Burns v Lovett Petition for Writ of Certiorari to the US Court of Appeals

    IN' THE

(Hour! rtf tljr luttr^ States

October Term, 1952 
No.

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

vs.

ROBERT A. LOVETT, SECRETARY OF DEFENSE,
ET AL.

PETITION FOR W R IT  OF CERTIORARI TO  THE 
UNITED STATES COU RT OF APPEALS FOR 

THE DISTRICT OF COLUM BIA CIRCUIT

R obert L. Carter,
F rank  D. R eeves,
T httrgood M arshall ,

Counsel for Petitioners.

E lwood H. Ch iso lm ,
D avid E . P in s k y ,
L eonard W . S chroeter,

of Counsel.

S upreme  P rin tin g  Co., I nc ., 41 M urray S treet, N. B A rcla 'i 7-0349 
<4@ M 9



TABLE OF CONTENTS

Opinion Below ................................................................  1
Jurisdiction.......................................................................... 2
Questions Presented ......................................................... 2
Statutes Involved ....................................................    2

Statement............................................................................. 3

Specifications of Error .................................................  5
Reasons for Allowance of tlie Writ .............................  6

Conclusion ..........................................................................  26

Appendix ............................................................................  27

Table of Cases Cited

Anderson v. United States, 318 U. S. 350 .................. 14, 24
Becker v. Webster, 171 F. 2d 762 (C. A. 2d 1949) . . . .  9
Belirens v. Hironimus, 166 F. 2d 245 (C. A. 4th 1948) 7

Chambers v. Florida, 309 U. S. 227 .............................  12

Darr v. Burford, 339 U. S. 200 .....................................  22
De War v. Hunter, 170 F. 2d 993 (C. A. 10th 1948), 

cert. den. 337 U. S. 908 ............................................. 19,19
Ex parte Hawk, 321 U. S. 1 1 4 ........................... 19, 20, 21, 22
Ex parte Lange, 18 Wall 1 6 3 .......................................  6
Ex parte Milligan, 71 U. S. 2 .....................................
Ex parte Quirin, 317 U. S. 1......................................  9
Ex parte Royall, 117 U. S. 2 4 1 .....................................  6
Ex parte Siebold, 100 U. S. 3 7 1 ...................................  9

PAGE



11

PAGE

Gallegos v. Nebraska, 342 U. S. 55 . . .  |.......................  14, 24
Gambino v. United States, 275 U. S. 3 1 0 ............14, 24, 25
Ganlt v. Burford, 173 F. 2d 813 (C. A. 10th 1949) .. 20
Goodwyn v. Smith, 181 F. 2d 498 (C. A. 4th 1950) .. 20
Graham v. Squier, 132 F. 2d 681 (C. A. 9th 1942) .. 7
Gusik v. Sehilder, 340 U. S. 1 2 8 .................................  19fn.
Hiatt v. Brown, 339 U. S. 103 .......................................  8,17
Hicks v. Hiatt, 64 F. Supp. 238 (M. D. Pa,, 1946)___  24
House v. Mayo, 324 U. S. 4 2 .........................................  11
Humphrey v. Smith, 336 U. S. 695 ............................  8

In re Wrublewski, 71 F. Supp. 143 (N. D. Cal. 1947) 9
Johnson v. Eisentrager, 339 U. S. 763 ........................ 9
Johnson v. Zerbst, 304 U. S. 458 ................................. 7, 8,18
Lisenba v. California, 314 U. S. 2 1 9 ...........................  7,13
Malinski v. New York, 324 U. S. 401 ....................  13
McClaugkry v. Deming, 186 U. S. 4 9 .........................  23
McNabb v. United States, 318 U. S. 332 .....................  24
Mooney v. Holonan, 294 U. S. 1 0 3 ..................... 7,14,15,16
Moore v. Dempsey, 261 U. S. 8 6 ............................... 7,18, 21
Pyle v. Kansas, 317 U. S. 2 1 3 ................................. 14,15,16
Rochin v. California, 342 U. S. 1 6 5 .............................  13

Schita v. King, 133 F. 2d 283 (C. A. 8th 1943)..........  10
Sunal v. Large, 332 U. S. 1 7 4 .......................................  7

United States v. Baldi, 192 F. 2d 540 (C. A. 3rd 1951),
cert, grant. 343 U. S. 403 ........................................... 20, 21

United States v. Crystal, 131 F. 2d 576 (C. A. 2d
1943), cert. den. 319 U. S. 755 ...................................  9

United States v. Grimley, 137 U. S. 1 47 .....................  6
United States v. Hiatt, 141 F. 2d 644 (C. A. 3d 1944) 10
United States v. Swenson, 165 F. 2d 756 (C. A. 2d 

1948) ............................................................................ 9



I l l

Wade v. Hunter, 336 U. S. 684 ...................................  8
Waite v. Overlade, 164 F. 2d 722 (C. A. 7th 1947),

cert. den. 334 U. S. 8 1 2 ................................. ...........  10
Waley v. Johnston, 316 U. S. 101 ............................... 7, 8,18
Walker v. Johnston, 312 U. S. 275 .............................  11
Ward v. Texas, 316 U. S. 547 .....................................  13
Watts v. Indiana, 338 U. S. 4 9 .....................................  12
Weeks v. United States, 232 U. S. 358 .....................  24
White v. Texas, 310 U. S. 530 .....................................  13
Whelchel v. McDonald, 340 U. S. 122 ...........................  8
Wrublewski v. Mclnerney, 166 F. 2d 243 (C. A. 9th 

1948)..............................................................................  9

PAGE

Statutes Cited

Title 10, United States Code, Section 1488 ............... 2
Title 10, United States Code, Section 1495 ............... 2
Title 10, United States Code, Section 1542 ............... 2
Title 28, United States Code, Section 2254 ..............  20

Penal Code of Guam:

Section 27 ................................................................  27
Section 686 ............................................................ 2,12, 24
Section 780 ............................................................. 2,12,24
Section 825 ............................................................. 2,12,24



IV

Other Authorities

PAGE

Hearings Before Sub-Committee of the Committee 
on Armed Services on S. 857 and H. R. 4080, United 
States Senate, 81st Congress, 1st Session (1949) 22

Report of the War D ep’t. Advisory Committee on 
Military Justice (1946) ............................................. 23

Farmer and Wells, Command Control—or Military 
Justice, 24 N. Y. U. L. Q. Rev. 263 (1949 ).............. 22

35 Cornell L. Q. 15 (1949) ........................................... 22
2 Stanford L. Rev. 547 (1949) .....................................  22



IN  THE

§>upnw Court of tljr llnxtib States
October Term, 1952 

No.

