[Protest of Navy Rejection of Bid for Milling Machines]

A-36296, JUNE 12, 1931, 11 COMP. GEN. 504

PERSONAL SERVICES - EXPERT WITNESSES - GENERAL COURTS-MARTIAL WHERE THE MENTAL CONDITION OF THE ACCUSED BEFORE A GENERAL COURT MARTIAL IS IN ISSUE AND THE DEFENSE JUDGE ADVOCATE (DEFENSE COUNSEL), IN THE BELIEF THAT ARMY PSYCHIATRISTS WOULD NATURALLY BE PREJUDICED, SUBMITS REQUEST TO THE PROPER CONVENING AUTHORITY FOR THE EMPLOYMENT OF A CIVILIAN PSYCHIATRIST AND SUCH REQUEST IS APPROVED BY THE CONVENING AUTHORITY AS PROVIDED IN THE CONTROLLING REGULATIONS, SUCH CIVILIAN EXPERT MAY BE PAID FROM PUBLIC FUNDS A REASONABLE FEE FOR HIS SERVICES IN EXAMINING THE ACCUSED AND TESTIFYING BEFORE THE GENERAL COURT MARTIAL WITH RESPECT THERETO. 10 COMP. GEN. 111 DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO MAJ. J. A. MARMON, UNITED STATES ARMY, JUNE 12, 1931:

THERE HAS BEEN RECEIVED YOUR SUBMISSION OF APRIL 7, 1931, AS TO THE AUTHORITY TO MAKE PAYMENT ON A VOUCHER STATED IN FAVOR OF FRANKLIN G. EBAUGH, M.D., FOR $50 FOR SERVICES RENDERED IN MAKING NEURO PSYCHIATRIC EXAMINATION OF WILLIAM HOWARD, CORPORAL, COMPANY F, SECOND ENGINEERS, AND GIVING TESTIMONY IN CONNECTION THEREWITH BEFORE A GENERAL COURT-MARTIAL CONVENED AT THE FITZSIMONS GENERAL HOSPITAL, TO TRY HOWARD ON A CHARGE OF ASSAULT WITH INTENT TO COMMIT A FELONY BY SHOOTING A NURSE EMPLOYED IN THE HOSPITAL WHERE THE ACCUSED WAS A PATIENT.

THE RECORD INDICATES THAT A. E. YORK, FIRST LIEUTENANT, BECAME THE DEFENSE TRIAL JUDGE ADVOCATE (DEFENSE COUNSEL) AND IN A LETTER DATED OCTOBER 28, 1930, ADDRESSED TO THE COMMANDING GENERAL, EIGHTH CORPS AREA, THE DEFENSE JUDGE ADVOCATE (DEFENSE COUNSEL) STATED THAT THE MENTAL CONDITION OF THE ACCUSED WAS TO BE AN ISSUE IN THE TRIAL AND REQUESTED AUTHORITY TO EMPLOY DR. FRANKLIN G. EBAUGH AS A MEDICAL EXPERT WITNESS AT A COST NOT TO EXCEED $50. WHILE THERE APPEAR TO HAVE BEEN PSYCHIATRISTS AT THE FITZSIMONS GENERAL HOSPITAL, THE DEFENSE TRIAL JUDGE ADVOCATE (DEFENSE COUNSEL) STATED IN HIS LETTER THAT THESE PSYCHIATRISTS WERE NATURALLY DISPOSED TO PRESERVE DISCIPLINE AT THE HOSPITAL AND WERE UNCONSCIOUSLY PREJUDICED AGAINST THE ACCUSED. HIS ARGUMENT APPEARS TO HAVE BEEN THAT THE INTEREST OF JUSTICE REQUIRED THAT A DISINTERESTED PSYCHIATRIST BE EMPLOYED AT A TOTAL COST OF NOT EXCEEDING $50 TO MAKE A MENTAL EXAMINATION OF THE ACCUSED AND TESTIFY BEFORE THE GENERAL COURT- MARTIAL WITH RESPECT THERETO. THE REQUEST WAS APPROVED NOVEMBER 24, 1930, BY THE CORPS AREA COMMANDER AND THE TRIAL HAD BEEN POSTPONED PENDING SUCH APPROVAL. DOCTOR EBAUGH MADE THE EXAMINATION AND THE TRIAL WAS RESUMED ON NOVEMBER 24, 1930, AND DOCTOR EBAUGH TESTIFIED AS AN EXPERT WITNESS AS TO THE MENTAL CONDITION OF THE ACCUSED. THE ACCUSED WAS FOUND GUILTY AS CHARGED AND WAS SENTENCED TO BE DISHONORABLY DISCHARGED, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED FOR 10 YEARS. THE SENTENCE WAS APPROVED AND ORDERED TO BE EXECUTED.

