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MITCHELL DEFEATED TWICE IN EFFORTS TO HAVE HIS TRIAL DECLARED ILLEGAL

Attack on Procedure Fails When Court Rules President, as Commanding Officer, Could Order Action.

FIGHT ON JURISDICTION IS ALSO UNAVAILING

Counsel Then Opens Drive on Charges, Declaring Them Vague. Courtroom Spectators Break Into Excited Comment as Technicalities Are Put Up to Judges.

Charges of counsel for Col. William Mitchell that his court-martial was predicated on irregularly drawn charges growing out of an improper investigation were overruled late this afternoon by the high military court now trying the noted aviator for alleged violation of the Ninety-sixth Article of War.

The court's ruling was the second during the day decided against Col. Mitchell, the first being when the court overruled a contention by counsel for defense that it lacked jurisdiction.

Twice decisively defeated, counsel for the defense moved immediately that the prosecution be obliged to furnish immediately a bill of particulars, showing what each charge means. The court was told that the charges as they now stand "are too vague and indefinite to be understood." This the court agreed to do and adjourned until tomorrow.

The second point raised by defense counsel - that the rules of procedure prescribed by the manual governing court-martials were disregarded when Mitchell's commanding officer failed to make the investigation of his alleged misconduct - was thrown down when the court, after an executive conference, agreed that President Coolidge, as commander-in-chief of the Army and Navy, was Mitchell's commanding officer under court-martial law.

[[bold]]Law Officer Sustained.[[/bold]]

The action of the court sustained an opinion rendered by the trial law officer, Col. Winship, who announced that the President in directing the Secretary of War to investigate Col. Mitchell's famous San Antonio statements must be regarded as being the accused's commanding officer, and that, therefore, the investigation conducted by the Secretary of War was in accordance with general court-martial procedure.

"The President of the United States, as commander-in-chief of the Army and Navy," declared Col. Winship, "is the commander of every officer and soldier in both services, and if he sees fit to order an investigation of the conduct of any officer under him then the provision of the law outlined in the court-martial manual has been carried out."

[[bold]]Blow to Defense.[[/bold]]

Representative Reid forced the trial judge advocate, Col. Sherman Moreland, to admit that neither the commanding general of the 8th Corps Area nor of the district of Washington had ordered and investigation of the Mitchell statement.

"Procedure in courts-martial is a matter of regulation by the President, and he can change it whenever he sees fit, whether in a formal manner or not."

The decision of the court was taken as a blow to the defense, which had spent a good part of the second day of the trial attempting to prove that Col. Mitchell's conduct and statement had never been investigated in the specific manner prescribed under court-martial regulations.

Col. Moreland contended that it was not necessary for one of Mitchell's immediate commanders to initiate this investigation, and the action of the court in effect sustained his contention.

Representative Reid then noted in the record his opinion that the Secretary of War, in the light of the court ruling, becomes both the accuser and the prosecutor, which, he declared was not compatible with legal procedure.

[[bold]]No Testimony Today.[[/bold]]

Maj. Gen. Robert L. Howze, president of the court, offered no explanation for the ground on whit the court had overruled the plea to jurisdiction. I was pointed out, however, that the court feels there is definite authority for regulating the latitude of an army officer's actions. Col. Sherman Moreland, the trial judge advocate, declared that without it the army would soon become a mob.

Just how long it will be before the court begins to take testimony is a his counsel can say. In the time since this trial opened the defense has made some sudden and unexpected attacks.

No person can foretell how many more surprises Col. Mitchell and his lawyers have hidden up their sleeve. It is certain that no testimony will be reached today.

It was forecast today that while Col. Mitchell has failed to be sustained in his first skirmish, he has at least made it more likely that the court will permit him to submit direct testimony on the question of the veracity of his statements.

Time and again the question of the veracity of the statements Col. Mitchell made has been referred to and today the trial judge advocate himself dwelt upon that phase of the trial. One thing the defense has feared is that the court would hold the testimony strictly to the question of whether Col. Mitchell's statement's constituted insubordination.

The court opened seven minutes late, and the members filed into their places before the audience was aware of their entry, resulting in a mad scramble of spectators to their feet informal and due respect to the body. Col. Moreland, the trial judge advocate, reported the record of yesterday was not complete, and on hearing no objection, the president dispensed with the reading. Col. Moreland then arose to answer the pea of jurisdiction made yesterday afternoon by Representative Reid, chief civilian defense counsel.

