Burns v Lovett Brief for Respondents in Opposition

    N o .  4 2 2

J k to  ĵ ujrmo yu rt of to  HuM
O c t o b e r  T e r m , 195 2

R o b e r t  W .  B u r n s  a n d  H e r m a n  P .  D e n n i s , J r .,
PETITIONERS

V.

R o b e r t  A .  L o v e t t , S e c r e t a r y  o f  D e f e n s e  ; T h o m a s  
K .  F i n l e t t e r ,  S e c r e t a r y  o f  t h e  A i r  F o r c e  ; 
G e n e r a l  H o y t  S . V a n d e n b e r g , C h i e f  o f  S t a f f , 
U n i t e d  S t a t e s  A i r  F o r c e

ON PETITION FOB A WHIT OF CERTIORARI TO THE
,UNITED STATES 'COURT OF APPEALS FOR THE IU.- 
TRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION



I N D E X
Page

Opinions below.................................................................................  1
Jurisdiction ..................................................................................... 2
Question presented ......................................................................... 2
Statutes involved............................................................................. 2

Statement ........................................................................................  2
1. Unlawful detention ..........................................................  6
2. Coerced confessions ..........................................................  7
3. Denial of counsel of petitioners’ choice, or effective as­

sistance of counsel..........................................................  9
4. Suppression of evidence ..................................................  11
5. Perjured testimony ..........................................................  11
6. Trial in an atmosphere of terror........................................ 13

Argument ......................................................................................... 14
Conclusion .......................................................................................  24
Appendix ......................................................................................... 25

CITATIONS
Cases:

Ahrens v. Clark, 335 U.S. 188..............................................  2
Burall v. Johnston, 134 F. 2d 614, certiorari denied, 3l9

U.S. 768................................................................................  21-22
Carter v. Woodrinq, 92 F. 2d 544, certiorari denied, 302

U.S. 752 ..............  17
Close v. United States, 198 F. 2d 144, No. 130 Misc., O.T.

1952, certiorari denied November 13, 1952......................  22
Cobb v. Hunter, 167 F. 2d 888, certiorari denied, 335

U.S. 832 ..............................................................................  23
Coggins v. O’Brien, 188 F. 2d 130................................. 16,17, 20
Barr v. Burford, 339 U.S. 200..................................  17,19, 20, 24
Dynes v. Hoover, 20 How. 65................................................  17
Frank v. Mangum, 237 U.S. 309..........................................  16, 24
French v. Weeks, 259 U.S. 326..............................................  20
Gault v. Burford, 173 F. 2d 813............................................  16
Goodwin v. Smyth, 181 F. 2d 498..........................................  16
Grafton v. United States, 206 U.S. 333................................  18
Grimley, In re, 137 U.S. 147..................................................  18
Gusik v. Schilder, 340 U.S. 128............................................  17
Hawk, Ex parte, 321 U.S. 114..............................................  16,24
Hiatt v. Brown, 339 U.S. 103..............................................  18
Johnson v. Eisentrager, 339 U.S. 763..................................  2
Kennedy, United States ex rel. v. Tyler, 269 U.S. 13........  16, 24
McClaughrey v. Deming, 186 U.S. 49..................................  18

(i)



II

■Cases— Continued Page
Mooney v. Holohan, 294 U.S. 103........................................  16, 23
Moore v. Dempsey, 261 U.S. 86............................................  16,17
Morton v. Welch, 162 F. 2d 840..........................................  22
Powers v. United States, 223 U.S. 303................................ 22
Reaves v. Ainsworth, 219 U.S. 296.....................................  20
Schechtman v. Poster, 172 P. 2d 339, certiorari denied,

339 U.S. 924 ...................................................................  16, 20, 24
Setser v. Welch, 159 P. 2d 703, certiorari denied, 331 U.S.

840 ........................................................................................  22
Smith v. United States, 187 P. 2d 192, certiorari denied,

341 U.S. 927 ........................................................................  21
United States v. Baldi, 192 P. 2d 540, certiorari granted,

343 U.S. 903 .......................................................... "............  16
United States v. Burns, 4 CMR (A P) 907..........................  24
United States v. Dennis, 4 CMR (AP) 872..........................  23, 24
United States v. Freeman, 167 P. 2d 786, certiorari denied,

335 U.S. 8 1 7 ........................................................................  22
United States v. Hiatt, 141 P. 2d 664..................................  20
United States v. Klinger, 136 P. 2d 677, certiorari denied,

320 U.S. 746 ........................................................................  22
Valdez v. United States, 244 U.S. 432..................................  23
Whelehel v. McDonald, 340 U.S. 122..................................  24
Wild v. Oklahoma, 187 P. 2d 409........................................  23
Wilson v. United States, 162 U.S. 613..................................  22

Constitution and Statutes:

United States Constitution, Art. 1, § 8, cl. 14......................  18
Articles of War, as amended by the Act of June 4, 1920, 

c. 227, subehapter II, 41 Stat. 787, and the Act of June 
24, 1948, e. 625, Title II, 62 Stat. 627:

Art. 47 [10 U.S.C., Supp. II, 1 5 1 8 (c)]......................  25
Art. 48 [10 U.S.C., Supp. II, 1519]..............................  25
Art. 49 [10 U.S.C., Supp. II, 1520]..............................  26
Art. 50 [10 U.S.C., Supp. II, 1521]..............................  26
Art. 53 [10 U.S.C., Supp. II, 1525]..............................  28
Art. 92 [10 U.S.C., Supp. II, 1564]..............................  29

United States Code:
28U.S.C. 2255..................................................................  21
50 U.S.C., Supp. Y, 576-660 64 Stat. 113-132 

(formerly 10 U.S.C. 1474-1525, 41 Stat. 788-800) 18
50 U.S.C., Supp V, § 663, 64 Stat. 132 (formerly 10 

U.S.C. '§ 1522, 41 Stat. 797, as amended 50 Stat.
724, 56 Stat. 732 )......................................................  18



tymxt af th  W xlki
O c t o b e r  Term, 1952

No. 422

R o b e r t  \V. B u r n s  a n d  H e r m a n  P .  D e n n i s , J r .,
PETITIONERS

V.

