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k DEPARTMENT OF THE NAVYOrVICC OV lMC JUOOC #OVOCAYC OCNCRfiL

>00 STOVA1.L STREET

k AM!! AL C,. NO RI., “. 22,,2.,.00 IN nCPLY REFER ,0

JAGINST 5813.1A20

[1”17w 1993

sIAQ-LNSS!WXION 5813. U

Fr.clm: Judge Advocate General

Subj : STANDAROIZATION OF GCM AND SPCM VERBATIM RECORDS OF TRIAL

Ref: (a)(b)(c)

Encl: (1)

U.S. Government Printing Office Style Manual, 1984Manual for Courta-Martial, United States, 1984 (MCM)DD !i’OrM490, Ott 1984

Standard Format for GCM and SPCM Verbatim Records ofTrial

1. EW32Qae.

a. To reieaue the standard format required for all GCM andSPCM verbatim records of trial. These changes will decreaaepost-trial processing times, as well aa increase workproductivity within Naval Legal Service Offices and Detachments.

b. This is a major revision and should be reviewed in itnentirety.

?. . *mc-&*. JAG Instruction 5813.1.

3. &WWXk&i&Y . This instruction supplements the requirementsfor preparation cf records of trial promulgated in references (a)and (b), and supplemented by raferenCe {C). it appiiea to allpersonnel involved in the preparation and auttientication of GCMand SPCN verbatim records of trial.

4. [email protected] . The margins for the record of trial should be setin accordance with appendix 14 of reference (b). Set the rightmargin at 1./2 inch. Uae left justification. The format andguidelines contained in enclosure (1,)are advisory and should befollowed as practicable. Included in enclosure (1) are variousnates and explanations ueed to assist in the preparation of therecord of trial, but they should not be transcribed as psrt ofthe record. Divide large records into volumes no more than 1 1/2inches thick. The following computer functions are included inenclosure (1) and are recommended during transcription of recordsof trial:

a. Italicize l.he court. reporter’3 comments and descriptions.

b. Indent and hold the accused’s pleas.

m

JAGINST 5813.1A17 sEP 1993

c. Indent elements

d. Indent and bold

/

A

of the offense.

the court’s findings and sentence.

e. Bold the identification of witnesses.

f. Check page breaks so that the answer to a question doesnot appear on a page separate from the question.

9. Avoid using all capital letters for emphasis. Use boldor italics.

5. Action. Addresses shall comply with the provisions of thisinstruction.

Distribution:JAG Special List 40 (one copy

W. L. SCHACHTE, J#.. \Acting

each)

2

--== -.

2.. JAGINST SF113.A

4., 17 SEP 19;3

v

VERRATIN I

RECORD OF TRIAL2(and accompanying papers)

ofElectrician’s Mate

QLSIRK,Phineus R. 000-00-0000 Firenmss

(Nmne:bst.F;mt, MWle W’ri,lJ (sori~l Security NumberJ (RdnkJ

Newport,

Naval Justice Scbnol U.S. Navy Rhode Island

(UniUCnmmand Name) [Branch of ServkeJ (Sfadon or ShiPJ

SPECIAL COURT-MARTIAL

Convened byCommanding Officer

r;lle01 Convening A.thomyJ

Naval Justice School(Um’UCntnfn.MofCnn.e.i~AulhwifyJ

Tried at

Newport, Rhode Island 3, 4. and 5 February 19CYon

(Place 0, Places 0{ rtiA/J (Dare or Oares o! Trial)

D Form 490.OCl 84Enclocur.e(1)

%-VOWS edmms we obmkfe Front Cover

I

CHRONOLOGY SHEET ‘

,nthe~a$eof Electrician’sMate Fireman Pbineus A. Quirk(Rank and Name of AccuxedJ

Date of alleged commission of earliest offense tried:30 November , ,9CY (-1)

(Enw Date)

Date record forwarded to The Judge Advocate General: 218 February C-Y

(Encer Date),19—

JOHN Q. ADAMS, Lieutenant Commander

(Signar.re and Rank of Staff Judge Advocate or Legal OfficerJ

1 t. a case forwarded to The JudgeAdvocale General, the sta(t judgeadvocate or legal officer ,$ re%pmwblefor comp!etto. of the ChronologySheet. Tr#al counsel should report anyauthorized ded. cttom and ream.% for. ..s..1 delay i“ thetnal of The tax,

2 Or officer conducting review underPrude 64(a) (MCM. 1984, RCM 11 12)

3 1.comp.ttm, days between twodates. dw?gard f,f$t day and co..! lastday. Theact.a! number of days m eachmonth WII be counted.

4Item1,Snot applicable when accused$s “01 rw,a,ned. (we MCM, . 1984,RCM 304) .3, when hel, he I% i“confinement under a wine. ce m court.mama! at t,me charges are prefer, ed.item 2 w,II be the zero dare ,1 Item 1 ,,not applicable.

5 May not be applicable to trml byspectal c.aurt.mamal.

6 Only th,%,tem maybe ded.’ted,

7I{no fu,thw ,<I,CX ,, requrred, ,tem,I to a WIII be completed ..dchrowalogy s,g”ed by such cowe”, ngautho,, tym h,uher ,~p,~,~”latb”~.

BWhen furthe, act,o” ,, ,eq., red underAmde 64 ot Wrvicedtrect, ves.

DATE CUMULATIVEA~lON ,9 CY EIAPSE

0A %S3

1, Accused placed under restraint by militaryauthoritv 4 25 Dec CY (-1) o

2. Charges preferred (date of affidavit) 121 .3an I 28

3. Article32investigation(dateofreport)5 I I

4. Charges received by convening authority 121 Jan I 28

S. Charges referred for trial 22 Jan 29

6. Sentence or acquittal 5 Feb 43.... .:- , . :..:.~>:,.

Lessdays:

Accused sick. in hospital, m AWOLI ~ I ::. “... IDelay at request of defense o !;;’ :

. ..TDtal authorized deduction 6 0 :::::’”:::.”

I7, Net elapsed days to sentence or acquittal ]~...,.

“’l *’4

8. Record received by convening authority12 Feb 50

Action 714 Feb 52

9. Recordreceivedby officerconductingreview under Article 64(a) 15 Feb 53

Action n18 Feb 56

EMARKS

mD. Fo$rh 490, OCT 84 Inside of Front Cover

RECORD OF TRIALof

Slectrlciccn’s NateQOIRR, Phlneus R.

(Name:Law.fin,t.ftiletm’lial)~ ~

Newport,Naval Justice School U.S. Navy Rhode Island

(Um”UCommand NameJ (Brwtch of Service) (St.ti.x or Ship)

By

SPECIAL COURTJ-MARTIAL“.

Convened byComnnndi.ng Officer

(rideofConwningA“[h.a,iry)

thvd JULItice Schobl

(Uni!/C4mmmd of Ccmenlng A.thofiry)

Tried at

Newport, Rhode Island on 3, 4, and 5 Fcbrwq 19CY(Harew P1.ce,ofrri.1) (DdreorOaresof rriaf)

INDEX RECORD

Article 39(a) Sessions:J

On 3 Feb CY ~. 1

On 4 Feb CY R- 21, 32, 38, 45

On 5 Feb CY R-On

53, 57

R.Introduction of counsel R- 3

Challenges R- 18, 19Arraignment R- 6

Motions R- 8, 32Pleas R. 9prosecution evidence R- 23Defense evidence R- 34Instructions on findinqs R-Findimjs

66

R- .39prosecution evidence R. 50Defense evidence R- 565entence R- 56Armellate riqhts advisement R- 57Prcxec.r!irmc ;.. . ...;.:-.--,. . . . ...>,”,, I

) Fnrm 49n n- 0. . . . . .K-

—

J

TESTIMONY

NAME OF WITNESS(Larf.Firn,Middlelnitbl) Ot:::R:&o CROSSANORECROSS COURT

I I 1ROSECUTION I I I

WHILR obert C.. SN 24, 25 24 25

0.. !?t4S 26. 50 — —

c.. BM1 29. 30 29. 30 31II 1 I

1 I t

‘EFENSE

EANCIS. Dale, RNl 34 — 35)BSRTS. John C.. BlE2 36 36 —

40 41 —

OIJRT

L4NCIS. oale, SEU 42. 43 42. 43 —

EXHIBITS ADMlllED IN EVIDENCE

NUMBER OR DESCRIPTION PAGE WHERE -LETTER OFFERED AOMITTED1 Page 601-R reflecting commencement of OA 27 272 Page 601-R reflecticm previous conviction 50 503 Page 613 rcflectinR final review of conviction 50 50

COPIES OF RECORD ‘1 copy of record furnished the accused or defense counsel as per attached certificate or receipt.

2 copy(ies)ofrecordforwarded herewith.,

RECEIPT FOR COPY OF RECORD 2

I hereby acknowledge receipt of a copy of the record of trial in the case of United Qates v. ~Naval Brig

delivered to me at ~ NCWDort. Rhodew~?pi!” “ ~

(Signature01●rcuxedl

OPY of the record of trial in Ihe case of United States V.

delivered Icj me at ,19—

(Sigmwe 0/ Xcuscd

1 rcw immxfmns ●s to ~rcnaration ~f C.OPOeS of twwd, see bdck cover or .opendkrs 13and14. MCM. 1984.1IfCODY0/rem,dWep.redfo. ~c<.sed mntams m.ners re.a.mnq WCWIY pro fecuon. see RCM 1104(bkfJJ(OJ. MCA*. 1984.

? Form aon rh-T . . “.-. .

-.I

x. ...

d

CERTIFICATE IN LIEU OF RECEIPT

(Place) (oac*J

I certify that on this date a copy of ttie record of trial in the case of United States v.

was transmittal (delivered) to the accused.(Rank and Name of xcu$edj

at by,(Pface of delivery. Oratiress sen: 10) (Meimo/ ef/ectiq dcftie~. i,e,. mail, messmger, erc)

and that the receipt of the accused had not been received on the date this record was forwarded to theconvening authority. The receipt of the accused will be forwarded as soon as it is received.

(S;gndwte of Irhl coufuel)

3

OR

(Place) IOace)

Icertify that on Lhisdatea copyof Lhe record of trial inthe case of United Statesv.

was transmitted (delivered) to the accused’s defense counsel,(Rank ●nd Name)

at by(Place af ddi.ery or addrem rem m) (Means ofeifecti~ delive~, i,e,, WM(l, messenger. eIc.J

because fit was impracticable to serve the record of trial on the accused because hel$hewas transferred to,.

) (theaccused requestedl mchat trial) (theaccusedso

(Pt.,,)

requested inwriting, which is a!tached) (the accused is absent without leave) ( ).[Orhe, mason)

1

(s@nature of trial counsel)

OR

The accused was not $erved personally because (he/she is absent without leave) ([Other reason)

).

Accused has no defeme counsel to receive the ,ecordbecause (de fensecounsel has been excused under RCM

505(d)(2)(B)) ((Other reamn)

).

(Date) (Signature 0( trial cOumeIJ

FOrM 490,OCT 84. Page3 +,. .

~ PROCEEDINGS OF A SPECIAL COUNT-MARTIAL

~B The military judge called the Article 39(a) SeSSiOn to order at NavalJustice School, Newport, Rhode Island, at 0900 hours, 3 February 19CY,pursuant to the following orders:

NOTE: IF APPLICABLE TO TNE CASE, ATTACN TEE FOLLOWING TO TNIS PAGEIN DECENDINQ ORDER WHEN NOT APPENDED TO THE RECORD OF TRIALAS APPELLATE EXEIBITS:

1.

2.

3.

4.

s.

6.

7.

Amending orders (most recant on top);

basic convening order;

written orders detailing military judge,trial counsel or defense counsel;

request for military judge alone;

request for enlisted members;

declaration of the nonavailability of enlistedpereons; and

statement that a military ju~ge could not be

~ PERSONS PRESENT

Lieutenant Commander Constantly X. Legal, JAGC, U.S. Navy, MILITARYJUDGE;Lieutenant Peter R. Ryan, JAGC, U.S. Navy, TRIAL CVUNSBL;Ensign John L. Jones, JAGC, U.S. Navy, ASSISTANT TRIAL WUNSEL;Lieutenant Kenneth C. Hartman, JAGC, U.S. Navy, DEFENSE COUNSEL; andEnsign Robert L. Bright, JAGC, U.S. Navy, ASSISTANT DEFENSE CQUNSEL.

~E PERSONS ABSENT

nEnBERs .

~E The following named accused was present: Electrician’s Mate FiremanPhineus R. Quirk, U.S. Navy.

~E The detailed reporter, Li?galman Second Class John Q. Doelittle, U.S.Navy, (was sworn) (had previously been sworn).

NOTE : The remainder of the record of trial follows the actualproceedings of the court-martial. Transcribe recordverbatim.

DETAILING OF MILITARY JUDGE

MJ: I have been detailed to this court-martial by the NortheastJudicial Branch Office, Newport, Rhode Island.

