Burns v Lovett Brief for Petitioners

    IN THE

(Emtrt of tlj?
October Term, 1952

No. 422

ROBERT W. BURNS and HERMAN P. DENNIS, JR.,
Petitioners,

vs.

ROBERT A. LOVETT, Secretary of Defense, et al.

O n  W rit  oe Certiorari to t h e  U nited S tates C ourt oe 
A ppeals eor the . D istrict oe Colum bia  Circuit

BRIEF FOR PETITIONERS

R obert L . Carter,
P ran k  D . R eeves,
T hurgood M arshall ,

Counsel for Petitioners.
E lwood H . C h iso lm ,
D avid E . P in s k y ,
Charles W . Qu ic k ,
H erbert 0 .  R eid,
J am es A . W ashington , J r .,

of Counsel.

Supreme Printing Co., Inc., 41 Murray Street, N. Y., BAkclay 7-0349



TABLE OF CONTENTS

Opinion op Court Below .................................................  1
JuRISDICTON ........................................................................  1

Statement1 ..........................................................................  2
Specification of Errors..................................................... 5
Summary of A rgument..................................................... 5

A rgument............................................................................  7
I—  The scope of inquiry on writ of habeas corpus

extends to an examination of the military proceed­
ings to determine whether basic constitutional guar­
antees have been vio la ted .........................................  7

II— The rule of judicial self-restraint applied by the
court below is not appropriate to this case.............. 10

III— Even if the rule announced by the Court of
Appeals is considered applicable to this case, peti­
tioners were entitled to a hearing on the merits in 
the District Court........................................................  17

IV— The use by military authorities of evidence ille­
gally secured in petitioners’ courts-martial renders 
these convictions void ........................................   20

Conclusion..........................................................................  24

Table of Cases Cited

Adams v. United States, 317 U. S. 269.............................  18
Anderson v. United States, 318 U. S. 350, 356.. . .  19, 21, 22
Batson v. United States, 137 F. 2d 299 (C. A. 10t,h

1943).................................................................................. 16
Becker v. Webster, 171 F. 2d 762 (C. A. 2d 1949).......... 8
Betts v. Brady, 316 U. S. 455............................................. 18
Brosius v. Botkin, 110 F. 2d 49 (C. A. D. C. 1940). . . .  18

PAGE



II

Carter v. McClaughry, 183 U. S. 365.............................  7
Chambers v. Florida, 309' U. S. 227.................................  20
Clawans v. Rive-s, 104 F. 2d 240 (C. A. D. C. 1 9 3 9 ).... 16
Coggins v. O’Brien, 188 F. 2d 130 (C. A. 1st 1951). .10,11,16 
Collins v. McDonald, 258 U. S. 4 1 6 ................................. 7,11
Darr v. Burford, 339 TJ. S. 200................................. 10,11,18
Ex parte Reed, 100 U. S. 13.............................................7,14
Felts v. Murphy, 201 U. S. 123...........................................  7

Givens v. Zerbst, 255 U. S. 11.............................................  11
Glasgow v. Moyer, 225 TJ. S. 420’.....................................  7
Glasser v. United, 315 U. 8. 601.........................................  16
Goodwin v. Smyth, 181 F. 2d 498 (C. A. 4th 195 0 ).... 10

Henry v. Hodges, 171 F!. 2d 401 (C. A. 2d 1948).......... 8
Hiatt v. Brown, 339 U. S. 103........................................... 8, 9
Hicks v. Hiatt, 64 F. Supp. 238, 249, 250, n. 27 (M. D.

Pa. 1946) ..........................................................................  12
Holiday v. Johnston, 313 U. S. 342, 350..................... 16,18
Humphrey v. Smith, 326 U. S. 695 .................................  8
Johnson v. Zerbst, 304 U. S. 458....................................7,16
Keizo v. Henry, 211 U. S. 146......................................... 7
Kuykendall v. Hunter, 187 F. 2d 545 (C. A. 10th 1951). 8
Lisenba v. California, 314 U. S. 219, 236.........................  19
McClaughry v. Deming, 186 U. S. 49.............................  7
McNabb v. United States, 318 U. S. 332..........19,21,22,23
Montalvo v. Hiatt, 174 F. 2d 645 (C. A. 5th 1949).......... 8
Mooney v. Holohan, 294 U. S. 103.................................  7
Moore v. Dempsey, 261 U. S. 86.....................................  7
Price v. Johnston, 334 U. S. 266.....................................16,18
Raymond v. Thomas, 91 U. S. 712, 716.............................  15
Rochin v. California, 342 U. S. 165.................................  19
Runkle v. United States, 122 U. S. 543.............................  11

PAGE



PAGE

i i i

Salinger v, Loisel, 265 U. S. 224.....................................  16
Schechtman v. Foster, 172 F!. 2d 339 (C. A. 2d 1 9 4 9 ).... 10
Schita v. Cox, 139 F. 2d 971 (C. A. 8th 1944)..................8,11
Schita v. King, 133 F. 2d 283 (C. A. 8th 1943)..............8,11
Smith v. O ’Grady, 312 U. S. 329.....................................  7
Sunal v. Large, 332 U. S. 174...........................................  7
Tarble’s Case, 13 Wall. 397, 413-414.............................  19
United States v. Baldi, 192 F. 2d 540 (C. A. 3d 1951);

cert, granted 343 U. S. 403 ...........................................  l ln
United States v. Hayman, 342 U. S. 205..................... 19, 20
United States ex rel. Hirschberg v. Cooke, 336 U. S. 210 11 
United States ex rel. Innes v. Hiatt, 141 F. 2d 664 (C. A.

