Earl Warren: Number 619, Chester E.Jackson, Petitioner versus John C. Taylor, Acting Warden in United States Penitentiary. And Number 620, Harriel L. Fowler, Petitioner versus Frederick H. Wilkinson, Warden in the United States Penitentiary, Atlanta, Georgia. Mr. Van Susteren.
Urban P. Van Susteren: May it please the Court. This case is here on writ of certiorari to the Court of Appeals for the Third Circuit. The case originally arose as a petition for a writ of habeas corpus directed to the warden as a Lewisburg Penitentiary that petition for writ of habeas corpus was brought before the District Court for the Middle District of Pennsylvania. On May 7, 1956, the Board -- the Court of Appeals announced its decision refusing to grant the writ of habeas corpus and free the prisoner, and this Court has granted certiorari. The fact of the case of brief is this. Petitioner Jackson and the another soldier, named Fowler, who is the petitioner under case Number 620, together with another soldier named De Coster were brought to trial before a court-martial was convened in Korea on June 8, 1951. There, they were charged in with two counts. First, premeditated murder and second, rape. The Court found the defendant, all three of them in a joint trial, guilty of murder and not guilty of rape but guilty of attempted rape. Thereupon, the Law Officer of the Court advised the Court that the minimum sentence was life imprisonment and the maximum sentence was death. We have no quarrel with the fact that the instruction is given to those outside of the directions contained in the manual for court-martial. It is only incidentally of some importance. The Court picked the sentence, life imprisonment. There was no sentence, separate sentence of any kind for the attempted rape. It was just the one gross sentence. Thereafter, the sentence was and the findings of guilty were reviewed by the Commanding General for Korean area, a proper person and they were approved in full sentence and the findings of guilty. And thereafter, a routine vastly came before the Board of Review in the Office of the -- the Judge Advocate General of the Army. The Board of Review found that the record failed to show any evidence that the activities that these three soldiers was in any way connected with the death of the woman. And thereupon, it held that the murder charge should be set aside, but the attempted rape charged for conviction was sustained. But instead of setting aside the entire penalty, in ordering a new trial, the Board of Review conceived its authority or its proper function to be that it should make then and there an initial determination of what the sentence should be. The opinion as it is written, indicates that that Board of Review felt that it should determine what is an appropriate sentence, but in the order part of the -- of the decision, it says that the sentence -- that so much of the sentence had exceeds 20 years, which is the maximum for attempted rape shall be set aside or take that so much of the life imprisonment sentence as it exceeds 20 years is excessive and shall be set aside and the other 20 years shall be affirmed.
Felix Frankfurter: Do I understand your only complaint is regarding the -- the impropriety of the sentence? Is that right?
Urban P. Van Susteren: The -- the -- quite that, sir. The complaint is that the Board of Review had no authority or power to make that sentence. It was limited to authority to return it for rehearing under these circumstances.
Felix Frankfurter: A rehearing of what?
Urban P. Van Susteren: On the proper sentence.
Felix Frankfurter: On the proper sentence?
Urban P. Van Susteren: Yes.
Felix Frankfurter: That is the -- the original court-martial would be reconvened for an imposition of sentence, is that it?
Urban P. Van Susteren: The law -- the law -- the code – the Uniform Code of Military Justice provide that a rehearing shall be conducted before a Board composed of officers, not members of the trial.
Felix Frankfurter: I'm not talking about the Board of Review, but if -- if you prevail, what would happen?
Urban P. Van Susteren: The -- it will be referred for a new trial or a rehearing before a new court-martial with none of the same officers of that hearing.
Felix Frankfurter: A rehearing of -- a rehearing of what, the merits? He'd be retried before the court-martial?
Urban P. Van Susteren: No, only as to sentence.
Felix Frankfurter: With a new court-martial.
Urban P. Van Susteren: With a new court-martial.
Felix Frankfurter: Is that -- would you mind telling me what the Code provision is as to that?
Urban P. Van Susteren: The Code provision isn't specific on the subject. It speaks of a rehearing, and then, it doesn't refer to what you do when you have a rehearing in a situation such -- such as this where the penalty has been set aside and sentence is set aside, but the conviction remains. The Code is silent. It doesn't fill in there. That's the source and perhaps the most of our trouble.
Felix Frankfurter: That is -- but a -- a -- a different body of officers who would accept the finding of guilt and then determine them, have merely a hearing as to what sentence should be imposed, is that it?
Urban P. Van Susteren: I do not wish to say that. The Code is silent in situations like this in a --
Felix Frankfurter: But in your contention, if you -- if you prevail here, what would you be doing?
Urban P. Van Susteren: That the Board of Review will return it for rehearing.
Felix Frankfurter: Yes.
Urban P. Van Susteren: I feel that on the rehearing, that the proper thing, do -- the only thing to do is to leave open to the court-martial the function to determine all of the things that happened here and then permit the court-martial.
Felix Frankfurter: But -- but to not retry the determination of guilt.
Urban P. Van Susteren: No, sir. I don't feel that we can ever claim a right to a -- a retrial on the question of guilt.
Felix Frankfurter: But a different body of officers would assess the heinousness or the gravity of the offense and then decide what sentence to impose, is that it?
Urban P. Van Susteren: Correct. That is as I would interpret the proper, correct, reasonable application of the Code provisions to this situation. Now, the -- the -- it is our contention that first of all, the Code, Article 66 does not grant to the Board of Review the right to make an initial determination of a proper sentence. And secondly, if that Article, Article 66 should be so interpreted as to give the Board of Review that authority, then, the Article, in its application to this case, would be contrary tot the ex post facto provisions of the Constitution. I would like to take up those arguments in that order. First, that they do not have the authority in Article 66.
William J. Brennan, Jr.: Now, before you do that, did I understand you to answer Mr. Justice Frankfurter that you thought there should be a new trial on the merits by new a board of officers?
Urban P. Van Susteren: A new trial by a whole new court-martial, but I don't feel that we can still have the right to retry the issue of guilt.
William J. Brennan, Jr.: Just on the question of sentence?
Urban P. Van Susteren: Just on the question of sentence. Article 66 is the only part of the Code, which gives to the Board any authority whatever to review, cases of this kind. It's the only section. It provides first of all, that the Board of Review shall act only with respect to finding then sentences as approved by the convening authority, the convening authority being always the General or other officers who are appointed to court-martial. I see that it follows that we can read that sentence as this that it shall act only in respect to sentences which have been imposed by a court-martial, because a convening authority cannot approve any sentence unless it has been approved, unless it has been passed by a court-martial. If we carry on to the next sentence, if you find that it is a limiting or negativing sentence. It says that it shall approve only such findings of guilt and the sentence or such harder amount of it and it finds correct in law and in fact, and determines on the base of the entire record should be approved. I contend that the Board of Review has read that clause of that sentence to mean it shall affirm such findings of fact as it -- as it remake or -- or such a sentence as it rebuilds, or remakes, or redetermines as to be correct. There is no positive language there at all. We come to the next paragraph and it says this, "If the Board of Review sets aside the findings and sentence, it may order a rehearing, except under certain -- certain circumstances where the setting aside is based on lack of sufficient evidence in the record, then they may not.” But there it is, the -- if the Board sets aside the findings and sentence, it may order a rehearing. If it does not order a rehearing, it shall order that the charges be dismissed. Now, that's the substance of all that the statute, the Code gives important review. The opposition respondent argues perhaps that by implication that authority rests there. Perhaps, the strongest argument is that any other system is too difficult to handle. They would quote from us the decisions from the Court of Military Appeals which says that, “In the military field or in the military scope, rehearing is impractical, if not, impossible." That, I do not agree with at all. Retrial in the military sphere, especially in time of peace and this Code was pass during time of peace is as simple and perhaps easier or simpler than it is in a civilian sphere.The selection of officers is by command, by fire from the General Officer. There is no need to call a number of jurors and find excuses who cannot appear.
William J. Brennan, Jr.: Well, under your proposition, exactly what evidence would be taken? I gather you -- you've conceived guilt. Now, what would be the evidence that would be heard by the new Board?
Urban P. Van Susteren: Oh, I believe it would have to hear all of the evidence concerning the facts of the case up to, but not including the facts that the woman died by some method, means or hand unknown sometime later.
William J. Brennan, Jr.: Now, how long ago did this incident occur?
Urban P. Van Susteren: This occurred in March -- on March 16, 1951.
William J. Brennan, Jr.: Now, that's six -- six years ago?
Urban P. Van Susteren: Yes, sir.
William J. Brennan, Jr.: How -- how practical is a review of the testimony sure of the death, at this juncture?
Urban P. Van Susteren: At this juncture, it is I think impractical. But if be impractical, that is not the burden or the tough luck of the petitioner. I hold that this Court upon findings that he is –-
William J. Brennan, Jr.: Well, suppose they -- suppose -- supposed they can't get a single one of the witnesses at this time, then what happens? You pleaded guilty and what -- what then is to follow?
Urban P. Van Susteren: I still feel that the court-martial can and may impose sentence because any other interpretation would be so –-
William J. Brennan, Jr.: Well, I know but I'm trying to get, what –-
Urban P. Van Susteren: I think it has to be --
William J. Brennan, Jr.: -- what the result of your -- what -- what was followed? Suppose they can't remember and those witnesses are not available, so there can't be any evidence before the new court-martial.
Urban P. Van Susteren: I think they have to read from the record of trial in the past.
William J. Brennan, Jr.: And then impose sentence, merely upon what they read.
Urban P. Van Susteren: I -- I fear so. That would – it's in a realm outside. It's precisely the question necessary here, so I haven't drawn into it.
Charles E. Whittaker: Is -- is there any (Voice Overlap) --
Urban P. Van Susteren: My contention is that this man is imprisoned under a void sentence, imposed by a tribunal having no authority to impose that sentence. And therefore, under authority of cases, and this is decided by this Court, he's entitled to a discharge. The second question of what the Army intends to do will await the Army actual action in grabbing them and putting him up in the trial.
Speaker: What was the sentence for the attempted rape?
Urban P. Van Susteren: 20 years.
Speaker: Now, supposing the court-martial had said, "We will impose a life sentence on the murder count. We will impose a 20-year sentence on the rape count, and of course, have the two sentences run concurrently.” And could the Board of Review said, “We will take the 20-year sentence on -- on the rape count?”
Urban P. Van Susteren: Yes, sir. I don't think there's any doubt about it.
Speaker: What's the difference?