LEGAL OUALIFICATIONE OF THE PROSECUTION

TC : All members of the prosecution have been detailed to thiscourt-martial by Commanding Officer, Naval Legal ServiceOffice, Newport, Rhode Island.

TC : All members of the prosecution are qualified and certifiedunder Article 27(b) and sworn under Article 42(a) , UniformCode of Military Justice.

PRIOR PARTICIPATION BY TRIAL COUNSEL

TC : No member of the prosecutionmight tend to disqualify him

INOUIRY CONCERNING COUNSEL RIGHTS

has acted in any manner whichin this court-martial.

MJ: Fireman Quirk, I am sure that Lieutenant Hartman and EnsignBright have discussed your rights to counsel with you.However, the law requires that I ensure that you understandyour rights.

2

MJ: You have the rightand Ensign Bright,attorneys, and are

to be represented by Lieutenant Hartmanyour detailed defense counsel. They arefully qualified to serve as your defense

counsel. Their services are provided free of charge.

You have the right, however, to request a different militarylawyer to represent you. If the person you request isavailable, he or she would be appointed to represent youfree of charge. Do you understand that?

ACC :

MJ:

ACC :

MJ:

ACC :

MJ:

ACC :

MJ:

ACC :

MJ:

LEGAL

DC:

DC:

Yes, Your Honor.

If your request for this other military lawyer were granted,however, you would not have the right to keep the servicesof Lieutenant Hartman and Ensign Bright, your detaileddefense counsel. That is because you are only entitled toone military lawyer. You may ask Captain Jones, theconvening authority, to let you keep your detailed counsel,but your request would not have to be granted. Do yOUunderstand that?

I understand, sir.

In addition to the right to request a military lawyer ofyour own choice, you have the right to be represented by acivilian lawyer. A civilian lawyer would have to beprovided by you; he or she would not be at the expense ofthe government. Do you understand that?

Yes, sir.

Do you have any questions about your rights to counsel?

No, sir, I do not.

BY whom do you wish to be represented?

Lieutenant Hartman and Ensign Bright, sir

Very well. Defense counsel will announce by whom they weredetailed and their qualifications.

QUALIFICATIONS OF THE DEFENSE

All detailed members of the defense have been detailed tothis court-martial by Commanding Officer, Naval LegalService Office, Newport, Rhode Island.

All detailed members of the defense are qualified andcertified under Article 27(b) and sworn under Article 42(a),Uniform Code of Military Justice.

3

PRIOR PARTICIPATION BY DEFSNSE COUNSEL

DC: No member of the defense has acted in any manner which mighttend to disqualify them in this court-martial.

VERIFICATION OF OATNS

MJ: Very well. It appears that counsel for both sides have thereguisite qualifications, and all personnel of the courtreguired to be present have been sworn.

NJ: Trial counsel may announce the general nature of thecharges.

GENNRAL NATURE OF CNARQES:

TC : The general nature of the charges in this caee is absencewithout leave for a period of about 33 days, in violation ofArticle 86, Uniform Code of Military Justice; and theft ofone Bulova wristwatch, in violation of Article 121, UniformCode of Military Justice. The charges were preferred byEnsign Robert Q. Lewis, U.S. Navy, a person subject to theCode, as accuser; were sworn to before an officer of thearmed forces authorized to administer oaths; andwere referred for trial by Captain K. C. Jones, JAGC, U.S.Navy, Commanding Officer, Naval Justice School, Newport,Rhode Island, the convening authority.

CHALLRNGE OF TNE MILITARY JUDGE

TC : Your Honor, are you aware of any matters which may begrounds for challenge by either side against you?

MJ: I am aware of none. Does either side wish to voir dire orchallenge the military judge for cause?

TC : The government hae no challenge for cause against themilitary judge.

DC: The defense has no challenge for cause against the militaryjudge.

EXPLANATION OF TYPES OF TRIAL

14J: Fireman Quirk, do you understand that you have the right t.obe tried by a court composed of at least three members?

ACC : Yes, Your Honor.

L.

●

MJ: Doofby

you understand that if you were tried bymembers, then at least two-thirds of the

a court composedmembers, votinq

secret written ballot, would have to aqree on anv findifia

ACC :

MJ:

ACC :

MJ:

of guilty before you could be convicted? -.

Yes, sir, I understand.

Do you also understand that if this case is heard by membersand you are found guilty, then two-thirds of the members,voting by secret written ballot, would have to agree on aparticular sentence before any sentence could be imposed inthe case?

Yes, sir, I do.

Electrician’s Mate Quirk, if this case is heard by a courtwith members, then you have a right to request enlistedmembers on the court. If you requested it, enough enlistedmembers would be appointed so that at the time the court metto hear the evidence and decide the case, at least one-thirdof its members would be enlisted people. These enlistedpersonnel would serve with an egual voice and vote withofficer members in determining guilt or innocence, and, ifguilty, the sentence. Do you understand this?

ACC : I understand perfectly, Your Honor.

MJ: Do you also

orally here

ACC : Yes, sir.

understand that you may request, in writing orin the court-martial, trial before me alone?

UT: Do you understand that if I sit alone in this case, withoutmembers being present, then I will have the only vote on thegUeStiOn of gUilt or innocence, and, if you are foundguilty, then it is only my vote and opinion as to what anappropriate sentence should be?

ACC : I do, sir.

MJ: Have you discussed these choices with your defense counsel?

ACC : Yes, Your Honor, I have.

14J: By which type of court-martial do you choose to be tried?

ACCUSEDntl ELECTION ON COMPOSITION OF CODRT-MARTIAL

ACC : I desire to be tried by a court-martial composed of members.I do not desire enlisted members.

5

‘-,CN .,+.,7 ... ,

.

*

~

ELECTION TO BE TRIED BY MENBERS INCLDDINQ ENLISTED PERSONS

IO: By which type of court-martial do you choose to be tried?

ACC : I request to be tried by a court-martial composed of membersincluding enlisted persons.

TC : I have such request for enlisted membership, which has beenpreviously marked as Appellate Exhibit I.

~

ELECTION TO BE TRIED BY MILITARY JUDGE ALONE

MJ: By which type of court-martial do you choose to be tried?

ACC : I request to be tried by military judge alone.

UT: I have Appellate Exhibit I, a request for trial before mealone. I am Lieutenant Commander Constantly E. Legal, JAGC,U.S. Navy. Have you discussed this request and the rights Ijust described with your counsel?

ACC : Yes sir, I have.

MJ: If I approve your request for trial by me alone, you give upyour right to a trial by a court-martial composed of membersincluding, if you requested, enlisted members. Do you wishto request trial before me alone?

ACC : Yes, sir.

MJ: Your request is approved. The court-martial is assembled.

ARRAIGNMENT

MJ: The accused will now be arraigned.

TC : All parties and the military judge have been furnished witha copy of the charges and specifications. Does the accusedwant them read?

DC: The accused waives reading of the charges.

6

MJ: The readingbe inserted

nay be omitted.into the record

The original charge sheet willat this point.

NOTE : GENERALLY, TEE ACCUSED WILL WAIVE TEE READING OF TEE CEARGESAND SPECIFICATIONS, AB PREVIOUSLY SHOWN. YOU WILL TEEN INSERTTEE ORIGINAL CHARGE SHEET IN TEE RECORD FOLLOWING TEIS PAGE.HOWEVER, IF HE DECLINES TO WAIVE TEE REAOING OF THE CNARGESAND SPECIFICATIONS, THEY ARE TNEN READ IN OPEN COURT BY TEETRIAL COUNSEL AND YOU NUST RECORD AND TRANSCRIBE TEEN VERBATIMINTO TNE RECORD OF TRIAL. IF THE CRARGE SHEET IS NOT INSERTEDHERE, YOU MUST TRANSCRIBE THE NAME AND DESCRIPTION OF TEEACCUSER, THE AFFIDAVIT, AND PART V, REFERRING TEE CEARGES TOTRIAL, INTO TNE RECORD WNERE IT OCCURS. TNE ORIGINAL CHARGESHEET IS NOT A NUNBERED PAGE OF TNE RECORD.

..

\

TC : The charges are signed by Eneign Robert Q. Lewis, U.S.a person subject to the Code, as accuser; are properlyto before a commissioned officer of the armed forces

Navy,sworn

authorized to administer oaths; and are properly referred tothis court-martial for trial by Commanding Officer, NavalJustice School, Newport, Rhode Island, the conveningauthority.

MJ: Fireman Quirk, how do you plead? Before receiving yourpleas, I advise you that any motions to dismiss any chargeor to grant other relief should be made at this time.

NOTE : TNIS COMPLETES TNE ARRAI(3NMSNT PROCESS.

DC: The defense hae no motions at this time.

~

DC: The defense moves to dismiss Charge II and its Specificationon the ground that the specification fails to allege anoffense.

MJ: The session will recess for 10 minutes.

SE The Article 39(a) session recessed at 1005 hours, 3 February 19cY.

~B The Article 39(a) session was called to order at 1015 hours, 3February 19CY.

MJ: The session will come to order.

TC : All parties who were present when the session recessed areagain present.

The motion is denied.

8

m -. t> -.tt.

DC: The accused has no further motions to make at this time.The accused pleads:

TO the specification of Charge I: Not Guilty.

To Charge I: Not Guilty.

To the specification of Charge II: Guilty, except thevor~t ‘istealtC,substituting thereforthe vor~s “wrongfullyappropriate”. TO theexcepted vord: NotGuilty; to thesubstituted vords:Guilty.

To Charge II: Guilty.

MJ: Fireman Quirk, you have pleaded guilty by exceptions andsubstitutions to Charge II and its Specification. Your pleawill not be accepted unless you understand its meaning andeffect. A plea of guilty is equivalent to a conviction andis the strongest form of proof known to the law. On thebasis of your plea alone, and without receiving anyevidence, this court could find you guilty of the offense towhich you plead guilty. Your plea cannot be accepted unlessyou realize that by your plea, you admit every act,omission, and element with respect to the offense to whichyou are pleading guilty, and further that you are pleadingguilty because you actually are, in fact, guilty. If YOU

are not convinced in your own mind that you are in factguilty, then you should not allow any other consideration toinfluence you to plead guilty. Do you understand that?

ACC :

MJ:

Yes, sir.

By your plea of guilty you waive, and by ‘Iwaivet$I mean giveup certain important rights, but only with respect to theoffense to which you have pleaded guilty. You keep theserights as to the offense to which you have pled not guilty.The rights you give up are:

First, the right against self-incrimination, that is theright to say nothing at all. You cannot be compelled totestify or provide evidence against yourself.

,

b

MJ: Second, the right to aThat is, your right towhether or not vou are

trial of the facts by this court.have this court-martial decideauiltv based uDon evidence which the

prosecution wouid prese~t, aid on any-evidence you mayintroduce.

Third, the right to be confronted by the witnesses againstyou, that is, to see, hear, and to have cross-examined, anywitnesses called to testify against you during the trial andthe right to call witnesses in your own behalf. NOW, do yOUhave any questions about any of the rights that I have justmentioned to you?

ACC : I do not, Your Honor.

m: And do you realize that by your plea you waive each of theserights?

ACC : Yes, Your Honor, I do.

lKi: If your plea of guilty is accepted, there will not be atrial of any kind as to the offense to which you pleadguilty, so by pleading guilty, you give up the rights I havejust described. Do you understand this?

ACC : I understand, Your Honor.

m: If you persist with your plea, you will be placed under oathand I will question you to determine whether you are, infact, guilty. If you tell me anything that is untrue, thosestatements may be used against you later for charges ofperjury or false statement. Do you understand that?

ACC : Yes, Your Honor.

MAXIMUM PENALTY

MJ: Defense Counsel, what adv.to the maximum punishment

ce have you given Fireman Quirk asfor the offense to which he has

pled guilty? -

DC: I have advised him that the maximum sentence is confinementfor 3 months, forfeiture of two-thirds pay per month for 3months, and reduction in rate to pay grade E-1.

MJ: Trial Counsel, do you agree with that?

TC : The government concurs, Your Honor.

Fireman Quirk, I advise you that by reason of your plea ofguilty in this case, you could legally be sentenced to themaximum punishment authorized which is:

Confinement for 3 months, forfeiture oftwo-thirds pay per month for 3 months,and reduction to the grade of pay gradeE-1.

MJ:

ACC :

MJ:

ACC :

MJ:

DC:

MJ:

Do you understand that?

Yes, Your Honor.

Do you feel you have had ample time and opportunity todiscuss your case with your defense counsel?

Yes, sir.

Lieutenant Hartman and Ensign Bright, do you feel that youhave had ample time and opportunity to discuss this casewith your client?

Yes, sir, we feel we have.

Fireman Quirk, are you satisfied with Lieutenant Hartman andEnsiqn Briqht, Your defense counsel, and do You believethei~ advi;e ha:

ACC : Oh, yes, sir.

MJ: Are you pleadingwill?