3d 194 4 )............................................................................8,16
Yer Mehren v. Sirmyer, 36 F. 2d 876 (C. A. 8th 1929).. 11
Von Moltke v. Gillies, 332 U. S. 708.................................  16
Wade v. Hunter, 336 U. S. 684...........................................  8
Waite v. Overlade, 164 F. 2d 722 (C. A. 7th 1947)... .8,11
Waley v. Johnston, 316 U. S. 101................................. 7,16
Walker v. Johnston, 312 U. S. 275.................................  16
Watts v. Indiana, 338 U. S. 49, 54................................. 18, 20
Weeks v. United States, 232 U. S. 383.........................  22
Whelchel v. McDonald, 340 U. S. 122................. ......... .. 8,9
Wilfong v. Johnston, 156 F. 2d 507 (C. A. 9th 194 6 ).... 16
Wrublewski v. Mclnerney, 166 F. 2d 243 (C. A. 9th 1948) 8

Other Authorities Cited

Antinean, Habeas Corpus Belief from Courts-Martial 
Convictions, 28 Tex. L. Rev. 556 (1950).....................  8n

Antineau, Courts-Martial and the Constitution, 33 
Marq. L. Rev. 25 (1949)................................................. 8n



IV

Earle, The Preliminary Investigation in the Army- 
Court Martial System— Springboard for Attack by 
Habeas Corpus, 18 Geo. Wash. L. Rev. 67 (1950 ).... 8n

Hearing Before a Sub-Committee of the Committee on 
Armed Services, United' States Senate, on S. 857 and 
H. R. 4085, 81st Congress, First Session..................... 14n

Karlen and Pepper, The Scope of Military Justice, 43 
J. Crim. L. 285, 298 (1952).............................................  15n

Keeffe and Moskin, Codified Military Injustice, 35 Corn.
L. Q. 151 (1949)................................................................  14n

Langley, Military Justice and the Constitution-Improve­
ments Afforded By the New Uniform Code of Military 
Justice, 29 Tex. L. Rev. 651 (1951).............................  14n

Mullally, Military Justice: The Uniform Code in Action,
53 Col. L. Rev. 1 (1953)......................................    14n

Manual for Courts-Martial, United States Air Force, 
156-158 (1949) ................................................................  21

Note, Military Justice—A Uniform Code For The 
Armed Services, 2 Wes. Res. L. Rev. 147 (1950 ).... 14n

Paley, The Federal Courts Look at Courts-Martial,
12 U. of Pitt. L. Rev. 7 (1950).....................................  8n

Parker, Limiting the Abuse of Habeas Corpus, 8 F. R.
D. 171 (1949) .................................................................10,11

Report of the War Department Advisory Committee on 
Military Justice (1946) (The Vanderbilt Report), at 
pages 6 and 7 .................................................................12,13

Stein, Judicial Review of Determinations of Federal 
Military Tribunals, 11 Brooklyn L. Rev. 30 (1941). . 8n

Werfel, Military Habeas Corpus, 49 Mich. L. Rev. 593,
699 (1951)

PAGE

8n



V

Statutes Cited
PAGE

Penal Code of Guam,
Section 686 .................................................................2n, 3, 20
Section 780 .................................................................2n, 3, 20
Section 825 .................................................................. 2n, 20

Chapter 35 of the Civil Regulation With the Force and 
Effect of Law in Guam (1947)................................. 22, 22n



IN THE

IsrtjimnT (Emtrt nf Hit' t̂ati'G
October Term, 19S2

No. 422

•o-
R obert W. B urns and H erm an  P. D e n n is , Jr.,

Petitioners,
vs.

R obert A. L ovett, Secretary of Defense, et al.

O n  W rit  of Certiorari to t h e  U nited S tates C ourt of 
A ppeals for th e  D istrict of C olum bia  C ircuit

---------------------- o-----------------------

BRIEF FOR PETITIONERS

Opinion of Court Below

The opinion of the Court of Appeals (R. 21-56) is not 
yet reported.

Jurisdiction

The judgment of the Court of Appeals was entered on 
July 31,1952 (R. 57), and was amended on August 25, 1952 
(R. 58). Petition for writ of certiorari was filed on October 
29,1952 and was granted December 15,1952 (R. 58). Juris­
diction of this Court rests on Title 28, United States Code, 
Section 1254, subsection 1.



2

Statement

Petitioners are Negro Americans and citizen soldiers 
now being held by military authorities at United States 
Air Force Far Eastern Command, APO 500 unler sentence 
of death. On May 9, 1949, and on May 29, 1949, petitioners 
Herman Dennis, Jr. and Robert Burns were respectively 
tried and convicted for the rape murder of Ruth Farns­
worth, a white civilian, by general courts-martial convened 
on the Island of Guam at Headquarters, 20th Air Force, 
APO 234.

The judgments of the courts-martial were approved by 
the convening authority, found legally sufficient by the 
Judge Advocate General’s Board of Review and the Judi­
cial Council, and the sentences of death were orderd exe­
cuted by the President (R. 1, 2, 7, 8, 9, 10, 16, 17). Peti­
tioners filed timely petitions for new trials with the Judge 
Advocate General, and on January 28, 1952, these petitions 
were denied (R. 2, 9).

At this point, all available remedies provided within 
the military establishment had been exhausted, and the 
present collateral attacks on the validity of the courts- 
martial judgments were instituted in the District Court.

On January 7, 1949, petitioners were surrendered to 
the custody of federal civil authorities on Guam by the 
United States Air Force (R. 2, 10).1 Petitioner Robert 
Burns was held by civil authorities for several weeks 
incommunicado and without process in a death cell at the 
Agana Jail. He was subjected to continuous questioning, 
beaten and denied edible food in violation of the Constitu­
tion of the United States and the laws of Guam (R. 2, 3).2

1 At that time the United States Navy was charged with ad­
ministering the civil government of the Island of Guam.

2 Penal Code of Guam, Sections 686, 780, 825. The text of these 
provisions is set out in an appendix to the petition for writ of 
certiorari at pp. 28-30.



3

He was not allowed to consult counsel during the entire 
period he was held by Guam authorities (E. 3). As a result 
of physical and mental duress, the other two accused- 
petitioner Herman Dennis and one Calvin Dennis— signed 
involuntary confessions implicating this petitioner in the 
crime for which he was ultimately convicted (R, 3).

