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DEPAR'I'MENT OF THE ARh4Y PAMPHLET 27-1 00-68 MlllTARY LAW RlEVlEW VOL. 68 Articles IPREJUDICIAL JOINDER: THE CRAZY-QUILT WORLD OF SEVERANCES RElr'UFINfNG VETERANS' RIGHTS TO FRINGE BENEFITS AFTER FOSTER v, DRAVO CORPORATION Corn ment 'MtiLL. AND THE DEVIL': ANDERSONVILLE AND THE TRIAL OF CAPTAIN HENRY WIRZ, C.S.A., 1865 Boolcs Received HEADQUARTERS, DEPARTMENT OF THE ARMY SPRING 1975 MILITARY LAW REVIEW The Military Law Reuiew provides a forum for those interested in military law to share the product of their experience and research. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. SUBMISSION OF ARTICLES: Articles, comments, recent de- velopment notes, and book reviews should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, US. Army, Charlottesville, Virginia 22901. Footnotes should be triple spaced and appear as a separate appendix at the end of the text. Citations should conform to the Uniform System of Citation (1 lth edition 1967) copyrighted by the Columbia, Harvard, and University of Pennsylvania Law Reviews and the Yale Law Journal. SUBSCRIPTIONS AND BACK ISSUES: Interested persons should contact the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. Subscription price: $7.65 a year, 461.9s for single copies. Foreign subscription, $9.60 per year. REPRINT PERMISSION: Contact Editor, Military Law Review, The Judge Advocate General’s School, Charlottesville, Virginia 22901. This Review may be cited as 68 MIL. L. REV. (number of page) (1975). i Pam 2 7- 100-68 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-68 WASHINGTON, D.C., Spring 197f MILITARY LAW REVIEW-VOL. 68 Page Articles : Prejudicial Joinder: The Crazy-Quilt World of Severances Major Dennis M. Corrigan ....................... 1 Returning Veterans’ Rights to Fringe Benefits After Foster v. Dravo Corporation Mr. David Bennet Ross ......................... 55 Comment : ‘Hell and the Devil’: Andersonviile and the Trial of Captain Henry Wirz, C.S.A., 1865 Professor Lewis L. Laska and Mr. James M. Smith . 77 BooksReceived ........................................ 133 iii PREJUDICIAL JOINDER THE CRAZY- QUILT WORLD OF SEVERANCES* Major Dennis M. Corrigan”” I. INTRODUCTION Perhaps the most important decision made by a civilian prosecutor or a military accuser is the method of charging an alleged criminal act.l The decision is particularly difficult where separate criminal offenses are subject to the same proof or where a group of persons is involved in criminal conduct. Joinder and severance of offenses and defendants pose significant problems in modern criminal ad- ministration because the charging decision affects the allocation of scarce legal resources and the ability of our criminal process to accord defendants a fair trial. The problems became more troublesome during the last decade because of the increased incidence of group-oriented crime. More- over, the increased incidence was accompanied by a concomitant increase in media attention to the trials of the group members. In the civilian sector the news media gave the trials of mass offenders wide publicity. For example, the trials of the “Chicago Seven,” the “Harrisburg Seven,” and the “Gainesville Eight” were lead stories in all major news media. The military justice system was also scrutinized closely by the public. Coverage of the “My Lai *This article was adapted from a thesis presented to The Judge Advocate General’s School, US Army, Charlottesville, Virginia, while the author was a member of the Twenty-Second Advanced Course. The opinions and conclusions expressed herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency. ** JAGC, US Army; Senior Instructor, Administrative and Civil Law Division, TJAGSA. A.B., 1962, Fordham University; J.D., 1965, Rutgers Law School. Alem- ber of the Bars of New Jersey, the US.Supreme Court, the US. Court of Military Appeals and the US.Court of Military Review. 1 Kaplan, The Prosecutor’s Discretion-A Conmkwt, 60 Nw. U.L. REV. 174 (1965) ; Note, Prosecutorid Discretion in the Initiation of Criv1i7znl Co?iiplniizts, 42 S. CAL.L. REV. 519 (1969); Note, Prosecutor’s Discretion, 103 U. PA. L. REV. 1057 (1955). 2See e.g., The New York Times Index 1969, pp. 1814-26; 1970, pp. 1585-90; cf., United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 US. 970 (1973). 3See e.g., The New York Times Index 1970, pp. 161, 1844. 4See e.g., The New York Times Index 1974, p. 1732. 