R o b e r t  A. L o v e t t , S e c r e t a r y  o f  D e f e n s e  ; T h o m a s  
K .  F i n l e t t e r , S e c r e t a r y  o f  t h e  A i r  F o r c e ; 
G e n e r a l  H o y t  S . V a n d e n b e r g , C h i e f  o f  S t a f f , 
U n it e d  S t a t e s  A ir  F o r c e

ON PETITION FOR A WRIT OF CERTIORARI TO TEE  
UNITED STATES COURT OF APPEALS FOR THE DIS­
TRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

O P IN ION 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 opinions of the 
Court of Appeals (R. 21-44, 44-56) are as yet un­
reported.

(i)



2

JU R IS D IC T IO N

The judgment of the Court of Appeals was en­
tered on July 31, 1952 (R. 57), and amended on 
August 25,1952 (R. 58). The petition for a writ of 
certiorari was filed on October 29,1952. The juris­
diction of this Court is invoked under 28 U.S.C. 
1254(1).

Q U E S T IO N  P R E S E N T E D

Whether, on petitions for habeas corpus alleging 
violations of due process in court-martial proceed­
ings, petitioners were entitled to a hearing on fac­
tual issues which had been examined and found 
groundless in the military appellate processes.

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

The statutes involved are set forth in the Appen­
dix, infra, pp. 25-29.

S T A T E M E N T

Petitioners, citizen members of the United States 
Armed Forces, seek review of the judgment of the 
court below, which affirmed the orders of the United 
States District Court for the District of Columbia 
dismissing, without hearing, their several petitions 
for writs of habeas corpus against respondents (R. 
1-5, 9-15), under whose authority petitioners are in 
custody of Headquarters, Japan Logistical Com­
mand, APO 503, awaiting execution of death sen­
tences imposed by courts-martial following convic­
tion for rape and murder.1 They contended in their

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



3

respective habeas corpus petitions that their deten­
tion was unlawful because the courts-martial, hav­
ing denied them due process as a result of certain 
alleged irregularities in the conduct of their trials, 
had lost jurisdiction over them.

From the habeas corpus petitions and the re­
sponses to rules to show cause the following facts 
appear:

On December 11, 1948, petitioners Burns and 
Dennis were serving as Staff Sergeant and Private, 
respectively, in the United States Air Force, as­
signed to the 12th Air Ammunition Squadron at 
Guam, Marianas Islands (R. 1, 9, 18). On Febru­
ary 1,1949, Dennis was charged with a violation of 
the 92nd Article of War, in two specifications, as 
amended on April 14, 1949, alleging, respectively, 
that on December 11,1948, on the Island of Guam, 
he did rape and “ with malice aforethought, wilfully, 
deliberately, feloniously, unlawfully, and with pre­
meditation, kill”  one Ruth Farnsworth, “ by griev­
ously beating, tearing, and abusing her person”  (R. 
11,16; ACM 1892, Dennis (B R ), 4 CMR (A F ) 872, 
873-874; Resp. Ex. C) .2 The same charge and spec­
ifications were filed against Burns on February 20, 
1949 (R. 3, 6-7; ACM 1893; Burns (B R ), 4 CMR 
(A F ) 907, 909; Resp. Ex. C).3 Dennis was tried 
by general court-martial, duly convened at Head­
quarters, Twentieth Air Force, Guam, from 9th to

2 The citation refers to volume 4 of the Court Martial Re­
ports of the Judge Advocate General of the Air Force, herein­
after referred to as CMR (AF).

3 Same as fn. 2, supra.



4

16th of May, 1949 (R. 16, 18; 4 CMR (A F ) 872, 
873; Resp. Ex. C). Burns was tried by general 
court-martial, composed of different officers, duly 
convened at Headquarters, 19th Bombardment 
Wing, Medium, Guam, from 27th to 30th of May,
1949 (R. 6, 18; 4 CMR (A F ) 907, 909; Resp. Ex. 
C). They were both found guilty of the offenses 
charged and sentenced to death (R. 1, 7, 9, 16, 18; 
4 CMR (A F ) 872, 874, 907, 909; Resp. Ex. C).