On or about January 30, he was returned to the custody 
of the Air Force by civil authorities (R. 3). After the 
Air Force regained custody, continued pressure and intimi­
dation was exerted by military authorities to extract a 
confession from him. Similar tactics were also used to 
get Calvin Dennis and Herman Dennis to testify against 
him (R. 3). These efforts did result in Calvin Dennis 
being a witness for the prosecution at petitioner’s trial. 
That testimony has now been repudiated by Calvin Dennis 
as being false, perjured, and suborned by the prosecution 
(R. 4).

Burns was denied the right of consultation with counsel 
by military authorities until one day before his trial (R. 3), 
and important evidence tending to show his innocence was 
suppressed (R. 4). The entire proceeding’s were conducted 
in an atmosphere of hysteria and terror in violation of due 
process of law (R. 4).

Petitioner Herman Dennis was held incommunicado, 
without process and in solitary confinement in the Agana 
Jail by Guam police officers from January 7 until January 
17, 1949. He too was subjected to continuous questioning, 
beaten and denied sleep and food (R .ll) . He was not 
allowed to consult counsel during the entire time he was 
held in the custody of the authorities of Guam (R. 11).

During the period of his detention by Guam authorities, 
he was not advised of his right against self-incrimination 
as required under Sections 686 and 780 of the Penal Code 
of Guam, Article of War 24 and the Fifth Amendment to 
the Constitution of the United States. He made four con­



4

fessions to police authorities between January 11 and 
January 14, which were the result of physical and mental 
duress, protracted interrogation, threats, promises and the 
use of a lie detector (R. 11). The tests of these confessions 
were dictated by police officers, and subsequently petitioner 
repudiated them as false (R. 11). Certain pubic hairs 
were taken from his person and subsequently used against 
him in violation of his right against self-incrimination 
under the laws of Guam, the Articles of War and the Con­
stitution of the United States (R. 12).

On or about January 29, petitioner was returned to the 
custody of military authorities and was not afforded an 
opportunity to consult counsel until shortly before his court- 
martial trial which began on May 9, 1949 (R. 11). Evi­
dence unlawfully obtained by Guam police was introduced 
against petitioner at his trial in violation of his rights 
under the Constitution and the Articles of War (R. 12). 
Irrelevant, immaterial and inflammatory statements delib­
erately calculated to prejudice petitioner’s cause were also 
introduced (R. 12). Important evidence tending to show 
his innocence was suppressed (R. 12); the prosecution 
sought to procure witnesses to perjure themselves and 
intimidated and threatened those who sought to help this 
petitioner (R. 12). This trial was also conducted in an 
atmosphere of hysteria and terror (R. 12-13).

The above-stated allegations, supported by affidavits, 
were the bases for petitions for writ of habeas corpus filed 
in the District Court. Respondents filed motions to dis­
charge the rule to show cause and dismiss the petitions on 
the ground that the petitions raised no questions review- 
able by civil courts (R. 5-8, 15-18). The District Court, on 
April 10, 1952, granted the motions to dismiss (R. 18-20). 
Its opinions are reported at 104 F. Supp. 310, 312. The 
United States Court of Appeals for the District of Colum­
bia Circuit, with one judge dissenting, affirmed the judg­
ment on other grounds (E, 43). Whereupon, we brought 
the cause here.



5

Specifications of Errors

The Court of Appeals erred:

1. In not remanding the cause to the District Court for 
a hearing.

2. In prescribing a rule for entitlement to a hearing 
on the merits in habeas corpus proceedings which permits 
military authorities to effectively foreclose inquiry by 
civil courts into alleged violations of constitutional rights 
by courts-martial.

3. In refusing to hold that on habeas corpus a district 
court must make its own independent determination and 
evaluation of the evidence relating to the claimed invalidity 
of the judgment of the military tribunal.

Summary of Argument

The citizen-soldier being held on military authority 
under sentence of death pursuant to a court-martial convic­
tion should have the right to attack that conviction on writ 
of habeas corpus on the ground that the military authorities 
violated his constitutional rights and denied him the sub­
stance of a fair trial. Where the petition for the writ makes 
out a prima facie case on this ground, entitlement to a 
hearing on the merits has been established. Indeed, in 
federal custody cases, the only prerequisites for a hearing 
on the merits are the showing on the face of the petition 
that there has been a denial of constitutional rights and 
that habeas corpus is the only effective remedy. In apply­
ing a different set of standards to this case, the Court of 
Appeals committed reversible error. Whatever merit its 
standards may have, the Court of Appeals, by not remand­
ing the cause to the District Court for proceedings in the 
light of its decision, subverted its appellate jurisdiction, 
and its judgment should be reversed.



6

While federal courts on habeas corpus have imposed a 
rule of judicial self-restraint in many instances in state 
custody cases for the purpose of preserving the delicate 
federal-state balance, the bases upon which that rule rests 
are absent in the instant case. In state custody cases, when 
a petitioner seeks a writ in a federal court, his cause has 
already been extensively examined and reviewed by the 
state judicial machinery, and this Court has had an oppor­
tunity to review the cause on application for certiorari. 
This is not true in military cases for here petitioner’s first 
contact with an independent judiciary occurs when he peti­
tions the district court for the writ. Courts-martial are 
courts of limited jurisdiction; and where their judgments 
are attacked in federal courts, the duty is on the military 
authorities to affirmatively show that the military tribunals 
possessed the necessary ingredients for the rendition of a 
valid judgment. Under these circumstances, it is strange 
indeed to hold, as the Court of Appeals held, that federal 
courts on habeas corpus cannot look behind the military 
determination and independently inquire whether, in fact, 
the military judgment was valid.

The allegations in these petitions, viewed in their totality, 
establish a shocking picture of deviations from civilized 
concepts of justice. Unless petitioners are entitled to invoke 
the federal process to secure the protection which the Con­
stitution affords citizens and soldiers alike, military courts 
will be free to treat persons within their jurisdiction in any 
fashion they desire. Since petitioners have made uncon­
troverted allegations which if true would clearly show a 
denial of the substance of a fair trial, they are entitled to 
a hearing on the merits in the District Court.