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

R obert W . B urns and H erman  P . D en n is , J r .,
Petitioners,

vs.

R obert A. L ovett, S ecretary of D efense, Et A l.

— -------------------------- o-----------------------------

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, Robert W. Burns and Herman P. Dennis, 
Jr., pray that a writ of certiorari issue to review the judg­
ment of the United States Court of Appeals for the Dis­
trict of Columbia Circuit entered in the above-entitled case 
on July 31, 1952.

Opinion Below

The memorandum opinions of the United States Dis­
trict Court for the District of Columbia are reported at 
104 F. Supp. 310, 312 (R. 18). The opinion of the Court of 
Appeals for the District of Columbia is not yet reported 
(R. 21).



2

Jurisdiction

The judgment of the Court of Appeals was entered 
on July 31, 1952 (R. 57). The jurisdiction of this Court is 
invoked under Title 28, United States Code, Section 
1251(1).

Questions Presented

1. Whether an American citizen solider, after trial and 
conviction by military authorities, may obtain a review 
of the court-martial conviction in a civil court by habeas 
corpus where the military proceedings, as a totality, show 
a complete absence of that fundamental fairness essential 
to a fair trial under Anglo-American jurisprudence.

2. Whether on the basis of allegations averring flagrant 
denials of fundamental rights, which in the present posture 
of these cases are admitted as true, petitioners are entitled 
to a hearing on the merits and to an independent determina­
tion by a civil court as to whether their military trials and 
convictions violated constitutional due process.

3. Whether these courts-martial were ousted of juris­
diction by the admission of damaging evidence against peti­
tioners when such evidence had been illegally extracted by 
federal civil authorities while they held petitioners in 
custody.

Statutes Involved

Title 10, United States Code, Section 1488 
Title 10, United States Code, Section 1495 
Title 10, United States Code, Section 1542 
Sections 686, 780, 825 of the Penal Code of Guam 
These are set out in the Appendix



3

Statement

Petitioners, who are citizens of the United States and 
members of the United States Air Force, are individually 
seeking petitions for writs of habeas corpus to secure their 
release from military custody. One petition is being filed for 
both petitioners since the issues raised in each case are the 
same. They are now being detained by the Japan Logistical 
Command and are awaiting execution of sentences of death 
pursuant to convictions by general courts-martial of the 
United States Air Force for the murder and rape of Buth 
Farnsworth, a civilian employee on the Island of Guam. 
The crime took place on or about December 11,1948 (E. 1-2).

On January 7, 1949, petitioners, who were stationed on 
Guam, an insular possession of the United States and at 
that time under the civil administration of the United 
States Navy, were surrendered by the military authorities 
to the civil police authorities (E. 2-3). The civil authorities 
took them into custody and held them incommunicado with­
out process (E. 3). They were subjected to continuous 
questioning (E. 3), beaten (E. 3), denied sleep and edible 
food (E. 3) and were not allowed to consult counsel during 
the entire time they were held in custody (E. 3). Herman. 
P. Dennis, Jr., was subjected to a lie detector test and held 
in solitary confinement (E. 11), and Bobert W. Burns was 
placed in a death cell (E. 3). Petitioner Dennis had certain 
pubic hairs taken from his person without being advised 
of his rights against self-incrimination, and these specimens 
were subsequently used in evidence against him (E. 12). 
As a result of coercion, threats and promises, after being 
told what to say by police officers and without being advised 
of his rights, he made four confessions on or about Janu­
ary 11, 12 and 13, implicating himself in the crime for 
which he was subsequently charged (E. 11).

On or about January 30, 1949, the civil authorities re­
turned petitioners to the custody of the United States Air 
Force (E. 3). On February 1, 1949 (E. 11) and on Febru­
ary 20, 1949 (E. 3) charges were filed against Dennis and



4

Burns respectively, and they were separately tried and con­
victed by military courts-martial (R. 3). Their trials were 
conducted in an atmosphere of hysteria and terror created 
by both the military and civil authorities on Guam (R. 4). 
In this connection it should be pointed out that petitioners 
are Negroes and Ruth Farnsworth was white.

The request of petitioner Dennis for counsel of his 
choice was denied (R. 12). Defense attorneys were not 
appointed for him until April 8, 1949, and he did not have 
the opportunity to receive the advice of counsel until 
shortly before his trial convened on May 9, 1949 (R. 13). 
At his trial, the involuntary confessions made by him to 
the civil authorities were received in evidence despite his 
repudiation of them and testimony as to their involuntary 
character (R. 12). Evidence tending to show his inno­
cence was suppressed (R. 12); some witnesses were solicited 
by the prosecution to perjure themselves (R. 12), while 
others who sought to help petitioner were intimidated and 
threatened (R. 12); and manufactured evidence was ad­
mitted and used against him at the trial (R. 13).

Petitioner Burns was not furnished counsel, nor allowed 
to obtain the advice of counsel until one day before his 
trial (R. 3). Important evidence in his favor was sup­
pressed (R. 4 ); and testimony against him by Calvin 
Dennis has since been repudiated as being perjury suborned 
by the prosecution (R. 4).

The convictions and sentences of the courts-martial 
were approved by the convening authority (R. 1), and the 
records forwarded to Washington, D. C., for appellate 
review in the Office of the Judge Advocate General, United 
States Air Force (R. 2). The appellate proceedings 
provided by the military establishment were completed by 
petitioners when on January 28, 1952, their petitions for 
new trials were denied by the Judge Advocate General and 
the sentences of death were ordered executed (R. 2).



5

Having thus exhausted all available remedies provided 
by the military, petitioners filed petitions for writs of 
habeas corpus in the United States District Court foi the 
District of Columbia (R. 1). The convictions and sentences 
were attacked as void and beyond the jurisdiction of the 
military courts-martial because of gross irregularities, 
improper and unlawful practices amounting to a depiiva- 
tion of fundamental rights guaranteed to petitioners by 
the Fifth and Sixth Amendments to the United States 
Constitution and by the Articles of War (R. 4-5). Respon­
dents, without controverting the allegations in the peti­
tions, moved to discharge the rules to show cause and dis­
miss the petitions on the ground that they failed to state 
a claim upon which the relief sought could be granted in 
that the petitions did not state requisite jurisdictional 
facts (R. 5-8). Upon consideration of these motions, and 
without factual inquiry, the District Court on April 10, 
1952, filed memorandum opinions sustaining respondents’ 
position (R. 18), and on April It, 1952, entered oideis dis­
charging the rules to show cause and dismissing the peti­
tions (R. 20).

