Mr. Robert T. Coffin. The check having been cashed at the Fort Belvoir Post Exchange on 10 December 1942, accused asserts that it would have been impossible for him to cash it since he was on furlough during the period 9-12 December 1942. He further states that these facts constituted his only absolute defense to any specification and were known to his original defense counsel, who later became the trial judge advocate; and that, as a consequence, the entry of the nolle prosequi on the day of trial precluded his using a defense which would have cast a shadow of doubt on the entire case of the prosecution. In other affidavits submitted in support of the petition, Dr. Elbridge W. Stein and Mr. Ordway Hilton, after reciting their respective qualifications as examiners of questioned documents, state that each has examined the four checks variously involved in the case and made comparisons of the writing thereon with the known handwriting of the accused. It is the opinion of each, based on various technical characteristics which need not be discussed, that none of the handwritten indorsements on the checks are the writing of the accused; also, that the person who wrote the indorsements on the "Mary Gill" check did not write the indorsements on any of the other checks. 7. On 30 January 1950 oral argument of Mr. John A. Kendrick and Mr. H. Ralph Burton, attorneys for the accused, was heard. Since the time of oral argument accused's attorneys have submitted the following additional evidence: An affidavit, dated 10 February 1950, of Michael J. Reilly, the trial judge advocate to whom accused's case was originally referred for trial, states in substance that Captain Fox actively participated as accused's defense counsel by submitting questions to be presented in depositions requested of Livingston and Coffin, and that Captain Fox, also in his capacity as defense counsel, had several lengthy conferences with accused in the cell block. An affidavit of accused, dated 7 February 1950, substantiates these statements. 8. In the petition of accused and brief of counsel, it is alleged, and in argument it was urged, that the prosecution of accused by an officer who had originally been appointed and actively participated prior to trial as accused's defense counsel was prejudicial error. It was argued that accused had an adequate defense to Specification 3 of the Charge, which specification was later withdrawn, and that such defense, as well as other pertinent facts of the case, were known to Captain Fox in his original capacity as accused's counsel prior to his designation as trial judge advocate for the trial of the accused. Various other errors in accused's trial also were alleged which I deem unnecessary to enumerate or discuss in view of my opinion with respect to the foregoing contentions. 9. Although I am not persuaded by the argument that Specification 3 of the original charge against accused was withdrawn because of knowledge on the part of the trial judge advocate that accused had a credible defense thereto, it is my opinion that the circumstances whereby accused was prosecuted by an officer who had previously been active as his defense counsel were of such nature as to seriously affect his fundamental rights. While it is not error for one who has served nominally as counsel for an accused later actively to participate in the prosecution (Harvey v. Zuppann, 85 Fed Supp 574 (D. C. M. D. Pa. 1949), there is convincing proof that the attorney-client relationship between accused and Captain Fox was real, rather than nominal. It does not appear that Captain Fox acting as trial judge advocate made use of any information he had gained by reason of his prior relationship with the accused, or that he acted otherwise than in good faith in his prosecution of the case. However, I consider the question of whether there was an actual or probable use against accused of information obtained as a result of the pre-existing confidential relationship immaterial. * * * * The rule has long been firmly established that an attorney cannot represent conflicting interests or undertake to discharge inconsistent duties. It is unnecessary that the prosecuting attorney be guilty of an attempt to betray confidence; it is enough if it places him in a position which leaves him open to such charge; and this disqualification may arise by reason of services rendered by him in a civil case as well as in a criminal case" (People v. Gerold, 265 Ill 448, 107 NE 165, 177; see also Gaulden v. State, 11 Ga 47). The exact situation here involved now is expressly prohibited by the provisions of Article of War 11, which, although not in effect at the time of accused's trial and hence not applicable here, is clearly indicative of the development of military law on the question, based upon public policy and reflected by legislative pronouncement (CM 333433 Alvaro-Rodriguez, 81 BR 359, 366). On the basis of all the facts and circumstances, including the new evidence presented, I feel compelled to the conclusion that an injustice has resulted from the findings and sentence in this case. 10. The findings of guilty and the sentence adjudged in the case of Technician Fifth Grade Morris E. Levine will be vacated, and all rights, privileges, and property affected by such sentence will be restored. Inasmuch as the dishonorable discharge adjudged * * was not executed, and Levine later received an honorable discharge *, it will not be necessary to direct the substitution of an administrative discharge in order to afford Levine complete relief under Article of War 53. E. M. BRANNON Major General, USA The Judge Advocate General CSJAGY CM 335051 6 March 1950 MEMORANDUM OPINION SUBJECT: Application for New Trial or for Other Relief in the Case of Captain Edward F. Bishop, 0-1302262 (CM 335051). 1. Accused was tried by general court-martial at Fort Bragg, North Carolina, on 1 February 1949, and found guilty of the offenses of making a false official statement (Specification 1 of the Charge), and of dishonorably failing to pay a debt (Specification 2 of the Charge), in violation of Article of War 95. He was sentenced to be dismissed the service. The reviewing authority disapproved the finding of guilty of Specification 2 of the Charge, approved the sentence, and forwarded the record of trial for action under Article of War 48. The opinion of a board of review in my office, constituted under Article of War 50, was that the record of trial was legally sufficient to support the findings of guilty and the sentence, which, under Article of War 48, with the concurrence of The Judge Advocate General, was confirmed by the Judicial Council. The proceedings were promulgated in, and the sentence was ordered executed by, General Court-Martial Orders No. 20, Department of the Army, 15 April 1949. Accused ceased to be an officer on 20 April 1949. He now presents an application for relief under Article of War 53. 