Burns v Lovett Brief for Respondents

    N o .  4 2 2

Jin #fl the United JSiaits
October T erp., .1.952

E gbert W . B urns and H erman P . D ennis, J r.,
PETITIONERS

; '• v.
R obert A . L ovett, Secretary of D efense, 

T homas K . F inletter, Secretary of the  : A ir 
F orce, General H oyt S. V andenberg, Chief
of Staff, U nited States! A tr F orce

ON W RIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS

as



I N D E X
Pago

Opinions below________________________________________________  j
Jurisdiction_________________________________________________  j
Questions presented___________________________________________  2
Statutes involved_________________________   2
Statement_______________________________________________  _ 2

I. The allegations of the habeas corpus petitions_______  3
II. The proceedings before the military tribunals________ 6

A. The proceedings at the courts-martial________ 6
B. Review by the Staff Judge Advocate and the

Board of Review___________________________ jg
C. Review by the Judicial Council and The Judge

Advocate General__________________________ 21
D. Review on petitions to The Judge Advocate

General for new trials_____________________  23
III. The judicial proceedings__________________________  28

Summary of argument_________________________________________  29
Argument:

I. The petitions for habeas corpus, when considered with 
both the facts alleged in support and the military 
record, raise no issue of jurisdiction, which alone is 
within the competence of civil courts to review____  38

A. Review of courts-martial by civil courts is
strictly limited to issues of jurisdiction_____  38

B. Under the Constitution, the regulation of
courts-martial is a matter for Congress and 
not for the courts__________________________  49

C. The petitions for habeas corpus raise no juris­
dictional issue_____________________________  57

X. Confessions__________________________  59
2. Detention____________________________  01
3. Counsel______________________________  61
4. Alleged atmosphere of terror__________  62
5. Alleged suppressed evidence and sub­

ornation of perjury_________________  63
II. The Court of Appeals correctly held that, in view of the 

fact that all issues raised by the petitions for habeas 
corpus had been considered and passed upon by the 
military authoiities, the district court properly 
denied the petitions without a hearing on the basis
of the military record . _____________________________ 67

Conclusion__________________________________________    §3
Appendix A __________________________________________________  34
Appendix B ___________________________________________________  §9
Appendix C ________________________________________________ _ h q

240197— 53-------1 (I)



CITATIONS
Cases: Page

Ahrens v. Clark, 335 U. S. 188____________________________  3
Altmayer v. Sanford, 148 F. 2d 161_______________________  80
Anthony v. Hunter, 71 F. Supp. 823_______________________ 43
Benjamin v. Hunter, 169 F. 2d 512_______________________  42
Bishop v. United States, 197 U. S. 334_________________  39, 46, 62
Boone v. Nelson, 72 F. Supp. 807_________________________  43
Burall v. Johnston, 134 F. 2d 614, certiorari denied, 319

U. S. 768_______________________________________________  60
Carignan v. United States, 342 U. S. 36_________________  78
Carter v. McLaughry, 183 U. S. 365___________________  39, 45, 52
Carter v. Roberts, 177 U. S. 496___________________________  39, 45
Carter v. Woodring, 92 F. 2d 544, certiorari denied, 302

U. S. 752____________________________________________41, 48, 63
Close v. United States, 198 F. 2d 144, No. 130 Misc., Oct.

Term, 1952, certiorari denied, 344 U. S. 879__________  62
Cobb v. Hunter, 167 F.,2d 888, certiorari denied, 335 IT. S.

832_____________________________________________________  66
Coggins v. O’Brien, 188 F. 2d 130__________________ 65, 69, 70, 75
Collins v. McDonald, 258 U. S. 416_____________  30, 39, 40, 45, 60
Creary v. Weeks, 259 U. S. 336____________________________39, 50
Darr v. Burford, 339 U. S. 200______________  37, 65, 70, 72, 75, 76
DeWar v. Hunter, 170 F. 2d 993, certiorari denied, 337

U. S. 908_______________________________________________ 42, 43
Dynes v. Hoover, 20 How. 65_______________________ 39, 46, 48, 52
Frank v. Mangum, 237 IT. S. 309_________________________  70, 76
French v. Weeks, 259 U. S. 326________________________  39, 50, 72
Gallegos v. Nebraska, 342 IT. S. 55________________________  61
Gault v. Burford, 173 F. 2d 813____________________________  69
Givens v. Zerbst, 255 U. S. 11______________________________  39
Goodwin v. Smyth, 181 F. 2d 498__________________________ 69
Grafton v. United States, 206 IT. S. 333____________________  39
Grimley, In re, 137 U. S. 147__________________________  38, 39, 47
Gusik v. Schilder, 340 IT. S. 128______  36, 40, 47, 48, 55, 68, 70, 75
Hawk, Ex parte, 321 U. S. 114_____________________  36, 68, 72, 76
Henry v. Hodges, 171 F. 2d 401, certiorari denied sub nom.

Henry v. Smith, 336 U. S. 968__________________________  42
Henry v. United States, 12 F. 2d 670______________________  66
Hiatt v. Broum, 339 IT. S. 103_______________  30, 40, 42, 43, 46, 62
Hiatt v. Smith, 170 F. 2d 61, reversed, 336 IT. S. 695_____ 80
Hicks v. Hiatt, 64 F. Supp. 238___________________________ 43, 46
House v. Mayo, 324 U. S. 42______________________________  68
Humphrey v. Smith, 336 U. S. 695_________________  30, 40, 42, 53
Johnson v. Eisentrager, 339 U. S. 763_____________________  3
Johnson v. Sayre, 158 IT. S. 109___________________________39, 44
Kahn v. Anderson, 255 U. S. 1____________________________ 58, 62
Keyes v. United States, 109 U. S. 336___________  30, 39, 40, 48, 63
Kurtz v. Moffilt, 115 U. S. 487____________________________  39

II



Cases— Continued Pager
Lyons v, Oklahoma, 322 U. S. 596_________________________  61
McClaughry v. Deming, 186 U. S. 49______________________  39
McNabb v. United States, 318 U. S. 332_______________ 33, 61, 78
Martin v. Mott, 12 Wheat. 19_________________________  39, 62, 74
Martin v. United States, 154 F. 2d 269____________________  66
Mason, Ex parte, 105 U. S. 696___________________________  39
Miller v. Hiatt, 141 F. 2d 690____________________________  61
Milligan, Ex parte, 4 Wall. 2______________________________  50, 53
Montalvo v. Hiatt, 174 F. 2d 645, certiorari denied, 338

U. S. 874_______________________________________________  43
Mooney v. Holohan, 294 U. S. 103_________________________ 64, 69
Moore v. Dempsey, 261 U. S. 86_______________________  62, 69, 70
Moran, Matter of, 203 U. S. 96___________________________  60
Morton v. Welch, 162 F. 2d 840___________________________ 81
Mullan v. United States, 140 U. S. 240________________  39, 48 62
Mullan v. United States, 212 U. S. 516__________________   39
Powers v. United States, 223 U. S. 303____________________  60
Quirin, Ex parte, 317 U. S. 1_______________________  40 50 53 74
Reaves v. Ainsworth, 219 U. S. 296_________________ 32 50 56 72
Reed, Ex parte, 100 U. S. 13___________________________ ' 30 39
Reilly v. Pescor, 156 F. 2d 632, certiorari denied, 329 U. S.

790---------------------------------------------------------------------------------- 42, 74
Richardson v. Zuppann, 81 F. Supp. 809, affirmed, 174 F.

2d 829----------------------------------------------------------------------------  61, 78
Romero v. Squier, 133 F. 2d 528, certiorari denied, 318

U. S. 785_______________________________________________  60
Runkle v. United States, 122 U. S. 543____________________ 39, 46
Schechtman v. Foster, 172 F. 2d 339, certiorari denied, 339

U. S. 924-------------------------------------------------------------- 65, 69, 76, 77
Schita v. King, 133 F. 2d 283, certiorari denied, 322 U. S.

761---------------------------------------------------------------------------------- 41 ;43
Setser v. Welch, 159 F. 2d 703, certiorari denied, 331 U. S.

840---------------------------------------------------------------------------------- 8 i
Slappey v. United States, 110 F. 2d 528___________________  66
Smith v. United States, 187 F. 2d 192, certiorari denied,

341 U. S. 927_____________________________________  _ 60 61
Smith v. Whitney, 116 U. S. 167_____________________________39*52
Sunal v. Large, 332 U. S. 174_____________________________  ’ 65
Swaim v. United States, 165 U. S. 553_ 30, 39, 40, 45, 52, 60, 62, 63
Tucker, Ex parte, 212 Fed. 569____________________________  ’ 41
United States v. Bayer, 331 U. S. 532____________________  78
United States v. Burns, 4 CM R (AF) 907________________  76
United States v. Cordo, 186 F. 2d 144, certiorari denied,

sub nom. Minkojf v. United States, 340 U. S. 952_______  66
United States v. Dennis, 4 CM R (AF) 872_______________  76
United States v. Dennis, 4 CM R (AF) 930_______________ 15
United States v. Fletcher, 148 U. S. 84______________ ‘ 37, 39, 46, 74

Ill



IV

Cages— Continued Page
United States v. Freeman, 167 F. 2d 786, certiorari denied,

335 U. S. 817__________________   60
United States v. Hiatt, 141 F. 2d 664---------------------------------- 72
United States v. Klinger, 136 F. 2d 677, certiorari denied,

320 U. S. 746___________________________________________  60
United States ex rel. Kennedy v. Tyler, 269 U. S. 13----------- 68, 76
United States ex rel. McClellan v. Humphrey, 181 F, 2d 757- 47
United States v. Mitchell, 322 U. S. 65-------------------------------  78
United States ex rel. Smith v. Baldi, 192 F. 2d 540, certiorari

granted, 343 U. S. 903__________________________________  69
United States ex rel. Weintraub v. Swenson, 165 F. 2d 756-- 43
Valdes v. United States, 244 U. S. 432-------------------------------  66
Vallendigham, Ex parte, 1 Wall. 243----------------------------------- 50
Vidal, In re, 179 U. S. 126------------------------------------------------- 32,50
Wade v. Hunter, 336 U. S. 684-------------------------------------------  40, 42
Waite v. Overlade, 164 F. 2d 722, certiorari denied, 334 U. S.

812_____________________________________________________  43
Wales v. Whitney, 114 U. S. 564----------------------------------------  39
Walker v. Johnston, 312 U. S. 275------------------------------------ 59
Watkins, Ex parte, 3 Pet. 193---------------------------------------------  39
Whelchel v. McDonald, 340 U, S. 122--------------------------------- 30,

33,40, 47,51,60, 63,74, 76
Wild v. Oklahoma, 187 F. 2d 409---------------------------------------  66
Wilson v. United States, 162 IJ. S. 613-------------------------------  60
Wise v. Withers, 3 Cranch 331-------------------------------------------  39
Yamashita, In re, 327 U. S. 1--------------------------------------------  40

Constitution and Statutes:
Constitution, Art. I -----------------------  32
Articles of War before 1948 revision;

AW  8 (10 U. S. C., 1946 ed., 1479)__________________  58
AW 11 (10 IT. S. C., 1946 ed., 1482)--------------------------  53
AW 17 (10 U. S. C., 1946 ed., 1488)_____________  13, 20, 53
AW  40 (10 U. S. C., 1946 ed., 1511)--------------------------- 54
AW  50% (10 U. S. C., 1946 ed., 1522)------------------------ 54
AW 70 (10 U. S. C., 1946 ed., 1542)_________________  53
AW  92 (10 U. S. C., 1946 ed., 1564)--------------------------- 58, 87

Articles of War, 1948 Revision, 62 Stat. 639:
AW 4 (10 U. S. C. (Supp. II) 1475)---------------------------  54
AW  8 (10 U. S. C. (Supp. II) 1479)---------------------------  54
AW  11 (10 U. S. C. (Supp. II) 1482)--------------------------- 55
AW 46 (10 U. S. C. (Supp. II) 1517)_________________  78
AW  47 (10 U. S. C. (Supp. II) 1518)--------------------------- 84
AW 48 (10 IT. S. C. (Supp. II) 1519)--------------------------- 84
AW 49 (10 IT. S. C. (Supp. II) 1520)--------------------------- 84
AW 50 (10 U. S. C. (Supp. II) 1521)---------------------- 55, 57, 85
AW 53 (10 U. S. C. (Supp. II) 1525)______ 36, 57, 67, 73, 86
AW 88 (10 U. S. C. (Supp. II) 1560)________________  55



Constitution and Statutes— Continued Page
Act of M ay 5, 1950, sec. 12, 64 Stat. 147 (50 U. S. C. (Supp.

V) 740__________________________________________________  73
Civil Regulations with the Force and Effect of Law in Guam 

(Codes of Guam, U. S. Govt. Printing Office, 1947), Chap­
ter 35------------------------------------------------------------------------------  79, 88

Guam Penal Code________________________________________  79
Joint Resolution of July 25, 1947, Chapter 327, Section 3,

61 Stat. 451____________________________________________  5g
Uniform Code of Military Justice 64 Stat. 107:

Art. 26 (50 U. S. C. (Supp. V) 590)___________________ 56
Art. 27 (50 U. S, C. (Supp. V) 591)___________________ 56
Art. 67 (50 U. S. C. (Supp. V) 654)___________________  56
Art. 73 (50 U. S. C. (Supp. V) 660)___________________  73
Art. 74 (50 U. S. C. (Supp. V) 661)___________________  73
Art. 76 (50 U. S. C. (Supp. V) 663)__________________  57, 71

28 U. S. C. 2255__________________________________________51, 61
Miscellaneous:

Ansell, Some Reforms in Our System of Military Justice
(1922), 32 Yale Law Journal 146________________________  53

Executive Order No. 10026, effective Feb. 1, 1949 (1949
Manual for Courts Martial, U. S. Air Force)___________  54

Executive Order 10214, dated February 8, 1951, a new
Manual for Courts-Martial effective May 31, 1951_____  56

H. Rep. 2722, 79th Cong., 2d Sess________ _________________ 54
H. Rep. 1034, 80th Cong., 1st Sess_______________________  54
Holtzoff, Administration of Justice in the United States

Army (1947), 22 N. Y. U. L. Q. Rev. 1_________________ 54
Manual for Courts-Martial, U. S. Air Force, 1949________ 54, 79
Manual for Courts-Martial, 1951_________________________  56
Morgan, The Existing Court-Martial System and the Ansell

Army Articles (1919), 29 Yale L, J. 52__________________ 53
Note, The Preliminary Investigation in the Army Court-Martial 

System— Springboard for Attack by Habeas Corpus (1949),
18 Geo. Wash. L. Rev. 67 ff____________________________  42

Pasley, The Federal Courts Look at the Court-Martial (1950)
12 Univ. of Pitt. L. Rev. 7, 25-34______________________  41

Rigby. Military Penal Law: A  Brief Survey of the 1920 
Revision of the Articles of War (1921), 12 J. Grim. L. and
Criminology 84_________________________________________  53

Wallstein, The Revision of the Army Court-Martial System
(1948), 48 Col. L. Rev. 219____________________________  55-56

Winship, Court-Martial Procedure Compared with Criminal 
Procedure in Civil Courts (1932), 1 Fed. Bar. J. No. 2,
3, 9 -14---------------------------------------------------------------------------  74_75

Wurfel, Military Habeas Corpus: II, (1951) 49 Mich. L.
Rev. 699

V

74



J  it itejsttinm e (Court of the t f t tM  j&ates
Octobek T eem, 1952

No. 422

R obeet W. B ttens and H eeman P. D ennis, J e., 
petitionees

v.
R obeet A . L ovett, Seceetaey of D efense, 

T homas K . F inletteb, Seceetaey op the A ie 
F oece, General H oyt S. V andenbebg, Chief 
of Staff, U nited States A ie F oece

ON W RIT OF CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BKIEF FOE THE RESPONDENTS 

O PIN IO N S B E L O W

The memorandum opinions of the District 
Court are reported at 104 F. Supp. 310 and 312 
(R. 18-20). The majority and dissenting opin­
ions of the Court of Appeals (R. 21-44, 44-56) 
are not yet reported.

JU R ISD IC T IO N

The judgment of the Court of Appeals was en­
tered on July 31, 1952 (R. 57), and amended on



2

August 25, 1952 (R. 58). The petition for a writ 
of certiorari was filed on October 29, 1952, and 
was granted on December 15, 1952. The juris­
diction of this Court rests upon 28 U. S. C. 
1254 (1).

QUESTIONS P R E SE N TE D

1. Whether a review of courts-martial judg­
ments by civil courts in habeas corpus proceed­
ings is limited to an inquiry as to whether the 
courts-martial had jurisdiction in the traditional 
sense, and whether the habeas corpus petitions in 
this case raise such jurisdictional issues.

2. I f  the civil courts have competence to in­
quire generally whether due process has been ac­
corded in the court-martial proceedings, whether, 
on petitions for habeas corpus alleging violations 
of due process in court-martial proceedings, peti­
tioners were entitled to a hearing on factual is­
sues which had been examined and found ground­
less in the military appellate processes.

ST A T U T E S IN V O L V E D

The statutes involved are set forth in Appendix 
A, infra, pp. 83-87.

S T A T E M E N T

Petitioners Burns and Dennis, Staff Sergeant 
and Private in the United States Air Force, sta­
tioned in Guam, were separately tried in May 
1949 by courts-martial in Guam and convicted of 
the murder and rape of Ruth Farnsworth, in 
violation of the 92nd Article of War. Each was



3

found guilty of the offenses charged and sen­
tenced to death (R. 1, 7, 9, 16, 18). After ex­
hausting the processes of military review, set forth 
in detail below {infra, pp. 18-28), during which 
their sentences were confirmed by the President, 
they filed the instant petitions for writs of habeas 
corpus in the United States District Court for 
the District of Columbia. The respondents are 
the officials under whose authority petitioners are 
in custody in Japan, awaiting execution (R. 1-5, 
9-15).1 The District Court denied the petitions 
without hearing witnesses (R. 20), and the Court 
of Appeals affirmed, with one dissent (R. 57).

I
TH E ALLEGATIONS OF TH E HABEAS CORPUS PETITIONS

Petitioners contend that their detention is un­
lawful because the courts-martial, having denied 
them due process as a result of certain alleged 
irregularities in the conduct of their trials, had 
lost jurisdiction over them. The irregularities 
alleged in the habeas corjius petitions are as 
follows: 2

1. Unlawful detention.-—That on January 7, 
1949, after being surrendered by military au­

1 Petitioners, although outside the territorial jurisdiction 
of any federal court, seem to have “ standing to invoke the 
process o f federal courts somewhere.” Johnson v. Eisen- 
trager, 339 U. S. 763,790; compare Ahrens v. Clark, 335 U. S. 
188.

2 Attached to the petitions are affidavits by petitioners, 
their accomplice Calvin Dennis, and certain other persons.



4

thorities, petitioners were arrested and placed 
in custody of civil authorities on Guam/ where, 
without arraignment, they were held incommuni­
cado in solitary confinement, not allowed to con­
sult with counsel, “ subjected to continuous ques­
tioning, beaten, denied sleep and edible food,”  
in violation of the Penal Code of Guam and the 
United States Constitution, until their return to 
the custody of the Air Force several weeks later 
(R. 2-3, 10-11, 13). During his detention, Her­
man Dennis, “ without being advised of his con­
stitutional rights against self-incrimination had 
taken from his person certain public hairs which 
were subsequently used as evidence against him”  
(R. 12).

2. Coerced confessions.—That, as a “ result of 
physical duress, protracted interrogation, the use 
of a lie detector, threats”  that he would receive 
the death sentence if he did not confess and prom­
ises of leniency if he did, and “various subter­
fuges” , and without being adequately advised of 
his rights against self-incrimination, Herman 
Dennis gave four confessions, which also impli­
cated Burns (R. 11, 12,13).

3. Denial of counsel of petitioners’ choice, or 
effective assistance of counsel.—That counsel se- 3

3 The United States Navy furnished and supervised the 
government of Guam, and the Guam officials involved in 
these cases were Navy or Marine officers or civilians em­
ployed by the Navy.



5

lected by Burns “ had only one day to prepare his 
defense, thereby depriving petitioner of his right 
to effective counsel” (R. 4 ) ; that Dennis was 
denied a “ request for counsel of his choice,” 
the counsel furnished him “ did not take ade­
quate time to prepare”  his defense (R. 12), and 
he had no opportunity for advice until “ shortly”  
before his trial (R. 11).

4. Suppression of evidence and perjured tes­
timony.—That certain “ important evidence tend­
ing to show” petitioners’ innocence was sup­
pressed by the prosecution (R. 4, 12) ; that Cal­
vin Dennis, charged with the same offenses, whose 
testimony alone directly connected Burns with 
the crimes charged, admitted in a sworn state­
ment that his testimony was perjured as a re­
sult of “ threats and promises of special consider­
ation if  Calvin Dennis agreed to testify against”  
Burns (R. 4, 3) f  that the prosecution “ sought 
to procure witnesses to perjure themselves” 
against petitioner Herman Dennis, “ and intim­
idated and threatened those who sought to help”  
him (R. 12); that specimens of hair attributed 
to Herman Dennis “ were deliberately planted in 
an effort to create evidence tending to show his 
guilt”  (R. 13). 4

4 Burns also alleges that the “ fruits” of the alleged coerced 
confessions o f Herman Dennis were used against him 
(though these confessions were not themselves introduced 
at Burns’ trial and Herman Dennis did not testify at Burns’ 
tr ia l); that “ continued pressure and intimidation were used



6

5. Trial in an atmosphere of terror.—That their 
trials were “ conducted in an atmosphere of ter­
ror, hysteria and vengeance” (R. 4, 12-13).5

II

TH E PROCEEDINGS BEFORE TH E M ILITARY  TRIBUNALS

Rules to show cause issued in each case, and 
respondents filed motions to dismiss, annexing 
the records of the courts-martial and the opinions 
and findings made by the Air Force authorities 
during the military appellate processes (R. 5-8, 
15-18). From these exhibits, the following 
appears:

A. THE PROCEEDINGS AT THE COURTS-MARTIAL

Petitioner Herman Dennis was tried first, at a 
court-martial lasting from May 9, 1949, to May 
16. Burns’ trial commenced on May 27, 1949, and 
concluded on May 30. Both courts were composed 
of officers not stationed in Guam (mainly from 
Japan), and a wholly separate panel sat on 
Burns’ court (TR (D ) 2; TR (B ) 2).

At both trials, the prosecution showed that on 
December 11, 1948, Ruth Farnsworth, a civilian 
Government employee, disappeared, under mys­

to get him [Burns] to confess”  (R. 3 ) ; and that, failing 
this, threats and promises were used to get Herman Dennis 
and Calvin Dennis to testify against him (R. 3).

s Dennis also alleges that certain “ prejudicial statements 
were introduced into the record that were irrelevant, imma­
terial, inflammatory and calculated to prejudice petitioner’s 
cause” (R. 12).



terious circumstances, from the Jade Shop, a 
privately-owned, general-merchandise store on 
Guam in which she worked on a part-time basis 
(TR  (D ) 21-29, 83, 127; TR (B ) 11-17, 27).6 
On the morning of December 13, 1948, she was 
found lying unconscious, though gasping for 
breath, in a small clearing in the jungle, a short 
distance behind the Jade Shop (TR (D) 36-37, 
42—13; TR (B ) 31-33, 37-38). Her face and neck 
were abraded, bruised, dirty, and bloody (TR 
(D ) 38, 42-43; TR (B ) 33, 38). She was un­
clothed below her waist and her thighs were 
scratched {id.). She died on the morning of De­
cember 14, 1948 (TR (D ) 47; TR (B ) 45-46). 
An examination of her body revealed that she 
was brutally beaten about the head and body, 
choked and raped (TR (D) 51-56; TR (B ) 
48-51).

I

1. The 'proceedings of Dennis’ trial

a. Evidence connecting Dennis with the 
crime.—In addition to the evidence relating to 
the disappearance and death of Miss Farnsworth, 
supra, pp, 6-7, the prosecution showed that 
Herman Dennis and Sergeant Burns were seen

6 The symbol TR (B ) refers to the typewritten copy of 
petitioner Burns’ trial minutes and the symbol TR (D ) to 
that o f petitioner Dennis, both o f which have been filed with 
the Court. The respondents’ Exhibits cited herein were at­
tached to the respondents’ return to the rules to show cause, 
and have also been filed with the Court.