Petitioners appealed to the United States Couit of 
Appeals and on July 31, 1952, that court, one judge dis­
senting, affirmed the judgment of the District Court (R. 57). 
On September 19, 1952, an order was issued by this Court 
staying execution of sentences of death imposed pending 
timely filing and disposition of petitions foi writ of 
certiorari.

Specifications of Error

The court below erred:

1. In refusing to order a hearing on the merits in the 
district court on petitioners ’ allegations of denial of funda­
mental due process by military authorities.



6

2. In refusing to make its own independent evaluation 
of the merits of petitioners’ claimed denial of constitu­
tional rights in the conduct of the military proceedings.

3. In refusing to hold that these courts-martial lost 
jurisdiction in permitting the prosecution to use evidence 
which had been illegally obtained by civil authorities to abet 
the conviction of these petitioners.

Reasons For Allowance of the Writ

1. This Court has never expressly determined whether 
violations of the guarantees of fundamental due process 
in court-martial proceedings can be corrected in a habeas 
corpus proceeding*. The question is one of great import­
ance to the administration of military justice. Moreover, 
recent opinions of this Court lend support to both a broad 
and a narrow view of the reach of habeas corpus in this 
area. As a result there is considerable confusion and 
uncertainty in the federal courts.

Early cases set forth the rule that the scope of habeas 
corpus is limited to a test of the jurisdiction of the tribunal 
rendering judgment. Ex Parte Lange, 18 Wall 163; 
Ex Parte Siebold, 100 U. S. 371. Thus, a federal district 
court, in a habeas corpus proceeding, could only determine 
whether the judgment was void for want of jurisdiction. 
This test was applied by this Court to convictions had in 
state and federal trial courts as well as in courts-martial. 
See Ex Parte Siebold, supra; Ex Parte Royall, 117 U. S. 
241; United States v. Grimley, 137 U. S. 147.

In the case of state and federal convictions, however, 
the reach of habeas corpus has been gradually expanded 
in a number of landmark decisions. This has been accom­
plished conceptually by two different approaches. In one



7

line of eases the concept of jurisdiction has been widened. 
In Moore v. Dempsey, 261 U. S. 86, it was recognized that a 
trial dominated by mob hysteria constituted a denial of due 
process and was thus absolutely void. In Johnson v. 
Zerbst, 304 U. S. 458, where a petitioner had been denied 
the right to counsel in violation of the Sixth Amendment, 
this Court held that the trial court thereby lost jurisdic­
tion. As recently as Sunal v. Large, 332 U. S. 174, it was 
indicated that a denial of the protection of the Fifth 
Amendment was “ jurisdictional”  in nature. See also 
Lisenba v. California, 314 U. S. 219, 237.

In a second line of cases, lack of jurisdiction and denial 
of due process have been considered as two separate and 
distinct grounds for habeas corpus. Mooney v. Holohan, 
294 U. S. 103 (involving the knowing use by state authorities 
of perjured testimony), pointed the way by holding that 
such a conviction could be attacked in habeas corpus pro­
ceedings as a denial of due process. More recently, in 
Waley v. Johnston, 316 U. S. 101, where the petitioner 
alleged that his plea of guilty had been coerced, this Court 
recognized both lack of jurisdiction and denial of due 
process as bases for the issuance of a writ of habeas corpus.

Irrespective of whether denial of due process has been 
embraced in an expanded concept of jurisdiction or whether 
it has been considered as a separate basis for the issuance 
of the writ of habeas corpus, little confusion has resulted 
in the area of federal and state convictions. Both ap­
proaches have led to the same result. See Behrens v. 
Hironimus, 166 F. 2d 245 (C A 4th 1948); Graham v. Squier, 
132 F. 2d 681 (C. A. 9th 1942), cert. den. 318 U. S. 777.

With respect to the scope of habeas corpus in the case 
of court-martial convictions, however, there has been con­
siderable confusion and uncertainty. This Court has never 
expressly declared that a court-martial conviction in vio­



8

lation of the guarantees of due process can be corrected 
in a habeas corpus proceeding, either on the theory of 
Johnson v. Zerhst, supra, or the theory of Waley v. John­
ston, supra.

In Wade v. Hunter, 336 U. S. 684, the same test used in 
civil cases was applied in determining whether petitioner’s 
conviction by a court-martial was in violation of the double 
jeopardy provision of the Fifth Amendment. Since it was 
found that petitioner had not been placed in double jeop­
ardy, it was unnecessary to decide whether a court-martial’s 
overruling of a plea of former jeopardy may be subject 
to attack in habeas corpus proceedings. In Humphrey v. 
Smith, 336 U. S. 695, it was indicated that a court-martial 
trial not fairly conducted could be collaterally attacked 
in habeas corpus proceedings. There, Mr. Justice Black 
stated at page 701:

‘ ‘ This court-martial conviction resulting from a trial 
fairly conducted cannot be invalidated by a judicial 
finding that the pre-trial investigation was not car­
ried on in the manner prescribed by the 70th Article 
of W ar.”

The two most recent cases, Whelchel v. McDonald, 340 U. S. 
122, and Hiatt v. Brown, 339 U. S. 103, reiterated the rule 
that the scope of habeas corpus proceedings is limited to 
an inquiry into the jurisdiction of the court-martial. Both 
cases, however, indicate the concept of jurisdiction has been 
expanded in this area also. In Whelchel v. McDonald, 
supra, this Court said that a court-martial proceeding 
which denied to an accused the right to tender the issue of 
insanity would be divested of its jurisdiction, but refused 
to decide whether a denial of due process by a court-martial 
offers a separate and independent ground to support a 
petition for habeas corpus. Mr. Justice Douglas, at page 
124, stated:



9

“ We put to one side the due process issue which re­
spondent presses, for we think it plain from the law 
governing court-martial procedure that there must 
be afforded a defendant at some point of time an op­
portunity to tender the issue of insanity. It is only 
a denial of that opportunity which goes to the question 
of jurisdiction.”

Dicta in other opinions have intensified the uncertainty 
in this area. In Johnson v. Eisentrager, 339 U. S. 763, 783, 
this Court stated that, “ American soldiers conscripted into 
the military service are thereby stripped of their Fifth 
Amendment rights * * Similar expressions can be
found in Ex Parte Quirin, 317 U. S. 1, 40, 45.

