Watson, Grant F.

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The Scope of Review over Courts-Martial on Habeas Corpus

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Journal of Criminal Law and CriminologyVolume 37 | Issue 4 Article 61947The Scope of Review over Courts-Martial onHabeas CorpusGrant F. WatsonFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationGrant F. Watson, The Scope of Review over Courts-Martial on Habeas Corpus, 37 J. Crim. L. & Criminology 304 (1946-1947)The Scope of Review Over Courts-Martial onHabeas Corpus*It has frequently been held that the scope of review which may beobtained on a petition for a writ of habeas corpus is limited to anexamination of the jurisdiction of the tribunal under sentence ofwhich the petitioner is being held.1 This has been applied equally tosentences of civil courts2 and of military tribunals.3 It has been saidthat the writ of habeas corpus may not be used as a writ of error toobtain a review of questions of law and fact.4A decision which reviews more than mere jurisdiction is unusualand is worthy of analysis. Such is the case of Hicks v. Hiatt.5 Thepetitioner, Hicks, sought and obtained a writ of habeas corpus ad-dressed to Hiatt, the warden of the federal penitentiary at Lewis-burg, Pa. Petitioner was serving time in the penitentiary undersentence of a court-martial, which had found him guilty of com-mitting rape while serving as a private in the 8th Air Force inEngland. It was clear from the allegations and proof before thedistrict court that the proceedings were fraught with error, muchof which was highly prejudicial to the petitioner. The court foundthe four errors occurred during the pre-trial investigation:6 (1)the pre-trial investigator failed to warn Hicks that his statementswould be used against him; 7 (2) the investigator failed to examineall the witnesses requested by Hicks;8 (3) petitioner was not per-mitted to examine adverse witnesses during the investigation;9 and(4) the investigator mistakenly suppressed a considerable body ofevidence tending to show that the complaining witness had a poorreputation for chastity.'O Furthermore, a number of errors occurredduring and after the trial: (1) petitioner was cross-examined asto matters irrelevant but degrading to him and persistent referencewas made thereto by the prosecution;" (2) a witness was permitted* This case note also appeared in (1946) 41 Illinois Law Review 260.1 Ferris & Ferris, The Law of Extraordinary Legal Remedies (1926)§18.2 EX parte Watkins, 3 Peters 193 (1830) ; Young v. Sanford, 147 F.(2d) 1007 (C.C.A. 5th, 1945).3 Ex parte Reed, 100 U.S. 13 (1879) ; Ex parte Yarbrough, 110 U.S.651 (1884); Carter v. McClaughry, 183 U.S. 365 (1902); Romero v.Squier, 133 F. (2d) 528 (C.C.A. 9th, 1943).4 Ex parte Reed, 100 U.S. 13 (1879); Ex parte Yarbrough, 110 U.S.651 (1884).5 64 F. Supp. 238 (M.D. Pa. 1946).6 It has been held that pre-trial errors as reflected in the proceedingsproper may be so prejudicial as to be vitiating. McNabb v. United States,318 U.S. 332 (1943); United States v. Mitchell, 322 U.S. 65 (1944);Ashcraft v. Tennessee, 322 U.S. 143 (1944).7 In fact the investigator told Hicks that anything he said wouldbe used in his own behalf. This was violative of paragraph 35a of theManual for Courts-Martial, United States Army (1928).8 This violated Article 70 of the Articles of War, 41 Stat. 802 (1920),10 U.S.C.A. §1542 (1927), and paragraph 35a of the Manual for Courts-Martial, United States Army (1928). It should be noted that in the mil-itary service one of the purposes for the pre-trial investigation is to pro-cure evidence for the defense as well as for the prosecution.9 Ibid.10 The investigator was apparently unaware that such evidence ishighly relevant to the defense in a rape case. In thus failing to investigatethoroughly, the investigator violated Article 70 of the Articles of War,41 Stat. 802 (1920), 10 U.S.C.A. §1542 (1927), and paragraph 35a of theManual for Courts-Martial, United States Army (1928)."This violated Article 24 of the Articles of War, 41 Stat. 792(1920), 10 U.S.C.A. §1495 (1927) and paragraphs 122a and 121b of theManual for Courts-Martial, United States Army (1928).REVIEW OVER COURTS-MARTIALto testify to matters that were hearsay and irrelevant but preju-dicial to petitioner; (3) no evidence was adduced concerning thereputation for chastity of the complaining witness;' 2 (4) in closingthe judge advocate was permitted to make prejudicial statementsconcerning petitioner's failure to make a sworn statement duringthe investigation; 13 (5) the court-martial admitted certain testi-mony that was obviously based entirely upon the suppositioi of thewitness; (6) the recommendation for clemency made by all themembers of the court-martial to the convening authority indicatedthat the members entertained a reasonable doubt as to whether thecomplaining witness consented to the act;14 and (7) the reviewingauthorities found no error in the proceedings. The district