Urban P. Van Susteren: Well, you see, the -- the -- in factual situation, you -- you've proposed, takes away all of the sting, all of the unfairness that the present situation involves. Here, we do not know whether the court-martial would have imposed a sentence of five years, or one year, or 10 years form that count. And so, we contend that such an interpretation as to give to the Board of Review the right to make an initial determination which is at the same time a final and last determination is so grossly unfair that the statute should not be interpreted to give to the Board that power by inference.
Speaker: But in these military trials, as I understand it at least, unlike civil cases, criminal -- criminal cases or any cases, the reviewing board has got a right to review the sentence.
Urban P. Van Susteren: To litigate it, cut it down --
Speaker: To litigate it, litigate.
Urban P. Van Susteren: -- but -- but no one will contend that a reviewing --
Speaker: To litigate it.
Urban P. Van Susteren: -- authority has the authority to increase it or to reinstate findings of not guilty, only to cut down to -- give clemency and to -- to remit or set off the excessive portion which is illegal. But I'd like to suppose a fact like this. Suppose that a court-martial, improperly and erroneously, found him have sentenced the lads to a life imprisonment on the murder trial, and then imposed a five-year penalty on the attempted rape charge, suppose to run concurrently. The concurrent sentence would probably be set aside by the Commanding General because it is the Army's idea that the concurrent sentence is improper. I find nothing of that in the Code itself as presently enacted, but the uniform on varying experience for years back has been one draw sentence. The writers -- the scholars on military jurisprudence is to the same effect. Now, if the Army had or -- and if the Commanding General had set aside that concurrent sentence, and thereupon, and -- and held to the full life term. Thereupon, it went to the Board of Review, and the Board of Review then determined that the life sentence is wrong and it should be reduced to 20 years, which is the maximum for attempted rape. Then what? Does the board have that authority to override the court-martial? What we know the court-martial will do. Surely, I don't think anyone supposes the Court before the Board of Review would have that authority. But if it doesn't have that authority, how can we say that unequivocally and affirmatively the record shows that the Board did not exceed its authority? It might appear argumentatively, inferentially on a negative way that the Board did not appeal to its authority. But so long as we don't know what the board of Review would have done to those soldiers, they have not – the record does not show affirmatively and unequivocally, which is the requirement in the wrongful case decided by this Court. That the Board in its proceedings conformed to law or -- or followed the statute applicable and that the judgement conformed the law. I would like to take a few minutes now on this question of -- of violation to the ex post facto provision constantly. It is our contention that – let me first of all state that the Code of Military Justice, Uniform Code went into effect on May 31, 9151. That was several weeks or months after the crime is committed. The alleged were tried on June 8 of 1951, eight days after the effective date. It is our contention that under Article 50 of the prior code, this soldier was required or -- or this – all three of these soldiers would have had their cases referred back to the court-martial for a rehearing. If you interpret Article 66 is not doing, then it means this soldier has only just one chance before the Board of Review. It makes a determination, it's final and last. But if you send it under Article 50, send it back to the Board or to the court-martial, then the soldier has two additional chances. The court-martial can fix a penalty and it might be far lower. If he doesn't, the Commanding General might reduce it. And if he doesn't, then he still has the Board of Review as its final chance. Now, this is not merely a matter procedure, a sentence in the military establishment, in the military hierarchy, the tribunal of all three steps is not complete, and it's not final. It is only interlocutory or inchoate, as one writer has referred to it until all three of these people have act in it. And I contend that it's far more important in the modern day that a -- that a soldier or any accused person -- let me say this. The question of who is going to determine a sentence where there are maximum and minimum limits is far more important than what are the maximum and minimum limits. If for example, you can think of the -- of permitting the -- the father of the victim of a rape attack to fix the penalty or have any -- any part of determining the penalty, it's far more important to the accused than it is to perhaps raise the maximum and minimum limit by two or three years.
Earl Warren: Mr. Epstein.
Leon S. Epstein: Yes, if it please the Court. I'll try not to be repetitious, but as we didn't have much time to consolidate our argument, there may be certain repetition in it and that is consolidated cases.
Earl Warren: Well, you represent another defendant --
Leon S. Epstein: Yes, sir.
Earl Warren: -- anyway, don't you?
Leon S. Epstein: Yes, sir.
Leon S. Epstein: I represent --
Earl Warren: Yes.
Leon S. Epstein: -- the defendant, Fowler --
Earl Warren: Yes.
Leon S. Epstein: -- and we came before this Court on a little bit different theory of law and it must have been substring.
Tom C. Clark: Do you have separate brief?
Leon S. Epstein: Yes, sir. It's case Number 620. I'd like to go back over the facts just a little bit in this case without going into too much detail and state to the Court what actually happened. Fowler, along with defendant, De Coster and defendant Jackson, was convicted by a court-martial in Korea. The brief facts of the case, which I deem is important is this. Fowler, De Coster, and Jackson left their post of duty pursuing one of the things a man in the service might want sometime, a little extracurricular activity. In such, they came upon a house in Korea and I believe the court-martial procedure which is part of an exhibit in this Court shows that Jackson and De Coster went into the house and Fowler stayed outside of a house and it found more or less his participation in this was -- is a bystander or as the record says, he stood guard in it. The degree of guilt in the case varied considerably.
Earl Warren: You said they went into a house. You mean, went into someone's home?
Leon S. Epstein: Yes -- yes, sir. Well, you might call it a home. It was outside the evidence. It was more of a shack.
Earl Warren: Well, it was a --
Leon S. Epstein: They --
Earl Warren: -- a habitat for a family anyway.
Leon S. Epstein: Well --
Earl Warren: Is that a --
Leon S. Epstein: -- it was a habitat for something.
Earl Warren: I beg your pardon?
Leon S. Epstein: Let's put it -- it was a habitat for something.
Speaker: You mean a crib.
Earl Warren: What do you mean by that? Do you -- do you mean it's something distinguished (Voice Overlap) --
Leon S. Epstein: I'm -- I'm getting a little bit outside of the evidence if I do go into that and I didn't care for the Court to do it. It was in a district there where there were certain shacks and certain things going on that wouldn't ordinarily go on in a regular neighborhood. Well --
Earl Warren: Well, your -- your -- are you trying to -- trying to (Voice Overlap) --
Leon S. Epstein: I don't want to retrial the case.
Earl Warren: -- that it was a house of prostitution as distinguished from a home.
Leon S. Epstein: Yes, sir.
Earl Warren: Are you --
Leon S. Epstein: Yes, sir. I'm trying to infer that, but it's outside of the record and I didn't want to -- the record doesn't show that and I didn't want to get outside of the record. Well, Fowler stayed outside and these actions took place between De Coster and Jackson. They're doing their escapade and some Koreans came and ran them all. There was an exchange of fire. The Koreans fired at them. I believe they say they fired back in the air across the creek and ran back to their base. The next morning, this woman was found dead. It wasn't shown whether the so-called rescue has killed her, whether somebody else killed her, or in my mind, was never shown conclusively if it was even the same woman. But it was in the same area and the woman who they found, according to the medical testimony, in the brief, in the court-martial, had actually been raped. The evidence in this case showed that De Coster, who is the only one that tried to rape her, admitted that he tried to have intercourse with her but wasn't able to because of his degree of intoxication. The court-martial was properly convened in the case, and all three were convicted of murder, including Fowler who stayed on the outside of that car an attempted rape.
Earl Warren: Was the woman shot? Is that the way she died?
Leon S. Epstein: Yes, sir. They found a bullet. There was an exchange of fire and they found a bullet wound in her head. That's how she died. There -- should I adhere, this was in a combat area too where firing would, under the circumstances, take place.
Earl Warren: But that's --
Leon S. Epstein: This has happened in a combat area. This was in the Korean conflict --
Earl Warren: Yes.
Leon S. Epstein: -- where firing could ordinarily take place through gorilla activity and other. Now, the court-martial was properly convened and all three were found guilty of murder and attempted rape. The minimum sentence for the murder was life imprisonment. The minimum sentence for attempted rape has no minimum. The maximum was 20 years, and the difficulty in our sentence comes here now. When these boys were found guilty of the murder, the courts-martial lost any discretion in -- as to how much time they could give for attempted rape. If they wanted to on the facts in the attempted rape case, they didn't have to give Fowler anything. They didn't have to give Jackson anything. They didn't have to give De Coster anything. But because of the finding on a guilty of murder, they had to give all three of them life. The sentence went up to the Board of Review through proper channels and the Board of Review says, "There was not enough evidence in the case to show you were guilty of the murder." In saying that, they could have said somebody else killed when you weren't even there. All the evidence in this case showed was that he was guilty of attempted rape. Then, they go to describe the viciousness of the crime and say, "Within 20 years, an appropriate sentence." Then, in their body of opinion, they say, "We remit so much of the life sentence that as an excess of 20 years void." The Army says, "That's the proper procedure." We say it's not and this is whack. The Uniform Code of Military Justice as we are not attacking, I'm not, in this particular sense, sets up three steps before a man can be sentenced properly. It says, "The courts-martial that hears the case sentences which couldn't be done in this case and they exercised their discretion as to how much time he'll get. Then, the convening authority, the Commanding General approves it, then it sent to the Board of Review for a final determination. Now, if in this case, we let the Board of Review sentence this man, what happens? The Board of Review has set there as a court-martial on the particular case, and then he's lost two rights of clemency. Number one, the right for the Commanding General will say it wasn't that serious. And number two, for the Board or somebody to appear before the Board of Review and try to get the crime lessened. In this particular case, there were certainly degrees of guilt in it. The man that actually commits the crime of attempted rape and the man that stands guard or stand outside and waits for him, there are certain degrees of guilt. In this particular case, that could not be that shown in any term of the proceeding because the Board of Review took up a total record and decided it. Now, the Government made a contention that says, "What's the difference if we send it down to a new board for a resentence and let this Board of Review decide upon the sentence?” Then, we still got a new bunch of officers decide and how much time he could get. But the reason that argument is of no avail, because if it went back, he would have two more steps of commutation which he has lost, which is a substantive right in this case.
Harold Burton: Then the entire issue between you is whether or not the Board of Review or a new court-martial could reset this sentence.
Leon S. Epstein: Yes, sir. Whether or not, that Board of Review under these particular set of circumstances had the authority to issue a sentence in this case.
Speaker: If the matter had been sent back to a new court-martial, would new evidence have been reducible on the -- on the question of sentence?
Leon S. Epstein: I believe on the question of -- of character and how -- and appropriateness of sentence, it would have been. On the issue of guilt, I don't believe so.
Speaker: Well, on the issue of sentence, was there any difference as far as the availability of evidence on the mitigating circumstances is between sending it back to the new court-martial or having the Board of Review do it. Did the Board of Review have done the same thing except the mitigating circumstances?
