So far, in my review of the records that I have available for Walt’s court martial, I have found two areas of concern that I would like to focus on further:
- The first involves a memo (aka the Thanksgiving memo), dated Nov 23, 1989, sent by LT Zeller to RADM Zitoff, routed via CAPT Romanski, expressing his concerns about the prosecutor. (Article 6(c) UCMJ, R.C.M 1106(b))
- The second involves a memo, dated May 31, 1990, sent by LT Zeller to RADM Bitoff, routed via CAPT Edwards, forwarding the Court Martial action, the reprimand, as well as a clemency request and a recommendation on said request. (R.C.M. 1112, R.C.M 1106(b), Article 6(c) UCMJ)
So let’s first of all look at what the UCMJ and the R.C.M say about the Staff Judge Advocate (SJA). Since the court martial process involves commanders and those reporting to them, the appearance of bias or unfairness has to be avoided at all cost and the military courts have been quite strict in enforcing the appearance of fairness. As such, the roles of the various players are spelled out in some detail in the Uniform Code of Military Justice (UCMJ) and the Rules for Court Martial. (R.C.M.). For example, the convening authority can in general not be an accuser, and those who have played any role in the court proceedings cannot serve as advisers to reviewing entities. Similar restrictions exist for the Judge, the panel members, the prosecutor, the investigating officer, and so on.
The SJA (Staff Judge Advocate) advises a commander on legal issues and his role in the Court Martial proceedings can be quite extensive, and even prescribed by statute. The SJA provides recommendations for the Article 34 review and the Post Trial review by the Convening Authority, and it is thus important that these official roles are filled by people who have the appearance of being unbiased and fair.
Article 6(c) of the UCMJ states that:
(c) No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as staff judge-advocate or legal officer to any reviewing authority upon the same case.
Source: Article 6 UCMJ
Somewhat unfortunately, the article does not address the role of the accuser explicitly.
R.C.M. 1106 deals with post-trial recommendations and who is disqualified from signing the SJAR (Staff Judge Advocate Recommendation) to the Convening Authority:
(b) Disqualification. No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing or convening authority in the same case.
However, the rule is limited to cases involving a GCM (General Court Martial) or a SPCM (Special Court Martial) which results in a bad-conduct discharge. This PTR or Post Trial Recommendation is also know as an SJAR. In Walt’s case there is no requirement for PTR as he was given a Special Court Martial. Note that a special court martial significantly lowers the risks for the accused as the maximum punishment is:
confinement for 12 months, forfeiture of two-thirds pay for 12 months, reduction to the lowest pay grade (E-1), and a bad conduct discharge. (Note: In May 2002, maximum confinement and forfeitures changed from 6 months to 12 months).
But for officers, the most severe punishment is the reprimand. The following figure explains:
Neither Article 6(c) nor the narrower R.C.M. 1106(b) mentions specifically an accuser, however there may be some reason to believe that “accuser” is included in the definition. However, in US v Boodhoo, NMCCA 200201205, October 17, 2005, the Judge observed that the issue is not that clear:
The appellant correctly notes that in United States v. Zaptin, 41 M.J. 877, 879 (N.M.Ct. Crim.App. 1995), it was held that a Legal Officer is not automatically precluded from preparing the required recommendation solely because he was the accuser in the case if he is only a “nominal” accuser.…Indeed, while Article 6(c) of the UCMJ and RULE FOR COURTS – MARTIAL 1106(b), UNITED STATES (2000 ed.), prohibit certain individuals from acting as legal officers, accusers are not among those prohibited. See Zaptin 41 M.J. at 880.
Under UCMJ Article 60, the convening authority has unfettered discretion as a matter of command prerogative to set aside a finding of guilty or modify a sentence, so long as a sentence is not increased. See United States v. Nerad, 69 M.J. 138 (CAAF 2010); United States v. Finster, 51 M.J. 185, 186 (CAAF 1999); United States v. Travis, 66 M.J. 301, 303 (CAAF 2008) (“Clemency is a highly discretionary command function of a convening authority.”)