The trial proceeding in each instance was ap­
proved, following a review in accordance with pro­
visions of AW  47, by the Staff Judge Advocate of 
the convening authority, the Twentieth Air Force, 
which then forwarded the trial records to The 
Judge Advocate General, United States Air Force, 
at Washington, for appellate review pursuant to 
provisions of A W  50 (R. 1-2,7, 9-10,16,18-19 ; Resp. 
Exs. A, B ). On November 21, 1949, the Board of 
Review, in the office of The Judge Advocate Gen­
eral, after a review of Dennis’ court martial pro­
ceedings following the submission of a brief and 
oral argument by one of his present counsel, found 
that “ no error injuriously affecting the substan­
tial rights of the accused was committed during the 
trial”  and approved it (R. 16-17, 18-19; Resp. Ex. 
C; 4 CMR (A F ) 872, 904; Resp. Ex. C). 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 different members, 
affirmed his court-martial proceedings on March 14,
1950 (R. 7, 18-19; Resp. Ex. C ; 4 CMR (A F ) 907, 
923). The Judicial Council, in the office of The



5

Judge Advocate General, after the submission of 
separate briefs and oral arguments on behalf of 
each petitioner by one of their present counsel to 
the effect “ that the conviction should not be per­
mitted 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, respectively 
(R. 17, 7; Resp. Ex. I ) ; 4 CMR (A F ) 888, 892, 904, 
923, 926, 927).

Subsequently, in view of a series of correspond­
ence on behalf of petitioners, containing “ allega­
tions which if  true would reflect adversely upon the 
fundamental fairness of ”  their trials, and because 
of the gravity of the sentences, The Judge Advocate 
General, United States Air Force, in his “ capacity 
as supervisor of the administration of military jus­
tice generally,”  had “ requested the Office of Spe­
cial Investigations, Office of The Inspector Gen­
eral, to make a complete investigation of these mat­
ters”  (R. 17-18; Resp. Ex. F ; 4 CMR (A F ) 905- 
906, 928-929). Later, in transmitting pursuant to 
provisions of A W  50(d) (1) the records of the ap­
pellate review accorded petitioners to the Secretary 
of the Air Force, The Judge Advocate General re­
ported that “ the most comprehensive investigation 
of the Office of Special Investigations disclosed 
nothing which would warrant my recommending 
disapproval of the sentence”  of either petitioner 
(Resp. Ex. E ; 4 CMR (A F ) 906, 929).4 On August

4 The reports of the independent investigation were also for­
warded to the Secretary of the Air Force (4 CMR (AF) 929).



6

3, 1951, the President of the United States con­
firmed petitioners’ sentences and ordered their ex­
ecution by the Commanding General, Far East Air 
Force (R. 8, 17, 18-19; Resp. Ex. F ; 4 CMR (A F ) 
907,930). Thereafter, petitioners, pursuant to pro­
visions of 50 U.S.C., Supp. Y, 660 (formerly A W  
53), filed with the Judge Advocate General their 
petitions for a new trial which contained essentially 
the same allegations presented in their respective 
petitions for habeas corpus (R. 8, 17, 19, 2, 10; 
Resp. Ex. G). The Judge Advocate General ap­
pointed a board of officers, who heard the argu­
ments of petitioners’ counsel, and considered all 
the evidence presented (Resp. Ex. G). On Janu­
ary 28, 1952, the Judge Advocate General, after 
considering the memoranda of the board of officers 
and after reexamining petitioners’ entire trial rec­
ords and the independent investigations conducted 
at his request as against the allegations set forth 
in their petitions, denied petitioners’ requests for 
a new trial (R. 8, 17-18; Resp. Ex. G).

Specifically, the petitions for habeas corpus 
raised the following issues which were disposed of 
by the various military reviewing authorities as in­
dicated :

1. Unlawful detention. Petitioners alleged that 
on January 7, 1949, upon their arrest by military 
authorities, they were placed in custody of civil au­
thorities on Guam, where, without arraignment, 
they were held, incommunicado, not allowed to con­
sult with counsel, “ subjected to continuous ques­



7

tioning, beaten, denied sleep and edible food,”  in 
violation of the Penal Code of Guam and the United 
States Constitution, until tbeir return to the cus­
tody of the Air Force several weeks later (B. 2-3, 
10-11, 13). During such detention Dennis, “ with­
out being advised of his constitutional rights 
against self-incrimination had taken from his per­
son certain pubic hairs which were subsequently 
used as evidence against him”  (B-. 12).

The Judge Advocate General 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 committing 
magistrate or other like authority” , because Guam 
at that time was under control of “ a military gov­
ernment deriving its authority from the United 
States and administered by the Department of the 
Navy. * * * Chapter 35, ‘ Civil Begulations With 
the Force and Effect of Law in Guam’ (United 
States Government Printing Office, 1947) provides 
for the detention of United States military person­
nel 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”  (4 
CMB (A F ) 888, 900 ; Besp. Exs. D, G).

2. Coerced confessions: Petitioners alleged that, 
as a “ result of physical duress, protracted inter­
rogation, the use of a lie detector, threats”  and 
promises, and without being advised of his rights 
against self-incrimination, Dennis gave four con­
fessions, which also implicated Burns (B. 11, 12, 
13).



8

The facts set forth in the record of the trial do 
not show that Dennis, while in custody of the Guam 
authorities, 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”  (4 CMR 
(A F ) 885; Resp. Ex. C). The four statements 
made by 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 voluntary nature of 
these confessions, including petitioner’s own sworn 
testimony as a witness in his own behalf, and his de­
nial that physical force was used against him” , to­
gether with testimony showing that he was warned 
of his constitutional rights (Resp. Exs. G, p. 8, 
C, D, 4 CMR (A F ) 880-882, 885-886, 887, 889-892, 
895-900). The evidence at the trial showed that 
after Dennis had signed his third confession, he re­
enacted his part in the crime, pointing out to the 
investigators the exact route taken in the course of 
the crime, depicting the roles played by the par­
ticipants together with all the details, which coin­
cided in all major respects “ to the facts and circum­
stances evidenced”  by other testimony (4 CMR 
(A F ) 880, 887; Resp. Exs. C, G).