8

loitering around the Jade Shop on the evening 
of December 11, 1948, prior to Miss Farnsworth’s 
disappearance (TR  (D ) 86-89). About 10 p. m. 
that night, Herman Dennis was given a ride to 
his base by a civilian driver of a weapons carrier 
at a point on the highway about three quarters 
o f a mile from the Jade Shop (TR  (D ) 97-102). 
Laboratory analysis showed that certain head and 
pubic hairs found in the Army truck used by 
Calvin Dennis on the night of December 11th and 
the blankets found therein, as well as the head 
hairs found on one of Herman Dennis’ shirts, 
were similar in all characteristics to the hair of 
Ruth Farnsworth, while the other pubic hairs 
found in the same truck and blankets were iden­
tical in their characteristics with hairs taken 
from Herman Dennis (TR  (D) 153-155, 155-162, 
163-166, 173-181, 182).7

b. Dennis’ confessions.—There were also admit­
ted in evidence four statements by Herman Dennis 
(TR (D ) 275; Pros. Exs. 40-43), in which he 
admitted that on December 11, 1948, between 
6 and 8 p. m., together with Burns and Calvin 
Dennis, he arrived at the Jade Shop in a truck 
driven by Calvin, that they entered the shop, 
that Burns struck and knocked Miss Farnsworth

7 Similarly, Miss Farnsworth’s smock which was found in 
the truck contained two types of pubic hairs identical in all 
characteristics and color to those of the victim and Herman 
Dennis, respectively (TR  (D ) 165-168, 168-171, 171-172, 
184-186).



9

to the floor, that he (Herman Dennis) put out 
the lights and helped carry the victim to the 
truck in which she was taken to a clearing in the 
jungle behind the shop, and that he committed 
three acts of sexual intercourse with the uncon­
scious victim. He then left the scene and 
“ thumbed a ride” back to his base in a weapons 
carrier.

Before being admitted, these statements were 
subject to an inquiry by the court as to their 
voluntariness, and the following facts were ad­
duced by the prosecution:—On January 7, 1949, 
Herman Dennis, together with other airmen, was 
asked to volunteer for a “ lie detector” test, which 
was being administered by a civilian criminologist 
under the supervision of the Assistant Chief of 
Guam naval police (TR (D ) 187-188, 207-209, 
217). After the mechanics of the test were ex­
plained to him and he was advised of his right to 
refuse to submit thereto and to remain silent, he 
voluntarily consented, in writing, to submit to 
such test (TR (D ) 187-188, 194, 195, 208, 217, 
224). At the conclusion o f the test, he was told 
that “ his test was not what it should be,”  and he 
was placed under arrest by the naval police au­
thorities. Instructions were given that he would 
not be permitted to communicate with anyone 
other than the two investigators conducting the 
test. (TR (D) 221, 225, 226, 193-194, 209, 214, 
331-332.) Later that day and again on January 8



10

and 10, he was interrogated briefly concerning 
the crime, but he made no incriminating state­
ments (TR  (D) 189-191, 199, 209, 218-219).8

On the evening of January 11, 1949, after being 
warned of his rights against self-incrimination, 
he was. interrogated by a civilian criminologist 
and the assistant chief of naval police, both of 
whom told him that Calvin Dennis had confessed, 
implicating him (TR (D) 189-191, 196-197, 198, 
199, 204-205, 210, 219, 163). After Calvin, who 
was brought into his presence, admitted making 
a confession, Herman Dennis was left alone with 
pad ancf pencils (TR (D ) 189, 209, 210, 261). 
Later that evening, Herman Dennis handed the 
assistant police chief two statements in his hand­
writing, only one of which was signed, admitting 
his part in the rape of Miss Farnsworth (TR 
(D ) 192, 210-212, 275, 285).

On the morning of January 12, 1949, Herman 
Dennis, with his consent, was taken to the office 
of the chief of police, where, after being warned 
of his constitutional rights, he signed a type­
written statement in question and answer form, 
in which he enlarged upon his original confession 
(TR (D ) 192-194, 212-213, 214, 215, 227, 230-231, 
261). After making this statement, he proceeded 
to reenact his part in the crime, but, in the course 
of tracing the route of the crime, he refused to

8 On January 8, 1949, at the request o f the investigators, 
Herman Dennis extracted from his body some pubic hairs 
for use in laboratory analysis and comparison with hairs 
found on his shirt and in blankets found in the army vehicle 
commonly used by Calvin Dennis (T R (D ) 155-162).



11

complete it, stating “ Please, I  don’t want to go 
any further”  (TR (D ) 278-283, 284-285, 34-36). 
The following morning, again after being warned 
of his rights, he signed another typewritten 
statement in question and answer form, which 
further amplified his original confession (TR (D) 
213-214, 216, 275, 285). Several days later he 
was civilly arraigned (TR (D ) 227) and on 
January 29, 1949, was transferred for confine­
ment by military authorities (TR (D ) 331).

Petitioner Dennis testified, on the inquiry into 
the admissibility of the confessions, that, follow­
ing his arrest, he had been allowed no visitors 
except a Chaplain, that he had been subjected to 
protracted interrogations, received no warning 
of his rights, was promised leniency if he con­
fessed and death by hanging, dramatized by a 
display of photographs of a victim of a hanging, 
if he did not.9 He did not, however, claim that 
he had been beaten, but expressly said that he had 
not been (TR (D ) 253); 4 CMR (A P ) at 
895-896).

After hearing the testimony, the court-martial 
received the four statements in evidence with

9 There was also some defense testimony that at a social 
gathering in March, 1949, the assistant police chief, in re­
sponse to an inquiry from Lieutenant Colonel Daly as to 
how he obtained the confessions, replied, “ Oh, you know 
how we do it. We kind of give them the business or rough 
them up” (TR  (D ) 238, 236-238). On cross-examination 
it was shown that the question was asked and the answer 
given in a “ joking,” or “ jovial manner” (TR  (D ) 237,238).

240197— 53-------2



12

instructions that their admission in evidence was 
not conclusive as to their voluntary nature and 
that they were not to be considered by any mem­
ber of the court on the question of guilt unless 
he found the confessions to have been voluntary 
(TR (D ) 187-233, 233-235, 239-253, 254-260, 
260-264, 275, 285; Pros. Exs. 40-43; Def. Exs. 
A, B, TR (D ) 242).

c. Assistance of counsel.—At the opening of 
the trial, on May 9, 1949, Dennis stated: “ I  
desire the regularly appointed defense counsel 
but do wish to have Lieutenant Colonel Edward 
F. Daly to assist”  (TR (D ) 3). The law member 
of the court ruled that, since the Department of 
the Air Force at Washington concurred in the 
Commanding General’s determination that Lieu­
tenant Colonel Daly was not available as Herman 
Dennis’ defense counsel, such determination was 
controlling (TR (D ) 4).

In connection with this ruling, the following 
facts were shown:—On February 1, 1949, Dennis 
was charged with a violation of the 92nd Article 
of War (infra, p. 87), in two specifications. On 
February 4, 1949, he indicated to the pre-trial 
investigating officer that he did not particularly 
desire any civilian defense counsel, but that he 
did desire Lieutenant Colonel Tolen for his coun­
sel (TR (D ) App. 2). On April 8, 1949, Lieu­
tenant Colonel Tolen was formally appointed as 
defense counsel, to be assisted by Captain Katz 
and First Lieutenant Ensley, all of whom, on



13

March 21, 1949, had been similarly assigned as 
counsel for Burns (TR (D) 1, 9-9A; TR (B ) 1). 
Lieutenant Colonel Tolen had represented Dennis 
throughout the six-week pre-trial investigation, 
and Captain Katz commenced his participation as 
one of Dennis’ counsel a month before trial (TR 
(D) 10). After receiving the notification of ap­
pointment of counsel, Dennis requested, in writing, 
that Lieutenant Colonel Daly be appointed as 
special defense counsel “ and that he be assisted 
by such of the regularly appointed defense counsel 
that he may desire”  (TR (D ) App. 3, p. 1). On 
April 12, 1949, after the Commanding General 
had ruled that Lieutenant Colonel Daly was “ not 
available”  under Article of War 17 (10 IT. S. C., 
1946 ed., 1488), Dennis stated in writing that he 
“ still”  desired him for his counsel (id. at p. 2). 
On April 13, 1949, Lieutenant Colonel Daly sent 
Dennis a letter, stating, “ that in view of the fact 
that I actively participated in the investigation 
of the case and was responsible for the production 
of much of the evidence in connection therewith, 
and may be called to testify for the prosecution 
* * * I can not conscientiously defend you
and do not desire to defend you or any of the 
other accused in connection with the crime”  (TR 
(D ) App. 4).

On April 15, 1949, the Commanding General 
wrote Herman Dennis that since the latter had 
originally selected Lieutenant Colonel Tolen for 
his counsel, “ Colonel Daly was free to be assigned



14

an active part in the preparation of the govern­
ment’s case,”  and that consequently he was “ not 
available”  as defense counsel (TR  (D ) App. 6). 
The following day Herman Dennis replied that 
despite Lieutenant Colonel Daly’s “ connection 
with the ease,”  he “ still”  desired “him to repre­
sent me if I  can have him”  (TR  (D ) App, 5). 
On April 16, the Commanding General “ reluc­
tantly”  declared Lieutenant Colonel Daly avail­
able to act as Dennis’ “ individual defense counsel 
to be assisted by the appointed defense counsel”  
(TR (D ) App. 7).

On April 18, 1949, the Commanding General 
reversed his own decision and notified Dennis 
that Lieutenant Colonel Daly would “ not be 
available,”  because he was “ under psychiatric 
examination pending his own arraignment under 
charges of numerous alleged acts of misconduct”  
{id.). This ruling was confirmed by the Depart­
ment of the Air Force in Washington. On April 
19, 1949, Dennis sent a letter to the Commanding 
General, stating, that “ In view of the contents of 
your letter of 18 April 1949, I  do not desire the 
services of Lt. Colonel Edward F. Daly and I 
will accept the regularly appointed defense coun­
sel”  (TR (D ) App. 8). The appointed defense 
counsel did not know until the day the trial began 
(May 9) that Dennis still desired Lt. Col. Daly 
as one of his defense counsel (TR (D ) 4).

d. Dennis’ defense.—-Dennis testified in his own 
behalf. His testimony was to the effect that from



15

about 7:45 p. m. until 9:30 p. m. on December 
11, 1948, he attended a movie at his base, after 
which he stopped at the enlisted men’s club, 
before retiring to his barracks around 11 p. m. 
(TE (D ) 311). Several other airmen testified, 
more or less firmly, that they had seen him at the 
movie or going into or leaving it, and there was 
some other evidence intended to discredit some of 
the prosecution testimony (TE (D ) 287-310).

2. The proceedings at Burns’ trial

a. Evidence of Burns’ connection with the 
crime.—At the trial of Burns, the prosecution, 
after adducing evidence on the disappearance and 
death of Miss Farnsworth, supra, pp. 6-7,10 
presented Private Calvin Dennis,11 one of the 
accomplices named in the charge against Burns, 
who, after being warned of his constitutional 
rights against self-incrimination and of his right 
to refuse to testify (TE  (B ) 53), testified as 
follows:

10 The prosecution also adduced evidence showing that the 
various hairs taken from Calvin Dennis’ truck and from the 
blankets and the smock found therein were identical in their 
characteristics with those of the hairs taken from Miss 
Farnsworth’s body and from Herman Dennis (TR  (B ) 92, 
99-104,114,116,121,122,123-129,131-133).

11 Calvin Dennis had, at the time of the Burns trial, been 
convicted by another general court-martial on the same 
charges and sentenced to death (T R  (B ) 56). The sentence 
was later commuted to life imprisonment by the President. 
See United States v. Dennis, ACM 1894, Calvin Dennis, 4 
CMR (A F ) 930, 956. He has not brought a habeas corpus 
proceeding.



16

About 8 p. m., on December 11, 1948, Calvin 
Dennis, who had extra duty driving an army 
truck as a shuttle bus, transported bis half- 
brother, Herman Dennis,12 and Sergeant Burns to 
the Jade Shop, where the latter struck and 
knocked Ruth Farnsworth to the floor (TR  (B ) 
53-54, 55, 58, 59, 62, 73). Herman Dennis and 
Burns then threw the girl into the truck, and as 
Calvin drove the truck around to the clearing in 
the jungle in back of the Jade Shop, Herman 
and Burns took her off the truck into the jungle 
(TR  (B ) 54, 64, 65). Calvin then returned to 
his organization, where, shortly after 9 o ’clock 
that evening, Burns called and asked Calvin to 
pick him up near a place called the Rocker Club 
(TR (B ) 54-55, 141-142). Later, when Calvin 
was driving Burns back, the latter told him that 
he had intercourse with Ruth Farnsworth once or 
twice that night (TR (B ) 55). When Calvin 
asked Burns why he struck the girl, Burns 
warned him to keep quiet lest he “ get what she 
got”  (id.). Burns then pulled out a smock, 
which he said he had taken from Miss Farns­
worth, and placed it behind the seat of Calvin’s 
truck (TR  (B ) 55-56).

12 Calvin Dennis has supplied affidavits, attached to the 
habeas corpus petitions, stating that he is not a half-brother 
of Herman Dennis, and is not related to him, but at the 
Burns trial he testified that he was “ supposed” to be Her­
man’s half-brother (TR  (B ) 58; Resp. Ex. (Burns) G, 
p. 11, Appendix C, infra, p. 125) and Herman Dennis’s 
confession referred to Calvin as his half-brother (Resp. 
Ex. (Dennis) C, p. 13, 4 CMR (A F ) at 881).



17

There was further testimony to the effect that 
about 9:45 p. m., on December 11, 1948, a soldier 
noticed what appeared to be blood stains on 
Burns’ trousers, and when he asked about them, 
Burns stated that he received the stains “ cutting 
meat”  (TR (B ) 142-145).13 Another soldier tes­
tified that the following morning Burns told him 
that he had intercourse but that he “ got it the 
wrong way” (TR (B ) 150).

Burns did not testify in his own behalf (TR 
(B ) 159-160). His witnesses gave testimony 
tending to show that Calvin Dennis was intoxi­
cated in the early evening of December 11th 
(TR (B ) 154-159).

b. Assistance of counsel.—Burns was arrested 
by the naval military government police on Jan­
uary 10, 1949, and held by them until January 31, 
1949, when he was transferred to the military 
authorities for confinement (TR (B ) 181). On 
February 1, 1949, a charge and specifications sim­
ilar to those preferred against Herman Dennis 
were filed against Burns (TR (B ) 8-9). On March 

'31. three defense counsel were formally appointed 
for him (TR (B ) 1). At the beginning of his 
trial on May 27, Burns introduced Captain Mar­
tin S. Drucker, a member of the Judge Advocate

13 Although Burns was a mess sergeant, his duties did not 
include meat cutting; and it was improbable that any meat 
was cut on the night of December 11,1948, which was Satur­
day, since Sunday dinners consisted of chicken or turkey, 
prepared from frozen fowl, which did not bleed much during 
the cutting process (TR  (B) 150).



18

General’s Corps of the Army and a qualified 
lawyer, as his “ individual counsel,”  and made a 
request, which was granted, to retain two of the 
three regularly appointed defense counsel “ to 
act as associate counsel”  (TR  (B ) 3). Burns 
then stated that he was “ satisfied”  with such 
counsel (id.). Neither he nor counsel of his 
choice requested a continuance of his trial (id.).

B. REVIEW BY THE STAFF JUDGE ADVOCATE AND THE BOARD OF
REVIEW.

Pursuant to Article of War 47 (10 U. S. C., 
Supp. II, 1518 (c), infra, p. 83), the Staff Judge 
Advocate reviewed the record of the proceedings 
of both Herman Dennis and Burns, in separate 
written reports, and recommended approval of the 
sentences. See Resp. Ex. A  in each proceeding. 
After approval by the convening authority, the 
respective trial records were forwarded to The 
Judge Advocate General of the Air Force, in 
Washington, D. C., for appellant review pursuant 
to Article of War 48 (10 U. S. C., Supp. II, 1519, 
infra, p. 83) (Resp. Exs. (Dennis) A, B, 4 CMR 
(A F ), 872; Resp. Exs. (Burns) A, B, 4 CMR 
(A F ) 907).

On November 21, 1949, a three-member Board 
of Review, in the office of The Judge Advocate 
General, after a review of Dennis’ court martial 
proceedings and with the help of a brief and oral 
argument by one of his present counsel, found 
in a comprehensive opinion that “ no errors in­
juriously affecting the substantial rights of the



19

accused were committed during the trial”  and 
approved it (Resp. Ex. (Dennis) C, 4 CMR 
(A F ), 872, 887).14 * 16 After a similar submission 
of a brief and oral argument on behalf of Burns 
by one of his present counsel, a Board of Review, 
consisting of three different members, affirmed 
his court-martial proceedings on March 14, 1950, 
likewise in a comprehensive opinion (Resp. Ex. 
(Burns) C ) !5

1. As to Dennis, the Board of Review found 
as follows:

a. The record did not show that Herman 
Dennis, while in custody of the Guam author­
ities, suffered undue hardships or privations or 
that there was “ any calculated endeavor on the 
part of officials to secure a confession through 
the pressure of unrelenting questioning” (Resp. 
Ex. (Dennis) C, p. 19; 4 CMR (A F) 872, 885). 
Although Herman Dennis together with other 
soldiers had voluntarily submitted to a “ lie de­
tector” test prior to his arrest, no confessions

14 The opinion o f this Board of Review is reported at ACM 
1892, Dennis (B E ), 4 CMR (A F ) 872-888. This citation 
refers to volume 4 of the Court Martial Reports of the Judge 
Advocate General of the A ir Force, hereinafter referred to 
as CMR (A F ). Volume 4 of CMR (A F ) also reports the 
opinions of the Judicial Council in both cases {infra, pp. 
21-22) and The Judge Advocate General’s Memoranda to
the Secretary of the A ir Force {infra, pp. 22-23). Re­
prints of these opinions and memoranda, as reported in 
4 CMR (A F ), have been lodged with the Clerk.

16 The opinion of this Board o f Review is reported at 4 
CMR (A F ) 907-923.



20

were made while he was undergoing such tests, 
nor were the results of the tests used in evi­
dence (id.).

b. The counsel requested by Herman Dennis 
(Lt. Col. Daly) was “ not available” under Article 
of War 17 (10 U. S. C., 1946 ed. 1488). The “ offi­
cial files of the Air Force available at Head­
quarters, U SAF”, showed “ that at the time of 
trial the officer requested by the accused as 
individual defense counsel was himself under 
charges involving misconduct, moral turpitude, 
drunkenness and disorderliness and the corrupt 
endeavor to obstruct and impede military justice 
in the instant case and others allied therewith 
and the unethical offer to abandon and withdraw 
from the defense of this accused and others 
provided he would be granted immunity from 
punishment for alleged prior acts of his own 
misconduct” (Resp. Ex. (Dennis) C, p. 17; 4 
CMR (A F ) 872, 884 (emphasis in original). On 
the date of the trial (May 9), Daly’s resignation 
from the service “ was in the processes of mili­
tary administration,” since on April 19, 1949, 
he had tendered such resignation “ for the good 
o f the service, in lieu of trial by court-martial” 
on the various charges pending against him (id.).

“ The record of trial reveals that” Dennis “ was 
defended ably and vigorously by the regularly 
appointed defense counsel, all three of whom were 
qualified attorneys, admitted to the practice of 
law in their respective states and designated as



21

judge advocates by the Chief of Staff, United 
States Air Force” , and that they participated in 
the case since their formal assignment (March 21, 
1949) without knowledge that Dennis was willing 
to obtain Coloney Daly as special counsel after the 
original information to Dennis that Daly was 
unavailable for the requested assignment (Resp. 
Ex. (Dennis) C, pp. 15-18; 4 CMR (A F ) 872, 
882-884)A

2. As to Burns, the Board of Review found 
that the record indicated that he “ was defended 
at the trial by counsel of his choice”  (Resp. Ex. 
(Burns) C, p. 19; 4 CMR (AF) 907, 921-922); 
that “ Calvin Dennis’ testimony was consistent 
in every respect with the corroborative evidence”  
(Resp. Ex. (Burns) C, p. 11; 4 CMR (A F) 907, 
916); and that the atmosphere on Guam was not 
such as to preclude a fair and impartial trial 
(Resp. Ex. (Burns) C, p. 22; 4 CMR (A F) 907, 
922).* 17

O. REVIEW BY THE JUDICIAL COUNCIL AND THE JUDGE ADVOCATE
GENERAL

The Judicial Council, in the Office of The Judge 
Advocate General, after the submission of sep­
arate briefs and oral arguments on behalf of each 
petitioner by one of their present counsel to the

Ki The other alleged irregularities, now urged in the habeas 
corpus petitions, were apparently not urged by petitioner’s 
counsel before the Boards of Review but were urged subse­
quently before The Judge Advocate General on petition for 
new trial (see pp. 23-28, infra).

17 See fn. 16, sujrra.



22

effect “ that the conviction should not be permit­
ted to stand because the record shows violation 
o f”  their “ fundamental individual rights,”  ap­
proved all prior proceedings against Dennis and 
Burns on July 18, and August 18, 1950, respec­
tively (Resp. Ex. (Dennis) D ; 4 CMR (A F ) 
888-904; Resp. Ex. (Burns) D ; 4 CMR (A F ) 
923-927). The two opinions were extensive, con­
sidering each of the points raised by the aceuseds’ 
counsel.

Subsequently, in view of a series of letters on 
behalf of petitioners, containing “ allegations 
which if true would reflect adversely upon the 
fundamental fairness o f”  their trials, and because 
of the gravity of the sentences, The Judge Ad­
vocate General of the Air Force, in his “ capacity 
as supervisor of the administration of military 
justice generally,”  “ requested the Office of 
Special Investigations, Office of The Inspector 
General, to make a complete investigation of these 
matters”  (Resp. Ex. (Dennis) E ; 4 CMR (AF1) 
904-907; Resp. Ex. (Burns) E ; 4 CMR (A F) 
927-930). Later, in transmitting, pursuant to the 
provisions of A W  50 (d) (1) {infra, pp. 84-85), 
the records of the appellate review accorded peti­
tioners to the Secretary of the Air Force, The 
Judge Advocate General reported that “ the most 
comprehensive investigation of the Office of 
Special Investigations disclosed nothing which 
would warrant my recommending disapproval of



23

the sentence”  of either petitioner (Resp. Ex. 
(Dennis) E, p. 4; 4 CMR (A F ) 904, 906; Resp. 
Ex. (Burns) E, p. 4; 4 CMR (A F ) 927, 929).18

On August 3, 1951, the President of the United 
States confirmed petitioners’ sentences and or­
dered their execution by the Commanding Gen­
eral, Far East Air Force (Resp. Ex. (Dennis) F ; 
4 CMR (A F ) 907; Resp. Ex. (Burns) F ; 4 CMR 
(A F) 930).

D. REVIEW ON P E T m d J fg  TO THE JUDGE ADVOCATE GENERAL FOR
NEW  TRIALS

Thereafter, petitioners, pursuant to provisions 
of 50 U. S. 0., Supp. V, 660 (formerly Article 
of War 53), filed with The Judge Advocate Gen­
eral their petitions for a new trial (R. 8, 17, 19, 
2, 10; Resp. Ex. (Dennis) G, p. 4; Resp. Ex. 
(Burns) G, p. 4). These petitions urged all 
the points which are set forth in the present 
habeas corpus petitions. The Judge Advocate 
General appointed a new board of officers, which 
heard the arguments of petitioners’ counsel, and 
considered all the evidence presented (Resp. Ex. 
(Dennis) G, Appendix B, inf ra, pp. 88-108; Resp. 
Ex. (Burns) G, Appendix C, infra, pp. 109-130). 
On January 28, 1952, The Judge Advocate Gen­
eral, after considering the memoranda of the 
board of officers and after re-examining petition-

18 The reports o f the independent investigation were also 
forwarded to the Secretary o f the A ir Force (4 CMR (A F )
929).



24

ers’ entire trial records and the independent in­
vestigations conducted at his request, as against 
the allegations set forth in their petitions for a 
new trial, denied petitioners’ request for a new 
trial. He made the following findings with re­
spect to the grounds alleged in their petitions: 18 

1. Unlawful detention.—He concurred in the 
findings of the Judicial Council that at the time 
of their arrest petitioners were “ not deprived of 
any right to a preliminary hearing before a com­
mitting magistrate or other like authority” , be­
cause Guam at that time was under control of “ a 
military government deriving its authority from 
the United States and administered by the De­
partment of the Navy. * * * Chapter 35,
‘ Civil Regulations With the Force and Effect of 
Law in Guam’ (United States Government Print­
ing Office, 1947) provides for the detention of 
United States military personnel and with respect 
to such personnel, operates in lieu of Sections 
825 and 847-849, Penal Code of Guam, which is 
applicable to other offenders”  (Resp. Ex. 
(Dennis) G, p. 7, Appendix B, infra, pp. 99-100). 
It was pointed out that this objection had no appli­
cation to Burns since he had made no confession 
(Resp. Ex. (Burns) G, p. 7, Appendix C, infra, 
pp. 119-120). 19

19 For the Court’s convenience, the opinions o f The Judge 
Advocate General on the petitions for new trial are reprinted 
in Appendix B (Dennis), and Appendix C (Burns), infra, 
pp. 88-130.



