Freeman, Robert R.

English

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Judicial Practice: Courts Military and Civil: A Contrast

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Marquette Law ReviewVolume 3Issue 4 Volume 3, Issue 4 (1919) Article 6Judicial Practice: Courts Military and Civil: AContrastRobert R. FreemanFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationRobert R. Freeman, Judicial Practice: Courts Military and Civil: A Contrast, 3 Marq. L. Rev. 188 (1919).Available at: http://scholarship.law.marquette.edu/mulr/vol3/iss4/6JUDICIAL PRACTICE---COURTS MILITARYAND CIVIL: A CONTRAST.MAJOR ROBERT R. FREEMAN, PRESIDENT,MiILWAUKZE BAR ASSOCIATION.The members of the Wisconsin bar have performed a greatand patriotic work during these trying times. They have notspared themselves, but have given gladly of their time and havesacrificed much. They have performed their work cheerfully with-out attempting to advertise or commercialize it, and only now isthe general public beginning to realize that the success of the draftwas due to the unselfish efforts of the legal profession. Thelawyer raised a draft army without friction and did it withoutseeking publicity. It is something to be proud of and the knowl-edge of that patriotic act well done will bring lasting happinessto those who participated in it. Let me state, too, that the war wasnot won by any particular division or any particular set or classof men. It was won by the co-operation of all, and I hope inyears to come invidious comparisons will not be made, for itshould be remembered that the civilian contributed just as muchto the success of the war as did the man in uniform. The onecould not have existed without the other. Each worked to acommon end and each gave his best, and the will to do that workfor which each was best fitted had much to do with the finalresult.The controversy between General Crowder and General Ansellhas been given so much newspaper publicity that perhaps every-one is more or less familiar with the faults to be found in thepresent court martial system. I shall try to avoid discussing thatwhich has been printed in the newspapers.While the present system is certainly to be condemned, if forno other reason than because of the autocratic power vested inone man, yet it does possess several distinct virtues which appealto me strongly and which I propose to discuss here in the hopethat the bench and bar of Wisconsin may profit somewhat fromsuch discussion.A general court mArtial is composed of not more than thir-teen, nor less than five officers. The power to appoint or convenea general court is given to the President and to certain namedofficers of the army, such as the commanding general in thefield, department commanders and commanding officers of campsand districts by the 8th Article of War. In practice a generalJUDICIAL PRACTICEcourt is convened substantially as follows: Let us assume chargeshave been preferred and a number of men are awaiting trial bygeneral court martial in the Eastern Department. The com-manding general of that department publishes an order detailingthirteen officers to sit as the court in the trial of these cases. Healso details a trial judge advocate and an assistant trial judgeadvocate. In theory the trial judge advocate is both the prosecut-ing attorney and legal advisor of the court and he is also sup-posed to advise with and prottct the rights of the accused. Theranking officer of the court is called the President, and when anofficer is on trial, the court is usually composed of officers whooutrank him. After the court is detailed, the trial judge advo-cate arranges the dates of trial and notifies the accused thereofand also gives him an opportunity of being represented by coun-sel. The accused may select an officer of the army to defend himand the officer so selected is detailed for that particular purpose.If he prefers, he may secure civilian counsel, but the Governmentdoes not defray the expenses of such counsel and rarely do youfind a civilian defending an accused in a general court martial.On the day of trial, the members of the court, the trial judgeadvocate and his assistant, the accused and his counsel and thereporter are all present. The proceedings are conducted withthe greatest formality. The majesty of the law is revealed inevery act. The court maintains its dignity throughout the trialand indecorum on the part of the judge advocate, counsel or spec-tators is unheard of. No matter how trivial the offense, this formis adhered to, and the moment one enters the court room, onerealizes that the court is sitting for a serious purpose. Whetherthe members thereof be young or old, they realize the importanceof their position for the time being and uphold the dignity of thecourt to the fullest extent. It is a dignity which commands re-spect and a dignity which many civilian judges and lawyers couldemulate with considerable profit. Let me briefly sketch a trial tobring home the atmosphere of a general court martial. On theday of trial the judge advocate announces his readiness to pro-ceed, whereupon the accused formally introduces his counsel tothe court. The reporter is sworn in by the' judge advocate. Theorder appointing the court is read to the accused and he is askedif he objects to being tried by any member thereof. If he repliesin the negative, the trial judge advocate swears in the court.This is an extremely impressive ceremony. The officers of thecourt are equipped with swords and usually gloved. When they189MARQUETTE LAW REVIEWrise to be sworn, everyone in the courtroom rises with them. Thejudge advocate calls each officer by name and collectively ad-ministers the oath prescribed by the manual. After the court issworn, the president thereof administers the prescribed oath tothe judge advocate and his assistant. All remain standing duringthis