navy-marine corps court of criminal appeals
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NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ---------------------------------------------------------------------------x THE NAVY, : Appellee, : - against - : WILLIAM BUDD, : Defendant-Appellant. : ---------------------------------------------------------------------------x
Docket No. 1234/06
APPELLANT’S BRIEF
Clifford James Attorney for Defendant-Appellant
William Budd 270 Madison Avenue, Suite 1410
New York, NY 10016-0601 212.532.6333
Table of Contents
Page
Table of Authorities............................................................................................................ i Preliminary Statement ....................................................................................................... 1 Factual and Procedural Background .................................................................................. 2 Statement of Jurisdiction ................................................................................................... 6 Standard of Review ........................................................................................................... 7 ARGUMENT.................................................................................................................... 8 I. THE NUMEROUS PROCEDURAL ERRORS PROFOUNDLY
AND MATERIALLY PREJUDICED BILLY’S RIGHTS TO A FAIR TRIAL ......................................................................................................... 8
II. BILLY WAS DENIED AN OPPORTUNITY TO PRESENT HIS
DEFENSES TO A VALIDLY CONVENED COURT ......................................... 18 III. IN ALL EVENTS, A CAPITAL SENTENCE SHOULD NOT BE
IMPOSED ........................................................................................................... 22 Conclusion ...................................................................................................................... 25
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Table of Authorities
Page
Cases Brookins v. Cullins,
49 C.M.R. 5 (C.M.A. 1974) ................................................................................. 12, 13 Hamdan v. Rumsfeld,
344 F. Supp. 2d 152 (D.D.C. 2004), rev’d, 415 F.3d 33 (D.C. Cir. 2005), cert. granted, 126 S. Ct. 622 (2005)........................................................................... 17
Hamdi v. Rumsfeld,
542 U.S. 507, 124 S. Ct. 2633 (2004) .......................................................15, 16, 17, 18 Kennedy v. Mendoza-Martinez,
372 U.S. 144, 83 S. Ct. 554 (1963) ............................................................................ 16 Rasul v. Bush,
542 U.S. 466, 124 S. Ct. 2686 (2004) ........................................................................ 17 Sterling v. Constantin,
287 U.S. 378, 53 S. Ct. 190 (1932) ............................................................................ 16
United States v. Allen, 31 M.J. 572 (C.M.A. 1990), aff’d, 33 M.J. 209 (C.M.A. 1991), cert. denied, 503 U.S. 936, 112 S. Ct. 1473 (1992) ................................................... 13
United States v. Biagase,
50 M.J. 143 (C.A.A.F 1999) ........................................................................................ 9 United States v. Cole,
31 M.J. 270 (C.M.A. 1990) .......................................................................................... 7 United States v. Courts,
4 M.J. 518 (C.G.C.M.R. 1977), aff’d, 9 M.J. 285 (C.M.A. 1980) ............................... 23 United States v. Diggs,
52 M.J. 251 (C.M.A. 2000)........................................................................................ 21 United States v. Feltham,
58 M.J. 470 (C.A.A.F. 2003) ..................................................................................... 19 United States v. Fox,
24 M.J. 110 (C.M.A. 1987)........................................................................................ 23
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Table of Authorities, cont.
Page United States v. Gordon,
2 C.M.R. 161 (C.M.A. 1952) ....................................................................10, 11, 12, 13 United States v Matthews,
16 M.J. 354 (C.M.A. 1983)........................................................................................ 22 United States v. Pawlyschyn,
9 M.J. 590 (A.F.C.M.R. 1980) ................................................................................... 23 United States v. Richardson,
7 M.J. 320 (C.M.A. 1979).......................................................................................... 21
United States v. Ridley, 22 M.J. 43 (C.M.A. 1986).......................................................................................... 13
United States v. Robel, 389 U.S. 258, 88 S. Ct. 419 (1967) ............................................................................ 16 United States v. Struckman,
43 C.M.R. 333 (C.M.A. 1971) ................................................................................... 21 United States v. Thomas,
22 M.J. 388 (C.M.A. 1986).......................................................................................... 9
Statutes English Articles of War of 1749, 22 Geo. 2, ch. 33.....................................................1, 4, 8, passim
§ II(22) ...............................................................................................................4, 5, 20 § VI-X......................................................................................................................... 8 § VII............................................................................................................................ 9 § XI ............................................................................................................................. 8 § XII............................................................................................................................ 9 § XVI ........................................................................................................................ 13
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Table of Authorities, cont.
Page American United States Code
10 U.S.C.A. § 801 (note – text of Detainee Treatment Act of 2005 (see below)) ........ 17 10 U.S.C. § 801(9)..................................................................................................... 11
10 U.S.C. § 822(b)..................................................................................................... 11
10 U.S.C. § 866 (Article 66 of the Uniform Code of Military Justice)......................... 7
10 U.S.C. § 866(b)....................................................................................................... 6
10 U.S.C. § 866(c)....................................................................................................... 7
Detainee Treatment Act of 2005,
Pub. L. No. 109-148, Div. A, Title X, § 1005, 119 Stat. 2740, (not codified yet, but appearing at 10 U.S.C.A. § 801 (West)), repromulgated on January 6, 2006 with amendments to other sections, Pub. L. No. 109-163, Div. A, Title XIV, § 1405, 119 Stat. 3476 (not yet codified)......................................................................................... 17
Congress’s Authorization for the Use of Military Force (AUMF),
Pub. L. No. 107-40, 115 Stat. 224 ........................................................................ 17
Rules Rules of Practice of the Court of Criminal Appeals
Rule 5 .................................................................................................................... 7 Military Rules of Evidence
Rule 803(2).......................................................................................................... 19
Other Authorities Col. Winthrop, Military Law and Precedents (2d ed. Reprint 1920)................................. 12
Preliminary Statement Defendant-Appellant William Budd (Billy), a loyal and popular sailor on board the
Bellipotent, a ship-of-the-line, respectfully submits his brief in support of the reversal of
his conviction of the crime of striking a superior officer in the line of duty, and, in all
events, his capital sentence, handed down by an improperly convened “drumhead” court on
board the Bellipotent while detached from the fleet on operations in the Mediterranean Sea.
