ARTICLE 32 HEARING TRANSCRIPTS
July 13, 1970: Discussion
(The hearing reconvened at 0954 hours, 13 July 1970.)
COL ROCK: The hearing will come to order. Let the record reflect that those parties who were present at the closing of last Friday are currently here in the hearing room. At this time I would like to present counsel for the both the government and the accused with the completed testimony of Government Witnesses Carolyn Landen and First Lieutenant Joseph Loy Paulk. I hand a copy to each of the counsel. At this time does counsel for the government have information to present to the investigating officer?
CPT SOMERS: Yes, it does, sir. We present to the investigating officer as Government Exhibit 5, a copy of the appeal to Third Army of the availability of Captain Thompson for the defense, and the endorsement from Third Army denying that appeal. We also present a copy of a letter to Captain Thompson signed by General Flanagan appointing him to represent the government at the Article 32 proceedings.
COL ROCK: This will be Exhibit 6.
CPT SOMERS: Further, we would like to at this time present the originals of this appeal paperwork to counsel for the defense. The record should reflect that Captain Thompson is present in the hearing room.
COL ROCK: Did counsel for the accused have some statement?
MR. EISMAN: This is the first notice we have received that our request has been denied through regular Army channels of this. Because of the serious nature of this offense, because of the fact that it is our indicating that Captain Thompson had information which referred to the defense in this case prior to his being appointed as prosecution counsel, we feel it necessary to appeal this decision to the Court of Military Appeals, since it has now exhausted military channels. We would ask that Captain Thompson not be permitted to participate in these proceedings until our appeals are finally exhausted within the military and at this point, they are not exhausted. This is merely the Third Army administrative decision which we have an absolute right to appeal to the Court of Military Appeals. Until that appeal is exhausted, because of the serious nature of this and because of the fact we requested Captain Thompson and certain information was supplied to Captain Thompson before he was made available to the prosecution, we would therefore ask time to appeal this to the court of Military Appeals.
CPT BEALE: Mr. Eisman, strictly speaking from a legal standpoint the Manual does provide that you have a right to appeal an adverse decision at this level to the next higher level which happens, in this case, to be the Commanding General of Third Army, and his decision apparently was adverse to your position. Now certainly you are not precluded from appealing this decision to any court you might care to, but in the meantime, the law does provide that Colonel Rock may proceed with the Article 32 investigation and that this is exactly what he will do. So you may certainly have leave of this Article 32 investigation to file any papers you care to, but in the meantime we will proceed with the investigation and Captain Thompson will be permitted to sit in here.
COL ROCK: Captain Thompson, are you certified in accordance with Article 27(b) of the Uniform Code of Military Justice?
CPT THOMPSON: I am, Colonel Rock.
MR. EISMAN: The only thing that might arise is that if we receive a favorable opinion from the Court of Military Appeals I think this entire proceeding might be vitiated by that action by the position that Captain Thompson did work on behalf of the defense, prior to, or did have information from the defense prior to his acting as prosecution counsel, that these entire proceedings might be vitiated and instead of expediting the proceedings, they would have to be held from the beginning and therefore causing much greater delay.
CPT BEALE: Of course these hearings would be bound by any decision by the Court of Military Appeals, but until such time such a decision is rendered, the hearing will proceed.
COL ROCK: Is counsel for the government prepared with the next witness?
CPT THOMPSON: May it please the investigating officer, at this time we would like to have the following three documents marked as appropriate government exhibits and entered into record.
(Reporter marked Government Exhibits 7, 8 and 9.)
COL ROCK: Captain Somers, you recall my original instruction when the investigation first opened, that I wanted one individual from counsel for the accused and counsel for the government to act in order to simplify the proceedings. Is Captain Thompson now to act and speak for the government?
CPT SOMERS: Sir, in any given witness, it will be just one counsel.