ceremony and continue standing until the president and thecourt resume their seats. Even in the seating of the court cere-mony is observed. The president sits in the middle, facing thewitness chair; to his right is seated the next ranking officer, tohis left the next, and so on down to the junior officer present.Can you imagine how a proceeding of this character impressesthe general public? Respect for law and order is driven home.For the time being, the court is regarded as something apart fromthe general public. Its seriousness is impressive and the verysolemnity of the occasion breeds respect for a military court. Iwish the same respect were shown to civilian judges as to mem-bers of a general court martial. After the ceremonies just de-scribed, the accused is ordered to rise and the charges and specifi-cations are read to him by the judge advocate. If he pleads guilty,the president of the court fully explains the nature and effect ofsuch a plea, so that only in rare instances does an accused entera plea of guilty without full knowledge of his rights. If a pleaof not guilty is entered, the judge advocate reads the paragraphsof the manual giving the gist of the offenses with which the ac-cused is charged. This is for the instruction of the court. Wit-nesses are then called by the judge advocate and examined inmuch the same manner as in civil practice. After the Govern-ment rests, the president advises the accused that he may take thestand as a sworn witness and be examined the same as any otherwitness, or he may make a written or oral unsworn statement.He, of course, may call witnesses in his defense. When the testi-mony is in, the judge advocate and counsel usually argue the caseto the court. When the arguments are concluded, the presidentcloses the court, that is, orders everyone from the courtroomexcepting the members of the court. The court then deliberatesupon the verdict and if it finds the accused guilty, it also fixeshis sentence. The court is then opened and the judge advocateenters. He alone is advised as to the court's verdict. This con-cludes the trial, in that the accused is not advised as to the resultuntil after the case has been reviewed by the convening authorityand the record sent to the judge advocate general at Washingtonfor further review.JUDICIAL PRACTICEI hold no brief for the court martial system, but I do want torecord my approval of one feature thereof which impressed medeeply. I refer to the dignity of the court and the respect whichit demanded and received. The law is a noble profession and thetrue lawyer is always seeking to keep his profession on the high-est plane possible. He is a molder of public opinion and in a waystands in a class by himself. He is an officer of the court andto the general public he represents and stands for law and order.As he is, so is the community in which he lives. The lawyer wholives up to the traditions of his profession is a vital factor forgood in the solution of the manifold problems of the age. Any-thing which suggests a realization of our ideals, will, I am sure,not be considered offensive. In this article I am voicing onlymy personal views and so only because I have the interest of ourbench and bar at heart. You may not agree with me, but atleast know that I am sincere.In the courts of Wisconsin there is a tendency on the part ofmany attorneys to forget the dignity of judicial position and inmany instances a proper respect is not shown in the courtroom.Power, dignity and intellectual eminence is associated with thebench. These attributes demand respect, and if we choose menfrom among ourselves for judicial positions, it is our duty to paythem the proper respect and to see to it that the general publicdoes likewise. It may be urged that the bar does pay the properrespect. That depends entirely upon how you define the word"respect". If sprawling over a table when addressing the court;if presenting papers for signature with coats on and lightedcigar in hand; if wrangling with the court after an objection hasbeen ruled upon; if addressing the judge by his Christian namewhen on the bench; if talking audibly when a case is on trial; ifthese acts show respect, then you are right in saying that the dutyhas been well performed, for these acts are of frequent occurrencein many of the courtrooms of Wisconsin. I admit that there is nointentional disrespect, but somehow the majesty of the law seemslacking in a courtroom where these practices are indulged in.Think of the effect upon spectators. If we ourselves fail to showthe proper respect, how can we expect anything else from thegeneral public? We cheapen ourselves and our profession if wedo not maintain dignity in the courtroom. Where there is dig-nity and decorum, the spectator is not only impressed, but hisrespect for law and order is thereby increased.MARQUETTE LAW REVIEWToo often the doctrine of equality as applied to a democracywithdraws from the judge those external badges of dignity,childish as they may appear to the philosopher, but which some-how have power over the imagination of the mass of mankind,and as Brice, in his American Commonwealth, says: "are notwithout a useful reflex influence on the person whom they sur-round, raising his sense of position and reminding him of his re-sponsibility." Popular sentiment seems to tolerate nothing thatseems to elevate a man above his fellows, even when the dignity isreally the dignity of the people who have put him there. Thiscountry, therefore, would not tolerate the wig and gown of Eng-land and I do not care enough for form to wish anything of thatkind either upon the people or the judges, but it has occurred tome that as a mark of respect to the judges we have chosen, wecould with propriety ask that court be opened each day with someformality. Personally, I would suggest that the attorneys standduring the opening