Burns v Lovett Petition for Rehearing

    IN  THE

Itorrmr (tort of tljr litttrfi States
October Term, 1952

No. 422

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

vs.
Petitioners,

CHARLES E. WILSON, Secretary of Defense, Harold E. 
Talbot, Secretary of the Air Force, General Hoyt S. 
Vandenberg, Chief of Staff, United States Air Force.

O n W rit  op Certiorari to th e  U nited  S tates Court of 
A ppeals for t h e  D istrict  of Colum bia  C ircu it .

PETITION FOR REHEARING

R obert L. Carter,
F 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 ,

of Counsel.

"S upreme Printing Co., I nc., 41 M urray Street, N. Y., B A eclay 7-0349
.49



1ST THE

i m j i m u p  ( t a r t  n f  %  S t a t e s
October Term, 1952 

No. 422

■o

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

vs.
Petitioners,

C harles E. W ilson , Secretary of Defense, H arold E. 
T albot, Secretary of the Air Force, G eneral H oyt S. 
V andenberg, Chief of Staff, United States Air Force.

O n W rit  of Certiorari to th e  U nited  S tates C ourt of 
A ppeals for th e  D istrict of C olum bia  C ircu it .

•----------------------------------------------------------------- o -----------------------------------------------------------------

PETITION FOR REHEARING

To the Honorable the Chief Justice of the United States, 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioners respectfully present this petition for rehear­
ing on the following grounds:

I .

Petitioners were not afforded adequate opportunity 
to submit their view on the issues on which decision 
here was based.

Because of the unsettled nature of the law at the time 
of the submission of this cause, petitioners had no oppor­
tunity to address themselves to what now appears to be



2

the decisive question—whether petitioners ’ claimed denials 
of due process were given “ fair consideration”  by the mili­
tary.

The District Court dismissed the petitions for writs 
of habeas corpus on the ground that its inquiry was limited 
solely to the question of whether the military tribunal 
had jurisdiction in the narrow sense. 104 F. Supp. 310. 
On appeal, the sole issue submitted in briefs and argued 
orally was whether the scope of inquiry on habeas corpus 
could reach those questions of due process raised in each 
petition. The Court of Appeals affirmed but defined the 
reach of habeas corpus under a new rule similar to that 
applicable in state custody cases. 202 F. 2d 335.

When the cause reached this Court, petitioners had to 
address themselves to attacking the bases on which the 
lower courts had denied hearings on the merits in the 
District Court. Those judgments are now affirmed, but 
again on a different basis.

Petitioners realize that Mr. Chief Justice Vinson, Mr. 
Justices Burton, Clark, Reed and possibly Mr. Justice 
Jackson feel that fair consideration was given by the 
military to each of petitioners’ claims. But this issue 
was not clearly before the Court and petitioners had no 
adequate opportunity to address argument on this point. 
“ Fair consideration”  means, in our understanding, a 
determination of constitutional due process under applic­
able standards of this Court. It certainly cannot encompass 
decisions based upon factors which are not a part of this 
record and which, therefore, cannot be properly weighed. 
These problems were not developed nor considered in the 
submission of this cause. Petitioners do not seek merely 
to reargue claims made in the military process, but if the 
scope of inquiry on habeas corpus may reach the question 
of whether claims of denial of due process were fairly 
considered by military courts, then petitioners should be 
permitted to address themselves to that question before 
their sentences are ordered executed.



3

At no point in the military process were the stand­
ards of this Court on a determination of the voluntary 
nature of a confession applied to petitioner Dennis’ 
claims that his confessions had been coerced.

The principal opinion in this case declares that “ the 
military courts, like the state courts, have the same 
responsibilities as do the federal courts to protect a person 
from a violation of his constitutional rights.”  Petitioners 
do not discern any substantial difference between this 
view and that of Mr. Justice Douglas. Petitioners read 
this to mean that a majority of this Court agree that an 
accused before military courts must be accorded procedural 
due process pursuant to constitutional guarantees. In the 
light of the opinion of the Chief Justice, however, the 
crucial question is whether a claimed denial of constitutional 
rights was given “ fair consideration”  by the military 
authorities.

