Warren E. Burger: Mr. Zahm, you may proceed whenever you are ready.
Nathan R. Zahm: Mr. Chief Justice, if the court please. Since these consolidated cases are hear on re-argument today, it would seem unnecessary and more expeditious to refrain from repeating the facts of the case which are undisputed and are relatively simple. Suffice to say that in a routine manner, the petitioners, members of the Marine Core were up on charges on courts-martial. Five of them were convicted and incarcerated as a result. Three others were facing courts-martial and sought relief by way of injunction to prevent it. Now, we ask this court to affirm that the Sixth Amendment guarantee of assistance of counsel in criminal prosecutions, which was this Court’s principal basis for its ruling in Argersinger versus Hamlin in 1972, also applies to persons in military service. Every Court that has ever considered the question including the Court of Military Appeals in United States v. Culp, United States versus Tempia in 1967, and more recently United States v. Alderman in 1973 has so held with the single exception, that being the Ninth Circuit in the case of Daigle v. Warner, which has petition pending here. Sub nom Crosby versus Warner. Now, the federal parties have asked this court for the first time ever to overrule the United States Court of Military Appeals on this issue, in favor of a single civilian Court’s view. Despite this Court’s repeated recognition over the years and repeated only last term, in Schlesinger versus Councilman, that Coma is the Court established by Congress to gain over time thorough familiarity with military problems. Now for this court to do would undermine the Court of Military Appeals, very significant role as the Supreme Court of the Military which has been designated to be. Now, the only basis for the Ninth Circuit’s holing on this question of the Sixth Amendment’s application to the military is based on single historical treatise, specifically Weiners’ Harvard Law Review Article in 1958. Now, this despite the fact that there was another equally authoritative historical treatise in the Harvard Law Review the preceding year by Henderson on the identical question with exactly the opposite conclusion from that reached by Weiner. But the Ninth Circuit shows to go along with Weiner. Despite the fact that the Court of Military Appeals and every other court before whom the question has been raised with both those articles presented to the courts for their consideration have chosen Henderson instead, if they chose any. Now, with regard to the reliance on history for constitutional interpretation, where the documentation is inconclusive and disputable, Mr. Chief Justice Burger, dissenting with Mr. Justice Blackmun and Mr. Justice Rehnquist, just last Term on June 30th, stated in the case of Faretta versus California. “Like Mr. Justice Blackmun I hesitate to participate in the Court’s attempt to use history to take it where legal analysis cannot, piecing together shreds of English Legal History and Early State Constitution and Statutory Provisions without a full elaboration of the context in which they occurred or any other evidence that they relied on, by the drafters of our Federal Constitution creates more questions than it answers. And hardly provides the firm foundation upon which the creation of new Constitutional Rights should rest and more pertinent. We are well reminded that this court once employed an exhaustive analysis of English and Colonial Practices regarding the right to counsel. To justify the conclusion that it was fundamental to a fair trial and less than ten years later used essentially the same material to conclude that it was not.” Compare Powell versus Alabama, and Betts v. Brady. I think that should be kept in mind when we are considering whether or not a fundamental question like this should be decided as the Ninth Circuit did on a single documentation which is in dispute. Now aside from the disputed historical documentation on the question, logic demands acceptance of the view, that the framers of the Constitution did not intent to accept the Sixth Amendment from applicability to the Military Service by silence. Because they specifically wrote in an expressed exception in the Fifth Amendment with regards to presentment or indictment of a grand jury. That is the position of the Court of Military Appeals which has considered the matter, United States versus Jacoby in 1960 and United States versus Tempia in 1967. So we do not need this historical documentation which is in dispute. Logic explains to us as the Court of Military Appeals has pointed out that if the framers intended an exception they would have done what they did with the Fifth, they would have written it in. Now, this court in Parker versus Levy in 1974 implicitly affirms the impact of Burns versus Wilson some 20 years ago. That quoting from United States versus Tempia, the protections of the constitution are available to servicemen in military trials. Now, this court in Parker held, as the Court Of Military Appeals had previously held and recognize by virtue of the Priest case that was involved in the Parker case, that the constitutional guarantees may be applied differently to servicemen where military necessity requires it. In other words, where it can be shown and the burden is on the military to show it, that it requires a somewhat different application as applied to military men than as applied to civilians. Now the Court Of Military Appeals knew that full well as they indicated by their holding in Priest with regard to the issue of the First Amendment rights there involved. And so, it is nothing new to the Court Of Military Appeals that there is such a doctrine that where military necessity requires it, the constitutional guarantees may be applied somewhat differently. But the point is that in this case which does not involve the First Amendment but involves the Sixth Amendment where the Court Of Military Appeals recognizing this concept of military necessity has considered the issue, has decided that there is no military necessity for a ruling which would deny to men in service, their Sixth Amendment Rights of assistance to counsel. I think that on this question of military necessity which the Federal Parties have led such great stress upon that the Ninth Circuit stated it most succinctly in their decision in Daigle versus Warner which is Crosby versus Warner petition pending in this court. I am quoting from the Ninth Circuit decision, “While the Navy argues with some vigor that naval discipline will suffer severely if appointed counsel are required, there is scant support if this in the record. The Army and Air Force already provide counsel to all accused before Summary courts-martial. And the Navy allows private retained counsel to participate in such proceedings. The Navy suggest that the effectiveness of a Summary courts-martial as a tool for preserving discipline and order will be undermined by the participation of counsel. If so, this must already be true as to those defendants who can afford retained counsel.” Now aside from the argument with regard to military necessity, I think this also points out that it is a refutation of the argument also made that affording counsel to men in service disrupts some Congressional Scheme which specifically according to the federal parties is designed not to provide counsel to men in service at Summary courts-martial. Now the fact is that when Congress adopted the Military Practices Act in 1968, the decision of this Court in Argersinger had not yet been rendered which was in 1972. so it is fairly clear that if Congress had known that this court considered for the first time, mind you, that petty offenses required assistance of counsel, they might have considered differently when passing that Act in 1968. And the net effect as it stands now is that yes, retained counsel by those servicemen who can afford retained counsel are permitted to have counsel at Summary courts-martial. The practical result is, that those who do not have counsel because they are not afforded counsel in Summary courts-martial are the poor, the indigent, the enlisted man of the lowest ranks who cannot afford to retain counsel. Now certainly Congress did not intend that that should be the result. That is not the congressional scheme of Congress and the fact that a counsel may be retained by a servicemen in a Summary courts-martial indicates that there is no firm scheme on the part of Congress that absolutely under no circumstances shall there be appointed counsel at Summary courts-martial. Excuse me.