2. Accused was tried upon the following Charge and Specifications: "CHARGE: Violation of the 95th Article of War. "Specification 1.-'In that Captain Edward F. Bishop, 505th Airborne Infantry, did, at Fort Benning, Georgia, on or about 14 August, 1948, with intent to deceive, officially state to Lt. Colonel Shields Warren, Junior, that he, the said Captain Edward F. Bishop, had made an allotment out of his pay of $80.00 per month payable to the Federal Services Finance Corporation for the pur pose of paying a debt owed by said Captain Edward F. Bishop, which allotment had been in effect for a period of 6 months, which statement was known by the said Captain Edward F. Bishop to be untrue.' "Specification 2.—(Finding of guilty disapproved by the reviewing authority)." 3. The record of trial shows that in August 1948 accused was assigned as a student to the Airborne Infantry Training School, Fort Benning, Georgia. Lieutenant Colonel Shields Warren, Jr., Commanding Officer of the Airborne Battalion, Student Training Regiment, Infantry Center, Fort Benning, Georgia, on about the last day of July 1948 had received an official communication from his Regimental Commander requesting that he obtain certain information on which to base a reply to a letter which had been received in connection with the affairs of accused. Lieutenant Colonel Warren directed accused to appear before him on a day in the early part of August 1948. When accused presented himself, Lieutenant Colonel Warren informed accused that he was investigating two matters. The Colonel warned accused of his privilege against self-incrimination, and advised accused that he need not make any statement, but that any statement he might make could be used as evidence against him. Lieutenant Colonel Warren then questioned accused concerning an alleged debt in the amount of about $500 owed "to a finance corporation in New Jersey," which the evidence shows was the Federal Services Finance Corporation, Washington, D. C. Lieutenant Colonel Warren read the letter which he had received from his Regimental Commander, and asked accused, "What, if anything, he desired to say about it." Accused then stated to Lieutenant Colonel Warren in substance that he had contracted the debt in January 1948, and that in February 1948 he had effected an allotment of his pay in the sum of $80 to run for six months, and that the allotment was to pay the $500 debt. Colonel Warren, after mental calculation, then said to accused, "That would take care of all but about $20 wouldn't it?" Accused replied, "Yes, sir, that is true." He then took a copy of his pay voucher from his wallet, handed it to the Colonel, and said, "See, here's the allotment showing on this July voucher." Colonel Warren noted that the voucher showed an $80 allotment, but did not show the person to be credited. He forwarded accused's explanation to higher authority, recommending that the allotment be verified. Accused's Army pay records showed that the only allotment authorized by accused between February 1948 and July 1948 was one for $80 monthly to The Trenton Banking Company, Trenton, New Jersey to the credit of his wife, effective 1 May 1948; it had been discontinued as of 30 June 1948. There was no record that accused had applied for an allotment to the Federal Services Finance Corporation. The cashier of the Trenton Banking Company testified that no deposit had been made with the bank in the amount of $80 by or on behalf of accused between January and October 1948. On about 15 June 1948 the bank had received a notification of a first allotment payment in the amount of $80 for the credit of Mrs. Mathilde B. Bishop, but the money was not received, and the bank received a notice of discontinuance of the allotment as of 30 June 1948. The bank had no agreement with accused regarding disbursement of any allotment which it might receive. There was testimony that the Federal Services Finance Corporation, in favor of which accused signed a note for $504 on 16 January 1948, received no payments thereon until 22 October 1948, although accused had agreed to make monthly payments in the amount of $42. Intermittently during the period from February to September 1948 the corporation had communicated with accused regarding the delinquency of his account. Accused testified that at the time he borrowed the money from the Federal Services Finance Corporation he was in Monmouth, New Jersey, although his station was at Fort Dix, New Jersey. He had gone to the allotment section at Fort Dix in February and instructed a clerk there to make out an allotment for $80 to the bank. He signed a blank form, but did not remain to see what information was filled in on the form. During the time he was in school at Monmouth he did not draw any pay, and did not know exactly where his pay was going until he returned from Monmouth to Fort Dix in May. He testified that the Federal Services Finance Corporation had instructed him to make his allotment to the bank, because he was unable to make an allotment to the finance company, and to arrange for the bank to transmit the money in turn to the finance company. He said he thought he had made such arrangements. However, the first indication he had that he was delinquent in the debt was at the time he was interviewed by Lieutenant Colonel Warren at Fort Benning. He immediately found out that there had been some mistake in his allotments and started trying to straighten out the matter. He denied that he had received communications from the finance company while he was a Fort Dix. He testified that from August 1947 practically his entire pay in the amount of about $385.52 was going to the Trenton Bank, and that in February 1948 he had made arrangements for an $80 allotment. He later found there was some mistake but was unable to straighten out the matter |