ACC : Yes, sir, I am.

MJ: Has anyone tried

ACC : No. sir.

been in your best interest?-

guilty voluntarily and of your own free

to force you to plead guilty?

MJ: Fireman Quirk, at this time I am required by R.C.M. 910(e)to determine the factual basis for your plea of guilty. Assuch, you will be placed under oath during this portion ofthe inquiry.

MJ: Mr. Trial Counsel, swear the accused.

~ The accused was sworn.

UT: I am going to explain the elements of the offenseyou have entered a plea of guilty. By “elementsttfacts which the government would have to prove by

to whichI mean theevidence

beyond a reasonable doubt before you could be found guiltyif you pled not guilty. When I state each of theseelements, ask yourself if it is true, and whether you wantto admit that it is true. Then be ready to talk about thesefacts with me.

Please look at your copy of the Charge and Specification.You have pleaded guilty to Charge II and its Specificationby exception and substitution, a violation of Article 121 ofthe Uniform Code of Military Justice. The elements of thatoffense are:

First, that, at the time and place alleged, you wrongfullytook from the possession of the true owner, the propertydescribed in the specification;

secon~, that such property belongad to a certain personnamed or described, as alleged;

third, that the property was of the value alleged; and

fourth, that the taking by you was with the intenttemporarily to daprive the owner of the use and benefit ofthe property.

MJ:

ACC :

MJ:

ACC :

MJ:

ACC :

MJ:

ACC :

MJ:

ACC :

Do you understand those elements?

Yes, sir.

Do these elements correctly describe what you did?

Yes, sir, they do.

Fireman Quirk, did you wrongfully take the wristwatch fromits true owner?

Yes, sir.

Was this watch the property of Seaman Apprentice Harry O.Time, U.S. Navy?

Yes, sir, it was.

When you took this watch, did you intend to return it to itstrue owner?

I just borrowed it, sir. I intended to return it the nextmorning.

A

!.

IDENTIFICATION OF THE ACCUSED

MJ: Do you admit that you are Fireman Quirk, the accused in thiscase?

ACC : Yes, sir, I am.

MJ: On I JUIY 19cY(-1), were You a member of the United StatesNavy on active-duty, and have yousince that date?

ACC : Yes, sir.

MJ: Defense Counsel, are you aware ofthe jurisdiction of this court in

DC: I am not, Your Honor.

PRETRIAL AGREEMENT

remained on active duty

any possible impedimentthis case?

to

MJ: Is there a pretrial agreement in this case?

DC: There is not, Your Honor.

MJ: Fireman Quirk. are vou Dleadina auiltv because of anvpromise ~y the gove~nmeht that”y;u wiil receive a se~tencereduction or other benefit from the government if you pleadguilty?

ACC : No, sir.

NOTE : IF THERE IB A PRETRIAL AGREEMENT, SEE APPENDIX 8, MCM, 1984,PAGE A8-7 through AE-9, FOR INCORPORATION INTO TEE RECORD.

MJ: Fireman Quirk, although you believe you are guilty, you havea legal and a moral right to plead not guilty and to requirethe government to prove its case against you, if it can, bylegal and competent evidence beyond a reasonable doubt. Ifyou were to plead not guilty, then you would be presumedunder the law to be not guilty, and only by introducingevidence and proving your quilt beyond a reasonable doubtcan the government overcome that presumption. Do YOUunderstand?

ACC :

MJ:

ACC :

Yes, sir.

Do you haveanything we

No. eir.

any questions about your plea of guilty, orhave discussed?

.

MJ: Do you understand that even though you believe you areguilty, you still have a legal and a moral right to pleadnot guilty and to place upon the government the burden ofproving your guilt beyond reasonable doubt?

ACC : Yes, Your Honor, I understand.

MJ: Take a moment now and consult with your counsel and thentell me if you understand everything we’ve spoken about andwhether you still want to plead guilty.

The accused did as directed.

Ml: Do you still want to plead guilty?

ACC : Yes, Your Honor, I do.

ACCEPTANCE OF QUILTY PLEA

MJ: Very well. I find that the accused has knowingly,intelligently, and consciously waived his rights againstself-incrimination, to a trial of the facts by a court-martial, and to be confronted by the witnesses against him;that the accused is, in fact, guilty, and his plea of guiltyis accepted.

Fireman Quirk, while accepting your plea of guilty, I advise

you that you may request to withdraw your plea of guilty atany time before sentence is announced in your case, and, ifyou have a good reason for your reguest, I will grant it.

MJ:

ANNOUNCEMENT OF FINUINGS BASED ON GUILTY PLEA

MJ:

of

of

MJ:

Fireman Quirk, in accordance with your plea of guilty, thiscourt-martial finds you:

the Specification of Charge II: Guilty, except theword ‘“stealSs,substituting thereforthe words “wrongfullyappropriate’!. Of theexcepted word: NotGuilty; of thesubstituted words:Guilty.

Charge II: Guilty.

Do counsel for either side have anv further matters to betaken up at this time?

14

<:x -e > , ,

.

.

TC : No, Your Honor.

DC: Nothing from the defense, Your Honor.

MJ: This session is adjourned.

The court-martial met at Neval Justice School, Newport, Rhode Island,at 0900 hours, 4 February 19CY, pursuant to the orders previouslyinserted in the record.

PERSONS PRESENT

Lieutenant Commander Constantly E. Legal, JAGC, U.S. Navy, MILITARYJUDGE;Lieutenant Commander John C. Brown, U.S. Navy,Lieutenant Richard L. O’Brien, U.S. Navy,Lieutenant Junior Grade Daniel E. Burns, U.S. Navy,Ensign Patton C. Earthington, U.S. Navy, andChief Warrant Officer (CWO-3) John P. Jones, U.S. Navy, MEMBERS;Lieutenant Peter R. Ryan, JAGC, U.S. Navy, TRIAL COUNSEL;Ensign John L. Jones, JAGC, U.S. Navy, ASSISTANT TRIAL COUNSEL;Lieutenant Kemeth C. Hartman, JAGC, U.S. Navy, DEFENSE COUNSEL; andEnsign Robert L. Bright, JAGC, U.S. Navy, ASSISTANT DEFENSE COUNSEL.

PERSONS ABSENT

Lieutenant Calvin R. McDougal, U.S. Naval Reserve, MEMBER.

NOTE : IF NO PERSONS ARE ABSENT, INDICATE BY TEE WORD “’~.”BEGINNING AT TEE LEFT NARGIN. DO NOT LEAVE THIS ITEN BLANE.

TC : The prosecution is ready to proceed with the trial in thecase of the United States against Electrician’s Mate FiremanPhineus R. Quirk, U.S. Navy, who is present. (NOTE: TARESPLACE OF SSE ACCOUNTING FOR ACCUSED AS SHOWN ON PA(3E 2 FOR,INITIAL 39(a) SESSION: VERBATIM.1.

The detailed reporter, Legalman Second Class John Q. Doelittle, U.S.Navy, had previously been sworn.

MJ: The members of the court-martial will now be sworn.

TC : The members will be sworn. All persons please rise.

The members of the court-martial were sworn.

ASSEMBLYIPRELI141NARY INSTRUCTIONS

MJ: Be seated, please. The court-martial is assembled.

Members of the court, it is appropriate that I give you somepreliminary instructions.

It is my duty to eneure this trial is conducted in a fairand orderly manner. I rule upon objections and instruct youon the law applicable to this case. You are required to

16,.-J,?- 7 .,

.

on the law and may not consult anylaw nertainina to this case unless it

follow my instructionsother source as to the _.. ....is admitted into evidence. This rul~ applies throughout thetrial including closed sessions and periods of recess oradjournment. Any questions you have should be asked of mein open court.

MJ: First, it is my duty as military judge to ensure that theaccused receives a fair, orderly, and impartial trial, andthat this trial is so conducted in accordance with the law.In performing my duties, it will be necessary for me to ruleupon certain matters presented by counsel, and (REKAINDER OFINSTRUCTIONS INTENTIONALLY OMITTED-TYPE VERBATIM.)

NOTE : HERE TNE MILITARY JVDOE MAY GIVE PRELIMINARY INSTRUCTIONS TOTNE MEMBERS. RECORD ANO TYPE THEM VERBATIM, PARAGRAPHINGWHERE APPROPRIATE. YOU COULD NAVE SEVERAL PAGES OFINSTRUCTIONS .

NJ: Unless required to be present for other reasons, all personsexpecting to be called as witnesses in the case ofElectrician’s Mate Fireman Phineus R. Quirk, U.S. Navy, willwithdraw from the courtroom.

GENERAL NATURE OF CNARGES

TC : The general nature of the charges in this case are absencewithout leave for a period of about 33 days, in violation ofArticle 86, Uniform Code of Military Justice, and theft ofone Bulova wristwatch, in violation of Article 121, UniformCode of Military Justice. The charges were preferred byEnsign Robert Q. Lewis, U.S. Navy, a person subject to theCode, as accuser; were forwarded with recommendationsas to disposition by Lieutenant Commander John R. Wayne,U.S. Navy; and referred to trial by Captain K. C. Jones,JAGC, U.S. Navy, Commanding Officer, Naval Justice School,Newport, Rhode Island, the convening authority. Neither themilitary judge nor any member of the court-martial will be awitness for the prosecution.

VOIR DIRE PROCEDURE

NOTE : VOIR DIRE IS THE PROCEDURE U8ED TO DETERMINE IF THERE AREREASONS SELECTED PERSONNEL SHOULD NOT PARTICIPATE IN ACOURT-NARTIAL AS A MEMBER. TEE PHRASE “VOIR DIRE” ACTUALLYDENOTES THE PRELIMINARY EXAMINATION WHICH TNE COURT MAYCONDUCT OF A WITNESS OR COURT-MARTIAL MEMBER CONCERNINGCOMPETENCY, INTERESTS, ETC., IN A COURT-MARTIAL.

17

m *, ,7/ 2.,~,/

.

TC : The records of this case disclose grounds for challenge ofChief Warrant Officer John P. Jones, U.S. Navy, owing to thefact that he was the duty officer at the time the accusedreturned to naval jurisdiction.

nJ: hr. Jones, have you anything to say?

MBR (CWO JONES): I cannot dispute the challenge, sir.

UT: The challenge is sustained. Chief Warrant Officer Jones,you are excused from sitting as a member of this court-martial.

~E Chief Warrant Officer Jones, the challenged member, withdrew fromthe courtroom.

NOTE : WHEN A CHALLENGED NEMEER OR ANY INDIVIDUAL OR WITNESSWITND~WS PROM TEE COURTROOM, YOU MUST ALWAYS RECORD ANDTRANSCRIBE SUCH HOVENENT. IF CHIEF WARRANT OFFICER JONESWERE NOT TNE JUNIOR NEWBER OF TEE COURT-KARTIAL, TNE NEKEERSSHOULD RESEAT THENSELVES ACCORDING TO RANR AND, IF TNEY DO,TNE FOLLOWING ~ WOULD BE ENTERED:

~E The members reseated themselves according to rank.

NOTE : REMENEER TO REFLECT IN YOUR RECORD ONLY THOSE THINGS TEATACTUALLY DO OCCUR; 1P THE UENEERS FORGET TO RESEATTHENSELVES DO NOT REFLECT TEAT IT NAPPENED. LIKEWISE, 1PTEE MEMSERS RESEATED TEEMSELVES IN TEE DELIBEIUiTION ROOM ANDREENTERED TEE COURTROOM IN THE REARIUWGED ORDER, YOU NEEDNOT REFLECT IN THE RECORD TEAT TEE NENEERS RESEATEDTEEXSELVES SINCE IT DID NOT HAPPEN ON TEE RECORD. REFLECTONLY THOSE THINGS WNICH NAPPENED ON THE RECORD.

TC : If any member of the court-martial or the military judge isaware of any mattere which he believes may be a ground forchallenge by either side against him, he should now statesuch matters. If a statement is to be made, it should bemade so ae to state the general nature of the matter and notany specific facts which might tend to disqualify othermembers when heard by them.

TC :

TC :

TC :

The prosecution has no further challenges for cause.

The prosecution has no peremptory challenge.

Does the accused desire to challenge any membercourt-martial or the military judge for cause?

of the

18

.

DC: Your Honor, the defense has reason to believe thatLieutenant O’Brien may have acted as an investigatingofficer in this case. In light of that information, withthe permission of the military judge, the accused desiresvoir dire Lieutenant Richard L. O$Brien, U.S. Navy, YourHonor.

to

MJ: Very well. All members, with the exception of LieutenantO’Brien, will withdraw to the deliberation room.

~E The members of the court-martial did as directed.

MJ: We may proceed.

~ Lieutenant Richard L. OCBrien was sworn to teStifV Concerning hiscompetency to act as a member of the court-martiai. and test~fiecl asf01i0v5: -

&B

~E Questions

Q.

A.

Q.A.

SE Questions

Q.

A.

Q.

