betts versus Brady, the case by case approach for determination of proper due process, does not apply in criminal prosecutions.

That the per se rule, the absolute standard, of right to counsel applies in criminal prosecutions.

Courts-Martials are criminal prosecutions and so, following the dictates of this Court in Gideon, it would appear that the due process rights in a summary courts-martial calls for assistance of counsel in every case.

Now, if I may say at this juncture, this is where we feel this Court should not affirm the view of the Ninth Circuit in the Daigle case where the due process test applied there differently from the test applied by the United States Court of Military Appeals by the Fifth Circuit in the Betonie versus Sizemore case, where the absolute standard of due process is applied in a criminal prosecution which means, to every accused in a summary courts-martial, this is the following of this Court's precept as indicated in Gideon versus Wainwright.

And, since Argersinger is an extension of Gideon versus Wainwright, we maintain that this Court should follow by the way what even the government previously has argued this term before this Court that the decisions, because of its special expertise of the United States Court of Military Appeals, should be followed by this very Court was the argument in the case this term by the government.

We merely suggest that it is correct that the decisions of the United States Court of Military Appeals should be followed because they know best what is needed by the military and they decided this issue in United States versus Alderman.

And, in United States versus Alderman, the majority of the United States Court of Military Appeals ruled that the requirements of Argersinger apply to the military, and I have not yet have the opportunity to say, I would like to emphasize that these plaintiffs recognize that military necessity, to a great degree determines whether or not the constitutional rights of men in service are retained by those men when they damn the uniform.

Chief Justice Warren E. Burger: What provisions of the constitution define procedural rights in military justice, on what provisions of the constitution relating to military justice?

There are references to it but would you pinpoint what it is, the ground?

Mr. Nathan R. Zahm: Well, Your Honor, ever since Burns versus Wilson, the decision of this Court in 1953, there have been multitude of cases in the lower Federal Courts and by the United States Court of Military Appeals following Burns versus Wilson which, in effect, say that except for those specific exemptions from the Bill of Rights and those that are necessary to be implied, all constitutional rights belong to men in service as well as men not in service.

And, the one single expressed exception, as this Court through Mr. Justice Douglas has indicated in Parker versus Levy in his dissent, the only expressed exception is the indictment by a grand jury.The only implied exception has been the right to trial by jury.

Other than that, there is no other exception other than in the application of rights to the military man and in this -- this Court only last term, in Parker versus Levy, implicitly stated what I have just said and, in that particular case with regard to First Amendment principles, this Court said that the right of a serviceman with regard to First Amendment has to be, in some way, different from that of a civilian because of the special needs of the military.

We recognize that.

The Navy, although the courts in which this matter, this issue, has been litigated, in the Fifth Circuit, before the United States Court of Military Appeals, the District Courts in Hawaii, in California, in the Ninth Circuit has argued that military necessity requires that there'd be no counsel appointed at summary courts-martial.

Justice Byron R. White: Mr. Zahm, has the Secretary of the Navy followed the decision in Alderman?

Mr. Nathan R. Zahm: The Secretary of the Navy?

Yes, Your Honor.

Justice Byron R. White: You use your regulations so that, now, Alderman is being followed?

Mr. Nathan R. Zahm: That is correct.

He did do exactly what you ask me.

In June of 1973, following the decision of the United States Court of Military Appeals, the Navy sent out an L-map worldwide that the decision of Alderman shall be followed and so we --

Justice Byron R. White: Well, Alderman was a decision of the Military Court of Appeals, I take it.

Mr. Nathan R. Zahm: That is correct.

Justice Byron R. White: On the merits.

Mr. Nathan R. Zahm: That is correct.

Justice Byron R. White: Is the Secretary of Navy required to follow that?

Mr. Nathan R. Zahm: The answer to that, to my knowledge, is yes.

Justice Byron R. White: Well, whether he is or not, he is following it now.

Mr. Nathan R. Zahm: And never has been ever since June 1973.

Justice Byron R. White: What's at issue in this lawsuit then?