THE QUESTION HAS NOW ARISEN WHETHER DOCTOR EBAUGH MAY BE PAID FROM PUBLIC FUNDS THE FEE OF $50 FOR EXAMINING HOWARD AND TESTIFYING BEFORE THE GENERAL COURT-MARTIAL WITH RESPECT THERETO, REFERENCE BEING MADE TO 10 COMP. GEN. 111.

FUNDS FOR THE EXPENSES OF COURTS-MARTIAL ARE PROVIDED FOR IN THE ANNUAL WAR DEPARTMENT APPROPRIATION ACTS. THE ACT OF MAY 28, 1930, 46 STAT. 432, CONTAINS THE FOLLOWING PROVISIONS:

FOR EXPENSES OF COURTS-MARTIAL, COURTS OF INQUIRY, MILITARY COMMISSIONS, RETIRING BOARDS, AND COMPENSATION OF REPORTERS AND WITNESSES ATTENDING SAME, CONTRACT STENOGRAPHIC REPORTING SERVICES, AND EXPENSES OF TAKING DEPOSITIONS AND SECURING OTHER EVIDENCE FOR USE BEFORE THE SAME, $80,000.

THE REQUEST OF THE DEFENSE TRIAL JUDGE ADVOCATE (DEFENSE COUNSEL) FOR THE EMPLOYMENT OF THE EXPERT WITNESS WAS SUBMITTED TO THE CORPS AREA COMMANDER IN ACCORDANCE WITH PARAGRAPH 99, MANUAL FOR COURTS MARTIAL, 1928, AS FOLLOWS:

WHEN THE EMPLOYMENT OF AN EXPERT IS NECESSARY DURING A TRIAL BY COURT- MARTIAL, THE TRIAL JUDGE ADVOCATE, IN ADVANCE OF THE EMPLOYMENT, WILL, ON THE ORDER OR PERMISSION OF THE COURT, REQUEST THE APPOINTING AUTHORITY TO AUTHORIZE SUCH EMPLOYMENT AND TO FIX THE LIMIT OF COMPENSATION TO BE PAID THE EXPERT. THE REQUEST SHOULD, IF PRACTICABLE, STATE THE COMPENSATION THAT IS RECOMMENDED BY THE PROSECUTION AND THE DEFENSE. WHERE IN ADVANCE OF TRIAL THE PROSECUTION OR THE DEFENSE KNOWS THAT THE EMPLOYMENT OF AN EXPERT WILL BE NECESSARY, APPLICATION SHOULD BE MADE TO THE APPOINTING AUTHORITY FOR AUTHORITY TO EMPLOY THE EXPERT, STATING THE NECESSITY THEREFOR AND PROBABLE COST THEREOF.

THE MANUAL FOR COURTS-MARTIAL WAS PRESCRIBED BY THE PRESIDENT AS COMMANDER IN CHIEF OF THE ARMY IN THE EXECUTIVE ORDER OF NOVEMBER 29, 1927, AND, UNLESS IN DEROGATION OF STATUTE, SAID MANUAL HAS THE FORCE AND EFFECT OF LAW; AND, OF COURSE, IT IS WITHOUT EFFECT WHERE IT IS IN DEROGATION OF THE LAW. SEE IN RE FAIR, 100 FED.REP. 149; SWAIN V. UNITED STATES, 28 CT.CLS. 173. ATTENTION MAY BE INVITED TO SMITH V. WHITNEY, 116 U.S. 167, 178, WHEREIN IT WAS SAID:

OF QUESTIONS NOT DEPENDING UPON THE CONSTRUCTION OF THE STATUTES, BUT UPON UNWRITTEN MILITARY LAW OR USAGE, WITHIN THE JURISDICTION OF COURTS- MARTIAL, MILITARY OR NAVAL OFFICERS, FROM THEIR TRAINING AND EXPERIENCE IN THE SERVICE, ARE MORE COMPETENT JUDGES THAN THE COURTS OF COMMON LAW. THIS IS NOWHERE BETTER STATED THAN BY MR. JUSTICE PERRY IN THE SUPREME COURT OF BOMBAY, SAYING: ,AND THE PRINCIPLE OF THE NONINTERFERENCE OF THE COURTS OF LAW WITH THE PROCEDURE OF COURTS MARTIAL IS CLEAR AND OBVIOUS. THE GROUNDWORK OF THE JURISDICTION, AND THE EXTENT OF THE POWERS OF COURTS -MARTIAL, ARE TO BE FOUND IN THE MUTINY ACT AND THE ARTICLES OF WAR, AND UPON ALL QUESTIONS ARISING UPON THESE HER MAJESTY'S JUDGES ARE COMPETENT TO DECIDE; BUT THE MUTINY ACT AND ARTICLES OF WAR DO NOT ALONE CONSTITUTE THE MILITARY CODE, FOR THEY ARE, FOR THE MOST PART, SILENT UPON ALL THAT RELATES TO THE PROCEDURE OF THE MILITARY TRIBUNALS TO BE ERECTED UNDER THEM. NOW THIS PROCEDURE IS FOUNDED UPON THE USAGES AND CUSTOMS OF WAR, UPON THE REGULATIONS ISSUED BY THE SOVEREIGN, AND UPON OLD PRACTICE IN THE ARMY, AS TO ALL WHICH POINTS COMMON LAW JUDGES HAVE NO OPPORTUNITY, EITHER FROM THEIR LAW BOOKS OR FROM THE COURSE OF THEIR EXPERIENCE, TO INFORM THEMSELVES. IT WOULD THEREFORE BE MOST ILLOGICAL, TO SAY NOTHING OF THE IMPEDIMENTS TO MILITARY DISCIPLINE WHICH WOULD THEREBY BE INTERPOSED, TO APPLY TO THE PROCEDURE OF COURTS-MARTIAL THOSE RULES WHICH ARE APPLICABLE TO ANOTHER AND DIFFERENT COURSE OF PRACTICE.' PORRET'S CASE, PERRY'S ORIENTAL CASES, 414, 419. * * *

WHATEVER MAY BE THE PROCEDURE FOR THE EMPLOYMENT OF EXPERT WITNESSES TO TESTIFY IN CIVIL COURTS FOR THE DEFENSE, SUCH RULE DOES NOT NECESSARILY APPLY TO THE EMPLOYMENT OF EXPERT WITNESSES TO GIVE TESTIMONY IN BEHALF OF AN ACCUSED ENLISTED MAN IN A TRIAL BEFORE A GENERAL COURT-MARTIAL--- FACTS BEING PRESENTED TO SHOW THE NEED OF SUCH EXPERT TESTIMONY TO OBTAIN FOR THE ACCUSED A FAIR TRIAL.

THE RULE STATED IN 10 COMP. GEN. 111 IS NOT APPLICABLE FOR THE REASON THAT APPLICATION FOR THE EMPLOYMENT OF THE EXPERT WAS NOT SUBMITTED IN ACCORDANCE WITH PARAGRAPH 99, MANUAL FOR COURTS-MARTIAL, 1928, AND WAS NOT APPROVED BY THE CONVENING AUTHORITY. THE DEFENSE IN THAT CASE HAVING EMPLOYED THE EXPERT AND PLACED HIM ON THE STAND, THE PROSECUTING TRIAL JUDGE ADVOCATE HAD THE AUTHORITY TO CROSS EXAMINE THE EXPERT AND THE UNITED STATES WAS NOT CHARGEABLE WITH THE EXPENSE OF THE EXPERT, EITHER DURING THE TESTIMONY IN CHIEF OR ON CROSS EXAMINATION.

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