Contrary to the governing Articles of War,1 and longstanding principles of due process,
which required that Billy be held for trial before a properly convened court when the
Bellipotent rejoined the fleet, the Captain of the Bellipotent, Edmund Fairfax Vere (Vere),
convened a “drumhead” court on board the Bellipotent, appointed unqualified judges who
were beholden to him, and, improperly acted as both witness, prosecutor, and, in effect,
and as Vere himself conceded, “coadjutor” (R110).2 In addition, the record clearly shows
that the trial court justifiably had serious doubts about the summary procedures dictated by
Vere, as well as Billy’s alleged sedition, and the wisdom and propriety of a capital
sentence. In fact, the record shows that the members of the court desired to acquit, but that
their wills were overborne by Vere’s manipulations and superior station, and most signally,
by Vere’s irresponsible invocation of the need for a show of immediate discipline during
wartime.
In short, Billy did not receive a fair trial, and his conviction and sentence should be
set aside forthwith.
1 Articles of War of 1749, 22 Geo. 2, ch. 33, referred to hereafter as the Articles. 2 The record is Herman Melville. Billy Budd, Sailor. Edited and annotated by Harrison Hayford & Merton M. Sealts, Jr. Univ. of Chicago Press 1962. Pages of the record will be referred as R___.
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Factual and Procedural Background
The Bellipotent is a man-of-war, specifically, a “seventy-four,” so named because it
carries 74 guns on two decks. Although the Bellipotent is a ship-of-the-line (i.e., normally
employed in the line of battle), it has particularly excellent sailing qualities, and this,
among other reasons, caused it to be detached from the fleet at the time of the incident in
question (R90; see also R54)). Billy joined the crew of the Bellipotent in summer 1797
(R54) while in the Coastal Waters and the Bellipotent was outward bound to join the fleet
in the Mediterranean (R44-45, 54). Billy was impressed to that service, but never showed
any sign of resentment or disloyalty (R49-53).3 Billy was a popular member of the crew
and a more than competent seaman (id.; R94-95). He was assigned to the foretop (R49,
68). At the time of the incident, Vere intended to promote him to a captaincy of the
mizzentop (R95).
Before the tragic incident that led to this case, there were no complaints or
proceedings against Billy. Billy was known to be hardworking and cheerful, never surly,
insubordinate, or sulking. Billy had one disability, though, that unquestionably contributed
to this tragedy – he was unable to speak when under stress due to an extremely severe
stutter (R53). More subtly, but no less devastating to Billy in the circumstances of this
case, he is a naïf. Billy is unsophisticated to a fault; he is incapable of guile or intrigue
(49, 52-53, 86). In fact, in apparent recognition of his simple, child-like nature, his 3 There was an incident misinterpreted by Vere that occurred at the time Billy was impressed. Billy waved goodbye to his merchant seamen companions as he was being shuttled to the Bellipotent by launch. He also, somewhat poetically, but thoroughly nautically, said a formal goodbye to his former merchantman itself, called the Rights-of-Man (R48-49). When this was reported to Vere, Vere, like the Lieutenant who arranged for Billy’s impressment who was present in the launch at the time, thought that something satiric had been intended. This was incorrect; such a subtle intention was not in Billy’s nature. To Vere’s credit, though, Vere harbored no resentment against Billy due to that mistaken impression, but thought it showed a good military spirit (R94-95).
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nickname on board the Bellipotent was “Baby” Budd (R70). This aspect of his character
compounded the shock of a false accusation of mutiny, and, combined with his inability to
speak, created a horrifyingly unbearable emotional state.
Billy was well-liked by all, and even Vere had received good reports of him and,
based on Vere’s own observations of the ship and crew, had concluded that Billy was an
able seaman, hardworking, honest, and loyal, and, as noted, wanted to promote him to
supervise work on the mizzentop where Vere could more closely observe him for possible
further advancement (R94-95).
On the day in question, the Bellipotent was on duty detached from the fleet, owing
both to her sterling sailing qualities and Vere’s reputation as a commander with foresight
and initiative (R90). While on that duty, at about 1500 hours, an enemy frigate was
sighted, and the Bellipotent gave chase. Not surprisingly, even a particularly fast ship-of-
the-line such as the Bellipotent could not overtake a frigate in the open ocean, and, by
about 1700 hours, Vere ordered the chase abandoned (R90-91). Soon after that, John
Claggart (Claggart), the Bellipotent’s master-at-arms, approached Vere and relayed to Vere
a story that Billy was involved in seditious conduct with other impressed sailors. Vere said
he was reluctant to believe that Billy could be guilty of such conduct, and immediately had
Billy brought to him and Claggart in Vere’s cabin. Claggart there repeated his accusation.
Vere asked Billy what his response was, and Billy was then afflicted with his disability,
and was simply unable to speak. Vere apparently divined Billy’s problem as Vere had
known a young man in school with the same affliction (R99). Vere tried to comfort Billy,
but this effort produced an even more complete paralysis (R99). Eventually, becoming
unbearably frustrated with his own inability to speak, and under the extreme stress of being
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the victim of a malicious and unjust accusation of the capital crime of mutiny, Billy
impulsively struck Claggart, who, to Billy’s horror, fell down dead (R99).