Leon S. Epstein: The -- the Board of Review could, Your Honor, except for this one thing. It loses the -- the defendant his right for two clemency appeals
Speaker: I understand that.
Leon S. Epstein: And that's where we run into the difficulty. If there were still two more clemency appeals, then we would have a good situation. Now, go -- go ahead, sir.
Felix Frankfurter: Pardon me. You go ahead.
Leon S. Epstein: The Government in their brief, for the first time since the Solicitor General's Office has it, says the Board of Review actually has the power, the way I read it, to impose this sentence. Now, when Colonel Cortez of the Army was arguing with me about the case, the Army maintained this Board of Review never had the power to impose the sentence and nobody in the Army feels like they have the power to impose the sentence. That they only remitted the sentence, that it was one of those cases that we could apply in hype, which hype we're going to have, this hype or that hype. As a matter of fact, under these circumstances, they did impose the sentence because the original trial court did not have any discretionary powers in determining what the sentence ought to be. Now --
Hugo L. Black: Suppose it's sent back and the court-martial sentences to 10 years. What's your position that could file to the Board of Review?
Leon S. Epstein: The Board of Review can look at it and approve it if they could say, “This man has been imprisoned already for six years. We think that's enough time for him to serve under this time, we cut at the time served.”
Hugo L. Black: Suppose they've said they wanted to be 20 years?
Leon S. Epstein: They wouldn't have the authority to raise it on any circumstances. Now, in trial court, when Judge Hooper decided this case in our favor, I believe you decide it on a basis of one question. He asked Colonel Cortez and Captain Smith's Army. He said, "Colonel, and Captain, can either of you gentlemen tell me how much sentence that original court-martial would have given this man, had he been found not guilty of murder as the Board of Review said he should have been?” And both of them says, "We don't know." The record don't disclose it, and that's the same position we're in right now. They might have given him 20 years. I grant you. They might not have given him anything, but we don't know and the Board of Review didn't know.
Felix Frankfurter: Mr. Epstein, your argument would -- would greatly impress me at least, but for one fact, but for one consideration. It would greatly impress me if should you prevail here the duty of resentencing would have to be exercised by the people who heard the evidence and make an assessment on the defendant, a kind of a fellow he was, testimony against him. But as I understand it, you correct me if I'm wrong. As I understand it, the resentence, the retrial of the call of the sentence they had a description. The reconsideration of this sentence would be by as different body of men as the man that constitutes the Board of Review. And therefore, the chief consideration when there is an improper or doubtful sentence that the persons who heard the merits should impose the sentence because the sentence is to be individualized and grow out of that which they heard on the merit fails here and it seems to me, substituting one group of non-participants in the trial for another group.
Leon S. Epstein: Oh, all right.Could I answer that Your Honor in saying this? It's not a failure on the part of our defendant, but it's a failure on the part of the congressional and practice procedure in itself not to provide for it.
Felix Frankfurter: Well, when you say failure, I do not understand that there is a constitutional challenge to the power of Congress to provide for -- for a resentencing by a different body than is the merit. That is correct, isn't it?
Leon S. Epstein: We have raised that issue. We've raised the issue that if Congress had left, the Board of Review actually resentenced the man it would be unconstitutional.
Felix Frankfurter: Well, are you urging that here?
Leon S. Epstein: Yes, sir, it's in our original pleadings.
Felix Frankfurter: Well --
Leon S. Epstein: And it -- in other words, we will reverse. I believe we will limit it to the gross sentence question, but I believe it grows out of it. I believe this Court would hold it was repugnant to due process to let a man who is tried 5,000 miles away, had his record be sent to Washington by a different board to decide how much time he is to serve. I know under the federal system of justice, if this same case would prevail, they would have been sent back to the trial judge for a resentence and if the trial judge died, in the meantime, to a new judge.
Felix Frankfurter: If it were the federal system of justice to which we refer, you would have to have jury trial under all the other requirements of the -- of the Bill of Rights. But this is a military justice with all the differentiation in treatment that the cause of the Constitution very carefully accepted by saying it shouldn't apply to military trial. And therefore, the human, practical, reasonable consideration to which you refer and which I deeply share isn't constitutionally applicable to this situation --
Leon S. Epstein: Well --
Felix Frankfurter: -- while you're dealing with the -- with the military differentiation that he's so controlling that if others were aware of it.
Leon S. Epstein: Well --
Felix Frankfurter: In other words, you can -- you can send a case back to the same judge, because he's the same judge. But practically speaking, you can't send him back to the same court-martial so in a particular case you could, so they're scattered all over the world.
Leon S. Epstein: If -- if it please the Court, I believe in the Burns case in which you wrote a descending opinion or --
Felix Frankfurter: I raised question to that.
Leon S. Epstein: But you raised those --
Felix Frankfurter: (Voice Overlap) --
Leon S. Epstein: s-- very questions as to whether or not a soldier has any rights under due process in law and if they --
Felix Frankfurter: I didn't say he had none. I don't think you have none, but I'm saying this particular thing. I do not see. Rightly enough, it isn't here. It wasn't even raised and before the Third Circuit, namely, that it isn't -- you've got a situation which practically human. Intrinsically, it's so different than the case of military justice from the case of civil justice. That it's impossible to send it back to the same trial.
Leon S. Epstein: But, if it please the Court, if it is impossible, why does a procedure have to be such that it has to be sent back? In other words, it is a -- is this procedure that requires that it has to be sent back for justice if it's impossible have to be followed if an ultimate procedure would be available and --
Felix Frankfurter: That's not -- that's not suggesting that the consideration that I put to you destroyed your case. I'm suggesting the argument you make as with her lacks a powerful appeal that's controlled in civil justice.
William O. Douglas: I thought your point was that you want the -- you were entitled under the Code to a hearing on -- on sentencing.
Leon S. Epstein: We feel like -- yes, sir. Under the Code, it could be sent back to a fresh court-martial for the purposes of resentencing.
Felix Frankfurter: But you had a hearing before the Board of Review.
William O. Douglas: Which didn't have a hearing --
Felix Frankfurter: You want --
William O. Douglas: -- on sentencing before that Board, did you?
Leon S. Epstein: No, sir.
Felix Frankfurter: All right.
Leon S. Epstein: In other words, when the Board of Review --
Felix Frankfurter: Is that in your complaint?
Leon S. Epstein: No, sir.
Felix Frankfurter: Your complaint isn't that the Board of Review acted -- acted arbitrarily. Your complaint is that they have no power and it must be sent back here to ad hoc court-martial.
Leon S. Epstein: That in this particular case, when they issued a sentence, that sentence was void and that it was not contained in the original sentence and if it was, they had no way of knowing it. In other words, under a gross sentence rule, a gross sentence can be divided if divisible. That if divisible is a keyword, was this sentence divisible? Was there any way in creation and know that it was divisible without going back? Now, if it was not divisible, why couldn't it be sent back to a court-martial and give these two defendants their two rights of clemency as we are asking? In other words, if it goes back to an original court-martial, we can make a plea for anything we won't do in there.
Felix Frankfurter: Well, you did -- was your client debarred from arguing before the Board of Review after the murder charge was knocked out? Were you debarred from arguing that tribunal, the Board of Review, what sentence less than the maximum they should impose?
Leon S. Epstein: If it please the Court. I can say this about the Board of Review. In a murder conviction, that's automatic. Counsel was appointed by the Army to defend the man. He is paid to the Army to defend him, automatic because they picked up the record and they go through with it. This man, as a matter of fact, says nothing to the Board of Review. He only reads the results. He's never given an opportunity to face the Board of Review and say, "I've been a good soldier. I've been in the Army for six years and I've never been --
Felix Frankfurter: He's not been presented before the Board?
Leon S. Epstein: His -- his attorney present -- presents the case before who's an army attorney but the man himself has no opportunity to show his character.
Felix Frankfurter: No. But is the Court -- is this -- has his cause under sentence a hearing before the Board?
Leon S. Epstein: Yes, it's --
Felix Frankfurter: I'm not suggesting that any of these questions imply my -- my conclusion.
Leon S. Epstein: But -- yes, it --
Felix Frankfurter: I just want to know what the facts are.
Leon S. Epstein: It's mandatory under the statute.
Felix Frankfurter: That he'd be represented?
Leon S. Epstein: That he'd be represented.
Felix Frankfurter: And that is a claim for reduction of a sentence to be represented. If the counsel thinks --
Leon S. Epstein: Yes, sir.
Felix Frankfurter: So that the hearing is not a hearing and abstract though, but you want a hearing before a newly constituted court-martial.
Leon S. Epstein: Yes, sir. We want -- we want those other two rights that he didn't have. In other words, we feel this way. Suppose in the higher court, the Board of Military Appeals -- the Court of Military Appeals would have been the ones to say that there was not enough evidence to substantiate a conviction. They have no clemency power, the Board of Military Appeals. Suppose in -- they were the ones that said it, “Could that Board have been separated those sentences and say in 20 years here was for attempted rape?” We don't know that, and we would like to get back to somebody who could exercise a discretionary power, who could say, "Yes. Now, we have the case. You've been convicted of attempted rape. What will we give you?” And then, they can say, “We can give you anything from zero to 20 years. What do you deserve?” And then, after they make that initial determination of what they feel they deserve, then he'd go before his Commanding General and he can say, “He's been a good soldier. He's never been in trouble in six years, maybe it ought to be last,” so maybe his Commanding General cut it in half.
Felix Frankfurter: Your particular -- your argument has usually dealt with this, as I see it. You say that in fact, the court-martial imposed no sentence and the Board of Review has no power to impose a sentence.
Leon S. Epstein: That's correct.
Earl Warren: Mr. Spritzer.
Ralph S. Spritzer: Mr. Chief Justice, may it please the Court. I think I should address myself that the outset to the single sentence or gross sentence practice, which has existed in military law from the very beginning because it is that which has provided the foundation for the controversy that is written here. No matter the number of chargers or specifications of which an accused is charged, the court-martial in all cases imposes a single sentence. Chief Justice Fuller of this Court spoke of this practice more than 50 years ago in one of the leading decisions of this Court relating to a court martial jurisdiction, Carter versus McClaughry. And there, said, “We understand the rule established by military usage to be, that the sentenced of a court-martial shall be in every case an entirety.” The Court of Military Appeals much more recently of course is dealt with this same matter and frequently so, and it has stated – I'm quoting from one of its recent opinions, “The concurrent sentence is entirely without president in Military procedure. A single inclusive sentence is imposed regardless of the number or character of the offenses of which the accused has been convicted.” I think I would also like to mention to the Court at the outset that the situation where an accused is convicted of several offenses and the reviewing authorities either modify or set aside one or more of the findings of guilt is obviously a very common one. I supposed more charge sheets setting out the charges contain a number of offenses, but then, contain a single charge. We have some data as to this. Between 1951, for example when the Uniform Code went into a fact, and 1955, a four-year span, Boards of review which as Your Honors referred operate at the second stage of review in a military system, have modified findings in 2861 cases. There was a modification by the Court of Military Appeals during that same period in an additional 357 cases. These figures which run for more than 3000 do not include the cases as to which we have no data available, in which those modification of findings or striking of some findings by the convening authority at the first stage of review. I point this out because the consequence of certain of the arguments which have been made by petitioners here today would be that every time in these thousands of cases in which there is a modification of some of the findings, the case would have to go back on the theories which they advanced to the court-martial. Therefore, the contentions, which they make go I think to the very essence of the structure of the system of review as it exists in the military law system. Now, in our view, reviewing authorities possess and have traditionally possessed substantial sentencing powers. The court-martial is not the same, as a District Court in the federal system.
