COURT OF CRIMINAL APPEALS ------------------------------------------------------------x

THE ROYAL NAVY, Appellee, - against WILLIAM BUDD Defendant-Appellant. ----------------------------------------------------------x

: : : : : : : : : : : : : : : : :

BRIEF OF APPELLEE

THE ROYAL NAVY

Jeremy G. Epstein Vikram Sidhu

Attorneys for The Royal Navy Shearman & Sterling LLP

599 Lexington Avenue New York, NY 10022-6069

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TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................1

I. Background: The Nore and Spithead Mutinies....................................................... 1

II. Budd’s Crime .......................................................................................................... 2

III. The Trial.................................................................................................................. 4

STATUTORY BACKGROUND.....................................................................................................5

STANDARD OF REVIEW .............................................................................................................7

ARGUMENT...................................................................................................................................7

I. BUDD WAS PROPERLY CONVICTED OF VIOLATING SECTION II (¶ 22) OF THE ARTICLES OF WAR........................................................................ 7

II. A DEATH SENTENCE IS MANDATORY UPON CONVICTION OF THE CRIME OF STRIKING A SUPERIOR OFFICER. ............................................. 10

III. THE TRIAL WAS PROPERLY CONDUCTED AND ANY PROCEDURAL ERRORS WERE HARMLESS. ........................................................................... 13

A. The Drumhead Court Martial Was Properly Convened ........................... 13

B. Vere Did Not Assume Multiple Roles At The Trial ................................. 15

C. Any Other Procedural Deviations Are Harmless...................................... 18

D. This Court’s Power of De Novo Review Extinguishes any Asserted Error in the Nature and Composition of the Tribunal............................... 19

CONCLUSION..............................................................................................................................19

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TABLE OF AUTHORITIES

CASES

Page(s)

Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967) ...............................................18

Delaware v. Van Arsdell, 475 U.S. 673, 106 S. Ct. 1431 (1986) ......................................18

Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633 (2004) ..............................................17

United States v. Cole, 31 M.J. 270 (C.M.A. 1990)..............................................................7

United States v. Diggs, 52 M.J. 251 (C.M.A. 2000)..........................................................10

United States v. Gordon, 2 C.M.R. 161 (C.M.A. 1952) ....................................................16

United States v. Richardson, 7 M.J. 320 (C.M.A. 1979) ...................................................10

United States v. Struckman, 43 C.M.R. 333 (C.M.A. 1971) .............................................10

Zervos v. Verizon New York, 252 F.3d 163 (2d Cir. 2001)..............................................19

STATUTES

10 U.S.C. § 801............................................................................................................16, 17 10 U.S.C. § 822..................................................................................................................17

10 U.S.C. § 866 ...................................................................................................................7

OTHER AUTHORITIES

Asa Briggs, England in the Age of Improvement, 1783 - 1867 (London: 1959) ................2 Arthur Herman, To Rule the Waves: How the British Navy Shaped the Modern

World (New York: 2004)...............................................................................................1

Thomas Simmons, The Constitution and Practice of Courts Martial (7th ed. 1875).........15

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PRELIMINARY STATEMENT

This brief is respectfully submitted by the Royal Navy in support of the

affirmance of the conviction and capital sentence imposed on William Budd (“Budd”), a seaman

aboard the H.M.S. Bellipotent, a man-of-war.

Budd stands convicted of one of the most serious offenses identified in the

Articles of War: striking a superior officer. Although Budd’s brief (hereinafter “Br.”) disputes

many of the facts and circumstances leading up to the act for which Budd stands convicted, there

can be no dispute as to the act itself. Striking a superior officer is a capital offence, and the

Articles of War permit no sentence other than death. The court that imposed sentence on Budd

was properly convened, and its sentence should stand.

STATEMENT OF FACTS

I. Background: The Nore and Spithead Mutinies

The events at issue took place in the summer of 1797. England had been at war

with France since February, 17931. Earlier in 1797, there had been two serious mutinies in the

British fleet. They are described in the record below as follows: “In the April of that year [1797]

had occurred the commotion at Spithead followed in May by a second and yet more serious

outbreak in the fleet at the Nore. The latter is known, and without exaggeration in the epithet, as

the Great Mutiny. It was indeed a demonstration more menacing to England than the

1 Arthur Herman, To Rule the Waves: How the British Navy Shaped the Modern World (New York: 2004),

(hereafter cited as “Herman”) at pp. 331-32

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contemporary manifestoes and conquering and proselytizing armies of the French Directory.”