25

2. Coerced confessions.—The four statements 
made by Herman Dennis while he was detained 
by the Guam authorities were received in evidence 
against him, only “ after presentation to the 
court of much evidence with respect to the volun­
tary nature of these confessions, including peti­
tioner’s own sworn testimony as a witness in his 
own behalf, and his denial that physical force 
was used against him” , together with testimony 
showing that he had been warned of his consti­
tutional rights (Resp. Ex. (Dennis) G, p. 8, 
Appendix B, infra, pp. 100-101). The Judge Ad­
vocate General agreed with the court that all the 
confessions were wholly voluntary (Resp. Ex. 
(Dennis) G, p. 8, Appendix B, infra, p. 101).

3. Denial of counsel of petitioners’ choice, or 
effective assistance of counsel.—The record 
showed that petitioners had “ capable counsel”  
of their own choice, and that they were defended 
with “ loyalty, ability, and skill”  (Resp. Ex. 
(Dennis) G, p. 12, Appendix B, infra, pp. 106- 
107; Resp. Ex. (Burns) G, p. 12, Appendix C, 
infra, p. 128).

4. Suppression of evidence.—The Judge Advo­
cate General, in rejecting as a ground for a new 
trial the contention “ that important evidence 
in the nature of Eilipino identification discs (dog- 
tags) and a blood-stained Navy officer’s uniform 
alleged to have been found in the vicinity of the 
crime about the time of its commission, was with­



26

held from the court,”  stated that “ this allegation 
was made the subject of a thorough investigation, 
from which I  have concluded that the charge 
is baseless”  (Resp. Ex. (Dennis) Gf, p. 12, Appen­
dix B, infra, p. 107; Resp. Ex. (Burns) G, p. 13, 
Appendix C, infra, p. 128).

5. Perjured testimony.—In view of the trial 
record and circumstances surrounding the case, 
The Judge Advocate General found that he could 
not place any credence in Calvin Dennis’ affida­
vits repudiating his testimony given against 
Burns at the latter’s trial (Resp. Ex. (Burns) G, 
p. 8, Appendix C, infra, pp. 120-125). He agreed 
with the Judicial Council, which found that “ the 
record discloses that the trial judge advocate and 
the law member used commendable care to assure 
that Private Calvin Dennis appeared as a witness 
voluntarily and that there was present no coercive 
influence which would cause him to tell other 
than the truth” , and that their interrogation 
shows “ conclusively that Private Calvin Dennis 
offered himself as a witness freely and volun­
tarily and that his testimony was given with a 
full and complete understanding of his rights, 
uninfluenced and uncolored by any threat or 
promise”  (Resp. Ex. (Burns) D, p. 5, 4 CMR 
(A P) 907, 926; Resp. Ex. (Burns) G, p. 10, Appen­
dix C, infra, pp. 123-124). During his repeated 
assertions that he was testifying voluntarily, Cal­
vin Dennis ‘ ‘ sustained himself through a searching



27

cross-examination”  by the defense (Eesp. Ex. 
(Burns) G, p. 8, Appendix C, infra, p. 122).

Concerning the affidavits of Lieutenant Colonel 
Daly and Miss Mary Louise Hill, in which they 
alleged facts tending to support the theory of 
the involuntary nature of Calvin Dennis’ con­
fessions, The Judge Advocate General noted 
that the allegations contained therein “ were made 
the subject of an exhaustive investigation by the 
Directorate of Special Investigations, Office of the 
Inspector General, United States Air Force, both 
from the standpoint of the charges made and 
the motives for making the charges” , and after 
reviewing the results of this investigation he 
could “ arrive at no different conclusion than that 
previously reached, that the charges are un­
founded”  (Eesp. Ex. (Dennis) G, p. 9, Appendix
B, infra, p. 102; Eesp. Ex. (Burns) G, pp. 10-11, 
Appendix C, infra, p. 125).

6. Trial in an atmosphere of terror.—The 
Judge Advocate General approved the conclusions 
(Eesp. Ex. (Burns) G, pp. 13-14, Appendix C, 
infra, p. 120) that Burns’ record shows that the 
atmosphere on Guam was not such as to preclude 
a fair and impartial trial (Eesp. Ex. (Burns)
C, p. 22; 4 CME (A F ) 907, 922). “ All members 
of the court were from organizations located at 
distant points from the Island of Guam”  (id.). 
Burns’ counsel cross-examined several of the 
members of the court to determine whether they

240197—63 ------------3



28

possessed any preconceived opinion as to Burns’ 
guilt or innocence, and declined to challenge any 
member for cause (id.). As for Dennis’ charge 
that he was prejudiced by the admission of testi­
mony by a white woman on Guam that petitioner 
had stated to her his unhappiness at segregation 
on the island and his desire for her picture, The 
Judge Advocate General concluded that the “ evi­
dence was properly admitted as a circumstance 
tending to show petitioner’s feeling toward 
women, and his previous desires for female com­
panionship” , and that the evidence was not intro­
duced to prejudice the court-martial (Resp. Ex. 
(Dennis), G. p. 10, Appendix B, infra, p. 104).

I l l

TH E JU DICIAL PROCEEDINGS

The District Court, without affording petition­
ers a hearing, dismissed the petitions for writs 
of habeas corpus, on the ground that they did 
“ not state facts upon which the relief sought 
can be granted”  (R. 20). On the basis of the 
materials summarized in Part I I  (supra, pp. 
6-28), it ruled that “ The record here shows that 
extensive consideration was given to each of the 
matters asserted in support of the relief sought 
in these proceedings, and the various military 
authorities who were charged with the responsi­
bility of review determined such matters to he 
factually groundless”  (R. 19-20).



29

On appeal, the Court of Appeals for the Dis­
trict of Columbia Circuit affirmed the judgments 
of the District Court (R. 57-58). It stated that, 
in accordance with its “ frequent practice in 
capital eases,” it had examined “ the whole”  o f 
petitioners’ “ long records,”  but concluded, “ in 
agreement with^the District Court, that the facts 
alleged in the petitions, viewed in the light of the 
return to the rule, do not supply grounds upon 
which the relief sought can be granted” (R. 43). 
The court’s exhaustive opinion took up each o f 
the allegations of irregularity or unfairness, in­
cluding the affidavits presented in support of the 
charges, and concluded that none of the allega­
tions went to the jurisdiction of the court-martial, 
even under an expanded concept of jurisdiction. 
Circuit Judge Bazelon dissented on the ground 
that a sufficient showing had been made by peti­
tioners to call for a hearing in the District Court 
(R. 44-56).

S U M M A R Y  OF A R G U M E N T

I
A. Throughout the history of the United States, 

this Court has consistently and repeatedly held 
that the only function of the civil courts in re­
viewing a trial by court-martial is to determine 
whether the court-martial was acting within its 
jurisdiction. Decisions have limited collateral in­
quiry to whether the court-martial had been.



30

properly constituted, had jurisdiction of the per­
son and offense or subject matter, and. had power 
to impose the sentence. See, e. g., Ex parte Reed, 
100 U. S. 13, 23. Under this concept, this Court 
has held insufficient to raise a jurisdictional issue 
allegations that one officer acted as accuser, pros­
ecution witness, and member of the court (Keyes 
v. United States, 109 U. S. 336, 340) ; that a 
member of the court was biased against an ac­
cused ( S tv aim v. United States, 165 U. S. 553, 
560-1); and that a confession was obtained by 
duress (Collins v. McDonald, 258 U. S. 416, 
420-421).

The recent tendency by lower courts to expand 
the concept of jurisdiction has not been reflected 
in the recent decisions of this Court. In Hum­
phrey v. Smith, 336 U. S. 695, this Court held, 
contrary to the trend in the lower courts, that 
failure to comply with the pre-trial investigation 
procedure of former Article of W ar 70 did not 
oust a court-martial of jurisdiction. And Hiatt v. 
Brown, 339 U. S. 103, went squarely counter to 
the tendency indirectly to review court-martial 
proceedings on the ground that a totality of 
errors would establish such lack of due process 
as to deprive the court-martial of jurisdiction.

There is in the subsequent decision of this 
Court in TVhelchel v. McDonald, 340 U. S. 
122, 124, a suggestion that denial of a truly 
basic right—specifically the opportunity to



31

raise before the military authorities a funda­
mental issue which should be considered by 
them—could amount to a jurisdictional defect. 
We may assume for this case that a jurisdictional 
issue would also be raised if there was in the 
military proceeding a defect so serious as to 
deprive it of the essential characteristics of a 
trial, as, for example, if there was a finding with­
out hearing any evidence. But a jurisdictional 
issue is not presented merely by challenging as 
unfair or incorrect the manner in which a duly 
constituted court-martial (or reviewing author­
ity) has determined an issue within its jurisdic­
tion, or by claiming that the point of time at 
which, or the manner in which, the issue may be 
raised within the military proceedings amounts 
in effect to a denial of a fair opportunity to pre­
sent the issue.

B. The reasons for the consistent position of 
this Court that review of courts-martial is strict­
ly limited to fundamental matters of jurisdiction 
stem from the different natures and goals of 
military and civil life. The maintenance of dis­
cipline, and the concomitant necessity of punish­
ing offenders, form an important and integral part 
of the military establishment whose primary 
function is to defend the country, and, in time 
of war, to win the war. The problem of balanc­
ing the needs of the defense forces against the 
traditional rights of an individual accused is es­



32

sentially a question for legislative judgment, and
was recognized as such by the framers of the 
Constitution. The military courts are created 
by Congress under the authority conferred by 
the First Article of the Constitution; they are 
not courts with jurisdiction in law and equity 
within the meaning of the Third Article. In re 
Vidal, 179 U. S. 126. It is part of our constitu­
tional pattern that “ to those in the military or 
naval services of the United States, the military 
law is due process.” Reaves v. Ainsworth, 219 
U. S. 296, 304.

There are also practical reasons why review 
by civil courts should be strictly limited. The 
persons who participated in any particular court- 
martial may, by the time the matter comes up in 
civil courts, be stationed in distant places in per­
formance of their primary duty to defend the 
country. The burden of collateral inquiry into 
their past actions should not lightly be imposed.

The limited function of the civil courts with re­
spect to courts-martial is emphasized by the fact 
that Congress has shown itself to be well aware of 
its obligation to protect the fundamental rights 
of individuals subject to military law. The re­
visions of the Articles of War spell out the 
individual rights of the accused and provide 
complete and dispassionate review separate from 
the immediate command under which the court- 
martial is conducted. The military establish­



33

ment itself affords adequate machinery for an im­
partial trial and for the correction of trial error 
or unfairness.

C. When petitioners’ general characterizations 
of a denial of fundamental rights to a trial are 
examined in the light of the facts alleged in sup­
port thereof, as well as of the record within the 
system of military justice, it is evident that peti­
tioners are in actuality seeking review of military 
determinations with which they disagree, rather 
than attacking jurisdiction.

1. The admissibility of the Herman Dennis con­
fessions was litigated at every step of the military 
process. Petitioner’s attack on the holding of ad­
missibility seeks merely a re-evaluation of the 
evidence pertaining to duress, a right he does not 
have. Whelchel v. McDonald, 340 U. S. 122, 124, 
126. Such a contention would not support a col­
lateral attack on a criminal judgment of 
conviction.

2. Insofar as the argument as to illegal deten­
tion is separate from that on the admissibility 
of the confessions, it clearly raises no issue of 
jurisdiction. Aside from the fact that the matter 
was presented to and decided by the military 
authorities, the rule of McNabb v. United States, 
318 U. S. 332, is not imposed by the Due Process 
Clause and does not apply to courts-martial.

3. Although petitioners allege denial of effec­
tive assistance of counsel, it is indisputable that



34

(a) they did in fact have counsel who had ample 
time to prepare for trial and (b) that this issue 
was also presented to and determined by the mili­
tary in the course of appellate review. Dennis is 
really seeking review of the careful decision of 
the military authorities as to the availability of 
Lt. Col. Daly, and Burns a review of the conduct 
of his own personally selected counsel.

4. The charge that the trials were conducted 
in an atmosphere of terror is unsupported by 
allegations of fact except a rumor that there would 
be a riot. That is not a sufficient allegation of fact 
for this serious charge, particularly where it ap­
pears on the face of the record that all members 
of the court were summoned from distant stations 
to conduct a trial at a place which was wholly 
under military control.

5. In the abstract, a charge of the knowing use 
of perjured testimony and knowing suppression 
of evidence may present a question so funda­
mental to the concept of a trial as to raise an 
issue of jurisdiction, if review by civil courts 
extends at all beyond the traditional limitations 
of jurisdiction. However, petitioners, in support 
of their charge, have filed affidavits which seem 
to indicate that the alleged facts were known to 
the affiants and to petitioners before trial. They 
have not made clear their ignorance nor alleged the 
fraud in sufficient detail to warrant the District 
Court in holding a hearing. Rather, they have



35

rested on wholesale and obscure charges, largely 
based on hearsay, which they have not connected 
with the prosecution or the actual trial in any 
substantial way. Moreover, the allegations were 
reviewed during the course of military review and 
were rejected after exhaustive and independent 
investigation. Petitioners are, therefore, simply 
asking civil courts to review a matter which was 
properly before and properly passed upon by the 
military authorities.

As to the allegation that the testimony of Calvin 
Dennis was perjured, the record of the Burns 
trial clearly shows that the credibility of Calvin 
Dennis was attacked on the ground that, he had been 
offered inducements to testify. This allegation of 
the knowing use of perjured testimony is merely, 
once again, an indirect way of attempting to 
secure a redetermination of a dispute in issue at 
the trial.

II

Even assuming that the allegations of the know­
ing suppression of relevant evidence and use of 
perjured testimony were sufficient, and that, 
under a broader concept of jurisdiction, some 
of the other allegations could be deemed to raise 
jurisdictional issues, the court below was clearly 
correct in holding that no hearing was required, 
since the District Court could, on examination 
of the record, properly adopt the findings made



36

by the military in the course of the corrective 
process available within the system of military 
justice.

In view of the constitutional and historical 
separation of military and civil courts, the court 
below was justified in applying to habeas corpus 
review of court-martial judgments the general 
principles governing the reviewability, in federal 
habeas corpus, of state court judgments. See 
Gusik v. Schilder, 340 U. S. 128, 131-132.

A. It is well-established that, where the con­
stitutional questions raised by a person convicted 
in a state court have been adjudicated on the 
merits in the state corrective proceedings, a fed­
eral court will not re-examine the questions thus 
adjudicated unless the state system was unable 
to afford a constitutionally adequate process for 
relief, or some “ exceptional circumstances of 
peculiar urgency are shown to exist.”  E. g., Ex 
parte Hawk, 321 U. S. 114, 117, 118.

Petitioners were given full opportunity to, and 
did, tender before the military appellate author­
ities, and in the proceedings for a new trial, 
exactly the same issues raised in their habeas 
corpus petitions. The appellate and corrective 
processes within the Air Force and the executive 
branch were plainly adequate in structure and 
powers. In particular, under the new trial pro­
cedure of former Article of War 53 (10 U. S. C. 
(Supp. I I )  1525), and its successors in the Uniform



37

Code of Military Justice, Congress made broad 
provision for post-conviction hearings and redress 
of wrongs. Such procedure is fundamentally fair. 
The fact that it may not in all respects accord with 
that in civil cases is not a valid objection. Cf. 
United States v. Fletcher, 148 U. S. 84. The rec­
ord shows that each of petitioners’ contentions was 
carefully considered, even to the point of a special 
independent investigation of the allegations re­
lating to matters outside the record, and the 
results of the investigation were re-examined by a 
special board of officers after hearing petitioners’ 
counsel in support of the motions for a new trial, 
as well as by The Judge Advocate General. Hence 
the habeas corpus court properly could and should, 
in the exercise of its discretion based on the military 
record before it, adopt the military findings with­
out an additional hearing. Barr v. Bur ford, 339 
IT. S. 200.

B. Moreover, the Court of Appeals did not 
content itself with summarily accepting the mili­
tary findings, but made a careful review of the 
materials pertaining to each of petitioners’ 
charges. This review reinforces the correctness 
of its conclusion that the process of military 
review had fairly determined the issues against 
petitioners.



38

A R G U M E N T

I
TH E PETITIONS FOE HABEAS CORPUS, W H E N  CON­

SIDERED W IT H  BOTH TH E FACTS ALLEGED IN  
SUPPORT AND TH E M ILITARY  RECORD, RAISE NO 
ISSUE OF JURISDICTION, W H IC H  ALONE IS W IT H IN  
T H E  COMPETENCE OF CIVIL COURTS TO REVIEW

A. REVIEW OF COURTS-MARTIAL BY CIVIL COURTS IS STRICTLY 
LIMITED TO ISSUES OF JURISDICTION

Throughout the history of the United States, 
this Court has consistently and repeatedly held 
that it is not the function of the civil courts to 
review trials by court-martial except to determine 
whether the court-martial was acting within its 
jurisdiction. The scope of civil review was suc­
cinctly expressed in the ease of In re Grimley, 137 
U. S. 147,150, as follows:

It cannot be doubted that the civil courts 
may in any case inquire into the jurisdic­
tion of a court-martial, and if it appears 
that the party condemned was not ame­
nable to its jurisdiction, may discharge him 
from the sentence. And, on the other hand, 
it is equally clear that by habeas corpus 
the civil courts exercise no supervisory or 
correcting power over the proceedings of 
a court-martial; and that no mere errors 
in their proceedings are open to considera­
tion. The single inquiry, the test, is juris­
diction.

This concept of the separateness of courts -mar­
tial and their immunity from civil review except



39

on jurisdictional grounds was suggested in the 
early opinions of Chief Justice Marshall in Wise 
v. Withers, 3 Crunch 331, and Ex Parte Watkins, 
3 Pet. 193. See also Martin y. Mott, 12 Wheat. 
19, 38-39. It was explicitly articulated in Dynes 
v. Hoover, 20 How. 65, 82-83. Succeeding deci­
sions have limited collateral inquiry to whether 
the court-martial had been properly constituted, 
had jurisdiction of the person and offense or sub­
ject matter, and had power to impose the sen­
tence. Ex Parte Reed, 100 U. S. 13, 23; Ex Parte 
Mason, 105 U. S. 696, 699; Keyes v. United States, 
109 IT. S. 336, 340; Wales v. Whitney, 114 U. S. 
564, 570; Kurts v. Moffitt, 115 U. S. 487, 500; 
Smith v. Whitney, 116 U. S. 167, 177-179, 186; 
Runkle v. United States, 122 IT. S. 543, 556; In  
re Grimley, 137 U. S. 147, 150; Mullan v. United 
States, 140 U. S. 240,245; United States v. Fletcher, 
148 II. S. 84, 91-92; Johnson v. Sayre, 158 U. S. 
109, 118; Swaim v. United States, 165 TJ. S. 553, 
555, 561, 562, 565, 566; Garter v. Roberts, 177 
IT. S. 496, 498; Carter v. McGlaughry, 183 U. S. 
365, 380-381, 382-401; McGlaughry v. Doming, 
186 U. S. 49, 63, 69; Bishop v. United States, 197 
IJ. S. 334; Grafton v. United States, 206 IT. S. 333, 
345-348; Mullan v. United States, 212 IJ. S. 516, 
520; Givens v. Zerbst, 255 U. S. 11, 19; Collins v. 
McDonald, 258 U. S. 416, 418, 420-421; French v. 
Weeks, 259 IJ. S. 326, 335-336 (military boards 
and courts of inquiry) ; Greary v. Weeks, 259



40

U. S. 336, 343-344 (the same) ; Ex Parte Quirin, 
317 U. S. 1 (military commission) ; In re Yama- 
shita, 327 IT. S. 1, 8-9 (military commission); 
Humphrey v. Smith, 336 IT. S. 695, 696; Wade 
v. Hunter, 336 IT. S. 684, 688; Hiatt v. Brown,
339 IT. S. 103, 110-111; Whelchel v. McDonald,
340 U. S. 122, 124; Gusik v. Schilder, 340 IT. S. 
128, 132-133.

Errors, improprieties, and irregularities not 
going to jurisdiction have not been enough to in­
voke civil review, and the civil courts cannot re­
view and weigh evidence, pass on evidentiary or 
procedural rulings, or determine the guilt or in­
nocence of the accused. The extent to which the 
concept of “ jurisdiction”  has been limited in the 
past is well illustrated by Keyes v. United States, 
109 IT. S. 336, where the Court declared itself 
without power to set aside a court-martial con­
viction in which one officer acted as accuser, pros­
ecution witness, and a member of the court, al­
though the Court took pains to point out that 
it was expressing “ no opinion as to the propriety 
of the proceedings of the court-martial in the re­
spects in which they are assailed”  (109 IT. S. at 
340). In Swaim v. United States, 165 IT. S. 553, 
560-561, the civil courts refused to review, as be­
yond their competence, the action of a court-mar­
tial in permitting an officer to sit as a member 
whom the accused had several times severely 
criticized and who, it was charged, was therefore 
an enemy of the accused. And in Collins v. 31 c-



41

Donald, 258 U. S. 416, 420-421, the Court declared 
that admission of a confession allegedly procured 
by the accused’s superior officer by the exercise 
of duress was “ an error in the admission of testi­
mony, which cannot be reviewed in a habeas 
corpus proceeding.”  See also, e.g., Garter v. 
Woodring, 92 F. 2d 544, 546 (C. A. 1). C.), cer­
tiorari denied, 302 U. S. 752 (alleged subornation 
of perjury by trial judge advocate, prior agree­
ment of members of court to convict accused, 
instructions by superior to court members to con­
vict, e tc .); Ex Parte Tucker, 212 Fed. 569 (D. 
Mass.) (violation of statutory prohibition forbid­
ding judge advocate to be present during closed 
session of court-martial).

It was not until recently, starting about 1943 
with the case of 8 chita v. King, 133 F. 2d 283 
(C. A. 8), certiorari denied, 322 U. S. 761 
(cf. Schita v. Cox, 139 F. 2d 971 (0. A. 8), 
certiorari denied, 322 U. S. 761), that there 
began to appear, in the lower federal courts, 
a tendency to broaden the concept of jurisdiction 
beyond the traditional limitations established by 
the earlier decisions. See Pasley, The Federal 
Courts Look at the Court-Martial (1950) 12 Univ. 
of Ptt. L. Rev. 7, 25-34. That tendency has not 
been reflected in the recent decisions of this Court.

Thus, one of the major bases for attack on 
courts-martial in recent eases was the claim that 
failure strictly to comply with the pre-trial in­
vestigation procedure of former Article of War



42

70 (10 U. S. C., 1946 ecL, 1542) resulted in ousting 
the court-martial o f jurisdiction. See, e. g., Henry 
v. Hodges, 171 F. 2d 401 (C. A. 2), certiorari 
denied sub nom. Henry v. Smith, 336 IT. S. 968; 
Reilly v. Pescor, 156 F. 2d 632, 634R635 (C. A. 
8), certiorari denied, 329 U. S. 790; De War v. 
Hunter, 170 F. 2d 993, 995-997 (C. A. 10), certi­
orari denied, 337 U. S. 908; Benjamin v. Hunter, 
169 F. 2d 512 (C. A. 10); and see Note, The 
Preliminary Investigation in the Army Court- 
Martial System— Springboard for Attack by 
Habeas Corpus (1949), 18 Geo. Wash. L. Rev., 
67 if. When that issue came before this Court, 
it held that the requirements of Article of War 
70 were not mandatory and that failure to comply 
therewith was not jurisdictional. Humphrey v. 
Smith, 336 U. S. 695.20 And in Wade v. Hunter, 
336 XL S. 684, 688 (fn. 4), the Court expressly 
passed over the issue of the extent to which a 
court-martial’s overruling of a plea of former 
jeopardy under the Fifth Amendment is subject 
to collateral attack in habeas corpus.

Even more important is the fact that this Court, 
in Hiatt v. Brown, 339 U. S. 103, went squarely 
counter to the tendency which had developed in 
the lower federal courts indirectly to review court- 
martial proceedings on the ground that a totality

20 It is to be noted that many of the cases on due process 
cited in footnote 28 of the Court of Appeals’ opinion below 
(R. 30) revolved around Article o f War 70.