William J. Brennan, Jr.: Before you get to that, and that -- those figures of thousands of cases you gave us, is there any figure of the number of instances like this where the gross sentence was a sentence for an offense a, sentence greater than could in law be imposed for the lesser offense and then the greater offenses stricken out?
Ralph S. Spritzer: No. These figures do not have any breakdown and they would include cases in which the findings no longer supported the sentence initially imposed. It would include also cases in which the sentence might still be legal but the reviewing authorities might feel in the light of the production of the number of the offenses that there should be an adjustment of the sense.
William J. Brennan, Jr.: Well, I'm -- I'm just wondering how helpful those figures of thousands of cases are, we don't know how many situations such as this one have been acted upon before.
Ralph S. Spritzer: I take that the contention here would go so far as to say, that you're entitled in every case where there has been a modification of finding to have it divided to the Court.
William J. Brennan, Jr.: I didn't understand it that way.
Ralph S. Spritzer: But the logic of that I think would occur as that.
William J. Brennan, Jr.: That may be, but as I understood the argument, counsel was as applied to this situation. They weren't attacking it generally, as I got --
Ralph S. Spritzer: Well --
William J. Brennan, Jr.: -- what you said.
Ralph S. Spritzer: I think they need not go beyond their own case certainly, but I -- I think the -- the logic of their argument is that since you have a gross sentence practice in the military, you can't predict -- predict is a wrong word. You can't go back and surmise if there's a modification on review. What the court-martial might have done, had it known at the time it acted what findings would ultimately be approved. Now, the logic of that would call for a resentencing as well, I take it, in the situation where the sentence might still be a legal one but might rest upon a lesser number of convictions. One still couldn't tell how the court-martial had it known in advanced what it didn't know might reacted to that altered circumstance. And the point that we would make is that we think substantial sentence powers, powers over this sentence of a kind having no counterpart in the civilian system have additionally been exercised by reviewing authorities.
Felix Frankfurter: Mr. Spritzer, may I ask you to do what I know you will do in a few minutes and I don't mean to ask you at this phase, to come more directly to the -- to the problems that it created by the present legislative scheme regarding a reviewing authority. And onto my ignorance, I ought to know but don't is what -- when did the situation that is expressed legislatively in (c) and (d) of Article 66. Historically, how old in the situation that is -- that is formulated in those two subsections, sub-articles? You say historically --
Ralph S. Spritzer: Yes.
Felix Frankfurter: -- but I want to know more particularly, what -- what were the organs of review by a trial to the military code on the practice, which you can draw in order to illuminate military code. Did I put my question?
Ralph S. Spritzer: Yes you -- you have Your Honor.
Felix Frankfurter: Otherwise, the -- the history is relevant only if we've got a continuity of -- of more or less continuity of -- of the procedure.
Ralph S. Spritzer: Yes. The -- the history will show and I do intend to reach it. That reviewing authorities of one kind or another have always had broad powers over the entire case, including powers to determine sentence's appropriateness. Now, I hesitate to give a short answer to Your Honor's question about the history at this point, because as Your Honor knows, the military system has been refashioned in very many details, both the 1920 after the First World War experience, again, in 1948 when there were substantial amendments to the Articles of War and more recently of course with the adaption of the Uniform Code which became effective in 1951. And I cannot give a very brief answer to the question until I have first indicated the structure of the system as it has existed at these various stages and I --
Felix Frankfurter: If you're going to that --
Ralph S. Spritzer: I hope --
Felix Frankfurter: -- because, you intend --
Ralph S. Spritzer: -- to do that.
Felix Frankfurter: -- but we will have to come to the very terms of (c) and (d) and I suppose what your argument is heading into is to read into (c) and (d) a glass from history, is that right?
Ralph S. Spritzer: Well, I think the --
Felix Frankfurter: Apart from the specific --
Ralph S. Spritzer: I think the Articles --
Felix Frankfurter: -- relevance of (Voice Overlap)
Ralph S. Spritzer: -- have a great deal of weight without even referring to the -- to the history, Your Honor.
Felix Frankfurter: All right, but you have to -- you will have to go to the Articles themselves and also find what conflict you can from the history which underlined those articles.
Ralph S. Spritzer: Yes, Your Honor.
Felix Frankfurter: Would that be a statement?
Ralph S. Spritzer: Yes, and it is because of the fact that this case turned so largely upon an understanding of what the military system divides by Congress is that we've taken a rather unusual step of submitting to the Court several charts, which seek to set out in more or less graphic form what is rather complicated. If I may refer to that chart for purposes of developing this point, chart one to which I will refer firstly primarily. Is the appellate process is for this case under the Uniform Code?
William J. Brennan, Jr.: Where is this, Mr. Spritzer?
Ralph S. Spritzer: We have filled a set of charts with the Clerk, which were to have been distributed to the Court.
Felix Frankfurter: They have that. They have now.
Ralph S. Spritzer: Now, at the top of this chart one, one finds the court-martial. And as Your Honors have already heard in this case, it found guilty to premeditated murder and attempted rape, and it judged life imprisonment which was the minimum sentence on the findings which it had returned. Now, the court-martial of course is convened by the officer exercising court-martial jurisdiction, in this case, the Commanding General of an Infantry Division. Now, after the court-martial concludes, the entire record goes to the convening authority and that's the next step in the chart, and I -- I might parenthetically, that every review which is represented on this page, down to the Court of Military Appeals, not including that, but every prior review, is a mandatory review with the Court of Military Appeals at the final stage having discretion. Now, the case goes from a court-martial to the convening authority who has attached to his command a Staff Judge Advocate whose advice he receives on the case. Now, the convening authority has broad powers, both as to findings and as to sentence. As a matter of fact, the sentence of the court-martial and the findings of the court-martial are of no effect until the convening authority takes action in relation to them. So, he has powers which are in many respect, powers like a trial judge has, their judging powers. The court-martial has no trial judge. It is essentially a -- a lay body functioning as a jury with power to fix a sentence in addition to findings. Now, the convening authority as the Court will note from this chart considers the facts, the credibility of the witnesses and the legal sufficiency of the record to support convictions. He has, under the Uniform Code, they know all of the fact-finding powers. Now, going on as we note on the chart, he may approve the guilt of the offense, which the court-martial has found or he may disapprove it, or he may find guilt of a lesser included offense.
Hugo L. Black: What about agreement?
Ralph S. Spritzer: I didn't catch Your Honors question.
Hugo L. Black: What about agreement?
Ralph S. Spritzer: The oral reviewing authorities are limited in two respects. No matter the action, which they take, they may not increase the in-gross sentence as originally imposed by the court-martial.
Hugo L. Black: How long has that been the rule?
Ralph S. Spritzer: Always -- no, since 1916 at least. I cannot go back further than that. Certainly, since World War I, the -- the reviewing authority has not had any power to increase sentence. He could, prior to that time, send it back and ask the court-martial if it wanted to increase it I believe, but certainly --
Hugo L. Black: If it wanted too.
Ralph S. Spritzer: Pardon?
Hugo L. Black: If it wanted too.
Ralph S. Spritzer: I don't think he could order it, even before 1916, but he could send it back with whatever implication that may have had. But since 1916, at least he has had no power to increase the gross sentence to judge by the Court.
Hugo L. Black: And why would he send it back?
Ralph S. Spritzer: He cannot send it back for further findings or for further sentencing.
Hugo L. Black: What statute advises that? Does the statute advise it now?
Ralph S. Spritzer: Well, I think that it can be felt out of the Uniform Code, I -- unless Your Honor --
Felix Frankfurter: (Voice Overlap)
Ralph S. Spritzer: -- wishes I will not cause to do it now.
Hugo L. Black: I do not want to (Voice Overlap) --
Felix Frankfurter: The old Articles of War is at 19 -- General Crowder's Articles of War in that case.
Ralph S. Spritzer: Under the Uniform Code and even under the 1920 or 1948 practice, it could not be sent back, one, on an issue as to which they had been a finding of not guilty and it could not be sent back for any increase in sentence.
Hugo L. Black: Up to this time as I recall it, it had been done in several instances. I think this --
Ralph S. Spritzer: Prior to 1916 --
Hugo L. Black: -- this Court had a case.
Ralph S. Spritzer: -- it could go back to the court-martial under the prior fact.
Hugo L. Black: It's sent back before that because the sentence was deemed to be inadequate.
Ralph S. Spritzer: Yes. That stopped in 1916. That was the last to that. Now, the second limitation I was about to state as to the power of the reviewing authorities in relation to sentencing is of course that no sentence ultimately approved by the reviewing authority can be in excess of the legal limits for the offense or offenses, ultimately sustained, on the review. Now, returning to the powers of the convening authority, he may approve any sentence, which is legal, does not exceed that adjudged by the court-martial in which he deems appropriate for the approved findings. He may also do certain things and this is also highly significant, which the court-martial itself could not do. He may suspend sentence. He is not bound by the mandatory minimum for a premeditated murder which is binding on the court-martial. In other words, he has a broad power including fact finding powers over the entire case, with a power as well to determine a specially suited sentence. I shall -- would like to make reference to the Article -- Article 64 itself, which relates to the convening authority who is of course the first of the three reviewing authorities in the Military Law System. Now, Article 64 states, “In acting on the findings and sentence of a court-martial --
Speaker: Where is this, Mr. Spritzer?
Ralph S. Spritzer: This is in our brief under the -- in the statute section -- I'm sorry, 64 is not -- has not been printed, 66 which relates to the convening of -- to the Board of Review has been. And I'd like to mention 64 first because the convening authority in the Board of Review had analogous powers. It's only one sentence if they may take the time to read it, “In acting on the findings and sentence to the court-martial, the convening authority shall approve only such findings of guilty, and the sentence or such part or amount of the sentence as he finds correct in law and fact and as he in his discretion determine should be approved. And I'd like to emphasize that this is a scheme, which gives the convening authority the power to modify and to exercise discretion as to what type of sentence he shall approve.