Although petitioners together with other soldiers 
had voluntarily submitted to a “ lie detector”  test 
prior to their arrest, no confessions were made 
while they were undergoing such tests, nor were the 
results of the tests used in evidence (4 CMR (A F ) 
885; Resp. Ex. C).



9

3. Denial of counsel of petitioners’ choice, or 
effective assistance of counsel: Petitioners alleged 
that counsel furnished Burns “ had only one day to 
prepare his defense, thereby depriving petitioner 
of his right to effective counsel”  (R. 4) ; and that 
Dennis was denied a “ request for counsel of his 
choice,”  and the counsel furnished him “ did not 
take adequate time to prepare”  his defense (R. 12).

The record shows that prior to trial, petitioners 
were notified that Dennis’ written request for the 
services of Lieutenant Colonel Daly as individual 
defense counsel could not be granted because by de­
cision of the appointing authority “ Lieutenant 
Colonel Daly was declared not available for such 
duty,”  and Colonel Daly himself advised Dennis 
that he could not “ conscientiously defend”  him 
(4CMR (A P ) 883, 893; Resp. Exs. C, D ). There­
after, Dennis “ signified his satisfaction with the 
regularly appointed defense counsel and stated that 
he did not desire the services of Lieutenant Colonel 
Daly”  (id.). However, at the beginning of the 
trial, Dennis stated, “ I desire the regularly ap­
pointed defense counsel but do wish to have Lieu­
tenant Colonel Edward E. Daly to assist”  (4CMR 
(A P ) 882; Resp. Ex. C). The law member of the 
court “ ruled that Lieutenant Colonel Daly was not 
available to serve as special defense”  (4CMR (A P ) 
883; Resp. Ex. C). The Board of Review in exam­
ining Dennis’ trial record found that the “ official 
files of the Air Force available at Headquarters, 
USAP ’ ’, showed ‘ ‘ that at the time of trial the officer 
requested by the accused as individual defense



10

counsel was himself under charges involving mis­
conduct, moral turpitude, drunkenness and dis- 
orderliness 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”  (4 OMR (A F ) 884, 892- 
895, 906; Resp. Exs. C, D, E, G). On the date of 
the trial, Daly’s resignation from the service “ was 
in the processes of military administration,”  since 
on April 19,1949, he had tendered such resignation 
‘ ‘ for the good of 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 ap­
pointed defense counsel, all three of whom were 
qualified attorneys, admitted to the practice of law 
in their respective states and designated as judge 
advocates by the Chief of Staff, United States Air 
Force” , and that they participated in the case since 
their assignment without knowledge that Dennis 
was willing to obtain Colonel Daly as special coun­
sel after the original information to Dennis that 
Daly was unavailable for the requested assignment 
(4 CMR (A F ), 884, 893-894; Resp. Exs. C, D).

As to Burns, the record indicates that he “ was 
defended at the trial by counsel of his choice”  (4 
CMR (A F ) 921-922; Resp. Ex. C). On the day of 
his trial, Burns, though present with his “ regularly



11

appointed defense counsel” , was granted a request 
to be represented by an officer of his own choosing, 
Captain Drucker, a member of the Judge Ad­
vocate’s Corps and a qualified lawyer, as his in­
dividual counsel, while retaining two of the three 
regularly appointed defense counsel “ to act as as­
sociate counsel”  (4 CMR (A F ) 921; Resp. Ex. C). 
Burns then stated that he was “ satisfied”  with 
such counsel. Neither he nor counsel of his choice 
requested a continuance of his trial (4CMR (A P ) 
921; Resp. Exs. C, G).

4. Suppression of evidence: Petitioners alleged 
that certain “ important evidence tending to show”  
petitioners’ innocence was suppressed by the pros­
ecution (R. 4, 12).

The Judge Advocate General, in rejecting, as a, 
ground for a new trial, the contention, “ that im­
portant evidence in the nature of Filipino iden­
tification 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 commis­
sion, was withheld 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. G, p. 13).

5. Perjured testimony: Petitioners alleged that 
Calvin Dennis, who was also charged with the 
same offenses as petitioners, admitted in a sworn 
statement that his testimony at the trial, which 
alone directly connected Burns with the crimes 
charged, was perjured as a result of “ threats 
and promises of special consideration if Calvin



12

Dennis agreed to testify against”  Burns (R, 4, 
3) ; that the prosecution “ sought to procure wit­
nesses to perjure themselves”  against petitioner 
Dennis, “ and intimidated and threatened those who 
sought to help”  him (R. 12) ; that the trial record 
shows that specimens of hair obtained from Dennis 
“ were deliberately planted in an effort to create 
evidence tending to show his guilt”  (R. 13).