43

of errors would establish such lack of due process 
as to deprive the court-martial of jurisdiction. 
See, e. g., S chita v. King, 133 F. 2d 283 (C. A. 8), 
certiorari denied, 322 U. S. 761; United States 
v. Hiatt, 141 F. 2d 664, 666 (C. A. 3) ; Waite v. 
Overlade, 164 F. 2d 722, 724 (C. A. 7), certiorari 
denied, 334 U. S. 812; United States ex ret Wein- 
traub v. Sivenson, 165 F. 2d 756 (C. A. 2 ); 
De War v. Hunter, 170 F. 2d 993, 996-997 (C. A. 
10), certiorari denied, 337 U. S. 908; Montalvo v. 
Hiatt, 174 F. 2d 645 (C. A. 5), certiorari denied, 
338 U. S. 874; Hicks v. Hiatt, 64 F. Supp. 238, 
249-250 (M. D. Pa) ; Anthony v. Hunter, 71 F. 
Supp. 823 (D. K an .); Boone v. Nelson, 72 F. 
Supp. 807, 808 (D. Me.). In the light of this 
trend of lower court decisions, it is significant 
that this Court reversed such a “ due process” 
holding and expressly reaffirmed the traditional 
scope of civil review of courts-martial, stating 
{Hiatt v. Brown, 339 U. S. 103, 110-111) :

The Court of Appeals also concluded that 
certain errors committed by the military 
tribunal and reviewing authorities had de­
prived respondent of due process. We 
think the court was in error in extending 
its review, for the purpose of determining 
compliance with the due process clause, to 
such matters as the propositions of law 
set forth in the staff judge advocate’s re­
port, the sufficiency of the evidence to sus­
tain respondent’s conviction, the adequacy 
of the pretrial investigation, and the com-

240197— 53- 4



44

petence of the law member and defense 
counsel. Cf. Humphrey v. Smith, 336 U. S. 
695 (1949). It is well settled that “by 
habeas corpus the civil courts exercise no 
supervisory or correcting power over the 
proceedings of a court-martial * * *
The single inquiry, the test, is jurisdiction.”  
In re Grimley, 137 U. S. 147, 150 (1890). 
In this case the court-martial had juris­
diction of the person accused and the of­
fense charged, and acted within its lawful 
powers. The correction of any errors it 
may have committed is for the military 
authorities which are alone authorized to 
review its decision. In re Yamashita, 327 
IT. S. 1, 8-9 (1946); Swaim v. United 
States, supra, 165 U. S. at 562.

The Court of Appeals below attached consider­
able significance to the use of the phrase “ acted 
within its lawful powers”  in the Hiatt v. Brown 
opinion, supra, and construed that expression as 
implying a broader scope of review than has 
been traditional. Such an interpretation of the 
opinion is not well founded. The quoted expres­
sion is not new; it has been employed repeatedly 
over a period of years to epitomize the jurisdic­
tional requirement that the sentence imposed by 
a court-martial be within the maximum limit , 
prescribed for the offense. Thus, in 1895, in 
Johnson v. Sayre, 158 IT. S. 109, 118, the Court 
held:



45

The court martial having jurisdiction of 
the person accused and of the offense 
charged, and having acted within the scope 
of its lawful powers, its decision and sen­
tence cannot be reviewed or set aside by the 
civil courts, by writ of habeas corpus or 
otherwise.

See, to the same effect, Swairn v. United States, 
165 U. S. 553, 561 (1897). In 1902, in Carter 
v. McClaughry, 183 U. S. 365, 380-381, the Court 
quoted from Carter v. Roberts, 177 U. S. 496, as 
follows:

* * * Courts martial are lawful tri­
bunals, with authority to finally determine 
any case over which they have jurisdiction, 
and their proceedings, when confirmed as 
provided, are not open to review by the 
civil tribunals, except for the purpose of 
ascertaining whether the military court 
had jurisdiction of the person and subject 
matter, and whether, though having such 
jurisdiction, it had exceeded its powers in 
the sentence pronounced.

In 1922, in Collins v. McDonald, 258 U. S. 416, 
418, the Court said:

I f  the District Court had issued the writ 
as prayed for, the only questions it would 
have been competent for it to hear and 
determine would have been, “ Did the court 
martial which tried and condemned the 
prisoner have jurisdiction, of his person, 
and of the offense charged, and was the 
sentence imposed within the scope of its



46

lawful powers?”  “ The single inquiry, the 
test, is jurisdiction . . .” 21

In the light both of these previous decisions in 
which similar language was employed and of the 
Brown holding itself, it seems clear to us that 
the use of the expression, “ acted within its law­
ful powers,”  in Hiatt v. Brown, denoted no change 
in the matters of court-martial “ jurisdiction”  
subject to review in habeas corpus. Certainly, 
giving it the reading most favorable to petitioners, 
Hiatt v. Brown holds (at least) that an allegation 
of lack of due process, supported merely by 
claimed errors as to matters which were in issue 
at the court-martial or in the course of military 
review, is not sufficient to raise an issue of juris­
diction. It is revealing that Circuit Judge Biggs, 
who before the Brown decision had, in Hicks v. 
Hiatt, 64 F. Supp. 238 (M. D. Pa.), given a 
sweeping interpretation to the concept of juris­
diction as embracing a claim of unfairness, has 
construed the Brown decision as leaving the dis­
trict courts “ no area of supervision or correction”  
beyond the historical concept of jurisdiction.

21 In Dynes v. Hoover, 20 How. 65, 80, 81, 82, the Court 
spoke, by way of dictum, of deviations from certain essential 
rules in a court-martial proceeding as rendering the court- 
martial coram non judice. See also Runkle v. United States, 
122 U. S. 543, 556 ( “ that all the statutory regulations govern­
ing its proceedings had been complied with” ). The Runkle 
decision is criticized and limited in United States v. Fletcher, 
148 U. S. 84, 90, and Bishop v. United States, 197 U. S. 334, 
342.



47

United States ex rel. McClellan v. Humphrey, 181 
F. 2d 757, 759 (C. A. 3).

There is in the subsequent decision of this 
Court in Whelchel v. McDonald, 340 U. S. 122, 
an obiter suggestion that denial within the court- 
martial system of a truly fundamental right may 
amount to a jurisdictional defect. That opinion 
states (at p. 124) :

We put to one side the due process issue 
which respondent presses, for we think 
it plain from the law governing court- 
martial procedure that there must be af­
forded a defendant at some point of time 
an opportunity to tender the issue of in­
sanity. It is only a denial of that oppor­
tunity which goes to the question of 
jurisdiction.

But the opinion itself indicates that any claim 
of lack of due process must relate to a matter 
which is truly and basically jurisdictional, for 
the Court went on to say (at p. 126) :

Any error by the military in evaluating 
the evidence on the question of insanity 
would not go to jurisdiction, the only issue 
before the court in habeas corpus proceed­
ings. [Italics supplied.]

And in Gusih v. Schilder, 340 U. S. 128, decided 
the same day, this Court referred to In re Grim- 
ley, 137 U. S. 147, 150 (supra,, p. 38), for the 
proposition that the civil courts have traditionally 
exercised no power of supervision or review over 
courts-martial, and stated (at page 132) :



48

. . . These [military] tribunals have op­
erated in a self-sufficient system, save only 
as habeas corpus was available to test their 
jurisdiction in specific cases.

See also 340 U. S. at 133, stressing jurisdiction 
as the only issue open in habeas corpus.

The Court has thus made it clear, recently as 
well as in past decisions, that it is not the func­
tion of the civil courts to re-evaluate matters de­
termined in the military proceedings. Even the 
suggestion in the Whelchel opinion implies no 
more than that a jurisdictional question may be 
presented if opportunity is denied to raise before 
the military authorities a fundamental issue 
which should be considered by them. Though 
some earlier decisions look the other way (supra, 
pp. 39-40; see, especially, Keyes v. United States, 
109 IT. S. 336, and Garter v. Woodring, 92 F. 2d 544 
(C. A. D. C .), certiorari denied, 302 IT. S. 752), 
we may also assume for this case that a jurisdic­
tional issue would be raised if there was in the 
military proceeding a defect so serious as to de­
prive it of the essential characteristics of a trial, 
as, for example, if there was a finding by the 
court-martial without hearing any evidence.218,

21a In Dynes v. Hoover, 20 How. 65, 82, the Court, in speak­
ing o f void court-martial proceedings, said that it did “ not 
mean mere irregularity in practice on the trial, or any mis­
taken rulings in respect to evidence or law, but [of] a disre­
gard of the essentials required by the statute under which the 
court has been convened to try and to punish an offender for 
an imputed violation of the law.” Cf. Mullan v. United 
States, 212 IT. S. 561,520.



49

But a jurisdictional issue is not presented merely 
by challenging as unfair or incorrect the manner 
in which a duly constituted court-martial (or a 
reviewing authority) has determined an issue 
within its jurisdiction, or by claiming that the 
point of time at which, or the manner in which, 
the issue may be raised within the military pro­
ceedings amounts in effect to a denial of a fair 
opportunity to present the issue. The Court of 
Appeals below, in assuming that it had authority 
to review the military proceedings on a broad base 
to determine whether in their totality they ac­
corded with due process, assumed a power which 
this Court has held to be beyond the competence 
of civil courts and thus accorded to petitioners a 
greater right of review than was their due.

B. UNDER THE CONSTITUTION, THE REGULATION OF COURTS- 
MARTIAL- IS A MATTER FOR CONGRESS AND NOT FOR THE COURTS

This Court has seldom articulated the reasons 
why it has so consistently maintained the position 
that review of courts-martial by civil courts is to 
be strictly limited to fundamental matters of 
jurisdiction, but it is evident that they stem from 
the different natures and goals of military and 
civil life. The maintenance of discipline, and the 
concomitant necessity of punishing offenders, form 
an important and integral part of the military 
establishment whose primary function is to de­
fend the country, and in time of war, to win the



50

war. The problem of balancing the needs of the 
defense forces against the traditional rights of 
an individual accused is essentially a question for 
legislative judgment, and was recognized as such 
by the framers of the Constitution. The military 
courts are created by Congress under the author­
ity conferred by the First Article of the Consti­
tution “ To make Rules for the Government and 
Regulation of the land and naval Forces” ; they 
are not courts “ with jurisdiction in law or 
equity”  within the meaning of the Third Article 
of the Constitution. In re Vidal, 179 U. S. 126; 
Ex parte Vallandigham, 1 Wall. 243; Ex parte 
Quirin, 317 U. S. 1, 39. Thus, it is part of our 
constitutional pattern that for those in the armed 
services it is for Congress to determine, in large 
part, what is the proper process, and that “ to 
those in the military or naval services of the 
United States the military law is due process.”  
Reaves v. Ainsworth, 219 U. S. 296, 304; French 
v. Weeks, 259 U. S. 326, 335; Creary v. Weeks, 
259 U. S. 336, 344.22 It has always been recog­

22 See also E x parte Milligan, 4 Wall. 2, 123, where this 
Court said:

“ The discipline necessary to the efficiency o f the army and 
navy, require other and swifter modes o f trial than are fur­
nished by the common law courts; and, in pursuance of the 
power conferred by the Constitution, Congress has declared 
the kinds of trial, and the manner in which they shall be 
conducted, for offences committed while the party is in the 
military or naval service.”



51

nized that a matter relating to the organization 
and administration of courts-martial is “ a matter 
appropriate for congressional action.”  Whelchel 
v. McDonald, 340 U. S. 122, 127. The problem of 
applying to courts-martial the principles of basic 
fairness which would constitute due process in a 
military trial is likewise for Congress, and the 
execution of the congressional decision is pri­
marily for the executive. The function of the 
judiciary is to see that the courts-martial act 
within the area in which they are confined by 
Congress.

Moreover, there are practical reasons why re­
view by civil courts should be strictly limited. 
I f  review by habeas corpus should be widely 
allowed on grounds which raise issues of fact 
rather than of law, the necessity for a hearing 
could cause disruption to the military establish­
ment. The extent of habeas corpus attacks on 
federal criminal convictions proved sufficiently 
burdensome to give rise to the new procedure 
embodied in 28 U. S. C. 2255. Permitting 
wide review of trials conducted by persons 
whose primary duty is, not judging, but de­
fending our nation, is bound to be much more 
disruptive. That is particularly time today in 
view of the far-flung nature of our military forces. 
The persons who participated in any particular 
court-martial may, by the time the matter comes 
up in civil courts, be stationed in such distant



52

places as Guam or Korea or Europe. The neces­
sity of obtaining their testimony, even by depo­
sition, can be a real burden, and if civil 
hearings are to become common the burden will 
be multiplied many-fold. It is also, we believe, 
appropriate to recall that judicial unfamiliarity 
with military life, military law, and the processes 
of military justice can easily lead to erroneous 
evaluations of military conduct leading to unnec­
essary but far-reaching intervention in military 
affairs. See Carter v. McLaughry, 183 U. S. 365, 
400-401; Swaim v. United States, 165 U. S. 553, 
561-562; Smith v. Whitney, 116 U. S. 167, 178- 
179; Dynes v. Hoover, 20 How. 65, 82.

The limited function of the civil courts with re­
spect to courts-martial is emphasized by the fact 
that Congress has shown itself to be well aware of 
the obligation imposed upon it by the Constitu­
tion to protect the fundamental rights of the indi­
viduals subject to military law. The Articles of 
War spell out the individual rights of the accused 
and provide a complete and dispassionate review 
separate from the immediate command under which 
the court-martial is conducted. The military es­
tablishment itself affords adequate machinery for 
the impartial trial of offenses and for the eorrec-



53

tion of trial error or unfairness. The rights which 
the serviceman may have under the Fifth Amend­
ment (cf. Johnson v. Eisentrager, 339 U. S. 763, 
783; Ex parte Quirin, 317 U. S. 1, 45; Ex parte 
Milligan, 4 Wall 2, 138 (opinion of Chase, C. J .)) 
and other constitutional provisions, or under the 
statutory rules governing military tribunals, can 
be, and are being, protected within the military 
justice system.

After World War I, Congress enacted a revision 
of the Articles of War (41 Stat. 759, 787), the basic 
purpose of which was to emphasize the justice as­
pects of military trials. See Ansell, Some Reforms 
in Our System of Military Justice (1922), 32 Yale 
Law Journal 146; Morgan, The Existing Court- 
Martial System and the Ansell Army Articles 
(1919), 29 Yale L. J. 52; Rigby, Military Penal 
Laiv: A Brief Survey of the 1920 Revision of 
the Articles of War (1921), 12 Am. J . Crim. L. and 
Criminology 84. It provided many protections, 
such as the requirement of preliminary investiga­
tion in former Article of War 70 (10 U. S. C., 
1946 ed., 1542); the right to counsel in former 
Articles of War 11 and 17 (10 IT. S. C., 1946 
ed., 1482 and 1488) ; the prohibition against re­
consideration of an acquittal or increase of 
sentence on review, in former Article of War 40 
(10 IT. S. C., 1946 ed., 1511). Former Article of



54

War 50y2 (10 U. S. C., 1946 ed., 1522) established 
the system of appellate review by the Boards of 
Review with provision for a new trial in proper 
cases.

This system, after World War II, was the sub­
ject of a number of studies and investigations. 
See, e. g., TIoltzoff, Administration of Justice in 
the United States Army (1947), 22 1ST. Y. U. L. Q. 
Rev. 1, for a summary of the findings of the War 
Department’s Advisory Committee on Military 
Justice. A  Congressional subcommittee of the 79th 
Congress devoted more than a year to a detailed 
study of the Army system of justice (H. Rep. No. 
2722, 79th Cong., 2d sess.).

The result was the revision of the Articles of 
War, 62 Stat. 627 (See H. Rep. 1034, 80th Cong. 
1st Sess.) which, as implemented by the 1949 
Manual for Courts Martial, United States Air 
Force (promulgated under Executive Order No. 
10026, effective February 1, 1949), governed the 
proceedings against these petitioners. The 
amended Articles permitted enlisted personnel to 
serve on courts-martial on request of enlisted 
accused (Article of War 4, 10 U. S. C. (Supp. 
I I )  1475); required the law member to be a 
lawyer (Article of W ar 8, 10 U. S. C. (Supp. I I ) 
1479); provided that, if available, the trial judge 
advocate and defense counsel of general courts-



55

martial be lawyers (Article of War 11, 10 TJ. S. 
C. (Supp I I )  1482). To meet tiie criticism of 
command influence, Article of War 88 (10
U. S. C. (Supp. I I )  1560) provided that no con­
vening authority or other commanding officer 
“ may censure, reprimand or admonish” the court- 
martial or any member thereof “ with respect to 
the findings or sentence adjudged by the court, or 
with respect to any other exercise * * * of its 
or his judicial responsibility.” As to appellate 
review, the amended Articles of War created, in 
addition to the Board of Review set up by the 
1920 revision, an additional appellate agency, 
known as the Judicial Council, composed of three 
general officers of the Judge Advocate General’s 
Department; the revision granted both reviewing 
agencies, and The Judge Advocate General as 
well, “ authority to weigh evidence, judge the 
credibility of witnesses, and determine contro­
verted questions of fact”  (Article of War 50, 
10 IT. S. C. (Supp. I I ) 1521). The amended Ar­
ticles also contained the special legislation which 
was before this Court in Gusik v. Schilder, 340 
IT. S. 128, providing the right to petition for a 
new trial on broad grounds and establishing with­
in the military establishment an additional cor­
rective process. See Wallstein, The Revision of



56

the Army Court-Martial System (1948) 47 Col. 
L. Rev. 219.23

It is thus evident that Congress has not been un­
mindful of its constitutional duty to provide a 
comprehensive system of military justice. There 
is no basis in law or necessity for permitting or re­
quiring civil courts to give a broad and general re­
view of court-martial proceedings under the guise 
of determining whether due process has been ac­
corded. Congress has assured due process to those 
in the military (cf. Heaves v. Ainsworth, 219 U. S. 
296) and has given them the opportunity to bring 
before properly constituted military authorities all 
matters pertaining to their guilt or innocence, in­
cluding the automatic right of review. Petitioners 
have been accorded all the rights granted to them 
under this system established by Congress, and

23 In 1950, following the unification o f the armed services, 
61 Stat. 495, Congress enacted the Uniform Code of Military 
Justice, 64 Stat. 107, which applied to the Navy and the 
Coast Guard the same procedure governing the Army and 
the Air Force, with some new provisions: e. g., a provision 
making mandatory the practice which prevailed under the 
1948 Articles of having legally trained counsel for both 
prosecution and defense at general courts-martial (Art. 27, 
50 U. S. C. (Supp. V ) 591) ; and a provision removing the 
law officer (formerly the law member) from membership on 
the court (Art. 26, 50 U. S. C. (Supp. V ) 590). The Code 
substituted for the Judicial Council a Court o f Military 
Appeals, composed o f civilians, to review errors o f law only, 
automatically in capital cases among others, and on petition 
in the remaining cases (Art. 67, 50 U. S. C. (Supp. V ) 654). 
By Executive Order 10214, dated February 8, 1951, the 
President prescribed a new Manual for Courts-Martial 
which became effective May 31, 1951.



57

have had the opportunity to present all their 
contentions.24

C. THE PETITIONS FOR HABEAS CORPUS RAISE NO JURISDICTIONAL
ISSUE

I f  we are correct in our interpretation of the 
scope of review of courts-martial by civil courts 
in habeas corpus, then the petitions in the instant 
cases raised no jurisdictional issue within the

24 It is noteworthy that in the Uniform Code o f Military 
Justice Congress provided (50 U. S. C. (Supp. V ) 663, 64 
Stat. 132) :

“ Art. 76. Finality of court-martial judgments.
“ The appellate review of records of trial provided by this 

code, the proceedings, findings, and sentences of courts- 
martial as approved, reviewed, or affirmed as required by this 
code, and all dismissals and discharges carried into execu­
tion pursuant to sentences by courts-martial following ap­
proval, review, or affirmation as provided by this code, shall 
be final and conclusive, and orders publishing the proceed­
ings o f courts-martial and all action taken pursuant to such 
proceedings shall be binding upon all departments, courts, 
agencies, and officers of the United States, subject only to 
action upon a petition for a new trial as provided in article 
73 and to action by the Secretary o f a Department as pro­
vided in article 74, and the authority of the President.”

The 1948 revision o f the Articles of War contained a sim­
ilar provision (Article of War 50 (h ) , 10 U. S. C. (Supp. II ) 
1521 (h))  as well as a finality provision with respect to 
actions on petitions for a new trial (Article of War 53, 10 
U. S. C. (Supp. II ) 1525). See Gusik v. Schilder, 340 U. S. 
128, 132-133. Presumably, Article 76 of the Uniform Code, 
like the former Articles of War, does not deprive the courts 
of their habeas corpus jurisdiction over courts-martial (see 
Brief for Respondent, Gusik v. Schilder, October Term, 1950, 
No. 110, pp. 12-18), but we believe that it does indicate the 
congressional purpose to limit judicial intervention to the 
traditional minimum.



58

competence of a civil court to review, particularly 
when considered in the light of the military 
record. Petitioners did not challenge the juris­
diction of the person or the subject matter nor the 
propriety of the sentence imposed.25 They did 
endeavor to couch their petitions in terms which, 
although this Court has never expressly so held, 
we have assumed for the purposes of the case 
would, under modern concepts, he sufficient to

25 (a) The courts-martial were lawfully appointed by the 
Commanding General, Twentieth Air Force, empowered to 
appoint a general court-martial by Article o f War 8 (10 
U. S. C., 1946 ed., 1479). (b) Under the provisions of Article
of War 92 (10 U. S. C., 1946 ed., 1564), the courts-martial had 
jurisdiction over the offenses of murder and rape. The juris­
diction conferred by this Article as to such offenses is quali­
fied by the provision that no person shall be tried by 
court-martial for murder or rape committed within the geo­
graphical limits o f the States of the Union and the District of 
Columbia in time of “peace.”  However, the offenses here in­
volved were committed on the Island of Guam, and thus not 
within the geographical limits o f the States of the Union and 
the District o f Columbia. Furthermore, the Joint Resolution 
of July 25,1947, Chapter 327, Section 3, 61 Stat. 451, in termi­
nating the state of war for certain purposes, did not termi­
nate it for the purpose o f Article of War 92 (see also Kahn 
v. Anderson, 255 U. S. 1, 9-10). (c) Petitioners were sub­
ject to be tried by court-martial since they were members of 
the United States A ir Foree at the time of the commission 
of the offenses and of the trial by courts-martial, and were 
assigned to the 12th Air Ammunition Squadron situated on 
the Island of Guam, (d) The death sentences adjudged by 
the courts-martial were authorized by Article o f War 92 
which at the time o f the commission o f the offenses provided 
that any person subject to military law who commits murder 
or rape shall suffer death or imprisonment for life as a court- 
martial may direct (10 U. S. C., 1946 ed., 1564).



59

raise a jurisdictional issue, i. e., denial of oppor­
tunity to be heard on their guilt or innocence in 
a hearing that can fairly be characterized as a 
trial. However, when the petitioners’ general 
characterizations of a denial of fundamental 
rights to a trial are examined in the light of the 
facts alleged in support of the allegations, as 
well as of the record within the system of 
military justice,26 it is evident from the peti­
tions themselves that, in actuality, petitioners 
are merely seeking redetermination of issues 
which they could and did fairly present before the 
military authorities and which those authorities 
fairly considered. They really are seeking re­
view of military determinations with which they 
disagree, and are not merely attacking jurisdic­
tion. As a matter of fact, some of petitioners’ 
allegations do not raise an issue of jurisdiction 
within the concept of jurisdiction that pertains 
in relation to collateral attack on federal criminal 
convictions.

1. Confessions.—Certainly Dennis’ attack on 
the admissibility of his confessions raises no 
jurisdictional question. Petitioner was not only 
given the opportunity to, but actually did, raise 
that issue in the court-martial itself and at every 
subsequent stage of review. The petitioner seeks 
merely re-evaluation of the evidence pertaining to 
coercion and duress, a right he clearly does not

2B It is established that the sufficiency of the petitions must 
be tested in the light of the return. Walker v. Johnston, 312 
U. S. 275,284. See the opinion below, K. 23, fn. 1.

240107— 53-------5



60

have. Whelchel v. McDonald, 340 U. S. 122, 124, 
126 {supra, p. 47); Collins v. McDonald, 258 U. S. 
416, 420-421 {supra, p. 41) ; Swairn v. United 
States, 165 U. S. 553, 560-561 {supra, pp. 40-41) ; 
Romero v. Squier, 133 F. 2d 528, 532 (C. A. 9) 
(defense of entrapment), certiorari denied, 318 
U. S. 785. As the court below pointed out 
(R. 36), “ Upon the face of the papers presented 
by the petitioner the issue was, in the light most 
favorable to him, clearly debatable, and there was 
substantial evidence in support of the conclusion”  
against his allegations. An objection to the ad­
missibility of evidence, even on constitutional 
grounds, does not support a collateral attack on 
criminal judgments by either habeas corpus or a 
motion under 28 U. S. C. 2255.27 Smith v. United 
States, 187 F. 2d 192, 197 (C. A. D. C.), certiorari 
denied, 341 U. S. 927; Burall v. Johnston, 134 F. 
2d 614 (C. A. 9), certiorari denied, 319 U. S. 768.28

27 The same comments apply to the charge that Calvin 
Dennis’ confessions were coerced.

28 The failure, i f  any, to advise Herman Dennis o f his con­
stitutional privilege against self-incrimination, did not ren­
der the hair inadmissible in evidence. Powers v. United 
States, 223 IT. S. 303, 314; Wilson v. United States, 162 U. S. 
613, 623; United States v. Freeman, 167 F. 2d 786, 790-791 
(C. A. 7), certiorari denied, 335 U. S. 817; United States v. 
Klinger, 136 F. 2d 677, 678 (C. A. 2), certiorari denied, 320 
U. S. 746.