(R54)2

The second and more serious of the two mutinies took place at the Nore, situated

in the Thames estuary. It was an assembly point for Royal Navy ships used to patrol the North

Sea and to blockade the Dutch coast. After one ship, the Sandwich, had mutinied, most of the

ships in a fleet sent to blockade the Dutch fleet hoisted red flags and returned to shore. English

troops were required to subdue the sailors, and the leader of the mutiny did not surrender until

June 13, 1797. Four hundred sailors were arrested, of whom twenty-nine were hanged.3

A historian notes that “there were serious naval mutinies at the Nore and at

Spithead in 1797 which seemed to expose the nation to danger at home. It needed the victory

over the Dutch at Camperdown in October 1797 to relieve anxieties about the morale of the

sailors.”4 The commanding officers of ships in the British fleet were understandably concerned

not only about unrest among their crews, but about circumstances that would give rise to further

unrest, and possible disorder.

II. Budd’s Crime

Budd was a seaman on the English merchant ship Rights of Man in the summer of

1797. At that time, because of a shortage of men on the Bellipotent, Budd was impressed into

service on the man-of-war. He served as a foretopman. Not long before the incident here at

issue, Budd was approached one evening by another member of the crew. That seaman, who 2 For the convenience of the court, the Royal Navy uses the same record citations as does the appellant. Reference

to the record is to Herman Melville, Billy Budd, Sailor, edited and annotated by Harrison Hayford and Merton M. Sealts, Jr., University of Chicago Press 1962. Pages of the record are identified as R ____.

3 Herman, supra, at p. 351.

4 Asa Briggs, England in the Age of Improvement, 1783 – 1867 (London: 1959) (Folio Society ed., 1997) p. 128.

3

remains unidentified, told Budd that he too was impressed and that there was a “gang” of

impressed men that sought Budd’s help. Although Budd rejected the seaman’s overtures, he

never reported the incident to a superior. (R81-83)

Not long after this encounter, the Bellipotent was performing a special mission

which required that it be detached from other ships in the Mediterranean fleet. When it was

“almost at her furthest remove from the fleet,” it encountered an enemy frigate which it pursued

unsuccessfully. (R90-91)

Shortly after that pursuit ended, the ship’s captain, Edward Fairfax Vere, was

approached by the master-at-arms, James Claggart. Claggart, alluding to the recent incidents at

the Nore and Spithead, told Vere that Budd was a “dangerous character” who was fomenting

discontent among his fellow seamen. Vere, who recognized Budd and doubted the accusation,

reminded Claggart that “in a case like this, there is a yardarm-end for the false witness.” (R91-

95)

Vere concluded that the most expeditious way of resolving these accusations

would be to allow Budd to answer them directly. Budd was thereafter summoned to Vere’s

cabin. Upon Budd’s arrival, Vere asked Claggart to repeat his statements in Budd’s presence.

Claggart did so. (R96-98)

When Claggart finished, Vere asked Budd to respond. Budd attempted to do so,

but was prevented by a congenital speech impediment. Vere, sensing Budd’s difficulty, put a

hand on his shoulder and told him to take his time. Budd remained unable to speak. The record

then discloses: “the next instant, quick as the flame from a discharged cannon at night, his right

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arm shot out, and Claggart dropped to the deck.” The blow was fatal, and the ship’s surgeon,

summoned immediately to examine Claggart, confirmed that he was dead. (R98-100)

This was not the first time that Budd had impetuously struck a fellow seaman. On

the day he was impressed into service on the Bellipotent, the captain of the Rights of Man, where

Budd had previously served, informed a lieutenant of the Bellipotent of an encounter between

Budd and a fellow seaman. That seaman, known as “Red Whiskers” had been consistently

tormenting Budd, and finally hit him in the ribs. “Quick as lightning, Billy let fly his arm. I

daresay he never meant to do quite as much as he did, but anyhow he gave the burly fool a

terrible drubbing.” (R47) That blow, the captain reported, caused Budd's tormentor to befriend

him. Claggart was not so fortunate.