Speaker: The servicemen opt out of the Summary Court and have a General Court?
Nathan R. Zahm: He may have, he may opt out and he may have instead a Special Court Martial or a General Court-Martial.
Speaker: And at which he would have counsel?
Nathan R. Zahm: At which he would not have counsel, which Congress has provided for specifically in those Courts-Martials.
Speaker: But you do not think that saves a system at all.
Nathan R. Zahm: Oh. It does not save the system at all for the reason that under this Court’s doctrine of United States versus Jackson, it is a limitation on his use of the constitutional --
Harry A. Blackmun: What if the State provides a two level criminal trial for certain kinds of crimes, and if you are charged with a certain kind of a crime you are tried in a Municipal Court or something like that. No jury trial. No jury trial but you can appeal that you are convicted and have a Trial De Novo.
Nathan R. Zahm: Yes.
Harry A. Blackmun: Now? What do you think about that?
Nathan R. Zahm: I have given matters some thought Mr. Justice Blackmun.
Harry A. Blackmun: Yeah, I thought you would. I would think you would.
Nathan R. Zahm: Yes, but because the two situations are not analogous at all in my view, for the reason that the two tier Court System provides two different trials, the man has a choice after having one trial to completely negate the result of that trial and choose to go and have another trial. But in this Summary courts-martial --
Speaker: What if a man can plead guilty? Plead guilty at the first trial and avoid that trial altogether and get his jury trial with Trial De Novo?
Nathan R. Zahm: But in Summary courts-martial set-up—
Speaker: Here he does not even have to plead guilty, he can go and have his General Court.
Nathan R. Zahm: He may go have it but he will stand the risk of much greater punishment if he does.
Harry A. Blackmun: And in my example, I gave you on the two-tier system, if you opt for the jury trial in the first instance, you face a higher penalty in some of these states systems.
Nathan R. Zahm: But at least you would have the opportunity of being found not guilty in the second trial. You are having the choice of two different trials.
Speaker: Does he have that here?
Nathan R. Zahm: You have only one opportunity for trial of any sort in the Summary courts-martial system. You are either going to take the Summary Court-martial or you are not going to have it at all --
Speaker: But if you are not a lawyer, -- But if you want a lawyer you can get it.
Nathan R. Zahm: You can get it at the risk of greater punishment which this Court in United States versus Jackson says “ is an unconstitutional limitation on your use of your Constitutional rights.
William H. Rehnquist: But in the other situation, if you want a jury, you can get it, but you have to expose your self to greater punishment. Justice White’s two tier example.
Nathan R. Zahm: In the two-tier example, as I understand it, you may have the jury trial in the first trial as a matter of fact.
Speaker: You did not get a jury trial the first tier court, and I do not think.
Nathan R. Zahm: Well I would not be too sure about that at the moment but I believe that that is the opportunity, a jury trial even at the first level, in the first court. Now the federal parties have made the point that the Court of Military Appeals was not considering this question of military necessity when they decided in United States versus Alderman with the favorable view with regard to the Sixth Amendment Right. Now, we have taken the opportunity in our brief to quote in full that portion of the brief that was presented in the Alderman Case before the Court of Military Appeals, on its entire question of military necessity. Pages 15 to 28 of our brief are directly quoted from the brief presented to the Court of Military Appeals in Alderman. This specifically indicates that that issue of military necessity was very forcefully made by the Navy before the Court of Military Appeals fully considered by the Court of Military Appeals and in their opinion, the Court of Military Appeals in Alderman flatly stated that there is no showing of burden, no showing of military necessity made out to indicate that the Sixth Amendment Right to Counsel should be deprived to men in service. Again we have cited at length and quoted at length in our brief from the Fidel Articles, Summary Courts-Martial, a proposal in 1971, pages 29 and 30 of our second brief in which, although the entire Article shows that there is no military necessity for Summary courts-martials in general, the specific is made in that Article by Fidel that the number of Summary courts-martials dropped from 64% of the total number of Courts-martials in the military in 1962 to 25% in 1969. He suggests the obvious that the reason for the drop in Summary courts-martials in those years which were pre-Alderman years, pre-Argersinger years, when as we have indicated previously since June 8, 1973, the Navy along with the Army and the Air Force has been providing counsel as a result of the Alderman decision. But prior to that time --
Warren E. Burger: In the service, when a naval person is charged, does he have an initial option to take a General Court-martial in place of a Summary, right at the time of the charge could he opt for a General Court-martial?
