Opinion of the Court
HOMER FERGUSON, Judge:
Tried by special court-martial, the accused was found guilty of six specifications of wrongful appropriation by check, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. He was sentenced to bad-conduct discharge, confinement at hard labor for six months, and reduction to the lowest enlisted grade. With some reduction in the sentence, intermediate appellate authorities affirmed, and we granted accused's petition for for review on the questions whether accused was prejudiced by the participation of the command "legal officer" in the trial and whether the board of review erred both in requiring specific prejudice to be shown to have resulted from the presence of unauthorized persons at closed sessions of the court-martial and in affirming a punitive discharge based upon an incomplete transcript of the proceedings below.
The granted issues all revolve around two similar occurrences in the accused's trial. Initially, a controversy arose when defense counsel objected to the tender in evidence of accused's pretrial statement on the ground that no corpus delicti had been established. After the defense had argued the matter, the following transpired:
"PRES: The court is closed, the Trial Counsel, Defense Counsel and Legal Officer will remain.
"PRES: The court will come to order.
"TC: All parties to the trial who were present when the court closed are now present.
"PRES: Mr. McClellan, your objection is sustained."
The trial counsel thereafter successfully sought an overnight continuance in order to consult the convening authority and "for legal consultation." After the court-martial had reconvened, trial counsel introduced into evidence certain voluntarily obtained handwriting exemplars which tended to establish that accused wrote the worthless checks involved. Defense counsel objected to the relevancy of the exemplars on the basis that they constituted no more than other "statements" by the accused which could not serve to corroborate his confession. After hearing the objection, the president repeated his earlier action:
"PRES: The court will be closed for five minutes. Trial Counsel and Defense Counsel will remain and bring the Legal Officer in please.
"PRES: The court will come to order.
"TC: All parties to the trial who were present when the court closed are now present.
"PRES: Mr. McClellan, your objection is overruled."
As it well might, the Government concedes that the participation by the command "legal officer" in accused's trial was patently erroneous. United States v Self, 3 USCMA 568, 13 CMR 124; United States v Guest, 3 USCMA 147, 11 CMR 147. Indeed, the proper rule is that such meddling is presumptively prejudicial. United States v Allbee, 5 USCMA 448, 18 CMR 72; United States v Jakaitis, 10 USCMA 41, 27 CMR 115. It is argued, however, that the prejudice beclouding the unrecorded conferences is dispelled by the presence therein of a legally trained civilian defense counsel and the fact that at least the initial session resulted in a ruling favorable to the accused, whereas all other parties to the trial, including the "legal officer," possessed no qualifications beyond those of the ordinary lay member of the armed services. Cf. United States v Allbee, supra. We believe the Government misapprehends the rationale of our decisions in this area and confuses the overcoming of the presumption of prejudice with the doctrine of waiver.
Initially, we point out that the participation of any unauthorized person in the closed session deliberations of a court-martial is forbidden. United States v Jakaitis, supra; United States v Allbee, supra. When this principle was first announced, we deemed it so essential to basically fair administration of military justice that we held these invasions of the court's closed discussions to be inherently prejudicial. United States v Keith, 1 USCMA 493, 4 CMR 85; United States v Woods, 2 USCMA 203, 8 CMR 3. Upon the belief that the proposition of noninterference in closed sessions had become well established, we subsequently re-examined our previous holdings and concluded that adherence to the mandate of the Code had become sufficiently entrenched to justify a relaxation of the original rule. Thereafter, unlawful participation in the court's processes was, as noted above, held to be only presumptively prejudicial. Reversal followed only in the absence of a clear showing by the Government that the closed conference could not have harmed the accused. United States v Jakaitis, supra.
The reasoning behind these decisions should be apparent to all connected with military justice administration. A court-martial, under the Code, is a judicial body rather than an instrument of command. It sits in judgment between the accused and the United States. To permit a representative of the convening authority to invade its proceedings and to conduct business with it in the secrecy of a closed session, or on the basis of "off-the-record" exchanges, simply divests the court of its judicial character and causes it to revert to its historical status of nothing more than an arm of the commander. In short, when we apply the presumption of prejudice to such proceedings, we mean for the Government to demonstrate the nature of these communications between the court and outsiders. From this, we can determine whether the accused was harmed, a conclusion not always apparent from the mere presence of accused's counsel. To hold otherwise would simply mean that we were invoking the doctrine of waiver with respect to an error which goes to the heart of the military legal system.
Turning to the facts of the instant case, we find that the record depicts two separate unrecorded conferences between the personnel of the court-martial and the convening authority's 'legal officer." While the first exchange might he held sufficiently explained by the ruling favorable to the defense, we are left in the dark concerning whether advice was given by the "legal officer" to the president concerning the continuance almost immediately granted the trial counsel. More importantly, we are told nothing concerning the second conference which most assuredly resulted in a ruling unfavorable to the defense. For aught that the record shows, the "legal officer" may have acted as ex officio law officer to the court-martial and dictated both decisions by the president. Cf. United States v Guest, supra. Suffice it to say that, in the absence of some reliable showing in the record concerning what transpired in these closed conferences, we cannot hold that the prejudice presumed to arise from them has been dispelled. United States v Jakaitis, supra. Accordingly, we must reject the Government's contention and reverse the decision of the board of review.
Our action with regard to the participation by the "legal officer" in the closed conferences of the court-martial renders it unnecessary to reach the other peripheral issues on which we granted review, neither of which, by their nature, can be involved in any proceedings on rehearing.
The decision of the board of review is reversed and the record of trial is returned to The Judge Advocate General of the Navy. A rehearing may be ordered.
Counsel for the Government have informed us that the "legal officer" involved was not a lawyer but merely a squadron officer charged with staff duties in connection with military justice. While the interloper's legal qualifications are not shown in the record and, in any event, are immaterial in the disposition of this appeal, we believe much confusion might be avoided if the term "legal officer" were limited to those military personnel who are members of the bar as well as staff officers for military legal matters.