Notwithstanding that the Bellipotent was not then involved or imminently to be
involved in battle, and had started the chase of the enemy frigate “almost at [the
Bellipotent’s] furthest remove from the fleet” (R90), Vere insisted on immediately
convening a drumhead court and having an immediate court martial. He chose three men
serving under him to be the “judges,” although not one of them had prior experience with
such proceedings. Vere appointed as “judges” the captain of marines, Vere’s first
lieutenant, and the sailing master (R104-05). In short, then, in a summary court martial
proceeding where a capital sentence was seemingly required, Vere appointed as “judges”
three junior officers: an officer who commanded a different service (i.e., marines, not
naval men); a junior officer in charge of stationing officers and crew for the necessary
handling of the sails, at the guns, and in the messes; and an officer charged with
navigation. (Vere’s choice of unqualified and inexperienced judges, their inadequate
number, and the summary and secret nature of the proceedings themselves all materially
violated requirements of the Articles as we detail in Point I.)
There was no reading of any formal charge or indictment, but during the
proceedings Vere stated the charge as follows: “In wartime at sea a man-of-war’s man
strikes his superior in grade, and the blow kills. Apart from the effect the blow itself is,
according to the Articles of War, a capital crime” (R111). Vere was no doubt referring to
§ II(22) of the Articles of War, which provides, in full:
If any officer, mariner, soldier, or other person of the fleet, shall strike any of his superior officers, or draw, or offer to draw, or lift up any weapon against him, being in the execution of his office, on any pretence whatsoever, every such person being convicted of such offense, by the sentence of a court-martial, shall suffer death; and if any officer,
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mariner, soldier, or other person in the fleet, shall presume to quarrel with any of his superior officers, being in the execution of his office, or shall disobey any lawful command of any of his superior officers; every such person being convicted of any such offense, by the sentence of a court-martial, shall suffer death, or such other punishment, as shall, according to the nature and degree of his offense, be inflicted upon him by the sentence of a court-martial.
There is no indication in the record that the court considered that if Claggart was
knowingly falsely accusing Billy of mutiny Claggart was not then acting “in the execution
of his office” as provided for in § II(22), and that, therefore, Billy could not be guilty of
violating that provision (see Point II).
Vere conducted the trial as witness and prosecutor in his cabin. While at first he
claimed to be only a witness, and therefore to have no influence of rank over the “judges,”
he contradicted that obvious fiction in at least two ways. First, he emphasized his superior
rank and domination by intentionally “testifying” from the “high” or “weather” side of his
cabin, forcing the “judges” to sit on the lee side – well below him (R105). Second, when
the “judges” appeared not to be willing to convict and impose a capital sentence, Vere
abandoned his supposed role as mere witness and spoke at length to them urging
conviction and execution, and claiming to be, for that purpose, a “coadjutor” (R105-09).
No-one was appointed to assist Billy with his defense, and Billy offered none. In short,
when the “judges” expressed their concerns that Billy was innocent of the charge, or at
least should not be sentenced to death for it, Vere overbore their wills by virtue of his
position as their captain and by invoking a supposed need to show the crew that Billy
should be punished immediately in order to avert a supposedly certain mutiny that
otherwise would take place.
The substance of Vere’s argument as combined prosecutor and “coadjutor” was
highly prejudicial. Vere “argued” to them that to acquit or not impose a capital sentence
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would foment immediate mutiny. His basis for this conclusion was that it would not be
possible, given the recent serious mutinies of Spithead and Nore, to explain any showing
of mercy or clemency in a manner that could avert a mutiny.
You know what sailors are. Will they not revert to their recent outbreak at the Nore? Ay. They know the well-founded alarm—the panic it struck throughout England. Your clement sentence they would account pusillanimous. They would think that we flinch, that we are afraid of them—afraid of practicing a lawful rigor singularly demanded at this juncture lest it should provoke new troubles. (R112-13)
The drumhead court then convicted Billy and sentenced him to death by hanging
the following day. Although Billy was spared immediate execution of sentence, he
remains under sentence of death. We ask this court to reverse the conviction and in all
events, the capital sentence (see Point III). The trial was tainted by Vere’s improper and
unfair manipulation of the process, and even the wartime conditions cannot justify Vere’s
gross abuse of process. There is no evidence that the Bellipotent could not function
properly had Billy been held for trial until the Bellipotent rejoined the fleet, or that the risk
of mutiny, however great or small, would have materially increased had Billy been held for
trial. This Court should reject Vere’s preemption argument as an insufficient basis for
summary proceedings.
Statement of Jurisdiction
This Court has jurisdiction of this appeal by virtue of 10 U.S.C. § 866(b), pursuant
to which: “The Judge Advocate General shall refer to a Court of Criminal Appeals the
record in each case of trial by court-martial–(1) in which the sentence, as approved,
extends to death . . . .”
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Standard of Review
This Court may review matters of fact and law, and should apply a de novo
standard. Indeed, upon a review of the full record, this Court is empowered to make its
own findings of fact, taking into account, though, that none of its panel members was
present at the court-martial. 10 U.S.C. § 866(c)4 and Rule 5 of the Rules of Practice of the
Court of Criminal Appeals. As the Court explains in United States v. Cole, 31 M.J. 270,
272 (C.M.A. 5 1990):
This awesome, plenary, de novo power of review grants unto the Court of Military Review authority to, indeed, “substitute its judgment” for that of the military judge. It also allows a “substitution of judgment” for that of the court members. In point of fact, Article 666 requires the Court of Military Review to use its judgment to “determine[ ], on the basis of the entire record” which findings and sentence should be approved.
4 10 U.S.C. § 866(c) provides as follows:
In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may 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. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
5 Court of Military Appeals (the court to which appeals of this court are brought). 6 Article 66 of the Uniform Code of Military Justice is 10 U.S.C. § 866.