III. The Trial

Vere immediately convened a drumhead court martial. He believed that time was

of the essence, “feeling that unless quick action was taken on it, the deed of the foretopman, so

soon as it should be known on the gun decks, would tend to awaken any slumbering embers of

the Nore among the crew.” (R104) The court consisted of the first lieutenant, the captain of

marines and the sailing master.

The court was convened in Vere’s cabin. Vere gave testimony, describing both

Claggart’s accusations and Budd’s blow in response. (R105) When asked to respond, Budd

conceded the accuracy of Vere’s account. He stated: “Captain Vere tells the truth. It is just as

Captain Vere says, but it is not as the master-at-arms said. I have eaten the King’s bread and I

am true to the King.” (R106)

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Budd proceeded to elaborate upon that testimony. Although he disclaimed any

intent to kill Claggart, he readily admitted that he had deliberately struck him:

I never bore malice against the master-at-arms. I am sorry that he is dead. I did not mean to kill him. Could I have used my tongue, I would not have struck him. But he foully lied to my face in the presence of my captain, and I had to say something, and I could only say it with a blow, God help me. (R106) After due deliberation, the court found Budd guilty of violating the Articles of

War and sentenced him to be hung at the yardarm in the morning. That sentence has been stayed

pending this appeal.

STATUTORY BACKGROUND

This case is governed by English law, and the particular laws in question are the

Articles of War, 22 Geo. II, c.33 (1749).5 The purpose of the Articles of War was to govern

conduct, and to maintain order and discipline among the vessels of the Royal Navy. The Navy’s

importance to the security of England is made plain in the preamble to Section II: “And for the

regulating and better government of his Majesty’s navies, ships of war, and forces by sea,

whereon, under the good providence of God, the wealth, safety, and strength of this kingdom

chiefly depend….” The Royal Navy was not only England’s first line of defense; it was the

instrument by which English power was exercised throughout the world. As such, the

maintenance of order and discipline in the Navy was of paramount importance, and the Articles

of War reflects the Parliamentary judgment that such order commanded a high priority.

5 For the court’s convenience, a copy of the Articles of War is appended as Exhibit A.

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Section II of the Articles sets forth no fewer than 36 penal statutes; 20 of these

describe crimes that carry the death penalty. The death penalty is prescribed for all of the

following offenses: exchanging intelligence with the enemy (¶ 3); not acquainting a superior

officer with an enemy message (¶ 4); spying (¶ 5); supplying the enemy with money, arms, or

ammunition (¶ 6); refusing to fight or cowardly surrender in battle (¶ 10); disobeying orders in

battle (¶ 11); failure to come to the fight or relieve one’s allies in battle (¶ 12); failing to pursue

the enemy in flight (¶ 13); failure to obey commands on pretense of unpaid wages (¶14);

desertion (¶ 15); failure to defend ships under convoy (¶ 17); mutinous assembly (¶ 19);

concealing mutinous practices or mutinous talk (¶ 20); striking a superior officer (¶ 22); setting

fire to any magazine or vessel (¶ 25); careless steering resulting in the stranding of ships (¶ 26);

sleeping upon the watch (¶ 27); murder (¶ 28); buggery or sodomy with man or beast (¶ 29);

robbery (¶ 30).

Although all of the above crimes carry capital sentences, for some of these crimes

the death penalty is discretionary. For such crimes, the relevant statute provides that the offender

“shall suffer death, or such other punishment, as from the nature and degree of the offense a

court martial shall deem him to deserve” (see, e.g., ¶ 11). For other crimes, the death penalty is

mandatory, and the relevant statute provides only that the offender “shall suffer death” (see, e.g.,

¶ 10). The crimes for which death is mandatory are the following: exchanging intelligence with

the enemy (¶ 3); failure to fight or cowardly surrender (¶ 10); cowardice in battle (¶ 12); failure

to pursue the enemy in flight (¶ 13); desertion (¶ 15); mutinous assembly (¶ 19); striking a

superior office (¶ 22); setting fire to a magazine or vessel (¶ 25); murder (¶ 28); buggery (¶ 29).