COL ROCK: That was not my instructions. I want to have one individual to--to be carrying the case for either the government or the other side, except wherein someone is physically not available.
CPT SOMERS: Sir, I think it is clear that the defense has not proceeded that way.
COL ROCK: I beg to differ with you. The defense has proceeded that way. Mr. Segal was presenting the case for the accused until his departure for England at which time Mr. Eisman has taken over in his absence.
CPT SOMERS: Sir, in view of the number of witnesses and the complexity of the prosecution's case we beg the leave of the investigating officer to proceed with either counsel so long as that counsel, and only that counsel, addresses himself to any given issue.
COL ROCK: I wish to adhere to my original ruling, counsel, and if you will please determine who will present the case for the government. In the absence of the other one, I would prefer to have one counsel presenting the case, the evidence.
CPT SOMERS: Sir, at this point I would request a ten minute recess.
COL ROCK: Request granted.
(The hearing recessed at 1003 hours, 13 July 1970.)
(The hearing reopened at 1016 hours, 13 July 1970.)
COL ROCK: The hearing will come to order. Let the record reflect that those persons who were present at the recess are now present in the hearing room. Proceed, counsel.
CPT SOMERS: Sir, at this time I'd like to refer to page two of the record as it now stands.
Your ruling at that time was "I would like to request that one counsel for the accused speak on behalf of the accused in any questioning of witnesses or presenting evidence for the accused." Now obviously I have misinterpreted this ruling because I interpret it to mean that only one could speak at any given time on any issue. The next sentence reads "If a deviation from this procedure is required, please address your request to me." First, sir, before I go further I would like to request of the investigating officer a clarification as to what is meant by the absence of the--or the presence of counsel; whether you meant that the man is not present at Fort Bragg or in the hearing room or just exactly what do you mean by that?
COL ROCK: If counsel is not physically present at Fort Bragg because he is called away because of other duties, then I think it is logical to have a second counsel speak in order that we can continue with the proceedings; but object of having one counsel to represent, or to present the information from both sides is in order that I can imply look to one individual for the facts so that we can progress in what I consider to be a more orderly and logical fashion.
CPT SOMERS: Sir, if I may then, the appointing authority of this Article 32, General Flanagan has appointed Captain Thompson as another counsel to represent the Government. I may, I would hazard that this was done because of the complexity of this case and the number of witnesses involved. It is difficult in the extreme to coordinate the number of witness, and the testimony of a number of witnesses, to present a logical order. For this reason it is very desirable insofar as the government is concerned that either of the two appointed counsel for the government be permitted to speak on any given subject or issue. Now, I understand that there is no excuse nor need for two counsels to be on their feet at any given time or even to address themselves to any given issue. For that reason we specifically request a deviation from the procedure whereby the counsel for government or for defense may represent either party here to speak for him on any given issue or any given witness. It works an extreme hardship on the government not to be able to do this, and we earnestly request that you consider this request for a deviation and grant it.
MR. EISMAN: If I may speak on this subject. We have been appealing the appointment of Captain Thompson throughout the proceedings. I find it quite shocking to learn that the prosecutors had decided in advance that our appeal would be denied. This smacks of something that they possibly knew something that we didn't know about our appeal, but if this appeal was handled in good faith through Third Army, a final decision could not have been made until July the 8th when this order was finally made, and therefore had Captain Thompson been acting for the prosecution in the meantime, he was acting at his hazard, at the hazard of the prosecution. He should not have been preparing the case until July the 8th. There was a question whether or not he would be permitted to participate in it. Having so acted as its hazard, I feel that the prosecution should not be granted the extra added advantage of having someone who, up until Friday, should not have had; and secondly, the imbalance, since Mr. Segal requested that the matter be continued so that he could continue as the defense, and that when the investigating officer would not continue the matter for that reason, it fell upon my shoulders to represent Captain MacDonald and go forward. And so on the other hand there is no hardship on the government to proceed in the same manner in which they are proceeding. Had Mr. Segal not been absent he would have conducted the hearing throughout and we would have preferred it, but at this point, I don't think that we can make a fish of one and a fowl of the other. If we are going to now permit the government to deviate from this norm then I would ask for a recess until Mr. Segal returns so that he can conduct and act in the hearing.