Nathan R. Zahm: He would be given at a very early stage upon being charged with the Summary courts-martial, he would be given the opportunity to opt but he certainly would not be opting for a General court-martial, if he was going to opt at all. Now, the only conceivable reason from a practical stand point that the man who could have a summary courts-martial without counsel would choose Special Courts-martial with the greater risk of greater punishment would be that he feels, if he is sophisticated enough and most of these men are not, that if he has a lawyer, he probably will not go to jail at all, at least he has a chance of not going to jail at all. And what he is trying to avoid which is the very thing that Argersinger with regard to civilians was all about was not to be forced to go to jail. Liberty, not to be forced to go to jail, it is the right to have counsel before your sentence to jail to have the defense of counsel of your own personal counsel which is the whole principle of Argersinger. And it should certainly apply to our men in service who have every right to be protected by the Constitution even more so perhaps because they are serving their country. And they should not be penalized because they are wearing the uniform of the United States. So, the reason given by Fidel which is the obvious one for the tremendous drop in Summary courts-martials in those years between 1962 and 69, is that in 1962, the Article 15 Provisions were so strengthened by Congress that the military commanders themselves saw that it was much more practical to give a man an Article 15 which is non-judicial punishment than to go through this procedure of a summary courts-martial. And so the basic reason for the drop in Summary courts-martials even prior to the Alderman decision which had nothing to do with the requirement of giving counsel was the Article 15 practicality that commanders saw. And there was this complete drop in summary courts-martials for that reason which is certainly strong indication of a lack of military necessity for Summary courts-martials in the first place, with or without counsel.
William H. Rehnquist: What are the differences in punishment that can be inflicted under Article 15 or company punishment or whatever you call it as opposed to a Summary court?
Nathan R. Zahm: Mr. Justice Rehnquist, in Article 15, in the Navy known as Captain’s Mask, you may be given punishment of restriction to limits, correctional custody, not confinement, and the Court of Military Appeals which has the expertise in these matters over some many years of considering this in United States versus Schramel, after the Alderman decision, specifically determined the question that the Argersinger application that was ruled necessary in Alderman does not apply to Article 15 punishment because it is non-judicial, it does not call for a conviction and there is no confinement. The man does not go to jail in an Article 15.
William H. Rehnquist: That is the first part of my question, now how about the second part?
Nathan R. Zahm: Excuse me sir. I am --
William H. Rehnquist: I said you have answered the first part of my question.
Nathan R. Zahm: What was the second question?
William H. Rehnquist: Well, to compare the punishment that can be inflicted by a Special Court with this Article 15 punishment as to outside limits.
Nathan R. Zahm: Do you mean a special or summary sir?
William H. Rehnquist: Summary.
Nathan R. Zahm: The basic difference, the most significant difference is going to jail, being incarcerated, confinement, to use the term of Argersinger, the whole point of Argersinger is that the man should not be sent to jail as a part his --
Speaker: What are the limits on the jail term of the Summary court?
Nathan R. Zahm: 30 days. Thirty days confinement.
Speaker: (Inaudible) 30 days only?
Nathan R. Zahm: The Captain’s Mask, it is not even a question of time. You are not confined, you are restrictive to base perhaps.
William H. Rehnquist: So if the Commander thought that the act involved warranted some confinement, he would not go under Article 15.
Nathan R. Zahm: If he thought it was serious enough that the man should have a conviction on his record and should have a confinement in the brig, he would not give him an Article 15.
William H. Rehnquist: Because Article 15 does not permit that?
Nathan R. Zahm: That is correct. But the point is we are speaking of minor offenses and the types of offenses for which punishment is needed out. Under both Article 15 and Summaries are of the same general type. Small matters, minor matters and as Fidel points out the commanders of military establishments have long determined that for these minor offenses the punishment is certainly sufficient under Article 15. And that it is unnecessary to go through the regular role and the formalities that exist all under Summary Courts-martial. Now it would be significant to this court to be aware.
Speaker: (Inaudible)
Nathan R. Zahm: The figures, I was just about to give you sir as obtained at special request from the Judge Advocate General’s Office, Department of the Navy, August 21, 1975, co-counsel requested the information from that source. And we have non-judicial punishment under Article 15 in 1965, a 122,660 of them as compared to Summary courts-martial of 11,152.
Speaker: Why did they choose 11,000 Summary courts?
Nathan R. Zahm: Well, I could not give you specific answer to that but I think the significance—
Speaker: There are 11,000 instances in which the authorities thought that Summary Court was appropriate.
Nathan R. Zahm: Perhaps I ought to point out, your Honor.
Speaker: Well, that means that that is right.
Nathan R. Zahm: Yes. Our position is not that Summary Courts-martial should be abolished. That is not our position. We are not trying to destroy the institution of Summary Courts-martial.
Speaker: But you are suggesting that the judgment of the Court of Military Appeals is that you can get along pretty with Article 15. You do not need this confinement possibility.
Nathan R. Zahm: The necessity for it is certainly not that great.
Speaker: No, 11,000 instances, the authorities thought that it was essential.
Nathan R. Zahm: I would grant you that point, I would emphasize the tremendous discrepancy in the number between the Article 15’s and the Summary’s. and I want to emphasize that it is not our desire before this court to seek the abolition of the Summary Courts-martial. The issue of this case and all that we are contending for is, that if you are going to have Summary courts-martial the accused should have his personal defense council as required under Argersinger and there is no reason not to apply it to the military.
Speaker: The officer is special or general, what can he, for these same crimes, what is the possibilities of the penalty?
Nathan R. Zahm: For the Special Courts-martial confinement which is what we are interested in specifically here is six months.
Speaker: Six months for the same, for exactly the same --
Nathan R. Zahm: It would be for same offense.
Speaker: Mr. Zahm, is it your position that the counsel must be a member of the bar?