Mr. Nathan R. Zahm: The issue is that the Navy wants this Court to overrule the decision of the United States Court of Military Appeals which is asking this Court to do, to my knowledge, for the first time in history --

Justice Byron R. White: Has the Secretary withdrawn his regulation?

Mr. Nathan R. Zahm: He has not.

Justice Byron R. White: But I gather your point is that if he were to prevail here, he probably would, is that it?

Mr. Nathan R. Zahm: The supposition is, Your Honor, that if this Court should rule contrary to the way plaintiffs here request, you would be, in effect, be overruling the decision of the United States Court of Military Appeals.

Justice Byron R. White: In other words, his regulations are only on the compulsion of Alderman.

If Alderman is reversed, he won't be under any compulsion.

Mr. Nathan R. Zahm: That is correct, Your Honor.

May I, at this point --

Justice William J. Brennan: Is that what he said?

Do you know if he said that?

Mr. Nathan R. Zahm: Pardon?

Justice William J. Brennan: Maybe I should ask Mr. Frey.

Justice Byron R. White: We'll ask the government about it.

Mr. Nathan R. Zahm: Yes.

May I point out at this juncture that when the Argersinger decision came from this Court in May -- excuse me, in -- yes, in May -- I think it was May or June of 1972, the Army and the Air Force, within weeks and without anyone other than their own commands requesting it, immediately followed the procedures as required by Argersinger.

Justice Byron R. White: Now, Mr. Zahm, what is the present status of your clients?

Where are they?

Mr. Nathan R. Zahm: Well --

Justice Byron R. White: Are they -- they aren't in the brigs, I'm aware of that.

Mr. Nathan R. Zahm: No.

Justice Byron R. White: Since it would serve their --

Mr. Nathan R. Zahm: A number of them were released under the writ of habeas corpus issued by Judge Williams in the District Court.

Others either had served their time --

Justice Byron R. White: Well, it seems to me, they would be entitled to relief and to retrial or whatever it is under the Secretary's regulations.

Mr. Nathan R. Zahm: As my -- as I understand it, Your Honor, the Navy does not provide for retrial.

Justice Byron R. White: Well, what about the -- aren't -- your clients cannot get the benefit of the Secretary's regulations?

Mr. Nathan R. Zahm: Well, for them, it was too late and, as a matter of fact, I believe a number of them are already out of service, they either have served their time.

Their relief, if we win here --

Justice Byron R. White: Tell me just one person who, if you lose, is going to suffer.

Mr. Nathan R. Zahm: Their records will remain as being -- showing that they're conviction of a summary courts-martial and if they're still in service, they may suffer from the Escalator Clauses later and, as a civilian, this is on their record, you see.

They lost pay which they otherwise may theoretically at least ask for it to be recompensed.

Justice Byron R. White: But that is a, of course that's a a consequence that, normally, Argersinger doesn't protect against.

Mr. Nathan R. Zahm: But, Your Honor, may I say that the concern here is not --

Justice Byron R. White: You're not -- you don't face confinement anymore.

Mr. Nathan R. Zahm: Not these named plaintiffs but, if I may point out, Your Honor, this action was brought as a class action, habeas corpus class action worldwide and also in the form of mandamus.

Justice Byron R. White: Was it declared to be such?

Mr. Nathan R. Zahm: By the District Court, yes, and never undone by the Appellate Court.

Justice Byron R. White: Well, the class so is the class can't go on under the Secretary's regulations, the class ends because there are no more people being deprived.

Mr. Nathan R. Zahm: Unless this Court rules otherwise.

Justice Byron R. White: Well, the Secretary's regulation is the -- the class hasn't had anybody added to whatever since the Secretary's regulations went into effect.

Mr. Nathan R. Zahm: Not since then, Your Honor.

Chief Justice Warren E. Burger: Mr. Frey.

Argument of Frey

Mr. Frey: Mr. Chief Justice.

Justice William J. Brennan: Are the regulations going to be rescinded if you win?

Mr. Frey: They are, yes, unless Congress changes the legislative structure.