Moreover, it has been held, in an opinion by Mr. Justice 
Holmes, that an error, if it be one, in requiring a defendant 
to stand up and walk before the jury (an alleged violation 
o f the right against self-incrimination) did not go to the 
jurisdiction o f a territorial court so as to be attackable on 
habeas corpus. Matter o f Moran, 203 U. S. 96,105.



61

2. Detention.—Insofar as the argument is sep­
arate from that on the admissibility of the various 
confessions, petitioners’ allegations concerning 
their detention in the Guam jail—a contention 
also presented to and decided by the military 
authorities—obviously raise no issue of jurisdic­
tion. The rule of McNabb v. United States, 318 
U. S. 332, applies only in the federal courts and 
is not imposed by the due process clause. See 
McNabb v. United States, 318 U. S. at 340; 
Lyons v. Oklahoma, 322 U. S. 596, 597; Gal­
legos v. Nebraska, 342 U. S. 55, 63-64, 72, 73. 
And even if, as is not the case, a similar rule were 
made applicable by military law, violation of the 
rule would not deprive the court-martial of juris­
diction or render the proceedings null and void. 
Richardson v. Zuppmann, 81 F. Supp 809, 813-814 
(M. D. Pa.), affirmed on the opinion below, 174 
F. 2d 829 (C. A. 3). Federal criminal convic­
tions obtained in violation of the McNabb rule 
cannot be attacked on that ground in habeas 
corpus. Miller v. Hiatt, 141 F. 2d 690 (C. A. 3) ; 
Smith v. United States, 187 F. 2d 192, 197 (C. A. 
D. 0 .), certiorari denied, 341 U. S. 927, and eases 
cited. (See also infra, pp. 77 ff.)

3. Counsel.—Although petitioners allege denial 
of effective assistance of counsel, it is indisput­
able that (a) they did in fact have counsel who 
had ample time to prepare for trial (supra, pp. 
12-14, 17-18) and (b) that this issue was pre­
sented to and determined by the military in the 
course of appellate review (supra, pp. 20-21,



62

22, 25). Dennis is really seeking review of the 
decision of the military authorities as to the 
availability of Lt. Col. Daly/9 and Burns a re­
view of the conduct of his own personally se­
lected counsel. Certainly the competence and 
preparation of counsel do not present an issue 
which goes to the jurisdiction of the court-martial. 
Hiatt v. Brown, 339 U. S. 103, 110-111, expressly 
so holds. Furthermore, the allegations of denial 
of the right to counsel are so clearly contradicted 
by the admitted facts {supra, pp. 12-14, 17-18; 
infra, pp. 79-80) as not to raise an issue which 
would require a hearing in a federal proceeding 
under 28 U. S. C. 2255. Cf. Close v. United 
States, 198 F. 2d 144 (C. A. 4), No. 130 Mise., 
O. T. 1952, certiorari denied, 344 IT. S. 879.

4. Alleged atmosphere of terror.—The allega­
tion that the trials were “ conducted in an atmos­
phere of terror, hysteria and vengeance”  is an 
obvious attempt to raise a jurisdictional issue 
within the concept applied to state courts in 
Moore v. Dempsey, 261 IT. S. 86, but it is wholly 
unsupported by any facts except the statement 
in Chaplain Grimmett’s affidavit that there was 
a rumor that a riot would ensue if a conviction 
was not obtained. Certainly, such a rumor is 
not an allegation of fact supporting this serious 29

29 The determination of “ availability” is not a matter re- 
viewable in civil courts. Cf. Hiatt v. Brown, 839 U. S. 103; 
Kahn v. Anderson, 255 U. S. 1; Swaim v. United States, 165 
IT. S. 553; Multan v. United States, 110 U. S. 240; Bishop v. 
United States, 197 U. S. 334; Martin v. Mott, 12 Wheat. 19.



63

charge, particularly where it appears on the face 
of the record that all members of the court were 
summoned from distant stations to conduct a trial 
at a place which is wholly under military 
control (supra, p. 6). To assume that a court- 
martial under such circumstances would be sub­
ject to mob domination is absurd. This issue 
too was presented to, and determined by the 
military authorities. Supra, pp. 21, 27-28.

5. Alleged suppressed evidence and suborna­
tion of perjury.—Only the allegations that the 
prosecution knowingly used perjured testimony 
and knowingly suppressed material evidence pre­
sent, on their face, an issue so fundamental to 
the concept of a trial as possibly to raise an 
issue of jurisdiction. These issues were also 
decided by the Air Force (supra, pp. 25-27). I f  
review by civil courts extends at all beyond the 
traditional limitation of jurisdiction,30 and if 
such review can be had at all where the claim 
had been ful,y considered by the military,31 then

30 Carter v. Woodring, 92 F. 2d 544, 546 (C. A. I). C.), 
certiorari denied, 302 U. S. 752 (supra, p. 41), held that a 
civil court could not inquire into far more extensive charges 
of subornation o f perjury and suppression of evidence than 
those made here. See also Keyes v. United States, 109 U. S. 
336, and Swaim v. United States, 165 U. S. 553, 560-561 
(supra, p. 41).

31 Whelchel v. McDonald, 340 U. S. 122,124, indicates that 
a civil court would have no competence where the charge of 
perjury, etc., was made to, and determined by, the appro­
priate military authority. Swaim v. United States, 165 U. S. 
553, 560-561, is to the same effect (charge that court-martial 
member was personally biased against accused).



G4

it would seem that such a charge, if  sufficiently 
supported by allegations of fact, would present 
a matter which could be inquired into by the civil
courts on habeas corpus. Cf. Mooney v. 1Holohan, 
294 U. S. 103.

We do not believe, however, that the facts 
alleged in the petitions and affidavits support 
the charge made, when considered in the light 
of the record. It appears from the affidavit of 
Lt. Col. Daly, annexed to the petitions, that the 
alleged inducements to Calvin Dennis and the 
alleged existence of Philippine dog-tags and a 
blood-stained Navy officer’s uniform were known 
to Daly before the trial. Similarly, it appears 
from the Daly affidavit, and those of Chaplain 
Grimmett and Miss Hill, that the asserted sub­
ornation of perjury and intimidation of wit­
nesses by or on behalf of the prosecution were 
known to the affiants at the time the events 
occurred. There is no allegation in the petition 
thatT these alleged facts were not communicated 
by the affiants or others to petitioners or their 
counsel; the reasonable inference is that they 
were, and that if  subornation or suppression 
occurred it was not unknown to petitioners or 
their counsel. The alleged existence of the dog- 
tags and Navy officer’s uniform, and the alleged 
subornation, were not mentioned at the trial. 
I f  the defense knew the asserted facts and for­
bore to raise the issue, petitioners certainly could



65

not show denial of opportunity to present it. We 
doubt that, even in relation to a civil federal 
conviction, habeas corpus would lie on the basis 
of alleged facts which could have been and were 
not placed in issue at the trial. Cf. Sunal v. 
Large, 332 U. S. 174. And if the alleged facts 
were unknown at the time, it is incumbent on 
petitioners to make their ignorance clear and to 
allege the fraud in sufficient detail to warrant 
the district court in holding a hearing. Cf. Lair 
v. Burford, 339 U. S. 200, 218; SchecJitman v. 
Foster, 172 F. 2d 339, 342 (C. A. 2), certiorari 
denied, 339 U. S. 924; Coggins v. O’Brien, 188 
F. 2d 130,138 (C. A. 1). They have done neither, 
]mt instead have rested on wholesale and obscure 
charges, largely based on hearsay, which they 
have not connected with the prosecution or the 
actual trial in any substantial way.

In any event, as pointed out above {supra, pp. 
25-27), the allegations were reviewed during the 
course of direct appellate review, under the mili­
tary system, before the sentence became final. 
Petitioners had an opportunity to present, and 
did present, the issues before the appropriate 
military authorities. After exhaustive investi­
gation, the charges were rejected. Petitioners 
are, therefore, simply asking civil courts to re­
view a matter which was properly before and 
properly passed upon by the military authorities, 
and thus to undertake a function which this Court



6 6

has consistently held is not within the civil 
province.

As to Calvin Dennis, the record of the Burns 
trial clearly shows that the credibility of Calvin 
Dennis was attacked at the trial on the ground 
that he had been offered inducements to testify 
(TR  (B ) 70-73, 64-69). As to this charge, the 
allegation of the knowing use of perjured testi­
mony is merely, once again, an indirect way of 
attempting to secure a redetermination of a dis­
pute in issue at the trial. Of course, the mere 
fact of retraction by Calvin Dennis does not 
support the charge of knowing use of perjured 
testimony. It would not be a sufficient basis 
for a new trial in a federal criminal case, much 
less a basis for collateral attack. Wild v. Okla­
homa, 187 F. 2d 409 (C. A. 10) ; United States 
v. Cordo, 186 P. 2d 144, 148 (C. A. 2), certiorari 
denied sub nom. Minkoff v. United States, 
340 IT. S. 952; Martin v. United States, 154 
P. 2d 269, 270 (C. A. 6 ) ; cf. Valdez v. United 
States, 244 U. S. 432; Cobb v. Hunter, 167 P. 2d 
888 (C. A. 10), certiorari denied, 335 TJ. S. 832; 
Slappey v. United States, 110 F. 2d 528 (C. A. 5) ; 
Henry v. United States, 12 F. 2d 670 (C. A. 9).



67

II

TH E COURT OF APPEALS CORRECTLY HELD T H A T , IN  
VIEW  OF TH E FACT TH AT ALL ISSUES RAISED BY 
T H E  PETITIONS FOR HABEAS CORPUS HAD BEEN 
CONSIDERED AND PASSED UPON RY TH E M ILITARY 
AUTHORITIES, TH E DISTRICT COURT PROPERLY DE­
NIED TH E PETITIONS W ITH O U T A HEARING ON TH E 
BASIS OF TH E M ILITARY RECORD

Even assuming that the allegations of the know- 
ing suppression of revelant evidence and the 
knowing use of perjured testimony were suffi­
ciently supported to present an issue within the 
competence of civil courts to review, and even 
assuming that, under a broader concept of juris­
diction, some of the other allegations made by 
petitioner could be deemed to raise jurisdictional 
issues, the court below was clearly correct in hold­
ing that no hearing was required, since the dis­
trict court could, on examination of the record, 
properly adopt the findings made by the military 
in the course of the corrective process available 
within the system of military justice.

The military record clearly establishes that 
every allegation made in the petitions for habeas 
corpus was presented before the military author­
ities in the course of review by the Board of Re­
view, the Judicial Council, and The Judge Ad­
vocate General, and the review in connection with 
the application for a new trial under former 
Article of War 53 (10 U. S. C. (Supp. II )



6 8

1525). The record also shows that each con­
tention was carefully considered, even to the 
point of ordering a special investigation of 
the allegations relating to the matters outside 
the court-martial record. See Statement, supra, 
pp. 18-28. In view of the fact that, as we have 
demonstrated in Point I, the system of military 
courts is, under our Constitution, and has from the 
beginning of our history been recognized as, a 
system as essentially separate from federal civil 
courts as are the judicial systems of the several 
states, the court below was justified in applying 
to habeas corpus review of court-martial judg­
ments the general principles governing the re­
viewability by habeas corpus of state court judg­
ments. This Court itself recognized the aptness 
of that analogy in Gusik v. Schilder, 340 IT. S. 
128, 131-132.

A. It is well established that where the consti­
tutional questions raised by a person convicted in 
a state court have been considered and ad­
judicated on the merits in the state corrective 
proceedings, a federal court will ordinarily not 
re-examine, upon a writ of habeas corpus, the 
questions thus adjudicated, unless under its pecul­
iar organization the state system was unable to 
afford a constitutionally adequate process for 
relief, or some “ exceptional circumstances of 
peculiar urgency are shown to exist,”  Ex parte 
Hawk, 321 U. S. 114, 117, 118; House v. Mayo, 
324 IT. S. 42, 48; United States ex rel. Kennedy



69

y. Tyler, 269 U. S. 13, 17; Coggins v. O’Brien, 
188 F. 2d 130, 133, 137, 143-144, 150 (C. A. 1) ; 
Goodwin v. Smyth, 181 F. 2d 498 (C. A. 4 ) ; 
Gault v. Burford, 173 F. 2d 813 (C. A. 10) ; 
Schechtman v. Foster, 172 F. 2d 339 (C. A. 2), 
certiorari denied, 339 U. S. 924; cf. Mooney v. 
Holohan, 294 U. S. 103; Moore v. Dempsey, 261 
IT. S. 86, 91, 92.32 Tims, if the corrective process

32 The application of such doctrine is not in conflict with 
the decision in United States ex rel. Smith v. Bald/i, 192 F . 2d 
540, 544 (C. A. 3), certiorari granted, 343 U. S. 903, or with 
Moore v. Dempsey, 261 U. S. 86. The doctrine that a federal 
court in a habeas corpus proceeding involving an attack on a 
judgment of a state court could adopt the findings of the latter 
on the issues presented was not disputed in the Smith case. 
There the Court of Appeals stated that the mere fact that 
matters averred in a federal petition for habeas corpus had 
“ been decided on the merits by the highest state court is a fact 
to be given weight by a district court in passing upon peti­
tions for habeas corpus. But that fact does not relieve the 
federal court of the duty to pass upon the merits of the peti­
tion” (192 F. 2d at 544). However, it is possible “ to pass 
upon the merits o f a petition” without a hearing thereon. 
Thus, what the court meant in the Smith case was that a 
federal court could not deny a habeas corpus petition merely 
because the issues raised therein had been adjudicated by a 
state court, but that it could adopt the findings of the state 
court and consider them against the allegations o f the peti- 
ion, which could be done without a hearing, as it was in the 
instant case and the Smith case. See also Coggins v. O^Brien, 
188 F. 2d 130 (C. A. 1).

In Moore v. Dempsey, supra, the record showed that the 
existing corrective process of the state was inadequate to 
correct the alleged wrongs, because mob hysteria had per­
meated not only the trial procedure but the entire state 
judicial system, including its appellate processes, as well as



70

of a non-federal tribunal is shown to be adequate 
for the protection of one’s fundamental human 
rights and such protection has been accorded an 
accused in consonance with the constitutional 
due process requirement, federal courts will not 
interfere by habeas corpus. See Moore v. Demp­
sey, supra; see also Frank v. Mangum, 237 U. S. 
309. This rule is predicated, primarily, upon the 
“ respect for the delicacies of the relationship 
between the United States and its courts, and 
the states and theirs, under a federal system such 
as ours.”  Coggins v. O’Brien, 188 F. 2d 130, 133 
(C. A. 1) ; see Barr v. Burford, 339 U. S. 200, 
205. As we have shown, the desirability of pre­
serving the historical and constitutional separa­
tion of the civil and military powers is at least 
as good a reason for holding the rule applicable 
to judgments by courts-martial. Cf. Gusik v. 
Schilder, 340 U. S. 128, 131-132. Judgments of 
courts-martial, when affirmed by the required re­
viewing authority, are “ final and conclusive,”  
just as those of any state court, and hence “ bind­
ing upon all departments, courts, agencies, and 
officers of the United States,”  subject only to 
review upon collateral attack in habeas corpus.

the executive branch o f the government, so that the federal 
court could not in good faith adopt the findings o f the state 
court. Under the circumstances in that case, it was the duty 
o f the federal court to hold a hearing in order, as this Court 
stated, to “ find whether the facts alleged are true and whether 
they can be explained so far as to leave the state proceeding 
undisturbed” (261 U. S. at 92).



71

Art. 76, Uniform Code of Military Justice, 64 
Stat. 132 (50 U. S. C. (Supp. Y ) 663).33 
Thus if traditional principles of court-martial 
review are to be expanded, there is no ap­
parent reason why the doctrines governing the 
reviewability by habeas corpus in federal courts 
of judgments of state courts should be inappli­
cable to similar reviews of judgments of courts- 
martial.

The difference in degree of direct appellate 
review available to a person collaterally attacking 
a judgment of a state tribunal and to one simi­
larly challenging a judgment of a military court 
is not substantial enough to warrant a difference 
in treatment. Military appellate review is now 
equivalent to that of the state judicial systems. 
See supra, pp. 53-57. And the fact that a person 
in state custody has opportunity, which is un­
available to one in military custody, for review 
of his conviction by this Court, prior to petition­
ing a federal district court for a writ of habeas 
corpus, does not call for any disparity in the 
action to be taken by the district court. For1 
this Court rarely grants such a petition and may 
deny it on grounds unrelated to its merits; and 
in any case the review offered is solely of the 
state record and there is no new evidence. More­
over, one applying for federal habeas corpus to 
review a judgment of a state court may have less 
chance of an additional hearing on the merits,.

38 See fn. 24, supra, p. 57.



72

for, if this Court denies him certiorari, the Dis­
trict Court will on that ground, as a rule, deny 
his petition for habeas corpus without a hearing, 
even though the fact of refusal of certiorari has 
not resolved any issues on the merits. Cf. Barr 
v. Burford, 339 U. S. 200, 215-216, and cases 
cited supra, pp. 59-60. The truth is, as the court 
below pointed out (R. 30), “ due process of law is 
not a fixed formula of unchanging and unchange­
able elements. Due process of law in the armed 
forces has always been in some respects different 
from due process under civil authority”  (see 
Heaves v. Ainsworth, 219 U. S. 296, 304; French 
v. Weeks, 259 IT. S. 326, 335; United States v. 
Hiatt, 141 P. 2d 664, 666 (C. A. 3 )), and it is as 
just and fair to abide by the decisions of the mili­
tary reviewers in the case of court-martial pris­
oners as it is to accept the findings of state 
tribunals where state defendants are concerned.

Of course, where state courts are unable to 
grant a remedy—if one should be had—because 
the state judicial system is inadequate or through 
bias or other basic defect, the federal district 
court will not adopt the state’s conclusions. See 
Ex parte Hawk, 321 IT. S. 114, and the other 
cases cited supra, pp. 59-60. We assume the rule is 
the same for court-martial proceedings, but there 
is no occasion to invoke it here. The appellate 
and corrective processes within the Air Porce 
and executive branch34 were plainly adequate in

34 The President confirmed both sentences (supra, p. 23).



73

structure and powers. Reviews of the court- 
martial records, and the contentions raised by 
petitioners on the basis of that record, were made 
by the Staff Judge Advocate, the Board of Re­
view, the Judicial Council, The Judge Advocate 
General, and, presumably, the President. Con­
sideration of the claims based on matters dehors 
the record was entrusted to the Judicial Council 
and The Judge Advocate General (particularly 
on the petitions for new trial). Extensive opin­
ions were written by each of these military 
agencies, and it is clear that they considered all 
the issues now sought to be tried in the District 
Court.

The new trial procedure is of particular im­
portance. Under former Article of War 53 (10 
U. S. C. (Supp. I I )  1525), and its successors 
under the Uniform Code (Arts. 73 and 74, 50 
U. S. C. (Supp. V ) 660 and 661, and sec, 12 of the 
Act of May 5, 1950, 64 Stat. 147, 50 U. S. C. 
(Supp. V ) 740), Congress has made broad provi­
sion for post-conviction hearings for the correc­
tion of errors and redress of wrongs committed in 
court-martial proceedings. That such procedure 
may not in all respects accord with that in civil 
cases is not a valid objection. The fundamental 
fairness of military proceedings is not to be 
judged by standards imposed by civil law. Cf. 
United States v. Fletcher, 148 U. S. 84; Martin 
v. Mott, 12 Wheat. 19. The provisions relating 
to courts-martial are not violative of the due



74

process clause of the Constitution just because 
they differ in form from civil procedures (Ex 
Parte Quirin, 317 U. S. 1; Reilly v. Pescor, 
156 F. 2d 632, 635 (C. A. 8 )), certiorari 
denied, 329 U. S. 790, and it has been judi­
cially said that the correction of errors provided 
under Article of War 53 “  is much better adapted 
to reach justice than any within the power of the 
district court on habeas corpus.”  Whelchel v. 
McDonald, 176 F. 2d 260, 263 (C. A. 5), affirmed, 
340 U. S. 122.33 Cf. Winship, Court-Martial 
Procedure Compared with Criminal Procedure 
in Civil Courts (1932), 1 Fed. Bar. J. No. 2, 
3, 9-14.

During the new trial proceedings, petitioners 
were represented by counsel who was heard on

35 We have been advised by the Offices of the Judge Advo­
cates General of the Army and the Air Force that during the 
period from February 1, 1949, to July 10, 1950, 389 applica­
tions under Article of War 53 had been received by them, 
and that 284 had been acted upon during that period. Relief 
was granted in 33 cases. From January 1,1945, up to May 1, 
1950, habeas corpus relief had been sought by at least 324 
military prisoners o f which number only one had been finally 
granted. See Wurfel, Military Habeas Corpus: / / ,  (1951) 
49 Mich. L. Rev. 699, 709. Thus, more than 11 per centum 
relief had been granted by Article of W ar 53 as against one- 
third of one per centum relief by habeas corpus over a much 
longer period. A  current report from the Office of the Judge 
Advocate General of the United States A ir Force states that 
during the period from March 1, 1949 to January 27, 1953, 
that office had received 442 applications for relief under 
Article of War 53, o f which number 436 cases have been finally 
disposed, with some form of relief having been granted in 43 
o f those cases.



75

their behalf; they submitted affidavits and other 
documents, containing the same allegations as 
the instruments filed with their habeas corpus 
petitions.36 The Judge Advocate General, who 
had previously had the same matters investigated 
by the Inspector General’s Office, had a special 
board of officers re-examine the same matters 
after hearing petitioners’ counsel. We submit 
that such a procedure accords fully with concepts 
of fundamental fairness, and peitioners cannot 
validly claim that the scope of the military reme­
dy, properly administered, is inadequate or in­
effective. I f the personnel of the military re­
viewing authorities were so biased as to make 
the military system constitutionally inadequate 
to redress, in accordance with due process, the 
particular wrongs complained of here, it was 
incumbent upon petitioners so to allege in their 
petitions for habeas corpus, and to sustain the 
burden of detailed allegation and proof in that 
respect. Barr v. Burford, 339 U. S. 200, 218; 
Coggins v. O’Brien, 188 I ’. 2d 130, 138 (C. A. 1) ; 
Schechtman v. Foster, 172 F. 2d 339, 342 (C. A. 
2), certiorari denied, 339 17. S. 924. This they 
have not done or sought to do. They have not 
alleged any irregularities, or defects in the mili­
tary appellate processes invoked by them, and

36 A  more detailed description of the new trial procedure is 
set forth in the Brief for Respondent in Gusik v. Schilder, 
340 U. S. 128, Oct. Term, 1950, No. 110, at pp. 7-12.

240197—53------ 6



76

none appear on the face of the military record.
In sum, petitioners were given full opportunity 

to, and did, tender before the military appellate 
authorities, and in a proceeding for a new trial, 
exactly the same issues raised in their habeas 
corpus petitions. United States v. Dennis, 4 
CMR (A F ) 872, esp. 888, 904-907; United States 
v. Burns, 4 CMR (A F ) 907, esp. 923, 927-930; 
Resp. Exh. (Dennis) G, Appendix B, infra, pp. 
89-109, Resp. Exh. (Burns) G, Appendix C, infra, 
pp. 110-131. Petitioners do not claim that the ap­
pellate authorities failed fully and fairly to con­
sider all of their evidence relative to the various 
issues, or in any way denied them due process 
in the course of their appeals. Petitioners have 
been accorded the full measure of their rights 
and cannot relitigate on collateral attack issues 
fairly decided against them on the basis of 
substantial evidence. The habeas corpus court 
could and should, in the proper exercise of its 
discretion based on the military record before it, 
adopt or accept the military findings without an 
additional hearing. Cf. Whelchel v. McDonald, 
340 U. S. 122; Darr v. Bur ford , 339 U. S. 200; 
Ex Parte Hawk, 321 IT. S. 114; United States 
ex ret, Kennedy v. Tyler, 269 U. S. 13; Frank v. 
Mangum, 237 U. S. 309; Schechtman v. Foster, 
172 F. 2d 339 (C. A. 2), certiorari denied, 339 
IT. S. 924.

B. The Court of Appeals did not content itself 
with summarily accepting the military findings,



77

but made a careful review of the materials per­
taining to each, of petitioners’ charges (R. 35-43).37 
Rather than duplicate this survey, we shall col­
late and summarize the facts and circumstances 
shown by the military record which confirm the 
correctness of the decision of the courts below 
to accept the determinations made by the military 
tribunals.

1. Confessions.—The admissibility of Herman 
Dennis’ confessions was thoroughly considered at 
each stage of the military proceedings. His 
charges of threats, etc. were denied under oath 
by the persons involved, and they swore that he 
was adequately advised of his rights. At the 
trial, he specifically denied being beaten (Resp. 
Ex. (Dennis) D, p. 15; 4 CMR (AF) at 
895-896), and it was not until much later 
that he first made that claim; no satisfac­
tory explanation has been offered for the belated 
change of position. Moreover, the confessions 
accord with the physical evidence (hairs, smock) 
and the testimony of others (supra, pp. 7-8). In 
these circumstances, as stated above (supra, 
pp. 59-60), there is no occasion whatever for the 
civil courts to retry the issue.38

2. Detention.—Apart from Herman Dennis’ 
treatment during detention, which is discussed 
immediately above, petitioners’ claim appears to

37 Judge Bazelon’s review led him to dissent (Id. 44-56).
88 As for Calvin Dennis’s confession and retraction, see 

supra, p. 66.