Nathan R. Zahm: Absolutely not.
Speaker: How would you confine or characterize the qualifications that would be necessary?
Nathan R. Zahm: There are many instances throughout the Uniform Court of Military Justice which do not require a counsel, where counsel is required to be an attorney. Now, Judge Pence in the Daigle case pointed out that on this question of military necessity that there is no tremendous burden on the military to provide counsel because no one is saying that the counsel must be a lawyer. And we do not say that he has to be a lawyer, that is not our contention. And so, certainly as Judge Pence pointed out in the Daigle opinion, it should be the best qualified person available at the military institution. Good logic demands that. But—
Warren E. Burger: How do you identify the best possible?
Nathan R. Zahm: Well, in my brief. I do not know if I could find quickly enough but it is in the brief. The Coast Guard has an entire established guideline for determining who is best equipped to serve his counsel. Starting out with people who are present, who happen to be lawyers.
Warren E. Burger: You said the best. You meant, did you just -- someone who is qualified to help?
Nathan R. Zahm: I would say that, yes. Someone who is qualified to help, who is best qualified to help which does not mean that he has to be a lawyer, he has to have a certain degree of intelligence and good common sense and the willingness to serve a person who is accused of a crime and so forth.
Speaker: Who was the court in Summary Court-martial?
Nathan R. Zahm: In the Summary Court-martial?
Speaker: A single commissioned officer, is it not?
Nathan R. Zahm: A single commissioned officer who need not to be lawyer and generally is not. So we are not saying that the lawyer that needs to be appointed to defend the accused, I mean that the counsel should be a lawyer either. We are not making that point at all.
William H. Rehnquist: What function does the counsel serve? Let us assume a lay counsel of about equal knowledge and sophistication with the potential defendant.
Nathan R. Zahm: Even if he were poorly qualified, the greatest attribute that he has for defending that accused person is his undivided loyalty in an attempt to the best of his ability to defend him. Now that is exactly --
Speaker: What is that hand holding operation?
Nathan R. Zahm: Not a hand holding operation. He has had at least the operation to the extent of his ability to interview witnesses which the accused certainly cannot call upon the one court-martial officer who is wearing the three hats of the judge, the prosecutor, and the so-called the defense counsel because that officer as full of integrity as he may be, as fully desirous as he may be of doing his duty as Article 20 calls for, simply cannot perform the function of serving both the prosecution and the defense. You cannot --
William H. Rehnquist: Why cannot the accused interview witnesses himself?
Nathan R. Zahm: Because in many instances, it requires his interviewing such witnesses as his commanding officer, colonels --
William H. Rehnquist: But supposing that the guy is a, whatever the Naval equivalent of corporal is, and his counsel is a corporal. Certainly the accused is as capable as a corporal counsel of interviewing the commanding officer.
Nathan R. Zahm: Well, he is not the accused, he may be at the disadvantage and that is the reason why Judge Pence in Daigle said, he should be the best qualified person available, not just—
Speaker: The best qualified -- does that suggest the sailor could not say “I want my bunk mate to represent me.”
Nathan R. Zahm: If he were stupid enough to make that request rather than making --
Speaker: Should that be honored or should the commanding officer say no, he is not that qualified as the commanding officer has its duty. I want you, I am going to pick someone else, he cannot have that. They do that?
Nathan R. Zahm: Well, I would say that I do not believe that is an issue that we are trying to bring before the court by now, but I would say if that is what the man wants, this court just decided last term that if the man absolutely wants no counsel, he has a constitutional right to say “I have no counsel.”
Speaker: Do you say as follows if he wants John Jones, he is entitled to have Jones.
Nathan R. Zahm: I would say so, yes. I would say he might be stupid to want the poorest possible defense counsel but he can find when there is much better qualified to represent him.
Warren E. Burger: Then if he picks his bunk mate and his bunk mate is not very well qualified then, would you say he has made a waiver of this “best qualified standard?”
Nathan R. Zahm: In that sense he has made a waiver but certainly he has been given his constitutional right under the Sixth Amendment to write to counsel and we would be certainly satisfied with that. But I do not think that these hypotheticals would be the general rule. A man given the opportunity to have counsel at summary courts-martial is going to request the best possible counsel that he can be provided with.
William H. Rehnquist: Mr. Zahm, we do not want us or the federal judiciary to get into the determination of who is best, do you?
Nathan R. Zahm: No specific standard or guideline need be announced by this court. The manner in which Judge Pence determined in the Daigle case was to say that under Argersinger the person who was available under the circumstances to beat counsel would be sufficient depending on the circumstances. Out at sea, an outpost or whatever, who may be best qualified will differ with the circumstances. The general concept that the best qualified counsel should be made available is the one we are speaking to.
Warren E. Burger: You do not want us to say that the engine room was better than the bunkmate, do you?
Nathan R. Zahm: No, I am not asking you to say it—
Speaker: You said in to that question, or to get into that question?
Nathan R. Zahm: Not necessarily to get into that question. No.
Warren E. Burger: Your time has expired Mr. Zahm.
Nathan R. Zahm: Thank your Honor.
Warren E. Burger: Mr. Stone.
Harvey M. Stone: Mr. Chief Justice and may it please the court. The purpose of the Summary Court-martial is to exercise justice promptly for minor military offenses under a simple formal procedure. In keeping with this intended purpose, Congress made a deliberate decision to entrust the active conduct of the trial to an impartial court officer rather than an opposing counsel. This Congressional determination is entitled to great deference since this court has longed recognized, it is the constitutional role of Congress and no the courts to strike the balance between the rights of men and the armed forces and certain overwriting demands of discipline and duty. While the court has been careful to confine court-martial jurisdiction, the service connected offenses committed by servicemen, it has never struck down a deliberate Congressional provision governing military justice.