This confusion and uncertainty has been reflected in 
the opinions of district courts and courts of appeals. Dicta 
in Ex Parte Quirin, supra, led the Court of Appeals for 
the Second Circuit to declare that the Fifth and Sixth 
Amendments are inapplicable to a court-martial. United 
States v. Crystal, 131 F. 2d 576, 577 n. 2 (CA 2d 1943), cert, 
den. 319 U. S. 755.1 In In re Wrublewski, 71 F. Supp. 143, 
the District Court for the Northern District of California, 
confronted with a petition alleging conviction by a court- 
martial in violation of the double jeopardy provisions of 
the Fifth Amendment, held that it lacked jurisdiction, rely­
ing on Ex Parte Quirin, supra; Ex Parte Milligan, 71 U. S. 
2; United States v. Crystal, supra. On appeal the court 
assumed for the purpose of the decision, that the provision 
was applicable. Wrublewski v. Mclnerney, 166 F. 2d 243 
(CA 9th 1948).

Other courts have acted similarly, apparently reluctant 
in the absence of a clear pronouncement from this Court

1 But cf. United States v. Sivenson, 165 F. 2d 756 (C. A. 2d 
1948) ; Becker v. Webster, 171 F. 2d 762 (C. A. 2d 1949), cert. den. 
336 U. S. 968.



10

to expressly hold that habeas corpus was available to cor­
rect violations of due process. See Schita v. King, 133 F. 
2d 283 (CA 8th 1943); De War v. Hunter, 170 F. 2d 993 
(CA 10th 1948), cert den. 337 U. S. 908; Waite v. Overlade, 
164 F. 2d 722 (CA 7th 1947), cert, den. 334 U. S. 812.

On the other hand, the Court of Appeals for the Third 
Circuit, in United States ex rel. Innes v. Hiatt, 141 F. 2d 
664 (CA 3d 1944), expressly held that an individual does 
not lose the protection of the Fifth Amendment because 
he has joined the armed forces and that a civil court in a 
habeas corpus proceeding may determine whether the 
court-martial proceeding was in accord with standards of 
due process.

The decisions in the instant case are typical of this con­
fusion. The District Court dismissed the petition, holding 
that it lacked jurisdiction to inquire into alleged denials of 
fundamental due process. The Court of Appeals, while 
refusing to issue the writ, concluded that habeas corpus is 
available to correct a denial of due process by military 
authorities. Its opinion also illustrates the difficulty of 
resolving this issue in the absence of a clear pronouncement 
by this Court.

The vital importance of this question to the administra­
tion of military justice need not be belabored. Millions of 
American citizens—members of the armed forces as well 
as civilians—are now subject to military jurisdiction. The 
present state of international affairs gives every indication 
that our armed forces will not be reduced for many years. 
Military law can no longer be looked upon as a mere in­
strument for the maintenance of discipline. With so many 
Americans now affected and likely to be affected in the 
future, the time is ripe for a clear-cut determination by this 
Court that those subject to military jurisdiction are not 
beyond the reach of the protective guarantees of the Federal



11

Constitution, and that where constitutional guarantees have 
been abridged under military law, resort may be had to a 
civil court to secure that protection which the Constitution 
affords to all American citizens.

2. The decision of the Court of Appeals in not remand­
ing the case to the district court for a hearing is in conflict 
with Walker v. Johnston, 312 IT. S. 275 and House v. Mayo, 
324 U. S. 42.

Petitioners allege that they were convicted in outrage­
ously unfair proceedings. Buttressed by affidavits of dis­
interested persons, the petitions for writs of habeas corpus 
make out cases of grave denials of due process. Respond­
ents denied none of these allegations. Hence, it was in­
cumbent upon the District Court and the Court of Appeals 
to assume the allegations to be true. House v. Mayo, supra. 
Since the District Court held no hearing to determine the 
validity of petitioners’ allegations, the Court af Appeals 
should have remanded the cause for hearing on the merits. 
Its failure to do so constituted serious error. Walker v. 
Johnston, 312 U. S. 275. There the Court stated in an opin­
ion by Mr. Justice Roberts at page 287:

“ Not by the pleadings and the affidavits, but by 
the whole of the testimony, must it be determined 
whether the petitioner has carried his burden of 
proof and shown his right to a discharge. The 
Government’s contention that his allegations are 
improbable and unbelievable cannot serve to deny 
him an opportunity to support them by evidence. 
On this record it is his right to be heard. ’ ’

a. Both petitioners allege that they were arrested by 
the civil police authorities of Guam on January 7, 1949, 
and that they were held without arraignment by any au­
thority until January 17, 1949. During this time they were



12

held incommunicado and subjected to continuous question­
ing; they were also beaten, denied sleep and deprived of 
edible food. They were not allowed to consult counsel 
despite their requests (R. 2-3,10-11; Affidavits of Grimmett, 
Herman Dennis, Daly and Hill). Further, their detention 
was in violation of Sections 686, 825 and 780 of the Penal 
Code of Guam.

Petitioner Dennis further alleges that as a result of 
physical and mental duress, four confessions were ex­
tracted from him on January 11th, 12th and 13th and were 
introduced against him at his trial. All the confessions 
were repudiated before, at and after the trial. If these alle­
gations are true, the confessions were clearly coerced and 
their use at the trial constituted a denial of due process. 
Chambers v. Florida, 309 U. S. 227; Watts v. Indiana, 338 
U. S. 49.

The uncontradicted facts as revealed by the court- 
martial record lead to the inescapable conclusion that the 
confessions were involuntary. One of the chief witnesses 
for the prosecution, Albert E. Riedel, a police investigator 
brought from California, testified that the murder of Ruth 
Farnsworth had created an atmosphere of extreme tension 
on Guam (Herman Dennis, C. M. Trans. 207). In this 
atmosphere a large group of Negro soldiers were asked to 
take lie detector tests in connection with the investigation 
with respect to this crime (Herman Dennis, C. M. Trans. 
217). Petitioner Dennis submitted to the test on January 
7 and was thereafter immediately arrested without being 
informed of its results. He was held incommunicado until 
after four confessions were extracted (Herman Dennis, 
C. M. Trans. 193, 221). After occasional questioning on 
January 7, 8 and 10th and prolonged questioning on Jan­
uary 11 by two interrogators working in shifts, petitioner 
Dennis made his first confession (Herman Dennis, C. M.



13

Trans. 188-200). It should be noted that petitioner Dennis 
was only 20 years old, with a limited education; he was a 
member of the armed forces, thousands of miles from home, 
and accused of a most heinous crime ( United States v. 
Dennis, 4 A. C. M. 872, 906). In the light of these facts, we 
submit, the involuntary character of these confessions is 
clearly established. Malinski v. New York, 324 U. S. 401; 
Ward v. Texas, 316 U. S. 547; White v. Texas, 310 U. S. 
530.