Source: UCMJ Clemency and Parole
“You may recall that the context in which I had reviewed this case was in execution of my responsibilities under Article 69, Uniform Code of Military Justice (10 U.S.C. § 869), acting on matters submitted by LCDR Fitzpatrick. Although this November 23, 1989 memo was not part of LCDR Fitzpatrick’s submission, I have again reviewed the case in light of the memorandum and do not find illegal command influence. Clearly LT Zeller was providing advice to his commander, but he was not making recommendations concerning the guilt or innocence of LCDR Fitzpatrick, the appropriate sentence for LCDR Fitzpatrick, or, even whether the case ultimately should be referred to a general court-martial. In short the memorandum does not purport to influence the independent judgment of the, convening authority…
Source: Statement of Rear Admiral Harold E. “Rick” Grant, JAGC, USN Then Navy Judge Advocate General, in a letter to U.S. Senator Patty Murray dated 14 July 1994
2. The second memo is a memo from LT Zeller to RADM Bitoff. LT Zeller recommends RADM Bitoff to not accept the clemency request. Here the question of prejudice becomes muddled as he clearly tries to influence the independent judgment of the convening authority. The question is: Did LT Zeller act as a Staff Judge Advocate in this matter? Since the acting SJA, LT Algiers did not have to review the proceedings under R.C.M. 1112, and since LT Zeller had recused himself, the forwarding of the information was purely administrative in nature, but the recommendation? The Convening Authority is not prohibited from asking advice from others. RADM Bitoff mentions in his letter to Norm Dicks that indeed he had sought advice from others.
Sir, enclosed are the action and the Letter of Reprimand ordered awarded by the court members in the subject case. Also enclosed is a clemency request from the defense counsel in which he recommends that you disapprove the findings of the court, essentially overturning the court-martial, based on his’ opinion that a court was not the proper forum. This contention is somewhat ironic in view of the fact that the accused was offered a fair hearing at mast and refused that opportunity. I strongly recommend that clemency not be granted, and that the sentence of the court-martial be carried out as adjudged. Your execution of the action and the letter will execute the sentence.
Source: LT Zeller memo to RADM Bitoff
The recommendation is not a SJAR as spelled out in the R.M.C and this was communicated to LCDR Fitzpatrick:
“Regarding your request for records of “post-trial advice provided to RADM Bitof fon or before June 7, 1990”, a search of records under the cognizance of OJAG, COMNAVSURFPAC, and CNSGPNW did not identify any records made part of the Record of Trial that are responsive to your request.
Our search of records related to your special court-martial disclosed a memorandum to the convening authority [RADM Bitoff], dated May 31, 1990, signed by the COMLOGGRU staff judge advocate [LT Zeller]. The subject line of that memorandum is “Convening Authority Action ICO LCDR Fitzpatrick.” Our coordination with COMNAVSURFPAC indicated this memorandum was previously released to you in its entirety in June of this year.
Source: Statement of Lieutenant CommanderJ.L Roth, JAGC, U.S. Navy Head, FOIA/P A Branch Administrative Law Division (Code 13), Office of the Judge Advocate General, in a letter to Mr. Fitzpatrick dated 29 September 2000
Walt would have to overcome several hurdles, for these issues to become relevant to the outcome of the case. If an appeal’s court (and Walt’s conviction does not grant him such appeal’s rights) were to find that this is an error, the case would likely be returned to another Convening Authority for review.
More recently Walt has argued that the memo was somehow illegally extracted from the Record of Trial, however the document is not a Post-Trial recommendation under rule 1106.
So let’s look in more detail at Walt’s claims
Post-trial advice has become the crime du-jour as it’s been discovered only within the past six months that the recording of post-trial advice, the document itself, signed by the attorney providing it, has been illegally extracted from the Record ofTrial
Section 8 begins with a summary of statements made by officials claiming post-trail advice was made part of the record or was reviewed, but in all instances, witnesses post-trial advice say supplied by someone other than Zeller. Rear Admiral Rick Grant went so far as to name an attorney, Lieutenant T.]. Algiers, but, regrettably, Grant was lying.
“Regrettably” RADM Grant stated the following:
Because LT Zeller was the accuser, followinq the pretrial investigation, the statutory Article 34, Uniform Code of Justice (10 U.S.C. 5 834) pretrial advice was prepared for Rear Admiral Bitoff by another lawyer, LT Algiers.
Source: RADM Grant letter July 14, 1994 to Senator Patty Murray
Referring to the Statutory Article 34 pre-trial advice, not the post-trial advice. Since there is no statutory requirement for post-trial recommendation by the SJA, it should not be a surprise that none was given.
