I was able on one or two occasions to introduce doubt. For example, an investigator from the U.S. Army Criminal Investigation Division (CID) testified that traces of marijuana had been found in the breast pocket of the defendant's fatigue blouse, thus proving possession, in much the same way that traces of tobacco collected in the pockets of cigarette smokers. On cross-examination, I was able to force the investigator to admit that such traces might have occurred if the defendant's laundry had been used by Vietnamese civilians to smuggle marijuana on to the post to engage in illicit sales, thus raising a doubt that the evidence was conclusive. Unfortunately, for this defendant, another witness testified that he had seen the defendant throw away a butt as the witness approached. Suspecting that the defendant had been smoking marijuana, the witness retrieved the smoldering butt and turned it over to an investigator who testified, clearing establishing the chain of possession of the evidence to a criminal laboratory in Japan and back to the courtroom, proving conclusively that the defendant had been smoking marijuana.
All of my “clients” were caught red-handed and destined for some bad time at the LBJ (Long Binh Jail). [Note: Bad time meant that your enlistment in the Army and your one year tour of duty in Vietnam were extended for a period equaling the time you were incarcerated.] All of my clients complained that prohibitions on marijuana were unreasonable if not unconstitutional. They weren't happy when I informed them that they could appeal, but only after they had been convicted. Most “copped a plea.”
The most memorable case I handled actually made it to a battalion-level Special Courts Martial. Four young enlisted men had been caught using while sitting atop a bunker where they were plainly visible. Only three were seen smoking joints, which were collected by NCO's and sent by CID to Japan for analysis. The fourth was accused of being an accomplice. I felt I had a chance of getting him acquitted.
I cross-examined the senior NCO who had apprehended the men, questioning him as to why he thought the defendant was an accomplice. He testified that the young enlisted man knew that they were illegally using a controlled substance. How? I asked him. The NCO testified that he must have smelled it.
Ah, I thought I had my opening. How could he be sure the young man knew what marijuana smelled like? There was no evidence establishing that fact. The president of the court laughed, averring that everyone knew what it smelled like.
Now, I was a virgin at the time, at least, in the world of drugs. I didn't know what marijuana smelled like. Indeed, when the marijuana they had been smoking was entered in evidence, I asked to see it; it would have been a first for me. The president of the court then informed me that he knew because their battalion commander had held an officer's call at which they all smoked a “joint” so they would know what they were dealing with. The other officers sitting on the court martial board concurred.
That stopped me cold. I then asked the court, how could they sit in judgment of these defendants when they had admitted to being guilty of the same crime for which the defendants were charged? The officers defended themselves by saying that they were “only following orders.”
The court martial ended in chaos when I reminded them of the trials at Nuremberg where Nazis defended themselves unsuccessfully using the same excuse.
That evening, at the division officer's club, the Judge Advocate let me know that the battalion commander wanted me charged with insubordination. I countered with charges against him and all his officers. We negotiated a settlement over a rubber of bridge, and I was never again referred to defendants. It's just as well; I was the antithesis of Perry Mason. I never won one.
Other than that experience, I did not see much to complain about in the application of the Uniform Code of Military Justice (UCMJ). Article 32 investigations seemed to insure that charges were not filed without adequate cause. I could be wrong.
Article 15 of the UCMJ permitted commanders to apply limited punishment for minor infractions without the need for trial by courts martial, if the soldier consented to it. I'm certain that there were cases of abuse by commanders, but none ever came to my attention, nor would anyone ever learn of such abuses at a division headquarters if the soldiers did not appeal.