Petitioner Dennis claims that he was convicted by the 
use of involuntary confessions. To give “ fair considera­
tion”  to this claim, we submit, the military courts must 
look to the concept of voluntariness as evolved by this 
Court. They must look to the gloss which this Court has 
added—the gloss of Lisenba< v. California, 314 U. S. 219; 
MaMnski v. New York, 324 U. S. 401; Haley v. Ohio, 332 
IT. S. 596; Watts v. Indiana 338 U. S. 49. The constitu­
tional rights of those subject to the military jurisdiction 
will have real meaning only if the military conscientiously 
applies the constitutional standards set forth by this 
Court. Unless the military is required to do this, bind­
ing effect will be given to military adjudications on ques­
tions of constitutional law which are contrary to decisions 
of this Court. This, we submit, the Court cannot permit.
28 U. S. C. 2241. See Brown v. Allen, — U. S. __, 97
L. Ed. (Advance pp. 375, 412, 413).

II.



4

1. Constitutional Standards Of This Court
Applicable To This Case.

While there has been disagreement in the application 
of the Court’s standards to varied fact situations, there 
is certainly no disagreement with the position of Mr. Justice 
Roberts “ that where a prisoner held incommunicado is 
subjected to questioning by officers for long periods, and 
deprived of the advice of counsel, we shall scrutinise the 
record with care to determine whether, by the use of his 
confession, he is deprived of liberty or life through tyran­
nical or oppressive means.”  Lisenba v. California, supra, 
at 240 (italics supplied).

As recently as Stein v. New York, — U. S. — 21 
U. S. L. Week 4469, 4477 (June 15, 1953) this Court 
stated that the fact that an accused is held in custody for 
a prolonged period of time incommunicado is relevant 
circumstantial evidence in the inquiry as to physical and 
psychological coercion.

In scrutinizing the record, this Court has always given 
full consideration to the age of the accused, his intelligence 
and education and all other factors which throw light on the 
question whether the confession was really the result of 
psychological coercion which overpowered mental resist­
ance. Haley v. Ohio, supra; Ward v. Texas, 316 U. S. 547; 
Lisenba v. California, supra; White v. Texas, 310 U. S. 
570; Chambers v. Florida, 309 U. S. 227. In Stein v. New 
York, supra, Mr. Justice Jackson stressed the fact that 
the defendants “ were not young, soft, ignorant or timid,’ ’ 
and “ were not inexperienced in the ways of crime or its 
detection’ ’, nor “ dumb as to their rights.”

2. The Undisputed Facts Here.

The undisputed facts here are that petitioner Dennis 
was held incommunicado for five days without benefit of 
counsel prior to his first confession and subjected to



5

repeated questioning. He was only twenty years of age 
and below average in intelligence.1 He was a Negro, held 
in custody thousands of miles from home and friends, 
interrogated by military superiors, see United States v. 
Monge, 2 CMR 1, 4 (CMA 1952), and charged with a crime 
which stirs frenzied emotions-—rape of a white girl.

3. Standards A pplied By The Military.

The military, however, did not apply this Court’s stand­
ards, but its own, to these undisputed facts. The Judge 
Advocate General of the Air Force disposed of petitioner 
Dennis’ claim with the observation that where evidence as 
to coercion is conflicting, the question is properly one for 
the triers of fact. (App. B, Respondent’s brief, p. 101.) 
See also 4 CMR (AF) 906. The Judicial Council disposed 
of this contention similarly. 4 CMR (A F) 899-900. The 
Board of Review considered only the intensity of interro­
gation and did not evaluate or consider the fact that peti­
tioner was held incommunicado, his intelligence and educa­
tion, his race, the nature of the crime charged, and distance 
from home and friends in determining the voluntary nature 
of these confessions. 4 CMR (AF) 885. Clearly the 
military reviewing authorities did not “ scrutinize the rec­
ord with care’ ’ in the light of the applicable decisions of 
this Court.

Thus, in order to resolve the question of whether peti­
tioner’s claim was given “ fair consideration” , it becomes 
crucial to examine the standards applied by the triers of 
fact. At the trial, the Law Member’s instructions with 
respect to the confession contained no definition whatever 
of voluntariness. His entire charge on this point was as 
follows:

“ The ruling is that all four of the purported 
documents will be received in evidence. In connec­

1 The record shows that his Army AGCT test score was only 70. 
4CMR (A F ) 906. He just misses being an illiterate which is the 
classification of those scoring 69 or below.