After RADM Bitoff approved the sentence, the records were forwarded under Article 64 UCMJ and Rule 1112 M.C.M., for review by the Staff Judge Advocate, Commander Naval Surface Force, U. S. Pacific Fleet. LCDR Fitszpatrick’s record of trial contains the following documet
Commander, Naval Surface Force, U.S. Pacific Fleet SPCM 27-90 5814 Ser 0062:cqs of 17 Aug 90, SUbj: Review of Special Court- Martial in accordance with UCMJ, art. 64; MCM (1984), and R.C.M. 1112 (Art 64 review)
In fact the review was performed as outlined in RADM Grant’s letter:
Pursuant to Article 64, UCM3, his case was reviewed by the Assistant Force Judge Advocate,. Naval Surface Force, U.S. Pacific Fleet. It was determined, on August 17, 1990, that the findings of the court were correct in law and fact ad that the sentence was within the limits set by law.
Source: Letter RADM H.E. Grant to Senator Murray, May 5, 1994
An interesting document which I have not seen is the summary of the trial
Commander, Combat Logistics Group ONE ltr 5800 Ser 006/1456 of 7 Aug 90, subj: Summarized Record of Trial ICO LCDR Walter F. Fitzpatrick, USN
Although, since the issue was tried by a Special Court Martial, Appellate Court review is very limited, there has been at least one case Unger v Ziemniak, 27 MJ 349 (1989) where the Court considered an extraordinary writ to prohibit trial, relying on the All Writs Act 28 USC 1651. It may however be too late to pursue such an avenue.
Ten months and a day later, the National Defense Authorization Act for Fiscal Years 1990 and 1991 was enacted. Pub. L. No. 101-189, 103 Stat. 1576 (1989). Section 1302(a) of that Act greatly expanded CMA’s potential appellate jurisdiction. As EFTS explains:
The Court’s jurisdiction over “nonreviewable” (subjurisdictional) courts-martial (i.e., general and special courts-martial in which there is no punitive discharge and summary courts-martial, none of which are subject to automatic review by a Court of Criminal Appeals) changed dramatically in 1989. . . . Section 1302 . . . provided that non-bad-conduct discharge special courts-martial and summary courts-martial can also be referred to a Court of Criminal Appeals. . . . Such cases are therefore now also potentially subject to review by [CAAF] either by certificate for review or on petition by the accused.
Eugene R. Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces 20 (12th ed. 2006).
Source: CAAFLog 2007
LCDR Fitzpatrick’s case was indeed reviewed under Article 64 which may lead to an Article 69 review in the office of the Judge Advocate General or a direct Article 69(b) appeal
LCDR Fitzpatrick’s right to appeal the conviction under Article 69(b), UCMJ, was explained to him in writing and attached to the record of trial. Article 69(b) provides that cases like LCDR Fitzpatrick’s may be reviewed by the Office of the Judge Advocate General upon application by the accused and that findings, sentence, or both, may be modified or set aside by the Judge Advocate General on grounds of newly discovered evidence, fraud on the court, lack of jurisdiction, error prejudicial to the substantial rights of the accused, or appropriateness of the sentence. As noted above, LCDR Fitzpatrick exercised this right with a three volume application. Each of his allegations was carefully considered on appeal and were rejected as being without merit.
Source: RADM Grant memo to Senator Murray, May 5, 1994
OJAG did decide to revise the willful finding to a negligent one since the specification had not explicitly stated knowledge of said duties.
Article 69(d) reads
(d) A Court of Military Review may review, under section 866 of this title (article 66)–
(1) any court-martial case which (A) is subject to action by the Judge Advocate General under this section, and (b) is sent to the Court of Military Review by order of the Judge Advocate General; and,
(2) any action taken by the Judge Advocate General under this section in such case.
It is unclear to me if such an appeal to a Court of Military review was pursued by LCDR FItzpatrick. I may, in a later posting try to review the appeal’s and review processes that were extended to his case, starting with Article 32 recommendation by the IO, Article 34 review by Lt Algiers, Article 64 review, Article 69 review, and Article 69 re-Review.
Update: It was pointed out to me by Maybenaut on the Fogbow, that Article 69 referral for appeal depends on the Judge Advocate General, and from the records, Walt indeed pursued such a route.
The whole case is quite complex, which led to the appointment of a military Judge as the officer of the Court Martial, and the appointment of an independent prosecutor. 22 witnesses testified during the trial leading to the Article 32(c) conviction of dereliction of duty. Note that Walt has argued that no crime has taken place, but under the UCMJ, dereliction of duty is in fact a crime, which can be punished.