A.

DC:

DIRECT EXAMINATION

by the prosecution:

State your full name, rank, armed force, and presentstation.Richard Lee O’Brien, Lieutenant, U.S. Navy, attachedNaval Justice School, Newport, Rhode Island.

Are you a memberI am.

by the defense:

of this court-martial?

duty

to the

Lieutenant O’Brien, what is your primary duty at the NavalJustice School?I am the school’s admin officer, and as such, take care ofall administrative matters for enlisted and officerstudents.

In your capacity as admin officer here at the school, isn’tit a fact, then, that you did act as the investigatingofficer when the report chit of Fireman Quirk came into youroffice?No, sir. I was almost assured that the accused would go tocourt-martial, and I checked over his report chit to seethat it was in proper order and had Ensign Lewis conduct theactual investigation.

No further queetions.

TC : The prosecution has no questions. Does the military judgecare to examine Lieutenant 08Brien?

.

WI: I$ve no questions of Lieutenant OVBrien.

MJ: Lieutenant O’Brien, you may return to the deliberation room.

&E Lieutenant O’Brien, the challenged member, withdrew from thecourtroom.\

NOTE : AT THIS POINT THE MILITARY JUDGE IS CONDUCTING AN OUT-OF-COURT HEARING IN ORDER TO DISCUSS A CHALLENGED POSED BY TEEDEFENSE AND TO ALLOW TEE ACCUBED TBE OPPORTUNITY TO PREBENTONE PEREMPTORY CHALLENGE. START A NEW PAt3E AT TNIS POINT.RE14ENBER, UNLESS THE MILITARY JUDGE RECESSES TEE COURT-NARTIAL, NO SSE FOR A RECEBB WILL APPEAR, SIMPLY TEE SSE FORTEE COURT MEMBERS WITHDRAWING PROM TEE COURTROOM. AT THISPOINT IN TEE TRIAL, DO NOT TYPE AN BEE TO CALL TBE ARTICLE39(a) SESSION TO ORDER OR TO ADJOURN IT. SIMPLY START TBENEW PAGE WITS TEE SPOKEN WORDS.

20

.

JUST A REMINDER ! START WITH THE 8POKEN WORDS.

DC: Your Honor, although Lieutenant O’Brien stated that he didnot act as investigating officer in this case, by virtue ofhis position here at the school, he would be called upon toconduct some type of investigation in order to determinewhether or not the accused should be here at trial today.It is the defense’s contention that Lieutenant O’Brien did,indeed, at some point, become involved in the investigationof the charges alleged and therefore, should not sit as amember of this court-martial. The accused desires tochallenge Lieutenant O’Brien for cause, Your Honor.

MJ:

DC:

MJ:

DC:

MJ:

TC :

DC:

nJ:

DC:

MJ:

TC :

DC:

MJ:

Does the defense have any other evidence to offer in regardto this matter?

The defense does not, Your Honor.

The challenge is denied. Does the defense desire tochallenge any other member for cause?

No, Your Honor.

Does either side desire to voir dire any other memberindividually?

The prosecution does not, Your Honor.

The defense does not, Your Honor.

Ooes the accused desire to exercise his right to oneperemptory challenge against any member?

The accused challenges Lieutenant O’Brien peremptorily.

Very well. That challenge is sustained. Anything furtherby either side?

Not by the government.

Not by the defense, Your Honor.

Call the members.

The members reentered the courtroom.

MJ: Lieutenant O’Brien, you are excused from any furtherparticipation in this trial. ‘l’hankyou very much for yourattendance here today. You may return to your duties.

Lieutenant O’Brien, the challenged member, withdrew from thecourtroom.

The members reseated themselves according to rank.

&MEERS INFORMED OF ACCUSED~S PLEAS

MJ: Members of the court-martial, at a session of this trialheld on 3 February 19CY, the accused entered the followingpleas:

To the specification of Charge I: Not Guilty.

To Charge I: Not Guilty.

To the Specification of Charge II: Guilty. except the

To

M:

The trial

MJ:

word ‘9atea18’~substituting thereforthe vorde “wrongfullyappropriatega. To theexcapted word: NotGuilty; to thesubstituted worde:Guilty.

Charge II: Guilty.

The trial counsel will now distribute cop;to the members of the court-martial.

counsel did as directed.

es of the charges

Members, I accepted the accused’s plea of guilty and enteredfindinge of guilty as to Charge II and its Specification byexceptions and substitutions. You will not be required toreach findings regarding Charge II and its Specification.Findings will be reguired, however, as to Charge I and itsSpecification, to which the accused has pleaded not guilty.You may not consider theguilty to one offense inaccused is guilty of theguilty.

fact that the accused pleadedany way in deciding whether theoffense to which he has pleaded not

22

m <-,, <7,.., ,,<

.

MJ: Do you have any questions on what I have just explained toyou?

MBRS : [No response.]

w: The prosecution may now present its case.

PROSECUTION’S CASE-IN-CHIEF:

TC : The prosecution has a brief opening statement.

NOTE : TBE PROSECUTION NAY NARE AN OPENING STATEHENT AT TBIS POINT.SUBSEQUENT TO TRIAL COUNSELIS OPSNING STATENENT, DEFENSECOUNSEL NAY, IF DESIRED, MARE AN OPENING STATENENT ORRESERVE THE RIGHT TO MARE IT UPON THE BEGINNING OF HIS CASE-IN-CHIEF.

TC : Your Honor, and members of the court-martial, it is thegovernment’s contention that the accused--(REHAINDER OFOPENING STATEXENT INTENTIONALLY OMITTED; TYPE VERBATIM.)

TC : With the consent of the accused, the prosecution and thedefense have entered into the following stipulation of fact:

That the accused is Electrician’s Mate Fireman Phineus R.Quirk, U.S. Navy;

that Electrician’s Mate Fireman Phineus R. Quirk, U.S. Navy,enlisted in the United States Navy on 10 August 19CY(-3);and

that on 1 December 19CY(-1) he was attached to the NavalJustice School, Newport, Rhode Island.

MJ: Fireman Quirk, do you join in this stipulation?

ACC : Yes, sir, I do.

MJ: The stipulation is accepted.

PROSECUTION WITNESS:

NOTE : NOTICE TNAT TEE SPOKEN WORDS CALLING A WITNESS ARE NOTTRANSCRIBED; INSTEAD, THEY ARE ABSORBED INTO THE FOLLOWINGSSE.

~E Seaman Robert C. Brown, U.S. Navy, was called as a witness for theprosecution, was sworn, end testified as follows:

~B DIRK’T EXAMINATION

~E Questions by the prosecution:

Q. State your full name, rate, armed force, and present dutyetation.

A. Robert Charlee Brown, Seaman, USN, and I’m attached to theNaval Justice School, Newport, Rhode Island.

Q. Do you know the accused in this case, and if so, pleasepoint to him and call him by name.

A. Yes, sir, I do. That’s Quirk sitting over there at thattable [pointing in the direction of the accused].

Q. Brown, were you and Quirk very close friends?A. Yes, sir, we sure were, until the beginning of the year when

Quirk went UA from the school here.

Q. What do you know about Quirk going on unauthorized absence?A. Well, sir, he and I went --we--we went on liberty on 30

November 19CY(-1), and while we were on the beach he saidthat he wasn’t going back to school and that he was going togo home for a few days. That’s the last I seen him, youknow, un--until the shore patrol brought him back on 2January.

TC : No further guestions. Does the defense desire to cross--examine?

DC: Yes, I

&E

~B Questions by the

Q. HOW do

have a couple of guestione.

CRQSS-EXAMINATION

defense:

you know that the shore patrol brought Quirk back tothe school?

A. I saw them myself, and I was also in the personnel officewhen they turned the apprehension papers over to Ensign--Ensign Lewis.

Q. Did Quirk give you any reason for his desire to go home?A. No, sir, I--he just said he wanted to go home and not back

to the school.

24

~R REDIRJ%T EXAMINATION

~B Questions by the prosecution:

Q. Brown, you didn’t go with Quirk, did you?A. No, sir, I returned to the school.

TC : No further questions.

MJ: I have no further questions. Does any member of the court-martial have any questions?

MBR (LTJG BURNS): Yes, sir, Your Honor [writing out guestion].

NOTE: QUESTIONS BY MEHEERS, LIKE THOSE OF COUNSEL, ARE SUBJECT TOOBJECTION AND ARE THEREFORE WRITTEN OUT AND REVIEWED BYCOUNSEL BEFORE BEING ASKED. THE MILITARY JUDGE NORMALLYASKS QUE13TION8 POSED BY 14EUSERB. TEE MILITARY JUDGE WILLOPTEN ASK TEE WITNESS ADDITIONAL QUESTIONS OF HIS OWN AT THESAME TIME. RECORD THIS USING THE FOLLOWING FORMAT:

REPORTER: This will be Appellate Exhibit I.

MJ: Counsel will approach the bench.

TC : [Reviewing Appellate Exhibit 1.] No objection, Your Honor.

DC: [Reviewing Appellate Exhibit 1.] The defense has noobjection.

~B

~E Questions by the

Q. If yOUdidn’t

A. I did,

EXAMINATION BY THE COURT-MARTIAL

military judge:

knew that Quirk planned on leaving the area, whyyou tell this to someone?sir.

Q. Who did you tell?A. I reported it to the MAA at morning muster.

MJ: Any further questions by the members?

MSRS : [No response.]

MJ: No further questions by the court-martial.

25.—

-:* -.. ,7?.. .

MJ: The witness is excused, subject to recall.

~ The witness was duly warned and withdrew from the courtroom.

NOTE : UEEN A WITNESS IS EXCUSED AND TEEN WARNED NOT TO DISCUSS HISTESTIMONY, TEE SPOKEN WORDS OF TEE MILITARY JUDDE WARNINGTEE WITNESS ARE AESOREED INTO THE SSE SHOUN AEOVE.ADDITIONALLY, 1P TEE UARNIN12 IS GIVEN BIRST, AND TEEN TEEWITNESS IS TOLD TEAT HE IS EXCUSED, ALL OF TEIS IS ASSORSEDIN TEE SSE.

w Ensign Robert Q. Lewis, U.S. Navy, was called ae a WitIW3S fOr theprosecution, was sworn, and testified ae follows:

&E

~E Questions

Q.

A.

Q.

A.

Q.A.

Q.

A.

Q.A.

Q.

A.

Q.A.

DIRECT EXAMINATION

by the prosecution:

State your full name, rank, armed force, and present dutystation.Robert Quade Lewis, Ensign, U.S. Navy, Naval Justice School,Newport, Rhode Island.

Do you know the accused, and if so, will you point to him ifyou see him in the courtroom and state, if you know, hisname and duty station?Yes, that’s Ptiineue R. Quirk there [pointing to accused].Quirk is attached to the Naval Justice School, Newport,Rhode Island.

What are your duties at the Naval Justice School?I am the school’s personnel officer.

Are you the current custodian of the accused’e servicerecord?Yes, eir, I am.

Do you have it in your possession at this time?Here it is [holding up service record].

Ie there a page 601-6R therein containing an entry relatingto a period of unauthorized absence commencing approximately1 December 19CY(-l)?There is.

May I see it?Of course, here it is [handing to prosecution].

ITC : Reguest that the reporter mark this document which I am

extracting from the accusedas service record foridentification.

REPORTER: This will be Prosecution Exhibit 1 for identification.

NOTE : IN TEE INTEREST OF SAVINa TEE COORT~S VALUABLE TIME,D AT TEE TRIAL MAY BEEXBIBITS INTENDED TO BE INTRODUCE]

MARRED IN PENCIL BEFORE TEE PROCEEDINGS BEGIN. EOUEVER, IFYOU MARS EXliIBITS IN OPEN COURT OR AT AN ARTICLE 39(a)SESSION, TRE ABOVE ENTRY IS TEE CORRECT WAY TO REFLECT IT INTEE RECORD OF TRIAL.

Q. Does the entry on Prosecution Exhibit 1 for identificationpurport to bear a signature?

A. It does.

Q. Whose?A. Mine. Robert Q. Lewis, Ensign, U.S. Navy, by direction of

the commanding officer.

Q. Does the entry on Prosecution Exhibit 1 for identificationpurport to bear a date?

A. It does.■

It is dated 6 January 19CY as the submission date.It also has dates showing the commencement and terminationof unauthorized absence.

TC : Prosecution Exhibit 1 for identification is offered inevidence as Prosecution Exhibit 1, and permission isrequested to withdraw it at the conclusion of the trial andsubstitute a true copy therefor.

TC : I now show Prosecution Exhibit 1 for identification to theaccused and his counsel for their inspection and possibleobjection [handing to defense].

DC:

TC :

MJ:

[Examining.] No objection [returning to prosecution].

[Handing to military judge.]

Prosecution Exhibit 1 for identification is admitted inevidence as Prosecution Exhibit 1, and a true copy may besubstituted. The reporter is directed to delete the words,,for identification,, .

