B-148568, SEP 27, 1962

B-148568, SEP 27, 1962

PRECIS-UNAVAILABLE

MR. SECRETARY:

THE AIR FORCE ACCOUNTING AND FINANCE CENTER HAS FORWARDED FOR OUR CONSIDERATION THE CLAIM OF RONNIE E. HUNTER, 6512 LAKE STEILACOOM AVENUE, TACOMA 99, WASHINGTON FOR $200, REPRESENTING FEES PAID BY HIM TO DR. ARVILLE D. DAVIS, PSYCHOLOGIST, AND DR. LLOYD STANLEY DURKIN, NEUROLOGIST, WHO, AS EXPERT WITNESSES EMPLOYED BY HIM, APPEARED AND TESTIFIED IN HIS BEHALF AT A SPECIAL COURT-MARTIAL TRIAL HELD AT MCCHORD AIR FORCE BASE, WASHINGTON, ON AUGUST 18 AND 21, 1961.

IT IS SHOWN THAT ON AUGUST 15, 1961, THE DEFENSE COUNSEL MADE WRITTEN APPLICATION TO THE CONVENING AUTHORITY FOR PERMISSION TO EMPLOY DR. DAVIS AND DR. DURKIN AS EXPERT WITNESSES FOR THE SPECIAL COURT MARTIAL TRIAL OF STAFF SERGEANT RONNIE E. HUNTER, UNITED STATES AIR FORCE, SCHEDULED FOR AUGUST 18, 1961, STATING THAT THEY WOULD TESTIFY IN BEHALF OF THE DEFENSE AS TO THE ACCUSED'S MENTAL IRRESPONSIBILITY AT THE TIME OF THE COMMISSION OF THE OFFENSE CHARGED AND REQUESTING THAT A $50 FEE BE PAID DR. DAVIS AS AN EXPERT WITNESS, AND THAT A FEE OF $150 BE PAID DR. DURKIN AS AN EXPERT WITNESS. THE TRIAL COUNSEL STATED THAT EXPERT MILITARY WITNESSES WERE AVAILABLE TO TESTIFY TO THE MENTAL RESPONSIBILITY OF THE ACCUSED, AND THAT, IN VIEW OF THE AVAILABILITY OF SUCH EXPERT MILITARY PSYCHIATRISTS, EMPLOYMENT OF THE CIVILIAN EXPERTS WAS CONSIDERED UNNECESSARY. THE CONVENING AUTHORITY AGREED WITH THE TRIAL COUNSEL AND DISAPPROVED THE REQUEST, STATING THAT EMPLOYMENT OF THE REQUESTED EXPERTS DID NOT APPEAR NECESSARY AS MILITARY EXPERT WITNESSES WERE AVAILABLE TO TESTIFY ON THE SANITY ISSUE.

OUR DECISION OF SEPTEMBER 8, 1930, 10 COMP.GEN. 111, WAS CITED AS A BASIS FOR SUCH ACTION. IN THAT DECISION IT WAS HELD (1) THAT AN ARMY COURT- MARTIAL IS WITHOUT POWER TO COMPEL, BY ANY FORM OF COMPULSORY PROCESS, THE ATTENDANCE OF A CIVILIAN BEFORE IT AS A WITNESS FOR THE ACCUSED TO GIVE TESTIMONY AS AN EXPERT ON HANDWRITING, AND (2) THAT WHERE THE ACCUSED HAS RECEIVED AUTHORITY FROM A COMPETENT SOURCE TO INTRODUCE THE TESTIMONY OF SUCH EXPERT WITNESS, THE MATTER OF THE LATTER'S COMPENSATION AND EXPENSES IS ONE SOLELY BETWEEN THE ACCUSED AND HIS WITNESS, CONCERNING WHICH THERE IS NO OBLIGATION ON THE UNITED STATES TO SATISFY, THIS BEING TRUE ALTHOUGH THE CROSS-EXAMINATION BY THE PROSECUTION OF THE WITNESS IN QUESTION REQUIRES HIS ATTENDANCE BEYOND THE DAY ON WHICH HIS DIRECT EXAMINATION WAS COMPLETED, AND IRRESPECTIVE OF WHETHER HIS TESTIMONY IS FAVORABLE OR UNFAVORABLE TO THE ACCUSED. IT APPEARS, HOWEVER, THAT THERE WAS OVERLOOKED OUR DECISION OF JUNE 12, 1931, 11 COMP.GEN. 504. IN THE LATER DECISION IT WAS HELD THAT 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 IN TESTIFYING BEFORE THE GENERAL COURT-MARTIAL WITH RESPECT THERETO. IN THIS CONNECTION, IT IS NOTED THAT IN THE CASE OF UNITED STATES V. SHELBY ACM 16772, 29 CMR 823, APRIL 28, 1960, THE CONVENING AUTHORITY DENIED THE ACCUSED THE RIGHT TO HAVE EXPERT WITNESSES AND THE APPEAL BOARD FOUND SUCH ACTION TO BE REVERSIBLE ERROR.

IN THE CIRCUMSTANCES, IT IS CONSIDERED PROPER TO ADVISE YOU THAT OUR DECISION OF SEPTEMBER 8, 1930, 10 COMP.GEN. 111, SHOULD NOT BE RELIED UPON AS A BASIS FOR REFUSING AUTHORIZATION FOR EXPERT WITNESSES IN CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN MR. HUNTER'S CASE.