Justice William J. Brennan: Is that something that's in your brief or has he said that or what?

Mr. Frey: I don't believe that it's in the brief, but we would not have petition for certiorari had he not requested a -- I mean, we petitioned for certiorari on behalf of the Secretary because the Secretary was very anxious to have this matter clarified and to be able to enforce the congressional scheme for Courts-Martial which he was unable to do as the result of the Alderman decision.

Justice Potter Stewart: The Alderman decision made perspective in its application only?

Mr. Frey: Well, that's a very strange thing.

Retroactivity was not argued in Alderman as far as I know but, in fact, there was a retroactive decision because the court of Military Appeals has no jurisdiction over summary courts-martial.

They are not reviewed into the court system.

It has no particular expertise with respect to that special facet of the system, and the issue there was that enhanced punishment had been imposed on Mr. Alderman at a subsequent special court.

Justice Potter Stewart: Because the prior --

Mr. Frey: Because of the prior summary conviction.

So, in effect, they gave it.

They gave Argersinger retroactive effect and we, of course, take the position and I think it's clear from reading their opinion in Alderman that they did not deal with this as Military experts.

They've dealt with this by reading the opinion of the Court of Appeals under the Supreme Court in Argersinger and concluding quite summarily in the case of Judge Quinn's opinion and almost equally summarily in the case of Judge Duncan's that this was binding on the court of Military Appeals.

In fact, Judge Duncan said, as far as he was concerned, this was a perfectly fair and reasonable procedure and if he were not under the force of Argersinger he would uphold it.

Justice Potter Stewart: But, in the last portion of your brief, you ask us that even if we should decide against you on the underlying merits that we not make any decision retroactive and I would -- that's what prompted my question as to whether the Alderman decision itself is retroactive.

Mr. Frey: We are -- our interest with respect to retroactivity is as of the date of Alderman, in other words, our position would be that Alderman, if it was correct in declaring that there was a right to counsel in summary courts-martial, would be the break with the past for retroactivity purposes if the Secretary complied with Alderman under the force of that decision.

Justice Potter Stewart: From then on.

Mr. Frey: But there are -- we think that, under the Morrissey approach, that the proper standard for retroactivity, and I didn't mean to get into this at length because I trust you'll never have to reach it but, that the proper standard would be from the date the rule was changed.

If that's not to be the standard, there are -- there's a mare's nest of possible retroactive problems of various consequences and various future and past consequences and we would suggest that you not get into the details of what parts would be retroactive and what parts not.

Justice William H. Rehnquist: Mr. Frey, Gideon was retroactive.

Argersinger, I think, has been made retroactive.

This is a claim of right to counsel in a criminal proceeding.

Is there any really very persuasive argument that it shouldn't be retroactive under the fairness of fact determination?

Mr. Frey: Well, I think there is because I think it's clear from Morrissey and from Wolf that the mere fact that the right to counsel is held to contribute to the fairness of the proceeding substantially.

After all, in Morrissey, there was a liberty interest at steak and the Chief Justice began by recognizing that there was a substantial liberty interest that was being affected by this action and, therefore, looking into the due process requirement surrounding that and the court, nevertheless, recognized that it held that prospective in Morrissey and it subsequently recognized in Wolf that it -- that those kinds of rulings maybe prospective.

I think it's a judgment and I think, in part, the judgment would turn on this Court's belief as to how defective these proceedings without counsel have been.

And, I think as I get into my argument, I hope I'll persuade you, if our brief hasn't already, that these are quite fair proceedings and that the system that Congress has devised is an admirable one.

Chief Justice Warren E. Burger: Are the revocation of the role is not precisely into this?

Mr. Frey: Of course there are differences.

Chief Justice Warren E. Burger: In a criminal proceeding that --

Mr. Frey: I agree.

I think our opponents in this case are interested in analyzing the case by label.

They want to attach the label that says this is a criminal proceeding, and we don't deny that this is a criminal proceeding.

And then, they want to take the label “imprisonment” and then they want to ask the court to stop thinking about the case any further and proceed automatically.

