ESTABLISHMENT OE MILITARY JUSTICE .

74 5

" It would be unfortunate, indeed, if the War Department did not have on e
mind about these cases. There is no question that the records are legally suffi-
cient to sustain the findings and sentence . There is a very large question in m y
mind as to whether clemency should be extended . "
The memorandum concluded with the request for an interview . Gen . Crowder,
immediately upon his return to the office of the Judge Advocate General, aske d
Col . Clarke to " search the records of The Adjutant General's Office and ascertain
some facts outside the records which might weigh in the final disposition of the
case ." As the result of the work so undertaken, Col . Clark, on April 10, sub-
mitted another memorandum (Exhibit 121), which was the first formal an d
definite statement of reasoned and forceful opposition to the imposition of a
death penalty made by any of Gen. Crowder's subordinates . The circumstances
of the four cases were again referred to . The youth of all the accused was
emphasized, and several other cases, more or less parallel both as to time and
nature, were cited to show that not only other courts but the same court ha d
either acquitted or, upon conviction, had imposed much lighter sentences . Fo r
example, it was stated that the same court acquitted two other soldiers of th e
same regiment who were tried within a few days of those under consideration,
and for the same offense, viz, sleeping on post . In these acquittals the evidenc e
came in part from the same witnesses whose testimony convicted two of the me n
condemned to death.
On or about April 10, the date of Col . Clarke ' s memorandum, Gen . Crowder
expressed to Gen . Ansell his anxiety with respect to these four cases an d
requested that he, after a thorough study, submit his views. The evidence is
conclusive that prior to this date no word in opposition to the execution e f the
sentences of death in these cases, either verbal or written, was voiced by Gen .
Ansell.
Gen. Ansell's views-were evidently first expressed orally to Gen . Crowder
shortly before April 15. Of this there can be no doubt, for on that elate Gen .
Ansell submitted a written memorandum based on " reading these records, "
referring to an oral statement of his reasons " the other day ." and stating tha t
those reasons were produced in writing " at the request of Gen . Crowder . "
(Exhibit 122 .) He then proceeded to consider the cases briefly and strongl y
opposed confirmation . On April 16, the day after the receipt of Gen . Ansell' s
memorandum, for which apparently he was waiting, Gen . Crowder submitte d
another and final memorandum to the Chief of Staff. (Exhibit 123 .) He set
forth therein the data gathered by Col . Clark concerning the four cases i n
hand and the other similar cases already referred to, and restated the sub -
stance of the arguments advanced by Col . Clark and Gen . Ansell against th e
execution of the sentences . He called attention to the fact that not one of
the accused made any fight for his life, and said : " I regret exceedingly tha t
in each case the accused was allowed to make a plea of guilty . As counsel
I should have strongly advised that they plead not guilty and required th e
Government to maintain its case at every point ." He closed this memorandum
by referring to Gen . Pershing's urgent request for a confirmation of the sen-
tences and called attention to the propriety of bearing in mind " the fact tha t
Gen . Pershing was not functioning as a reviewing officer with any officia l
relation to the prosecution but as commanding general, anxious to maintai n
the discipline of his command . "
On the next day, April 17, the Chief of Staff submitted the record thu s
made to the Secretary of War, recommending the confirmation and executio n
of the sentences . (Exhibit 124 .) On May 1 the Secretary of War submitte d
the whole matter to the President, with a lengthy letter (Exhibit 125) strongl y
recommending the pardon of the two soldiers convicted of sleeping on pos t
and the remission to confinement for three years of the sentences of the tw o
convicted of disobeying orders . The relationship of this final act of the
Secretary of War to the preceding action in the office of the Judge Advocat e
General, and as an effect thereof, is clear from the documents themsel v es .
The Secretary of War pointed out that the Judge Advocate General had limite d
his concurrence " to the technical correctness of the proceedings," and that, i n
a subsequent memorandum, he had called the attention of the Chief of Staff
to the other cases already referred to . The final memorandum of the Judg e
Advocate General of April 16 (Exhibit 123) is quoted and repeatedly referre d
to, and what was suggested by that officer is by the Secretary of War argue u
to the President as conclusive against 'both the justice and expediency of con -
firming the sentences . -