7

ARGUMENT

I.

The scope of inquiry on writ of habeas corpus ex­
tends to an examination of the military proceedings to 
determine whether basic constitutional guarantees 
have been violated.

The early cases involving collateral attacks on both 
military and civil convictions in habeas corpus proceed­
ings were limited to narrow and formalistic notions of 
jurisdiction, i.e., whether the ingredients essential to a 
valid assumption of jurisdiction existed. Collins v. Mc­
Donald, 258 U. S. 416; Glasgow v. Moyer, 225 U. S. 420; 
Keizo v. Henry, 211 U. S. 146; Felts v. Murphy, 201 U. S. 
123; McClaughry v. Deming, 186 U. S. 49; Carter v. Mc- 
Claughry, 183 U. S. 365; Ex parte Reed, 100 U. S. 13. 
See Mr. Justice Frankfuter concurring in Sunal v. Large, 
332 TJ. S. 174. More recently, in civil cases, the scope of 
inquiry has been extended to ascertain whether the con­
viction has occurred in disregard of constitutional guaran­
tees. Waley v. Johnston, 316 U. S. 101; Smith v. O’Grady, 
312 U. S. 329; Johnson v. Zerbst, 304 U. S. 458; Mooney 
y. Holohan, 294 U. S. 103; Moore v. Dempsey, 261 U. S. 
86. While lagging behind this expanded reach of the writ 
as to civil cases, lower federal courts in the past decade 
have begun to hold that on writ of habeas corpus a civil 
court is empowered to examine the military proceedings 
to determine whether specific constitutional rights were 
violated and whether the trial was in accord with funda­
mental notions of fairness implicit in our concept of due



8

process of law.3 Kuykendall v. Hunter, 187 F. 2d 545 
(G. A. 10th 1951); Wrublewski v. Mclnerney, 166 F. 2d 
243 (C. A. 9th 1948); United States ex rel. Innes v. Hiatt, 
141 F. 2d 664 (C. A. 3d 1944); Schita v. Cox, 139 F. 2d 971 
(C. A. 8th 1944); Schita v. King, 133 F. 2d 283 (C. A. 8th 
1943); see also Montalvo v. Hiatt, 174 F. 2d 645 (C. A. 5th 
1949); Becker v. Webster, 171 F. 2d 762 (C. A. 2d 1949); 
Henry v. Hodges, 171 F. 2d 401 (C. A. 2d 1948); Waite v. 
Overlade, 164 F. 2d 722 (C. A. 7th 1947).

This Court has indicated in recent decisions, at least 
by inference, that on writ of habeas corpus a civil court 
may appropriately inquire into whether guarantees of 
due process have been observed by the military tribunal. 
Whelchel v. McDonald, 340 U. S. 122; Humphrey v. Smith, 
336 IT. S. 695; Wade v. Hunter, 336 U. S. 684. While 
Hiatt v. Brown, 339 IT. S. 103 on which respondents relied 
in the lower court appears to be a restatement of the

3 This expanded scope of inquiry on writ of habeas corpus into 
whether the military trial violated petitioners’ constitutional rights 
has been the cause of considerable comment. See Earle, The Pre­
liminary Investigation in the Army-Court Martial System— Spring­
board for Attack by Habeas Corpus, 18 Geo. Wash. L. Rev. 67 
( 1950) ; Antineau, Habeas Corpus Relief from Courts-Martial Con­
victions, 28 Tex. L. Rev. 556 (1950), Antineau, Courts-Martial and 
the Constitution, 33 Marq. L. Rev. 25 (1949) for discussion in 
favor of review of military judgments by civil courts on writ of 
habeas corpus extending to determine whether constitutional safe­
guards had been observed. But see Werfel, Military Habeas Corpus, 
49 Mich. L. Rev. 593, 699 (1951) ; Stein, Judicial Review of Deter­
minations of Federal Military Tribunals, 11 Brooklyn L. Rev. 30 
(1941) ; Paley, The Federal Courts Look at Courts-Martial, 12 
U. of Pitt. L. Rev. 7 (1950) for arguments in favor of limiting the 
scope of inquiry by civil courts on writ of habeas corpus to for­
malistic and technical concepts of jurisdiction.



9

narrow, formalistic view of the permissible scope of 
inquiry,4 it is there indicated that gross abuse of discre­
tion with regard to the 8th Article of War would give 
rise to a defect in the jurisdiction of the military tribunal 
making it subject to collateral attack on writ of habeas 
corpus. Moreover, Hiatt v. Brown, when viewed in the 
light of Whelchel v. McDonald, gives little support to the 
notion that the proceedings of a military tribunal con­
ducted in violation of constitutional rights are not subject 
to collateral attack.

The Court of Appeals is correct, we submit, in holding 
that on habeas corpus civil courts may examine military 
proceedings in order to determine whether a petitioner was 
accorded fundamental fairness. Therefore, insofar as the 
holding of the lower court sustains the right of a civil 
court to inquire into whether the military trial was con­
ducted in compliance with constitutional guarantees, we 
think the court below is correct and that such a rule should 
be expressly adopted by this Court.

All persons tried in our civil courts are protected by 
the Constitution and may attack their convictions by habeas 
corpus on the ground that their trials failed to conform 
to requisite constitutional standards. It would be strange 
indeed if American citizen soldiers, whose primary duty 
is to defend our country and to preserve our democracy, 
are deprived of rights which our courts will scrupulously

4 The Court did say at page 110; “ W e think the court was in 
error in extending its review, for the purpose of determining com­
pliance with the due process clause, to such matters as the proposi­
tions of law set forth in the staff judge advocate’s report, the suf­
ficiency of the evidence to sustain respondent’s conviction, the ade­
quacy o f the pretrial investigation and the competence of the law 
member and defense counsel.”  None of these questions are in­
volved in this case, and this statement cannot be taken to mean, at 
least without explicit clarification by the Court, that no due process 
questions can be raised on habeas corpus.