Now, I suggest that it's necessary to make a pragmatic and a functional analysis and to look at what's happening here and I -- as I say, I think the substantial problem about which we're concerned is the validity of these procedures in the first place, and the retroactivity problem is a quite secondary one.

Now, a little over 20 years ago in Burns against Wilson, this Court considered the nature of the constitutional protections applicable to the Military Justice System and, thus, the scope of its powers to oversee the operation of that system in these terms.

It said the constitutional guarantee of due process is meaningful and often sufficiently adaptable to protect soldiers, as well as civilians, from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness rather than finding truth through adherence to those basic guarantees which have long been recognized and honored by Military Courts, as well as the Civilian Courts.

Those words are in some ways reminiscent of Justice Cardozo's formulation of the power of this Court over State Courts in Palko against Connecticut.

Of course, much has changed in our constitutional jurisprudence since those words were penned, but this Court has never stepped beyond the bounds of its self-imposed restraints in order to strike down as unconstitutional any provision of the Uniform Code of Military Justice or to invalidate any procedure deliberately chosen by Congress for the administration of military justice.

If the court rules against the Navy in this proceeding and declares invalid the congressional decision to utilize the relatively informal non-adversarial procedures of the summary courts-martial for the disposition of relatively minor charges, it will have taken a historic step.

It will have broken sharply with the past and it will, I suggest, have intruded unjustifiably on the responsibilities of the Congress.

Justice Thurgood Marshall: Mr. Frey, do you of any other situation where a man is put in jail without a judicial proceeding?

Mr. Frey: Well, we have a judicial proceeding here.

I'm -- we don't need to suggest it.

In non-judicial punishment, he may be put in the brig.

Justice Thurgood Marshall: (Voice Overlap) I'm right.

You don't go to jail except as a result of a judicial proceeding.

Justice Potter Stewart: If you're arrested --

Mr. Frey: Well, --

Justice Potter Stewart: -- you go to jail, for a while at least until there's a bail hearing or probable cause hearing.

Mr. Frey: That's true, but this is a somewhat different matter because this is an adjudication of finding that an offense had been committed and the imposition of punishment consequent upon that finding.

Justice Harry A. Blackmun: Well, the -- upon the cancellation of parole and probation?

Mr. Frey: Well, you would go jail there without a judicial proceeding, but with a --

Justice Harry A. Blackmun: But you also -- you go to -- you could go to jail without counsel too.

Mr. Frey: You could.

Justice Harry A. Blackmun: Sometimes you might have it, and sometimes you might not.

Mr. Frey: Yes, but we don't -- we are not advocating here the Ninth Circuit formulation in Daigle because we don't think it's workable for summary courts-martial, and we think that the procedure, overall, is sufficiently fair that there is no question of -- there should be no question of requiring counsel.

Justice Harry A. Blackmun: But the -- but, at least in the -- I know you're not supporting that result, but at least the Gagnon in the probation of parole, here's an instance where the court said you are not entitled to counsel every single time you might -- you think you might face imprisonment.

Mr. Frey: Well, that's true and, of course, in Wolff where the duration of your imprisonment was at stake, you're not normally entitled to counsel.

Justice Harry A. Blackmun: Mr. Frey, you just -- Mr. Frey, you just suggested that the government would not support the Daigle formulation.

Do I -- am I to infer from that that if there is to be a right to counsel, that you'd rather have a forthright Argersinger and then the Daigle formulation?

Mr. Frey: Well, let me put it --

Justice Harry A. Blackmun: Daigle relied on Gagnon, I think, didn't it?

Mr. Frey: That's right.

It relied on cases which required a case by case evaluation.

We feel that it is not feasible under these circumstances to conduct that kind of case by case evaluation.

Justice Harry A. Blackmun: We'd rather not have any but if you -- if --

Mr. Frey: Well, we'd rather not be --

Justice Harry A. Blackmun: -- this is to be affirmed, you don't want the Daigle formulation.