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The statute of which Budd stands convicted is Section II (¶ 22), which provides, in pertinent part: “If any officer, mariner, soldier, or other person in the fleet, shall strike any of his superior officers, or draw, or offer to draw or lift up any weapon against him, being in the execution of his office, on any pretence whatsoever, every such person being convicted of any such offense, by the sentence of a court martial, shall suffer death…” Although Budd might also have been prosecuted under the murder statute (¶ 28),

his crime was complete upon his striking Claggart; that the blow was fatal is not an element of

the offense. Further, it is clearly the intent of ¶ 22 to penalize, and thus subject to a mandatory

death sentence, any act of physical defiance against a superior officer. This act of defiance need

not even be consummated by a blow, as Budd’s was. It is a capital offense, under the Articles of

War simply, to “draw, or offer to draw or lift up any weapon….” The severity of the statute

reflects the Parliamentary judgment as to the gravity of the offense.

STANDARD OF REVIEW

The Royal Navy agrees with Budd (Br. 7) that review in this court is de novo.

See 10 U.S.C. § 866(c); United States v. Cole, 31 M. J. 270, 272 (C.M.A. 1990).

ARGUMENT

POINT I

BUDD WAS PROPERLY CONVICTED OF VIOLATING SECTION II (¶ 22) OF THE ARTICLES OF WAR.

Budd is unquestionably guilty of violating Section II (¶ 22) of the Articles of War.

He struck John Claggart, a superior officer, and readily admitted doing so at the trial. (R106).

The brief he filed in this court makes a similar admission: “there is no question that Billy struck

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the blow that killed Claggart.” (Br. 18) Hence the verdict reached by the court below was not

only the correct result; it was the only possible result.

Budd was prosecuted under Section II (¶ 22), which penalizes the mere act of

striking, rather than Section II (¶ 28), which proscribes murder. Hence the question of whether

Budd possessed an intent to kill Claggart (which he denies) is irrelevant in this proceeding.

Section II (¶ 22) is a strict liability statute; it has no mens rea requirement. Certain statutes

proscribe only acts that are done “knowingly”; see, for example, Section II (¶ 31), which makes

criminal the act of “knowingly” signing a false muster-book. “Knowingly” does not appear in

Section II (¶ 22).

Even if there were a willfulness requirement in this statute, Budd satisfied that

requirement by his own testimony. He readily admitted that because he could not speak, he

struck: “but he [Claggart] foully lied to my face in the presence of my captain, and I had to say

something, and I could only say it with a blow, God help me!” (R106)

The claims of innocence offered in Budd’s brief are halfhearted and

unconvincing. He goes to great lengths to demonstrate that he was innocent of the charge of

mutiny made against him by Claggart. There is absolutely no question that Captain Vere, when

he first heard the accusation, disbelieved Claggart and convened an immediate proceeding for the

express purpose of permitting Budd to deny the charges. Budd is not on trial for fomenting

mutiny, and the elaborate demonstrations both of his innocence and of his otherwise blameless

character are quite beside the point. It is worth noting, however, that Budd never reported his

conversation with the anonymous seaman who approached him, and his failure to make such

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report may well constitute a violation of Section II (¶ 20) which requires a seaman to “forthwith

reveal…to the commanding officer” any traitorous or mutinous words, practices, or designs.

Budd also argues that because Claggart’s accusations were false, Claggart was not

acting “in the execution of his office,” and that Budd is thus innocent of the charge. (Br. 20-21)

The argument is simply wrong; there can be no question that Claggart was discharging his office.

Claggart’s core function was that of a policeman. As the record recites: “the master-at-arms of a

great war ship [had become] a sort of chief of police charged among other matters with the duty

of preserving order on the populous lower gun decks.” (R64) As such, it was his responsibility

to ferret out mutiny and to report any possible unrest to the captain. This duty was particularly

weighty in light of the recent incidents at the Nore and Spithead, as Claggart reminded Vere

when he first approached him with this accusation. (R92-93) Reporting incidents of unrest to the

captain was among Claggart’s most important responsibilities, and he was in the act of giving

evidence when struck by Budd. Certain forms of violence against a superior may fall outside the

statute. If, for example, Budd and Claggart had found themselves drinking in a public house on

shore, and Budd had struck Claggart in the course of a quarrel, that act would not be covered.