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ARGUMENT
I. THE NUMEROUS PROCEDURAL ERRORS PROFOUNDLY AND MATERIALLY PREJUDICED BILLY’S RIGHTS TO A FAIR TRIAL
There were numerous prejudicial errors in the trial, any one of which would be
sufficient to require reversal. The cumulative effect of all of them was unquestionably to
deprive Billy of a fair trial. Most, if not all, of these errors arose from Vere’s mistaken
decision to convene a drumhead court on board the Bellipotent instead of holding Billy
until the Bellipotent could rejoin the fleet and could turn him over to the Admiral for the
proceedings called for by the Articles. Before turning to the insufficiency of Vere’s
apparent reason to depart from proper practice – a fear of imminent mutiny if he acted
otherwise – it may be assumed that Vere well knew that he was deviating from the proper
practice prescribed by the Articles. Not only is Vere charged with knowledge of the
Articles it is his sworn duty to uphold as commander of the ship, but this Court should take
notice that Vere had prior experience with court martial proceedings. having served
previously as one of several judges in a capital case (R94).
The Articles place the authority to conduct courts-martial on “any officer
commanding in chief any fleet or squadron of ships of war,” but, most importantly, not
upon the captain of an individual ship. Articles, §§ VI-X. Section XI of the Articles
contains a limited exception to this grant of authority. A captain of an individual ship may
hold a court martial, but only if that proceeds in a port of Great Britain or Ireland.
Accordingly, Vere had no authority to convene the drumhead court, let alone appoint an
inadequate number of unqualified judges who were beholden to him, and to act as
prosecutor and witness, and, effectively, another judge.
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Thus, the Articles call for a minimum of five judges at a properly convened court
martial, each of which shall be “flag officers, captains, or commanders.” Articles, § XII.
Vere violated this directive, which contains no exception in the Articles, by appointing
only three judges, none of which were flag officers, captains or commanders. In the
United States, this is a type of impermissible “command influence” over the proceedings,
known as “court stacking.” “Command influence is the mortal enemy of military justice,”
and is an error of constitutional dimension. United States v. Thomas, 22 M.J. 388, 393
(C.M.A. 1986). As such, it is a prejudicial error, requiring reversal, unless the reviewing
court concludes beyond a reasonable doubt that the trial result could not have been affected
by the error (id.); accord United States v. Biagase, 50 M.J. 143, 149-51 (C.A.A.F.7 1999).
The Biagese case noted that once the issue of command influence is raised, the government
has the burden to prove that there was no command influence or that the command
influence could not have prejudiced the proceedings. Importantly, this issue is not waived
if raised for the first time on appeal (id. at 151).
Further compounding the prosecutorial errors and the unfair prejudice to Billy,
Vere, who was the sole witness (other than Billy) to the events in question, also assumed
the role of prosecutor. The Articles do not explicitly prohibit this practice, but § VII
prohibits the commander in chief of any fleet or squadron, or detachment thereof,
consisting of more than five ships, from presiding at a court martial in foreign parts.
Moreover, it is, of course, inherent in our law that the roles of advocate, witness, and judge
are separate and different, and cannot fairly be filled by the same person. The purpose of
this prohibition in the military justice system is, among other things, to prevent “command
7 The Court of Military Appeals (C.M.A.) was renamed the Court of Appeals for the Armed Forces (C.A.A.F.) in 1994).
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influence” of this type. Here Vere filled all three roles, and ultimately intervened most
forcefully when it was apparent to him that the court might acquit or grant Billy clemency
from the death penalty, and specifically indicated to the trial court that he was now their
“coadjutor.”
Further, in the United States, the Articles of War have long disqualified an accuser,
as Vere clearly was, from convening a court martial to try the accused. E.g., United States
v. Gordon, 2 C.M.R. 161, 163-64 (C.M.A. 1952):
Over the years a bitter controversy has existed over the fairness of a system which grants to a commander, as an attribute of command, the right to select members of a court to try personnel of his command. Without joining either side in that argument, we can say that we would overlook the realities of the situation and the history of military justice if we did not know that Congress intended when it enacted the Uniform Code of Military Justice to modernize the military judicial system and grant to an accused the right to be tried by as fair and impartial a court as is consistent with the maintenance of an efficient military organization; and, that it further intended to narrow the commander’s influence on the court by insulating members from any type of control by the commander’s expressed direction, or by his moral suasion or persuasion.
The concept that the accuser should not appoint the court is not of recent origin and it is interesting to note that there has been little change in the Articles of War which have controlled this principle. It has been on the statute books for over 100 years, and it should require little argument to establish that it is an important right which must be jealously guarded or abuses will creep in.
Thus, the present Code of Military Justice provides that: “If any such commanding officer
is an accuser, the court shall be convened by superior competent authority, and may in any
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case be convened by such authority if considered desirable by him.” 10 U.S.C. § 822(b).8
“Accuser” is defined, at 10 U.S.C. § 801(9), to mean: “a person who signs and swears to
charges, any person who directs that charges nominally be signed and sworn to by another,
and any other person who has an interest other than an official interest in the prosecution
of the accused.” The Gordon case, cited above, treats in detail the issue of when a
commander is an “accuser” within the meaning of this prohibition, and elaborates on the
distinction between a commander who acts solely in an official capacity, and who is not
thereby disqualified from convening a court martial; and one who “is so connected with
the transactions giving rise to the charges that reasonable persons will impute to him a
personal feeling or interest in the matter,” who is disqualified from appointing a tribunal
(id. at 164-65). The court in Gordon says that the principle that the accuser may not
convene the court to try the accused is “one of the pillars of military justice and [] to
weaken it would tend to destroy the system” (id. at 165-66). The court also says that:
“Convening officers should remember that there are easy and adequate means to have a
court appointed by one entirely divorced from the offense and if there is any doubt about
the propriety of the selection it should be resolved in favor of the accused” (id. at 167-68).
Importantly, this principle does not turn on whether the accuser in fact influenced
the court (although that plainly occurred in the case at bar), or whether the accuser has any
animus towards the accused, but is premised on preserving the confidence in the military
justice system as one that is impartial and unprejudiced. As Gordon observes, an officer is
an “accuser” within the meaning of this rule “‘even if he may occupy no hostile or adverse
8 This is taken from the provisions governing who may convene a general court martial, the proceedings which would be applicable to Billy, because of the seriousness of the offense charged and the potential capital sentence.