COL ROCK: Reference the request of the government, your arguments have been noted. My original ruling stands in that effect. However, this does mean that Captain Thompson is a full member of your team and the remarks reference the counsel for the accused about his request asking that the hearing be delayed until such time as Mr. Segal returns, let the record reflect that with the consent of the accused and Mr. Segal, Mr. Segal was excused and I see no new factors that would preclude holding the hearing up at the present time.
Which individual will counsel for the government have continue to present the case?
CPT SOMERS: Sir, if I may, the government would ask for a recess to appeal your ruling to General Flanagan.
COL ROCK: Captain Thompson, of course, as a member of counsel for the government does have the authority to present the evidence and is a full member in standing as counsel for the government. So there is no question about his ability to be able to present the evidence, if it is desired that he be the individual in the absence, of course, of Captain Somers. Your request for a recess--how long do you think this will take?
CPT SOMERS: One hour, sir.
MR. EISMAN: I'm going to object to--at this point--to any appeal to General Flanagan. If this hearing is being conducting under the guise of a free and open, or at least a fair hearing to the accused, an adversary position where the investigating officer is the person who makes a decision as to the conducting of this hearing, then it would be a sham to permit someone else to make the decision so far as the conducting of this hearing, and I would strenuously object to any outside being brought to bear in the conduct of this hearing at this point. The--if the prosecution continues to do this, I would ask for an indefinite recess so that we may start action in appropriate courts to--to terminate the entire proceedings. But at this point, to have someone dictating to this--to this authority as to the conduct of the actual hearing itself, I think would be a great disservice to what we are hoping to be some form of military justice.
COL ROCK: Counsel, the evidence will continue to be heard at this time. At the break, or you may use your assistant to make whatever appeals you feel would be appropriate, but the case will continue to be heard at this time.
CPT SOMERS: At this time, then, sir, I then shall present the case myself.
COL ROCK: All right.
CPT SOMERS: While I am at it, the witnesses Major Straub and Specialist Newman who testified Friday did make written statements. Now this slipped my mind, but I do have the written statement and I am willing to offer them to the Article 32 officer if he would like.
COL ROCK: Yes, I would like--Major Straub's will be Number 10, and the next one is who? Specialist Newman?
CPT SOMERS: Yes, sir.
COL ROCK: This will be 11.
(Exhibits 7, 8, 9, 10, and 11 for the government were shown to counsel for the accused and handed to the investigating officer.)
MR. EISMAN: At this time we have no objection to the exhibits, subject to the condition that they prove as far as the chain of custody at the appropriate time, by the prosecution.
CPT BEALE: I presume Captain Somers, that you are going to use this as a basis for your expert witness before the court, is that correct?
CPT SOMERS: I am, yes; however, that a full chain of custody is not intended to be presented by the government because it is not necessary in an Article 32 proceedings. We do intend to give a general idea of how the exhibits were collected and by whom and who examined these exhibits and who did the work on them.
CPT BEALE: Well, Captain Somers, I think that probably initially you will be permitted to use these documents; certainly, as you noted, at an Article 32 investigation the rules of evidence are not that stringently applied. So therefore, they will come in. However, if Colonel Rock deems in his own opinion that these particular documents do need some edification from other witnesses at a later time then he will so require it. But at this present stage they will be received and considered by the Article 32 officer. Does that answer your question, Mr. Eisman?
MR. EISMAN: Yes.
CPT SOMERS: The record, I think, should reflect, Mr. Investigating Officer, that a copy of each of these exhibits was presented to the defense on the 26th of June so they do have copies of these exhibits.