Evening star. [volume] (Washington, D.C.) 1854-1972, 1963-07-07

Staffs which may reVolution1ze
the military justice procedure
for special ourts-martial.
Pvt. Edwin L. CUP claims
that his constitutional rights
to a fair military criminal pro-
ceeding under the Sixth
Amendment were violated in a
special court-martial because he
was not represented by a law
yer but by lay counsel when
he pleaded guilty to larceny.
His argument, which was up
held by the Navy Board of Re-
view and is now in front Of
the Court of Military Appeals,
is considered to be of such far
reaching Importance to the
armed forces that the Judge
Advocate General Of the Army
and the Air Force have filed
supplementary briefs asking for
reversal.
The American Civil Liberties
Union filed a brief in sup
port of Pvt. Culp.
InsurmOuntabIe Problems
Military legal authorities be-
Neve a decision in favor of the
Marine would pose almost in
surmountable problems under
the present system Of military
justice.
If a lawyer is required as
defense counsel, some military
lawyers say, then the prose-
cution and the three Judge spe-
cial court-martial board would
also have to be lawyers.
Lawyers are generally en-
ployed only In general courts
martial. The Judge Advocate
General of the Army has 100
attorneys in uniform, the Navy
about $50 and the Air Force
about 1875. These lawyers are
now fully occupied and only a
few Of them could be spared
for special court-martial work.
Last year, the Army held
$4,000 special courts-martial,
the Navy held $4,000 and the
Air Force held 5000.
Normally, the defense, the
prosecution and the board are
laymen in special courts-mar-
tial.
Attacks Separate Standard
Perhaps the most far reach
ing effect Of Pvt. Cups case
is that it strikes at the heart
of the entire philosophy be-
hind military justice in this
country which, although sub
Scribing to Substantial stand
ards Of fairness and due proc
ess," has always been con-
sidered separate and apart
from civilian criminal trial
procedure.
Special courts-martial try
what would be considered in
civilian law misdemeanors and
minor felonies. The court can
impose a maximum sentence OF
six months in custody, loss Of
pay, loss of rank and bad con-
duct discharge.
General courtS-martial try
more serious offenses and car
mete sentences up to life ir
prison or death. In a general
court = martial, the defense,
prosecution and judges are at
torneyS.
Pvt. CUP, 20, was convicted
February 4 on six charges of
larceny totaling $3.50 at the
cambridge, Md, Navy base.
After consulting with his lay
counsel, he pleaded guilty and
was given a bad conduct dis
charge, four months confine-
ment at hard labor and a $50
a month forfeiture in pay.
He appealed to the Navy
Board Of Review which upheld
his contention that the Sixth
Amendment applies to special
courts-martial.
The Sixth Amendment
states: "In all criminal pros
ecutions, the accused shall en-
Joy the right to have the
assistance of counsel for his
defense"
Marine 1t. Col. John L.
Ostby, Pvt. Cups appeal law
yer, argued that the protection
should extend to special courts
martial, not only in the actual
defense after a not guilty plea,
but, also to provide legally
trained counsel to advise be-
forehand on the plea.
Gives Constitutional View
Navy Comdr. Benjamin H
Berry, who argued the Nays
case, answered that the Con-
gress shall have the power
Stitution specifically gave to
Congress the complete power
to arrange military justice.
He relied on Article I, Sec
ton 8, Clause IA: THE Con-
3. to make rules for the gov
eminent and regulation of the
land and naval forces"
Comdr. Berry conceeds that
principles of due process
must be followed In military
trials under congressional law.
He argues that Congress has
been reasonable in not insist
ing on lawyers for special
courts-martial and that the
court will not invade congress
sional discretion where it Il
properly exercised.
Special courts-martial now
use the highly technical Fed.
eral Rules of Criminal Proce.
dure rules Of evidence, the same
ones used in the Federal Courts