~pORT~: The wOrds Ivfor identification!! have been deleted.

NOTE : TNE MILITRRY JUDUE HAY INSTRUCT YOU TO DELETE THE WORDS ATTNE CONCLUSION OF TNE TRIAL OR HE UAY NOT UENTION IT AT ALL.IN EITNER CABE, YOU MUST STILL LINE TNROUGH TEE WORDS “FORIDENTIFICATION’O ON TNE EXNIBIT ITSELF BEFORE COMPLETING TNERECORD OF TRIAL. UNEN AN EXNIBIT IS ADMITTED, RENEMBER TOANNOTATE YOUR REPORTER’S LOU FOR BABY REFERENCE.

NOTE : IF AN EXHIBIT TNAT EAB BEEN ADMITTED IN EVIDENCE IS READVERBATIM IN OPEN COURT, YOU CAN PROPERLY REFLECT THE READINGAd SHOWN BELOW, OR TYPE TEE READING VERBATIM. IF TNE PERBONREADING TEE EXNIBIT DEVIATES IN ANY WAY PROM VERBATIM, TNEREADING - BE TYPED VERBATIH AS READ, INTO TEE RECORD INITS ENTIRETY.

EXAMPLES :

Q. Pleaee read Prosecution Exhibit 1 aloud.A. [Reads Prosecution Exhibit 1 verbatim to the

~

Q. Pleaee read Prosecution Exhibit 1 aloud.A. (TYPED VERBATIM PROM YOUR TAPE.)

~

~ The trial couneel read Prosecution Exhibit 1 to the

~

TC : (TYPED VERBATIM PROI’1YOUR TAPE)

(:ourt-martial.]

court-martial.

TC : ‘The prosecution has no further questions. Does the defensewish to examine this witness?

DC: The defense does not.

‘rC: Are there any questions by the court-martial?

NJ: Apparently not. The witness is excused subject to recall.

~E The witness withdrew from the courtroom.

.

~ Boatswain’s Hateas a witness for

&E

~E Questions

Q.A.

Q.

A.

Q.A.

Q.

A.

Q.

A.

Q.A.

TC :

DC:

&E

&B Questions

Q.A.

Q.A.

Q-A.

by the

First Class Riohard C. Jones, U.S. Navy, was calledthe prosecution, vae evorn, and teetlfied ae followe:

DIRECT EXAMINATION

prosecution:

state your full name, rate, armed force, and duty station.Richard C. Jones, Boatswain”s Mate First Class, U.S. Navy.I’m stationed at the Naval Justice School.

Do you know the accused, and if you see him in thecourtroom, will you point to him and state his name if youknow it?Yes, sir, I know the accused. His name is Phineue R. Quirk,and he is eitting right over there [pointing in thedirection of the accused].

Jones, what were your duties on 30 November 19cY(-l)?I was acting chief master-at-arms and mustering PO for theJuetice School.

And in this capacity, did you have direct control over theaccused?Yes, sir, I did.

Did you give the accused any specific instructions on 30November?What do you mean, sir, by the words “epecific instructions”?

Did you inform him just when liberty was to expire?Yes, sir, I did. I told him that his liberty would expireon board the school at 0730, 1 December 19CY(-1).

No further questions. Does the defense desire to cross--examine?

The defense does.

CROSS-EXAMINATION

by the defense:

When did you last see the accused?I last saw him on the evening of 30 November 19CY(-1).

What was he doing at that time?Getting ready to go on liberty, I believe, sir.

Did you go on liberty with him?No, sir. He went on liberty with Seaman Brown.

Q.A.

Q.A.

~

~ Questions

Q.A.

Q.A.

Q.A.

~B

~E Questions

Q.

A.

MBR (LCDR

WIT :

Q.

A.

MJ:

WIT :

Q.

A.

DC:

Did you say anything to Quirk at that time?No, sir.

And that was the last time that you saw him?Yes, sir, the last time until the shore patrol brought himback to the school.

lWDIRECT EXAMINATION

by the prosecution:

When you last saw the accused, where was he at that time?The last time I eaw him, he was leaving the echool.

Wae this in the personnel office or at the MAA office?Neither, sir. It was in the area between the buildings.

And he was with Seaman Brown, is that right?Yes, sir, he was.

RECROSS-EXAMINATION

by the defense:

Was the accused in uniform or civilian clothes when you lastsaw him?He wae in uniform.

BROWN ): I didn’t hear the answer.

I eaid, llHe was in uniform.”

Was he carrying anything--like a suitcase, or package of anytype?Not that I recall, sir.

What did you say?

I said that I didn$t recall, sir.

Did you personally inform the personnel officer or legalofficer that Quirk was UA?Yes, sir. I notified Mr. Lewis.

No further questions.

~E

~E Questions

Q.

A.

MJ:

MBRS :

MJ:


by the military judge:

YOU say you did not see the accused after heuntil today?I saw him, yes, sir; but never to speak to.in the custody of a brig guard.

Any guestions from any member?

[No response.]

The witness is excused, subject to recall.

was apprehended

He wae always

&E The witness withdrew from the courtroom.

TC : The prosecution rests.

DC: The defense is ready to proceed, Your Honor. However,before going forward with its case, the defense respectfullyreguests an out-of-court hearing to present a motion basedupon evidence which has been presented here today by theprosecution.

m: Very well, the court-martial will be in recess.

&E The court-martial recessed at 1103 hours, 4 February 19CY.

NOTE : THE MILITARY JUDGE NAY OR NAY NOT RECESS THE COURT-MARTIALIN ORDER TO NAVE AN ARTICLE 39(a) SESSION. IF HELD DURINGRECESS, THEN TYPE THE SSE SHOWINO THE COURT-KARTIALRECESSING, AS SHOUN ABOVE. THIS WILL REQUIRE ANOTHER SSECALLING TNE COURT-MARTIAL TO ORDER APTER THE ARTICLE 39(a)SESSION ADJOUTU?S.

HOWEVER, IF NO RECESS OCCURS BECAUSE THE MILITARY JUDGESINPLY EXCUSED THE UNBERS, UTILIZE THE SSE FOR TEE MEMBERSWITHDRAWING FROM THE COURTROOM, AS SHOWN BELOW. USING TNISFORMAT, TEE CODRT-XARTIAL WOULD W BE CALLED TO ORDER WI~AN SSE APTER THE ARTICLE 39(a) SESSION ADJOURNS.

DO NOT FORGET TO LINE OUT THE REMAINDER OF THE PAGE, 1PREQUIRED, AND START THE ARTICLE 39(a) SESSION ON A NEW PAGE.

(SEE SANPLES ON PAGE 2S)

~

MIJ: Very well, the members will withdraw from the courtroom.

&E The members withdrew from the courtroom.

31

K> .,q ,7/ :,.J <.

ARTICLE 391a) SESSION:

~ The Article 39(a) session was called to order at 1105 hours, 4February 19CY.

MJ: This Article 39(a) session will come to order. Let therecord show that this hearing is being held out of thepresence of the members of the court-martial. It isattended by the military judge, the accused, counsel forboth sides, and the reporter.

MJ:

DC:

FLT:

DC:

MJ:

TC :

14r. Defense Counsel, you requested this out-of-court hearingin order to present a motion?

Yes, sir, Your Honor.

You may proceed.

At this time, Your Honor, the defense moves for a finding ofnot guilty of Charge I and the Specification thereunder onthe ground that the prosecution has failed to establish aprima facie case. The prosecution’s evidence has merelyshown JREXAINOER OF MOTION INTENTIONALLY OMITTED - TYPEVERBATIM~

Trial Counsel, do you desire to present argument?

I do. Your Honor. Your Honor. it is the government’scontention that a prima facie”case has cl=arly beenestablished. The evidence presented (REMAINDER OF ARGUNENTINTENTIONALLY OMITTED - TYPE VERBATIM)-

UJ: Oefense?

DC: (ARGDMENT INTENTIONALLY OMITTED - TYPE VERBATIML

MJ: Does either side have anything further on the mot:

TC : No, sir, Your Honor.

DC: . No, Your Honor.

on?

MJ: The motion for a finding of not guilty of Charge I and theSpecification thereunder is denied.

MJ: Do you have any further motions, defense?

DC: No, sir.

MJ: This 39(a) session is adjourned.

&E The Article 39(a) session adjourned at 1150 hours, 4 February 19CY.

32-.

-, ‘/ ~ - a ““’

~ The court-martial was called to order at 1155 hours, 4 February 19CY

MJ: The court-martial will come to order.

TC : All parties to the trial who were present when the court-martial recessed are again present.

NOTE : TEE WAY YOU WOULD STAAT TEE COURT-MARTIAL AGAIN AFTER TEEARTICLE 39(a) SESSION DEPENDS ON WEETEER IT WAS HELD DORINGA RECESS OF TEE COURT-XARTIAL, OR IF TEE HILITARY JUDGESIMPLY EXCUSED TEE MEMEEKS WITEOUT TAXING A RECESS.

IF TEE COURT-MARTIAL RECESSED, IT IS CALLED TO ORDER ASSHOWN ABOVE.

HOWEVER, IF TEE COURT MEMEERS WERE SIMPLY EXCUSED ANDWITEDREW FROM TEE COURTROOM, YOU WOULD PICK UP TEEPROCEEDINGS WITE TEE FIRST WORDS SPOKEN AFTER TNE HEKBERSREXNTERED TEE COURTAOOH, AS SHOWN BELOW.

MJ: We may proceed.

TC : All parties to the trial are again present, to include themembers.

DC: Your Honor, may I have your permission to proceed?

MJ: In view of the hour, you may begin your case after lunch.

DC: That’s agreeable with the defense, Your Honor.

MJ: The court-martial will recess for 2 hours.

~E The court-martial recessed at 1200 hours, 4 February 19CY.

~E The court-martial was called to order at 1415 hours, 4 February 19CY.

MJ: Court will come to order.


MJ: The defense may proceed. You are ready, are you not, Mr.Defense Counsel?

DC: Yes, Your Honor, I am.

MJ: Continue.

33.* ?/ >/:,li

NOTE : WNEN CALLING A WITNESS, ALWAYS KEEP TNE SSFJ CALLING THEWITNESS, TBE STAGE OF iXAMI~TION, TNE SSE FOR “QVEBTIONSBy,, _ AT L-T ~E FIRST IIQ.CI~ 91A.,,ON TNE s= pAQE.

IF ALL WILL NOT FIT ON TEE SANE PAGE, BEGIN A NEW PAGE.

DEFENSE’S CASE IN REPLY:

DC: The defense has no opening statement.

~ Boatsvain*e Nate First Clase Dale Pranois, U.S. Navy, was called asa witness for the defense, was sworn, and testified ae followe:

SE DIRECT EXAMINATION

~B Questions by the prosecution:

Q. State your full name, rate, organization, and armed force.A. Dale Francis, Boatswain’s Mate First Class, U.S. Navy,

Service Craft Division, Naval Education and Training Center,Newport, Rhode Island.

Q. Do you know the accused?A. Yes, sir.

Q. If you see him in the courtroom, would you please point tohim and state his name?

A. Electrician’s Mate Fireman Phineus R. Quirk. He’s sittingright over there [pointing in the direction of the accused].

NOTE : INTRODUCTORY QUESTIONS SUCH AS THOSE SHOWN ABOVE ARENORNALLY ASKED OF DEFENSE WITNESSES BY THE PROSECUTION TOIDENTIFY TNE WITNESS TO THE CODRT-MARTIAL. TEE ACTUALDIRECT EXAMINATION OF A DEFEIW3E WITNESS BEGINS WHENQUESTIONS ARE ABKED BY THE DEFBNSE COUNSEL. YOU DO NOTCNANGE TWE BTAGE OF EXAMINATION, BUT MERELY TYPE TEE SSEm*QuEBTIoNs By TEE DEFENSE:SS TWO SPACES BELOW THE LAST LINE

OF TYPING AS SHOWN BELOW.

SE Questions by the defense:

Q. You say that you know the accused. Francis, will you pleasetell the court-martial how you know the accused?

A. Yes, sir. He was stationed on the YTB with me, down inService Craft.

Q. Did he ever cause you any trouble?A. No, sir. Quirk was one of the best men I had on the tug.

Q- Did Quirkstationed

TC : I object.witness.

ever show any tendency to go UA while he wason the tugs with----

That last question calls for an opinion of the

MJ: Argument?

TC : (ARGUNENT IN SUPPORT OF OBJECTION INTENTIONALLY OMITTED -TYPE VERBATI14)

Dc : (ARGUMENT IN OPPOSITION TO OBJECTION INTENTIONALLY OMI~ED -TYPE VERBATIM)

NJ: Reporter, please read back the last question of the defensecounsel.

~ The reporter did as diracted.

NOTE : WHEN REQUIRED TO REAO BACK ANYTHING FROM YOUR TAPE8, DO NOTTYPE WNAT YOU ACTUALLY READ BACK; SINPLY TYPE TNE SSE ABSHOUN ASOVE.