Hugo L. Black: You mean by modify of reviews?
Ralph S. Spritzer: He may modify either findings or sentence in favor of the accused. He cannot add to a finding of not guilty, he cannot change that and he cannot increase a sentence beyond the gross sentence which has been imposed by the Court.
Hugo L. Black: I ask this question because you continuously said modify --
Ralph S. Spritzer: Yes.
Hugo L. Black: -- and you meant, by modify reviews.
Ralph S. Spritzer: Yes, sir.
Hugo L. Black: -- and not modified by increase.
Ralph S. Spritzer: That is right and that -- that is a power beyond into increase. Professor Morgan --
Felix Frankfurter: Oh, he might -- if there is an imposition in the guardhouse for a period, he make the Court -- the convening authority and he cut that off.
Ralph S. Spritzer: I'm sorry. I didn't catch any --
Felix Frankfurter: If -- if there is a qualification as to a hard labor or -- or with the -- in a guardhouse --
Ralph S. Spritzer: Yes.
Felix Frankfurter: -- it may cut that out and leave the theory.
Ralph S. Spritzer: Yes, yes. He may give him a confinement without hard labor or reduce it to some lesser type of penalty altogether. Professor Morgan, as the Court knows, was the architect to the Uniform Code. He commented on Article 64, which I have just read to the Court in his way. He said, “There is an initial review by the convening authority covering the law, facts, credibility of witnesses and a review of the sentence.” I turn now to the second stage of review and to Article 66. As the Court will again, note on this chart after convening authority has acted, the case goes forward to the Judge Advocate General. That review is mandatory in any serious case, any case with a punitive discharge or a serious penalty, and of course, was mandatory in this case. The Judge Advocate General thereupon refers the case to the Board of Review, which is a board consisting of three lawyers, either military or civilian constituted in the office of the Judge Advocate General. That Board operates as the reviewing court would be. It receives briefs and hears arguments of counsel. But its powers again go far beyond the powers of an appellate tribunal in the ordinary civil system. It is intended that the Board of Review should exercise powers de novo over the findings and the sentence. It is specifically given the power to find the facts for itself on the entire record. It determines credibility of witness.
Earl Warren: Can find the fact of guilt?
Ralph S. Spritzer: No reviewing authority can find the fact of guilt and the Board of Review considers only the findings of guilt and the sentence as approved by the convening authority. That is the outer limit of its power. It can ameliorate further, but no reviewing of authority can increase the original sentence in gross.
Hugo L. Black: Has viewed the statutory change?
Ralph S. Spritzer: Yes. It's in the Articles of War and in the Uniform Code. It can be spelled out of those like that.
Hugo L. Black: So that those changes, those --
Ralph S. Spritzer: This is statutory.
Hugo L. Black: -- provisions are subject to change by statute to go back to the whole other opinion here.
Ralph S. Spritzer: That's right. This is all statutory, Your Honor. The Board of Review, like the convening authority, is not bound by the mandatory minimum, which is binding on the court-martial. And as I say, it may impose any sentence within the limits already imposed by the court-martial which it deems appropriate for the offenses ultimately sustained, and that power, we find in the Articles 66. The key sentence of the Article 66 is that the Board of Review shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines on the basis of the entire record should be approved. It has a comprehensive power to review all of the facts de novo. Now, again, I'd like to refer to Professor Morgan's statements to the Committee which adopted the Uniform Code and that certainly is the most persuasive kind of legislative history if there be any doubt of the breadth of power that Congress intended to confer upon Boards of review. He said that the Board of Review now has very expensive powers. It may review law, facts, and practically sentences, because the provisions stipulate that the Board of Review shall affirm only so much of the sentence as it finds to be justified by the whole record. It gives the Board of Review the power to review facts, law, and sentence, and to judge the credibility of witnesses and to make new findings insofar as they may be in favor of the accused. Now, when the --
William J. Brennan, Jr.: Well, affirm ordinarily means knowingly to know what it is that you're putting the stamp of approval upon or otherwise, doesn't it? In other words, this is an animation on that, an implication on that that affirmed a sentence that the Board of Review knows about?
Ralph S. Spritzer: No. I think, not Your Honor because “affirm” is a word of organ in -- in military law and the action of the Board of Review is known as affirming action.
William J. Brennan, Jr.: It's differently in military law than it is in ordinary English?
Ralph S. Spritzer: It's called a -- it's called affirming action, and it means action on the sentence. It does not --
William J. Brennan, Jr.: (Voice Overlap) -- that affirmed only the sentence or such part as it finds correct. Let's not presuppose that knows what the sentence is.
Ralph S. Spritzer: But does know what the sentences is and --
William J. Brennan, Jr.: (Voice Overlap) --
Ralph S. Spritzer: -- he knows the engross sentence. That's all it can ever know, because there never is a military sentence, which is so much for each of multiple offenses, Your Honor. The engross practice has been unbearing. And if the power of the reviewing authority to alter sentence in the light of altered findings, could not be exercised, then literarily, thousands of cases in which there has been modification, we'll have to go back to new courts. Because time and time again, that's not only the case of striking out an offense. It's quite common for an -- an accused to be charged with a more serious offense, and then to be -- to have that reduced on review to a lesser-included offense. There are hundreds of desertion cases in which the reviewing authorities have said, “We're only going to approve so much of this as amounts to a finding of guilty of absence without leave, rather than dissertation.” The reviewing authorities and particularly, the Board of Review had been created and encouraged to be an ameliorating influence within the court martial system, to give an independent review removed from the trial thing. They're encouraged too, when they feel that there is reasonable doubt to reexamine the facts and to cut down, either, to a lesser-included offense or to strike it out. Now, these petitioners are suggesting that the counterpart of that is that every time the reviewing authority makes a modification of the sentence that the case will have to go back for resentencing to a court-martial, which in the nature of things, no longer exists.
Felix Frankfurter: May I leave this with you for -- in addition to your launch -- launch theory --
Ralph S. Spritzer: Yes, sir.
Felix Frankfurter: -- when you get around to it in the course of the rest of your argument. Suppose in this case, the court-martial, having found the soldiers guilty of murder and rape, and impose the necessary sentence for murder has then said, “in view of this fact, we not call upon to say what sentence we would impose or raise?” Suppose, they have -- the record said that when you get around to those, you'd adjust yourself to that hypothetical situation and then the State, the extent to which that isn't what is implied in this record.
Ralph S. Spritzer: I should take that logical.
Earl Warren: -- you may proceed.
Ralph S. Spritzer: A question was asked earlier in the argument as to the specific provision, which would prevent any increase of penalty by any of the reviewing authorities. I stated that the Articles made that clear. I would like to refer the Court now to the specific provision that I had in my mind, but did not at that point cite. Article 62 declares -- I'm dealing generally with reconsideration and revision by the court-martial and the power of the convening authority to send it back to the Court. In no case, however, may the record be returned, one, for reconsideration of a finding of not guilty of any specification or a ruling, which amounts to a finding of not guilty. And then, under three, for increasing the severity of the sentence, unless the sentence proscribed for the offense is mandatory.
Earl Warren: Well, Mr. Spritzer, the thing that's bothering me is this. The -- the court-martial, in sentencing this man, sentenced him or sentenced these three men for -- mandatory for life imprisonment. It could have given them a death sentence but it didn't. So consequently, it could not make any differentiation between them on the question of murder. They all had to be first degree murder with life didn't they?
Ralph S. Spritzer: That's quite correct.
Earl Warren: All right. Now, what is there in the record to -- to show what they might have done if they had felt that they where not guilty of -- of murder, but were only guilty of the attempted rape, where they could have decided that one should get 20 years, another one should get 10 and another one should get five, let us -- let us say? Is there anything in there that would indicate that they did take those things into consideration? And if there is not or -- or if they did may, how can we say that the reviewing board is not increasing the punishment that they intended to -- to give for that offense when the conviction of murder was set aside? I presume we've got to treat that there's no -- there was no murder in this case do we not?
Ralph S. Spritzer: Oh, yes. The Board of Review found those --
Earl Warren: Yes.
Ralph S. Spritzer: -- room for a reasonable doubt --
Earl Warren: Yes.
Ralph S. Spritzer: -- and it set that aside and that action is final.
Earl Warren: Yes.
Ralph S. Spritzer: Now, getting back to Your Honor's questions in -- in sequences, there is absolutely nothing in the record, and there cannot, in the nature of things under a gross sentence practice to indicate what sentence the court-martial might have adjudged if it found to be accused guilty only of one offense to wit the attempted rape charged. And I think the question comes squarely down to this. What did Congress proposed in respect to allocation of sentence powers? We believe that Congress certainly recognize the gross sentence practice. It dissolves as military law and the man who, for court-martial indeed, tells the Court that it must return a single sentence, covering all of the offenses. Now, with that background of this gross or general sentence practice, the question is what did Congress proposed should happen if as would quite commonly occur and has, one or more of the multiple convictions was modified or set aside on review? And we say that in that situation, the Articles contemplate and practical considerations, which where in the minds of Congress strongly support the necessity that the power to fix a specially suited sentence for the convictions as approved be in reviewing authorities. Now, I think there is no question that in the military law system, Congress could decide that the court martial power shouldn't have anything to do with the sentence at all. It could say, “Their function will be specifically finding guilt.” Certainly, it's no novelty and in our jurisprudence to have a separation of the facts finding and the sentencing functions. Now, in the court martial system, there is not a complete separation. The court-martial, which acts like the jury in determining the facts, also fixes an initial sentence, which represents for all time thereafter, the maximum sentence. But we say that it is contemplated that the reviewing authorities, in studying the record and in making modifications for the accused benefit, shall also have the power when they make such modifications for his benefit to make an adjustment of the sentence. Quite normally, certainly, the sentence is imposed by the courts-martial in which are constituted quite generally of line officers are much more severe than the sentences as ultimately approved by the reviewing authorities, particularly, as approve by the Board of Review. Now, I'd say since Congress could've taken all sentencing power away from the court-martial, that there is no inequity in establishing a system where when there are modifications of the findings, the reviewing authorities will adjust the sentence. I say there's no inequity because the reviewing authority has limits, in no event, cannot exceed the legal limit for the offense ultimately approved. In no event, cannot exceed the engross sentence imposed by the Court.Moreover, the Board of Review is directed to review the entire record. It can find the facts anew, and it is -- and as an expert body, it is in a position to impose a fair sentence. And that brings me to what the Senate Committee stated in its report when it recommended that the Board of Review begin in this board powers over findings and sentence alike.