Mr. Frey: Congress wished to have none and we would like to abide by the scheme that Congress has established until Congress changes it if we can.

If we can't, we don't feel it's workable to --

Justice Thurgood Marshall: Mr. Frey, I have one more point to my question.

Do you know of any instance where a man is put in jail in a non-judicial proceeding of which there has no review any place under any circumstances?

Justice Harry A. Blackmun: There is review of this proceeding.

There is administrative review of a Summary Court conviction.

Justice Thurgood Marshall: Is it reviewed by a court?

Justice Harry A. Blackmun: No, I don't believe it is a court review.

Justice Thurgood Marshall: That's right, it's not.

Justice Potter Stewart: Well, one example would be -- if your footnote is correct on page 12 of your brief that, well you call it now an Article 15 Administrative Proceeding which we used to call Captain's Mast where a ship at sea can put on a man in jail for three days on bread and water.

Mr. Frey: Yes, it could.

Justice Potter Stewart: That could -- a review if that, is there?

Mr. Frey: It could do that.

Justice Thurgood Marshall: Well, do you know any place else in the Navy?

Justice William H. Rehnquist: Mr. Frey, if a court should conclude that the Daigle formula were the proper one, I suppose the Navy would accommodate to it by appointing counsel in all cases by reason of the workability argument.

Mr. Frey: I think that's the way the Navy would react to that.

It would --

Justice William J. Brennan: (Inaudible) that formulation if one plead guilty, there wouldn't have to be a counsel or a waiver of counsel.

Mr. Frey: Well, it's possible.

I can't -- this is what the Navy tells me they feel is the viable, and this is what they've been doing, although they've been doing it under an Argersinger-based rationale from the court of Military Appeals.

Now, much of the argument in my opponent's brief has been directed to the proposition that summary courts-martial, as presently constituted, are not really such a good idea as relied on the views expressed by Senator Irvin and in dissent to the 1968 decision to continue --

Justice William J. Brennan: Excuse me, Mr. Frey, may I interrupt you one moment?

Mr. Frey: Yes.

Justice William J. Brennan: Since Alderman and the Navy regulations required by law, have they -- has the Navy had the staff shipped at sea with special --

Mr. Frey: No, Alderman does not require the provision of lawyer-counsel at sea and -- nor is it necessary and even in the case of a special Court and special Courts are also conducted at sea, although not with the same frequency as Summary Courts.

Justice William J. Brennan: Well, are those special -- I'm interested but, apparently, the Army and the Air Force have acted as though they were bound by Argersinger and provide counsel in comparable proceedings.

What was the special problem about the Navy if it's not applicable to ships at sea?

Mr. Frey: Well, I don't -- I think that the Army acquiesce, and I think they may be now reluctant about it but, they did acquiesce in the view.

They read Argersinger as being applicable.

Now, the degree of sophistication of their analysis at the time they issued that, I can't speak to.

Justice William J. Brennan: Were that true of Air Force?

Mr. Frey: The Air Force made very little use of Summary Courts and I think the character, the nature of the personnel in the Air Force are somewhat different in terms of levels of education and so on that it affects the utility or the need for the Summary Court as a device for maintaining discipline.

Justice William J. Brennan: How did -- did Alderman say it was not applicable to ships at sea?

Mr. Frey: They recognized that there could be an exception because lawyer-counsel as -- what happens in Summary Courts that are still conducted at sea is, sometimes, there are many aircraft carrier which is practically a travelling city in which may have two attorneys on it.

In which case, lawyer-counsel will be provided but, if not, they provide an officer to service counsel who's not a lawyer.

And by the way, no one is prevented from having, as far as I know, counsel of his choice, that is from having a friend, his warrant officer, come and help him at a Summary Court proceeding.

Even now, he is not required to go into the proceeding alone.

Now, there's been a suggestion that you wouldn't be declaring a statute unconstitutional if you ruled against the Navy's position in this case and, while in some technical sense it's true that Congress hasn't prohibited the use of counsel at Summary Courts, I think that this Court should make no mistake about concluding that a declaration of invalidity of the Summary Court procedure would represent an exercise of the court's constitutional veto over the powers of Congress.