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position toward the accused’” (id at 165; quoting from Col. Winthrop, Military Law and
Precedents (2d ed. Reprint 1920)). Emphasizing this point, the Gordon court observes (at
165) that:
In United States v. Messer, CM 280656, 53 BR 279, 282, the board of review made the following observation:
“It is likewise immaterial that General Ritter felt no ill-will toward the accused. The purpose of Article of War 8 is not only to protect the accused from trial by a court appointed by a person actually prejudiced against him, but also to make certain that the appointing authority is so entirely unconnected with the transactions giving rise to the charges that reasonable persons will not impute to him any personal feeling or interest in the matter, but may rely with confidence upon an impartial trial by an unprejudiced court.”
In Gordon, the court found that “the substantial rights of the accused were materially
prejudiced” (id. at 168). In that case, the officer who convened the court martial was the
Air Force base commander, and Private Gordon had been accused of attempting to
burglarize the commander’s home and actually burglarizing another officer’s home.
Although the charge of attempted burglary was dismissed before the trial, Private Gordon
had admitted to the attempt and the charge was still pending when the commander
convened the court martial.
We refer this Court also to the case of Brookins v. Cullins, 49 C.M.R. 5 (C.M.A.
1974), as particularly instructive. In that case, the Court of Military Appeals permanently
enjoined the petitioners’ upcoming trials before the commander of their ship. The
petitioners, all sailors on board the cruiser USS Little Rock, were charged with participating
in a riot at sea, apparently a violent dispute among groups of enlisted men. The
commander was present when the offenses were committed, and actively and usefully
participated in negotiating an end to the dispute among enlisted personnel. But, his
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personal involvement in the events in question disqualified him from convening a court
martial. Citing Gordon, the court observed:
We do not condemn Captain Cullins for anything that he did. On the contrary, we might have done and said the same things he did, despite the fact, as he admitted, that during most, if not all, of the many hours he was engaged in conferring with members of the competing groups he should have been on the bridge because the vessel was underway in restricted waters. His fault was only that he did not “remember that there are easy and adequate means to have a court appointed by one entirely divorced from the offense and if there is any doubt about the propriety of the selection, it should be resolved in favor of the accused.” United States v Gordon, supra at 261, 2 CMR at 167. (Id. at 7)
Applying these principles to the case at bar requires reversal. As noted, the fact
that Vere bore Billy no animus is irrelevant. Moreover, in this case, despite that, and
compounding the errors at trial, Vere made it the very point of his actions to ensure a
conviction by the use of “command influence.”9
Vere still further compounded these errors by holding the proceedings in secret.
Nothing in the Articles requires or even suggests that such proceedings should not be
public, and they always have been in the past. Finally, there is no evidence in the record
that the members of the tribunal took the oath required by the Articles (§ XVI), an oath
which requires each of them to “administer justice according to my conscience . . . .” This
9 There are some cases that suggest that a failure to raise the objection at trial that an “accuser” improperly convened a court martial will waive that objection on appeal. E.g., United States v. Allen, 31 M.J. 572, 584-85 (C.M.A. 1990), aff’d, 33 M.J. 209 (C.M.A. 1991), cert. denied, 503 U.S. 936, 112 S. Ct. 1473 (1992); United States v. Ridley, 22 M.J. 43 (C.M.A. 1986). But, in this case, Billy’s disability and Vere’s abuse of process prevented any meaningful opportunity to raise that defense below. It is important to note in this connection that the ruling in Gordon was based on the showing of material prejudice to the accused by the improper procedures employed. Also, “command influence,” i.e., Vere’s improper efforts to influence the tribunal, can never be waived (United States v. Allen, 31 M.J. at 584).
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omission is critical, because Vere specifically advised them that they could not obey their
respective consciences:
But something in your aspect seems to urge that it is not solely the heart that moves in you, but also the conscience, the private conscience. But tell me whether or not, occupying the position we do, private conscience should not yield to that imperial one formulated in the code under which alone we officially proceed? (R111)
We now turn to Vere’s expressed reason for summary, secret proceedings in this
matter. Vere advances two reasons for his course of action, both of which relate to the
perceived need for discipline and expediency required by wartime. First, Vere insists that
even the rapid deliberations then ongoing were too prolonged, because an engagement
could occur at any moment as a result of an enemy sighting (R112). Second, as noted,
Vere insisted that no outcome other than immediate conviction and execution would
prevent incipient mutiny (R112-13). Neither of these reasons pass muster.
The first reason is easily disposed of as simply specious. It is, of course, true that
at any moment on the Bellipotent’s detached duty an enemy ship could be sighted and an
engagement ensue.10 But, the complete answer to that potential problem is to bind Billy
over for later trial when the Bellipotent rejoins the fleet. In addition, had the proceedings
been interrupted by such an event (which did not occur), they could have been suspended
with Billy in “darbies” until a more auspicious time.
The second reason offered by Vere is the one that carried the day – the theory that
Billy must be convicted and, ideally, hung, in order to preempt otherwise certain mutiny.
But this argument is defective in law and fact. First, there is no evidence that mutiny was 10 This theoretical possibility was very remote. Claggart approached Vere on the quarterdeck “not long after” the “middle of the first dogwatch” (R91), i.e., after about 1700 hours. The record shows that the court’s proceedings were continuing at “twilight” (R109).
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imminent on the Bellipotent, whether Billy was convicted or executed, or not.11 Further,
the argument is logically flawed, as it proves too much.