10

guard even when asserted by those whose purpose is the 
destruction of our institutions. For these reasons, we 
submit, the federal courts on habeas corpus should be 
held to have jurisdiction to determine whether fundamental 
constitutional prerequisites were complied with by military 
tribunals.

II.

The rule of judicial self-restraint applied by the 
court below  is not appropriate to this case.

The Court of Appeals agreed with petitioners’ basic 
contention that failure of a military tribunal to con­
duct its proceedings in a fundamentally fair way would 
render the validity of judgments subject to attack in 
habeas corpus proceedings. But it added, “ habeas corpus 
will not lie to review questions raised and determined, or 
raisable and determinable, in the established military pro­
cess, unless there has been such gross violations of con­
stitutional rights as to deny the substance of a fair trial, 
and because of some exceptional circumstances petitioner 
has not been able to obtain adequate protection of that 
right in the military process”  (R. 32). Thereupon, the 
court took up each of petitioners’ allegations, determined 
that they had been either raised in the military process 
and had been decided against petitioners, or that the con­
tentions were without substance, or were not jurisdictional. 
It then concluded that the facts before it did not depict 
the exceptional case.

1. On habeas corpus federal courts in state custody 
cases have adopted a rule of judicial self-restraint. See 
Barr v. Burford, 339 U. S. 200; Coggins v. O’Brien, 
188 F. 2d 130 (C. A. 1st 1951); Goodwin v. Smyth, 181 
F. 2d 498 (C. A. 4th 1950); Schechtman v. Foster, 172 
F. 2d 339 (C. A. 2d 1949). See also Parker, Limiting



11

the Abuse of Habeas Corpus, 8 F. R. D. 171 (1949). It 
is this rule which here the court below held applicable 
to the instant case. Federal courts which have adopted 
this rule consider it essential to the maintenance of the 
delicate balance in the federal-state relationship involved 
in our federal system. Darr v. Burford, supra-, Coggins 
v. O’Brien, supra. Whatever merits this rule of self- 
restraint may have in state custody cases,5 the problems 
incident to the maintenance of the delicate balance between 
the United States and its courts and the state and its 
courts do not come into play, where, as here, a petitioner 
in federal custody applies to a federal court for a writ of 
habeas corpus. Thus, the reasons for the application of 
the federal rule of judicial self-restraint are not here 
present.

In state custody cases, moreover, before the state con­
victions can be subjected to collateral attack on habeas 
corpus in the federal courts they must have been reviewed 
or denied review by this Court on certiorari. Thus, an 
accused in a state court is afforded at least one opportunity 
for this Court to protect his rights before seeking a writ 
in the federal courts.

2. Courts-martial are courts of inferior and limited 
jurisdiction. United States ex rel. Hirshberg v. Cooke, 
336 U. S. 210; Collins v. McDonald, supra. No presump­
tion of legality or validity attaches to court-martial judg­
ments when they are under collateral attack, Runlde v. 
United States, 122 U. S. 543, and the grounds essential 
to the validity of the assailed authority must affirmatively 
be shown to have existed at the time of its exercise. Givens 
v. Zerbst, 255 U. S. 11; Collins v. McDonald, supra; Waite 
v. Ouerlade, supra; Schita v. King, supra; Schita v. Cox, 
supra; Ver Mehren v. Sirmyer, 36 F. 2d 876 (C. A. 8th 
1929).

5 Even as applied to state custody cases, however, this rule is 
now the subject of conflict among the circuits. See United States v. 
Baldi, 192 F. 2d S40 (C. A. 3d 1951); cert, granted, 343 U. S. 403.



12

If a denial of the substance of a fair trial renders the 
court-martial judgment subject to attack for invalidity 
on a habeas corpus, as the Court of Appeals indicates, 
and if the ingredients essential to the validity of the judg­
ment must be affirmatively established, as the cited cases 
hold, it would seem to necessarily follow that it is the 
inescapable duty of the civil court to determine for itself 
whether those basic ingredients essential to the validity 
of the court-martial proceedings were in fact present. 
Such a determination cannot be left to military authori­
ties. Thus, the expanded reach of the writ of habeas corpus, 
viewed in the light of the concept of limited jurisdiction, 
is at war with the rule of judicial self-restraint as applied 
here. See Hicks v. Hiatt, 64 F. Supp. 238, 249, 250, n. 27 
(M. I). Pa. 1946).

3. Judicial scrutiny of military trials by federal courts 
is more essential than such scrutiny of state convictions. 
The state judiciary is an independent arm of government 
and is normally free from the pressures and influences of the 
executive and prosecuting officials. This is not true of 
military courts which are subject to command control. In 
fact it is a fair statement to say that this influence is con­
sidered the greatest weakness of military justice and has 
been the subject of much concern. In the Report of the 
War Department Advisory Committee on Military Justice 
(1946) (the Vanderbilt Report), at pages 6 and 7 this 
statement is found:

“ The Committee is convinced that in many in­
stances the commanding officer who selected the mem­
bers of the courts made a deliberate attempt to influ­
ence their decisions. It is not suggested that all 
commanders adopted this practice but its preva­



13

lence was not denied and indeed in some instances 
was frequently admitted. * * *

“ So far as the committee is informed, no steps 
have been taken in the Army to check or prohibit 
commanding officers in the exercise of their power 
and influence to control the courts. Indeed the gen­
eral attitude is expressed by the maxim that disci­
pline is a function of command. ’ ’

And the committee goes on to specifically recommend that:
“ 6. The need to preserve the disciplinary au­

thority of the command and at the same time to 
protect the independence of the court can be met in 
the following manner. The authority of the division 
or post commander to refer a charge for a prompt 
trial to a court-martial appointed by a judge advo­
cate should be absolute * * * The right of command 
to control the prosecution and to name the trial judge 
advocate, who should be a trained lawyer, should be 
retained. The Judge Advocate General’s Depart­
ment, however, should become the appointing and 
reviewing authority independent of command”  (em­
phasis added).