The Court of Appeals disposed of petitioner’s allega­
tion concerning these confessions on the theory that their 
involuntariness was a disputed issue of fact which had 
been decided adversely to petitioner. It accepted the de­
termination of the military without making an independent 
evaluation of the evidence for itself. This Court, however, 
has emphasized that it will make an independent examina­
tion of the record to determine the validity of a claim 
that a coerced confession was used to convict. Lisenba v. 
California, supra. Even assuming arguendo that the un­
contradicted facts do not necessarily lead to a conclu­
sion that the confessions were coerced, the allegations of 
the petition, considered against the background of the un­
contradicted facts, entitled petitioner to a hearing on the 
merits and to an independent determination by the court 
of the character of these confessions.

b. Petitioner Dennis also alleges that certain pubic 
hairs taken from his person during his unlawful detention, 
and without his being advised of his constitutional rights, 
were used against him at his trial (R. 12). This, we submit, 
is compulsory self-incrimination in violation of the Fifth 
Amendment. See Rochin v. California, 342 U. S. 165. The 
Court of Appeals, however, ignored this allegation.

c. Petitioner Dennis further alleges that specimens of 
his pubic hair presented at the trial were deliberately



14

planted in an effort to create evidence tending to establish 
his guilt (R. 13; Affidavit of Herman Dennis). Such con­
duct on the part of the prosecution would certainly con­
stitute a flagrant violation of due process under the general 
principles enunciated by this Court in Mooney v. Holonan, 
294 U. S. 103 and Pyle v. Kansas, 317 U. S. 213. The Court 
of Appeals disposed of this allegation on the ground that 
so long as a disputed question of fact had been presented 
to the duly constituted military authorities, it had no duty 
to consider it. Again, we submit, that as to this allega­
tion petitioners were entitled to a hearing on the merits in 
the District Court. Petitioners urge that at the very least 
the Court of Appeals was required to evaluate the evidence 
independent of the conclusion reached by military authori­
ties.

d. Both petitioners allege that, important evidence relat­
ing to Filipino dog-tags and a navy uniform found near 
the scene of the crime was suppressed by the prosecution 
(R. 4, 12; Affidavit of Daly). If the allegations are true, 
these convictions are in violation of the Fifth Amendment. 
Mooney v. Holonan, supra; Pyle v. Kansas, supra.

The Court of Appeals disposed of this on alternative 
grounds. First, it asserted that the affidavit of Lt. Col. 
Daly in support of the allegation was insufficient in that 
it did not show that the prosecution had knowledge of the 
Filipino dog-tags and the navy uniform. Since the affidavit 
of Lt. Col. Daly avers that both items were in the pos­
session of the Guam Police Department, and the records 
in these cases reveal that there was an intimate working 
relationship between the civil government of Guam and 
the Air Force, petitioners contend that the civil govern­
ment acted here as the agent of the Air Force and its knowl­
edge must be imputed to the Air Force. See Anderson v. 
United, States, 318 U. S. 350 and Gambino v. United States, 
275 U. S. 310. Compare Gallegos v. Nebraska, 342 IT. S. 
55, 70.



15

The alternative holding of the Court of Appeals was 
that a federal court had no duty to consider this allegation 
since it was based on a disputed question of fact which 
had already been presented to the duly constituted military 
authorities. Again, we submit, petitioners were entitled 
to a hearing on the merits in the District Court, and that at 
the very least the Court of Appeals was required to evalu­
ate the evidence independent of the conclusion reached by 
military authorities.

e. Petitioner Dennis avers that the prosecution sought 
to procure witnesses to perjure themselves and intimidated 
and threatened those who sought to help him (E. 12; Affida­
vits of Grimmett, Daly and Hill). As the dissenting opinion 
of Judge Bazelon pointed out, the allegation of attempts 
to suborn perjury is given specific content by the affidavit 
of witness Mary Hill. She avers that one of the prosecu­
tion’s chief investigators tried to induce her to make a 
false statement before the court-martial relating to the 
voluntariness of Dennis’ confession. Moreover, the Judge 
Advocate General of the Air Force admitted that there was 
substantial evidence that Mrs. Hill was prevailed upon 
by the prosecution’s investigator to make a false state­
ment ( United States v. Dennis, 4 A. C. M. 872, 906).

Chaplain Grimmet avers that military authorities in­
terfered with his efforts to obtain assistance and counsel 
for petitioners. Furthermore, Lt. Col. Daly asserts, that 
as Staff Judge Advocate of the Marianas Air Material 
Command, he had personal knowledge of the fact that the 
Chaplain’s cables and mail to the United States were in­
tercepted and not delivered to the addressees.

Although the allegations, if true, would render the con­
victions void, Mooney v. Holonan, supra; Pyle v. Kansas, 
supra, they were ignored by the Court of Appeals.



16

f. Petitioner Burns alleges that the testimony of Calvin 
Dennis was coerced and perjured (R. 3-4; Affidavits of 
Daly and C. Dennis). Calvin Dennis was the principal 
witness appearing against him: without this testimony, the 
case against petitioner would be weak indeed. Affiant 
Calvin Dennis admits that he committed perjury under 
physical coercion, threats and promises. Corroborating 
this is the affidavit of Lt. Col. Daly wherein he states that 
he was present when an officer authorized to act on behalf 
of the Commanding General promised Calvin Dennis that 
his sentence would be commuted if he testified against 
petitioners, and threatened that he would be sentenced to 
death if he failed to do so.

If the above allegations are true, no court could avoid 
the compelling conclusion that the convictions were con­
trived and therefore void. See Mooney v. Holoncm, supra; 
Pyle v. Kansas, supra.

The Court of Appeals disposed of this allegation also 
on the ground that it had no duty to examine the merits 
of a contention based on a disputed question of fact which 
had been resolved by the duly constituted military authori­
ties. As previously stated, we take the position that this 
was error.

g. Petitioner Dennis alleges a gross abuse of discretion 
in the denial by his commanding officer of counsel of his 
choice (R. 12; Affidavits of Grimmett, Daly and Hill). The 
record shows that petitioner Dennis requested Lt. Col. 
Daly to act as his defense counsel and the Commanding 
General, after first granting the necessary permission 
later denied the request. Lt. Col. Daly alleges that charges 
against him were contrived so that he might be made “ un­
available.”  Affiant Hill asserts that an investigator for the 
prosecution attempted to induce her to give false testi­



17

mony at the trial upon the promise that it would be helpful 
to Col. Daly “ who was then in serious difficulties because 
of his attempt to defend the accused.”

