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offenses of which he was convicted, and that at the time of trial the court had jurisdiction over him and over said offenses. There is ample competent evidence of record that McAdams' confessions were made voluntarily, and nothing to the contrary has been shown. The findings of guilty are fully supported by the evidence; the sentence imposed was legal and not excessive. The record of trial is free of error injuriously affecting his substantial rights.

The matter of McAdams' present incarceration is a question to be settled between him and the state authorities detaining him, and has no bearing upon the validity of his trial and sentence by court-martial (see Wing v. Stewart 77 F. Supp, 25 (Dist. Ct. Mo. 1948)).

The record shows that counsel for McAdams diligently sought to protect his interests, and there is no indication that McAdams, by counsel's actions, was denied a fair trial.

On the basis of all the facts and information before me including the record of trial, the petition and other matter presented by McAdams, I cannot conclude that an injustice has resulted from the findings or the sentence.

6. Good cause for the granting of a new trial or alternative relief under Article of War 53 does not appear, and, accordingly, the petition will be denied.

E. M. BRANNON

Major General, USA

The Judge Advocate General

CSJAGY CM 306839

MEMORANDUM OPINION

23 March 1950

SUBJECT: Application for New Trial or Other Relief in the Case of Lieutenant Colonel Farris N. Latimer, 0-15935 (CM 306839)

1. Accused was tried by general court-martial at Bayreuth, Germany, on 11 June 1945 and found guilty of four offenses of unlawfully selling to enlisted personnel captured property (Specification 1, Charge I-a Walther pistol to Technician Fourth Grade Donaldson; Specification 2, Charge I-a Mauser pistol to Technician Fourth Grade Donaldson; Specification 3, Charge I— a Luger pistol with .22 caliber adapter and spare parts to Technician Fourth Grade Painter; Specification of Additional Charge -a Czechoslovakian pistol to Technician Fourth Grade Painter),

in violation of Article of War 80, and of unlawfully selling intoxicating liquor to an enlisted man (Specification of Charge III-6 bottles of Cognac to Technical Sergeant Levine), in violation of Article of War 96. He was sentenced to be reduced to the permanent grade of Major, to be reduced 250 files on the promotion list, and to pay a fine "of one hundred dollars ($100.00) per month for six (6) months". The reviewing authority commented on the inadequacy of the punishment imposed and, in order that accused "[would] not escape punishment", approved and ordered executed the legal portion of the sentence which related to the reduction in number of files on the promotion list and the fine. Accused now presents an application for relief under Article of War 53 requesting a new trial.

2. The record of trial shows that accused, a member of Headquarters, 12th Armored Group, stationed at Naumberg, Germany, was driven to the city of Leipzig, Germany, on 21 April 1945 by Technician Fourth Grade Lawrence Lee, his regularly assigned driver. In Leipzig accused and Lee were present at a lineup of German officers who were then turning in their weapons. Accused and another officer collected weapons in a bucket, some of which were small .32 caliber pistols, Walthers and Mausers. Accused personally received certain of the weapons from the German officers. He also had in his possession some other guns, which he was showing to the other officers, one of which appeared larger than the others, probably a P-38 or a Luger.

The evidence also disclosed that prior to his trip to Leipzig accused had not been seen with any German weapons. After his return holstered weapons were observed on his desk, and he was seen to display weapons to members of the command. He was heard to remark that he had obtained the weapons at a "shake down" of German prisoners of war in Leipzig and had been fortunate in obtaining a 1913 Luger.

Technician Fourth Grade Gordon S. Donaldson purchased a Walther 7.65 pistol from accused in a building at 12th Armored Group Headquarters, Borna, Germany, on 26 April 1945 for $25, or its equivalent in German marks (Specification 1, Charge 1).

After accused informed him on 27 April 1945 that he had another pistol for sale, Donaldson purchased a German Mauser automatic pistol from accused at his quarters for $75, or its equivalent in German marks (Specification 2, Charge I).

Technician Fourth Grade Andrew J. Painter, Jr., on 29 April 1945, purchased a 1913 model Luger pistol with .22 caliber adapter, holster, spare parts, extra magazines, and some 1200 rounds of ammunition from accused for $150, or the equivalent in German marks (Specification 3, Charge 1). On 26 April 1945 he paid

accused $17.50, or its equivalent in German marks, in purchase of a 6.35 Czechoslovakian automatic pistol (Specification of Additional Charge).

Adequate evidence of identification of the German weapons sold to both Painter and Donaldson was presented at the trial.

Technical Sergeant Rubin Levine testified that on 27 April 1945 he made a request of accused for some liquor. The following day Levine went to accused's quarters, where, in the presence of Captain Taylor, he obtained from accused six bottles of Cognac for which he paid $2.00 a bottle, or its equivalent in German marks (Specification of Charge III). Captain Joe Taylor corroborated the fact that accused gave Sergeant Levine several bottles of beverages, but Taylor did not testify as to the payment of

money.

Papers allied to the record of trial show that charges were served on accused 6 June 1945 and do not reveal any official written request for individual counsel. At the outset of the trial on 11 June 1945 accused stated that he desired to be defended by regularly appointed defense counsel. No continuance was asked by accused or his counsel for any purpose. Accused remained silent at the trial, after receiving advice from both his defense counsel and the law member regarding his right to testify. The defense did not call any witnesses but did present closing argument.