In view of the trial record and circumstances sur­
rounding the case, The Judge Advocate General 
found that he could not place any credence in Galvin 
Dennis’ affidavits repudiating his testimony given 
against Burns at the latter’s trial (Resp. Ex. G.). 
The Judicial Council found that “ the record dis­
closes that the trial judge advocate and the law 
member used commendable care to assure that P ri­
vate Galvin Dennis appeared as a witness volun­
tarily and that there was present no coerci ve in­
fluence which would cause him to tell other than 
the truth” , and that their interrogation shows “ con­
clusively that Private Calvin Dennis offered him­
self as a witness freely and voluntarily and that 
his testimony was given with a full and complete 
understanding of his rights, uninfluenced and un­
colored by any threat or promise”  (4 CMR (A F ) 
926, 921-922; Resp. Exs. C, D ). During his re­
peated assertions that he was testifying volun­
tarily, Calvin Dennis “ sustained himself through 
a searching cross-examination”  by the defense 
(Resp. Ex. G, p. 8). The defense made an attack on 
the credibility of his testimony “ by showing that 
he had made prior inconsistent statements,”  but he



13

explained “ that those statements were influenced 
by threats made”  by petitioners. The record 
shows that “ Calvin Dennis’ testimony was con­
sistent in every respect with the corroborative 
evidence” . (4 CMR (A F ) 915-916; Resp. Ex. C.).

With respect to the assertions that the prosecu­
tion “ intimidated and threatened those who sought 
to help”  him, the Judge Advocate General found 
that “ exhaustive”  independent investigations did 
not substantiate such allegations (Resp. Ex. G).

6. Trial in an atmosphere of terror: Petitioners 
alleged that their trials were “ conducted in an 
atmosphere of terror, hysteria and vengeance”  (R. 
4, 12-13).

The Board of Review, in reviewing Burns’ rec­
ord, found that the atmosphere on Guam was not 
such as to preclude a fair and impartial trial (4 
CMR (AE) 922; Resp. Ex. C). “ 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 possessed any 
preconceived opinion as to Burns’ guilt or inno­
cence, and declined to challenge any member for 
cause (id.).

The District Court, without affording petitioners 
a hearing, upon motions by respondents, 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,”  because “ The 
record here shows that extensive consideration was 
given to each of the matters asserted in support of



14

the relief sought in these proceedings, and the var­
ious military authorities who were charged with the 
responsibility of review determined such matters to 
be factually groundless”  (R. 19-20).

On appeal, the Court of Appeals for the District 
of Columbia affirmed the judgments of the District 
Court (R. 57-58). It stated that, in accordance 
with its “ frequent practice in capital cases,”  it had 
examined “ the whole”  of 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).

A R G U M E N T

We submit that petitioners’ extensive argument 
(Pet. 6-11) concerning the power of federal courts 
to correct, in habeas corpus proceedings, violations 
of the due process guarantees in court-martial 
proceedings, is not directly relevant to the issue in­
volved herein. The decisions of the lower courts 
did not reject that proposition of petitioners. The 
district court denied petitioners’ respective appli­
cations for writs of habeas corpus solely on the 
ground that they did “ not state facts upon which 
the relief sought can be granted,”  because the 
pleadings showed that “ the various military au­
thorities who were charged with the responsibility 
of review,”  after having afforded them adequate 
opportunity to prove the very matters asserted in 
their habeas corpus petitions, “ determined such



15

matters to be factually groundless”  (R. 20). And 
the court below, in affirming the judgments of the 
district court, specifically recognized that the due 
process requirement of the Fifth Amendment is 
applicable to court-martial proceedings, which 
civil courts will reexamine, in a proper case, to de­
termine whether the constitutional requirement 
had been met (R. 31). Thus, the only issue which 
confronted the court below involved “ a problem of 
jurisdiction,”  raised by the question, “ whether the 
allegations of the petitions, viewed in the light of 
the accompanying data and of the returns to the 
rules, are sufficient to invoke the jurisdiction of the 
court and to require a hearing on the merits”  
(R. 23).

Petitioners contend (Pet. 11-24), in effect, that 
they have an absolute right to such a hearing in a 
civil court, irrespective of the fact that, having 
availed themselves of the appellate machinery of 
the military authority for corrective action con­
sistent writh the constitutional due process require­
ment, they had failed to vindicate their constitu­
tional claims. This contention is untenable. The 
court below correctly held that the general princi­
ples governing the reviewability by habeas corpus 
of state-court judgments are also applicable to such 
reviews of judgments of courts-martial. It is well 
established, generally, that where a petitioner has 
exhausted his remedies in a state court, wherein his 
constitutional questions had been considered and 
adjudicated on the merits, the federal court, ordi­
narily, will not re-examine upon a writ of habeas



16

corpus the questions thus adjudicated, unless 
under its peculiar organization, the state tribunal 
was unable to afford a constitutionally adequate 
process for relief, or some “ exceptional circum­
stances of peculiar urgency are shown to exist”  
Ex parte Hawk, 321 U.S. 114, 117; United States 
ex rel. Kennedy v. Tyler, 269 U.S. 13,17; Coggins v. 
O’Brien, 188 F. 2d 130, 133 (C.A. 1) ; Good-win 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 U.S. 86, 91, 92.5 Thus, if the cor­
rective process of a non-federal tribunal is shown 
to be adequate for the protection of one’s funda­
mental human rights and such protection had been 
accorded an accused in consonance with the con­
stitutional due process requirement, federal courts 
will not interfere by habeas corpus. See Moore v. 
Dempsey, supra; see also Frank v. Mangum, 237 
U.S. 309. This rule is predicated, primarily, upon