Petitioner Burns had only one day to consult counsel 
of his choice (E. 4). It is true that he was represented by 
duly appointed defense counsel, but in view of the serious­
ness of the crime, we submit, his trial should have been 
continued in order to permit counsel of his choice to ade­
quately prepare his defense.

While this Court has never ruled that such a flagrant 
abuse of discretion constitutes a jurisdictional defect or 
violates due process, it is submitted that such conduct on 
the part of the commanding officer deprives the proceeding 
of any semblance of fundamental fairness. See Hiatt v. 
Brown, supra. The opinion of the Court of Appeals com­
pletely side-steps the essence of this contention.

The Articles of War in force at the time of these court- 
martial proceedings accorded the accused the right to 
counsel of his own choice if such counsel is reasonably 
available. A. W. 17. That petitioners may have had ade­
quate counsel does not cure the fact that they were denied 
the counsel of their own choice by a flagrant abuse of dis­
cretion. Similarly, the fact that petitioners may have had 
competent counsel to prosecute their appeals to the Board 
of Review and Judicial Counsel is likewise irrelevant. 
Both petitioners were deprived of effective counsel of their 
choice by a gross abuse of discretion on the part of mili­
tary authorities.

h. Petitioners allege that the atmosphere surrounding 
the trial was one of hysteria and terror (R. 4). This is 
supported by the affidavit of Chaplain Grimmet who as­
serts :

‘ ‘ That the feeling was so tense on the Island and the 
rumor so strong that there was going to be a riot if



18

the accused were not convicted, that I called the mat­
ter to the attention of Col. Tolin who said they were 
aware of the situation and that riot troops had been 
alerted in case of violence.”

If these allegations are true, the convictions are void. Moore 
v. Dempsey, 261 U. S. 86.

The Court of Appeals was of the opinion that no fact 
shown in the record supported this general allegation. 
While this may be true,2 it is proper for a petition of 
habeas corpus to rely on facts outside the record. Johnson 
v. Zerbst, supra; Waley v. Johnston, supra. Petitioners 
were entitled to a hearing on the merits in the District 
Court and the Court of Appeals erred in not remanding the 
cause for that purpose.

Even assuming arguendo that petitioners’ rights to a 
hearing could have been satisfied had the Court of Appeals 
considered their petitions on the merits, the consideration 
given by the Court of Appeals to these cases can hardly 
be deemed a hearing. The fact that the Court of Appeals 
examined the records and wrote a lengthy opinion may tend 
to create the illusion that petitioners were afforded a hear­
ing. But the hearing to which these petitioners were en­
titled necessitated an independent determination by the 
Court of Appeals of all issues relating to alleged violations 
of constitutional due process by military authority.

3. This Court should grant certiorari to determine 
whether the Court of Appeals was correct in holding that 
the doctrine of exhaustion of remedies as applied to state

2 But see the court-martial record of Herman Dennis at page 
207.



19

convictions supplied an accurate analogy for tlie instant 
fact situation.3

The Court of Appeals, while holding that an accused be­
fore a court-martial is entitled to a fair trial within due 
process of law concepts, placed upon the military authori­
ties the principal responsibility for insuring such fairness. 
It concluded that habeas corpus will not lie “ to review 
questions raised and determined, or raisable and determin­
able, in the established military process, unless there has 
been such gross violation of constitutional rights as to deny 
the substance of a fair trial and, because of some excep­
tional circumstances, the petitioner has not been able to 
obtain adequate protection of that right in the military 
processes.”  It analogized the doctrine of exhaustion of 
military remedies to that of exhaustion of state remedies, 
relying on the statement by this Court in Ex Parte Hawk, 
321 U. S. 114, 118 that a federal court will not ordinarily 
re-examine upon habeas corpus questions adjudicated by 
state courts, except where resort to those courts “ has failed 
to afford a full and fair adjudication of the federal con­
tentions raised.”

a. Even if it be assumed pro arguendo that the Court 
of Appeals was correct in its analogy, the Court should 
clarify the confusion relative to the application of the 
doctrine of Ex Parte Hawk to a collateral attack on military 
convictions.

8 While this Court in Gusik v. Schilder, 340 U. S. 128, did indi­
cate that the analogy was a proper one, the Court was there con­
cerned only with the first aspect of the rule— namely that except in 
exceptional circumstances, a federal court will not entertain a peti­
tion for a writ on habeas corpus on behalf of one in state custody 
unless he has exhausted all state remedies, including an appeal or 
writ of certiorari from this Court. Gusik v. Schilder had no appli­
cation at all to the second aspect of the rule of Ex Parte Hawk dis­
cussed infra at page 20.



20

The doctrine of Ex Parte Hawk has a twofold aspect. 
The first part of the rule states that federal district court 
will not ordinarily entertain a petition for a writ of habeas 
corpus from a prisoner in state custody until he has ex­
hausted all state remedies, including the filing of a peti­
tion for a writ of certiorari in this Court.4 The second 
aspect of the rule relates to the scope of habeas corpus 
after all of these state remedies have been exhausted.

The application of the latter portion of the Ex Parte 
Hawk rule has been subject to considerable uncertainty and 
there exists a conflict among the circuits. The Courts of 
Appeals for the Fourth and Tenth Circuits have held that 
where petitioner’s contentions have been adjudicated on 
the merits by the state courts and this Court has denied 
certiorari, a district court is justified in granting the writ 
of habeas corpus only in unusual circumstances. Goodwyn 
v. Smith, 181 F. 2d 498 (C. A. 4th 1950); Gault v. Bur ford, 
173 F. 2d 813 (C. A. 10th 1949). On the other hand, the 
Court of Appeals for the Third Circuit under the same 
circumstances has held that a district court must hear and 
determine the petition on the merits. United States v. 
Baldi, 192 F. 2d 540 (C. A. 3d 1951), cert, grant. 343 U. S. 
903. There Judge Goodrich said at 544:

“ Each point raised by the relator is to be tested 
by whether it alleges a violation of rights under 
the United States Constitution: nothing more. That 
these allegations have 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 the fact does not relieve the 
federal court of the duty to pass upon the merits 
of the petition.”

4 Sec. 28, U. S. C. § 2254.



21

This confusion with respect to the application of the doc­
trine of Ex Parte Hawk is multiplied manifold when the doc­
trine is transplanted from its home soil to a completely 
new area—collateral attack on military convictions. Since 
the Baldi case is now pending before this Court, it is espe­
cially appropriate that this related issue be decided.

