Monday, November 23, 2020

United States v. Blankenship -- a historical note

What do lawyer Melvin Zurier and Paul Blankenship have in common? Well, it is
United States v. Blankenship, 20 C.M.R. 881 (A.F.B.R. 1955) (1955 CMR LEXIS 243), rev’d 7 C.M.A. 328 (C.M.A. 1956).

The Providence Journal tells us that,

He was just 25 and three years out of law school when Melvin Zurier was handed a landmark case.   


Sixty-four years have elapsed and he has participated in hundreds of cases since that time, but the remarkable details about the United States vs. Paul H. Blankenship remain clear in his mind.

Blankenship had been prosecuted and convicted at court-martial for premeditated murder and had been sentenced to life imprisonment. The Air Force Board of Review (precursor to the current Air Force Court of Criminal Appeals) affirmed the findings and sentence. The Board addressed two significant issues: the extent to which a psychiatrist could be questioned about the accused’s mental state and statements made to the psychiatrist by the accused which were admissions.

One of the issues became Blankenship’s mental state at the time of the alleged events. During a psychiatrist’s testimony one of the members had a few questions for the witness. The evidence finished and arguments heard, the Law Officer (an old term for now the military judge) instructed the Members and sent them to deliberate. About three hours later the Members returned and the same member asked for the psychiatrist’s testimony to be reread (a process allowed even today) and the witness was recalled (again a process allowed even today). But here is where matters got out of hand. The Member engaged in a lengthy “examination” of the witness as did some of the other members. In the process, 

A defense objection to testimony as to the accused's statements to Dr. Green was overruled.  Defense counsel then examined Dr. Green on his opinion as to the accused's ability to adhere to the right.  The doctor stated that on the basis of his examination, which included the statements made to him by the accused, he believed that, while the accused was not in complete control of his mental faculties when he committed the acts charged, he could still entertain a specific intent and premeditate.


7 C.M.A. at 333. The Board affirmed the findings and sentence, so an appeal was taken to the Court of Military Appeals (C.M.A.) (which we now call the Court of Appeals for the Armed Forces), upon review, C.M.A. addressed,

The first question for our consideration is whether Colonel T's conduct and statements deprived the accused of a fair trial. In military law, a court member has a right to question a witness.  United States v Sears, 6 USCMA 661, 20 CMR 377; United States v Smith, 6 USCMA 521, 20 CMR 237. He can also request that a witness' testimony be reread, or that the witness himself be recalled and reexamined. United States v. Parker, 7 USCMA 182, 21 CMR 308. In the latter instance, the request can be made even after the court has for a time deliberated upon the findings. United States v Parker, supra. When exercising these rights, however, a court member cannot become an advocate or a partisan for either side.  If he does, he is "no longer competent to serve." United States v. Sears, supra, page 665. Here, Colonel T. questioned every person who Appeared as a witness.  Some of his questions were pertinent; others were either frivolous or evinced a misunderstanding of the requirements of relevancy. However, the number and the general relevancy of Colonel T.'s questions need not give us pause.  The crux of our problem is whether he judged the accused according to the evidence and without bias or prejudice. 

          Ultimately the C.M.A. concluded Col T’s actions cast substantial doubt on the fairness of the trial and set-aside the findings and sentence, with permission to conduct a new trial if appropriate. 

          Back to Lieutenant Zurier who was appointed for the retrial. “He was just 25 and three years out of law school when Melvin Zurier was handed [this] landmark case. His, 

top priority was to interview witnesses to the murder in Japan. Since two years had elapsed, they were now living in places scattered around the globe. Some were still in the military and others were now civilians, including the doctor who had first interviewed and photographed the defendant as he was taken into custody.


Zurier announced his intentions to start from scratch, interview them all, and “try the case from the very beginning."


By the time the case went to trial, Blankenship was so loyal to his legal counsel that Zurier remembers having to restrain his client in court when the prosecutor began verbally attacking Zurier, saying, “My opponent doesn’t know this and he doesn’t know that.” Blankenship “began to get up and go after” the prosecutor.


          That get up and go of course is not a reaction any defense counsel prefers from the client at trial. Over two weeks Zurier called “scores of witnesses” and several experts.


“We had several psychiatrists, all hired by the Air Force," Zurier says. "One of them had said that he [Blankenship] was not capable of forming an opinion to kill him because of toxic psychosis. Others said that he was swinging in self-defense. 

          Zurier observed that Blankenship as a civilian could not have afforded the costs of the Air Force paid defense and would likely have been convicted and remained in jail. 

Blankenship was found not guilty on retrial. 

          Zurier left active duty in 1957 and was in active legal practice until this year. He called the case “the most meaningful” of his career, but it was his last criminal case in the career that followed.

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