5 Petitioners’ contention (Pet. 19-21) that the application of 
this doctrine by the court below is not only in conflict with the 
decision in United States v. Baldi, 192 F. 2d 540, 544 (C.A. 3), 
certiorari granted, 343 U.S. 903, but with Moore v. Dempsey, 
261 U.S. 86, is unfounded. The doctrine that a federal court 
in a habeas corpus proceeding involving an attack on a judg­
ment of a state court could adopt the findings of the latter on 
the issues presented was not disputed in the Baldi case. There 
the court 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 petitions for habeas corpus. 
But that fact does not relieve the federal court of the duty to 
pass upon the merits of the petition” (192 F. 2d at 544). How­
ever, it is possible “to pass upon the merits of a petition” with­
out a hearing thereon. Thus, what the court meant in the



17

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. 
For this reason, petitioners would limit the ap­
plicability of the rule to judgments of state courts 
(Pet, 22). But the desirability of preserving the 
historical and constitutional separation of the civil 
and military powers is at least as good a reason for 
holding the rule applicable to habeas corpus pro­
ceedings involving judgments of military tribu­
nals. See Gusik v. ScMlder, 340 U.S. 128, 131-132. 
The courts-martial and the judicial powers of the 
United States, although deriving their respective 
authority from the Constitution, are, nevertheless, 
independent of each other. Dynes v. Hoover, 20 
How. 65; Carter v. Woodring, 92 F. 2d 544 (C.A. 
D.C.), certiorari denied, 302 U.S. 752. The courts- 
martial are established under the constitutional

Baldi case was that a federal court could not arbitrarily 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 of the petition, which could be done without a 
hearing, as it was in the instant case.

In Moore v. Dempsey, supra, the record showed that the 
existing corrective process of the state was inadequate to cor­
rect the alleged wrongs, because mob hysteria had permeated 
not only the trial procedure but the entire state judicial system, 
including its appellate processes, as well as the executive 
branch of the government, so that the federal court could not 
in good faith adopt the findings of the state court. Under the 
circumstances in that case, it was the duty of 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).



18

power of Congress “ To make Rules for the Gov­
ernment and Regulation of the”  armed forces of 
the United States. U. S. Constitution, Art. 1, § 8, el. 
14. Under this specific grant of power, Congress 
has provided for trial and appellate procedures, in­
cluding process for new trial, with respect to mili­
tary offenses. 50 U.S.C. §§ 576-660, 64 Stat. US- 
132 (formerly 10 U.S.C. §§ 1474-1525, 41 Stat. 788- 
800). As stated in Grafton v. United States, 206 
U.S. 333, 347-448, “ Courts-martial are lawful 
tribunals, 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 * * *.”  See Hiatt v. 
Brown, 339 U.S. 103, 110; In re Grimley, 137 U.S. 
147. Although it has been held in McClaughry v. 
Doming, 186 U.S. 49, 63, that courts-martial are of 
special and limited jurisdiction, their judgments, 
when affirmed by the required reviewing authority, 
are nevertheless “ final and conclusive,”  just as 
those of any state court, and hence “ binding upon 
all departments, courts, agencies, and officers of the 
United States,”  subject only to review upon col­
lateral attack in habeas corpus. 50 U.S.C. § 663, 
64 Stat. 132 (formerly 10 U.S.C. § 1522, 41 Stat. 
797, as amended 50 Stat. 724, 56 Stat. 732). Thus, 
there is no valid reason why the doctrines govern­
ing the reviewability by habeas corpus in federal



19

courts of judgments of state courts should be inap­
plicable to similar reviews of judgments of courts- 
martial.

The difference in degree of appellate review 
available to a person collaterally attacking a judg­
ment of a state tribunal and to one similarly chal­
lenging a judgment of a military court is not sub­
stantial enough, as petitioners think (Pet. 22-23), 
to warrant the denial of the applicability of the 
general rule to judgments of courts-martial. The 
fact that a person in state custody has opportunity, 
which is unavailable to one in military custody, 
for review of his conviction by this Court prior to 
petitioning a federal District Court for a writ of 
habeas corpus, since the latter process is contingent 
upon exhaustion of the former, does not create any 
disparity in appellate opportunities tantamount 
to a denial of any fundamental rights. In fact, one 
applying for federal habeas corpus to review a 
judgment of a state court is not necessarily assured 
of an additional hearing on the merits, for if this 
Court denies him certiorari, the District 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 II. S. 
200, 215-216. As the court below pointed out (R. 
30), “ due process of law is not a fixed formula of 
unchanging and unchangeable elements. Due proc­
ess of law in the armed forces has always been in 
some respects different from due process under 
civil authority. ‘ To those in the military or naval



20

services of the United States the military law is 
due process’, ’ ’ citing Reaves v. Ainsworth, 219 U. 
S. 296, 304; French v. Weeks, 259 U. S. 326, 335; 
United States v. Hiatt, 141 F. 2d 664, 666 (C. A. 3).