If the view of the Third Circuit is correct, then clearly 
the Court of Appeals for the District of Columbia erred in 
the instant case by not remanding the cause to the District 
Court for a hearing. Even should the approach of the 
Third Circuit be rejected, the decision of the court below, 
it is submitted, is in conflict with Moore v. Dempsey, supra. 
There petitioner alleged that his trial was conducted in 
an atmosphere of mob hysteria and this Court held that 
the presence of a state appellate corrective procedure was 
not a sufficient ground for a federal court to refrain from 
examining the facts for itself. Mr. Justice Holmes stated 
at p. 91:

“ But if the case is that the whole procedure is 
a mask—that counsel, jury, and judge were swept 
to the fatal end by an irresistable wave of public 
passion, and that the state courts failed to correct 
the wrong * * * perfection in the machinery for 
correction * * * [cannot] prevent this court from 
securing to the petitioners their constitutional 
rights. ’ ’

When the allegations in the instant cases are considered 
in their totality, they paint a bleak picture—a proceeding 
nothing less than shocking which deprived the two accused 
of the most minimal standards of justice. If these allega­
tions are true, the convictions stand exposed as contrived 
through a “ pretense of a trial”  and are as utterly void as 
the one considered in Moore v. Dempsey.



22

b. Appellants further submit that the Court of Appeals, 
in resolving the instant case by a rule analogous to the 
doctrine of exhaustion of state remedies, ignored the fact 
that collateral attack on military convictions brings into 
play many considerations which are significantly different 
from those pertinent to a collateral attack on state convic­
tions.

First, an important aspect of the Ex Parte Hawk rule 
is that in exhausting state remedies, the petitioner must 
seek a writ of certiorari in this Court. Darr v. Burford, 
339 U. S. 200. Thus, even before petitioning a federal dis­
trict court for a writ of habeas corpus, one convicted by 
a state court has the right to ask this Court to grant cer­
tiorari. Those convicted by a military court-martial, on 
the other hand, have no similar right to ask this Court to 
review the proceedings. At the time petitioners were 
convicted, a writ of habeas corpus offered the only way for 
any kind of non-military review of the proceedings.

Second, underlying the rule of Ex Parte Hawk is the 
necessity for maintaining a harmonious federal-state rela­
tionship. Darr v. Burford, supra. A collateral attack on 
court-martial convictions, however, presents no such prob­
lem. Once military remedies are exhausted, it can hardly 
be considered unseemly for a federal district court to upset 
a determination by a military agency of the federal govern­
ment.

Third, the court below completely ignored the tremend­
ous differences between military and civil proceedings. 
The dangers of command control have been the subject of 
much concern. See Hearings Before Sub-Committee of 
the Committee on Armed Services on S. 857 and H. R. 4080; 
United States Senate, 81st Cong. 1st Session (1949); Farmer 
and Wells, Command Control—or Military Justice, 24 N. Y. 
IJ. L. Q. Rev. 263 (1949); Notes, 35 Cornell L. Q. 15 (1949); 
2 Stanford L. Rev. 547 (1950). A fair and impartial trial



23

is obviously difficult in an atmosphere of command control. 
An officer who the commander believes is too lenient can be 
removed from service on courts; and defense counsel who 
is too successful may not remain a defense counsel very 
long. All the personnel connected with the trial are de­
pendent on the commanding officer for assignments, leaves 
and positions. Cf. Report of War Dept. Advisory Com­
mittee in Military Justice (1946). Under these circum­
stances, officers are necessarily susceptible to command 
influence.

Similarly, the review procedure in force at the time of 
petitioners’ convictions is a far cry from civilian stand­
ards. Review by the Judge Advocate General’s depart­
ment is review by a partially interested party. When as 
here, motions for new trials are presented to the Judge 
Advocate General, no hearing is held to permit a petitioner 
to prove his allegations, no counter-affidavits are sub­
mitted; the Judge Advocate General investigates the 
charges, satisfies himself as to the substance of the allega­
tions, and there is no appeal from his decision. Such pro­
ceedings produce no record and a federal district court 
on habeas corpus must either accept the fairness of the 
proceedings as a matter of faith, or make an independent 
inquiry into the truth of the allegations.

In view of the above considerations, we urge this Court 
to grant the writ and hold that the limitations which some 
courts have placed on the writ of habeas corpus where 
state convictions are attacked should not apply to military 
convictions.5 Where there are allegations of gross denials

5 It has long been held that there is no presumption that a court- 
martial possessed jurisdiction, since it is a tribunal of limited juris­
diction. McClaughry v. Deming, 186 U. S. 49, 63. It would seem 
to follow logically from the above rule that a petitioner alleging 
such gross denials of due process which would oust the court-martial 
of its jurisdiction should have the right to prove his allegations in 
a civilian court.



24

of due process, as in the instant cases, it is the duty of the 
district court to make an independent inquiry into the 
facts.6 If petitioners are denied their right to a hearing 
before a civilian court, their rights under the Fifth and 
Sixth Amendments become mere empty, hollow guarantees.

4. The use of evidence unlawfully obtained by the civil 
authorities of Guam impaired the jurisdiction of the court- 
martial proceedings. Petitioners were placed under arrest 
by the civil authorities on Guam. They were subject to 
the jurisdiction of the civil government of Guam.7 Their 
detention was in flagrant violation of Sections 686, 780 and 
825 of the Penal Code of Guam 8 which provide for arraign­
ment before a judge within 24 hours and grant the prisoner 
on request the right to consult an attorney any time after 
arrest. As hereinbefore set out, it was during this period 
that petitioners were held incommunicado without process, 
denied counsel, subjected to physical and mental duress, 
and the confessions extracted. Had petitioners been tried 
by the civil authorities and had the evidence obtained 
during this period been used to convict them, the con­
victions clearly could not stand. See McNabb v. United 
States 318 U. S. 332; Weeks v. United States, 232 U. S. 358.

Convictions obtained by the Air Force with the use of 
such evidence can stand on no stronger ground. One arm 
of the federal government cannot reap the unlawful fruits 
of another arm. Anderson v. United States, 318 U. S. 350 ; 
Gambino v. United States, 275 U. S. 310. See Gallegos v. 
Nebraska, 342 U. S. 55, 70.