of court and not resume their seats until afterthe judge has done so. It is a little thing to do and yet I believea proceeding of this kind could stimulate in the general public agreater respect for law and order. Someone may urge that thisis undemocratic, but to my mind such an argument is not soundwhen the real meaning of democratic equality is understood.Democratic equality does not mean equality of intellect, useful-ness or position or that all men are equal in person. It doesmean that all men shall have equal opportunities regardless ofbirth and that equal justice shall be done to all. It is the abilityto take advantage of the opportunity which distinguishes the suc-cessful from the unsuccessful man. All have the same oppor-tunities in a democracy, and if we consider democratic equalityin this light, you will readily appreciate that in doing the thing Isuggest, we are none the less democratic.Of course, it is true that if judges wish respect, they mustcommand it, and their own personal conduct in the courtroommust be such as to uphold the dignity of the court. We want tohelp them, but they must co-operate with us to achieve that forwhich I earnestly hope - dignity and respect. It may be said thatthis idea does not appeal to the judiciary and, therefore, whyworry? My answer is: regardless of their feelings, our naturalpride in our profession should make us want to maintain the dig-nity of our courts, and we should get home that fact to themboth by our conduct in and out of the courtroom. I feel, how-ever, that our judges are in sympathy with a movement of this192JUDICIAL PRACTICEkind, and if they have hesitated to reprimand us for our unlawyer-like habits, that hesitation has been due to a fear of giving offense.Judges are but human and they are just as anxious to uphold thedignity of the institution of which we are a part as we are to havethem do it. They welcome suggestions looking to this end.If we see a court falling into a practice which, if persisted in,will eventually subject the court to public criticism, it is our dutyas officers of the court to tactfully call attention to it before thepractice becomes an established fact. No judge objects to con-structive criticism, particularly where its very purpose is to up-hold judicial dignity and force the general public to respect judi-cial opinion. If we feel that any practice is tending in the slight-est way to weaken the court's influence with the general public,we would be derelict in a duty did we not call the court's atten-tion to that condition, and please remember, I refer only tojudicial practices and not to judicial opinions. Recently ourSupreme Court began the practice of deciding cases withoutsubmitting an opinion. I know the motive which prompts apractice of this kind. The multiplicity of decisions coveringthe same point in our printed reports. Somehow, however,I feel that such a practice is a serious mistake. I do notmean to say that in each case decided, the Supreme Courtshould file a long, elaborate opinion, but the court could,in very terse language, state the reason for its ruling andin many instances could dispose of the case by referring to thereported case in the Wisconsin Reports controlling its presentaction. My reasons for opposing this practice are briefly these:The men chosen by our citizens for the high office of SupremeJudge are chosen because the people want a court of last resort.If they are defeated below, they want to know why they were sodefeated. The right of appeal from time immemorial has alwaysbeen encouraged. Very few litigants appeal unless they believe inthe justice of their cause. They employ attorneys to perfect theappeal and to argue their case. They go to this expense becausethey conscientiously believe that they are in the right. Often-times a lawsuit is the one big event in a man's life. He liveswith it for the time being and when he exercises his right ofappeal, when defeated, I feel that common courtesy and his rightas a litigant to have stated the reason for his defeat outweighsevery other consideration. The lawyer, of course, knows that theSupreme Court has read the record and studied the case, but notso with the layman. He erroneously labors under the impressionMARQUETTE LAW REVIEWthat the Supreme Court has been too indifferent to give him afair hearing and he communicates his own views to his friends,and they to other§, and I say to you very frankly that such actiondoes not tend to develop that spirit which should exist betweenthe highest court of the state and the general public. These, ofcourse, are only my personal views and I am not, as a king, tocoerce anyond to agree with me, but I know human nature toler-ably well, and in the end you will find that I am right about thismatter.Our courts must maintain dignity and we must pay them theproper respect. As we respect the courts, so will the generalpublic. If we show disrespect in the courtroom and contempt forjudicial opinon, so will the general public. This contempt, car-ried far enough, is destructive of law and order and is one ofthe things which breeds Bolshevism in the unthinking masses. Itis only by upholding the dignity of the judiciary and compellingthe general public to respect the men we choose as our judgesand ourselves as officers of the court, that we can hope to stampout this crawling snake, which is slowly but surely making itsway through the universe. If we uphold our institutions, thelaity will quickly follow.(EDIToR's NoT'E- This is a revision of an address delivered before theMilwaukee Bar Association on April ig, x9ig, upon the return of MajorFreeman from Washington, where he served as a member of the JudgeAdvocate General's Department.)

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Judicial Practice: Courts Military and Civil: A Contrast

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