The suggestion that appointing power be removed from 
command control, however, has never been incorporated in 
any revisions of military law.

While criticism of command influence normally concerns 
the relationship between the convening authority and the 
courts-martial, at least one authority, Professor Arthur John 
Keeffe, the former President of the General Courts-Martial 
Sentence Review Board of the United States Navy, feels 
that this influence renders even the highest judicial authority 
in the armed services a partisan rather than an impartial 
judicial officer. He said in testifying before a sub-corn-



14

mittee of the Senate Armed Services Committee on the 
proposed Uniform Military Code:

“ The Judge Advocate General is not, and by the 
very nature of his office and appointment, cannot be 
an impartial judicial officer. He is in as inconsistent 
a position as a commanding officer or convening 
authority. He is to enforce discipline and he is to 
give defense. It is for this reason that the English in 
their reforms have provided that the Judge Advo­
cate General be a civilian appointed on the recom­
mendations of the Lord Chancellor and be respon­
sible to him.

“ Significantly, in order to reduce this conflict the 
English have removed the Judge Advocate General 
from the control of the Secretaries for State and 
_A.ir  ̂  ̂ ^

“ To all intents and purposes there is no differ­
ence between the Judge Advocate General and a dis­
trict attorney in civilian life.”  6

4. Military law is a system of articles, rules and regu­
lations established for the government of persons in the 
military service. It deals in particularity with the main­
tenance of discipline within the armed forces. See Ex 
parte Reed, supra. Since ordinary rules of law do not

6 At page 252, Hearing Before a Sub-Committee of the Senate 
Committee on Armed Services, United States Senate, on S. 857 and 
H. R. 4080, 81st Congress, First Session. For other criticisms of 
Uniform Code of Military Justice for its retention of command influ­
ence, see also Keeffe and Moskin, Codified Military Injustice, 35 Corn. 
L. Q. 151 (1949); Langley, Military Justice and the Constitution- 
Improvements Afforded By the New Uniform Code of Military Jus­
tice, 29 Tex. L. Rev. 651 (1951); Snedeker, The Uniform Code 
of Military Justice, 38 Geo. L. J. 521 (1950) ; Note, Military Jus­
tice— A  Uniform Code For The Armed Services, 2 Wes. Res. L. 
Rev. 147 (1950 ); Mullally, Military Justice: The Uniform Code 
in Action, 53 Col. L. Rev. 1 (1953).



15

seek to cope with problems peculiar to the government of 
the military establishment, a special set of rules may well 
be indispensable in prosecuting- exclusively military offenses. 
In such instances, courts-martial and military reviewing 
authorities may be more competent to determine questions 
involving military law, usage and internal administration, 
and, therefore, it might be deemed illogical for civil courts 
to interfere with the determination of such questions by 
military tribunals. By the same reasoning it would seem 
crystal clear that civil courts are better qualified to resolve 
questions of constitutional and fundamental law arising in 
a criminal prosecution where the offense charged is not of 
a peculiarly military character and the accused may be tried 
by either the military or civil authority. “ It is an unbending 
rule of law that the exercise of military power when the 
rights of the citizen [soldier] are concerned, shall never be 
pushed beyond what the exigency requires.”  Raymond v. 
Thomas, 91 U. 8. 712, 716.

So long as the military services were composed of pro­
fessional soldiers, there may have been some logic in allow­
ing the court-martial system to determine conclusively the 
meaning and application of constitutional provisions. To­
day military personnel is largely conscript and the system 
of “ military justice is the largest single system of criminal 
justice in the nation. * * * ”  7 In addition to their authority 
over exclusively military matters, military courts have 
jurisdiction to try all offenses triable in civil courts.

These considerations call for greater rather than less 
scrutiny by civil courts of military proceedings because 
the constitutional safeguards should mean the same things 
to soldiers and civilians. At the very least, the scope of 
inquiry by civil courts of court-martial convictions should

7 Karlen and Pepper, The Scope of Military Justice, 43 / .  Crim. 
L. 285, 298 (1952).



16

not be restricted by a rule of judicial self-restraint where 
the conviction complained of is for an offense not exclu­
sively violative of military discipline or administration.

5. In applying its rule of judicial restraint the Court 
of Appeals concluded that inasmuch as the Judge Advocate 
General had determined petitioners’ allegations an insub­
stantial basis for new trial, the District Court was pre­
cluded from making any contrary determination of their 
sufficiency. Since this conclusion cannot be based upon 
other vital considerations as in the state custody cases, 
petitioners submit that it is patently predicated upon a 
principle indistinguishable from res judicata and ignores 
this Court’s admonition that res judicata is not applicable 
in habeas corpus proceedings. Salinger v. Loisel, 265 U. S. 
224; Waley v. Johnston, supra at page 105.

6. This case involves solely federal habeas corpus juris­
diction of federal custody cases. Where a case involves 
persons in custody of federal authorities, the rule to be 
applied requires but two determinations: (1) whether the 
petition on its face alleges fafcts, which if proved, would 
establish a denial of a constitution right, and, (2) whether 
habeas corpus is the only effective means of preserving 
such rights. See Glosser v. United States, 315 U. S. 60; 
Johnson v. Zerhst, supra; Wilfong v. Johnston, 156 F. 2d 
507 (C. A. 9th 1946); United States ex rel. Innes v. Hiatt, 
141 F. 2d 664 (C. C. A. 3d 1944), and Batson v. United States, 
137 F. 2d 299 (C. A. 10th 1943). Therefore, here it was 
incumbent upon the Court of Appeals to order a hearing 
on the merits in the District Court to provide petitioners 
with the opportunity to establish the truth of their asser­
tions. See Von Moltke v. Gillies, 332 U. S. 708; Johnson 
v. Zerhst, supra; Clawans v. Rives, 104 F. 2d 240 (C. A. D. C. 
1939); and see Coggins v. O’Brien, supra. Cf. Price v. 
Johnston, 334 U. S. 266; Holiday v. Johnston, 313 IT. S. 342; 
Walker v. Johnston, 312 IT. S. 275.