The situation before this court is quite different.

The defense’s argument that this act falls outside the statute amounts to a claim

that if a naval officer performs his duties inadequately or even dishonestly, he is not acting in an

official capacity. Not only is there no precedent for this claim, it makes no sense. If the captain

runs the ship aground through poor seamanship, or, through cowardice, avoids confrontation

with the enemy, he is nevertheless acting in his capacity as captain, and no one would claim

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otherwise. The same principle applies to Claggart. Although he may well have acted out of the

basest of motives, he was acting in his official capacity.6

Budd is wrong to argue (Br. 21-22) that had the trial been conducted differently,

“he could have been acquitted.” There is no set of circumstances, and no provable facts, that

could have resulted in Budd’s acquittal.

POINT II

A DEATH SENTENCE IS MANDATORY UPON CONVICTION OF THE CRIME OF STRIKING A SUPERIOR OFFICER.

If, as we believe is clear, Budd was properly convicted of violating Section II (¶

22) of the Articles of War, he must be put to death. The court below had no choice. The intent

of Parliament in enacting the Articles of War was unmistakable. The death penalty is provided

for 20 different offenses. Death is even prescribed (although not mandatorily) for the crime of

sleeping upon a watch. (Section II (¶ 27)) The severity of this scheme is precisely what

Parliament intended; it is not subject to review by this court. Although certain statutes make the

death penalty discretionary, the statute under which Budd was convicted does not.

There is a reason for this distinction, and it is neither arbitrary nor capricious.

Parliament obviously concluded that certain crimes were so serious, and so subversive of naval

discipline, that there was only one appropriate sentence. The record below notes that the crime

of which Budd stands convicted “navally regarded, constituted the most heinous of military 6 The “divestment” cases on which Budd relies are distinguishable (Br. 21). In the two cases in which the court

found divestment, the officers in question either fought with or provoked a fight with inferiors. United States v. Struckman, 43 C.M.R. 333 (C.M.A. 1971); United States v. Diggs, 52 M. J. 251 (C.M.A. 2000). In Diggs, a court found that an officer had temporarily divested himself of his rank when he struck another officer whom he discovered naked with his wife. In contract, United States v. Richardson, 7 M.J. 320 (C.M.A. 1979), the court noted, as Budd concedes, that words alone – no matter how offensive – are insufficient to justify a finding of divestment. Claggart was testifying when Budd struck him.

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crimes.” (R103). Moreover, this statute is placed in the Articles at the culmination of a sequence

of statutes (see Sections II (¶¶ 19, 20)) which address the issue of mutiny. This sequence is at

the core of the Articles; if order cannot be maintained on a ship, all other regulations are

irrelevant. As the preamble to the Articles appropriately notes, the Royal Navy was

indispensable to the defense of England, an island country with a small standing army.

Parliament had every right to treat breaches of discipline (of which striking a superior officer

was the “most heinous”) with the utmost severity. This court cannot revisit Parliament’s

determination.

At the time of the events in question, the death penalty was routinely imposed,

particularly for acts of insubordination. After the Nore mutiny, 29 men were hanged. 7

Moreover, the mandatory character of the penalties prescribed in the Articles of War often led to

harsh results. For example, in 1756, John Byng, an English admiral, had been ordered to take a

detachment of ships to re-enforce Gibraltar. He encountered a French fleet off Minorca but

refused to fight. Upon his return to England, he was convicted by a court martial of avoiding

battle and was sentenced to death pursuant to the Articles of War. He was executed by a firing

squad notwithstanding public pleas that he be pardoned from Horace Walpole, Samuel Johnson,

and Voltaire. 8 There is nothing unusual or out of the ordinary about the sentence of death

imposed upon Budd in this case.