Justice Thurgood Marshall: But all it would say that you could hold it with counsel.

Mr. Frey: Well, you would say that the constitution did not permit it to be held the way the Congress planned for it to be held and it's quite clear if you look at Article 27 of the --

Justice Thurgood Marshall: But does it say specifically that it can't have counsel?

Mr. Frey: No, I was just saying that it can't have counsel, but there is no doubt that Congress, which is supposed to provide for the administration of military justice, deliberately selected a system in which Summary Courts would not entail a provision of counsel and if you look at Article 27 which deals with the provision of counsel in special and general Courts, it's clear that this was a carefully thought out deliberate decision of Congress.

Now, the framework of analysis for a case of this sort, we suggest, is found in the court's recent decision in Parker against Levy.

Now, the court there recognized the important differences between the military and the civilian community and the differences in their criminal justice systems that flowed from that.

These differences derive in a large part from the special relationship of the government to its servicemen and the vastly greater proportion of the serviceman's life that is subject to regulation.

And, in light of this, the court held in Parker against Levy, “for the reasons which differentiate military society from civilian society,” and I'm quoting from page 21 of the Slip opinion.

“We think Congress is permitted to legislate both with greater breath and with greater flexibility when prescribing the rules by which the former, that is the military society, shall be governed than when it-- than it is when prescribing the rules for the latter.”

It then went on to say at page 23, “the fundamental necessity for obedience and the consequent necessity for the imposition of discipline may render permissible within the military that which would be constitutionally impermissible outside it.”

Against this background, I would like the court now to consider the role that the summary courts-martial plays in the system that Congress has established for the administration of military justice.

System is a flexible one.

As you've read, I'm sure there are four levels which it designed to deal with the broad range of offenses.

The most minor disciplinarian fractions are dealt with the most informally in a proceeding that is quite limited and the punishments that could be imposed.

The most grave are dealt with in proceedings of considerable formality with substantial procedural protections and potent penalties available, that is, the general Court-Martial.

Now, this Court recognized in Parker against Levy that the Article 15 proceeding which imposes punishments which, in most respects, are similar to the punishments at Summary Court but which does not include confinement of hard labor, that that part took in many ways of the aspects of a labor relations matter between an employer and an employee.

Well here, while it's true that we have a criminal proceeding, it's also true that the Summary Court, the next step up in the scale, partakes very much of the same factors.

Its' frequently used for the -- it can be used for the same kinds of offenses for which non-judicial punishment under Article 15 could be employed or for which a special Court could be convened.

Part of the judgment that would go into the decision to invoke a Summary Court would be, for instance, that this particular individual had committed the same offenses several times, he'd been punished under Article 15, he was not responding to discipline, and it was necessary to step up a little the degree of punishment that could be imposed on him in an effort to generate obedience and discipline on this point.

Justice William J. Brennan: Who decides this, the commanding officer?

Mr. Frey: The commanding officer.

Justice William J. Brennan: That's where I used to run.

He can decide whether to deal with it under Article 15 or to --

Mr. Frey: Or the --

Justice William J. Brennan: With this --

Mr. Frey: Convene a Summary Court --

Justice Potter Stewart: Whether it's a Summary Court or --

Mr. Frey: -- or a special Court.

Justice Potter Stewart: Or a special Court.

Mr. Frey: But the --

Justice Potter Stewart: And any of those could be on shipboard.

Mr. Frey: Yes.

Justice Potter Stewart: Isn't that right?

Mr. Frey: Yes.

Justice Potter Stewart: But, beyond that, for a general Court, it has to be somewhere else, right?

Mr. Frey: I think that's right.

Now, on shore, the sailor could reject either an Article 15 and he could reject the Summary Court.

He could insist on the more formal judicial proceeding, the next step up the scale.

Justice Potter Stewart: Not at sea?

You say that can be done on shore and implying that it cannot be done --

Mr. Frey: At sea, they can reject Summary Court but they cannot reject Article 15 punishment.