17

III.

Even if the rule announced by the Court of Appeals 
is considered applicable to this case, petitioners were 
entitled to a hearing on the merits in the District Court.

1. In the District Court, respondents’ motions to dis­
charge the rule to show cause and dismiss the petitions 
(R. 5-8, 15-18) and that court’s opinions and judgments 
(R. 18-20) were directed to one issue: whether the permis­
sible scope of the court’s inquiry on a petition for writ 
of habeas corpus was limited to considerations of the 
lawful composition of the courts-martial before which 
petitioners were tried, jurisdiction of their person and 
offense, and the lawfulness of the sentences imposed. On 
appeal, this was the only question presented and argued.

The Court of Appeals below specifically passed on this 
question, stating in its opinion (R. 25):

“ Appellants say that the recent decisions of 
the Supreme Court have ‘ expanded’ the concept of 
‘ jurisdiction’ for purposes of determining the right 
to habeas corpus. That is correct # * * ”  (em­
phasis supplied)

and further (R. 31):

“ We proceed, then, upon the premise that the 
protection of the Fifth and Sixth Amendments apply 
to courts-martial, except for the specific exception 
in the Fifth and the historic meanings at common 
law of the terms used in both amendments * *

It is petitioners’ contention that at this point that the 
Court of Appeals, having determined that the District 
Court erroneously limited the scope of its jurisdiction to 
exclude consideration of a habeas corpus petition alleg-



18

mg violation of fundamental due process, erred in failing 
to remand the cause for application of the rule which it 
held to be dispositive of the petition.

United States Courts of Appeals have no original juris­
diction in habeas corpus proceedings. Title 28, United 
States Code, Section 2241. See Adams v. United States, 
317 U. S. 269; Brosms v. Botkin, 110 F. 2d 49 (C. A. D. C. 
1940). Since this is true, and because Title 28, United 
States Code, Section 2243, specifically provides that the 
court, justice or judge to whom an application for a writ 
of habeas corpus is made shall pass upon its sufficiency, 
it is evident that the Court of Appeals is incompetent to 
initially determine the sufficiency of such applications.

In the interest of justice, this Court and other federal 
courts have long disregarded legalistic exactitude in the 
examination of applications for the writ. Thus, even 
though the petition is insufficient in substance, it may be 
amended. See Barr v. Burford, 339 U. S. 200; Holiday 
v. Johnston, 313 U. S. 342, 350. Consequently, in consid­
ering propositions and matters which had not been con­
sidered, developed or determined by the District Court 
and in summarily precluding the possibilities of amend­
ment, answer, traverse and hearing provided in Title 28, 
United States Code, Section 2243, the Court of Appeals 
subverted its appellate review in a manner which this 
Court regards as reversible error. See Price v. Johnston, 
supra.

2. Petitioners’ allegations make out a prhnie facie 
case of denial of the substance of a fair trial by military 
authorities. A  proper appraisal of petitioner’s contention 
can only be obtained by viewing the allegations in their 
totality. Betts V. Brady, 316 U. S. 455. Viewed as a 
whole, petitioners’ allegations paint a shocking picture of 
injustice highlighted by the “ pressure otf unrelenting 
interrogations”  which this Court condemned in Watts v.



19
- i

Indiana, 338 U. S. 49, 54; a working arrangement between 
two arms of the government in derogation of the rights 
of the accused which was denounced in Anderson v. United 
States, 318 U. S. 350, 356; “ a plain disregard of the duty- 
enjoined by Congress upon federal law officers”  as defined 
in McNabb v. United States, 318 U. S. 332, 344; acts invading 
the privacy of an accused which in Bochin v. California, 
342 U. S. 165 was described as “ conduct which shocks the 
conscience.”  These factors, projected against a background 
which includes subornation of perjury, deprivation of coun­
sel and favorable witnesses, suppression of evidence, the 
introduction of prejudicial and inflammatory testimony 
and the conduct of the trials in an atmosphere of mob 
hysteria and terror, renders inescapable the conclusion that 
“ the whole proceeding is a mask” , Moore v. Dempsey, 261 
U. S. 86, 91, and that petitioners’ trials lacked “ that 
fundamental fairness essential to our concept of justice” . 
Lisenba v. California, 314 U. S. 219, 236.

If these circumstances do not warrant issuance of the 
writ, it is difficult to conceive what additional ingredients are 
necessary to merit classification as the “ exceptional case.”  
Indeed, if, as the Court of Appeals concluded, the circum­
stances shown do not picture the denial of the substance 
of a fair trial, if the allegations are insufficient to affect 
the fundamental fairness of the courts-martial, and if the 
disposition accorded petitioners’ claims does not impair the 
validity of the subsequent military appellate determinations 
sufficient to characterize this as an “ exceptional case” , 
petitioners submit that adherence to the rule applied by 
the Court of Appeals effectively accomplishes suspension 
of the writ of habeas corpus in cases involving solider 
citizens in violation of Article I, Section 9, Clause 2 of the 
Constitution. See Tarble’s Case, 13 Wall. 397, 413-414. 
Cf. United States v. Hayman, 342 U. S. 205. Further­
more, it cannot be said in habeas corpus arising out of 
court-martial convictions that the rule merely operates 
to “ minimize the difficulties encountered in habeas corpus



20

hearings by affording the same rights in another and more 
convenient forum”  United States v. Ray man, supra,

This is the type of case with which this Court and the 
federal courts have dealt with on innumerable occasions. 
A  Negro is accused of a crime of passion or violence against 
a white woman. Such accusations test the strength of our 
constitutional guarantees. This Court, however, has evolved 
standards and restraints which must be observed in order 
to prevent convictions under such circumstances from being 
acts of tyranny and injustice rather than the impartial 
application of the law. See Chambers v. Florida, 309 U. S. 
227; Watts v. Indiana, supra. We submit, the military pro­
ceedings here violated all standards of civilized judicial 
conduct, and that petitioners should have been allowed to 
prove in the District Court the merits of their contentions.