HJ:

A.

DC:

TC :

14J:

&E

~E Questions

Q.A.

Q.A.

MJ:

TC :

The objection of trial counsel is overruled. Francis, youmay answer the question.

No, sir. He was always on time and he was sure to be thereearly enough to get a good day’s work done.

The defense has no further questions.

The prosecution does not desire to cross-examine thiswitness. Does the court-martial wish to examine thiswitness?

I have a question or two for the witness.



Francis, how long have you known the accused?For approximately 1 year, sir.

He has always been dependable, trustworthy, and loyal?Yes, sir.

I have no further questions.

The prosecution has no questions. Does the defense have anyfurther questions?

35<~ >. ,?~fr.1~<

DC: No, the defense has no further questions, Your Honor.

~E The witness was duly warned and withdrew from the courtroom.

&B Boatswain”e Mate Llecond Claes John C. Roberte, 0.S. Navy, Wae calledae a witnese for the defenee, wae eworn, and teetified ae followe:

w&E Questions

Q.A.

Q.A.

~E Questions

Q.A.

Q.A.

Q.

A.

DC:

~B

WE Questions

Q.

A.

Q.A.

TC :

DIRECT EXAMINATION

by the prosecution:

State your name, rate, and present duty station.MY name ie John C. Roberts, and I’m a boatswain’s matesecond class. My duty station is Naval Brig, NavalEducation and Training Center, Newport, Rhode Island.

Do you know the accused in this case?Yes, sir. That’s Quirk sitting over there [pointing in thedirection of the accused].

by the defense:

When was the first time that you met the accused?I would say about 18 months ago, sir, when I was stationedon the tugs.

Were you very friendly with the accused at that time?Yes, sir. Quirk and I made quite a few liberties togetherhere in Newport and Boston.

Do you know whether or not there was any family trouble athome?You mean Quirk’s family, don’t you? No, sir, there was notrouble that I knew of.

I have no further questions.

CROSS-EXAMINATION

by the prosecution:

Roberts, have you had a chance to speak to Quirk while hehas been in the brig?Yes, sir, I have.

Did he say anything to you as to why he went UA?No, sir, he didn’t.

The prosecution has no further auestions. Does the defensehave-any further questions? -

36

@) ~> 2;/.12

DC: NO further questions.

TC : Doee the court desire to examine this witness?

UT: The court does not.

UJ: The witness is excused, subject to recall.

SSE The witness was duly warned and withdrew from the courtroom.

DC: The accused electe to take the stand and testify ae awitness in his own behalf. His testimony will be limited toCharge I and the Specification thereunder.

MJ: Before proceeding, Mr. Defenee Counsel, an Article 39(a)session is required.

MJ: The court-martial is in recess.

~B The court-martial recessed at 1628 hours, 4 February 19CY.

37

<m F.!,??fl.hf.

.-

ARTICLF. 39(a) SESSION:

~E The Article 39(a) session was called to order at 1630 hours, 4February 19C!Y.

MJ: This Article 39(a) session will come to order.

TC : All parties are present except the members.

MJ: Have you explained to the accused, and does he understand,his right to testify or to remain silent?

DC: I have, Your Honor, and the accused does understand hisrights in this regard.

MJ: Fireman Quirk, you now have the right, if you wish, topresent evidence in your own behalf. You are under no legalobligation to present any evidence at all. The burden isupon the government to prove your guilt beyond a reasonabledoubt . If you present no evidence, this fact will not beconsidered against you for any purpose. However, if thereis any evidence you wish to present to the court-martial toexplain, mitigate, impeach, or rebut any evidence of theprosecution, or for any other legitimate purpose, now is thetime to do so. If you elect to present evidence, suchevidence will be considered by the court-martial for allpurpoees; either for you or against you, as the case may be.

MAT: As the accused, you have these rights as a witness:

First, you may be sworn and take the stand as a witness. Ifyou do that, whatever you say will be considered and weighedas evidence by the court-martial, as is the testimony of anyother witness, and you may be cross-examined on yourtestimony by the trial counsel and by the court. If yourtestimony should be restricted to less than all of theoffenses charged against you, and you do not testifyconcerning others, then you may be questioned about thewhole subject of those offensee concerning which you dotestify, but you may not be questioned about any offenseconcerning which you do not testify.

Second, you may remain silent, that ie, eay nothing at all.You have a right to give no testimony, if you wish, and ifyou do not testify, the fact that you do not take the standyourself will not count against you in any way with thecourt. It will not be considered ae an admiesion that youare guilty, nor can it be commsnted on in any way by counselin addressing the court-martial.

I

J

MJ: Do you understand your right to testify or present otherevidence at this time?

ACC : Yes, sir.

MJ: This Article 39(a) session is adjourned.

he Artfcle 39(a) session adjourned at 1635 hours, 4 February 19CY.

39

.

&B The court-martial was called to order at 1640 hours, 4 February 19CY.



DC: The defense desires to call the accused, Quirk. The accuseddesires to take the stand and testify under oath at thistime.

MJ: Proceed, Defense Counsel.

~ Electrician’s Hate Fireman Phineue R. Quirk, U.8. Navy, was calleda witness for the defense, was svorn, and tastified as follove:

w DIRECT EXAMINATION

WE Questions by the prosecution:

ae

Q. State your full name, rate, armed force, and duty station.A. Phineus R. Quirk, Electrician’s Mate Fireman, U.S. Navy, and

I’m stationed at the Naval Justice School.

Q. Are you the accused in this case?A. I am, sir.

NOTE : AT TEE CONCLUSION OF A BTAt3E OF EXAMINATION, COUNSEL WILLsAY8 18Yo~ W~TNESB88 oR wo~B lJERY S~H~-. THESE WORDS ARENOT TIUUWCRIBED. TNEY ARE ABSORBED IN THE BBE IDENTIFYINGTNE NEXT PERBON CONDUCTING THE EXANIMATION AS SHOWN BELOW.

~E Questions

Q.

A.

MJ:

WIT :

Q.A.

Q.

A.

by the defense:

Quirk, did you and Seaman Brown go on liberty together on 30November?Yes, sir, we did.

You’re going to have to speak up. We can’t hear you.

Yes, Your Honor

Did you have a few drinks while you were on liberty?Yes, sir, I did. You see, I just turned 21, and I wanted tocelebrate a little, so Brown and me had a few drinks.

Would you be kind enough to tell the court the last thingyou can remember about the evening of 30 November?I don’t rightly remember too much, sir. I been told what Idid a few days later by Brown--Seaman Brown. He said I sortof got drunk.

40

.

TC : I move that the answer to the last question be stricken fromthe record on the grounds that it is hearsay.

MJ: That motion is granted. The members will disregard theanswer.

DC: The defense has no further questions.

TC : I have a few that I would like to ask.

~R CROSS-EXAMINATION

=E Questions by the prosecution:

Q. You say that you were drinking, is that right?A. We were drinking? Yes, sir, we was drinking; thatts what I

said.

Q. And you can’t remember how many drinks you had?A. That’s right, sir.

Q. So this drinking, then, is the cause of your going UA?A. I didn’t say that, sir.

TC : NO further questions

m: ATIy further questions of this witness?


DC: No, sir.

MJ: You may resume your seat at the counsel table.

~E The accused resumed his seat at the counsel table.

DC: The defense rests.

TC : The prosecution has no further evidence to offer.

MJ: Does the defense have any further evidence to offer?

DC: It does not.

WITWBSS RECALLED BY THE CODRT-KARTIAL

MJ: Does any member desire to have any witnesses recalled, anyadditional witnesses called, or any further evidence educed?


I

MJ: I would like to recall Boatswain’s Mate Dale Francie.

SS! Boatswain”s Uate First Class Dale Franois. U.S. Navy. was recalled asa witness for the court-martial,as follows:

~E

~ Questions

Q.

A.

SE Questions

Q.

A.

Q.

A.

MJ:

~E

~E Questions

Q.

A.

Q.A.

~ Questions

Q.

A.

TC :

DIRECT

by the prosecution:

remin&ed”of his oaii, and testified

EXAMINATION

Are you the same Dale Francis whotrial?Yes, sir, I am.


You stated earlier that Quirk wasand never caused any trouble. IsYes, sir, it is.

Isn’t it a fact, however, that onQuirk was returned to the Service

testified earlier in thie

one of your best workers,that correct?

three separate occasionsCraft barracks bv the

shore patrol for various infractions on the beach?”Yes, sir, I believe so, but I cantt remember thecircumstance.


CROSS-EXAMINATION

by the defense:

Petty Officer Francis, do you recall just what theseinfractions were?One of them was for being out of uniform--wearing whitesocks with his blues. I just can’t remember the others.

But he was brought back a few times by the shore patrol?Yes, sir.

by the prosecution:

Could one of the others poesibly have been for a minorperiod of UA?Not that I recall, sir.


42

I

~E

&B Questions

Q.

A.

MT:

DC:

S&3

~ Questions

Q.

A.

Q.A.

DC:

w Questions

Q.A.

Q.A.

TC :

M:

m:

RSDIRECT EXAMINATION


Do you recall if’ the accused ever went to CO’s mast for anyof these incidents?He never went to mast while he was stationed in ServiceCraft.

NO further questions. Any further questions?

I have one or two.

RSCROSS-EXAMINATION

by the defense:

You say that Quirk was never disciplined for these allegedinfractions?I didn’t say that, sir.

What did you say?I said, ,,He never went to mast while he was stationed in

Service Craft,” sir.

‘l’hankyou.

by the prosecution:

Was Quirk ever disciplined for these incidents?He was counseled regarding his behavior on the beach on afew occasions.

But he never went to captain’s mast?No, sir, it was taken care of at division level.

Thank you. I have nothing further.

There are no further questions by the court.

The witness is excused subject to recall.

~E The witness was reminded of his previous warning and withdrew from thecourtroom.

MJ: In a moment, welll recess so that counsel and I may discusscertain procedural matters. Upon reconvening the court-martial, the procedure that will be followed will be thateach counsel will be given an opportunity to presentargument to you. Following the presentation of counsel’sargument, I will instruct you on the law and the proceduresin the caee.

.

MJ: Upon the conclusion of my instructions, the court-martialwill close for deliberation. I again remind you that youshould not discuss the case among yourselves or with anyoneelse; nor is it permissible to consult the Manual forCourts-Martial, JAGMAN or any other directives orpublications. Your discussions of evidence and opinionsshould be reserved for the time when you are in your closedsession for deliberation.

tw: The court-martial stands in recess.

~B he court-martial recessed at 1710 hours, 4 February 19cY.

\ I

ARTICLE 39[al BES1310N:

SE The Article 39(a) session was called to order at 1715 hours, 4February 19CY.

MJ: This out-of-court hearing will come to order. Let therecord show that this hearing is being held out of thepresence of’ the members of the court-martial. The militaryjudge, the accused, counsel for both sides, and the reporterare present.

MJ: Do counsel for either side have any reguested instructionson findings?

TC : The prosecution does not, Your Honor.

DC: The defense does not, Your Honor.

NJ: Gentlemen, I intend to give the following instructions onfindings: (PROPOSED INSTRUCTIONS INTENTIONALLY OMITTED -TYPE VERBATIM)

MJ: Are there any objections to the proposed instructions, orrequests for additional instructions?

TC : Not by the government, Your Honor.

DC: No, sir.

NJ: Very well. This out-of-court hearing is adjourned.

45q+ t~”fJ ~< :: ‘<

~B The court-martial was called to order at 1740 hours, 4 February 19C!Y.



MJ: The prosecution may proceed.

ARGUMENTS :

NOTE : ARGUMENTS ON PINDINGS OR SENTENCE ARE GENERALLY QUITELENGTHY . 1P YOU CAN AVOID IT, _ INTERRUPT A COUNSELWHILE ARGGXENT IS BEING RECITED. INTERRUPTIONS CANDEVASTATE COUNSEL’S ATTEMPT TO SWAY TEE 14EMBERS TO HIS OREEA WAY OF THINRING. VICTORY OR DEFEAT COULD DEPEND UPONHOW WELL ARGUHENT8 ARE PRESENTED BY COUNSEL. BE PREPARED.IF NECESSARY, START A NEW TAPE.

TC : The prosecution makes the following opening argument(ARGUMENT INTENTIONALLY OMITTED - TYPE VERBATIH)

DC: In reply to the prosecution’s argument (ARGUMENTINTENTIONALLY OMITTED - TYPE VERBATIM)

TC : In summing up, (CLOSING ARGUMENT INTENTIONALLY oMITTED -TYPE VERBATIM)

MJ: Has the prosecution anything further to offer?

TC : It has not.

MJ: Has the defense anything further to offer?

DC: It does not.

MJ: Very well, I will now instruct the members.

