| Putting Things in Context
Article I, Section 8 of the United States Constitution, adopted in 1787, provides in part "TheCongress shall have power … to raise and support Armies … To provide and maintain a Navy … and to make Rules for the Government and Regulation of the land and naval forces". Article II, Section 2 provides in part that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states when called into the actual service of the United States".
In 1775, even before the constitution was ratified, the Continental Congress -- in large measure copying the Army Act of England -- had adopted what were called the Articles of War and the Articles for the Government of the Navy which remained in effect and essentially unchanged for 175 years, until 1951. The Navy maintained that it was different from the Army and required different rules. After all, the Army could punish a soldier by restricting him to the geographical limits of the Army camp. That didn’t work in the Navy. When at sea, like it or not, everybody was restricted to the ship. In addition, the necessary and absolute power of the ship’s captain was more important to the successful operation of the Navy than a system that guaranteed justice. However, the dual system was discarded and many other changes effected when the new law was enacted. What brought about the changes was World War II.
The U.S. had a tiny professional army prior to the beginning of the Second World War, less than 200,000 men. By the time the war was over, twelve million citizen soldiers and sailors were called to active duty. Of that number, more than two million were the subject of some form of court-martial.
Let me hasten to explain that not all Courts-Martial are the same. There are three grades: going from the lowest to the highest insofar as the seriousness of the crimes they considered and the severity of punishment that could be imposed they were designated Summary, Special and General.
American citizen soldiers and sailors were not accustomed to what was called "Military Justice"; a term some said was an oxymoron, like "Jumbo Shrimp". These conscripts and sometimes reluctant volunteers were also introduced to the concept of "Command Influence" -- unlawful interference with the justice system by higher-ranking officers, frequently leaving soldiers and sailors to be punished at the commander’s whimsy. The problem is that armies are organized to efficiently fight battles and win wars. Their primary concern is not to administer justice. As a result there are inherent conflicts.
For example, if a soldier refuses to fight he might well be happy to be court-martialed and sent to a prison in the rear. Many might follow his example, resulting in an undermanned and ineffective army. Combat commanders must have the power to require obedience to orders. Americans, however, are accustomed to constitutional rights and procedural due process. Few were aware of the fine print in the Fifth Amendment to the U. S. Constitution, which reads, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…".
American politicians heard a huge outcry after WW II for the 175-year-old system of military justice to be changed. Congress finally acted in 1950, effecting sweeping reforms and bringing all the military services under one set of rules which went into effect in 1951, the year before I became an Army lawyer.
To give you an example of the sort of "Command Influence" that was objected to and why there was such a clamor for a change in the military justice system, I will tell you the story of Lieutenant Shapiro.
As I heard the story, Lt. Shapiro was not a lawyer and he was not assigned to the Army’s Judge Advocate General’s Corps. He was, however, bright and innovative and was frequently sought as their defense counsel by soldiers facing court-martial charges. He was quite effective and obtained some acquittals in cases he defended, which was not pleasing to the commanding officers who had brought the charges in the first place.
In the early days of World War II at some mid-west army post – I think it was in Kansas – a soldier was charged with aggravated assault and referred for trial before a court-martial. The accused requested that Lt. Shapiro act as his defense counsel and Shapiro agreed. The accused was not confined before the trial and could confer freely with his defense counsel. The defense investigation disclosed that the prosecution case depended entirely on eye-witness identification; there were three eye-witnesses. Lt. Shapiro decided on an unusual trial strategy.
The accused would not take the witness stand and therefore would avoid cross-examination. He would make no statement one way or the other about where he had been or what he was doing when the assault took place. Since the government’s case depended on eye-witness identification, Shapiro decided to seat another soldier, not the accused, but a friend of the accused, at the defense counsel table where the impostor remained throughout the trial. The actual accused was seated in the audience.
Each of the prosecution witnesses took the stand and gave a detailed description of the affray. Then the prosecutor, pausing for dramatic effect, asked,
"Can you identify the soldier who you say pulled a pistol and pointed it at the victim?"
Each, in turn, replied, "Yes, sir".
Then the prosecutor asked, as he always did in such cases, "If you see that soldier in the courtroom, please point to him."
And each of the witnesses pointed to the soldier seated beside Lt. Shapiro and said, "That’s him there. Sitting next to the defense counsel."