That's a special exception that has been drawn, I think, for reasons that are traditional with the Navy in terms of the authority of the captain which is either greater than the authority of the other commanding officers in the service in other circumstances.

Justice Potter Stewart: Of a ship at sea?

Mr. Frey: At a ship at sea, yes.

Now, the summary courts-martials are mostly for military types of offenses.

Still, these are the vast bulk.

I think it was 86%, according to the table we have in our brief, are offenses that would not be offenses in civilian life at all.

Majority of them are unauthorized absence, also, disobeying an order, disrespect to a superior officer, and so on.

There are substantial procedural differences, some we've shown in our brief that the summary courts-martial takes about, before Alderman, took about 33 days.

Special Courts take somewhere in the order of two to three times as long from charge to disposition, it seem to me, clear reasons why the Navy would prefer not to use a special Court if it didn't feel that such severe punishments were necessary to deal with a particular offense.

Now, if this Court's decision substantially alters and impairs the utility and the flexibility of the summary courts-martial, then the carefully balanced structure, graduated procedures, and penalties established by Congress will be itself impaired and its character substantially altered.

These consequences may, of course, be constitutionally compelled, and they would be if the court concludes that the use of non-adversarial procedures comes anywhere close, parking back to the Burns and Wilson language, to “the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness.”

We don't think these words are even remotely applicable to the Summary Court procedure.

In answering the constitutional inquiry that you have before you, there are three factors to be considered: first, the fairness of the procedures as a means of adjudicating guilt and imposing punishment for relatively minor infractions.

Second, a consideration of what is at stake for the individual in the proceeding.

In other words, what's the potential impact of a mistake on his life?

Thirdly, what are the governmental interests that are served by the procedure?

And, I'd like to consider that last factor first.

The principal consideration that I think is important to the services in the use of a summary courts-martial is speed of disposition.

They want to get the man back on the job swiftly to maximize the deterrent or corrective effect of the punishment, and I think it's well-recognized that a small punishment swiftly imposed is frequently much more effective as a means of correcting behavior than a larger punishment substantially delayed.

Now, if you would look at the table at page 26 of our brief, you will see that what has happened since the first period, that is January 1 through June 30 of 1973, was largely pre-Alderman, counsels were generally not provided from -- during most of that period.

The two subsequent periods were post-Alderman, counsel was provided, and the time of disposition increased from 33.5 days approximately to, we have now a corrected figure on the basis of final figures that were not available at the time we did the brief, 43.62 days for the first half of Calendar 1974.

Now, in their brief, my opponents have suggested that the increase in acquittal rates is the product of the provision of counsel and that this increases as much as 32% more acquittals.

I'm willing, for purposes of driving home a point which I think is very important for this Court to consider, to accept the proposition, although I'm not sure that it's scientifically valid, that the increase in acquittals is due to the presence of counsel.

Now, if you will compute the effect of that, that is, if you will assume that the 4.9% acquittal rate during the pre-Alderman period is the rate of acquittals that would've occurred without counsel, you will find that out of about 8,800 cases there would've been approximately 80 people who were acquitted with counsel who would not have been acquitted without counsel, about 80 people out of 8,800 cases.

Now in exchange, however, if you will attribute the increased time, and I'm not saying that this is precisely correct but I think of the major component in the increased time that it takes to try these cases as the presence of counsel, you will find that there are approximately 80,000 mandates of additional time of people having charges hanging over their heads indisposed as a result of counsel.

So, in other words, and I don't mean to minimize the importance for the 80 people who would've been convicted had they had not lawyers, the significance to the Navy and to these people is 80,000 mandates of people with charges hanging over their heads, people who can't be assigned on mission, and some of these people innocent with charges hanging over their heads.

Now, turning to the considerations of fairness, we think there are significant differences in terms of the fairness of the procedure as compared to the civilian procedures that this Court was considering in Argersinger.

I think one was brought out in the questioning of Mr. Zahm and it's a central one.

This is not an adversarial procedure.