Even if the court below had the discretion to order a punishment other than death,

which it did not, this case is a poor candidate for leniency. The killing of Claggart occurred

within weeks of the Nore and Spithead mutinies. The Nore mutiny was not resolved until June 7 Herman, supra at p. 351

8 Herman, supra at pp. 278-280.

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13, 1797, and this incident occurred in the summer, only weeks after. Budd’s act of striking

Claggart, however specific its intent, might well be seen by unknowing members of the crew as

an act of insubordination fully as flagrant as anything that happened at the Nore or Spithead.

Leniency in the face of this “most heinous of military crimes” could well have been

misinterpreted, and a court acting under such circumstances had every right to conclude that

departure from the statutory mandate was unwarranted. Moreover, Budd’s action took place

virtually in the heat of battle. On the very day of the incident, the Bellipotent had given chase to

an enemy frigate. Captain Vere correctly noted that even as the court deliberated, “the enemy

may be sighted and an engagement result.” (R112) He was prescient. Not long after this

incident, and before the Bellipotent would rejoin the fleet from which it had been detached, it

engaged another enemy ship in a battle in which Vere lost his life. (R128-29). A drumhead

court convened to address a very serious breach of discipline in the interval between enemy

encounters could readily conclude that the punishment prescribed by statute (which was indeed

the only applicable punishment) should be administered.

This argument applies even if Claggart was a false witness. It would be no easy

matter to explain the falsity of Claggart’s charges to the crew, and, as we have already argued,

the falsity of those charges does not in the least excuse Budd’s action. Claggart was not simply a

superior officer; he was, in effect, the “chief of police” (R64), and violence against him would

readily be taken by the crew as a critical blow against the ship’s authority. The consequences of

the erosion of naval discipline were available for all to see. In 1793, Admiral Sir Samuel Hood,

commander in chief of the Mediterranean squadron, had sought to engage the French fleet off

Toulon, the home of the French navy’s Mediterranean fleet. One historian recounts the

following incident: “not surprisingly, discipline collapsed on French ships and insubordination

13

became common. When one admiral ordered his ship to engage Hood’s squadron as they first

came into the Bay of Biscay, his crew simply shot him and returned to port.” 9 Even if the

court’s imposition of death was discretionary (which it was not), such a sentence would have

been an entirely appropriate exercise of discretion.

POINT III

THE TRIAL WAS PROPERLY CONDUCTED AND ANY PROCEDURAL ERRORS WERE HARMLESS.

Budd claims that the conviction and sentence should be set aside because a

number of procedural errors were committed below. (Br. 8-18) Both the composition and the

practices of the drumhead court martial were in substantial compliance with the Articles of War.

Even more fundamentally, all of Budd’s procedural claims are answered by the well established

doctrine of harmless error. Budd’s guilt was beyond dispute; he confessed at trial. Any court,

whether convened immediately or a year later, whether composed of admirals or lieutenants,

would have found him guilty. Any such court would have heard the same evidence that the

drumhead court did and would have reached the same result.

A. The Drumhead Court Martial Was Properly Convened

Budd first claims that no trial should have been held at all: he argues that Captain

Vere should have held him “until the Bellipotent could rejoin the fleet and could turn him over to

the Admiral for the proceedings called for by the Articles.” (Br. 8). This argument is flatly

incorrect. In fact, precisely because the Bellipotent was detached from the fleet, Captain Vere

was authorized to convene a court martial; all he was arguably prevented from doing under the

9 Herman, supra, p. 333.

14

Articles was imposing sentence, and that error (if any) has been cured by the pending stay of

execution.

Although the Articles contemplate that under normal circumstances, a court

martial consists of officers from a variety of ships of the fleet, the rules are different when a ship

is detached from the fleet. Under Section VIII, if a ship is detached, the commander in chief of

that fleet is “authorized and required” to empower the chief commander of the detachment to

“hold courts martial, during the time of such separate service, or until the commander of the said

detachment for the time being shall return to his commander in chief or shall come under the

command of any other of his superior officers….” So far as the record indicates, the detachment

from the fleet consisted exclusively of the Bellipotent. As a consequence, Captain Vere was the

“chief commander of the detachment” and thus authorized to hold courts martial.