IV.

The use by military authorities of evidence illegally 
secured in petitioners’ courts-martial renders these con­
victions void.

As the facts reveal, petitioners were released by military 
authorities to custody of the civil authorities of Guam, 
jailed and held incommunicado by the latter without process 
for a prolonged period of time. This procedure was in 
clear violation of Sections 686, 780 and 825 of the Penal 
Code of Guam, which guarantee to the accused the right and 
visitation of counsel, privilege against self incrimination, 
and protection against detention by police authorities with­
out process.

In our view these provisions were applicable to all per­
sons within the jurisdiction of that government. Had peti­
tioners been tried by the civil authorities and if the evidence 
obtained by the civil police under the circumstances set 
forth here had been introduced at their trials, the convic­



21

tions would unquestionably be invalid under the rule stated 
by this Court in McNabb v. United States, supra.

The Court of Appeals dismissed this argument on the 
ground that the McNabb rule was merely a rule of evidence. 
But this, we submit, does not dispose of petitioners’ con­
tention. The question posed is whether courts-martial may 
lawfully use evidence illegally obtained by another arm of 
the federal government. The 38th Article of War, which 
Vas in effect at the time these courts-martial took place, 
provides that the rules of evidence generally recognized in 
the trial of criminal cases in the district courts of the United 
States .shall apply insofar as the President deems them prac­
ticable. Rule 124 provides that insofar as not otherwise 
prescribed in the Manual, the rules of evidence generally 
recognized in the trial of criminal cases in district courts 
shall be applied. Manual for Courts-Martial, United States 
Air Force 150 (1949). Thus, in the absence of any con­
trary regulations the courts-martial should have applied 
the rules in use in the district court and evidence unlaw­
fully obtained should not have been admitted. See McNabb 
v. United States, supra. The fact that civil authorities un­
lawfully obtained the evidence introduced at the courts 
martial does not make such evidence admissible. Anderson 
v. United States, supra.

Rule 127, which specifically deals with the subject of 
admissibility of confessions, contains nothing which ex­
pressly negatives the applicability of the McNabb and 
Anderson rules to courts-martial. Manual for Courts- 
Martial, United States Air Force 156-158 (1949). In fact 
the rule can well be interpreted as adopting the McNabb 
principle. Rule 127 states that: “ No statement, admission, 
or confession of an accused obtained by use of coercion or 
unlawful influence shall be received in evidence in any 
courts-martial.”  (emphasis supplied). The use of the 
phrase “ coercion or unlawful influence”  clearly implies 
that “ unlawful influence”  constitutes something in addi­
tion to “ coercion.”  Certainly the term “ unlawful influ­



22

ence”  might well refer to a confession obtained during a 
period of unlawful detention.

It should be noted here that in other instances where 
the courts-martial Manual intends to render inapplicable 
to courts-martial a particular federal rule, this intention is 
expressed in no uncertain terms. For example, Buie 138 
makes lawful a search of property owned or controlled by 
the United States when authorized by the commanding offi­
cer having jurisdiction over the locality where the prop­
erty is located. This rule was intended to limit, the appli­
cation of the doctrine of Weeks v. United States, 232 U. S. 
383, to courts-martial. But no such express provision nega­
tives the applicability of the McNabb and Anderson rules 
to military proceedings.

The military reviewing authorities disregarded this con­
tention on the ground that Chapter 35 of the Civil Regula­
tions With the Force and Effect of Law in Guam (1947) 
operated with regard to military personnel in lieu of Sec­
tions 825 and 847-849 of the Penal Code of Guam.8

8 Chapter 35 provides:
“ 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. If the charge is considered 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 offender would be detri­
mental 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 permit the commanding officer to take intelli­
gent action on the case, and the names of such witnesses as 
may be available. He will also forward one copy of this 
report to the office o f the Governor, for file.”



23

It should be noted at the outset that neither the Civil 
Regulations nor the Penal Code expressly authorize Chap­
ter 35 to operate in lieu of the Penal Code in eases involv­
ing military personnel. Moreover, it is submitted, Chapter 
35 can have no application to this case.

The plain meaning of this chapter is that its provisions 
shall be followed when military personnel are initially ap­
prehended by civil authorities on Guam. In the instant 
case, petitioners were actually surrendered by the military 
to officials of the civil government. This fact in itself serves 
to render Chapter 35 inapplicable here, for it can have no 
possible meaning in the context of this case.

Further, the record makes it clear that both the military 
and the civil officers contemplated that petitioners would be 
tried by civil authorities. The very fact that the military 
released petitioners strongly leads to this inference. But 
even more persuasive is the revelation at pages 227, 232 of 
the court-martial record of petitioner Herman Dennis that 
he was actually arraigned before a magistrate after con­
fessions were extracted from him. Under these circum­
stances, neither the military nor the civil authorities can 
now validly claim that the protections afforded by the Penal 
Code of Guam were inapplicable to these petitioners.

The rule of the McNabb case is much more than an 
important rule of evidence. It represents the expression of 
a strong policy that federal courts cannot convict an accused 
on the basis of evidence obtained during a period of pro­
longed unlawful detention and interrogation. The use of 
such evidence would vitiate any conviction in a federal court. 
Petitioners submit that the use of such evidence by these 
courts-martial and the failure of the reviewing authorities 
to correct this clear error of law vitiates their convictions.



24

Conclusion

W herefore, it is respectfully submitted that the judg­
ment of the Court of Appeals should be reversed and the 
cause remanded for a hearing on the merits.

R obert L. Carter,
F r an k  D. R eeves,
T hurgood M arsh all ,

Counsel for Petitioners.
E lwood  H . C h iso lm ,
D avid E . P in s k y ,
Charles W . Q u ic k ,
H erbert1 0 . R eid,
J am es A. W ash ing to n , Jr.,

of Counsel.