The misdemeanor and petty offense trials at stake in Argersinger were adversarial procedures.

They didn't always involve judges.

Sometimes in Police Courts, police officers presented the case but, even there, was somebody who was experienced in court who knew what he was doing.

The inquisitorial system of justice is not so fundamentally unfair, as Justice Rehnquist pointed out, that it can't be used for substantial aspects of the criminal justice system in many European countries.

Also, the criminal justice system in the military is not burdened with the kinds of backlogs that cause the court concern in Argersinger.

The rush to judgment that was awarded in Argersinger, we believe, is clearly not a concern in this area.

And, even in terms of impact on the individual, while I don't wish to minimize it, it is simply not as great as it is in civilian life, for instance, employment consequences, immediate employment consequences.

A man in the Navy who's convicted at a summary courts-martial and goes to the brig for 3 weeks or 30 days, he has a job when he gets out.

He can still get an honorable discharge from the Navy if the rest of his record is good.

On the other hand, a man who gets 30 days in jail as a civilian may very well not have a job waiting.

The fact that imprisonment has a far more severe consequence --

Justice Thurgood Marshall: For 30 days, you get something other than bread and water if he's a civilian.

Mr. Frey: And also if he's a sailor.

The bread and water is a limited exception that applies to non-judicial punishment on board ship for up to three days.

I don't know whether reduced rations is a penalty that can be imposed under Summary Court.

Do you know?

Unknown Speaker: The same.

Mr. Frey: The same amount of reduced rations as for non-judicial punishment.

Bread and water for a limited period of time can be imposed for both non-judicial punishment and Court-Martial.

Justice Thurgood Marshall: But I still that -- do you still remember that the (Inaudible)

Mr. Frey: Yes.

Yes, the Summary Court is a judicial proceeding.

That is a distinction that the Navy makes, but we believe and we urge this Court to recognize that Congress can say to itself “we're going to have a judicial proceeding that won't exactly resemble the judicial proceedings in the civilian system.”

Justice Thurgood Marshall: Well, I don't think Congress can say we can set up some other kind of proceeding to put a man in jail.

That is not judicial.

I don't think Congress can do that.

Mr. Frey: Well, but Congress has not -- to say that it's judicial is not to answer the question as to what specific procedures are required.

Justice Thurgood Marshall: I submit that the determining factor is whether he goes to jail.

That's the one factor.

Mr. Frey: Well --

Chief Justice Warren E. Burger: Mr. Attorney do you say, judgmental process to get away from the implications of judicial -- it is a judgment that's formed on the man, isn't it?

Mr. Frey: Well, it certainly is, it's a determination of facts as to whether or not he did --

Justice Potter Stewart: It's a non-adversary proceeding.

Mr. Frey: It's a non-adversarial proceeding.

That's an important --

Justice Thurgood Marshall: Then you can put a man in jail without an adversary proceeding.

Mr. Frey: Well, that's true and that's done in Europe.

It's not considered fundamentally unfair -- no, but you're dealing -- but you are dealing here with the military and this Court, unless it's going to depart from a long tradition that it has never departed from in this area, gives deference to the military.

Gives room for special procedures and special rules in the military that would not be available in our civilian system which is bound by a different and more rigid set of rules.

The impact on the sailor who's convicted at a Summary Court is far less than in Gault on the juvenile who might be sent away until he is age 21 and Morrissey on the parolee who might lose several years of goodtime, allowances, and have other significant consequences.

Now, finally, I would like to point out to the court the effect on the fairness of the system and on its constitutionality of the option to reject a Summary Court.

The serviceman has a right to counsel.

He can exercise it by rejecting the non-adversarial procedure that is offered to him with the Summary Court.

Now, it is true that if he rejects it he exposes himself to the punishment of a special Court if the commanding officer decides to convene a special Court rather than to resort to non-judicial punishment or to dismiss the charges all together.

Now, there's been some discussion of the Jackson case in this connection and I would like to say, first of all, that we don't think Jackson is controlling, in part because it's a bootstrapping -- well, I guess my time has expired so --

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

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