Harold Burton: That Board of Review finding is in no event final even when they make under those conditions, as I understand it, will go to the Judge Advocate and then goes to the Court for a review.
Ralph S. Spritzer: Well, the -- the Judge Advocate -- the case goes back in the Board of Review to the Judge Advocate as we indicate and he has certain powers. He may suspend the sentence as ultimately approved. He also notifies the accused of his right to appeal to the Board of Review.
Hugo L. Black: Did not the Congress, however, make the -- the Senates fixed by the court-martial final, completely final, insofar as its top limits are concern?
Ralph S. Spritzer: Yes.
Hugo L. Black: And here, you have a case where they did not -- we're not free to fix the top limit?
Ralph S. Spritzer: Well, I -- when I say final so far as the top limit is concerned, I mean that the engross sentence of the Court cannot be increased.
Hugo L. Black: Well, if a -- however, if the normal court order below, and intended below, normally was to make the -- it was, was it not, normally to make the findings of the court-martial final as to the top limits.
Ralph S. Spritzer: As to the top limit of the sentence for all of the convictions, which the court-martial returns that the court-martial is instructed that it may not return individual punishments for the individual offenses.
Hugo L. Black: I understand that.
Ralph S. Spritzer: Hence, the top limit must be taken to mean, the limit for all of the findings of guilt.
Hugo L. Black: But this is not a -- this is not the normal is it? This situation we have here is an exception of findings.
Ralph S. Spritzer: But this is a -- a -- an unusual case, no by no means the only one right.
Hugo L. Black: But, they did -- but I was not asking it. What I don't see how we can say that Congress intended one way or another on this particular thing, but it seems to me we can say that Congress did intend to make the top limit fixed by the court-martial, a normal top limit that could ever be imposed.
Ralph S. Spritzer: I -- I can agree with that, by adding to that, but it always seems for all of the offenses, because there's no power to apportion in the court-martial. And you quite commonly, Your Honor, will have this situation. An accused will be charged, let us say, with a -- with deserting and then with passing some bad checks and he'll get a gross sentence of 10 years from the Court. Now, the Board of Review may say, "We're not to satisfy the element of intent to stay away permanently. It's sufficiently proved. Therefore, we're going to cut the desertion down to absence without leave.” Now, let's assume that the penalty of 10 years is now excessive for absence without leave, plus passing a bad check. Now, nobody can't say just what penalty the court-martial might have impose for the offense of that absence without leave, had it known that its findings of the desertion wouldn't be sustained. But that --
Hugo L. Black: (Voice Overlap) --
Ralph S. Spritzer: -- occurs in numerous variations.
Hugo L. Black: We can't say, he can, with -- with finality that we know that the court-martial could not, it would not have imposed anything more than 20 years on these people.
Ralph S. Spritzer: That's right. The maximum is all of it, by definition. It couldn't be.
Earl Warren: Well, Mr. Spritzer, may I ask you this question? You gave us some figures before lunch, several thousand cases that -- that you've had. Do you know how many among those were cases of felony murder such as this where the -- of necessity, all of the defendants were given the same punishment and were later the maximum -- the maximum crime was found not to have been proven and the included offense -- not included offense, but the offense, that lesser offense was sustained?
Ralph S. Spritzer: No, I don't know and I would assume --
Earl Warren: Are there any you know?
Ralph S. Spritzer: I will assume that would be a rare situation.
Earl Warren: Do -- you don't know of any?
Ralph S. Spritzer: I don't know. I don't have any --
Earl Warren: Yes.
Ralph S. Spritzer: -- breakdown, Your Honor, as to these figures. There is simply overall figures as to the cases in which findings of guilt have been modified.
Earl Warren: Yes.
Ralph S. Spritzer: Now, I -- the point I'm making on the basis of those figures is that it seems to me that you must say that in every case where there's a modification of any finding that you don't know precisely what the Court would have done had it known that this modification was subsequently going to take place. You can't know in the military system because of the engross sentence and practice. You would know if there were --
William J. Brennan, Jr.: Mr. Spritzer, excuse me -- finish it.
Ralph S. Spritzer: Yes. Well, I was just going to say you would know if there were practices of punishing for each count for each offense.
William J. Brennan, Jr.: Now, is it that there's difference between the case you suggested to us of an adoption of desertion to absent without leave that that instance, there never was a court martial finding that he was guilty of being absent without leave?
Ralph S. Spritzer: It's necessarily included.
William J. Brennan, Jr.: Yes, but here, we do have a court-martial finding that they were guilty of rape.
Ralph S. Spritzer: Certainly.
William J. Brennan, Jr.: Well, is it entirely different?
Ralph S. Spritzer: That the -- the problem --
William J. Brennan, Jr.: (Voice Overlap) --
Ralph S. Spritzer: -- I'm talking about is the sentencing problem.
William J. Brennan, Jr.: Well, I know, but we -- the first finding of guilt of being absent without leave is a finding with the Board of Review. And perhaps, you could justify the imposition of a sentence based on its own finding, where here you have a finding of rape without an opportunity for the two clemency steps that ordinarily would have been available to these soldiers had -- had there not have been introduce the erroneous finding of murder.
Ralph S. Spritzer: I -- I don't find from my part any material distinction in the lesser included offense case, because the Board of Review in such a case can only find guilt of the absence without leave because it's an element of the court-martial's finding. It couldn't make a finding which wasn't necessarily included in the court-martial's finding. So, you have a case there too in which I can't say and nobody can say in that hypothetical case. Now, what would the court-martial have done had it thought that he was guilty only on AWOL and not desertion?
William J. Brennan, Jr.: That's never -- that's never even thought, there again when he thought to convicting him of being merely in offense of absent without leave.
Ralph S. Spritzer: No, but our problem in -- in relation to sentencing I think is, do you have to determine what the court-martial might have done, had it known then what alterations in the findings were going to be made later? And I say you don't have to determine that, because if our view of this system provided by Congress is correct, it is contemplated that reviewing authorities shall have power over sentence adequate to deal with that situation. Now, that --
William J. Brennan, Jr.: That's one other thing --
Ralph S. Spritzer: -- is a crucial question.
William J. Brennan, Jr.: In respect to those figures, is this not more often the situation? There may be convictions of multiple offenses and a gross sentence.
Ralph S. Spritzer: Yes, sir.
William J. Brennan, Jr.: And upon review, the Board of Review doesn't set aside any of the convictions, but does feel that the gross sentence is inordinate and ameliorates it by reducing it, letting the conviction stand. Isn't that more often the situation in that that we have here?
Ralph S. Spritzer: I -- I cannot -- I don't have figures to say percentage wise. I can say without hesitation that the modification of findings is very frequent as these figures that I've given Your Honor a test.I think more than 2800 cases in four years is the great many indeed when one considers further that only the serious case can come to the Board of Review. So, I would say there is a very strong tendency on the part of Boards of review to exercise great initiative in sifting the legal sufficiency of the charges.
Earl Warren: Well, Mr. Spritzer, do you -- do you conceive that there's any difference at all between the cases where -- like this where a man is convicted of felony murder and there is no discretion in the court-martial? It must all get death or life imprisonment and then there are lesser offenses in which they're also convicted on the one -- that's on the one hand. On the other hand, take a crime like desertion in various other crimes that were also charged against him. The -- the Court has a latitude on each one of those even the -- even the major crime as to the punishment. Do you conceive any difference between those cases when it comes to -- to determining the powers of Review Board after the major crime has been -- been found not to have been committed?
Ralph S. Spritzer: I think the problem, which would face the Board of Review, if it had to determine what the court-martial might have done is precisely the thing, Your Honor. Because in the case I opposed where you have a 10-year sentence for desertion and passing a bad check and having an engross sentence and the Board of Review sets aside the desertion, it can't tell how much the court-martial would have apportioned for the bad check account, it's in the same possession. If it sets aside the -- the desertion, it has -- it -- it can't tell how the court-martial would have allocated what remains.
Earl Warren: Well, my point -- my point is this. That on -- on the desertion charge and -- and the other lesser offenses included there, the -- the court-martial and the reviewing authorities at least have the -- the right to say that all things considered, one defendant should have 10 years, another, seven years, and another five years. And then, if it -- if the major crime was knocked out, there would be some measurement at least. But -- but when the court-martial must, of necessity, give them all the same sentence, namely, life imprisonment on the murder charge and then when the murder charge is knocked out, have nothing -- nothing at all to be guided by so far as he picked to the court-martial he's concerned on lesser offenses, it seems to me, that's a different situation.
Ralph S. Spritzer: Well, I don't think, on the basis of the articles, you could draw a distinction and say that there is power in the reviewing authorities to modify sentence in the case of -- in the light of altered finding, except where it's a felony murder situation. Now, that -- it may be true that in that situation where there's a mandatory sentence, the Board of Review will have less guidance in the nature of things than it might have as it were a case not involving a mandatory penalty. But our answer to that is that we think the Board of Review has the power and was given the job by Congress of considering all the facts in the record for itself in determining especially suited sentence in a circumstance like this, in any of these situations where there is modification. I'd like to read to the Court what I --
Felix Frankfurter: May I -- unless you're continuing your answer to Mr. Chief Justice.
Ralph S. Spritzer: No.
Felix Frankfurter: I'd like to -- I'll say this. I've already left one question with you --
Ralph S. Spritzer: Yes.
Felix Frankfurter: -- and I'd like to put another one, which illuminates (Voice Overlap) --
Ralph S. Spritzer: I have not forgotten.
Felix Frankfurter: As I understand your argument, which I followed -- as I do your argument to -- and I know the interest, I know the attention it produced. Your position in effect is that unless this Court can say that the sentence of the Board of Review is not legal, it has no power to interfere with you.
Ralph S. Spritzer: That is right.
Felix Frankfurter: That's -- that's what your argument -- that --
Ralph S. Spritzer: That is right.
Felix Frankfurter: -- what's your position is?
Ralph S. Spritzer: And that rests upon our analysis of the Uniform Code and of the specific articles which I've mentioned.
Felix Frankfurter: That's why that question hooks up with the question I put to you before them.
Ralph S. Spritzer: Yes, Your Honor.
Earl Warren: And by --
Felix Frankfurter: I mean --
Earl Warren: -- by not legal -- by not legal, you mean not exceeding the punishment for that crime is that right?
Ralph S. Spritzer: I mean that and I would have to add the further qualification but not exceeding the original sentence engross in those --
Earl Warren: Yes.
Ralph S. Spritzer: -- other questions.
Felix Frankfurter: Or not involving an original imposition of sentence.