The rule that empowered Vere to act is both practical and logical. Although it is

preferable that the fleet act collectively, the Articles contemplate circumstances under which a

captain must act alone. Article VIII gives captains the flexibility to act when their ships are

detached, and does not require that serious crimes go untried and unpunished until a ship rejoins

the fleet. The only check on this procedure is the provision that a death sentence not be

immediately imposed but be stayed until a report can be made to the Lord High Admiral or the

commander in chief of the fleet (Section XIX). Even this section specifically exempts “cases of

mutiny” from any stay of execution. Because the striking of a superior officer is beyond

15

question a mutinous act, Vere would have been justified in ordering immediate execution.10 In

any event, the propriety of an immediate execution is rendered moot by the pending stay.

B. Vere Did Not Assume Multiple Roles At The Trial

Budd claims (Br. 8-9) that Vere improperly assumed the roles of judge,

prosecutor, and witness. That claim is unsupported by the record. Although the trial did not

have the formality of a proceeding at the Old Bailey, Vere did not exceed his authority.

Vere properly appeared as a witness. Other than Budd, he was the only witness

competent to testify to the striking of Claggart. He did not act as a judge. Although during his

testimony he referred to himself as a “coadjutor” (R110), this was a rhetorical device.11 The

tribunal consisted of three judges, and only three judges deliberated and voted. The ultimate

decision was theirs, not Vere’s.

It is also incorrect to describe Vere as a prosecutor. Vere was present exclusively

as a witness, and the evidence he presented was of three varieties. First, he was a fact witness;

he described the crime itself. Second, he occasionally served as an expert witness on matters

pertaining to the Articles of War. When the sailing master inquired about the possibility of

mitigation (R112), Vere correctly informed him that no leniency was permissible under the

relevant provisions of the Articles.12 Third, Vere testified in his capacity as ship’s captain in

alerting the tribunal to the likely consequences of its decision. Although the defense may claim

10 There is authority for the proposition that striking a superior officer in wartime was mutiny per se. See Thomas

Simmons, The Constitution and Practice of Courts Martial (7th ed. 1875), p. 79.

11 All Vere said was that he was adopting the “tone” of a coadjutor, not the actual function (R110).

12 Budd is therefore wrong to argue that the court “absent Vere’s domination and control, would not have imposed a capital sentence.” (Br. 24) As we have demonstrated in Point II, supra, death was the only permissible sentence under the Articles; Vere’s testimony merely prevented the court from acting in violation of the Articles.

16

that this amounted to a prosecutor’s advocacy, the captain, as the officer ultimately responsible

for the safety of the ship, was entitled to offer his opinion as to how the crew might react:

“No, to the people the foretopman’s deed however it be worded in the announcement, will be plain homicide committed in a flagrant of mutiny. What penalty for that should follow, they know. But it does not follow. Why? They will ruminate. You know what sailors are. Will they not revert to the recent outbreak at the Nore? Ay. They know the well-founded alarm – the panic it struck throughout England. Your clement sentence they would account pusillanimous.” (R112-113)

No other officer possessed Vere’s perspective, and he was entitled to offer that perspective to the

tribunal.

Nor is there any merit to the argument that Vere should not have appointed

inferior officers to the tribunal. Assuming that Vere was authorized to convene a court martial

(as he clearly was under Section VIII), who could he appoint but inferior officers? Vere was the

highest ranking officer on the ship, and everyone else was necessarily inferior to him.

Furthermore, the Articles explicitly contemplate circumstances under which, even when a court

martial is convened among the fleet, an insufficient number of senior officers are unavailable and

inferiors must be chosen. When an insufficient number of post captains is unavailable, the

Articles permit the appointment of “as many of the commanders of his Majesty’s vessels, under

the rank and degree of a post captain….” as is necessary to fill out a court. Parliament was not

troubled by the presence of inferior officers in a tribunal, and it should not trouble this court.