6

tion with this ruling, the law member calls attention 
of the court to paragraph 127a of the Manual for 
Courts-Martial, 1949, reading in part as follows:

“  ‘ The ruling of the law member that a 
particular confession or admission may he re­
ceived in evidence is not conclusive of the volun­
tary nature of the confession or admission. Such 
a ruling merely places the confession or admis­
sion before the court. The ruling is final only on 
the question of admissibility. Each member of 
the court, in his deliberation upon the findings 
of guilt or innocence, may come to his own con­
clusion as to the voluntary nature of the con­
fession or admission and accept or reject it 
accordingly. He may also consider any evidence 
adduced as to the voluntary or involuntary nature 
of the confession or admission as affecting the 
weight to be given thereto.’ ”  (Dennis, C. M. 
Tr. 275).

Nowhere is there an adequate exposition of the stand­
ards for voluntariness set forth by this Court. The perti­
nent portions of the Manual on this point follow:

“ No hard and fast rules for determining whether a 
confession or admission was voluntary are here pre­
scribed. Some instances of coercion or unlawful 
influence in obtaining a confession or admission are:

“ (1) Infliction of bodily harm, including pro­
longed questioning accompanied by deprivation 
of the necessities of life (food, sleep, adequate 
clothing-, etc.).

“  (2) Threats of bodily harm.

“ (3) Imposition of confinement or depriva­
tion of privileges or necessities because a state­



7

ment is not made by the accused, or threats of the 
same if a statement is not made.

“ (4) Promises of immunity or clemency 
with respect to an offense allegedly committed by 
the accused.

“ (5) Promises of reward or benefit, of a 
substantial nature, likely to induce a confession 
or admission from the particular accused.”  
MCM (AF), 1949 at 158.

Even assuming that the triers of fact sought to use 
these examples as guides for determining whether these 
confessions were voluntary, no help was furnished in mak­
ing an evaluation of the undisputed facts adduced here. 
Examples one and three come closest to this case, but 
neither, because of their inherent limitations, are applica­
ble here.2

Thus the triers of fact, in determining whether peti­
tioner’s confessions were voluntary, were not required to 
weigh or evaluate the coercive effect of his prolonged 
detention without the advice of counsel or friends, his age 
or his intelligence, his race in connection with the crime 
charged or the questioning to which he was subjected.

Nowhere were these factors considered in determining 
the question of voluntariness at any point in the military 
establishment. Nowhere were the guides and standards of 
this Court applied. Thus, we submit, it cannot be said 
that this claim was fairly considered by the military 
authorities.

2 Example one contains the clear implication that prolonged 
questioning cannot be considered coercion unless it is accompanied 
by a deprivation of the necessities of life. Example three relates 
only to confinement or deprivation of privileges or necessities or 
threats of the same resulting from an accused’s refusal to make a 
given statement.



8

The allegations outside the courts-martial record 
were considered only on the application for new trial.

Certain claimed denials of constitutional rights were 
considered for the first time on petitioners’ applications for 
new trials pursuant to former Article of War 53. These 
claims involved the use of perjured testimony, attempted 
subornation of perjury by the prosecution, intimidation 
and harassment of defense witnesses, the knowing use of 
planted evidence and suppression of evidence, and the 
conduct of the trial in an atmosphere of terror and mob 
violence. After refusing to consider the affidavit of Calvin 
Dennis, the government’s witness, that he testified falsely 
on the grounds that there was “ little to inspire confidence 
or recommend credence in his affidavit”  (App. C, Brief for 
Respondents, pp. 120-122), the Judge Advocate General 
disposed of the other claims recited here on the basis of a 
confidential investigation. No doubt witnesses were inter­
rogated, but these witnesses were unknown to petitioners 
and their confidential testimony—not subject to cross-ex­
amination—was the basis for the Judge Advocate General’s 
conclusions. As the Chief Justice points out, this proceed­
ing is not a part of the record of this case. Therefore, it 
cannot form the basis for a conclusion that “ fair consid­
eration”  was given to these claims.

With respect to the charges that perjured testimony 
and planted evidence were used, the principal opinion of 
the Court expressly states that its conclusion is not predi­
cated on the investigation and confidential report of the 
Judge Advocate General. Rather, these charges are dis­
posed of on the ground that they were “ either explored or 
were available for exploration at the trial.”