The Court should note that Billy does not argue that it is unimportant to maintain
firm discipline of troops in wartime, or that quick, severe, and certain punishment for
severe violations of the Articles is not important or necessary. But, it does not follow from
this that the judicial process for court martials must be so severely and unfairly deformed
in order to maintain an effective fighting force. Nor does Billy argue that the Nore and
Spithead mutinies were not gravely dangerous events, like, as Vere supposed “a strike in
the fire brigade would be to London threatened by general arson” (R54), or to take a more
modern event, the attacks of 9/11. But, contrary to the government’s contention, these
events do not justify Vere’s individual decision drastically to diminish the rights of an
accused. The relatively recent case of Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633
(2004), is instructive. In that case, a citizen sought to obtain a writ of habeas corpus
challenged his potentially indefinite detention pursuant to an executive determination that
he was an “enemy combatant.” The majority of the Supreme Court held that due process
required judicial review of the detention pursuant to habeas corpus, and that the proper
procedure required a balance of the risk of erroneous deprivation of a detainee’s liberty
11 While not brought to the attention of the trial court (due to Vere’s improper manipulation of the process), it appears that Billy had been approached by an afterguardsman and offered money to “help” other impressed men “in a pinch” (R82). Billy never actually heard what was intended, as he threatened to throw the afterguardsman overboard which caused the afterguardsman to leave immediately (id.). There is no record of Billy reporting this event. But this does not impugn Billy. There is a more than substantial question as to whether their was any “gang” of impressed men on the Bellipotent, as it is more probable than not that these statements were made up as part of Claggart’s scheme to entrap Billy. That Billy declined to discuss this event during his “trial” is understandable due to his naïve desire not to be an informer (R106). In any event, had Vere bound Billy over and permitted a proper trial to take place, all aspects of this event could have been explored.
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interest and potential unwarranted burdens imposed on the military in wartime (id. at
532-33, 124 S. Ct. 2648). The Court stated:
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-165, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U.S. 258, 264, 88 S. Ct. 419, 19 L.Ed.2d 508 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile”). (Id. at 532, 124 S. Ct. at 2648)
The majority of the Court specifically rejected the government’s claim that the executive
power prevented the courts from considering the fairness of the procedure: “‘What are the
allowable limits of military discretion, and whether or not they have been overstepped in a
particular case, are judicial questions’” (id. at 534, 124 S. Ct. 2650, quoting from Sterling
v. Constantin, 287 U.S. 378, 401, 53 S. Ct. 190, 196 (1932)).
Significantly, while Hamdi invoked only his right to liberty, not his right to life
itself, Billy is appealing a capital sentence. If Hamdi’s mere detention is subject to careful
due process analysis, then Billy’s capital conviction surely is. Indeed, as stated in the
opinion of Justices Stevens and Scalia:
“When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal,
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with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted” (internal quotation marks omitted)). (Id. at 556, 124 S. Ct. 2661; citation omitted; emphasis supplied.)
Although the various Justices arrived at the precise holding in Hamdi in different
ways, eight of the nine Justices believed that resort to habeas was available to the plaintiff.
Indeed, Justices Stevens and Scalia dissented from the majority and opined that the
plaintiff should immediately be released as there was no Constitutionally viable way of
truncating or balancing the traditional requirements of due process when dealing with
habeas corpus, notwithstanding the wartime conditions. In any event, every Justice except
Justice Thomas rejected the government’s position that it may indefinitely detain those it
labels “enemy combatant” essentially by simply saying so, or as Justice Thomas puts it in
functionally equivalent language by “nothing more than a good-faith executive
determination” (id. at 590, 124 S. Ct. 2680-81).12
12 In a separate case involving aliens detained at Guantánamo as “enemy combatants,” the Supreme Court held that they, too, were entitled to the rights conferred by the writ of habeas corpus. Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686 (2004). Congress later (December 30, 2005) codified the procedures regarding the executive designation of prisoners as “enemy combatants,” and substantially limited judicial review of those procedures, at least for aliens. Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, Title X, § 1005, 119 Stat. 2740, (not codified yet, but appearing at 10 U.S.C.A. § 801 (West)), repromulgated on January 6, 2006 with amendments to other sections, Pub. L. No. 109-163, Div. A, Title XIV, § 1405, 119 Stat. 3476 (not yet codified). The Constitutionality of this legislation has been challenged in Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004), rev’d, 415 F.3d 33 (D.C. Cir. 2005), cert. granted, 126 S. Ct. 622 (2005). The Supreme Court agreed to consider the following questions:
1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the “war on terror” is duly authorized under Congress’s Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?
Footnote continued on next page
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The case at bar presents a much stronger argument for invalidating the process used
than Hamdi. Hamdi concerned the propriety and scope of judicial review of an
institutional assertion of executive power; the ultimate issue concerned the checks and
balances between the executive, legislative and judiciary branches of government. But in
the case at bar, we are dealing only with the assertion of power by an individual military
officer that is in conflict with the institutional expression of policy and law reflected in the
military code by which he is bound. This is a much simpler issue to resolve. The Articles
do not grant Vere the power to abrogate Billy’s due process rights, and this Court should
not endorse his unilateral and unfair decision to do so. This Court should also note, in this
connection, that there was no sign of dissension or concern with potential mutinous acts on
board the Bellipotent under Vere’s command (R57-58). In fact, we go so far as to say that
Vere’s mistaken appropriation of military power to himself is itself more subversive and,
therefore, more likely to create the conditions for mutinous acts, than binding Billy over
for court martial when the Bellipotent rejoined the fleet would have been.
II. BILLY WAS DENIED AN OPPORTUNITY TO PRESENT HIS DEFENSES TO A VALIDLY CONVENED COURT
There is no question that Billy struck the blow that killed Claggart. But, even on
the limited evidence permitted to be presented, the official members of the trial court
believed that Billy could be acquitted. It was only Vere who prejudged the matter. Thus,
immediately before convening the illegal drumhead court, Vere stated: “Struck dead by an
angel of God! Yet the angel must hang!” (R101). We have focused on how Vere
2. Whether petitioner and others similarly situated can
obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?