"I want to expose," he began, "what I perceive to be one or two fundamental fallacies underlying the argument of counsel for defense. Inadvertently he overlooked that element which enters into the enlistment contract, that the statues of a man is changed from civilian to military status. That change carries with it very considerable circumstances.

"The Supreme Court of the United States in Robertson vs. Baldwin said that the contract of an ordinary seaman not in the naval or military service is an exceptional one and involving to a certain extent the surrender of personal liberty during the life of the contract. This is to insure the safety of the ship and to prevent desertion. If this same condition were not followed the Army of the United States would be left to rot on our own soil.

[[bold]]Quotes Various Precedents.[[/bold]]

"A soldier can't do anything he pleases without violating military law. I don't mean to say that he cannot exercise certain rights. But there is a condition laid down by military law and tradition. Failure to perceive this underlies the argument of the counsel for defense."

Col. Moreland quoted various precedents in civil law in support of his argument. He pointed out that there are exceptions to what appear to be constitutional provisions. For instance, he pointed out to counsel for defense that the constitutional guarantee of free speech would not permit a man to shout "Fire!" in a theater and cause a panic. The defense counsel's interpretation of the first amendment of the Constitution, he held, is inconsistent with article 1, section 14, which makes rules for the government and regulation of the Army and Navy.

The powers of the Army an Navy establishments are nullified, he declared , if the defense counsel's interpretation is correct. "Therefore," he concluded, "his defense must be rejected."

[[bold]]Says Argument Favors Mitchell.[[/bold]]

Col. Mitchell's counsel jumped up, and, marching to the court's table, declared:

"The distinguished trial judge advocate might talk forever and he couldn't make a better argument in our behalf than that just made. There was no question of discipline or insubordination. He didn't say any law had been violated, but he did mention tradition."

Talking up the Townsend case, which Col. Moreland had referred to, Representative Reid characterized it as a "malicious case." He explained it involved a newspaper editor who was a reserve officer on active duty. In this latter capacity he wrote several bitter articles against his commanding officer and placed them in his desk. Some one got into the desk and published them. The officer-editor, Mr. Reid continued, was tried by court-martial, but "it was held there was no proof he gave the papers to the press. The court further held he had a right to criticise as he saw things."

Mr. Reid told the court if some one would bring him a ruling parallel to the present case, he would admit the body had jurisdiction in the matter.

"Here there is no standard or test. If you can say there is a crime, a law and punishment, it exists only in the mind of the accuser. I could take each member of the court and find he had a different notion about these statements of Col. Mitchell. Are we getting back to the old Spartan system where, if they didn't like a man's looks, they would vote to banish him?"

[[bold]]Sees Blow at Truth-Telling.[[/bold]]

Continuing on the basis that there is no real precedent, no standard with which to measure the charges against Col. Mitchell, Mr. Reid declared: "This is about equivalent to attempting to lynch truth-telling. Every man who thinks or acts on this subject," the chief counsel for defense continued, "will inevitably get back to the same dominant question. He might travel north or south, but eventually he will be drawn back to the same polarization - were these statements of Col. Mitchell made in good faith by a man who honestly believes he was merely doing his duty toward his country. 

"There is not a person in this room, and I believe I could poll every member of this court with the same result, who believes Col. Mitchell would disobey the slightest command. No matter what the order, I am sure you matter what the order, I am sure you think he would obey it. There is no question of insubordination here. It is simply a question of a difference of opinion. Is there a man in this room who believes Col. Mitchell sought to attack, slander or libel any officer or that he attempted mutiny? I am sure you believe with me that there is none."

[[bold]]Submits Coolidge Speech.[[/bold]]

Col. Moreland, just before the court went into closed session to discuss the plea of jurisdiction, submitted for inclusion in the record a verbatim copy of President Coolidge's address at the Naval Academy, which the defense quoted yesterday to show that the President himself entertained no objection to officers of the Nation's armed forces offering criticism of conditions they believed to be derogatory to the interests of the country.

The court remained closeted for about 15 minutes, and upon returning, Col. Blanton Winship,the la member, asked the opinion of the counsel for the defense and the trial judge advocate as to whether or not the plea to jurisdiction was a question that should first be passed upon by the law member and then, if the decision were unsatisfactory, be considered by the court.

Being sustained in this view by counsel for both sides, Col. Winship then announced:

"That it is my opinion that the plea to jurisdiction should be overruled, and I so recommend."

Brig. Gen. Frank R. McCoy, a member of the court, then formally objected to the law member's decision, and Maj. Gen. Howze ordered the court closed again so that its entire membership might ballot on the plea. Such a procedure, it was pointed out, merely carried out the usual order of preceeding [[preceding]] at a general court-martial and should not be regarded as an indication of how any member of the court felt regarding the discussion.