Uor is the danger of command influence upon 
courts-martial so great as to make military justice 
continually suspect of unfairness, as petitioners 
seem to imply (Pet. 22-23), and hence invariably 
subject to review by civil courts. I f  the military 
reviewing authority itself was so biased as to be 
constitutionally inadequate to redress, in accord­
ance with due process, the wrongs complained of, 
it was incumbent upon petitioners so to allege in 
their petitions for habeas corpus, and to sustain 
the burden of proof in that respect. Barr v. Bur- 
ford, 339 U. S. 200, 218; Coggins v. O’Brien, 188 F. 
2d 130,138 (C. A. 1 ); Schechtman v. Foster, 172 F. 
2d 339, 342 (C. A. 2), certiorari denied, 339 U. S. 
924. This they have not done. They have not 
alleged any irregularities in the military appellate 
processess invoked by them.9 6

6 Petitioners’ claim (Pet. 23) that military appellate pro­
cedure did not measure up to civil standards, because, upon a 
motion for new trial “ to the Judge Advocate General, no hear­
ing is held to permit a petitioner to prove his allegations, no 
counter-affidavits are submitted; the Judge Advocate General 
investigates the charges, satisfies himself as to the substance 
of the allegations, and there is no appeal from his decision” , is 
not supported by the record. Throughout the appellate pro­
cedure, petitioners were represented by counsel who was heard 
on their behalf; they had submitted affidavits and other docu­
ments, containing the same allegations as the instruments filed 
with their habeas corpus petitions, to the Judge Advocate Gen­
eral, who not only previously had the same matters investigated 
by the Inspector General’s Office, but had a special board of 
officers re-examine the same matters after hearing petitioners’ 
counsel, before denying their requests for a new trial.



21

We submit that applying the doctrine that a 
federal court, in the absence of “ exceptional cir­
cumstances of peculiar urgency,”  will not reliti­
gate, in a habeas corpus proceeding, matters 
adjudicated, in accordance with due process, in a 
non-federal tribunal, the courts below correctly 
held, without a hearing, that on the pleadings, 
which contained the detailed findings of the con­
stitutionally authorized military reviewing authori­
ties, there were no grounds upon which the 
requested relief could be granted. The documents 
submitted by respondents disproved all of peti­
tioners’ allegations.

Actually, as shown hereafter, the allegations of 
the petitions for habeas corpus, when considered 
in the light of the specific facts offered in support 
thereof, do not raise issues which would afford a 
basis for collateral attack even on a judgment of 
conviction of a federal court.

1. The admissibility of the confession was an 
issue thoroughly explored at the trial and on 
review. As the court below pointed out (R. 36), 
“ Upon the face of the papers presented by the pe­
titioner 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 admissibility of 
evidence, even on constitutional grounds, does not 
support a collateral attack on criminal judgments 
by either habeas corpus or a motion under 28 
IT. S. C. 2255. Smith v. United States, 187 F. 2d 
192, 197 (C. A. D. C.), certiorari denied, 341 U. S.



527; Bur all v. Johnston, 134 F. 2d 614 (C. A. 9), 
certiorari denied, 319 U. S. 768.7

2. The allegations of denial of the right to counsel 
are so clearly contradicted by the admitted facts 
as not to raise an issue which would require a hear­
ing. Cf. Close v. United States, 198 F. 2d 144 
(C.A. 4), No. 130 Misc., O. T. 1952, certiorari de­
nied, November 13, 1952. The record clearly shows 
that the Commanding General did not abuse his 
discretion in declaring Colonel Daly “ not availa­
ble”  as defense counsel (see pp. 9-10, supra). 
Petitioners themselves stated at the trial that 
they were “ satisfied”  with their counsel. Burns 
cannot complain of his deliberately selected coun­
sel, nor can such counsel be said to have liad 
insufficient time to prepare a defense in view of the 
fact that he did not request an adjournment and in 
view of the fact that assistant defense counsel were 
thoroughly familiar with the case. Cf. Morton v. 
Welch, 162 F. 2d 840 (C. A. 4 ) ; Setser v. Welch, 
159 F. 2d 703 (C. A. 4), certiorari denied, 331 
U. S. 840.

3. With respect to petitioners’ allegations that 
important evidence was suppressed by the pros­
ecution, the court below pointed out that Col­
onel Daly, who has submitted an affidavit in sup­
port of petitioners’ allegations, although appear­

7 The failure, if any, to advise Dennis of his constitutional 
privilege against self-incrimination, did not render the hair 
inadmissible in evidence. Powers v. United States, 223 U.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.



23

ing as a witness at their trials “ made no men­
tion of the dog-tags or the Navy uniform.”  
Furthermore, his “ affidavit does not show that the 
prosecutors knew of such items or that Colonel 
Daly ever called them to the attention of counsel 
either for the prosecution or for the defense.”  (R, 
38.) Thus, side from the fact that, on petitioners’ 
motion for a new trial, the Judge Advocate General, 
after an exhaustive independent investigation, 
found the charges “ baseless,”  petitioners allege no 
such misconduct by the prosecution as would bring 
the cause within the scope of Mooney v. Holohan, 
294 U. S. 103.8

4. The retraction by Calvin Dennis would not be 
a sufficient basis for a new trial in a criminal case, 
much less a basis for collateral attack. Wild v. 
Oklahoma, 187 F. 2d 409 (C. A. 10) ; cf. Valdez 
v. United States, 244 IT. S. 432; Cobb v. Hunter, 
167 F. 2d 888, (C. A. 10), certiorari denied, 335 
U. S. 832. The record shows that Burns had vigor­
ously attacked the credibility of Calvin Dennis at 
the trial, so that the present effort is merely an 
attempt to relitigate decided issues.

5. Petitioners allege no facts to support their 
contention “ that the atmosphere surrounding the 
trial was one of hysteria and terror”  (K. 13). As 
the court below found “ every relevant fact is to the 
contrary”  (R. 40).