78

be simply that prolonged detention vitiates the 
courts-martial. But even if a McNabb-type rule 
were applicable to courts-martial, petitioners 
could not complain. For their detention before 
the confessions was not in violation of military 
law. There is no provision for bail in military 
law and confinement during investigation is com­
mon in serious cases. Article of W ar 46, 10 
U. S. C. (Supp. I I )  1517, (former Article of War 
70), providing for pre-trial investigation, contem­
plates detention of at least eight days’ duration as 
entirely lawful, for it provides for forwarding of 
charges to higher authority within eight days, “ if 
practicable,”  after the accused is arrested or con­
fined. The confessions here in issue were obtained 
within five days of detention, and any subsequent 
confinement, even if unlawful, would not bear on 
the admissibility of the confessions. Of. United 
States v. Mitchell, 322 IT. S. 65; Carignan v. United 
States, 342 IT. S. 36.

Moreover, as we have already pointed out 
(supra, p. 61), the rule of McNabb v. United 
States, 318 IT. S. 332, does not apply to military 
tribunals and there never has been a comparable 
rule in military proceedings. Richardson v. 
Zuppann, 81 F. Supp. 809, 813-14 (M. D. Pa), 
affirmed on the opinion below, 174 F. 2d 829 
(C. A. 3). See also, for a more extensive discus­
sion, the Brief for the United States in United 
States v. Bayer, 331 U. S. 532, Oct. Term., 1946, 
No. 606, at pp. 34-56. Petitioners rely on para­



79

graph 124 of the 1949 Manual for Courts-Martial, 
which refers to “ the rules of evidence generally 
recognized in the trial of criminal cases in the 
district courts of the United States,”  but the same 
sentence adds that such rules are applicable only 
“ so far as not otherwise prescribed in this man­
ual.”  And paragraph 127, relied on by the Judi­
cial Council (4 CMR (AF) at 900), deals com­
prehensively with confessions, carefully deline­
ating those which are admissible and those which 
are not, but without mentioning or suggesting the 
McNabb rule or an equivalent. As for the pro­
visions of the Guam Penal Code providing for 
speedy arraignment, the Judicial Council and 
The Judge Advocate General have determined 
that these provisions do not apply to military per­
sonnel detained by the Guam authorities (Resp. 
Ex (Dennis) D, p. 21; G, p. 7; 4 CMR (A F) 900; 
Appendix B, infra, p. 100) .39 Whether or not this 
is so, violation of the Guam Code would not affect 
the Courts-martial for this Court’s decisions on 
state convictions (supra, p. 61) show that mere 
prolonged detention would not by itself constitute 
a violation of due process or a deprivation of the 
essentials of a fair trial.

39 Chapter 35 o f the Civil Regulations with the Force and 
Effect of Law in Guam (Codes of Guam, U. S. Govt. Print­
ing Office, 1947), infra, p. 8$, in effect at the time of peti­
tioners’ arrest, provided for the temporary detention of 
American military personnel pending delivery to military 
authorities. With respect to military personnel, Chapter 
35 operated in lieu of the sections of the Guam Penal Code 
applicable to other offenders.



80

3. Counsel.—Each of Herman Dennis’s assigned 
counsel admittedly had at least a month to pre­
pare for trial, and one of them was previously 
quite familiar with the case, having served dur­
ing the pretrial investigation {supra, p. 13). At 
the trial, petitioner expressed himself as satisfied 
with their selection. No question is now raised 
as to their competence, zeal, or fidelity to duty. 
Petitioner’s desire for Lt. Col. Daly’s services 
was not satisfied,40 but it is to be noted that Daly 
was under very serious charges of misconduct 
and had submitted his resignation “ for the good 
of the service” three weeks before the trial (supra, 
pp. 14, 20). A  special investigation ordered by 
The Judge Advocate General later confirmed the 
propriety of the decision that Daly was unavail­
able. (Resp. Ex. (Dennis) G, pp. 10-12; Ap­
pendix B, infra, pp. 105-108.) There is certainly 
no basis for claiming an abuse of discretion. Cf. 
Altmayer v. Sanford, 148 F. 2d 161,162 (C. A. 5) ; 
Hiatt v. Smith, 170 F. 2d 61, 64 (C. A. 3), reversed 
on other grounds, 336 U. S. 695.

Bums cannot complain of his deliberately se­
lected counsel (Captain Drucker), nor can that 
counsel be said to have had insufficient time to 
prepare a defense in view of the facts that no

40 Petitioner Dennis had written on April 19, after the final 
statement that Daly was unavailable, that in view of the 
fact that Daly was under charges he no longer desired Daly’s 
services, but he nevertheless made the request, at the opening 
o f the trial, without so informing the assigned counsel prior 
to that day (supra, pp. 13-14).



81

adjournment was requested and that the associate 
counsel were thoroughly familiar with the case, 
having been formally appointed over a, month pre­
viously (supra,, pp. 12-13, 17-18). Cf. Morton v 
Welch’ 162 F. 2d 840 (C. A. 6) ; Setter v. Welch, 
159 F. 2d 703 (C. A. 4), certiorari denied, 331 
U. S. 840.41

4. Alleged suppression of evidence, subornation 
of perjury, etc.—These charges, as we have noted, 
were the subject of a special, independent investi­
gation made by the Inspector General’s Office. 
The Judge Advocate General twice examined the 
reports of this special comprehensive investiga­
tion and twice concluded that the charges were 
baseless. Supra, pp. 22, 25-27; Appendix B, 
infra, pp. 103, 108, 109, C, infra, pp. 126, 
129-131. The petitioners’ affidavits do not indi­
cate either that prosecution countel were aware 
of these matters or that the defense was un­
aware of them. Nor do they give any explana­
tion for the affiants’ failure to call these matters 
to the attention of the defense or of the proper 
military authorities at the time they occurred. 
And even aside from these significant factors, 
the affiants’ statements are not of the calibre—

41 On the basis of Chaplain Grimmett’s own affidavit, and 
the official letter attached thereto, one must conclude that 
there is no ground whatever for the half-charge that the 
military authorities interfered with petitioners’ attempt to 
get counsel by curtailing the collection of funds. It is evi­
dent that the effort was simply to see that the funds were 
collected in a regular manner and that there was no coercion 
to contribute.



82

in specificity, consistency, or factual grounding— 
which would call upon the court to reject the 
inquiry conducted by the Air Force and to sub­
stitute one of its own. Moreover, the allegations 
as to attempted subornation of perjury by prose­
cution investigators, if true, could hardly have 
injured petitioner Dennis since no evidence al­
leged to be perjured was used against him, and 
the charges of intimidation must face the fact 
that several airmen did testify for the defense 
{supra, pp. 15, 17).42 Burns’ charge that Calvin 
Dennis perjured himself at the Burns trial was 
fully considered at that time and during the 
course of review (Resp. Ex. (Burns) D, p. 5, 
4 CRM (A F ) 907, 926; Resp. Ex. (Burns) G, 
pp. 7-10, Appendix C, infra, pp. 121-126.

5. Alleged atmosphere of terror.—As already 
noted {supra, pp. 27-28), the sufficient answer to 
the charge that the courts-martial met in an atmos­
phere of terror and hysteria are the facts that 
the members were officers from distant stations, 
and not subject to mob pressure since Guam 
was under military control. The court below also 
points out (R. 40) that they “ frequently and 
intensively questioned witnesses for the prosecu­
tion.”

42 The allegation that specimens o f Herman Dennis’ hair 
were “ planted” as evidence against him is wholly unsup­
ported by petitioners’ affidavits and was rejected, after con­
sideration, by the military reviewing authorities. Supra, 
pp. 25-27; Appendix B, infra, pp. 108-109.



For the foregoing reasons, the judgment of 
the Court of Appeals should be affirmed.

W alter J. Cummings, Jr.,
Solicitor General. 

Charles B. M urray,
Assistant Attorney General. 

Oscar H. D avis,
Special Assistant to the Attorney General. 

B eatrice R osenberg,
E dward S. Szukelewicz,

Attorneys.
W alter K iechel, Jr., Lt. Col., IJ. S. A. F.,

Office of the Judge Advocate General,
United States Air Force,

Of Counsel.
J anuary 1953.

C O N C L U SIO N



A PPE N D IX  A

The pertinent provisions of the Articles of 
War, as amended by the Act of June 4, 1920, c. 
227, subchapter II, 41 Stat. 787, and the Act of 
June 24, 1948, c. 625, Title II, 62 Stat. 627, 
provided as follows:

Art 47 [10 U. S. C. (Supp. II ) 1518]. 
(c) Action on record of trial.
Before acting upon a record of trial by 

general court-martial or military commis­
sion, or a record of trial by special court- 
martial in which a bad-conduct discharge 
has been adjudged and approved by the 
authority appointing the court, the review­
ing authority will refer it to his staff judge 
advocate or to The Judge Advocate Gen­
eral for review and advice; and no sentence 
shall be approved unless upon conviction 
established beyond reasonable doubt of an 
offense made punishable by these articles, 
and unless the record of trial has been 
found legally sufficient to support it.

Art, 48 [10 U. S. C. (Supp. I I )  1519], 
Covifirmation.
In addition to the approval required by 

article 47, confirmation is required as fol­
lows before the sentence of a court-martial 
may be carried into execution, namely:

a. By the President with respect to any 
sentence— (1) of death, * * *

Art. 49 [10 IT. S. 0. (Supp. I I )  1520]. 
Powers incident to power to confirm,. 
The power to confirm the sentence of a 

court-martial shall be held to include— 
m



a. The power to approve, confirm, or dis­
approve a finding of guilty, and to approve 
or confirm so much only of a finding of 
guilty of a particular offense as involves 
a finding of guilty of a lesser included 
offense:

b. The power to confirm, disapprove, 
vacate, commute, or reduce to legal limits 
the whole or any part of the sentence;

c. The power to restore all rights, privi­
leges, and property affected by any finding 
or sentence disapproved or vacated;

d. The power to order the sentence to be 
carried into execution;

e. The power to remand the case for a re­
hearing under the provisions of article 52.

Art 50 [10 U. S. C. (Supp. II ) 1521].
(d) Action by Board of Review when ap­

proval by President or confirming action is 
required.

Before any record of trial in which there 
has been adjudged a sentence requiring ap­
proval or confirmation by the President or 
confirmation by any other confirming au­
thority is submitted to the President or 
such other confirming authority, as the case 
may be, it shall be examined by the Board 
of Review which shall take action as fol­
lows :

(1) In any ease requiring action by the 
President, the Board of Review shall submit 
its opinion in writing, through the Judicial 
Council which shall also submit its opinion 
in writing, to the Judge Advocate General, 
who shall, except as herein otherwise pro­
vided, transmit the record and the Board’s 
and Council’s opinions, with his recom­
mendations, directly to the Secretary of 
the Department of the Army for the action 
of the President: Provided, That the Ju-



.86 'P
dicial Council, with the concurrence of the 
Judge Advocate General shall have powers 
in respect to holdings of legal insufficiency 
equal to the powers vested in the Board 
of Review by subparagraph (3) of this 
paragraph.

(2) In any case requiring confirming ac­
tion by the Judicial Council with or with­
out the concurrence of the Judge Advocate 
General, when the Board of Review is of 
the opinion that the record of trial is 
legally sufficient to support the sentence 
it shall submit its opinion in writing to 
the Judicial Council for appropriate action. 

* * * * *
(li) Finality of court-martial judgments.
The appellate review of records of trial 

provided by this article, the confirming 
action taken pursuant to articles 48 or 49, 
the proceedings, findings, and sentences of 
courts-martial as heretofore or hereafter 
approved, reviewed, or confirmed as re­
quired by the Articles of W ar and all dis­
missals and discharges heretofore or here­
after carried into execution pursuant to 
sentences by courts-martial following 
approval, review, or confirmation as re­
quired by the Articles of War, shall be 
final and conclusive, and orders publishing 
the proceedings of courts-martial and all 
action taken pursuant to such proceedings 
shall be binding upon all departments, 
courts, agencies, and officers of the United 
States, subject only to action upon appli­
cation for a new trial as provided in article 
53.

Art. 53 [10 U. S. C. (Supp. IT) 1525].
Petition for new trial.
Under such regulations as the President 

may prescribe, the Judge Advocate Gen-



eral is authorized, upon application of an 
accused person, and upon good cause 
shown, in his discretion to grant a new 
trial, or to vacate a sentence, restore rights, 
privileges, and property affected by such 
sentence, and substitute for a dismissal, 
dishonorable discharge, or bad conduct dis­
charge previously executed a form of dis­
charge authorized for administrative 
issuance, in any court-martial case in which 
application is made within one year after 
final disposition of the case upon initial 
appellate review: Provided, That with 
regard to cases involving offenses com­
mitted during World War II, the applica­
tion for a new trial may be made within 
one year after termination of the war, or 
after its final disposition upon initial ap­
pellate review as herein provided, which­
ever is the later: Provided, That only one 
such application for a new trial may be 
entertained with regard to any one case: 
And provided further, That all action by 
the Judge Advocate General pursuant to 
this article, and all proceedings, findings, 
and sentences on new trials under this 
article, as approved, reviewed, or confirmed 
under articles 47, 48, 49, and 50, and all 
dismissals and discharges carried into exe­
cution pursuant to sentences adjudged on 
new trials and approved, reviewed, or con­
firmed, shall be final and conclusive and 
orders publishing the action of the Judge 
Advocate General or the proceedings on 
new trial and all action taken pursuant to 
such proceedings, shall be binding upon all 
departments, courts, agencies, and officers 
of the United States.

Art. 92 [10 U. S. C. (1946 ed.) 1564].
Murder; rape.



Any person subject to military law wbo 
commits murder or rape shall suffer death 
or imprisonment for life, as a court martial 
may direct; but no person shall be tried 
by court martial for murder or rape com­
mitted within the geographical limits of 
the States of the Union and the District 
of Columbia in time of peace.

Chapter 35 of the Civil Regulations With 
the Force and Effect of Law in Guam 
(Codes of Guam, U. S. Government Printing 
Office, 1947) provides:

Civil Arrest of Military Personnel

1. Whenever a member of the military 
forces of the United States is arrested by 
civil authorities, the offender shall be taken 
to the police station where the charge shall 
be investigated. I f  the charge is consid­
ered substantial, he may then be released 
upon his own cognizance or turned over 
to military authorities. Should the chief of 
police consider the charge of a sufficiently 
serious nature so that special action is 
necessary or that the release of the of­
fender would be detrimental to his own 
or the public welfare, the offender may be 
held pending action on the report of the 
chief of police to military authority.

2. The chief of police will within 24 
hours of the arrest, forward a report to 
the commanding officer of the offender and 
will set forth therein the offense alleged, 
such details as may be necessary to per­
mit the commanding officer to take intel­
ligent action on the ease, and the names 
of such witnesses as may be available. 
He will also forward one copy of this 
report to the office of the Governor, for 
file.



APPEN DIX B

D epartment of the A ir F orce

OFFICE OF T H E  JUDGE ADVOCATE GENERAL

Washington 25, D. C.

ACTION UPON APPLICATION FOR RELIEF UNDER SECTION 
1 2 , ACT OF 5 M A T  1 9 5 0

The application of Private Herman P. Dennis, 
Jr., AF 18 101 483, formerly of the 12th Ammuni­
tion Squadron, APO 264, for relief as provided 
by Section 12, Act of 5 May 1950 (formerly 
Article of War 53) in relation to his trial by 
court-martial (ACM 1892), submitted to me by 
petition, is denied.

Signed R eginald C. H armon,
Major General, USAF,

The Judge Advocate General,
United States Air Force. 

Dated: 28 January 1952.

D epartment of the A ir F orce

OFFICE OF TH E JUDGE ADVOCATE GENERAL

Washington 25, D. C.

28 January 1952.
AFCJA-34/ACM 1892 
Memorandum Opinion
Subject: Petition of Private Herman P. Dennis, 

Jr., AF 18 101 483, formerly of the 12tJi'A'm—»



munition Squadron, APO 264, for Relief 
under Section 12, Act of 5 May 1950 
(formerly Article of War 53)

1. The accused was tried by general court- 
martial at Headquarters, Twentieth Air Force, 
APO 234, from 9 to 16 May 1949, and was found 
guilty of rape (specification 1) and premeditated 
murder (specification 2) in violation of Article of 
War 92. He was sentenced to be put to death 
in such manner as the proper authority might 
direct, all members of the court present at the 
tiffflrthe vote was taken concurring. The sentence 
was approved by the reviewing authority and 
upon appellate review the Board of Review and 
the Judicial Council expressed opinions in 
writing that the record of trial in this case was 
legally sufficient to support the findings of guilty 
and the sentence and to warrant confirmation of 
the sentence. As The Judge Advocate General, 
I concurred in these opinions and recommended 
that the sentence be confirmed and carried into 
execution. On 3 August 1951 the sentence was 
confirmed by the President pursuant to the pro­
visions of Article of War 48, and was ordered to 
be carried into execution.

2. A detailed statement of the facts appearing 
in the record of trial in this case is contained 
in the opinion of the Board of Review (29 No­
vember 1949) and in that of the Judicial Council 
(18 July 1950) in ACM 1892, Herman P. Dennis, 
Jr., 4 Court-Martial Reports (AF) 872.

On the evening of 11 December 1948 Miss Ruth 
Farnsworth was working alone in the Jade Shop, 

.̂-a- retail civilian establishment located on Dadero



Road, Route 1, between the Ammunition Depot 
area and North Field, on the island of Guam. At 
about 8:30 p. m. the lights in the shop were ex­
tinguished, although ordinarily the shop remained 
open until 9: 00 p. m. At about 10:00 p. m. 
Mr. John Arnold, a business associate of the 
proprietor of the Jade Shop, who sometimes slept 
there at night, returned to the shop and parked 
in front. He noticed that the two front doors of 
the shop were open, and although the lights were 
out, the generator outside and in back of the shop 
which supplied it with light, was still running, 
and inside he found the shop in disorder. On 
entering the building, he found an orange-red 
scarf on the floor, and with the aid of a flashlight, 
he found a bracelet and pendant watch, all identi­
fied as belonging to Miss Farnsworth; and he 
noticed that the cash drawer seemed to be intact. 
Not finding any of the female clerks in the build­
ing, and suspecting foul play, Mr. Arnold went 
outside, hailed a passing military patrol and re­
ported the matter. A further investigation with 
one of the police personnel revealed on the floor 
of the shop, at about the same place where the 
other articles were found, several bobby pins, 
hairpins, a length of rope, and a part of a red 
lacquered fingernail similar to a portion broken 
from Miss Farnsworth’s finger. The investiga­
tion showed further that a show case had been 
pushed out of place, all indicating that a struggle 
had occurred. Outside it was discovered that 
one of the wires connecting the generator with the 
shop had been disconnected, and truck tire tracks 
appeared on a secondary road leading up to a

240197— 53------ 7



M*cj)
spot near a pig pen about two hundred yards 
back from the shop in the jungle. Prior to being 
hailed by Mr. Arnold that evening the patrolmen 
had driven by the Jade Shop at about 8:20 p. m. 
and the lights were on, but when they re-passed 
the shop about 9:00 p. m. the lights were out; 
and Miss Blackledge, the other clerk in the shop, 
passing the shop on her way to a dance, at about 
8: 30 p. m., noticed that the lights were off at that 
time. When passing the shop at about 8:20 
p. m. the patrolmen noticed two customers in the 
shop with Miss Farnsworth, one dark and tall, 
and the other shorter, heavier set, and not so 
dark, resembling respectively petitioner and Staff 
Sergeant Robert W. Burns, an accomplice who 
was convicted in a separate trial of the same of­
fenses as was this petitioner. A  search for Miss 
Farnsworth (hereafter called the victim) was 
organized and the following morning (12 Decem­
ber 1948) one of her sandals was found near the 
shop. This intensified the search for her until 
on the morning of 13 December 1948 she was 
found lying on her back in a small clearing in the 
jungle (called the boondocks), grievously beaten 
and abused, still alive but unconscious, dirty, her 
clothing raised above her hips, and her legs 
spread wide apart, indicating that she had been 
the victim of a criminal attack. Taken to the 
hospital an examination showed that her jaw was 
fractured and she had been abused to the extent 
that almost no portion of her body was free of 
bruises and abrasions. Her fingernails were 
broken, her vagina had been injured, and she had 
been choked. She died a few hours after being



taken to the hospital, without gaining conscious­
ness, as a result of brain injuries caused by blows 
on the face and head, shock, and exposure to the 
elements. The other sandal was found on 14 
December 1948 in the jungle some distance from 
the shop.

At about 7:45 p. m. on 11 December 1948 pe­
titioner and Burns were observed loitering near 
a fence a short distance from the Jade Shop; 
and about 9:45 p. m. a civilian picked up the 
petitioner on the highway about three-fourths of 
a mile from the shop. Petitioner, Calvin Dennis, 
and Robert W. Burns had arrived at the Jade 
Shop in a truck which was being operated as a 
shuttle bus between two points on the highway 
near which the shop was located. Calvin Dennis 
had been assigned to drive the truck on the night 
of the crime, and the records which were re­
quired to be kept of trips made between the two 
points, and the time thereof, showed that no trip 
had been made between approximately 7: 30 p. m. 
and 9:30 p. m. Upon a search of the truck 
subsequently made there was found in the back 
of the seat a part of the victim’s smock which 
she had frequently worn at work.

On 7 January 1949 petitioner and his two ac­
complices were taken into custody. Pour sepa­
rate statements were made by petitioner, two on 11 
January 1949, one on 12 January 1949, and one on 
13 January 1949. The first two of these state­
ments were wholly in the handwriting of peti­
tioner and the remaining two were in question 
and answer form. In these statements petitioner 
told in detail how he, with Robert W. Burns and 
Calvin Dennis, had gone to the Jade Shop on the



night in question; that when he saw Burns strike 
the victim, he ran out of the shop and discon­
nected the generator; that he then returned to 
the shop, picked up the girl, and accompanied by 
Burns and Calvin Dennis, took her into the 
jungle. There she was laid down and stripped, 
and petitioner stated he had intercourse with her 
three times, following which he left the scene 
alone and from the highway caught a ride back 
to North Field, where he got out and returned 
to his squadron on foot. Hairs and fibres taken 
from the rope were identical with hair taken from 
the head of the victim and fibres from her sweater 
and dress. Hairs found upon the smock were 
identical with pubic hair taken from petitioner. 
The blankets taken from the truck contained hair 
similar in characteristics to that of the victim and 
of petitioner, and also red wool fibres similar to 
those from the victim’s sweater. A hair similar 
to that of the victim was taken from petitioner’s 
shirt. On 12 January 1949 petitioner re-enacted 
his part in the crime, at the Jade Shop, and he 
pointed out the trail in the jungle in the vicinity 
where the sandals (or slippers) of the victim 
were found.

Witnesses testified for the defense that they 
had seen petitioner at the post theater variously 
between the hours of 7:30 p. m. and 9:30 p. m., 
and about rags kept in the truck for use in wash­
ing it. Petitioner testified as to attending the 
movie theater between 7: 45 p. m. and 9: 30 p. m. 
on the night of 11 December 1949. Petitioner 
also testified for the limited purpose of showing 
the manner in which the statements were taken

M



and to show that they were involuntarily given 
and extracted by the use of coercive tactics, 
promises, and threats.

3. By the petition subscribed 31 August 1951 
by his attorney in fact, the petitioner requests 
any and all relief afforded by Section 12, Act of 
5 May 1950 (formerly Article of War 53). In 
support of the petition there are appended an 
affidavit of petitioner that Calvin Dennis is not 
his brother, half-brother, or in any way related 
to him; a further affidavit of petitioner detailing 
threats, promises, and duress alleged to have been 
used against him; two affidavits of Mr. Edward 
E. Daly and one of Miss Mary Louise Hill; an 
affidavit of Calvin Dennis which is in general 
effect a retraction of his testimony at the trial of 
his accomplice Robert W. Burns; a memorandum 
in support of the petition containing a motion 
for a new trial; and a copy of the memorandum 
of counsel submitted to the Judicial Council under 
date of 16 June 1950 for consideration by its 
members. All of these various affidavits, briefs, 
and attachments to the petition have been con­
sidered, and will be made the subject of later 
discussion.

