Military Law: The Servicemen’s Gideon?

Every American accused of a crime has a right to counsel at his trial. And if he cannot afford a lawyer, ruled the Supreme Court in Gideon v. Wain-bright (1963), one must be supplied by the court.

Gideon clearly covers civilians, but what about U.S. servicemen? The Uniform Code of Military Justice requires trained lawyers at general courts-martial, which try major offenses. But special courts-martial, though they can mete out six months’ confinement, require only “counsel,” which means, under the code, that the defendant gets a lawyer only if the prosecutor is a lawyer. Otherwise, any officer will do.

Last July, at a small garrison in Salt Lake City, Army Private First Class James E. Stapley, 19, faced a special court-martial on charges of being AWOL for one day, bouncing eight checks, wrecking a government car and threatening a noncommissioned officer. Stapley requested a lawyer. He got a veterinarian, who advised him to plead guilty, ask for a 60-day rap and say nothing at the trial except “Yes, sir” and “No, sir.” Busted to private, Stapley wound up in the stockade with his pay slashed to $36 a month for half a year.

When Stapley asked for civilian help, Salt Lake City Lawyer James Cowley, an ex-Marine captain, petitioned U.S. District Judge A. Sherman Christensen for a writ of habeas corpus. In what may well become the Gideon of military law, Judge Christensen has just sprung Stapley, calling his trial “a mere mockery.” Contrary to the Uniform Code of Military Justice, says Judge Christensen, the Sixth Amendment right to counsel means the right to a trained lawyer. It clearly applies to special courts-martial, “particularly where charges are substantial or involve moral turpitude, and may result in substantial deprivation of liberty.”

The Justice Department has until Dec. 1 to file a notice of appeal. Unless higher courts reverse him, Judge Christensen’s opinion sets a precedent that may force Congress to change the military code and provide the armed services with hundreds of additional military lawyers.