Last Thursday, the Old Fuds met on the third floor of Tony Cheng’s Restaurant in DC’s Chinatown.  The Old Fuds consists of Retired Army JAGs who can still climb up to the third floor.  There were about 50 of us and we do this twice a year.  That is the sum and total of the physical training for a number of the Old Fuds.

We usually have a guest speaker and we buy him lunch, unless he speaks for over ten minutes.  Then, he is on his own.  This time, we had Royce Lamberth speak to us.  He is now the Chief Judge of the US District Court for the District of Columbia.  In earlier days, he was one of us.  In fact, back in the early Seventies, he defended me when I was accused of trial misconduct back in Germany.  I had to appear in the US District Court in Baltimore and Royce was a young JAG captain working in the Pentagon in the Litigation Division.

Back in 1969, I prosecuted a soldier named Alsop for sale and possession of hashish.  Alsop was sentenced to two years in Leavenworth and a dishonorable discharge.  The key witness against Alsop was a soldier named Jones, who had purchased hashish from Alsop.  When Alsop’s civilian appellate attorney reviewed the case, he observed that I had dismissed the possession charge against Jones.  If I had done that as part of an agreement with Jones to get him to testify, then that fact must be shared with the defense.  They insisted that there had been a secret agreement between Jones and me and consequently the conviction should be thrown out.

Alsop’s case had already gone through all of its military appellate appeals when they discovered my alleged misconduct.  Therefore, they filed for a writ of habeas corpus to overturn the case.  I guess it is kind of obvious, since I am telling the story, that there wasn’t any misconduct or secret agreement.

The whole episode happened in Germany.  Jones was stationed in Crailsheim and was suspected of using drugs.  A criminal investigation detachment (CID) agent went to Jones’ unit.  He was advised by the charge of quarters (CQ) that Jones was off post on a pass.  The CID agent told the CQ that when Jones came in, he should be escorted over to the CID office.  That is what happened and at the CID office Jones was searched.  He was clean.

Then, the CQ told the CID agent that a funny thing had happened as they were walking over to the CID office.  Jones had taken a Marlboro crush-proof pack out of his pocket and thrown it in a snow bank.  The CID Agent told the CQ to go back and retrieve the Marlboro pack out of the snow bank.  He did and surprise, surprise, it was packed full of bricks of hashish.  Jones then gave up Alsop and a search of Alsop’s wall locker found enough hashish to float his entire company.

Along with being the general courts-martial prosecutor, I was the Chief of Military Justice for the 4th Armored Division.  We decided to try Jones by summary court-martial.  A young major (not a JAG) was assigned to be the summary court officer and to decide whether Jones was guilty.  On the day of the trial, the major asked Jones how he wanted to plead.  Jones said he wanted to plead guilty.  The major told Jones he didn’t have to plead guilty, but could plead not guilty and require the Army to prove his guilt.  So Jones said, “OK, I plead not guilty.”  The summary court officer then handed Jones his confession and asked him if he signed it.  Jones said he had.  The summary court officer then said, “OK, I find you guilty.”

Unlike television, books and movies, in the real world you have to lay a foundation before you can accept a confession.  The summary court officer needed to hear the testimony of the CID agent as to the circumstances surrounding the taking of the confession and that Jones had received his Miranda warning.  He also needed to hear from the CQ to put the hashish in Jones’ hands.

I was the one who received the trial record on Jones’ conviction.  It was clear that we needed to retry Jones.  I can’t remember whether we were planning to use the major again or find a new summary court officer.  It turned out it didn’t matter.  There could be no second trial.  In the time it took for all this to play out, the CQ’s enlistment had expired and he had returned to the United States (the land of round door knobs) and was no longer in the Army.  We could not bring him back to Germany and the case against Jones was toast.

As I mentioned earlier, I was also the Chief of Military Justice and, in that capacity, I dismissed the charge against Jones.  Wanted to prosecute him.  We tried.  We just screwed up.  Jones was the most surprised when the charge was dismissed.  Clearly there was no secret agreement.

In Baltimore, Royce explained that there were valid procedural reasons the case should be dismissed and that I probably would not have to testify.  Then the judge came in and told us he had not had time to review the case and since I was present, he might as well hear from me.  So, I got my chance to tell the judge what I have just told you.  The opposing counsel was hearing what had happened three years before for the first time.  He was not equipped to challenge it.  The beauty of telling the truth is you don’t have to remember what you have previously said.

Since the trial in Germany, I had spent a year at Northwestern University getting a masters degree in criminal law, spent a year in Vietnam getting a different sort of degree and was now teaching at the JAG School in Charlottesville, Virginia.  Royce called me a week after my testimony and told me the judge had dismissed the case.  I was vindicated.  Hooray for the good guys!

Thirty-five years later, for the first time, I saw Royce at a Vietnam Reunion.  I mentioned to him that he had been my lawyer in Baltimore in 1972.  He smiled and nodded his head.  What does that mean?  I don’t blame him if he doesn’t remember.  I was the one on the hot seat.  He is still one of the good guys.