Speaker: If, am I understanding it, this really is not a trial, you used the word trial, but Congress said that it is not a trial in the constitutional sense, in the Anglo- Saxon sense of being an adversary proceeding.
Harvey M. Stone: I think that is right. I think that Congress decided that it was important to be able to use a magisterial or inquisitorial proceedings for dealing with the --
Speaker: This is the ultimate question here whether that is within -- whether that is constitutional?
Harvey M. Stone: I think that is the ultimate question.
Speaker: I mean, if it is an adversary preceding I suppose if it is akin to a civilian adversary trial then I suppose it would follow that Argersinger applies and counsel is required but if -- so the question is whether or not Congress has power under the constitution and despite the legal rights to provide that at this level, the proceeding in the military shall not be a “trial” but shall be something more akin to a continental-European criminal proceeding. Is it not the basic question?
Harvey M. Stone: I think that is the basic question and our position --
Thurgood Marshall: Even if it results in jail.
Harvey M. Stone: Even if it results in jail and the considerations that go into the analysis or whether the military has a significant interest or whether Congress reasonably concluded that the military has a significant interest in this kind of procedure plus an examination of the fairness of the procedure and what is its stake for the individual. Now this Court’s decision in Parker v. Levy also provides a framework of analysis for a case like this. There the Court recently stated that the fundamental necessity for deceit -- for obedience, and the consequent necessity for imposition of discipline may render permissible within the military that which would be constitutionally impermissible outside it. The court in Levy reaffirmed the principle that because of the unique mission of the armed forces many constitutional protections apply to servicemen in different degree. There the court held that the proper standard of review for a vagueness challenge to the UCMJ even with respect to statutes impinging on the First Amendment, is that which applies to civilian criminal statues regulating economic affairs. And we submit that these rules governing a right to counsel and civilian adversary proceeding cannot be mechanically applied to Courts-martial. Specifically labels such as incarceration and criminal prosecution do not automatically establish a right to counsel under Argersinger and related civilian cases dealing with the different system of justice. What is needed here rather is a pragmatic functional analysis of the problem and such an approach we think reveals that Congress in determining that this should be an inquisitorial kind of procedure rather than a strictly adversarial procedure has fairly and reasonably accommodated the private and governmental interest is at stake. And we emphasize first of all, that the Summary Court-martial in the form intended by Congress is a fundamentally fair procedure. A fundamental rationale underlying Argersinger and related cases was that it is grossly unfair to pit or lay accused against illegally trained prosecutor or anyone who has experience in the court room. In the Summary Court-martial of course there was no prosecutor. The only people present aside from necessary witnesses are the accused and the court officer. The manual for courts-martial which implements the code, describes the basic role of the court officer. He will thoroughly and impartially inquire into both sides of the matter and will assure that the interests of both the Government and the accused are safeguarded. The manual also contains extensive regulations requiring the court officer to play an active role in helping the accused, present his case and develop his evidence and there is no reason to assume that the court officer does not fulfill that duty. Another concern in Argersinger was the unfairness produced by the rush to justice in civilian misdemeanor courts. The Summary Court-martial presents no such problem. All justices swift the proceeding itself is dignified and orderly and there is no necessity for assembly line justice. Now if the presence of a defense counsel really improved the fairness of summary court proceedings significantly, one would expect to see a significant decline in the percentage of convictions following the Navy’s implementation of Alderman on June 8, 1973. This is not the case as our supplemental brief show on page 4. Except for the last few weeks of fiscal year 1973 ending in June 30th 1973, counsel was not provided at summary courts. During that fiscal year the conviction rate at summary courts was 95.2% and calendar year 1974 the last annual period for which final statistics were available. The percentage of convictions at summary courts was 93.6%. This figure represents a decline of only 1.6% as compared to fiscal year 1973 and of course we cannot be certain that the presence of defense counsel at summary courts has actually caused this 1.6% decline in the percentage of convictions. But even if there is a casual connection the 1.6% decline does not necessarily indicate that the presence of counsel has improved fairness or accuracy of the fact finding process. Now Argersinger by --
Speaker: The figures also show however that there was a decline in the total number of summary courts?
Harvey M. Stone: Yes there was a decline in the total number of summary courts.
William H. Rehnquist: May I suggest that with the knowledge that now in a summary court the defendant would have the right to have counsel that they were a little more careful about instituting a summary court or rather they might have turned to what is called now Article 15, you used to call it Captain’s Mask instead.
Harvey M. Stone: That is possible, it also possible that --
Speaker: These statistics, in other words are pretty blunt and they might not show the whole story, and they might not show --
Harvey M. Stone: It is hard to say with certainty what the statistics mean. There could have --their statistic show that with the new rules there was a decline in the use of summary courts and a shift towards the Article 15 on judicial punishment as well as a shift towards special cords and it is very hard to say what the—
Thurgood Marshall: I have great trouble with the statistics, you just take that one year and how long has it been going on?
Harvey M. Stone: Well the statistics—
Thurgood Marshall: You just picked out the last year, did you not?
Harvey M. Stone: We picked out the last annual year for which statistics are available.
Thurgood Marshall: How about the years before?
Harvey M. Stone: The year before represents approximately the same plan.
Thurgood Marshall: Do you know how many that were here before.
Harvey M. Stone: No, I think our supplemental brief has a breakdown of the statistics.
Speaker: I think you shared the first full year of change and the last full year previous to that.
Harvey M. Stone: It is in the supplemental brief, where is that? On page 4.
