United States v. Miller

Opinion of the Court

’ The accused was tried by general court-martial in Japan for misbehavior before the enemy in violation of Article 99 of the Uniform Code of Military Justice, 50 USC § 693. He was found guilty and was sentenced to dishonor.able discharge, total forfeiture of pay and confinement for one year. Navy reviewing authorities have upheld the findings and sentence.

The record in this case reveals that during the trial and prior to the findings, a closed session conference was held by the law officer and the court outside the presence of defense counsel, trial counsel, and the accused. We have already made clear out views concerning such conferences. United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952; United States v. McConnell (No. 596), 4 CMR 100, decided July 31, 1952; United States v. Henry M. Smith (No. 512), 4 CMR 123, decided August 6, 1952; United States v. Cadena (No. 713), 4 CMR 126, decided August 6, 1952; and United States v. Wingert (No. 785), 4 CMR 166, decided August 8, 1952. In this case, reversal is clearly required since the record contains no indication of what took place during the conference.

The decision of the board of review is reversed and a rehearing is ordered.

(concurring in the result):

I concur for the reasons set forth in my dissenting opinion in United States v. Woods and Duffer (No. 1023), 8 CMR 3, decided February 19, 1953. The Government concedes that even though únreported, the conversation concerned matters which the board of review should have found were prejudicial to the substantial rights of the accused.