Ralph S. Spritzer: That is right.
Felix Frankfurter: That's the --
Ralph S. Spritzer: Now --
Felix Frankfurter: -- important thing in this case.
Ralph S. Spritzer: Yes. I would like to get before the Court one sentence from the report of the Senate Committee in relation to Article 66, which is the Article, which gives the Board of Review its powers. And the Senate Committee stated, “The Board may set aside on the basis of the record any part of a sentence, either because it is illegal or because it is inappropriate." I emphasize that word “inappropriate”. “It is contemplated,” the report states, “that this power will be exercised to establish uniformity of sentences throughout the Arm Forces.” Now, I'd say it's apparent from that Congress knew that it was giving the Boards of review extensive judging powers to arrive at the sentences, which were specially suited to the offense or offenses as ultimately sustained by the Board of Review. Now, what is the alternative, which will flow from petitioner's suggestion, that where there are altered findings, you have to go back to court-martial?
Hugo L. Black: It wouldn't bother you much because they'd acquiesce before you leave there.
Ralph S. Spritzer: Yes, sir.
Hugo L. Black: Is that the sole history of the legislation that we have that will show light on the problem we have before us?
Ralph S. Spritzer: We have also quoted in our brief and I did a little to that briefly before what Professor Morgan had said to the Committee. There's also a history, which shows that the Judge Advocate General of the respective services did not want the Boards of review to have power over sentencing. They apparently preferred that such power be placed in the Judge Advocate General rather than in Boards. We've given some of the colloquy, both in the Senate and the House, which shows that both the Senate and the House concluded that they wanted the Boards of review to have the power over sentences. And then, there is in the report, this language I have just mentioned that -- that one of the things they hope for is that the boards of review will achieve certain degree of uniformity and appropriateness of sentence.
Hugo L. Black: Is there anything in the hearing or the reports of any kind that discussed this particular title or situations we have before us here?
Ralph S. Spritzer: No, no. No, I don't -- it's --
Hugo L. Black: Wouldn't it?
Ralph S. Spritzer: -- not the kind of situation one would readily --
Hugo L. Black: No, but I want to be sure.
Ralph S. Spritzer: -- envision and we've -- I think we've given everything in our -- our brief that we know of that is relevant to this history. It is a fairly full brief. What we think emerges then from this structure of review there -- are these facts. In the first place, we think that it must be remembered that the court-martial is essentially like a jury, which is convened for a limited time. It can be convened only for a single case, which has no continuity, no situs. By the time this very case was reviewed by the Board of Reviews on six or seven months after the case had been tried, it's quite probable that you couldn't get a form of the same court, especially in the field would that be true. And I -- I think I say that it's quite uncommon that a court-martial would function as the unit for more than a few weeks or -- or perhaps, a few short months, because officers are constantly being assigned in new duties or to new stations. We think further, it appears from an analysis of the structure of the Military Law Review system that Congress has here vested extensive judging powers in reviewing authorities as well as in courts-martial. These authorities, both at the convening authority level and at the Board of Review level can review the fact as de novo.And Congress has specifically indicated that it has expected that the boards of review would make judgments as the convening authorities also to do since he is to act on the sentence in his discretion, would make judgements as to sentence appropriateness. Now, that indicates to us that the reviewing authorities are not solely agencies of review, though we use that term. They have powers, which partake of the powers of a trial judge in our federal system. The -- the court-martial has no presiding judge like our District Court does and the court-martial is a very transient body. But the convening authority does have powers like a judge and extensive ones for he cannot only consider the facts, he can decide in his discretion how much of the court-martial sentence to approve. And that, we think, is the key to the question, what is to be the disposition of a case involving multiple convictions in which there are modifications of the findings by the higher authorities.
Harold Burton: Mr. Spritzer.
Ralph S. Spritzer: Yes sir.
Harold Burton: What happens to that light of the accused, when, as here, the Board of Review adjusts as you say the sentence, does that deprive the soldier of his opportunity to appeal to the convening authority for clemency or reduction?
Ralph S. Spritzer: Where the Board of Review acts on sentence, the convening authority may no longer act. In the situation I'm referring to, the sentencing, the judgment as to appropriateness of the sentence would be made by the Board of Review. Now, if the Board of Review had decided in this case that perhaps there should be a retrial on the murder count it would've disposed of the case differently. It would have said, “We are remanding the case to the convening authority for a hearing or such other action as he may deem appropriate.” Now, if in that circumstance, the convening authority decided that for one reason or another, the murder charge could not be retried. For example, the unavailability of witnesses, then it would be in his profits since the case had been referred back to him to adjust the sentence in the light of the findings, ultimately sustained. In no event, do we think that this system contemplates a reference back to a court-martial for resentencing? The petitioners have pointed out that if the case were to go back, it would have to go to a new court. Now, I -- I think it would be an astonishing suggestion that Congress intended a new court to read a called record and fix inappropriate sentence. When Congress has created a Board of Review, especially qualified professional body to pass upon matters of sentence appropriateness and has indeed said, “We hope that in giving the boards of review this power, greater uniformity of sentences among the various services will be achieved.” Now, we're saying that the court-martial, once it has expired is hardly the body to commit this matter of resentencing, but this system contemplates that judging power is vested in reviewing authorities shall serve that purpose. Now, that of course has been the unanimous position of the cases as decided during the brief history of the Court of Military Appeal. I'm not going to attempt to refer to its decisions in the brief time remaining, but it has dealt. The Court of Military Appeals has dealt on numerous occasions with this question of resentencing, and it has said that the change in the quantum of punishment, which is to be made in the lighter -- light of altered findings is to be made by reviewing authorities. There's only one case and that needs some -- a word of explanation. Only one case we know of in which a resentencing matter was ever committed back to a court-martial and that was this situation. An officer had been tried on five charges and found guilty on five. The Board of Review and the Court of Military Appeals determined that certain of the charges were not supported and the end result was that after the Court Military Appeals had finished, only one offense of the five stood intact, only one finding of guilt and that a very minor offense. The officer had been sentenced to dismiss it. The Court of Military Appeals said in that case that it did not think that the reviewing authority could make any adjustment, had the power to make any adjustment in the sentence, because a change from dismissal to any other form of punishment is deemed in military law a commutation of sentence. A change to a different type of punishment and a commutation of sentences that power is reserved to the President alone. And the -- and the Court of Military Appeals in that case said that it thought that the officer should be retried under one offense which was found a valid conviction. Other than that, we know of no instance of sending it back to the court-martial for resentencing. Now, I still could not --
Felix Frankfurter: (Voice Overlap) on the merits of that.
Ralph S. Spritzer: Pardon sir?
Felix Frankfurter: Send it back to be retried on the --
Ralph S. Spritzer: It was retried on the merits.
Felix Frankfurter: -- on the merits. Mr. Spritzer, are you going to leave here some time forth --
Ralph S. Spritzer: I am --
Felix Frankfurter: -- for me is the crucial question in this case.
Ralph S. Spritzer: Yes, sir. I'm -- I'll come to it immediately. We think it must be conclusively presumed that the court-martial here imposed a gross sentence, which covered both the offenses of which the accused had just been found guilty by the court-martial. And for these reasons, the court-martial has a duty to impose a proper sentence for all of the offenses of which the accused are found guilty. The court-martial also is required to impose a single sentence. Therefore, I say, that when the court-martial, having returned findings of guilt of two offenses, imposes a sentence in gross. It is too conclusively to be presumed as in the case of any general sentence that the sentence imposed covers all of the offenses of which the accused were found guilty. Now, I don't think that there's any more reason in this case to suppose that the sentence doesn't cover all of the offenses, merely because it's a mandatory sentence of life imprisonment. I don't think, as Judge Hastie quoted in his opinion in Number 619 that, “The military is required to adapt any such oddity as giving a sentence of life imprisonment plus a term of years.”
Felix Frankfurter: No, but when you say conclusively presumed, I -- he thought he had knew that that mean that some past, including an evidentiary term, a rule of law. And I want to know why you should put in terms of a rule of law, what's the source of that?But the reason for it is, when you got a situation, which as a practical, human, sensible interpretation of the circumstances of this case may make that conclusive presumption, not a sensible presumption.
Ralph S. Spritzer: I -- I --
Felix Frankfurter: Why should -- why should a court will find a man of guilty of murder for which it must give him life sentence, also be even thinking of what it would do for a sentence that calls for a term of years? Why shouldn't any -- what is it that requires of me to say that that's the rule of law except to this extent, namely, from your point of view that there's a general -- that the control that you have the doctrine -- the -- the rule of law that you have a gross sentence. The rule of law that the -- the Board of Review is not confined and the Court of Appeals as in the civil cases are saying, “Well, for all we know, the same judgment, the case they be sent back would've impose the different sentences for the reason that you well indicated.” But the only rule of law, the only reason why it should include the rule of law in this situation to say that the considerations of symmetry in the law or harmonious comprehensiveness disallow us to look at this case in the peculiar circumstances of this case.
Ralph S. Spritzer: Well, I -- I would say that the Court has an -- the court-martial has an unqualified duty in all cases to impose a proper sentence for all of the offenses of which had found be accused guilty. Now, I -- I hardly think that that one could say that, could -- could invoke any different conclusion because if they happen to answer, there was a mandatory sentence here.
Felix Frankfurter: Suppose you -- suppose you take the question as I put it to you. Suppose they've actually said, “We don't have to bother about the sentence for rape.” Now, that is not this case, I understand that. Suppose that were in, what would you do with that case?
Ralph S. Spritzer: I think the convening authority in any case in which the court-martial fails to impose any sentence would return it to the court-martial by proceedings in revisions so that it would adjudge its sentence.
Felix Frankfurter: But really, would they -- they say, “Why do we have to bother about this? These -- these are human beings after all.” They say, “He isn't guilty of murder to sentence his life.” Why bother to say, 10 years extra for rape, running concurrently as it were.
Ralph S. Spritzer: Well, no doubt -- it's no doubt true that the -- that the court-martial wouldn't have to give the attention to the rape penalty in the circumstances of this case that it wouldn't in other circumstances.
Speaker: Well I --
Ralph S. Spritzer: But I hardly think one can jump from that rule of law, which said that an engross sentence doesn't cover all offenses of which the accused is found guilty where you have a mandatory minimum --
Felix Frankfurter: I'm interpreting the rule of law.
Earl Warren: I suppose one can presume also that the court-martial knows these advisory powers of the reviewing board.
Ralph S. Spritzer: Yes sir, that for --
Earl Warren: And hence, if the conviction for murder is set aside, it has power. You're contending to impose such part of that sentence which is necessarily included in 20 years in the remaining offense.