1 68 MILITARY LAW REVIEW Massacre” trials,’ the “Presidio Jlutiny,” the “Green Beret” cases’ and various incidents of fragging9 was indeed massive. The highly publicized acquittals in these cases focused the public’s and the legal profession’s attention on the seeming futility of mass prosecutions on the one hand and the wasteful duplication of time, money and manpower in separate trials on the other. It would be naive to contend that the cause of these acquittals can be traced solely to an error in the decision to proceed with separate or mass trials. However, it is significant that the prosecutors and the accusers in each case were faced with difficult charging decisions under joinder rules that on their face gave them little guidance. As the prosecutors and accusers in these cases discovered, the vague joinder rules are “among the most complex in the whole field of criminal procedure.” ’ In the light of the high acquittal rate in mass trials for group of- fenders, a staff judge advocate cannot confidently advise referral of charges to a joint or common trial merelV because the facts would permit such referral under the vague rule; governing the drafting of chargesroand the referral of charges to joint or common tria1s.l’ The staff judge advocate, and the military judge reviewing the initial charging decision, must consider the more fundamental question: whether in the particular case joinder will both afford each accused a fair trial and at the same time give the Government an opportunity for an effective prosecution. The purpose of this article is to assist the staff judge advocate and the military judge in resolving that fundamental question. The article examines the motion to sever on the ground of prejudicial joinder of defendants under paragraph 69d, .Ifn?zzLnl for C~urts-Mnrtinl’~and Rule 14 of the Federal Rules of Criminal 5United States v. Calley, 46 C.AI.R. 1131 (.\CIlR), aff’d, 22 U.S.C.\l.X. 534, 48 CA1.R. 19 (1973). See e.g.. R. HAJIJIER.TH E Comr-\I.mrI.x OF LT. CALIFY (1971); The Sew York Times Index 1970, pp. 2211-27; 1971. pp. 1921-35. 6See e.g., The New York Times Index 1969, pp. 1766-67. 7See e.g., The New York Times Index 1969. pp. 1877-78. 8See e.g., The Sew York Times Index 1970. pp. 3186-87. 9 Erickson, The History of the Tripod of justice, 61 1111~.I-, REV. 79 197.1). 10 MANUAL FOR COURTS-MWTI.AL,USITED S TATES, 1969 (Rev. ed.), para. 26 [hereinafter cited as Alanual in text and cited as AICJI. 1969 in foornote51. “Id. at para. 331. 12 !llcAl. 1969. para, 69d: ,Motio77 to Seyer. A motion to sever is a motion by one or twu UT more co-accused to he tried sell- arately from the othes or others. Occasion for the motion mas arise in either a Jc8ir.t or common trial. 2 1975 PREJUDICIAL JOINDER Procedure.I3 The conflicting considerations inherent in the choice of the appropriate mode of trial of group offenders most often arise and can best be analvzed n7ithin the context of the motion to sever. An examination of ;he judicial gloss to the Alanual and the Federal Rules will be made to discover the particular manner in which the courts have applied the vaguely worded rules to recurring fact situations. Finally, this article addresses the issue whether the use of discre- tionary severance rules is the most satisfactory method of accommo- dating the accused’s and the government’s competing interests. 11. PREJUDICIAL JOISDER DEFINED -4ND DELIAIITED A. THE DEFINITION: A!ISJOINDER AND PREJUDICIAL JOINDER DISTINGUISHED Llihen a defendant is charged jointly with a codefendant, the court may sever their cases for trial. In justifying its action, the In a common trial, a motion to soaer will be liberally considered. It should be granted on the motion of an accused arraigned in a common trial with other accused against whom offenses are charged ahich are unrelated to those charged against the mover (331). The motion should be granted in any case if aood cause is shown: but when the essence of the offense is a combination between the parties-conspiracy, for instance the military judge or the president of a special court-martial without a military judge may properly be more exacting than in other cases as to whether the facts established in support of the motion constitute good cause. The more common grounds for this motion are that the mover desires to use at his trial the testimony of one or more of his co-accused or the testimony of the wife of one, that a defense of the other accused is antagonistic to his own, or that evidence as to the other accused will in some manner prejudice his defense.
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