American Military Justice from the Revolution to the UCMJ: The Hard Journey from Command Authority to Due Process
Creighton University School of Law
Creighton International and Comparative Law Journal
Second Lieutenant Sidney Shapiro was sure the government witnesses could not identify his client as the would-be rapist. Shapiro, an army officer, had been appointed during World War II to defend a soldier charged in a general court-martial with assault and intent to commit rape. In any criminal accusation—especially one as serious as sexual assault—the victim’s ability correctly to identify the accused was central to the prosecution’s case. Shapiro doubted the ability of the victim to make this crucial identification of his client as the attacker.
Impeaching a victim of sexual assault, however, is always a dangerous tactic for a defense counsel, insofar as it risks alienating the jurors. Such a concern may have underlain Shapiro’s decision to use an inventive strategy of defense: he substituted another person for the defendant at counsel’s table. The trial went forward through the findings phase of the court-martial, during which the impostor was identified as the perpetrator. After both sides had presented their cases, the impostor was duly convicted of assault with intent to commit rape. Shapiro no doubt felt a thrill of accomplishment as he revealed the identity of his client’s substitute to the court.