Thurgood Marshall: I think you have -- these courts were --
Harvey M. Stone: The year before that revealed a percentage of convictions that showed a slightly lesser decline. So we picked out statistics that were—
Thurgood Marshall: How many years are you using as your normal?
Harvey M. Stone: We are using one year, the year before the new rules compared to the last final year for which statistics available can relate it. The trend reflects the same pattern that we show here. We could have picked the year immediately after the new rule that would have been slightly more favorable to us. But we took the last final year for which statistics were available---
Thurgood Marshall: Well, I submit that I have never heard of anything like it before in my life. If you want to show a norm, you take a series of years, do not just take that last year. I mean maybe the year before, nobody had went to the past. Nobody has a Special Court.
Harvey M. Stone: The year before Calendar year 1974, shows that the percentage of convictions was down just slightly more than the year before the new rules began. The year that we picked out show statistics that are unfavorable to us because they show more of an increase in the difference between the two. And that is why we picked that out, to avoid the complaint that we are picking out the year that is most favorable to us. We picked out the year that was least favorable to us in that sense. Now Argersinger by contrast seems to have been premised on the notion that the presence of defense counsel and civilian criminal prosecutions would help the accused in a major percentage of cases. Indeed at one point at page 36, the court referred to a study which concluded that misdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as our defendants who face similar charges without counsel. What is now turned to the military --
Speaker: Argersinger was derived form Gideon v. Wainwright which was based upon the principle that basically that in order to make the sides even, the defendant had to be represented by a counsel. This was based up hypothesis upon a model of Anglo-American trial with the judge sitting on the bench and with a prosecutor, with the defendant over here. If the judge was a lawyer and the prosecutor was a lawyer and the defendant was on counsel, it was just a triangle of you will it was going to fall on its face.
Harvey M. Stone: That is part of our basic point. Argersinger was—
William H. Rehnquist: It begins with a hypothesis if a person on the bench is not a lawyer, no prosecutor at all and the person on the bench whose job is to sit on the bench as well as represent this side as well as to represent that side and not a single one. Nobody in the room was a lawyer; you begin with an entirely different given factual environment of context, do you not?
Harvey M. Stone: Yes, it is a different system. And Argersinger was premised on the notion that there had to be an evenness in representation, it was unfair to have an accused who was opposed by someone who was trained in the court even if he was not a legally trained prosecutor, our point that this system is it is a balanced procedure. And indeed the injection of defense counsel onto these proceedings the argument might be made, distorts the previous balance and could even, assuming that there is still no prosecutor which there is not at this point could even prompt the court officer into a prosecutorial role. He may be thinking that he should protect the prosecution now more than the defense since the defense is already represented by a lawyer.
Thurgood Marshall: Under what you just told us is in the Court Martial Manual, said he cannot do it.
Harvey M. Stone: He is not supposed to do that.
Thurgood Marshall: Well, I thought you said he could under the Court-Martial Manual.
Harvey M. Stone: He is supposed to represent the interest of both sides but there have been cases that held that -- but you have a system in which you have a defense counsel representing the defendant and you have a judge who was supposed to be judge and prosecutor that can present problems. I am not saying that the Summary Court-martial was unfair as its structure today, I think it was fairer the way it was before, I am just saying it would not be surprising to see claims made. That the proceedings are now not properly balanced because of the presence of defense counsel and it is not, I think that claim is no less persuasive than the claim made today, that it is not fair and the result of that could be some judicial rule that prosecutors also be required at Summary Courts-Martial and then you would really have a strictly adversary—
William H. Rehnquist: The Government is not entitled to due process at law, is it?
Harvey M. Stone: No, but I am just taking the analysis one step further to show that it is unwise to start requiring a defense counsel in here because the basic point of the Summary Court is that its originally a balanced procedure and I am anticipating claims by defendants perhaps in the future that could be made.
William H. Rehnquist: Anyone can anticipate the plan of the -- that the court, that the judge should be a lawyer. There is no attack made -- as I understand it, as I understood Mr. Zahm, orally and also in his brief, there is no attack made in this case upon the constitutional validity of a Summary Court-martial as such, do you understand like wise?
Harvey M. Stone: His attack is that the defendant needs a counsel.
Speaker: Well, do you understand that there is no attack on the Summary Court-martial as such?
Harvey M. Stone: That is correct.
Speaker: That is my understanding. But one certainly could anticipate that there might be one. We have a case in which we grant a certiorari to be heard later this term involving an attack upon the constitutional validity of an Ordinary Civilian Court, the judge of which is not a lawyer.
Harvey M. Stone: Well, I will say this about The Summary Court Officer, he does have training, legal training and that he is experienced in these matters. He is not a lawyer, that is if --
Speaker: Every ship in the Navy carries an 0fficer like that?
Harvey M. Stone: Every ship?
William H. Rehnquist: Yes.
Harvey M. Stone: They are on ships. They were officers able who can conduct Summary Courts.
Speaker: Okay. In other words, if you have a rather small commissioned vessel in the United States Navy, let us say submarine chaser with not more than five officers, would it have to have one who has had this special training?
Harvey M. Stone: Well, the rules that are in effect now only make room for military exigencies and what is reasonably available. But I cannot say that on every ship that a Summary Court Martial, there will be a Summary Court-martial officer who necessarily has that training. I just think so. The Article 15 however is used on a ship, perhaps for that reason and an accused cannot even refuse on Article 15 on a ship.
Speaker: And you not only the problem with respects to ships but there are military outpost -- all over the world without power units.
Harvey M. Stone: There are man power problems which—
Speaker: I am addressing the point you made that the Summary Court officer had to have some legal training. That can be true, can it Mr. Stone?