Counsel for petitioner requested an oral hear­
ing to present argument on the petition, which 
was had on 30 October 1951 before a board of 
officers appointed by me to hear argument, con­
sider all evidence and make a recommendation to 
me as to appropriate action to be taken on the 
petition. At this oral hearing counsel for peti­
tioner treated the instant case and the two involv­
ing separate trials of the accomplices as a group 
and presented argument on five points, con­



96

sidered to be applicable to all three cases for con­
venience of joint discussion, as follows: The 
rights of accused at the time they were taken 
into custody on 7 January 1949; the rights of 
accused with regard to the admission by the 
court of confessions and other evidence, at the 
time of the court-martial, which in this case began 
9 May 1949; a consideration of the affidavits of 
Calvin Dennis stating that his testimony at the 
trial of Robert W . Burns was false and was 
prompted by the promise of a light sentence; a 
consideration of the affidavits of Mr. Daly and 
Miss Hill as tending to support the theory of 
the involuntary nature of the confessions of peti­
tioner and Calvin Dennis, and reflecting upon the 
method of conducting the trial; and certain state­
ments in the record claimed to be prejudicial— 
(a) that repeated reference was made at the 
trials that petitioner and Calvin Dennis, tried 
separately for the same offenses, were brothers, 
and (b) statements by the witness Sue I. Black- 
ledge at the trial in the instant case about ex­
pressions by petitioner to her of abhorrence of 
racial segregation, unhappiness in the South and 
his desire to take her picture. These points will 
be separately discussed hereafter in this opinion 
in connection with others made obvious by the 
petition.

4. Statements of the facts contained in the 
record of trial appear in the opinions of the 
Board of Review and the Judicial Council in 
complete form, and in such detail that I  con­
sider it appropriate for purposes of this petition 
to present only a brief summation of such facts; 
and as such facts are not now in actual dispute,



but only certain contentions based on some of 
such facts, I shall limit this discussion to the 
confines of the actual matters raised by the peti­
tion, and at the oral hearing.

In the memorandum in support of the petition 
counsel point to the lack of authority of the 
Judicial Council to have considered matters 
aliunde the record, and then point out that 
reference in his confessions by petitioner concern­
ing Calvin Dennis being his brother raises more 
than a reasonable doubt as to the genuineness 
of the confession. The memorandum then refers 
to the brief submitted to the Judicial Council and 
states:

This brief places the attached affidavits in 
their proper perspective, thereby under­
lining the injustices which they indicate.

This brief (before Judicial Council) discusses 
some of the evidence, such as the failure of the 
expert witnesses to point out sufficient character­
istics from the hair analyses to identify it as 
associated with any particular person (pages 
3 -4 ); and the lack of meaning attachable to the 
presence of petitioner near the vicinity of the 
Jade Shop on the day of the crime (page 5). 
Aside from these matters, however, the real gist 
of the entire brief is that the conviction cannot 
stand because of petitioner’s fundamental rights 
to be held only under legal process, to have coun­
sel from the moment of incarceration, and not to 
be convicted by use of an involuntary confession, 
have been violated (page 2).

Thus, considering the petition and its support­
ing memorandum and all the matters incorpo­
rated therein by reference, and the points urged



98Cm
at the oral hearing, the grounds assigned as 
good cause for the relief sought narrow down 
to those which follow, each of which will be dis­
cussed separately herein.

First: What was the legal status of petitioner 
at the time of his arrest and, detention by the 
United States naval authorities on Guam on 7 
January 1949f

At the oral hearing counsel for the petitioner 
argued that at the time of the arrest Guam was 
under the control of the United States acting 
through the Department of the Navy, officials of 
which department arrested petitioner and held 
him “ incommunicado”  until 12 January 1949, 
at which time he had signed conf essions. Counsel 
contended that even though Guamanians are not 
citizens of the United States and the Constitu­
tion of United States does not apply to them, yet 
when the government of the United States oper­
ates in a civilian capacity, a citizen of the United 
States must be afforded at all times his consti­
tutional rights; that at the time of petitioner’s 
arrest the Department of the Navy had no juris­
diction over him, but only the Air Force, so that 
the arrest by the naval authorities was in the 
nature of a civil arrest because the naval authori­
ties were acting on behalf of the civil govern­
ment in Guam, not the military; that the Penal 
Code of Guam in force in January 1949 (Section 
686) contained provisions for a speedy and public 
trial, provided for the right to counsel and the 
right of an accused to be informed of the nature 
of his offense, and contained a provision against 
self-incrimination (also provided for in Section 
780c) ; that such Penal Code (Section 825) also



provides that an accused must be taken before 
the judge (magistrate) within 24 hours after his 
arrest, and provides (Section 1473) that the writ 
of habeas corpus cannot be issued as to any person 
in the military or naval service of the United 
States without the consent of the Governor of 
Guam after complying with certain procedures 
(Chapter 35, Civil Regulations—Civil Arrest of 
Military Personnel). From this counsel argued 
that at the very least petitioner was entitled to 
the protection of the Penal Code of Guam, mean­
ing, as he contends, that when petitioner was 
arrested he had a right to be brought before a 
magistrate within 24 hours and be charged with 
a specific crime and to be advised by counsel of 
his rights against self-incrimination before he 
signed the confessions; and that since the civilian 
government violated its duties to these men, the 
Air Force participated in those illegal violations 
of rights under the Guam Code and the Constitu­
tion of United States, and therefore could 
not use the confessions thus illegally obtained to 
secure conviction. Counsel concluded that since 
it was shown that petitioner was “held in actual 
isolation”  and was permitted contact with no one 
except the interrogating authorities, it follows 
that due process was not accorded because of the 
manner in which petitioner was “ held, questioned, 
and not permitted to have advice or counsel.”

The arguments of counsel on this point have 
been set forth at some length to introduce this 
statement that these contentions were presented 
by counsel in substantially the same form to the 
Judicial Council in this case, and the discussion 
of the point and the legal points raised by that



100
f  *j

body in its consideration of the case have perti­
nence here in view of counsel’s prior presenta­
tion. The Judicial Council held in this case, and 
I  think rightly, that the accused did not have, 
and therefore was not deprived of, any right to 
a preliminary hearing before a committing magis­
trate or any other like authority, and stated:

There is no provision for such prelimi­
nary hearing or arraignment in military 
law and accused had no such right under 
the laws of Guam, a military government 
deriving its authority from the United 
States and administered by the Department 
of the ISTavy. It should be observed that 
the accused was arrested under the author­
ity of the military government of Guam 
and held under such authority until after 
the statements in issue had been made. 
Chapter 35, “ Civil Regulations With the 
Force and Effect of Law in Guam” (United 
States Government Printing Office, 1947) 
provides for the detention of United States 
military personnel and with respect to 
such personnel, operates in lieu of Sections 
825 and 847-849, Penal Code of Guam, 
which is applicable to other offenders.

I  consider this statement of the law to be correct, 
and although the discussion occurred in connec­
tion with consideration of the evidentiary exclud­
ing rule announced in decisions of the United 
States Supreme Court (McNabb v. United States, 
318 U. S. 332, and Upshaw v. United States, 335 
U. S. 410) and was thus limited to the question 
of an accused’s right to be brought promptly 
before a committing magistrate for a preliminary 
examination, in principle it meets with exactness 
and is dispositive of the arguments advanced for



petitioner in this case; and especially so when 
considered in the light of the considerable volume 
of evidence showing that petitioner was fully and 
explicitly warned of his testimonial rights and 
that the confessions were made voluntarily and 
were admissible within all rules applicable to the 
administration of military justice.

Second: What was the legal status of peti­
tioner at the time of his court-martial beginning 
9 May 1949 with regard to the admission in 
evidence of his confessions made 11, 12, and 13 
January 1949 f

This point comes as a corollary to the “ First,” 
and it is urged that since petitioner was denied 
rights accruing to him under the Code of Guam, 
a fortiori, the confessions extracted in violation 
of such rights were inadmissible, and hence a 
conviction based thereon cannot stand. I  have 
pointed out the reasons why I  consider the pro­
visions of the Code of Guam to be inapplicable 
as creating or affecting the rights urged on behalf 
of petitioner. But, in addition, the argument 
loses force when it is considered that the four 
statements made by petitioner while he was being 
detained by the Guam authorities were received 
in evidence after presentation to the court of 
much evidence with respect to the voluntary 
nature of these confessions, including petitioner’s 
own sworn testimony as a witness in his own 
behalf, and his denial that physical force was 
used against him. The conflict of evidence in 
this connection was presented to the court, and 
was resolved against petitioner. Thus, the issue 
of whether the statements were obtained by force



and duress, and without advice as to his rights, 
and whether they were voluntary, was raised, 
considered, and decided at the trial. The evi­
dence as a whole, bearing upon the voluntary 
nature of the four statements of petitioner, pre­
sented a question of fact for the court, and it 
is my opinion that the court properly resolved 
the issue. [After reading and re-reading the 
record of trial, there is no reasonable doubt in 
my mind that all the confessions were wholly 
voluntary, as the court decided, and were properly 
admitted. Where the evidence as to whether 
there was coercion is conflicting, or where dif­
ferent inferences may fairly be drawn from the 
admitted facts, the question whether a confession 
was voluntary is for the triers of the facts (Lyons 
v. Oklahoma, 322 U. S. 596; Lisenba v. California, 
314 IT. S. 219). Thus the court’s decision on the 
voluntary nature of the testimony, arrived at 
from first-hand hearing and observation, is pre­
sumptively correct and will not be disturbed 
unless manifestly erroneous (MOM Corporation 
v. Fear, 104 !•'. 2d 892; ACM 3597, Maddle, 4 
Court-Martial Reports [AF] 573).)

Third: Consideration of the affidavits of Cal­
vin Dennis that his testimony at the trial of 
Robert W. Burns was false and was prompted 
by the promise of a light sentence.

This point has no application to this petitioner; 
it is in connection with the petition of Robert 
W. Burns that it has pertinence.

Fourth: Consideration of the affidavits of Mr. 
Edtvard F. Daly and Miss Mary Louise Hill as 
tending to support the theory of the involuntary



nature of petitioner’s confessions, and as reflect­
ing upon the method of conducting the trial 

Counsel argued that the mentioned affidavits 
support the allegations that petitioner makes with 
regard to the involuntary nature of his confes­
sions, and in addition, cast serious doubts upon 
the propriety of these proceedings in Guam. This 
argument, insofar as it touches upon the question 
of whether the confessions were voluntary, has 
been met in the discussion occurring under 
“ First”  and “ Second”  and any further discus­
sion would be repetitious. Insofar as this point 
touches upon the charges contained in the affi­
davits of Mr. Daly and Miss Hill regarding the 
method of conducting the trial, it should be noted 
that Mr. Daly alone makes the assertions con­
tained in his affidavits, and no further substanti­
ation of these allegations has been presented. 
Further, the various allegations and charges of 
Mr. Daly as set forth in his affidavits, and the 
various statements of Miss Hill, were made the 
subject of an exhaustive investigation by the Di­
rectorate of Special Investigation, Office of the 
Inspector General, United States Air Force, both 
from the standpoint of the charges made and the 
motives for making them. I have again reviewed 
the results of this investigation and I can arrive 
at no different conclusion than that previously 
reached that the charges are unfounded.

Fifth: Prejudicial statements in the record.
(a) It is contended by counsel that it was 

made to appear to the court that petitioner and 
Calvin Dennis were brothers. Affidavits of peti­
tioner and Calvin Dennis to the contrary have 
been submitted. In three of his confessions peti­

240197— 53------ 8



tioner refers to Calvin Dennis as “ my brother 
Calvin.”  Counsel argues that such reference to 
blood relationship might have caused the court, 
in weighing the truth of the confessions, to attach 
more weight and credibility to such evidence than 
if the two men had appeared to be unrelated. 
It is impossible to determine at this juncture 
whether the court would believe that a man 
making statements implicating his own brother 
would be impelled by higher motives of truth 
than an accomplice not so related, or whether, 
contrariwise, the court would suspect ulterior 
design, and attach less credibility to such state­
ments. But such a determination involves con­
jecture and speculation of a high order, in which 
I  am not required to indulge, because any con­
clusion reached by such a process could have no 
value in determining the weight of the evidence. 
The court must be presumed to have taken into 
consideration all matters affecting the testimony 
o f witnesses when weighing the evidence, prior 
to making its findings (Larsen v. Portland S. S. 
Company, 66 F. 2d 326, 329) and I  will not 
attempt to speculate in retrospect that the deci­
sion of the trial court on the credibility of wit­
nesses could have been affected by evidence so 
intangible as that urged (MGM Corporation v. 
Fear, 104 F. 2d 892). Clear and convincing 
proof is required to set aside the judgment of a 
general court-martial, and matters of claimed 
injustice must be sustained “ not as a matter of 
speculation but as a demonstrable reality”  
(Adams v. United States ex rel. McCann, 317 
U. S. 269, 281).



(b) It is also contended that the decision of 
the court was affected by certain testimony of the 
witness Miss Blackledge (Record of Trial, page 
77), to the effect that petitioner had stated to the 
witness his feeling of unhappiness at segregation, 
his unhappiness in the South, and his desire to 
take her picture. Counsel argue that this evi­
dence was calculated to prejudice the court, and 
was not offered to prove premeditation, malice 
aforethough, or a particular frame of mind. 
The Manual provides (Manual for Courts- 
Martial, 1949, par. 140) :

In others, such as murder, a particular 
frame of mind must be proved—premedita­
tion in the case of murder punishable by 
death—malice aforethought in all cases of 
murder. In those cases the specific intent 
or frame of mind may be established either 
by independent evidence, as, for example, 
words proved to have been used by the 
offender, or by circumstantial evidence, as 
by inference from the act itself.

It would appear that this evidence was properly 
admitted as a circumstance tending to show peti­
tioner’s feeling toward women, and his previous 
desires for female companionship. Hie record 
does not show that the evidence was introduced 
into the trial merely to prejudice the court, as is 
contended.

Sixth: Petitioner was denied counsel of his 
choice.

Statements appear in the affidavit of Mr. Daly 
(October 1949) that raise the point that petitioner 
was denied counsel of his choice. This entire 
matter was the subject of a most thorough dis-



1-06 X
fdb

eussion in the opinion of the Judicial Council, 
with which I concur, and which makes it unneces­
sary to elaborate here. Further, the independent 
investigation heretofore referred to disproves 
these contentions. The fact that Mr. Daly ap­
peared as a witness during the trial, once for the 
prosecution and once for the defense, in addition 
to his connection with the case prior to the trial, 
as indicated by his testimony, both show definitely 
that a definite impropriety might have been in­
volved had he appeared on behalf of petitioner. 
But the investigation further proved to my satis­
faction that the Commanding Generals were 
entirely within their prerogative as enunciated 
by paragraph 45a, Manual for Courts-Martial, 
ITSAF, 1949, in declaring as not available the 
counsel chosen by petitioner, former Lieutenant 
Colonel Edward F. Daly, and that they did not 
have ulterior motives, as is intimated, in declaring 
him (Daly) unavailable. At the outset of the 
trial petitioner stated he desired to be repre­
sented by the regularly appointed defense counsel 
‘ Tut do wish to have Lieutenant Colonel Edward 
F. Daly to assist.”  The prosecution then ex­
plained to the court that Colonel Daly had been 
declared unavailable as military counsel for ac­
cused by the appointing authority, to which 
defense counsel responded (Record of Trial, page 
4 ):

However, I am aware that Colonel Daly is 
in a status which makes the stand of the 
prosecution and the Commanding General, 
Twentieth Air Force, proper.

It was then shown by amendment of orders that 
Lieutenant Colonel Adrian W. Tolen would act



as defense counsel and First Lieutenant Ensley 
as assistant defense counsel. After a motion for 
severance had been sustained by the court, and 
the court had decided that it would proceed with 
the instant case, and after a recess, the accused 
stated:

I  still want Captain Katz as Assistant to
Colonel Tolen and Lieutenant Ensley,

with the result that in view of accused’s specific 
request, the court directed that Captain Katz 
“ should remain as a part of the defense.”

Without regard to the legal rule that the de­
termination of the availability of qualified de­
fense counsel within the meaning of Article of 
War 11 is a matter exclusively within the dis­
cretion of the appointing authority whose deter­
mination is final (Manual for Courts-Martial, 
1949, par 45a; Hiatt v. Brown, 339 U. S. 103; 
ACM 2437, Quinn, 3 Court-Martial Reports [AF] 
108) or the further rule that petitioner may not 
complain that he was inadequately represented 
by his deliberately selected counsel (Adams v. 
Hiatt, 79 F. Supp. 433; Morton v. Welch, 162 
F. 2d 840; Setser v. Welch, 159 F. 2d 703, cert 
den 67 S Ct 1510), the record shows that capable 
counsel had been made available to petitioner, 
that in open court he indicated clearly by whom 
he wished to be defended, and that throughout 
the trial he was defended by counsel (three) of 
his choice. Scrutiny of the record convinces me 
that petitioner was defended with loyalty, ability, 
and skill, which perforce attained for him the 
standards required by concepts of a fundamentally 
fair trial (Moss v. Hunter, 167 F. 2d 683; Altmeyer



v. Sanford, 148 F, 2d 161; Romero v. Squier, 133 
F. 2d 528; Liner v. Cosart, 80 F. Supp. 540).

Seventh: Important evidence was withheld 
from the court at the trial.

Finally, it is contended that important evidence 
in the nature of Filipino identification discs (dog- 
tags) and a blood-stained Navy officer’s uniform 
alleged to have been found in the vicinity of the 
crime about the time of its commission, was with­
held from the court (Daly affidavit, dated 30 
August 1951). Here again, this allegation was 

•'■made the subject of a thorough investigation, 
from which I have concluded that the charge is 
baseless. Further, a presumption obtained that 
a person acting in the capacity of a public officer 
performed his duties properly (Manual for 
Courts-Martial, 1949, par. 125a; Manual for 
Courts-Martial, 1951, par. 138a) and such pre­
sumption of regularity may be indulged as to 
officers charged with the administration of mili­
tary justice (CM 320618, Garner, 70 Board of 
Review 71; CM 332704, Bilbo, 81 Board of Re­
view 185) and as to courts charged with pro­
tecting fully the rights of an accused person 
(.Rudolph v. Lockwood, 2 F. 2d 319; Johnson v. 
Wilson, 131 F. 2d 1). Therefore, I  hold, there 
being no clear showing to the contrary, that the 
officers who investigated this case, prepared and 
preferred charges and prosecuted the case before 
the court, were not remiss in the performance of 
their duties. They were vested with wide dis­
cretion in developing and sorting the evidence to 
be used, and in choosing the witnesses conceived 
to be necessary to present the case properly, and 
the order and manner in which the evidence

. 1-OS''..,



109/of
would be presented. Petitioner attempts to in­
sinuate an element of doubt into the case by in­
timating that material evidence helpful to the 
defense was suppressed, but he fails to point out 
how such evidence was material to his defense, or 
how it affected or prejudiced him in any way. 
The force of such a suppositive argument is 
minimized by my own study of the reports of 
investigation of these matters, and I hold that 
in order to avail petitioner anything, such in­
timations and accusations must be supported by 
grounds less speculative and abstruse than-thosc* 
presented.

5. As previously stated, I  have re-examined the 
reports of the comprehensive investigations which 
were conducted at my request, and I have ex­
amined the entire records in this and its allied 
cases, in the light of the grounds set forth in 
the petition, and I hold that the petition presents 
no good cause for the relief sought and that no 
injustice to petitioner is shown.

Therefore, no good cause for relief within the 
purview of Section 12, Act of 5 May 1950 (form­
erly Article of War 53) having been shown, the 
petition will be denied.

Signed R eginald C. H armon,
Major General, TJSAF,

The Judge Advocate General,
United States Air Force.



A PPE N D IX  C

D epartment op the A ir F orce

OFFICE OF TH E JUDGE ADVOCATE GENERAL

Washington 25, D. C.
ACTION UPON APPLICATION FOR RELIEF UNDER 

SECTION 1 2 , ACT OF 5 M A Y  1 9 5 0

The application of Staff Sergeant Robert W. 
Burns, A F39341855, formerly of the 12th Am- 
mumtion Squadron, APO 264, for relief as pro­
vided by Section 12, Act of 5 May 1950 (formerly 
Article of W ar 53) in relation to his trial by 
court-martial (ACM 1893), submitted to me by 
petition, is denied.

Signed R eginald C. H armon,
Major General, USAF,

The Judge Advocate General,
United States Air Force.

Dated: 28 January 1952.

D epartment of the A ir F orce

OFFICE OF TH E JUDGE ADVOCATE GENERAL

Washington 25, D. C.

28 January 1952.
AFCJA-34/ACM 1893 
Memorandum Opinion
Subject: Petition of Staff Sergeant Robert W. 

Burns, AF39341855, formerly of 12th A.m- 
mumfTon Squadron, APO 264, for Relief under



11 f
' I/O

Section 12, Act of 5 May 1950 (formerly 
Article of War 53)

1. The accused was tried by general court- 
martial at Headquarters, 19th Bombardment 
Wing (Medium), APO 334, on 27, 28, and 30 
May 1949, and was found guilty of rape (specifi­
cation 1) and premeditated murder (specification 
2) in violation of Article of War 92. He was 
sentenced to be put to death in such manner as 
the proper authority might direct, all members 
of the court present at the time the vote was 
taken concurring. The sentence was approved 
by the reviewing authority and upon appellate 
review the Board of Review and the Judicial 
Council expressed opinions in writing that the 
record of trial in this case was legally sufficient 
to support the findings of guilty and the sen­
tence and to warrant confirmation of the sentence. 
As The Judge Advocate General, I concurred in 
these opinions and recommended that the sentence 
be confirmed and carried into execution. On 3 
August 1951 the sentence was confirmed by the 
President pursuant to the provisions of Article of 
War 48 and was ordered to be carried into 
execution.

2. A detailed statement of the facts appearing 
in the record of trial in this case is contained in 
the opinion of the Board of Review (14 March 
1950) and that of the Judicial Council (18 Au­
gust 1950) in ACM 1893, Robert W. Burns, 4 
Court-Martial Reports (AF) 907.

On 11 December 1948 Miss Ruth Farnsworth 
(hereafter referred to as the victim) was em­
ployed as a part-time clerk at the Jade Shop,



a civilian store located on Dadero Road, Route 1, 
near the Marbo Base, and between the Ammuni­
tion Depot area and North Field, Island of Guam. 
At approximately 5:00 p. m. on that day Miss 
Sue Blackledge, a part-time clerk who worked 
with the victim at the store, quit work, leaving 
the victim to tend the store until 9:00 p. m., the 
usual closing time. At about 10:00 p. m. Mr. 
John Arnold, a business associate of the owner 
of the shop who sometimes stayed there at night, 
drove to the shop and stopped in the parking 
area in front. Noticing that the lights in the 
shop were off, although the generator outside 
and at the rear of the building which furnished 
light to the shop was running, he went into the 
shop and found on the floor a woolen, orange-red 
scarf, and with the aid of a flashlight, a bracelet 
and pendant watch, all identified as belonging to 
the victim. Mr. Arnold went outside and hailed 
a passing military patrol car, reported the matter, 
and in a further investigation with the military 
police there were found on the floor of' the shop, 
at about the same place as the other articles were 
found just previously, several bobby pins, hair- 
pins, a section of rope, and a part of a red lac­
quered fingernail similar to a portion broken 
from the victim’s finger. The investigation 
showed further that a show case had been pushed 
out of place, although previously Mr. Arnold had 
noticed that the cash register seemed to be intact, 
and there were some streaks on the floor, all 
indicating that a struggle had taken place. Out­
side, Mr. Arnold and a patrolman discovered that 
one of the wires connecting the generator with 
the shop had been disconnected, and truck tire



iip-'
tracks appeared on a secondary road leading up 
to a spot near a pig pen about 200 yards back 
in the jungle. Prior to being hailed by Mr. 
Arnold that evening the patrolmen had driven 
by the shop about 8: 20 p. m., at which time the 
lights were on, but when they passed the shop 
again at about 9:00 p. m. the lights were out; 
and Miss Blaekledge, passing the shop on her 
way to a dance at about 8: 30 p. m., noticed that 
the lights were off at that time. The finding by 
an investigator of the victim’s sandal in the area 
nearby the shop intensified the search for her 
until on the morning of 13 December 1948 she 
was found in a small clearing in the jungle 
(called the boondocks) four or five hundred yards 
back of the shop. She was unconscious but still 
alive, was lying on her back unclothed from waist 
to toes, with her legs spread wide apart. Her 
face was bloody and dirty and her body badly 
bruised and beaten. She was taken to a hospital 
where a medical examination and a subsequent 
autopsy disclosed that she had sustained a broken 
jaw, lacerations and abrasions about the face and 
hands, bruises and abrasions about the neck which 
could have been caused by a rope, and abrasions 
and scratches upon the shoulders, lower abdomen, 
and pubic regions. Her fingernails were broken, 
her vagina had been injured, and she had been 
choked. She died a few hours after being taken 
to the hospital, without regaining consciousness, 
as a result of brain injuries caused by blows on 
the face and head, shock, and exposure to the 
elements.

