Landmark Cases: United States v. Clay

Anyone who survived law school or non-lawyers with an interest in the Supreme Court are probably familiar with some or most of the Supreme Court’s landmark decisions. There are even books written about them. Over the coming weeks and months, I will be highlighting what I believe to be landmark decisions by the military’s highest court. In this post, I highlight United States v. Clay, 1 C.M.R. 74 (C.M.A. 1951) and the “military due process” doctrine.

Facts

The court-martial of Hospitalman Raymond D. Clay arose during the Korean War. Hospitalman Clay was tried by special court-martial[1] on two charges. The first was violation of Article 8(1) of the Articles for the Government of the Navy. This Article punished “profane swearing, falsehood, drunkenness, gambling, fraud, theft, or any other scandalous conduct tending to the destruction of good morals.” He basically got into a fight with two Korean nationals. The second was violation of Article 22(a). This Article punished “[a]ll offenses committed by persons belonging to the Navy which are not specified in the foregoing articles. . . .” Yup, you read that right. Specifically, Hospitalman Clay was prosecuted for “improperly wearing the uniform.” Clay pleaded guilty to improper wear of the uniform, but not guilty to the disorder. The court-martial convicted him of both offenses.

However, the newly-enacted UCMJ, which applied to this particular case even though the offenses arose prior to its enactment,[2] required the President[3] of the panel to instruct the panel on the elements of the offense, the presumption of innocence, and the burden of proof. He did not.

The defense counsel objected. The court acknowledged the possibility of error, but nevertheless overruled the objection, sentenced Clay, and attached a letter explaining what happened to the record for review by the convening authority.[4]

The convening authority found no prejudice to Clay’s substantial rights and the board of review agreed. The Judge Advocate General of the Navy (TJAG) subsequently certified[5] the question to the then-named Court of Military Appeals.

Military Due Process

The Court began its analysis by announcing it disagreed with the lower tribunal’s explanation of the lack of prejudice. It then turned its analysis to what makes this a landmark decision. The Court articulated the concept of “military due process.” Basically, service members do not enjoy constitutional rights enshrined in the Constitution of the United States. They receive only those collection of rights articulated by Congress in the UCMJ. Sure, courts may give the same legal effect of those statutory rights that mirror constitutional ones, but they are not required to do so. Below are some excerpts from the decision.

Before we touch [the question of prejudice], we look to the acts of Congress to determine whether it has declared that there are fundamental rights inherent in the trial of military offenses which must be accorded to an accused before it can be said that he has been fairly convicted.

There are certain standards in the military accusatorial system which have been specifically set by Congress and which we must demand be observed in the trials of military offenses. . . .

For lack of a more descriptive phrase, we label the pattern as “military due process” and then point up the minimum standards which are the framework for this concept and which must be met before the accused can be legally convicted.

For our purposes, and in keeping with the principles of military justice developed over the years, we do not bottom those rights and privileges on the Constitution. We base them on the laws as enacted by Congress. But this does not mean that we can not give the same legal effect to the rights granted by Congress to military personnel as do civilian courts to those granted to civilians by the Constitution or by other federal statutes.

The following rights constituted “military due process:”

To be informed of the charges against him; to be confronted by witnesses testifying against him; to cross-examine witnesses for the government; to challenge members of the court for cause or peremptorily; to have a specified number of members compose general and special courts-martial; to be represented by counsel; not to be compelled to incriminate himself; to have involuntary confessions excluded from consideration; to have the court instructed on the elements of the offense, the presumption of innocence, and the burden of proof; to be found guilty of an offense only when a designated number of members concur in a finding to that effect; to be sentenced only when a certain number of members vote in the affirmative; and to have an appellate review.

However, the Court continued that this list was not all-inclusive.

Because Hospitalman Clay was deprived of his “military due process” rights, the Court unanimously reversed the decision by the lower tribunal.

I consider United States v. Clay to be a landmark decision. Just one year after a revolution in military justice thirty years in the making—and nearly 200 years after the American Revolution—the Court created a doctrine that deprived service members the full panoply of rights afforded by the Constitution of the United States. This doctrine evolved over time, but any student of military law and legal history should be familiar with this decision.

 

N.B. I have a running list of decisions I believe should be considered landmark decisions, but I invited readers to submit their own suggestions for consideration!

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[1] The Uniform Code of Military Justice (UCMJ) created three types of courts-martial: summary court-martial, special court-martial, and general court-martial. They are classified primarily by the maximum punishment each may adjudge. The best way I can explain it to non-military lawyers is to think about the differences between traffic court, misdemeanor court, and felony court. It is not exactly that simple, but it should give readers an idea.

[2] Based on the process whereby the military “sends” a case to trial, the new rules applied to cases “sent” after a certain date, which Clay’s case qualified.

[3] It is important to remember that courts-martial resembled administrative boards at this time. There was no military judge that presided over the trial. The “jury,” called a panel, served as both judge and jury. The senior ranking officer, a non-lawyer, presided over the panel with the assistance of the Manual for Courts-Martial (MCM). The MCM at the time was basically a treatise on military law combined with forms to be used.

[4] Then and now, the convening authority—the officer with authority to “send” cases to trial—needed to take action on the findings and sentence before a court-martial was officially completed. He could reduce a sentence or set aside a finding, but could not increase the sentence. The long history of military justice reform has included a focus on attempting to remove the convening authority from military justice, while opponents have successfully kept the convening authority in control (though his powers have become more limited).

[5] TJAG of each service is supposed to be a quasi-judicial officer. He is charged, inter alia, with ensuring the proper development of military law. Therefore, Article 67 of the UCMJ (10 U.S.C. § 867) requires the Court of Appeals for the Armed Forces (as it is currently named) to hear any question TJAG “certifies” to the Court for review. This is supposed to include questions for the Government and the Defense.

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