Harvey M. Stone: He is not required to have legal training but as a practical matter he has to be familiar with this system and he is given books which he has to study, Trial Guides --
Speaker: This is not a manual?
Harvey M. Stone: Manual? This is not equivalent to Law School. But he has to become experienced with this system and he receives some training, it has to study this books and discuss the process before he conducts the court. I wanted to turn to the military interest in eliminating the requirement of defense counsel at Summary Court-Martial which is -- our main argument here is really not the man power problem but something quite different. The military does obviously have a special interest in prompt and formal methods of discipline for minor offenses, like Article 15 proceedings. The Summary Court is designed to regulate a vastly greater proportion of the service man’s life and would be subject to regulation in civilian society. The purpose of the Summary Court is not only to deter misconduct but also to instill a positive sense of discipline and to return the accused quickly to his military duties. These aspects of the Summary Court reflect this special relationship of the Government to its servicemen described in Parker v. Levy. Unlike the civilian situation the Court stated the Government is often a employer, landlord, provisioner and law giver rolled into one. The presence of defense counsel who is bound by professional duty to develop every argument favorable to its client as to what are the purposes of Summary Court-martials in several ways. First of all, it formalizes and rigidifies the proceedings. And—
Warren E. Burger: The claim was not for a professionally trained lawyer but for a bunk mate or what was times in the old days called next friend?
Harvey M. Stone: I think, I understand Mr. Zahm’s claim to include something slightly more than that, that he wants a --
Warren E. Burger: You said the man can pick anything, anyone he wanted?
Harvey M. Stone: He can pick anyone he wanted but if he wants someone with some reasonable training he may be entitled to have -- representation by some officer who has some experience in this system. As the systems operates now, the military has simply been providing lawyers if they are available and if not other people who have training in the system. My most important concern with respect to the military interest here is that the presence of defense counsel has apparently caused substantial delay in the disposition of charges and thus counter act that the Congressional objective of swift reaction to minor offenses. As we show on page 4 of our supplemental brief and again the figures are not conclusive, they merely tend to support our point. The presence of defense counsel has coincided with the marked increased in the average time span between referral of charges and final review. And it may be that the factors other that the presence defense counsel has added to this delay. But it seems reasonable to infer that the presence of defense counsel has been the main cause of the delay.
Speaker: I cannot remember the last argument as well as I should. What is the controversy here now between this people and the military? All the services now have their furnished counsel.
Harvey M. Stone: Following Alderman they provide counsel because there are bound by Alderman at this point.
Speaker: The Air Force did it before the Alderman, did it not?
Harvey M. Stone: The Air Force did even then and this is something that the Court of Military Appeals relied on as we --
William H. Rehnquist: When you look at these particular parties, what controversy do they still have with the services? Do they still have a sentence to serve or?
Harvey M. Stone: No they have competed their sentence but when they came in to the District Court they were still in confinement and what is at stake for them is a back pay and a conviction.
William H. Rehnquist: Back pay? So that is still a real controversy.
Harvey M. Stone: Well in our view, the case is not moot because of the fact that they came in to the District Court when they were still is confinement under Kourafas. And it would be very --
Speaker: That was habeas, was not it?
Harvey M. Stone: The Holding in cora fus that I refer to was that if you enter the District Court and you are in confinement, jurisdiction of the court does not terminate simply because the custody terminates. And these people we are talking about a system in which people are sentenced to very short periods of confinement. And very quickly they are going to be released from confinement and on that basis it is very difficult to the court.
Speaker: If all the services adopt to this regulation for the future, what does the service that you are representing United States here?
Harvey M. Stone: Right, the services only adopted these regulations because they are bound by Alderman, if the Government wins this case the Army and the Navy are going to resent their regulations.
Speaker: That was never said in the argument the last time but that is --
Harvey M. Stone: Yes, in the beginning of Mr. Froy's argument last time we said the navy is going to resent. Subsequently we found out that the Army is going to resent and I think that is very --
William H. Rehnquist: Who has said that? Besides the lawyer there are some statement --
Harvey M. Stone: Yes. I am advised from the Judge Advocate General of the Navy who communicated with Judge Advocate General of the Army that that is going to happen.
Thurgood Marshall: You really want us to overrule Court of Appeals?
Harvey M. Stone: We do because it conflicts with the Congressional Judgment.
Thurgood Marshall: (Inaudible)doing it, have you? You could just as easy follow it.
Harvey M. Stone: No, it is important for the Military that we not follow it because it has diminished the utility of these procedures. It has increased the time for the disposition of charges by something like --
Thurgood Marshall: Well, have you lost any wars as a result of it, no?
Harvey M. Stone: No, but that is not the problem. We could -- anything that affects military discipline and under well recognized principles, a delay in the imposition of punishment can lessen the corrective impact of punishment. We are talking ultimately about the Army's preparedness to fight or be ready to fight war should the occasion arise. That is what this court has always defined as the primary task of the Armed Forces. And when we are talking about matters of military discipline. This is what we are talking about and that is why the Congressional judgment is entitled to such deference in these matters.
Speaker: The decision of the Court of Military Appeals in Alderman?
Harvey M. Stone: No, we could not come directly.
Speaker: So the only way you got here is because this sailor went into the Federal Courts, Civil Courts.
Harvey M. Stone: That is right.
Speaker: That is the only way he would. Is there any way the government could have us reviewed, the Court of Military Appeals, right?
Harvey M. Stone: Direct, yes. A decision which --
Speaker: I mean principle --.
Speaker: The Government can never initiate a review.
Harvey M. Stone: The Government can initiate a review if id has lost in the Court of Military Appeals.