Calvin Dennis, one of the accomplices, testified 
that on the evening of 11 December 1948 he was



on duty driving a shuttle bus running between 
the Twelfth Ammunition area and North Field; 
that he, petitioner and Herman P. Dennis, Jr., 
went in the bus to the Jade Shop about 8 :15 p. m., 
and that while he was looking at some merchan­
dise he saw petitioner strike the victim with his 
fist; that the victim screamed and fell to the 
floor, and Herman Dennis ran out of the shop, 
following which the lights went out; that he 
(Calvin) left the shop and returned to the parked 
truck, meanwhile hearing the girl say “ Let go” ; 
that while he was backing the truck to the high­
way, he saw Herman Dennis leave the shop with 
the girl in his arms; that he started to drive the 
truck up a secondary road to turn around and, 
looking back, he saw petitioner and Herman Den­
nis throw the victim into the back of the truck; 
that he drove the truck up the road to a pig pen, 
and while turning around he saw petitioner and 
Herman Dennis take the girl off the truck. 
Calvin Dennis then testified that he returned to 
his organization, and upon being called on the 
telephone by petitioner, he picked him up on the 
9: 30 p. m. run near the North Field gate. Calvin 
Dennis asked petitioner why he hit the girl, who 
told him that if he did not stop talking “you will 
get what she got.”  Petitioner then pulled out 
from his shirt a smock, explaining that he had 
taken it off of the victim, and he stuffed it behind 
the seat of the truck, where it was later found by 
an investigator. At that time petitioner stated 
to Calvin Dennis that he had had intercourse 
with the victim once or twice.

Other occurrences at about the time of the 
crime are significant. At about 9:30 to 10:00



p. m. on 11 December 1948 two members of 
petitioner’s organization, one of whom bad been 
with him earlier in the evening, saw blood on his 
trousers around the region of the left thigh and 
below the belt, When inquiry was made peti­
tioner stated he had been “ cutting meat.”  Peti­
tioner’s duties as mess sergeant did not include 
cutting meat, and those who did so wore aprons; 
and ordinarily no meat would have been cut on 
that night (Saturday) because fowl was served 
on Sunday. The morning following the crime 
petitioner was observed in the mess hall. He 
appeared to be highly nervous and irritable and 
in a discussion of the subject of sex petitioner 
stated to another airman on duty as cook that he 
had had intercourse and “ I got it the wrong 
way.”  Of further significance is the circum­
stance that on the evening of the crime the charge 
of quarters whose duties included supervising 
the shuttle bus saw Calvin Dennis make his first 
run at 7:10 p. m. but did not see him again 
until approximately 9: 00 p. m. Analyses made 
by experts of scrapings taken from the cab and 
body of the truck and from blankets found 
therein, of the rope found inside the shop, and of 
the sweater, dress, and scarf worn by the victim, 
reveal hairs and fibres on the rope, the hairs cor­
responding in characteristics to the head hair of the 
victim, and the fibres corresponding to those from 
her sweater and dress; revealed human blood 
and pubic hairs in the scrapings from the truck; 
revealed human blood and hairs and fibres having 
the same characteristics as those from the victim 
and her clothing; and hair, Caucasian and non-



iie>

C a u c a s i a n ,  w a s  discovered variously on the several 
m a t e r i a l s  examined.

Petitioner did not testify at his trial. Evidence 
was adduced by the defense that between 5:30 
p. m. and 6: 30 p. m. on the evening in question 
Calvin Dennis was seen at the Twin Palms Cafe, 
where he was boisterously arguing with a waitress, 
and that he had an odor of benzedrine about him. 
There was also testimony about the condition of 
the smock, and that the victim had not worn it 
that evening.

3. By the petition subscribed 31 August 1951 
by his attorney in fact, the petitioner requests 
any and all relief afforded by Section 12, Act of 
5 May 1950 (formerly Article of War 53). In 
support of the petition there are appended to 
it the following: An affidavit of Calvin Dennis 
stating that his testimony against petitioner at 
the trial was untrue, and was perjured because 
of threats and promises of a light sentence; a 
further affidavit of Calvin Dennis being in gen­
eral effect a retraction of his testimony at the 
trial of petitioner and a repudiation of his own 
confession because of alleged coercion; copies of 
two affidavits of Mr. Edward E. Daly and a copy 
of one of Miss Mary Louise H ill; a memorandum 
in support of the petition containing a motion 
for a new trial; and a copy of the memorandum 
of counsel submitted to the Judicial Council under 
date of 16 June 1950 for consideration by its 
members. All of these various affidavits, briefs, 
and attachments to the petition have been con­
sidered, and will be made the subject of later 
discussion.



/ /  6
Counsel for petitioner requested an oral hear­

ing to present argument on the petition, which 
was held on 30 October 1951 before a board of 
officers appointed by me to hear argument, con­
sider all evidence and make a recommendation 
to me as to the appropriate action to be taken 
on the petition. At this oral hearing counsel for 
petitioner treated the instant case and the two 
cases involving separate trials of the accomplices 
as a group and presented argument on five points, 
considered by him to be applicable to all three 
cases for convenience of joint discussion, as fol­
lows: A discussion of the rights of the three 
airmen at the time they were taken into custody 
on 7 January 1949; their rights with regard to 
the admission by the court of confessions and 
other evidence, at the time their trials began; 
a consideration of the affidavit of Calvin Dennis 
stating that his testimony at the trial of peti­
tioner was false and was prompted by the promise 
of a comparatively light sentence; a considera­
tion of the affidavits of Mr. Edward P. Daly and 
Miss Mary Louise Hill as tending to support the 
theory of the involuntary nature of the confes­
sions of Herman P. Dennis and of Calvin Dennis, 
and the latter’s testimony at petitioner’s trial, 
and reflecting upon the method of conducting the 
trial; and certain statements in the record claimed 
to be prejudicial— (a) that repeated reference 
was made at the trials of Calvin Dennis and 
Herman Dennis, Jr., tried separately for the same 
offenses, that they were brothers, which may have 
swayed the court in its estimate of the weight 
to be attached to the affidavits of Calvin Dennis,



and his testimony in the trial of this petitioner; 
and (b) that testimony by the witness Sue I. 
Blackledge in the trial of Herman P. Dennis, Jr., 
about abhorrence by the latter of racial segre­
gation, unhappiness in the South, and his desire 
to take her picture, was introduced in order to 
prejudice the court. These points, where perti­
nent, will be separately discussed hereafter in 
this opinion, together with others raised by the 
petition.

4. Statements of the facts contained in the 
record of trial appear in the opinions of the 
Board of Review and the Judicial Council in 
complete form and in such detail that I  consider 
it appropriate for purposes of this petition to 
present only a brief summation of such facts; 
and as such facts are not now in dispute, but 
only certain contentions based on some of such 
facts, I shall limit this discussion to the confines 
of the actual matters raised by the petition, and 
at the oral hearing.

In paragraph 6 of the petition the following 
statement appears:

See attached memorandum as to the 
facts, rulings, or errors which are relied 
on as good cause for the remedy sought.

Paragraph 7 then lists the documents and affi­
davits relied upon to support the application for 
relief, so that the petition incorporates by refer­
ence and adopts the two memoranda, with their 
supporting affidavits and documents, as the 
grounds for the relief sought. Hence, the grounds 
thus set forth and urged as good cause for relief 
will be examined and stated, in conjunction with 
those raised at the oral hearing.



,tr
In the memorandum in support of the petition 

counsel review the testimony of fourteen of the 
twenty-three witnesses at the trial (Calvin Dennis 
not included) as ‘ ‘ corroboratory of Calvin Dennis’ 
testimony” and conclude that such summarizing 
of the evidence demonstrates that except- for the 
testimony of Calvin Dennis “ there is nothing that 
even remotely implicates petitioner except the 
blood stains—and his statement that he had had 
intercourse, but had obtained it the wrong way’ 
(Brief, page 9) and that “ without Calvin Dennis’ 
testimony the conviction of petitioner could not 
stand.” Thus, the gist of the entire brief is that 
considering all corroborative evidence apart from 
the testimony of Calvin Dennis, which falls be­
cause he now retracts it and protests his inno­
cence, the prosecution proved only that a crime 
was committed, without implicating petitioner in 
its commission.

The memorandum brief before the Judicial 
Council discusses some of the evidence, such as 
the failure of the expert witnesses to point out 
sufficient characteristics from the hair analyses 
to identify it as associated with any particular 
person (pages 3-4) and then launches into the 
real nub of the discussion that the conviction 
cannot stand because the petitioner’s fundamental 
rights to be held only under legal process, to have 
counsel from the moment of incarceration, and 
not to be convicted by the use of an involuntary 
confession, have been violated (page 2). Thus, 
except as incidental to the joint discussion, this 
brief, although included in the petition by refer­
ence, has no real hearing on the instant case

240197— 53------ 9



/because petitioner made no confession and is only 
remotely affected by the confessions of the others 
to the limited extent that they implicated him in 
the crime and resulted in his apprehension.

Thus, considering the petition and the support­
ing memoranda, all the matters incorporated 
therein by reference, and the points urged at the 
oral hearing, the grounds assigned as good cause 
for the relief sought narrow down to those which 
follow, each of which will be discussed separately 
herein.

First: What was the legal status of petitioner 
at the time of his arrest and detention by the 
United States naval authorities on Guam on 7 
January 1949 f

This point has particular reference only to the 
confessions of Calvin Dennis and Herman P. 
Dennis, Jr., and the alleged violation in their 
procurement of rights to counsel, to prompt ar­
raignment and trial, and to protection against 
self-incrimination. As pointed out, this peti­
tioner made no confession, and consequently the 
argument on this point has no pertinence to his 
conviction except that incidentally the confessions 
of the others gave the necessary clues to effect 
petitioner’s apprehension. It will suffice to state 
here that this argument regarding the rights of 
the three men under the Penal Code of Guam 
after their arrest and detention by the Depart­
ment of the Navy authorities was made before the 
Judicial Council, and the opinion and holdings of 
that body on the legal points raised, in which I  
concur, appear in ACM 1892, Herman P. Dennis, 
Jr., 4 Court-Martial Reports (A F) 872. Mv con-



elusions in the matter also appear in a Memo­
randum Opinion accompanying my action upon the 
companion petition for a new trial or other relief 
filed on behalf of Calvin Dennis.

Second: What was the legal status of this peti­
tioner at the time of his court-martial beginning 
27 May 1.949 with regard to the admission in evi­
dence of the confessions of his two accomplices in 
their separate trials.

This point comes as a corollary to the “ First.”  
As has already been pointed out, this petitioner 
made no confession and hence the point has no 
pertinence to this case. The testimony of Calvin 
Dennis, who was tried separately and found guilty 
by a general court-martial of the same offenses 
as those of which the petitioner was convicted, 
was the principal evidence upon which the pros­
ecution relied to connect petitioner with the of­
fenses and establish his guilt. The coherence of 
this testimony, its voluntary character, and its 
consistency in every respect with the corrobora­
tive evidence, will be discussed hereafter in this 
opinion.

Third: Consideration of the affidavits of Calvin 
Dennis stating that his testimony at the trial of 
this petitioner was false and was prompted by the 
promise of a relatively light sentence.

These affidavits of Calvin Dennis were signed 
on 24 August 1951 and 6 September 1951, long 
after his trial, conviction, and sentence. They 
were preceded by at least one previous attempt 
prior to trial to repudiate the statements at pe­
titioner’s insistence, which repudiation was later 
retracted and the truth of the original statements 
affirmed. In effect the affidavits purport to re-



122 !
tract as false all testimony given by Calvin Dennis 
in the trial of this case, and indirectly they attack 
his own statements on the grounds of promises, 
threats, and coercion. This present position of 
Calvin Dennis is complicated by the position he 
voluntarily took at the trial of his case when the 
defense specifically stated that there was no objec­
tion to receiving the statements in evidence, for 
his defense was predicated upon the theory that 
the statements reflected the truth. The state­
ments admitted that Calvin Dennis was at the 
scene of the original assault but did not admit 
that he was at the scene of the crime and asserted 
his lack of participation in the crime and his 
ignorance of the plan of his accomplices to com­
mit it. The insistence by Calvin Dennis upon the 
truth of the statements because they were favor­
able to him, and the making of no claim at his 
trial that the statements were improperly ob­
tained, prompts an inference that the affidavits 
are insincere. I f  the court had believed that his 
statements were true in their entirety, Calvin 
Dennis would now stand innocent and free; and 
the conclusion is inescapable that the affidavits 
are the result of ulterior motives, for he now has 
nothing to lose by giving them. The testimony, 
statements, or confessions of an accused accom­
plice are not to be summarily disregarded because 
he subsequently, for some motive, changes, qual­
ifies, or retracts them. I f  the accomplice confesses, 
or testifies against his co-accomplice and “ he 
changes or qualifies or retracts, as he sometimes 
does, as hope or interest or fear sways him, his tes­
timony or confession is not to be summarily dis­
carded, but to be judged of by confirming or oppos-



123
/> -y

ing circumstances as well as by bis character and 
the influences that may invest him.”  (Valdez v. 
United States, 244 U. S. 432). I f  his testimony 
was consciously and corruptly false, as Calvin 
Dennis now asserts, such a self-imposed indict­
ment of his own character offers little to inspire 
confidence or recommend credence in his affida­
vits. When he testified at the trial of petitioner 
he repeatedly asserted that he did so voluntarily 
with full knowledge of his rights, and he sus­
tained himself through a searching cross-examina­
tion. So on this point I must accept Calvin 
Dennis’ testimony at the trial, with the ample 
corroboration furnished by the other witnesses, 
rather than his statements in these affidavits, as 
presenting the true version of petitioner’s partic­
ipation in the crime.

Fourth: Consideration of the affidavits of Mr. 
Edward F. Daly and Miss Mary Louise Hill as 
tending to support the theory of the involuntary 
nature of Calvin Dennis’ confessions and his tes­
timony at the trial of this petitioner, and as re­
flecting upon the method of conducting the trial.

Counsel argued that the mentioned affidavits 
support the allegations that are made in the peti­
tion with regard to the involuntary nature of the 
confessions of Calvin Dennis, and his testimony 
at the trial of petitioner, and in addition, they 
make serious charges against the method of con­
ducting these entire proceedings in Guam. In 
their memorandum in support of the petition 
counsel review the testimony of the witnesses in 
this case and they conclude that there was little 
if any basis in the evidence for implicating peti­
tioner in the crime except for the testimony of



124<>
Calvin Dennis, without which the conviction of 
petitioner could not stand. In my discussion of 
point “ Third”  I pointed out my reasons for con­
cluding that the testimony of Calvin Dennis at 
the trial of petitioner, amply corroborated by 
other witnesses, will be preferred to the state­
ments contained in his affidavits. Counsel recog­
nize that if the testimony of Calvin Dennis in this 
case is permitted to stand, petitioner’s guilt of the 
crimes of murder and rape is established beyond 
any doubt. I realize fully the extreme impor­
tance of such evidence, and with this in mind the 
testimony has been read and re-read to determine 
whether Calvin Dennis gave his testimony as the 
result of improper influence, and whether any 
clear reason is presented for his statement under 
oath at this juncture that “ I perjured myself 
because threats were made against me that if I  
didn’t so testify I would receive the death pen­
alty, and that if I did so testify I would be re­
warded by a relative light sentence.”  I  find 
nothing of the sort in such testimony or elsewhere 
in the record. To the contrary, the record dis­
closes not only that his testimony was consistent 
throughout with the corroborative evidence, but 
also that commendable care was taken to assure 
that Calvin Dennis appeared as a witness volun­
tarily and that no coercive influence was exercised 
upon him. For example, see the record of trial 
(pages 52, 53) :

Q. State your full name.
A. Calvin Dennis.
Q. Have you had your rights explained 

to you under the 24th Article of War?
A. Yes, sir.



/7-y
Q. Do you realize that you do not have to 

testify here today ?
A. Y es, sir.
Q. Do you testify here voluntarily?
A. Yes, sir.
Q. Do you desire to testify today?
A. Yes, sir.
L a w  Member: D o y o u  u n derstan d  that 

an y th in g  y o u  say here  tod a y  m ay  at som e 
fu tu re  date be used against y ou  i f  it  in d i­
cates that y o u  have com m itted  a cr im e ?

W itness: Yes, sir.
L a w  Member: Nothing that has hap­

pened to you in the past will in any way 
protect you if your testimony before this 
court should happen to incriminate you in 
a crime? Do you understand that?

W itness: Yes, sir.
See also the record of trial at pages 70, 71, 74, and 
75 as further proof of the precautions taken to 
assure that no coercive influence was exerted upon 
the witness. The Judicial Council and the Board 
of Review have concluded that Calvin Dennis was 
fully protected by the court when he testified at 
petitioner’s trial; and a further reading of that 
testimony points inexorably to the conclusion that 
it was not procured by the employment of duress, 
artifice, or coercion. Where the evidence as to 
whether there was coercion is conflicting, or where 
different inferences may fairly be drawn from 
the admitted facts, the question whether a con­
fession was voluntary is for the triers of the 
facts (Lyons v. Oklahoma, 322 US 596; Lisenba 
v. California, 314 US 219). This rule applies 
with equal force to the repetition by Calvin Den­
nis of the substance of his confessions as testi­



mony in the trial of petitioner, and the court’s 
decision on the voluntary nature of the testimony, 
arrived at from first-hand hearing and observa­
tion, is presumptively correct and will not be dis­
turbed unless manifestly erroneous (.MGM Cor­
poration v. Fear, 104 F. 2d 892; ACM 3597, 
Maddle, 4 Court-Martial Reports [AF] 573).

It should also be noted that insofar as the 
affidavits make charges reflecting upon the method 
of conducting these proceedings, Mr. Daly alone 
makes the assertions contained in his affi­
davits, and no further substantiation of these 
allegations has been presented. Further, the 
various allegations and charges of Mr. Daly as 
set forth in his affidavits, and the various state­
ments of Miss Hill, were made the subject of an 
exhaustive investigation by the Directorate of 
Special Investigations, Office of the Inspector 
General, United States Air Force, both from the 
standpoint of the charges made and the motives 
for making the charges. I have again reviewed 
the results of this investigation and I  can arrive 
at no different conclusion than that previously 
reached, that the charges are unfounded.

Fifth: Prejudicial statements in the record.
(a) It is contended by counsel that it was made 

to appear to the court that Calvin Dennis and 
Herman P. Dennis, Jr., were brothers. An affi­
davit of Calvin Dennis to the contrary was sub­
mitted in connection with his petition. The fol­
lowing appears in the record (page 58) :

Q. Who is Herman Dennis, do you 
know?

A. Herman Dennis is supposed to be 
my half brother.



127 //>-•£■
Counsel argue that such reference to blood rela­
tionship might have caused the court, in weighing 
the truth of the Dermis confessions and the testi­
mony of Calvin Dennis implicating petitioner, 
to attach more weight and credibility to such 
evidence than if the two men had appeared to be 
unrelated. This argument has remote application 
to this petitioner; but in any event it is impos­
sible to determine at this juncture whether the 
court would believe that a man making state­
ments implicating his own brother would be im­
pelled by higher motives of truth than an accom­
plice not so related, or whether, contrariwise, it 
would suspect ulterior design, and attach less 
credibility to such statements. But this deter­
mination involves conjecture and speculation of 
a high order, in which I am not required to in­
dulge, because any conclusion reached by such 
process could have no value in determining the 
weight of the evidence. The court must be pre­
sumed to have taken into consideration all mat­
ters affecting the testimony of witnesses when 
weighing the evidence, prior to making its find­
ings (Larsen v. Portland S. S. Company 66 F. 2d 
326, 329) and I will not attempt to speculate in 
retrospect that the decision of the trial court on 
the credibility of witnesses could have been affect­
ed by evidence so intangible as that urged {MGM 
Corporation v. Fear, 104 F2d 892). Clear and 
convincing proof is required to set aside the 
judgment of a general court-martial, and mat­
ters of claimed injustice must be sustained “ not 
as a matter of speculation but as a demonstrable 
reality” (Adams v. United States ex rel. McCann, 
317 US 269, 281).



128
h i

(b) It is also contended that the decision of 
the court finding petitioner guilty was affected 
by the testimony of the witness Miss Blackledge 
given in the trial of Herman P. Dennis, Jr., to 
the effect that that accused had stated to the 
witness his feeling of unhappiness at segregation, 
his unhappiness in the South, and his desire to 
take her picture. This testimony occurred only 
in the trial of Herman P. Dennis, Jr., (Record 
of Trial, in that case, page 77), and hence the 
argument of counsel based thereon can have no 
application to this petitioner.

Sixth: Petitioner was denied counsel of his
choice.

Statements appear in the affidavit of Mr. Daly 
(October 1949) that raise the points that peti­
tioner was denied counsel of his choice, and that 
his counsel “ had one day in which to prepare 
his case and took approximately 1 y2 hours to 
put on his defense.” It is sufficient to state that 
independent investigation heretofore referred to 
disproves these contentions. This investigation 
further proved to my satisfaction that the Com­
manding Generals were entirely within their pre­
rogative as enunciated by paragraph 45a, Manual 
for Courts-Martial, HSAP, 1949, in declaring as 
not available the counsel chosen by petitioner, 
former Lieutenant Colonel Edward P. Daly, and 
that they did not have ulterior motives, as is 
intimated, in declaring him (Daly) unavailable. 
But without regard to the legal rule that the 
determination of the availability of qualified de­
fense counsel within the meaning of Article of 
War 11 is a matter exclusively within the dis­



cretion of the appointing authority whose deter­
mination is final (Manual for Courts-Martial, 
1949, par 45a; Hiatt v. Brown, 339 US 103; ACM 
2437, Quinn, 3 Court-Martial Reports [AF] 108) 
or the further rule that petitioner may not com­
plain that he was inadequately represented by his 
deliberately selected counsel (Adams v. Hiatt, 
79 F Supp 433; Morton v. Welch, 162 F 2d 840; 
Setser v. Welch, 159 F 2d 703; cert den 67 S Ct 
1510), the record shows that capable counsel had 
been made available to petitioner, and that in 
open court he expressed a desire to be repre­
sented by individual counsel of his own selection, 
assisted by the regularly appointed defense 
counsel and assistant defense counsel as asso­
ciates. Scrutiny of the record convinces me that 
petitioner was defended with loyalty, ability, and 
skill, which perforce attained for him the stand­
ards required by the concepts of a fundamentally 
fair trial (Moss v. Hunter, 167 F 2d 683; Alt- 
meyer v. Sanford, 148 F 2d 161; Romero v. Squier, 
133 F 2d 528; Liner v. Cozart, 80 F Supp 540).

Seventh: Important evidence was withheld 
from the court at the trial.

Finally, it is contended that important evidence 
in the nature of Filipino identification discs (dog- 
tags) and a blood-stained Navy officer’s uniform 
alleged to have been found in the vicinity of the 
crime about the time of its commission, was with­
held from the court (Daly affidavit, dated 30 
August 1951). Here again, this allegation was 
made the subject of a thorough investigation, 
from which I have concluded that the charge is 
baseless. Further, a presumption obtains that a



iacT
/■y?

person acting in the capacity of a public officer 
performed his duties properly (Manual for 
Courts-Martial, 1949, par. 125a; Manual for 
Courts-Martial, 1951, par. 138a) and such pre­
sumption of regularity may be indulged as to 
officers charged with the administration of mili­
tary justice (CM 320618, Garner, 70 Board of 
Review 71; CM 332704, Bilbo, 81 Board of Review 
185) and as to courts charged with protecting 
fully the rights of an accused person (Rudolph v. 
Lockwood, 2 P. 2d 319; Johnson v. Wilson, 131 F. 
2d 1). Therefore, I hold, there being no clear 
showing to the contrary, that the officers who 
investigated this case, prepared and preferred 
charges and prosecuted the case before the court, 
were not remiss in the performance of their duties. 
They were vested with wide discretion in develop­
ing and sorting the evidence to be used, and in 
choosing the witnesses conceived to be necessary 
to present the case properly, and the order and 
manner in which the evidence would be presented. 
Petitioner attempts to insinuate an element of 
doubt into the case by intimating that material 
evidence helpful to the defense was suppressed, 
but he fails to point out how such evidence was 
material to his defense, or how it affected or 
prejudiced him in any way. The force of such a 
suppositive argument is minimized by my own 
study of the reports of investigation of these 
matters, and I  hold that in order to avail peti­
tioner anything, such intimations and accusations 
must be supported by grounds less speculative 
and abstruse than those presented.

5. As previously stated, I have re-examined 
the reports of the comprehensive investigations



m
/Jo

which were conducted at my request, and I have 
examined the entire records in this and its allied 
cases, in the light of the grounds set forth in the 
petition, and I hold that the petition presents no 
good cause for the relief sought, and that no in­
justice to petitioner is shown.

Therefore, no good cause for relief within the 
purview of Section 12, Act of 5 May 1950 (for­
merly Article of War 53) having been shown, 
the petition will be denied.

Signed R eginald C. H armon,
Major General, TJSAF,

The Judge Advocate General,
United States Air Force.

U. S. GOVERNMENT PRINTING OFFICE: 1953



SSL