After each identification the prosecutor said, "Let the record reflect that the witness pointed to the accused."
Lt. Shapiro didn’t say anything.
After the prosecution rested, Lt. Shapiro announced that the defense had no evidence to offer, whereupon the court adjourned and promptly returned with a verdict of "guilty".
Next the president of the court asked that accused stand, calling him by name, so that the sentence could be imposed. But to almost everyone’s surprise, it was not the soldier sitting next to Shapiro who stood, but the real accused who had been sitting in the audience and who no one had identified as having done anything.
As I heard the story, the president of the court, a high ranking army officer, demanded that Lt. Shapiro explain and the clever Lieutenant -- perhaps with an attitude of something less than humility – said that since the case depended on eye-witness identification he thought he would really test the witnesses and see if they would identify the person sitting in the seat usually occupied by the accused, rather than the real accused. And, he proudly observed, he had been right. He went on to say that since the accused had not been identified by any of the witnesses, since there was no evidence upon which to base a conviction, the accused could not be sentenced.
The court adjourned in confusion. Lt. Shapiro headed for the Officer’s Club bar to celebrate.
Later that night Lt. Shapiro was himself served with charges. He was to be court-martialed for obstruction of justice. The trial was set the next day, to begin at 10:00 a.m. one hundred miles away. He had no opportunity to obtain a defense counsel for himself or to prepare a defense.
Shapiro was convicted and stripped of his commission. He was immediately drafted, assigned to an infantry division and spent the rest of the war as an enlisted man. After the war was over, Shapiro brought suit against the Army in the Court of Claims and was awarded as damages the amount of money he would have earned as a Lieutenant, had he not lost his commission, less what he had been paid as an enlisted man. I expect he also had the last laugh.
There were many cases like the Shapiro case, although probably not as dramatic. I can’t defend the trickery of Shapiro. There are other more appropriate ways to test the credibility of eye-witness identification. Shapiro would probably have been disbarred for what he did if he had been a lawyer. But neither can I approve of the way he was treated. There was certainly no justice in his own trial. He was simply the victim of a disgruntled commanding officer who had the power to punish and used it.
Because of the Shapiro case and many others, Congress passed the Uniform Code of Military Justice which went into effect in 1951. I began to study that new law at the Judge Advocate General’s School at the University of Virginia College of Law in 1952 and to implement it in Germany in 1953.
World War II ended in Europe in June 1945, and in Japan the following August. A few American generals, including Generals Patton and Le May, thought that sooner or later we would necessarily confront communist Russia. They recommended that we should continue advancing to the east until we subdued our Russian adversaries, utilizing the atomic bomb, if necessary, while it was in our exclusive possession. However, the overwhelming opinion was that we should demobilize, and we did. Within months the draft was ended and our military forces shrank to half a million. Then in 1950 North Korea attacked its neighbor to the south and we were once again at war. The draft was reinstated and the U. S. military force quickly expanded to a million and a half. Although my draft board deferred my involuntary induction so long as I made passing grades in law school, when I graduated I needed to get a commission or be drafted. Luckily, I found a place in the Army Judge Advocate General’s Corps and was one of five in my class of 120 to be ordered to Europe.
I crossed the Atlantic by troop ship and arrived in Germany in March 1953; the same week Josef Stalin died. At that time the Cold War was almost a hot war. Germany had not yet regained its sovereignty; I was a member of the Army of Occupation. World War II had ended just eight years before and the cities of Germany were still a wasteland of ruins and rubble.
I think my experience in the JAG Corps of the Army in Germany from 1953 to 1955 was unique. We were the first ones to conduct trials under the new Uniform Code of Military Justice and I participated in 168 of them, about equally divided between acting as prosecutor and defense counsel. My adventures as an Army lawyer in Europe have been collected and published in a book, which I have titled "Lieutenant, Your Cap’s on Backward!"
I picked that title because the book tells of my transformation from a 23-year-old happy-go-lucky law school graduate with no military training into an effective trial lawyer and Army officer and the sometimes humorous and interesting occurrences I encountered along the way. I expect my experiences were not unlike thousands of other Americans, in that I was successfully converted from a citizen to a soldier, but the time and place of my service and my task, implementing this new military code of justice in occupied Germany, had not been done before.
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