8 The allegations as to attempted subornation of perjury by 
the prosecuting investigators, if true, could not in any way 
have injured petitioners since no evidence alleged by them 
to be perjured was used against them. See United States v. 
Dennis, 4 CMR (AF) 872, 906. Their allegations that speci­
mens of Dennis’ hair was “planted” as evidence against him, 
are unsupported.



24

Petitioners were given full opportunity to, and 
did, tender before the military appellate authori­
ties exactly the same issues raised in their habeas 
corpus petitions. United States v. Dennis, 4 CMR 
(A P ) 872, 888, 904-907; United States v. Burns, 
4 CMR (A P ) 907, 923, 927-930. Petitioners do not 
claim that the appellate authorities failed fully and 
fairly to consider all of their evidence relative to 
the constitutional issues, or in any way denied them 
due process in the course of their appeals. Peti­
tioners have been accorded their full measure of 
constitutional rights and cannot relitigate on col­
lateral attack issues fairly decided against them on 
the basis of substantial evidence. Whelchel v, 
McDonald, 340 U. S. 122; Barr v. Burford, 339 
TJ. S. 200; Ex parte Hawlc, 321 IT. S. 114; United 
States ex rel. Kennedy v. Tyler, 269 U. S. 13; Frank 
v. Mangum, 237 TJ. S. 309; Schechtman v. Foster, 
172 P. 2d 339 (C. A. 2), certiorari denied, 339 U. S. 
924.

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the petition for a writ of certiorari 
should be denied.

W a l t e r  J. C t j m m in g s , Jr., 
Solicitor General.

C h a r l e s  B .  M u r r a y ,

Assistant Attorney General.
B e a t r ic e  R o s e n b e r g ,
E d w a r d  S . S z u k e l e w i c z , 

Attorneys.
D e c e m b e r  1952.



25

A P P E N D IX

The pertinent provisions of the Articles of War, 
as amended by the Act of June 4, 1920, c. 227, sub- 
chapter 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 gen­
eral court-martial or military commission, or 
a record of trial by special court-martial in 
which a bad-conduct discharge has been ad­
judged and approved by the authority ap­
pointing the court, the reviewing authority 
will refer it to his staff judge advocate or to 
The Judge Advocate General for review and 
advice; and no sentence shall be approved un­
less upon conviction established beyond rea­
sonable 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. II, 1519].
Confirmation.

In addition to the approval required by arti­
cle 47, confirmation is required as follows be­
fore the sentence of a court-martial may be 
carried into execution, namely:

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



26

Art. 49 [10 U.S.C., Supp. II, 1520],
Powers incident to power to confirm.
The power to confirm the sentence of a 

court-martial shall be held to include—
a. The power to approve, confirm, or disap­

prove 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 poAver 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 poA ver to order the sentence to be car­
ried 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],
(cl) 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 ajjproval 
or confirmation by the President or confirma­
tion by any other confirming authority is sub­
mitted to the President or such other confirm­
ing authority, as the case may be, it shall be 
examined by the Board of Review which shall 
take action as follows:

(1) In any case requiring action by the 
President, the Board of Review shall submit



27

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 provided, 
transmit the record and the Board’s and Coun­
cil’s opinions, with his recommendations, di­
rectly to the Secretary of the Department of 
the Army for the action of the President: 
Provided, That the Judicial 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 without 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 opin­
ion in writing to the Judicial Council for ap­
propriate action.

* * * * *

(h) Finality of court-martial judgments.
The appellate review of records of trial pro­

vided by this article, the confirming action 
taken pursuant to articles 48 or 49, the pro­
ceedings, findings, and sentences of courts- 
martial as heretofore or hereafter approved, 
reviewed, or confirmed as required by the Arti­
cles of War and all dismissals and discharges 
heretofore or hereafter carried into execution 
pursuant to sentences by courts-martial fol­
lowing approval, review, or confirmation as re-



28

quired by tlie Articles of War, shall be final 
and conclusive, and orders publishing the pro­
ceedings 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 application for a new trial as pro­
vided in article 53.

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

may prescribe, the Judge Advocate General is 
authorized, upon application of an accused 
person, and upon good cause shown, in his dis­
cretion to grant a new trial, or to vacate a sen­
tence, restore rights, privileges, and property 
affected by such sentence, and substitute for a 
dismissal, dishonorable discharge, or bad con­
duct discharge previously executed a form of 
discharge authorized for administrative is­
suance, in any court-martial case in which ap­
plication is made within one year after final 
disposition of the case upon initial appellate 
review: Provided, That with regard to eases 
involving offenses committed during World 
War II, the application for a new trial may be 
made within one year after termination of the 
war, or after its final disposition upon initial 
appellate 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 
f  urther, That all action by the Judge Advocate 
General pursuant to this article, and all pro-



29

ceedings, 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 confirmed, 
shall be final and conclusive and orders pub­
lishing the action of the Judge Advocate Gen­
eral 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 USC., Supp. II, 1564].
Murder; rape.
Any person subject to military law found 

guilty of murder shall suffer death or im­
prisonment for life, as a court-martial may di­
rect; but if found guilty of murder not pre­

meditated, he shall be punished as a court- 
martial may direct. Any person subject to 
military law who is found guilty of rape shall 
suffer death or such other punishment as a 
court-martial may direct: Provided, That no 
person shall be tried by court-martial for 
murder or rape committed within the geo­
graphical limits of the States of the Union and 
the District of Columbia in time of peace.

☆  U. S. GOVERNMENT PRINTING OFFICE: 19B2 232647 760