3. Accused contends that he was denied reasonable opportunity to obtain defense counsel of his own selection; that he was denied opportunity to prepare his defense; and that the two regularly appointed defense counsel were not legally trained, were inexperienced in the procedures of courts-martial, and hence did not recognize or introduce ample and competent evidence which existed to disprove the charges against him and did not otherwise properly conduct his defense at the trial.

Accused avers that only six days elapsed between the investigation and the trial; that two of these six days elapsed before the commanding general denied accused's request personally to seek counsel of his own choice; that thereafter frantic endeavors on the part of accused and his regularly appointed assistant defense counsel directly to obtain competent and qualified individual counsel came to no avail; that these "irregular proceedings" were not noted as exceptions at accused's trial, because neither accused nor his appointed defense counsel had legal training or experience and were ignorant of proper procedure.

It is further averred in the petition that the reviewing authority's intention that accused be swiftly punished without the protection of his constitutional rights is manifested by his remarks included in the approval.

4. Four affidavits have been submitted for consideration with accused's petition.

The affidavit of accused, sworn to 27 June 1949, after reciting a brief history of his service in the Regular Army since 14 July 1924, deals in the main with the difficulty accused encountered in the few days before his trial in his efforts to obtain individual counsel. In it he states that he was not permitted personally to seek his counsel but was informed that such request must be made in writing through proper channels; that after regularly appointed defense counsel and assistant defense counsel were made available to him, accused sent Captain Kilker, his assistant defense counsel, on two different long trips in an effort to seek out individual counsel; that both attempts were unsuccessful, and accused was advised that immediate trial of his case was necessary because of the imminent return of the organization to the Zone of the Interior; that he thus was forced to proceed to trial with regularly appointed defense counsel, neither one of whom had any trial experience, nor were they legally trained; that the fact that counsel were "totally unqualified to defend him" became obvious during the trial since what little cross-examination of witnesses that did take place was based on questions accused himself had to suggest; that ample and competent defense evidence was available to disprove the charges against him, but it was not recognized or introduced because of inexperience of defense counsel.

In his affidavit, sworn to 9 June 1949, Gordon L. Bryant states that in May and June 1945 he was detailed to accompany accused on his daily walks while accused was in arrest; that he personally observed the difficulties accused experienced before his trial in endeavoring to obtain competent individual counsel and recites facts in this regard substantially in accordance with those stated by accused in his affidavit summarized above. It is further stated by affiant that he was outside the door of the court-martial room during accused's trial and saw that accused had no other alternative but to proceed to trial with inexperienced counsel.

The affidavit of John M. Kilker, sworn to 28 June 1949, is substantially the same as the statement of accused concerning the conditions of his arrest, Captain Kilker's search for competent individual counsel, his failure in this respect, and his own lack of experience as defense counsel. He further states that in his belief the trial was rushed to a conclusion without affording accused the opportunity to secure the services of a trained defense lawyer, and that the 12th Armored Group returned to the United States a few days after the trial.

The affidavit of Gerald O. McMillen, sworn to 1 February 1950, recites that he was appointed defense counsel; that he was

not a lawyer in civil life; and that he had no previous experience in courts-martial. Affiant then recites facts substantially the same as accused's statements regarding the difficulties experienced prior to the trial in attempting to secure individual defense counsel. He states that the time between his appointment as defense counsel and the date of the trial was very short, and he and his assistant were forced to proceed with the defense although they knew nothing about trial work; that in his opinion accused did not receive the defense a qualified lawyer would have given him. McMillen further states that he was informed by the Staff Judge Advocate, 9th Armored Division, that he protested to the convening authority at the time of affiant's appointment as defense counsel that accused should be afforded the opportunity of securing a qualified lawyer to defend him, but that the convening authority stated "McMillen isn't busy let him do it".

5. It has not been shown that accused was deprived of representation in his defense by military counsel of his own selection. This right was conditioned upon the availability of such counsel as might be determined upon application through the usual channels for the detail of a person selected by accused for the purpose (MCM, 1928, par. 45a; AW 17). Accused, a mature officer with 21 years' experience in the Army, knew of this, yet relied upon his own resources in his quests for counsel and voluntarily expressed in open court a willingness to be represented by regularly appointed counsel.

It was not error for the court to proceed to trial six days after service of charges upon accused (AW 70). No objection, or request for continuance, was made. So far as appears, all material witnesses were present and testified. Nothing has been presented, other than accused's own unsupported statements upon this application to reveal that evidence existed to disprove the charges against him. With full knowledge he elected to remain silent at the trial, and presented no evidence in his own defense, although given ample opportunity to do so.

Regularly appointed defense counsel and assistant defense counsel, though not lawyers, cross-examined prosecution witnesses, made timely objections to introduction of evidence, and otherwise sought to protect the interests of accused. No dereliction of duty by him was shown, nor was accused, by any action of counsel, denied a fair trial. Accused was not deprived of his right to counsel merely because in retrospection he now concludes that such representation did not meet his standards of effectiveness (see Romero v. Squier, 133 F. 2d 528, 531, 532 (CCA 9th 1943); Cf Rayes v. Hunter, 83 F. Supp. 940 (D. C., Kansas 1948)).

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