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improperly and unfairly manipulated legal process to ensure the result he apparently
believed was necessary, and Vere’s admitted true motive for those manipulations, which
had nothing to do with justice in this case. We have also pointed out that the court was
improperly convened by Vere and that Vere improperly exercised “command influence” to
obtain the verdict he believed was necessary.
But Billy urges this Court also to focus also on Vere’s first thought: “Struck dead
by an angel of God!” Vere was elaborating on a statement he had made shortly before in
which he called Claggart’s death “the divine judgment on Ananais!” (R100). Thus, Vere
states here in the clearest terms possible his belief that Claggart had lied to him in accusing
Billy of mutiny, as well as his understanding that the just sentence for that heinous and
capital crime had already been carried out.13 (Vere had, in fact, pointed out to Claggart
that “there is a yardarm-end for the false witness” (R95).)
But Vere’s rush to have Billy immediately convicted and sentenced prevented the
court he appointed from hearing, and carefully considering, all the evidence concerning
Billy’s state of mind when the blow was struck. Thus, Vere prevented the court from
hearing and considering any evidence, including even Billy’s words, concerning the
important question put by the captain of marines: “You tell us that what the master-at-
13 These statements were made to the ship’s surgeon who Vere called to verify Claggart’s death. The surgeon, knowing nothing of the events in question, and noting Vere’s agitation, considered that Vere might be “unhinged” (R100-02). Certainly, it could be said that Vere’s dispassionate and calculated subversion of judicial process was a kind of madness, but his excited exclamations to the surgeon shortly after Claggart had expired should be credited. “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” may be admitted as an exception to the hearsay rule. Mil. R. Evid. 803(2). This exception to the rule excluding hearsay evidence has been in effect at least two centuries, the theory being that a person spontaneously reacting to a startling event under the stress of the excitement caused by the event is not fabricating. United States v. Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003).
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arms said against you was a lie. Now why should he have so lied, so maliciously lied,
since you declare there was no malice between you?” (R107). Vere intervened at that
juncture and insisted that that question was not material. This “prejudgment” by Vere
(R108) discomfited the court, and the captain of marines continued to raise questions in
this area: “Nobody is present—none of the ship’s company, I mean—who might shed
lateral light, if any is to be had, upon what remains mysterious in this matter” (R108).
Again, Vere imposed his will on the tribunal, and insisted that the inquiry is irrelevant, and
that Claggart is the only one who could shed light on that “mystery of iniquity” (id.). But,
it was not Vere’s place to tell the court what was relevant and what was not relevant, and it
did not follow that Claggart was the only person who could provide evidence regarding the
court’s question. Claggart may well have conspired with others who were – and still are –
alive and well. Claggart was known, for example, to employ a sailor nicknamed “Squeak”
to gather information useful to Claggart in his duties as master-at-arms (R79). Similarly,
the armorer, captain of the hold, yeoman, and apothecary, among others, were Claggart’s
messmates (R88-89). Further, Claggart may well have been behind the approach to Billy
by the afterguardsman (R80, 85). The most experienced sailor on the Bellipotent (the
“Dansker”) apparently believed that this was the case, because, having been told by Billy
about the conversation with the afterguardsman, and other anomalous events, he told Billy
that “Jemmy Legs [Claggart] is down on you” (R85; emphasis in original; see R71). All of
this a court properly convened could have explored.
In addition, if Claggart was lying, as Vere was sure was the case, then Billy could
not have been found guilty of violating § II(22) of the Articles as a matter of law. Section
II(22) requires that when the superior officer is struck the officer be “in the execution of
his office.” Making knowingly false accusations of mutiny against an innocent sailor is
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not an exercise of the master-at-arms’ office. Moreover, such conduct antithetical to
Claggart’s status as a non-commissioned officer would have divested Claggart of the
authority and protection of his office. E.g., United States v. Struckman, 43 C.M.R. 333
(C.M.A. 1971) (conviction for assault upon a superior officer reversed); United States v.
Diggs, 52 M.J. 251, 256-57 (C.M.A. 2000) (non-commissioned officer who found the
accused naked with his wife in his home held not to have divested himself of his office
when he impulsively struck the accused, but then stopped the assault and attempted to
resolve the matter within appropriate military channels14). Even if words alone are not
normally considered sufficient to divest an officer of his station for these purposes (see
United States v. Richardson, 7 M.J. 320, 322 (C.M.A. 1979)), in this case the heinous
nature of Claggart’s offense, combined with Billy’s disability and the lack of due process
should provide him with this defense. Again, a properly convened and appointed court,
with experienced judges, would have considered this legal point, in conjunction with all
the relevant factual issues involved.
In sum, if Billy had thereby established to the court’s satisfaction that: (1) he was
loyal to the King; (2) Claggart had conspired against him and had falsely accused him of a
14 In pertinent part, the jury instruction in Diggs was:
Now the evidence has raised an issue as to whether Sergeant Vaden conducted himself–or himself prior to the alleged offense in a manner which took away his status as a noncommissioned officer acting in the execution of his office. A noncommissioned officer whose own language and/or conduct under all the circumstances departs substantially from the required standards appropriate for that individual’s rank and position under similar circumstances is considered to have abandoned that rank and position. (52 M.J. at 257, n.3; emphasis in original.)
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capital crime; (3) Claggart’s conduct was antithetical to his station as an officer; (4) Billy
was undergoing extreme emotional disturbance caused by Claggart’s false accusation and
his constitutional inability to speak in his defense; and (5) Billy’s blow was impulsive, and
he intended no harm to Claggart by it; he could have been acquitted. But Vere denied him
that opportunity, even while believing that Billy was innocent, out of a need Vere alone
perceived to protect himself.