The charges relating to the knowing suppression of 
evidence, attempted subornation of perjury and efforts to

III.



9

intimate those who sought to help petitioners and the 
conduct of the trials in an atmosphere of hysteria and mob 
violence are not dealt with in the opinion of the Chief 
Justice. We assume, however, that these charges were 
disposed of on the same ground alluded to above. Since 
the Chief Justice disposes of all of these charges without 
relying on the confidential report of the Judge Advocate 
General, what the opinion of the Chief Justice really seems 
to be stating, we submit, is not that the military gave 
“ fair consideration”  to all these charges, but merely that 
petitioners have no right to raise subsequently charges 
which were available for exploration at the trial. This is 
indeed a harsh doctrine, especially where the lives of two 
soldiers are at stake.

The charge that Calvin Dennis’ testimony was perjured 
was explored at the trial of petitioner Burns only in the 
sense that Calvin Dennis was interrogated with respect to 
the voluntariness of his statement and was subsequently 
cross-examined by defense counsel. But Calvin Dennis’ 
retraction, as well as the corroborating statements of 
Colonel Daly and Mrs. Hill, became available to petitioners 
only after both trials terminated. It may well be that 
Hill and Daly had this information at the time of the trial. 
But knowledge on their part is not in fact or in the law 
knowledge of petitioners or their counsel.

The charges relating to knowing suppression of evi­
dence, attempted subornation of perjury and intimida­
tion of those who sought to help petitioners were in 
no way explored at the trial. Here, too, this information 
may have been in the possession of affiants Chaplain Grim- 
mett, Colonel Daly and Mrs. Hill. It should be stressed 
that Chaplain Grimmett did not testify at either trial. Daly 
and Hill were called as defense witnesses in the Dennis 
trial solely on the point of the voluntariness of the con­
fession. Their total testimony for the defense consumes 
a mere 2% typewritten pages. It seems perfectly clear



10

that defense counsel had no knowledge of what additional 
information they might possess and no reason for so sus­
pecting. Mrs. Hill did not testify at the Burns trial. Daly 
testified only as a prosecution witness and his testimony 
was confined to facts relating to his handling of prosecu­
tion’s exhibit 17, the victim’s smock.

For reasons only known to them, affiants Grimmett, Hill 
and Daly failed to disclose all at the time of the trial. The 
concerted effort by the prosecution to harass, intimidate, 
and suppress all aid to the defense may well explain 
their silence. There can he no inference that petitioners or 
their counsel had this knowledge when these men were tried.

In this connection, the Court’s attention is directed to 
the fact that Francis L. Moylan, a witness for the prosecu­
tion, wrote the Court of Appeals while this case was there 
pending, that he was not permitted to testify that he had 
seen two other men at the scene of the crime, although he 
tried to bring this out. 202 F. 2d at 346 and note 73 at 351.

Further, that the investigation was carried on against 
a background of “ extreme tension’ ’ was admitted by the 
prosecution’s own witness (Dennis, C. M. Tr. 207). That 
the prosecution was guilty of attempted subornation of 
perjury in the case of Mrs. Hill is admitted by the Judge 
Advocate General of the Air Force. 4 CMR (AF) 906. 
It is a strange irony that the prosecution’s campaign of 
intimidation and attempted subornation of perjury now 
reaps its reward in this Court’s doctrine that the silence of 
Daly, Hill and Grimmett deprives petitioners of the oppor­
tunity to raise these serious charges of denials of funda­
mental due process.

The effect of the decision of this Court is to impute the 
knowledge of the three affiants to petitioners. Affiants’ 
failure to disclose this information results in a waiver of 
petitioners’ constitutional rights. Because of affiants’ 
silence, petitioners go to their death. Such is not the stuff 
of which procedural due process is made.



11

CONCLUSION

For these reasons, we respectfully urge that this 
petition for rehearing should be granted.

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

Counsel for Petitioners.
E lwood H. C h iso lm ,
D avid E . P in ,sk y ,

of Counsel.

Dated: June 29, 1953.

Certificate of Counsel

It is hereby certified to this Court that this petition for 
rehearing is presented in good faith and based upon a firm 
conviction that the questions raised in this petition should 
be fully presented to this Court in brief and on oral argu­
ment. It is further certified that this petition is not pre­
sented for purposes of delay.

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