Not a Lawyer in the Sense of Article 27, UCMJ
There was a time in the Marine Corps (the other services as well) when an officer did not have to be a lawyer in the sense of Article 27 of the Uniform Code of Military Justice (UCMJ) in order to act as trial counsel or defense counsel for Special Courts-Martial. This was usually the case for those appointing orders issued by convening authorities prior to 1969. An appointed non-lawyer defense counsel was emphatically and continually reminded by the convening authority that their primary duty was to prepare for trial, make sure the accused was accorded all of his rights, conduct a legal and honorable defense, and advise the accused of his appellate rights should he be found guilty. We were charged with doing the best job we could for those we defended. That became our primary duty and it superseded all other military duties whenever we were defending an accused. That is what we were told, and that is how we proceeded to fulfill our responsibilities, regardless of how we felt personally. As much as it pained me to get a guilty S.O.B.off, it was my duty to perform the duties of defense counsel to the best of my ability.
Junior officers, such as I was in 1966, typically started out as members (jurors) on the court. Some months later, they would be assigned as Assistant Trial Counsel on an appointing order to assist a more experienced officer so that the junior officer could learn from practical experience. They would then do a stint as Assistant Defense Counsel. They had already spent six months studying the UCMJ and the Manual for Courts-Martial while they were students at The Basic School and then, after arriving at their new duty assignments, there were legal correspondence courses they were required to complete to expand their knowledge and understanding of the legal process in the military.
I started out as one of the junior members on a court made up of two Captains, three First Lieutenants, and three Second Lieutenants. The Trial Counsel was a First Lieutenant and his Assistant Trial Counsel was a Second Lieutenant. It was the same for opposing counsel. Several months later, I was appointed to serve as Assistant Trial Counsel, and a few months after that, I was appointed to serve as Assistant Defense Counsel. Six months after that, I was appointed as Defense Counsel by the convening authority, my Battalion Commander, Lieutenant Colonel Charles G. Cooper. By then I was a First Lieutenant. The first case referred to Special Court-Martial under that appointing order was that of a young PFC who had gone AWOL and was apprehended by the FBI nearly six months later.
I met with the accused a number of times; sometimes at the brig and sometimes at my office where he was escorted by a brig chaser. Each time we went over his story, I asked what prompted him to "go over the hill". I was looking for something, anything, I could use as a defense, or at least a matter in extenuation or mitigation that might garner the sympathy of the court when a sentence was being considered after what I was sure would be a finding of guilty. That much was clear, I thought. He was reported AWOL as of 3 November 1966 on his company’s unit diary. The FBI apprehended him the following March at which point his absence was terminated and his return to military control was reported on the unit diary. Case closed. Well, not exactly.
The day came for the trial. The court was to convene in the conference room at Battalion Headquarters. It was early afternoon and I was walking with the accused from my office (I was Executive Officer of Echo Company, 2nd Battalion, 8th Marines at the time) to Battalion. The brig chaser was following close in trail. As we walked, I went over the accused’s story with him one last time, but this time he said something different, something he had never told me before. He said he failed to return from liberty on 3 November but hung around Jacksonville for a week. He said he was picked up in town by the Military Police because of his scruffy appearance and returned to Camp Lejeune where he was turned over to the Duty NCO at his unit shortly before midnight on 10 November. I asked how he could be sure of the date. He said because it was on the Marine Corps Birthday. I quickened my pace to get to Battalion Headquarters. I told the chaser to seat the accused outside the courtroom and I went to the Adjutant’s office to use the phone. I called the Provost Marshal’s Office (PMO) and asked if they had a receipt for a prisoner returned to Golf Company, 2nd Battalion, 8th Marines on the night of 10 November 1966. A few minutes passed and then a Gunnery Sergeant picked up the phone and said, "Sir, we haven’t located the prisoner receipt yet but we did find an entry in our Desk Sergeant’s log that indicates a PFC _ _ _ _ _ was turned over to a Cpl _ _ _ _ _ at 2338 on 10 November 1966." I asked the Gunny to stay by the phone and told him that I would call him right back. I then located Trial Counsel and told him what I had just learned. I asked him if he would stipulate that the accused had been returned to military control on 10 November 1966. He said he wanted confirmation from the PMO. I went back to the phone, called the Gunny, and asked him to tell Trial Counsel what he had just told me. He did, and as the Lieutenant hung up the phone, he shook his head in the affirmative, recognizing that the charge had been drawn incorrectly. We would later learn that the Duty NCO failed to make a log entry reporting the return of the accused from AWOL status, so the Company First Sergeant never recorded his return on the unit diary. Later that night, the accused had taken off again and was gone this time until sometime in March. However, instead of being AWOL from 3 November 1966 to sometime in March 1967, he was actually only AWOL from 3 November to 10 November 1966 when he was first returned to military control. The unit diary did not show that he’d gone AWOL again.
We entered the courtroom and I explained the circumstances. The President of the Court admonished me for not reporting this sooner. I told him that the accused had communicated this to me only minutes before and that it was at variance with the story he had told me on at least six other occasions as I prepared his defense. The court had not yet been called into session so the President of the Court went to the Adjutant to explain what had just happened and to ask what he was supposed to do. The Adjutant wasted no time in hurrying down the passageway to Colonel Cooper’s office, and closing the door behind him. The next thing I heard (and so did everyone else in the building) was, "Ruffer did what?"
That afternoon, a new appointing order was signed at Battalion Headquarters. I was now Trial Counsel.
The story does not quite end there. When the word got around the brig that a Lieutenant from 2nd Battalion, 8th Marines had gotten someone who was patently guilty off the hook, I was requested by name to serve as Defense Counsel by a number of them. Some of those requests came from Marines who were not members of our battalion. Most weren’t even from our Regiment. That problem was soon resolved because we left on a six-month deployment to the Caribbean with Amphibious Ready Group 8. That made me not "reasonably available", in the lexicon of the Manual for Courts-Martial.
During that deployment, I had occasion to enter a courtroom once again, albeit this time it was a large compartment aboard the USS Guam (LPH-9). A Marine who belonged to a unit attached to our Battalion Landing Team apparently drank too much 151 proof rum while on liberty and decided to do some urban renewal in Old Town San Juan. Subdued, with some difficulty, by the local police and taken into custody by the Shore Patrol, he was returned in handcuffs to the ship upon which his unit was embarked whereupon he broke away and attempted to throw the OOD over the side. A few days after Christmas, court was again in session. This time, under the new appointing order, I was Trial Counsel. After a two-day trial, the accused was found guilty and sentenced to a Bad Conduct Discharge, six months confinement at hard labor, and forfeiture of two-thirds pay and allowances (aka: "six, six, and a kick").
That night, I joined my fellow officers at a New Year’s Eve celebration held at a hotel on the Condado in San Juan. The battalion commander had already heard the results of the trial that had ended only a couple of hours before. As I entered, he stood and lifted his glass saying, "Gentlemen, please rise and join me in a toast to Lieutenant ‘Clarence Darrow’ Ruffer".
Later that night, while engaged in conversation with some of my contemporaries, someone asked if I had ever considered going to law school, to which I responded, "No, I’m not qualified. My mother and father were married."
I would go on during the course of my career to serve as president of numerous Special Courts-Martial and a member of several General Courts-Martial but my days as trial counsel and defense counsel were over.
Court is adjourned!
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