III. IN ALL EVENTS, A CAPITAL SENTENCE SHOULD NOT BE IMPOSED
Even in the record of the truncated summary proceedings Vere permitted, there was
substantial evidence of Billy’s innocence of Claggart’s charge of mutiny and no evidence
that Billy intended his impulsive blow to be fatal. Moreover, Billy had demonstrated a
loyal and good character as a sailor despite being impressed. Accordingly, this Court
should vacate the capital sentence.
The apparent false accusation of mutiny, combined with Billy’s speech
impediment, a disability that prevented him from responding to these false charges, and the
extreme stress created by Vere in demanding an explanation on the spot, combined to
produce an unbearable situation. In striking out at Claggart in blind frustration Billy surely
had no intent to kill him. Indeed, it is questionable whether Billy had any intent actually to
injure Claggart by this act at all. Where the record does not contain clear evidence of the
factors that justify a capital sentence, it should be overturned. United States v Matthews,
16 M.J. 354 (C.M.A. 1983).
Furthermore, the trial court expressed serious doubts regarding whether Billy was
guilty of any attempt or conspiracy to mutiny. These doubts derived from Billy’s spotless
reputation and good character, and from past bad acts of Claggart from which it would be
reasonable to question Claggart’s credibility. Thus, they believed that Claggart had gone
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to sea to avoid the consequences of acts of moral turpitude ashore. In fact, it was believed
that Claggart had been arraigned for a swindling offense, and had gone to sea to escape the
consequences of his fraud (R64-65). While it cannot be denied that Billy struck a superior
officer, and, tragically, the blow was fatal, there is no evidence, and the trial court did not
believe, that Billy intended to cause Claggart’s death. In short, the extenuating
circumstances that gave rise to that act should be taken into account in rendering sentence.
Where the blow was not intended to kill or seriously harm the recipient, and the defendant
was being falsely accused by the superior officer, surely leniency is called for.
Importantly in this connection, matters tending to explain the circumstances of the
offense may be offered in extenuation, regardless of whether or not they constitute a legal
defense. United States v. Pawlyschyn, 9 M.J. 590 (A.F.C.M.R.15 1980). Such evidence
can include the defendant’s good character (United States v. Courts, 4 M.J. 518
(C.G.C.M.R.16 1977), aff’d, 9 M.J. 285 (C.M.A. 1980)), and his state of mind (United
States v. Fox, 24 M.J. 110 (C.M.A. 1987)).
Vere was aware of all this, as were the members of the drumhead court. Thus, the
members of the trial court were inclined not to impose a capital sentence, both because
they were sympathetic to Billy and because they believed that to execute Billy would
violate the dictates of conscience. The following colloquy occurs:
Vere: To steady us a bit, let us recur to facts.—In wartime at sea a man-of-war’s man strikes his superior in grade, and the blow kills. Apart from its effect the blow itself is, according to the Articles of War, a capital crime. Furthermore—
15 Air Force Court of Military Review (a court of equivalent jurisdiction to this court, but dealing with the Air Force, instead of the Navy and Marine Corps). 16 Coast Guard Court of Military Review.
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Captain of Ay, sir . . . in one sense it was. But surely Budd Marines: purposed neither mutiny nor homicide.
Vere: Surely not, my good man. And before a court less arbitrary and more merciful than a martial one, that plea would largely extenuate. At the Last Assizes it shall acquit. But how here? We proceed under the law of the Mutiny Act. In feature no child can resemble his father more than that Act resembles in spirit the thing form which it derives—War. In His Majesty’s service—in this ship indeed—there are Englishmen forced to fight for the King against their will. Against their conscience, for aught we know. Though as their fellow creatures some of us may appreciate their position, yet as navy officers, what reck we of it? Still less recks the enemy. Our impressed men he would fain cut down in the same swath with our volunteers. As regards the enemy’s naval conscripts, some of whom may even share our own abhorrence of the regicidal French Directory, it is the same on our side. War looks but to the frontage, the appearance. And the Mutiny Act, War’s child, takes after the father. Budd’s intent or non-intent is nothing to the purpose. (R111-12; emphasis supplied).
In short, Vere admits that Billy can prove a case for acquittal, but insists nonetheless that
because it is wartime, Billy must die.
Shortly after this colloquy, the sailing master asks the direct question: “Can we not
convict and yet mitigate the penalty?” (R112).17 It is at this point that Vere launches into
the explicit argument that a capital sentence is required because it is not possible, given the
nature of sailors, to prevent mutiny by any other course of action or explanation
(R112-13). Thus, Vere convinces the court, which, absent Vere’s domination and control,
would not have imposed a capital sentence, that nothing can be offered in extenuation of
that sentence. Vere’s reason, which again carries the day only due to the domination Vere
exercises over his inferior officers, is that not only is mutiny inevitable if Billy is not
17 This is the first, and only thing, the sailing master says in the proceedings (R112).
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convicted and hung, but that even though clemency is just, it is not possible to explain
clemency in such a way as to avert mutiny. Why? Because Vere says that sailors are
incapable of understanding clemency in such circumstances or the reasons for it.
Presumptively, Vere has in mind the “frontage” demanded by War that Billy’s striking of a
superior officer cannot but be understood by the sailors as an act of insubordination, if not
outright mutiny. But, even assuming the sincerity of Vere’s expressed belief, the Articles
themselves rebut this conclusion, as they require a ship detached from the fleet to bind
over for trial an accused mutineer. The Articles nowhere give the ship’s executive the
authority to override this requirement based on his personal view or judgment at a
particular time or place.
Conclusion
For the foregoing reasons, Billy’s conviction and sentence should be reversed, and
the case should be remanded for proceedings consistent with the Articles of War and this
Court’s guidance.
Dated: New York, New York March 10, 2006 /s/ Clifford James Attorney for Defendant William Budd 270 Madison Avenue, Suite 1410 New York, NY 10016-0601 212.532.6333 Of Counsel: Tracey Pastan Jamie Fiedler Zinaman Benjamin N. Cardozo School of Law