NOTE: TRANSCRIBE TEE INSTRUCTIONS INTO PARAGW4PES I?NEN TEEMILITARY JUDGE TARES UP A NEW SUBJECT. NOTE THE SPECIFICPARAGIUiPHING FOR LISTING ELEMENTS OF THE OFFENSE, ETC.

INSTRUCTIONS ON PINDINGS:

MJ: Gentlemen, I will now instruct you on the law and theprocedures you must follow in deciding this case. When thiscourt-martial closes to vote on its findings, each of youmust resolve the ultimate issue of the guilt or innocence ofthe accused in accordance with the law, the evidenceadmitted in court, and your own conscience.

46

.

MJ: It is my duty as military judge to instruct you on the lawapplicable to this case. It is your duty as members of thecourt-martial to determine the facts of the case, apply thelaw to these facts, and then determine the guilt orinnocence of the accueed.

I will now instruct the court-martial as reguired by R.C.M.920. Let the record show that each member has been providedwith a copy of the charges and specification upon which theaccused wae arraigned.

The court-martial is advised that, in order to find theaccueed guilty of the Specification of Charge I, it must besatisfied by legal and competent evidence beyond areasonable doubt:

(1) That, at the time and placeabsented himself from his organ.Justice School, Newport, Rhode :

alleged, the accusedzation, to wit: Navalsland;

(2) that such absence was without proper authority fromanyone competent to give him such leave and was of theduration alleged; and

(3) that the absence of the accused was terminated byapprehension.

You are further

Firet, that theuntil his guiltevidence beyond

second, that in

advised in accordance with R.C.M. 920(e)(5):

accused muet be preeumed to be innocentis established by legal and competenta reasonable doubt;

the caee beina considered. if there is areasonable doubt as to the guilt of the accused, the doubtshall be resolved in favor of the accueed and he shall beacguitted;

third, that if there is a reasonable doubt as to the degreeof guilt, the findings muet be in a lower degree as to whichthere is no reasonable doubt; and

fourth, that the burden of proof to establish the guilt ofthe accused beyond a reasonable doubt is upon the UnitedStates.

The final determination as to the weight of the evidence andthe credibility of the witnesses in this case rests solelyupon you members of the court-martial. (REMAININGINSTRUCTIONS INTENTIONALLY OMITTED - TYPE VERBATIM)

47

MJ: Does either counselas given, or desire

have any objections to the instructionsany additional instructions?

TC : No, Your Honor.

DC: No, Your Honor.

MIT: Members of the court, are there any guestions concerning anyof the instructions that I have given you?

MERS : [No response.]

MJ: The court-martial will

~B The court-martial closed at 1800

~ The court-martial opened at 1857

MJ: The court-martial will

be closed.

hours, 4 February

hours, 4 February

cone to order.

19CY .

19CY .

TC : All parties to themartial closed aremembers.

MJ: Mr. President, are

PRES : Yes, Your Honor.

MJ: Very well, proceed.

trial who were present when the court-again present in court, to include the

you ready to announce your findings?

Accused and counsel, please rise.

UE Defense counsel and the accused did as directed.

PRES : Let the record indicate that during the closed session ofthis court-martial, no member of the court-martial,including the president, had access to or used the ManuaLfor Courts-Martial. United States, 1984, the JAG Manual, orany other writing except copies of the convening orders, thecharges and specifications referred to this court-martial,the instructions of the military judge of the court-martial,and exhibits received in evidence.

NOTE : IT IS CUSTOMARY FOR THE ACCUSED AND HIS COONSEL TO STAND ANDFACE TNE HEMEERS DDRING TNE READING OF TEE FINOINGS OF THECOORT-NARTIAL . HERE AT TNE SCHOOL, WE WILL DISPENSE WITHTHIS FORMALITY.

48

FINDINGS

PRES :

j

1

MJ:

MJ:

~E The

~E The

MJ:

TC :

of

of

Electrician’s Mate Fireman Phineue R. Quirk, U.S. Navy, itis my duty as president of this court-martial to inform youthat this court-martial finds you:

the Bpeoification of Charge I: Guilty.

Charge I: Guilty.

Gentlemen, considering the hour, I am going to recess thecourt-martial until 0900 hours tomorrow morning.

The court-martial will stand in recess.

court-martial recessed at 1910 hours, 4 February 19CY.

court-martial was called to order at 0905 hours, 5 February 19CY

The court-martial will come to order.

All parties to the trial who were present when the court-martial recessed are again present.

PRESENTENCING PROCEDURE:

MJ:

TC :

The court-martial will now hear the personal data concerningthe accused as shown on the charge sheet, any otherinformation from his personnel records relevant tosentencing, and will receive evidence of previousconvictions, if any.

The first page of the charge sheet chows the following dataconcerning the accused:

NAME OF ACCUSED: QUIRR, Phineus R.SOCIAL SECURITY ACCOUNT NUMSER: 123-45-6789.RATE : Electriciants Hate Fireman.ORGANIZATION: Naval Justice fichool, Newport, Rhode Island.INITIAL DATE OF CURRENT SERVICE: 10 Au~st 19CY(-3).TERM OF CURRENT SERVICE: 4 years.PAY PER MONTE - BASIC: $636.90.SEA OR FOREIGN DUTY: None.TOTAL : $636.90.NATURE OF RESTRAINT OF ACCUSED: Confinement.DATE OF RESTRAINT: 2 January 19CY.

NOTE: THE CATEGORIES FOR THE DATA FROM THE CHARGE SHEET MAY VARYFROM CASE TO CASE; SIMPLY FOLLOW THE ASOVE FORMAT, TYPINGVERBATIM FROM YOUR TAPE. MINOR STUTTERS, ETC., WITHIN TEECATEGORIES SHOULD BE OMITTED.

49

TC : Does the accused have any objection to the data as read?

DC: He does not.

TC : I have evidence ofmartial.

~ Ensign Robert Q.prosecution, was

Levis, U.I3.reminded of

~E

~E Questions

Q.

A.

Q.

A.

Q.

A.

Q.A.

TC :

REPORTER:

Q.

A.

Q.A.

TC :

TC :

one previous conviction by summary court-

Naw. was recalled as a vitness for thehis- umler oath, and testified as follove:

EXAMINATION

by the

DIiUW2’

prosecution:

Are you the same Ensign Robert Q. Lewis, U.S. Navy, who

testified earlier at this trial?I atu, eir.

Are You the custodian of the current service record of theaccu~ed?I am, sir.

Referring to the service record of the accused,state if there is a page 601-7R therein contain:relating to a previous conviction by court-mart:[Looking through service record.] There is.

would yOUng an entryal?

May I see it?Yee, sir. Here it is [handing

Request the reporter mark thie

to prosecution].

exhibit for identification.

This will be Prosecution Exhibit 2 for identification.

Does the entry on Prosecution Exhibit 2 for identificationpurport to bear a signature?It does.

Whose?The entry purports to bear the signature of LieutenantCommander Johnnie B. Good, the Staff Judge Advocate of NavalEducation and Training Center here in Newport, Rhode Island.

Prosecution Exhibit 2 for identification is offered inevidence as Prosecution Exhibit 2, and permission isrequested to withdraw it at the conclusion of the trial andsubstitute a true copy therefor.

I now show Prosecution Exhibit 2 for identification to thedefense counsel for his inspection and possible objection[offering to defense].

50

.

DC:

TC :

MJ:

TC :

MJ:

Q.

A.

Q.A.

TC :

REPORTER :

Q.

A.

TC :

TC :

DC:

TC :

UT:

I’ve already seen it, Your Honor. NO objection.

[Hands document to military judga.]

Do YOU have anything to show the final action on this court-martial?

Yes, Your Honor. I am planning to introduce another servicerecord page entry to establieh that the court-martial hashad final review.

Proceed before I make a ruling on Prosecution Exhibit 2 foridentification.

m. Lewis, do you find an entry in the service record of theaccused reflecting final action of the court-martialreferred to in Prosecution Exhibit 2 for identification?Yes, sir. There is an entry in the service record--aNAVPERS 1070j613, dated 14 January 19CY(-3).

Would you please hand it over to me?Here you are [handing to prosecution].

Request the reporter mark this for identification.

This will be Prosecution Exhibit 3 for identification.

Does Prosecution Exhibit 3 for identification purport tobear a signature [handing to witness]?[Examining.] It does. It is signed by Lieutenant Howard H.Stine, U.S. Navy, OIC, PSD, NETC, Newport, Rhode Island[returning to prosecution].

Prosecution Exhibit 3 for identification is offered inevidence as Prosecution Exhibit 3, and permission isrequested to withdraw it at the conclusion of the trial andsubstitute a true copy therefor.

I now show Prosecution Exhibit 3 for identification to thedefense for his inspection and possible objection [handingto defense].

[Examining exhibit.] No objection. [Returns toprosecution.]

[Hands exhibit to military judge.]

Prosecution Exhibits 2 and 3 for identification are admittedin evidence as Prosecution Exhibits 2 and 3. True copiesmay be substituted at the end of the trial.

51

MJ: The reporter is directed to delete the words “foridentification” from Prosecution Exhibits 2 and 3 at theconclusion of the trial.

TC : I have no further queetions of the witness at this time.

MJ: ?UIY questions by the members?

MERS : [No response.]

MJ: The witness is excused.

QS& The witness withdrew

MJ: An Articleexcused.

~B The members withdrew

\

from the courtroom.

39(a) session is required. The members are

from the courtroom.

\

~B The Article 39(a) session was called to order at 0931 hours, 5February 19CY.

MJ: This Article 39(a) session will come to order. Let therecord show that this session is being held out of thepresence of the members of the court-martial. It isattended by the military judge, the accused, counsel forboth sides, and the reporter.

EXTENUATION AND MITIGATION:

MJ: Electrician’s Mate Fireman Quirk, you are advised that youmay now present evidence in mitigation and~or extenuation ofthe offenses of which you stand convicted, that is, anyevidence which might tend to explain or lessen the degree ofseverity of the offenses of which you have been convicted.YOU may testify under oath as to such matters. You mayremain silent, in which case, the court-martial will draw noadverse inference from your silence.

You may call witnesses or introduce documents. You may makean unsworn statement, either oral or written. Thisstatement may be made by you personally, or through yourcounsel. You are advised that an unsworn statement is notevidence and you cannot be cross-examined upon it. However,the prosecution may offer evidence to rebut anythingcontained in a unsworn statement. You may remain silent, oryou may elect to use any manner or combination of mannersabout which you have been advised to bring forth mitigationand extenuation. Consult with your counsel and advise mewhat you desire to do.

~ The accused did as directed

U7: Do you understand what I have explained to you?

ACC : Yes, sir, and I am going to make an oral unsworn statement,with your permission.

MJ: Very well. Does counsel for either side have anythingfurther to present at this time?

TC : No, sir, Your Honor.

DC: I have nothing further, Your

MJ: This session is adjourned.

~ The Article 39(a) session adjourned at

53

Honor.

0950 hours, 5 February 19CY.

NOTE : NOTICE BELOW, TBE REGATHERING OF TBE COURT-NARTIAL WITBOUT ARECES8 . REXEUBER, YOU START WITH THE 8POKEN WORDS.

MJ: We may proceed.

TC : Let the record reflect that all partiee to the trial areagain present, to include the members.

DC: The accused desires to make an oral unsworn statement atthis time.

MJ: YOU may proceed.

ACC : (UNSWORN STATEMENT INTENTIONALLY OMITTED - TYPE VERBATIM)

NOTE : TBE ACCUSED COULD NARE AN UNSWORN STATEMENT WITH THEASSISTANCE OF THE DEFEN8E COUNSEL. TNIS PROCESS COULDINVOLVE QUESTIONS AND ANSWERS AS INDICATED BELOW. BOTB AREPROPER . IN EITHER CASE, YOU SHOULD BE CAREFUL TO USE TEEPROPER PREFIX.

DC: Quirk, would you like to explain to the court-martial whyyou took the watch belonging to Seaman Time?

DC:

ACC :

TC :

MJ:

DC:

TC :

TC :

DC:

ACC : Yes, sir. Well, I remembered what Boatswain’s Mate Jonessaid about getting back to the school on time the followingmorning, and since I didn’t have a watch, I temporarilyborrowed Time’s.

YOU didn’t have any intention of retaining it permanently,did you?

No, sir. I knew that Time didn’t wear his watch much, and Iwas going to return it the following morning, but thingsdidn’t work out that way at all.

I have no evidence in rebuttal to this unsworn etatement.

Does either side have anything further?

No, sir.

No, sir, the prosecution does not.

The prosecution makes the following argument (ARGUMENTINTENTIONALLY OMITTED - TYPE VERBATIM)

The defense makes the following argument (ARGUXENTINTENTIONALLY OMITTED - TYPE VERBATIM)

54

.

.