On their return to the courtroom the president made this announcement:

"The court desires to announce that under the thirty-first article of war the opinion of the law member is made the ruling of the court and will stand as such."

Col. Winship then said: "As to the second specification under the ninety-sixth article of war charges, it is my opinion that the plea to jurisdiction be overruled and I so recommend."

Brig. Gen. Ewing E. booth arose and said: "I object to the opinion of the law member of the court." The court was then cleared and on its return after a moment's deliberation the president made the same announcement for the second specification as he did for the first. Col. Winship then recommended the plea to jurisdiction on the third specification be overruled and Brig. Gen. George LeR. Irwin objected.

The court was cleared, and the president again announced the opinion of the law member would stand, and when Col. Winship recommended the plea to jurisdiction on the fourth specification Brig. Gen. Edwin B. Winans objected.

The same procedure followed for the remaining four specifications. Each time the opinion of the law member was made the ruling of the court and would stand. The president, Brig. Gen. Edward L. King, objected to the fifth specification; Maj. Gen. Benjamin A. Poore objected to the sixth, gen. Booth to the seventh and Gen. Irwin to the eighth.

As the court filed in on the seventh specification, Col. Winship whispered to Col. Moreland: "That was the seventh, wasn't it?" and on being straightened out in the tangle by the trial judge advocate, the last one was taken up.

[[bold]]Holds no Specific Charges Made.[[/bold]]

After the plea to jurisdiction had been disposed of Col. Mitchell's counsel moved that the charges be stricken out on the ground that no specific charges were mentioned and that procedure as set down in the manual for courts-martial leading up to trial had not been followed. The defense maintained that there was no investigation either in Texas or in the district of Washington of Col. Mitchell's statements and there was no formal recommendation by his commanding officers that a court-martial be held.

"Where is this strange power coming from that reaches over the heads of commanding officers?" asked Representative Reid. "If that is permitted you are merely figureheads and are not in command of your areas. They can run your discipline as they please. According to military law these proceedings are irregular. Further, we are entitled to have specifications on what the prosecution claims is the offense."

[[bold]]Present Case Unusual.[[/bold]]

The trial judge advocate responded that the present case was very "unusual," and it was prepared with the view of allowing the court to decide the specific offense. He said the specifications were accompanied by the accused's own statement, and "if that is sufficient to sustain the allegations, that is all we intended to do. It is a matter for the court to take this article - the fairest thing in the world for the accused - and then determine if he violated the provisions of the ninety-sixth article of war."

The argument continued back and forth, each side reiterating its previous stand until the president of the court called a recess for luncheon until 2 o'clock.

[[bold]]Study Question of Procedure[[/bold]]

After luncheon the court had before it the all-important question, raised by the defense, as to whether the charges filed against Col. Mitchell had originated after a formal investigation as prescribed specifically in the manual governing court-martial procedure, and were forwarded through regular channels, as outlined therein.

Representative Reid contended that the exact procedure outlined by the President and approved by Congress had not been followed in the investigation which led to the filing of the eight specifications against the Air Service officer. He pointed out that the accused had been furnished with a statement explaining what investigation had been made and what the charges were. He emphasized, however, that nowhere in these papers was it stated that Mitchell had been investigated by order of his commanding officer or that the charges leveled against his client had been forwarded through the commanding officer as required by the manual.

Col. Moreland replied that there had been an investigation and that the commanding officer of Mitchell's jurisdiction had not been brought into the trial because this was a presidential court-martial. A commanding officer, he contended, if such procedure were followed, might prevent the President's orders from being directly executed. He asserted that Col. Mitchell had been haled before the court by perfectly legal processes.

Representative Reid then called upon col. Herbert White, Mitchell's military counsel, for a further explanation of the regulations affecting the drawing up of charges against and accused office. He read several passages from the official manual stating that there must be full preliminary investigation of the alleged offense and including examination of witnesses and calling of the defendant to testify in his own behalf, if he so desired, and that from this prove the formal charges, if any were warranted, must be preferred.

Representative Reid caustically criticized the formulation of the charges against Col. Mitchell and declared that apparently Judge Advocate Moreland believed this case to be outside of the regulation. He declared that Mitchell's commanding officer had played no part in the preparation of charge allegedly in disregard of those specific procedures demanded by the manual and sought to show that because of this so-called irregularity all of the charges should be thrown out.