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Defending Soldiers at Early Courts-Martial.

While Army lawyers today provide a thorough and zealous defense for a soldier facing court-martial proceedings, defense services for a soldier being prosecuted in the early years of the Army were markedly different.

George Washington's Continental Army and the Army of the newly created United States tried thousands of courts-martial, yet there are no complete records of trial from the 18th century because a fire destroyed all War Department files in November 1800. (1)

The earliest known example of a court-martial record dates to 1808 and, while it identifies the members of the panel, the judge advocate, the charges and specifications, the questions and answers of the witnesses, the decision of the court and the action of the convening authority, the record says nothing about how the accused defended himself. (2)

A record of trial from the following year, however, reveals that there were significant restrictions on the representation of an accused at a court-martial. In United States v. William Wilson, the accused, who was an Artillery officer, had the services of a Mr. William Thompson as his individual counsel. While Thompson may or may not have had legal qualifications as an attorney, he certainly knew how to conduct a vigorous defense, as he examined witnesses, made objections, and read a statement written by the accused.

While Wilson was convicted and sentenced by the panel, the reviewing authority, General James Wilkinson, was exceedingly unhappy with the defense counsel's participation in the proceedings. Consequently, he disapproved the court-martial and wrote the following in his action:
   [T]he General [Wilkinson] owes it to the
   Army ... not only to disapprove the
   proceedings and sentence of this general
   [court] martial, but to exhibit the Causes of
   his disapproval.

   The main points of exception ... are the
   admission of Counsel for the defense of the
   prisoner ... Shall Counsel be admitted ... to
   appear before General Court-Martial [and] to
   interrogate, to except, to plead, to tease,
   perplex & embarrass by legal subtilties [sic]
   & abstract sophistical Distinctions?

   However various the opinions of professional
   men on this Question, the honor of the Army
   & the Interests of the service forbid it ...
   Were Courts-Martial thrown open to the Bar
   the officers of the Army would be compelled
   to direct their attention from the military
   service & the Art of War, to the study of Law.

   No one will deny to a prisoner, the aid of
   Counsel who may suggest Questions or
   objections to him, to prepare his defense in
   writing-but he is not to open his mouth in
   Court. (3)

General Wilkinson's sentiments in the Wilson trial reflected the prevailing view that courts-martial were courts of discipline, and not justice. (4) Consequently, permitting lawyers to transform these disciplinary proceedings into law courts was anathema--and would not be tolerated. After all, Article 69 of the Articles of War of 1806 provided what was then thought to be enough to guarantee that the accused received a fair hearing:

The judge advocate ... shall prosecute in the name of the United States, but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses or any question to the prisoner, the answer which might tend to criminate himself. (Emphasis supplied) (5)

As Colonel William Winthrop explains in his authoritative Military Law and Precedents, Article 69 was "a most imperfect and ineffective provision," if for no other reason than "objecting to leading questions" is just one function of a defense counsel. (6)

It would be many more decades before the Army-and lawyers wearing uniforms--were willing to accept that courts-martial should operate more like civilian courts, and that the accused should have a robust-and legally qualified-defense. In fact, not until the enactment of the Uniform Code of Military Justice in 1950 did an accused have the absolute right to legally qualified counsel, and then only at general courts-martial. (7)

The evolution of this right to counsel, and the development of the defense function at courts-martial however, is a story for another Lore of the Corps.

Fred L. Borch

Regimental Historian & Archivist

(1) JUDGE Advocate General's Corps, The ARMY LAWyer 29 (1975).

(2) Id.

(3) Id.

(4) For another court-martial involving General Wilkinson and an officer who refused to cut his pigtail, see Fred L. Borch, The True Story of a Colonel's Pigtail and a Court-Martial, ARMY LAW., Mar. 2010, at 3.


(6) Id. at 197.

(7) Article 27, Uniform Code of Military Justice.
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Title Annotation:Lore of the Corps: Special Edition
Author:Borch, Fred L.
Publication:Army Lawyer
Date:Feb 1, 2018
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