TC : In closing, the government would likethat (REBUTTAL ARGUMENT INTENTIONALLYVERBATIM)

to remind the courtOHITTED - TYPE

~NSTRUCTIONS ON TRE NAXINUN PERMISSIBLE PUNISHMENT

MJ: Very well. I will now instruct the court-martial as to themaximum sentence which may be imposed in this case. Themaximum punishment which may be awarded for the offenses ofwhich this accused has been found guilty is discharge fromthe naval service with a bad conduct discharge, confinementfor a period of 6 months, forfeiture of two-thirds pay permonth for 6 months, and reduction to the grade of pay gradeE-1.

The court-martial is further advised that when deliberatingon an appropriate sentence, you must consider the fact thatFireman Quirk, in an unsworn statement, related that he wasworried about getting to echool on time; that he did nothave a watch; and that he temporarily borrowed Time’s watch.You must also consider his unsworn statement that Time didnot wear his watch much; that he was going to return thewatch; and that he testified he had no intention of keepingthe watch.

MJ: Does any member have any questions concerning theseinstructions?


MJ: The trial couneel will remove all trial guides, Manuals forCourts-Martial, and JAG Manuals from the courtroom.

~ The trial counsel did as directed.

MJ: The court-martial will be closed.

~E The court-martial closed at 1025 hours, 5 February 19CY.

&E The court-martial opened at 1115 hours, 5 February 19CY.


TC : All parties to the trial who were present when the court-martial closed are again present.

55 I

.

.

PRES : Let the record indicate that during the closed session ofthis court-martial, no member of the court-martial,including the president, had access to or used the Manualfor Courts-Martial, the JAG Manual, or any other writingexcept copies of the charges and specifications, conveningorders, and instructions of the military judge.

MJ:

PRES :

MJ:

PRES :

SENTENCE

MJ:

TC :

MJ:

hr. President, are you ready to announce sentence?

Yes, Your Honor.

Very well. Proceed, Mr. President.

Electrician’s Mate Fireman Phineus R. Quirk, U.S. Navy, itis my duty as preeident of this court-martial to inform youthat this court-martial sentences you:

Has

No,

To be discharged from the service vith abad conduct discharge, to be confined for3 months, to forfeit $25.00 pay per monthfor 3 months, and to be reducad to thegrade of pay grade E-1.

the prosecution any other cases to try at this time?

Your Honor.

Since there are no other cases to be tried at this time, Iwant to thank the court members for their attendance duringthis trial. The members are excused at this time. Allother parties will remain.

SE The members withdrew from the courtroom.

NOTE : AT THIS POINT THE MILITARY JUDGE IS CONDUCTING AN OUT-OF-CODRT HEARING IN ORDER TO ADVISE THE ACCUSED OF HIS POST-TRIAL AND APPELLATE RIGHTS. YOU WOULD START A NEW PAGE ATTHIS POINT. RENEMSER, UNLESS THE MILITARY JUDGE RECESSESTHE COURT-NARTIAL, NO SSE FOR A RECESS WILL APPEAR, SIMPLYTHE SSE POR TEE COURT MSNSERS WITHDRAWING PROM THECOURTROOM . RENENEER, DO NOT TYPE AN SSE TO CALL THE ARTICLE39(a) SESSION TO ORDER OR TO ADJOURN IT; SINCE THE XEKEERSHAVE WITHDRAWN, THE MILITARY JUDGE WILL GIVE POST-TRIALRIGHTS TO THE ACCUSED AND ADJOUIW THE COURT-MARTIAL.

56

.

APPELLATE RIGHTS ADVISEMENT

m: Fireman Quirk, I will explain to you your post-trial andappellate rights.

After the record of trial is prepared in your case, theconvening authority will act on your case. The conveningauthority may approve the sentence adjudged, may approve alesser sentence, or may disapprove the sentence entirely.The convening authority may not increase the sentence. Theconvening authority may also disapprove some or all of thefindings of guilty. The convening authority is not requiredto review the case for legal errors, but may take action tocorrect legal errors.

MJ:

ACC :

MJ:

MJ:

Do you understand?

Yes, sir.

You have the rioht. to submit matters to the conveningauthority before he takes action on your case. Thesematters must be submitted to the convening authority within10 days after you or your counsel receive a copy of therecord of trial, or 10 days from date of receipt of staffjudge advocate or legal officer review, whichever is later.The convening authority may extend these periods for goodcause.

Before the convening authority takes action, the staff judgeadvocate will submit a recommendation to him. Thisrecommendation will be sent to your defense counsel beforethe convening authority takes action, and you may submitmatters in response to the recommendation within 10 days ofreceiving it. The convening authority may extend thisperiod for good cause.

After the convening authority takes action, unless you waiveappellate review, your case will be reviewed by the Navy-Marine Corps Court of Military Review. You are entitled tobe represented by counsel before such court. Militarycounsel will be appointed to represent you at no cost toyou, and if you so choose, you may be represented bycivilian counsel at no expense to the United States.

The Court of Military Review will review your case for anylegal errors, and for factual sufficiency. It will alsoconsider whether the sentence is appropriate.

57

.

.

MJ: After the Court of Military Review completes its review,your case could be reviewed, on your request or otherwise,by the Court of Military Appeals, and, if it were reviewedby the Court of Military Appeals, by the Supreme Court.You would have the same rights to counsel before thosecourts as you have before the Court of Military Review.

If you waive appellate review, you give up the rights I havejust described. If you do not waive appellate review, youmay withdraw your case from appellate review at a latertime, before such review ie completed.

If you do waive, or later withdraw your case from appellatereview, you cannot change your mind later. Once you file awaiver or withdrawal, your decision is final and appellatereview is barred.

If you waive or withdraw appellate review, your case will bereviewed by a judge advocate for legal error. You maysuggest, in writing, possible errors for the judge advocateto consider. The judge advocate’s conclusions will be sentto the general court-martial convening authority for finalaction in your case.

After review by the judge advocate and action by the generalcourt-martial convening authority is completed, you mayrequest the Judge Advocate General to take corrective actionin your case. Such a request must be filed within 2 yearsafter the convening authority takes action, unless you canshow good cause for filing later.

MJ: The court-martial is adjourned.

~B The court-martial adjourned at 1130 hours, 5 February 19CY.

58

,-

.

AUTHENTICATION OF RECORD OF TRIAL

inthecaseof

Slectricizm’s Mate Fireman Phineus R. @irk, Us. Naw

Naval Justice School, Newport, Rhode Islmd 02841-1523

6.%UUL.n

CONSTANTLY E. LEGALLCDR, JACC, USN

(Mi/flaqiAdgeJ1

“.

10 Februa~ 19CY

I have examined the record of trial in the foregoing case.

e. de~./

=NNETif E. SARTUAN . .LT, JACC, USN

(De{enwCounsel]

11 February 19CT

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IPROSECUTION EXHIBIT 1 ■—

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PUNISHMENT AWARDED:

121: LARCENY OF $50.00, THE PROPER’lYOFYN2 JONES, USN, ON CY-3DEC30.

RIR TO S14FN, FORF $50.00 PAY PER MONTH FORONE I’IONTH,AND 10 DAYS RESTRICTION TO TNSLIMITS OF NETC, NEWPORT, RI.

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S4;R: 102 OF CY(-3)JAN14. RECORD OF TRIAL FORWARDED TO COMMANDER, NETC, NPT,RI ON CY(-3)JAN16.

CA’S ACTION: THE SENTENCE IS APPROVED AND WILL-BE EXECUTED. FORFEITURES SHALLAPPLY TO PAY BECOMING DUE ON AND AFTER THIS ACTION. ROT FWD TO COM NETC, NPT,RI IAW ART 64(b) , UCt4J .

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PROSECUTION SXHIBIT 2

---- -. . .1

UNITED STATES

COMMANDERNAVAL EDUCATION AND TRAINING CENTER

NEWPORT, RHODE ISLAND

14 Jan 19CY-3

)) STAFF JUDGE ADVOCATE’S REVIEWj) - - case - -)

PHINEUS R. QUIRK ) SUMMARY COURT-MARTIALEMFN, USN )123-45-6789 )

In the foregoing summary court-martial case of Electrician’s MateFireman Phineus R. Quirk, U.S. Navy, 123-45-6789, convened byCommanding Officer, Naval Justice School, Newport, Rhode Island, andtried on 07 January 19CY-3, (1) the court had jurisdiction over theaccused and the offenses to which the accused was found guilty, (2)the specification to which the accused was found guilty stated anoffense under the Uniform Code of Military Justice, and (3) thesentence, as approved and ordered executed by the convening authority,is legal.

Neither the accused, nor his counsel, submitted allegations oferror in accordance with R.C.M. 1105.

By copies hereof, the convening authority is requested to causethe accused to be notified of this review and have necessary servicerecord entries made (See MILPERSMAN 5030500). If the accused has beentransferred, please forward two copies of this Staff Judge Advocate’sReview to the accused’s present command requesting that the requirednotification and service record entries be effected. Commander, NavalEducation and Training Center, Newport, Rhode Island, shall beprovided a copy of the letter of transmittal.

This record has been reviewed in accordance with the provisions ofArticle 64(a), Uniform Code of Military Justice, and R.C.M. 1112,Manual for Courts-Martial, 1984.

yH*B<o%’4Lieutenant Commander, JAGCU.S. NavyStaff Judge Advocate

PROSECUTION EXHIBIT :1

copy to:DC

CAAccusedAccused’s CO (For Service Record)

QUESTION FORMS FOR MEMEERS

‘.s. ‘- ~ DATE:~

4.

. .

QAJe.3Z-AAa. RefixmPRINTED NAME & SIGNATURE

!

APPELLATE EXHIBIT ~

o 0.-

8

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL

USE OF FORM - This form and MCM, 1984,Appendix 14. will be used by [he lrial counsel andthe reporter as a guide to the preparation of therecord of trial in general and special court-martialcases in which a verbatim record is prepared. AirForce uws this form and departmental instructionsas a guide to the preparation 01 the record of trialin general and specialcourt-martial cases in whicha summarized record is authorized. Army and Navywe DO Form 491 for record} of trial in general and~Wial $Oufl-martlaf ca= in which a wmmarizedrecord IS authorized. Inapplicable words of theprinted text will be deleted.

COPIES - See MCM, 1984, RCM 1103(g). The con-

vening authority may direct the preparation of

additional copies.

ARRANGEMENT - When forwarded to the

appropriate Judge Advocate General or for judgeadvocate review pursuant (0 Article 64(a), (he recordwill be arranged and bound with allied papers In

the sequence indicmed below. Tr]al counsel i~responsible for arrang!ng the record as indicated.

except ihat items 6. 7. and !5e will be Inserted bythe convening or reviewing authot, ty, as

appropriate. and jtem$ 10 and 14 will be ,merteci by

either trial counsel or the convening or reviewingauthority, whichever has custody of them

1. Front cover and !n$icfe front cover

(chronology sheet) of DD Form 490.

2 Judge advocale”$ review purwant 10 Article

64(a). if any.

3 Request of accused for appellate defensecounsel, or waivertiithdrawal of appellate r,ghts, ifapplicable.

4 Brief% of counsel submitted after uial. if any

(Article 38(c)).

S 00 Form 494. ‘Court-Martial Data Sheet. -

6. Court-mart8al orders promulgating the resultof lrial as 10 each accused, in 10 cop!es when therecord is verbatim and in 4 copies when it is

summarized.

7 When required. signed recommendation of

staff judge advocate or legal officer, in duplicate,together with all clemency papers. includingclemency recommendations by court members

) Form 490. OCl 84

8. Matters submitted by the accuwd pursuant toArticle 60(MCM, 1984, RCM 1105).

9. OD Form 458, ‘Charge Sheet- (unfes~incfuded at the point of arraignment in therecord).

10.Congressional inquirie$ and replies, if any.

11. DO Form 457, ‘Investigating Of ficer”$

Report, - pursuant to Article 32, if suchinvestigation wa> conducted, followed by any

other papers which accompanied the chargeswhen referred for trial, un~ess included its therecord of trial proper.

12. Advice of staff judge advocate or legal

officer, when prepared purwant to Art!cle 34 orotherwise.

13. Reque$ls by counsel and action of the

convening authority taken thereon (e.g.. requestsconcerning delay. witnesses and depositions).

14. Records of former trials,

15. Record of trial in the followtng order:

a. Errata sheet. tf any

b. Index \heel with reverse side contaimngreceapt of accused or defense counsel for copy offecord or certificate !n lieu of recet pt.

c. Record of proceedings m court, IncludtngArt!cle 39(cJ sessions, if any

d. Authent8cat, on sheet, followed bycertificate of correction. if any

e ActIon of convemng authority and. !f

appropriate, action of officer eaercOsing generalcOurt-martBa\ lurwdictnon.

f. Exhib,ts admitted #n ewdence

g. Exhibits not fece,ved in evtdence Thepage of the record of trial where each exh,b, twas offered and rejected wiJl be noted cm thefront of each exhibit.

h. Appellate exhdsits, such as proposed

instructions, wrttten offers of proof or

preliminary evidence (realor documentary). and

briefs of counsel submttted at trial

Inside of 8ack Cove

Documents

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