Speaker: If the military back pay I suppose be sued in the Court of Claims.
Harvey M. Stone: Yes, it could possibly come up indirectly through some fashion like that which we have no control over. But if I may talk about Alderman for a minute --.
Speaker: I gather this is why you are not anxious to urge -- as you always have, I gather -- (Inaudible) types of cases, a necessity for exhaustion of Military Remedies under 69.
Harvey M. Stone: And we think they are very exceptional circumstances --
Speaker: But you argued that here and we agreed with you and did not reach this. And then you could not come here to the Court of Military Appeals because I assume they would follow Alderman if you went up to '69 movement.
Harvey M. Stone: Right but in our supplemental brief we set out our argument why there are various special circumstances—
Speaker: Well I have just been curious because ordinarily when you are here the Military is always arguing that the first of the exhaustion of military—
Harvey M. Stone: Here our decision not towards exhaustion was based on the record in this case primarily. The added delay in imposition of punishment which averages out now to about a 13 day additional period comparing the year before Alderman to the current year is a very damaging to military interests, primarily it renders the Summary Court-martial in more cumbersome procedure and prevents the Government from imposing punishment quickly. But it also the 13 day period of unresolved charges can be a damaging, can have a adverse psychological effect on the accused and in some instances, it can render him temporarily ineligible for transfer or security clearance and that is another consideration. That ultimately has to do with the Army’s preparedness to fight wars. The decline of the use of Summary courts has been causing a proportional shift towards other procedures and to that extent we suggest that the diminished utility of Summary Courts has upset the entire system of Military Justice designed by Congress. And the Summary Court-martial fills an important gap between the Article 15 non-judicial punishment proceeding below it and the Special Court-martial above it. It is an option that is advantageous to both the Government and sometimes to the accused. The Government might want to convene a Summary court if previous Article 15 proceedings have failed to generate obedience over a particular accused. The accused might want a Summary Court if he has had run-ins with his Commanding Officer in Article 15 and he may prefer this kind of procedure.
Thurgood Marshall: In Article 15 there is only one officer, is it not?
Harvey M. Stone: The Commanding Officer imposes punishment but—
Thurgood Marshall: There is only one officer. And in the Special Court, it is one officer?
Harvey M. Stone: Right.
Thurgood Marshall: And in the Captain’s Mask you cannot give any time.
Harvey M. Stone: You can get something called Correctional Custody. But the point of the Summary Court-martial and why it would be used—
Thurgood Marshall: In a Captain’s Mask understand you cannot put him in the brig, am I right or wrong?
Harvey M. Stone: Except on ships. You can put him in the brig for three days.
Thurgood Marshall: Alright. But you can not --
Harvey M. Stone: But you cannot generally.
Thurgood Marshall: You cannot give him six months.
Harvey M. Stone: No, you cannott give him any confinement.
Harry A. Blackmun: The only way to give him six months is to give him a Special Court. And Special Court could be the captain again, couldn’t it? It just has to be an officer. So there must have been some reason for making this Special Court able to give time. It must have been more due process, I would assume and it develops it is no more due process than the Captain’s Mask.
Harvey M. Stone: I do not follow that the Special Court has no more Due Process the Special Court is a entirely different procedure.
Thurgood Marshall: No, I mean the Summary Court.
Harvey M. Stone: It is more Due Process but there is the Captain’s Mask, the Commanding Officer has enormous discretion, he can listen to the various witnesses and impose a Summary punishment and in the Summary Court the Court Officer has bound by regulations, protect the interest, their formal rules of evidence, he has reasonable doubts standard. He is an impartial fact finding officer and because of that he is able to impose greater penalties could be imposed. In Article 15 proceeding that is the basic progression here shows that with each tier within the Military Justice System and there are four tiers as you go higher up, the procedures become more elaborate and the punishments authorized are more severe.
Thurgood Marshall: It given us all other statistics. How much time does the second tier to take?
Harvey M. Stone: Summary Court?
Thurgood Marshall: Yeah. Usually if you have given this all other to the—
Harvey M. Stone: Before Alderman from referral of charges to final review it took 32.5 days.
Thurgood Marshall: No I mean the hearing itself.
Harvey M. Stone: The hearing itself is relatively short but punishment cannot be imposed.
Thurgood Marshall: Is not it about the saying of the Captain's Mask?
Harvey M. Stone: Probably not too much different in the hearing itself but the whole the process takes more time and punishment cannot be imposed until final review is completed. I think my time has expired.
Speaker: Let me ask getting back to this question of exhaustion or Administrative Remedies I read what you had to say in your Supplemental Brief filed support in a memorandum filed October 30 and in there, there is a reference to supplemental memorandum. As I understand it, filed by your brother, I do not have a copy of that and last time I checked with the Clerks Office it has not been filed. Perhaps Mr. Zahm could be more helpful and you refered to it on footnote 9 on page 10 of your Supplemental Memorandum, I have not seen it yet.
Harvey M. Stone: Our Supplemental Memorandum here, part of it was written in response to their Supplemental Memorandum.
Speaker: Which I have not seen. Perhaps the fault of our Clerks Office but this was filed, was it? That was filed some six weeks ago and I should certainly hope that the members of this Court have read that Memorandum.
Speaker: I have not read it and I do not have it. I have the Government’s answer to it. But I do not have anything else.
Harvey M. Stone: I would certainly recommend that you read it.
Warren E. Burger: Before you leave, you can help with the Clerks Office and if it does not show that it was logged in to the Court then will you provide the same number of copies as you thought you have filed in the first place.
Harvey M. Stone: I certainly will. Thank you, your Honor.
Warren E. Burger: Thank you gentlemen. The case is submitted.