Ralph S. Spritzer: It's fully aware to that. In fact, of course, it's fundamental on the system that the court martial sentence has no effect at all until reviewing authorities act upon it. Now, in this case, the reviewing authorities were in a position to consider the entire record. The Board of Review, when it imposed the maximum sentence for rape, didn't do it because it believed that it ought to have a maximum as a matter of course. It considered at length and I would command to the Court, the Board of Review's opinion, the circumstances in this case, which it characterized it's ruthlessly vicious when it decided that it was going to impose a maximum penalty. Now, I don't intend to go outside the record into the facts as shown by the court martial record. This is a thin record that comes out on habeas corpus. I don't -- I've heard for the first time today the suggestion that the woman who was raped was a prostitute. I suggest that insofar as -- it's necessarily to consider whether the Board of Review exercised the discretion which is supposed to. I suggest that the place turned for an examination of that as the Board of Review's opinion, which gives the circumstances of this crime as shown by the statements which the accused themselves name.
Earl Warren: Mr. Spritzer, may -- is this an apparent question to ask? To what extent would -- would in your opinion be the detriment to military justice if -- if the rule asked for by these appellants would prevail?
Ralph S. Spritzer: I'd like to answer that question if I may, by referring to a sentence or two from the Court of Military Appeals --
Earl Warren: Yes.
Ralph S. Spritzer: -- which is concerned about the allocation of these powers. And it has addressed itself in -- on several occasions to the question of modifying sentence in the light of altered findings. Now, it is said, “We repeat that in military law --
Harold Burton: Could you give us the reference.
Ralph S. Spritzer: Yes, sir. I'm reading from page 57 of The Government's brief at the bottom of the page. And this is a recent decision of the Court of Military Appeals, United States against (Inaudible). We repeat that in military law, “A single inclusive sentence is imposed and unless the Board of Review has the power to affirm a sentence in whole or in part when findings are modified, the whole appellate structure must be redesigned.” One of the cardinal principles, set out in Article 66 is that a Board of Review may affirm all or part of the findings and determine a specially suited sentence from the entire record. That obviously means the record as it stands or as it has been changed by action on the finding. I don't think that one could conclude in this case that the Board of Review did not have authority to fix a specially suited sentence in the exercise of its judgment without casting great doubt upon the powers of boards of reviews to adjust sentence in other cases in which there has been an alteration of the findings in the process of review. The Court of Military Appeals expresses itself as believing that if such powers of modification over sentence cannot be exercised by reviewing authorities the whole appellate structure must be redesigned. And this of course rest basically on the fact that you don't have a trial court in the sense that we do within our federal system to consider matters of resentencing.
Urban P. Van Susteren: May it please the Court.
Earl Warren: Yes, Mr. Susteren.
Urban P. Van Susteren: First of all, I would like to comment in a good deal of what has been said by opposing counsel. It goes away from the absolutely necessary and fundamental concept that this Board of Review has only those powers which are given with by the statute and those which must necessarily be inferred permit. Now, what much have what has been said might have some effect upon the matter of interpreting that statute, but otherwise, the Board of Review nor the Court of Military Appeals does not have a -- a system of rules as the common law rules with which it can guide itself and tailor its remedies in its procedures to meet the exigencies of each situation. In connection with comments upon the number of appeals that there were to the Board of Review, not only a number of appeals, a number of times that the Board of Review set aside either the findings or the sentence. And in connection with it as being used here to indicate to this Court, the burden upon the military establishment to send those back for a new trial or rehearing, at least we point out, first of all that the law is -- that boards of review or that court-martials will use their own discretion in fixing a penalty. I read from the manual for courts-martial, page 121 or 122, down paragraph four, “Courts will, however, exercise their own discretion and will not adjudge sentences known to be excessive in reliance upon the mitigating action of the convening or the higher authority.” Now, I'll take to hear more journals as quoted in the respondent's brief on page 419 of that issue, an article written by the editors of the Yale Law Review quoted in this brief and they comment us, at the top of page 419. The Court fail to -- referring to the Court in Chicago first of all, the Court for the Seventh Circuit in the De Coster case. The Court fails to consider that in practice, courts-martial performed a function nearer to that of the juries in a court. And here it is, “Courts-martials are composed of laymen, all though they theoretically can impose whatever sentence they deemed fit. In the great majority of single conviction cases, they actually impose the maximum sentence permissible. The final sentence is set upon review by the legally trained boards.” Now, if the Army would follow the plain simple letter of the law, and tell the court-martial to adjudge a penalty which is correct and proper in their own mind as the Congress intended to, they wouldn't had he cluttered and clogged up there in the Board of Review, and they would not have the necessity for all of those rehearings. Now, taking up another subject, and that is the question of the basis or reason for the number of changes that have been made and considering it in the light of how frequently rehearings would be necessary. In this case, we have a situation where the sentence imposed by the court-martial was greater than the maximum permissible for the count that has been held to be good. I would like to take the Court's attention back to the early days of these Court's existence, the case of -- United States versus Clawson cited in my brief. In that case, Clawson and an Army officer had been convicted by a court-martial of a number of offenses of the type of bribery and embezzlement and so forth. The President was the appointing authority for the Court, so the President reviewed the case. The President set aside a number of those convictions, but he did not change the penalty. I believe the penalty was five years. On petition for writ of habeas corpus, this Court announced or adopted what we might call the Lord Mansfield Rule, saying that prior to the declaration of independence, it was announced by Lord Mansfield that where there is a general verdict and a general sentence imposed upon a number of counts and it is later found that some of those counts be held not good, it will be presumed that the Court levied the sentence upon the count that was good. Now, that has been adopted, that was the -- the law in this -- in this Court. That was adopted by the Army and the Army has operated under that principle all during these years. So, when the Uniform Code of Military Justice was launched, that -- I wonder when it started. That principle, which has been followed all during those years, we must concede change into light with it. It followed along. We cannot argue that that principle is dead. I think it lives. But that principle cannot be extended to a situation like this because here, the Lord Mansfield Rule, the Clawson case reiterated in a number of other cases since that time, by its own words it excludes this type of case, because here, we know that the Court did not levied a sentence on the count that is good because it would have been a maximum of 20 years. We know that they levied sentence on the bad count for the --
Felix Frankfurter: How do we know that?
Earl Warren: I don't see how you --
Felix Frankfurter: How do we know that?
Urban P. Van Susteren: Well, we must presume that the Court, were honorable gentlemen. They have been informed by their law officer that the maximum penalty for -- or the minimum penalty for life imprisonment for -- for murder was life imprisonment. At least -- you see, under the Lord Mansfield Rule, it said, “It will be presumed that the Court levied sentence on the count which has been held good,” unless, there is something in the record to show the contrary, that's it. Now, we know that the court-martial, I presume, we can see from the record that court-martial didn't levy a -- a life imprisonment sentence for the attempted rape. Furthermore, the record does show that the Court had been advised by the law officer that the penalty for murder was life imprisonment and they probably went ahead and put in the life imprisonment. So, the Lord Mansfield doctrine cannot --
Felix Frankfurter: I don't -- just as to me, just as rational to assume that didn't -- I now put the reverse of my difficulty to that which I put to Mr. Spritzer, just as -- that's for me to assume they say, “This fellow ought to get life for this retched did and he ought to got 20 years for the rape,” but the life takes care of the 20 years so we don't have to add a redundant figure of justice for action, for all I know probably true.
Urban P. Van Susteren: Perhaps, sir, but in discussing this situation where it is not and -- and taking up this -- this proposition that it is not necessary for the Army to burden itself with all of these rehearings and appeals. I say that it is not necessary, and I say that we don't want to extend the rule to all cases. We limit it to those cases, which do not come within that Lord Mansfield doctrine. In other words, I say yes, it is proper for the Board of Review in setting aside some of the charges, nevertheless, to keep the penalty as it was without remitting the thing if it appears that the sentence as originally imposed was within the maximum limit for the count which they sustain, then the doctrine, the Lord Mansfield doctrine operate --
Felix Frankfurter: But it was --
Urban P. Van Susteren: -- whether they don't have to change.
Felix Frankfurter: But it was within the limits.
Urban P. Van Susteren: No, sir, the maximum penalty for the good count is 20 years or --
Felix Frankfurter: Well --
Urban P. Van Susteren: -- life imprisonment.
Felix Frankfurter: That's the excess. They locked that all.
Urban P. Van Susteren: Oh, yes. But you see, that would be a --
Felix Frankfurter: (Voice Overlap) --
Urban P. Van Susteren: -- wholly court doing that.
Felix Frankfurter: Pardon me?
Urban P. Van Susteren: That was the appellate tribunal locking it off, but the Mansfield doctrine is that when --
Felix Frankfurter: Well, I --
Urban P. Van Susteren: -- a trial court --
Felix Frankfurter: What -- why should I bother about the Mansfield doctrine anyhow to this military justice? Can you please tell me that?
Urban P. Van Susteren: Well, you see, that is the only -- the only place where the Board of Review has any basis for any authority of any kind to tailor a sentence to or to -- yes, to tailor or fit a sentence to a crime.
Felix Frankfurter: That all depends how you read. It all depends how you're going to read --
Urban P. Van Susteren: Paragraph?
Felix Frankfurter: C.
Urban P. Van Susteren: B and D --
Felix Frankfurter: Yes.
Urban P. Van Susteren: -- of Section 66, yes indeed so. If -- if we read it as I read then it's true. But if we read it as counsel for the respondent reads it, then it may not be true.
Felix Frankfurter: Well, that's right. I don't see that -- I don't think that Lord Mansfield helps me to solve this problem with the utmost reference that I have for this (Voice Overlap) --
Urban P. Van Susteren: I -- I think I have spelled out that it will not in this Court announce the rule that the Board of Review have no -- no authority or power to do as it does. It will not require the Board of Review to send back all of those cases for rehearing whenever they set aside one, or two, or three, or some of the convictions, because that old rule is still there to permit them to -- to keep the original sentence. Now, in his argument, counsel for respondent talks about the -- the elaborate protection which Congress had directed against harsh penalties in showing that the convening authority can reduce and set aside that cannot increase. That, I say, is precisely the mischief involved in what have been done here. This Congress intended that a soldier should have all of those protections. Here, the solider has had none. He has no chance for any further review, and I believe counsel has admitted that the finding here in this case was final. There was no other type of appeal. Then, if we assume that Congress could provide as there was some discussion about it. Assuming that Congress did have the authority to provide that the penalty could be fixed ab initio by the Board of Review, nevertheless, I say the important fact is Congress did not do it, and that the Board of Review has no power other than those granted, either by the specific letter of the statute or by necessary inconvenient.