In the Anderson case appellants were tried and con­
victed in a federal district court for damaging federal

6 See opinion of Chief fudge Biggs in Hicks v. Hiatt, 64 F. 
Supp. 238, 249, n. 27 (M . D. Pa., 1946).

7 Penal Code of Guam (1947) Sec. 27.
8 Penal Code of Guam (1947).



25

property. They had been arrested by local authorities, 
held incommunicado and denied counsel by local and state 
officers; and coerced confessions were extracted from some 
of them in violation of state procedure. Subsequently, 
they were arrested by federal officers and convicted on the 
basis of the illegal confession secured by the state and local 
officials. The Court, in reversing the conviction, declared 
at page 356:

“ There was a working arrangement between the fed­
eral officers and the sheriff of Polk County which 
made possible the abuses revealed by this record. 
Therefore, the fact that the federal officers them­
selves were not formally guilty of illegal conduct 
does not affect the admissibility of the evidence 
which they secured improperly through collabora­
tion with state officers.”

And, this Court in the Gambino case said at pages 316, 
317:

“ the rights guaranteed by the 4th and 5th Amend­
ments may be invaded as effectively by such co­
operation, as by the state officers acting under di­
rection of the Federal officials * * * The prosecution 
thereupon instituted by the Federal authorities was, 
as conducted, in effect a ratification of the arrest, 
search and seizure made by the troopers on behalf 
of the United States.”

Thus, we submit, the courts-martial were divested of 
jurisdiction by the use of evidence unlawfully obtained by 
the civil government during the period of petitioners’ 
unlawful confinement, and these convictions cannot stand.



2 6

CONCLUSION

Wherefore, for the reasons hereinabove stated, it is 
respectfully submitted that this petition for writ of cer­
tiorari 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 s k y ,
L eonard W . S chroeter,

of Counsel.



27

APPENDIX

Title 10, United States Code, Section 1488:
* * * rj’ju, accusec[ ghaii have the right to be repre­

sented in his defense before the court by counsel of 
his own selection, civil counsel if he so provides, or 
military if such counsel be reasonably available, 
otherwise by the defense counsel duly appointed 
for the court pursuant to Article 11 (Sec. 1482 
of this title) * * *

Title 10, United States Code, Section 1495:
* * * No witness before a military court, com­

mission, court of inquiry, or board, or before any 
officer conducting an investigation, or before any 
officer, military or civil, designated to take a deposi­
tion to be read in evidence before a military court, 
commission, court of inquiry, or board, or before 
an officer, conducting an investigation, shall be com­
pelled to incriminate himself or to answer any ques­
tion the answer to which may tend to incriminate 
him, or to answer any question not material to the 
issue when such answer might tend to degrade him.

Title 10, United States Code, Section 1542:
* * * When any person subject to military law is 

placed in arrest or confinement, immediate steps 
will be taken to try the person accused or to dismiss 
the charge and release him * * *

Penal Code of Guam

Section 27. Crimes, persons liable to punishment for.
■—The following persons are liable to punishment under the 
laws of this Naval Government of Guam:



2 8

(1) All persons who commit, in whole or in part, any 
crime within this Island;

(2) All who commit any offense without this Island 
which, if committed within this Island, would be larceny, 
theft, robbery, or embezzlement under the laws of this 
Naval Government, and bring the property stolen or em­
bezzled, or any part of it, or are found with it, or any part 
of it, within this Island;

(3) All who, being without this Island, cause or aid, 
advise or encourage, another person to commit a crime 
within this Island, and are afterward found therein;

(4) All who commit any offenses without this Island and 
outside the territorial jurisdiction of any other country, 
which if committed within this Island would be a felony, 
and the offender and body of the crime are subsequently 
found within this Island.

Section 686. Right of defendant in criminal action.— 
In a criminal action the defendant is entitled:

(1) To a speedy public and oral trial.

(2) To be allowed counsel as in civil actions, or to 
appear and defend in person and with counsel.

(3) To be informed of the nature and cause of the accu­
sation against him.

(4) To be exempt from testifying against himself.
(5) To be allowed to testify in his own behalf; if he 

fails to testify, such failure shall not be construed as evi­
dence against him; but if he does so testify, he may be 
cross-examined like other witnesses.

(6) To have compulsory process issue for obtaining 
witnesses in his favor.



29

(7) To produce and examine witnesses in his behalf 
and to be confronted with and to cross-examine any wit­
nesses against him, in the presence of the court, except 
that where the charge has been preliminarily examined 
before a committing judge and the testimony taken down 
by question and answer in the presence of the defendant, 
who has, either in person or by counsel, cross-examined 
or had an opportunity to cross-examine the witness; or 
where the testimony of a witness on the part of the prose­
cution, who is unable to give security for his appearance, 
has been taken conditionally in the like manner in the pres­
ence of the defendant, who has, either in person or by 
counsel, cross-examined or had an opportunity to cross- 
examine the witness, the deposition of such witness may be 
read, upon its being satisfactorily shown to the court that 
he is dead or insane, or cannot with due diligence be found 
within the Island; and except also that in the case of 
offenses hereafter committed the testimony on behalf of 
the prosecution or the defendant of a witness deceased, 
insane, out of jurisdiction, or who cannot, with due dili­
gence be found within the Island, given on a former trial 
of the action in the presence of the defendant who has, 
either in person, or by counsel, cross-examined or had 
an opportunity to cross-examine the witnesses may be 
admitted.

(8) To appeal.
Section 780. Preliminary investigation by the police 

department. How, when, and ivhere conducted. Powers 
of the chief of police, Island attorney to attend.— (a) The 
conduct of the preliminary investigation as to procedure, 
time and place lie within the discretion of the chief of police 
of Guam, (b) For the purpose of investigating public 
offenses, the chief of police of Guam shall have the power 
to summon witnesses before him for questioning but shall



30

provide government transportation to persons so sum­
moned from outlying* districts, (c) Whenever any per­
son accused of two public offenses is brought before the 
chief of police for investigating, such person:

(1) Shall be informed of the accusation against him.
(2) Shall be infoi’med that any statement he may make, 

may be used against him.
(3) Shall not be compelled to be a witness against him­

self.

(d) Whenever the investigation indicates that a public 
offense has been committed triable in the courts of Guam 
other than in the police courts, the chief of police shall 
notify the Island attorney. The Island attorney or his 
deputy shall then attend the investigation by the police 
department.

Section 825. Right of attorney to visit prisoner.—The 
defendant must in all cases be taken before the judge with­
out unnecessary delay, and, in any event, within 24 hours 
after his arrest excluding Sundays and holidays; and after 
such arrest, any attorney at law entitled to practice in 
the courts of records of Guam may, at the request of the 
prisoner or any relative of such prisoner, visit the person 
so arrested.