Budd argues at length (Br. 10-13) that Vere was disqualified from convening the

court martial because he was an accuser. He relies on United States v. Gordon, 2 C.M.R. 161

(C.M.A. 1952) and the relevant provisions of the Code of Military Justice, 10 U.S.C. §§ 801(a)

17

and 822 (b). Gordon was a very different case. There a commanding officer issued an order

convening a court martial of a soldier who was accused, inter alia, of burglarizing the

commanding officer’s home. After the soldier’s trial, the same commanding officer reviewed

the soldier’s sentence. The appellate court held that the soldier’s rights had been violated

because the commanding officer was the soldier’s “accuser.” The present statute, 10 U.S.C., §

801(a) defines accuser as “any other person who has an interest other than an official interest in

the prosecution of the accused.”

This case is quite different. Vere was not Budd’s victim. He preferred charges

solely in his official capacity: as captain of this ship and as such the officer charged with

maintaining order. None of Vere’s actions can fairly be interpreted as the product of personal

animus against Budd; to the contrary, his misgivings were manifest. Vere’s interest in seeing

that Budd was prosecuted was institutional, not personal. He is not therefore disqualified as an

“accuser.”

Budd cites Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633 (2004) for the

proposition that a state of war cannot justify the abridgement of constitutional rights. (Br. 15-17)

Hamdi has no bearing here. In that case, there was little legislative guidance addressing the

problem of American citizens detained as enemy combatants, and the Supreme Court was

required to determine the scope of such a combatant’s rights under the United States

Constitution. Here, the Articles of War speak directly to Budd’s situation. Further, unlike

Hamdi, Budd has no rights under the United States Constitution. Budd’s rights are conferred by

the Articles of War, an instrument (unlike the Constitution) expressly designed to address

wartime conditions. Budd received all of the process due him under the Articles, and the

Articles carefully define both his crime and his punishment.

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While discussing Hamdi, Budd quite wrongly ascribes his conviction and

sentence to “Vere’s individual decision drastically to diminish the rights of an accused.” (Br. 15)

Budd’s rights were abridged not by Vere but by the Articles of War, an Act of Parliament. The

Articles unquestionably subordinate certain individual rights to the greater interests of military

security and efficiency. During a war, the rules are different. If a member of this court falls

asleep reading this brief, he or she is not thereby exposed to the risk of execution. A sailor who

falls asleep at his watch is. Section II (¶ 27). Budd’s situation is made more poignant because he

was impressed, but the law makes no distinction.

C. Any Other Procedural Deviations Are Harmless

Budd has three other claims of procedural error: (a) the tribunal should have been

five, not three officers; (b) the hearing should have been public; (c) the tribunal was unsworn.

(Br. 13-14). The latter two are probably not errors at all. The Articles nowhere require a public

hearing, and it was surely within the court’s discretion to convene in private. The record is silent

on whether the oath was administered; it does not affirmatively suggest that the oath was

avoided.

All of these arguments present classic examples of harmless error. An error is

harmless if, beyond a reasonable doubt, it “did not contribute to the verdict obtained.” Chapman

v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967), see also Delaware v. Van Arsdell, 475

U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986) (constitutional errors may be harmless “in terms of

their effect on the fact finding process at trial”). None of these alleged errors bore on the fact

finding process, and the defense cannot seriously claim that any had the slightest impact on the

verdict rendered.

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D. This Court’s Power of De Novo Review Extinguishes any Asserted Error in the Nature and Composition of the Tribunal

The standard of review is de novo. “When we review a district court’s decision

de novo, we take note of it, and study the reasoning on which it is based. However, our review is

independent and plenary; as the Latin term suggests, we look at the matter anew, as though it had

come to the courts for the first time.” Zervos v. Verizon New York, 252 F. 3d 163, 168 (2d Cir.

2001). Because this court is entitled to substitute its judgment for that of the lower court, any

flaws in the composition of that court are cured by this court’s stepping into its shoes. The

defense claim that the will of the tribunal members was overborne by the presence of Captain

Vere is answered by this court’s independent exercise of judgment. That judgment should

require that the sentence and conviction below be affirmed.

CONCLUSION

The sentence and conviction should be affirmed.

Dated: March 20, 2006 Respectfully submitted,

Jeremy G. Epstein Vikram Sidhu Attorneys for The Royal Navy Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022-6069

Exhibit A