courtheld that a civil court could in a habeas corpus proceeding determinewhether the military trial had been, basically so 'unfair that thepetitioner was being deprived of his liberty without due process oflaw. Applying the rule to the facts in the case, the court found thatthere had been such an accumulation of prejudicial errors as" toconstitute a deprivation of due process15 and ordered Hicks' release.In so holding the court followed an earlier case in the same cir-cuit 16 in which the- petitioner, a soldier, was in the custody of thesame warden under sentence of a court-martial The court held17 inthat case that habeas corpus may be used to test the validity'of aconviction where the constitutional rights of the accused have beendisregarded and where those rights cannot be preserved by meansother than by habeas corpus. It was held that this particularly ap-plied to a deprivation of due process of law. In articulating this rulethe court pointed out that a citizen does not give up all his constitu-tional rights when he becomes a member of the armed forces, andthat, although procedurally due process in a military tribunal differsquite materially from that in a civil court, nevertheless it is essen-tial that this procedure be applied "in a fundamentally fair way."'I sThe application of this rule is not entirely devoid of precedent. Itseems to be well established that in deportation cases habeas corpusmay be used to examine the hearing which the alien had before theimmigration authorities for the purpose of determining whether itwas fair,19 even to the extent of ascertaining whether or not therewas some evidence to support the deportation order.20 Of course, inthe deportation cases the judicial review of the order which the12Defense counsel seems to have been unaware that there was alarge body of evidence on this point and did not press it.13 This violated the Fifth Amendment of the Constitution and Article24 of the Articles of War, 41 Stat. 792 (1920), 10 U.S.C.A. §1495 (1927).14 Paragraph 78a of the Manual for Courts-Martial, United StatesArmy (1928) states: "In order to convict of an offense the court mustbe satisfied, beyond a reasonable doubt, that the accused is guiltythereof."15 Cf. Colyer v. Skeffington, 265 Fed. 17 (D.C. Mass. 1920).16 United States ex rel. Innes v. Hiatt, 141 F. (2d) 664 (C.C.A. 3rd,1944).17 Id. at 666.Is Ibid.19 United States ex rel. Tisi v. Tod, 264 U.S. 109 (1924); Bridges v.Wixon, 326 U.S. 135 (1945).20 See Bridges v. Wixon, 326 U.S. 135, 149 (1945) and UnitedStates ex rel. Vajtauer v. Comr. of Immigration, 273 U.S. 103, 106(1927) wherein Mr. Justice Stone said, "Deportation without a fairhearing or on charges unsupported by any evidence is a denial of dueprocess which may be corrected on habeas corpus."REVIEW OVER COURTS-MARTIALalien might obtain was limited.2: Therefore, it may be that the realreason for extending the review in these cases beyond the confinesof mere jurisdiction is that habeas corpus is the only recourse whichthe alien has in order to protect his constitutional right to due processof law.Likewise in certain criminal cases before the civil courts thebroader rule has been followed.22 In cases where an accused hasbeen convicted of a crime in a state court proceeding, which violatedthe due process clause of the Fourteenth Amendment, the federalcourts have granted habeas corpus, particularly where the unfaircircumstances were outside the original record.23 In other caseswhere habeas corpus was sought in the state courts and denied bythem, the United States Supreme Court has, on certiorari to thedenial, examined the original proceedings and where it found a de-privation of due process has reversed the state courts and directeda writ to be issued.24 The fact that these cases are of relatively recentvintage gives rise to the impression that the trend is toward a broaderscope of review on habeas corpus. 25However, this trend has not heretofore been observable in. caseswhere the proceedings of military tribunals have been broughtbefore the civil courts.26 The courts have evidently been reluctantto interfere with the exercise by the military of its disciplinarypowers, and so the rule has been that, while military tribunals areinferior courts of limited jurisdiction and their decisions are there-fore subject to collateral attack,27 the scope of that attack is limitedto the question of jurisdiction. The broadening of this rule in thetwo Hiatt cases28 is a development to be expected in the light of thedemand for democratization of the armed forces. The applicationof this broader rule has been made particularly in those civil caseswhere the constitutional rights of the petitioner had little or noother safeguard. The federal courts have always been the last resortfor the protection of those rights. In view of the possibility in themilitary courts just as in the civil courts that cases may arise whereessential fairness is not given, it would seem proper for the federalcourts to be considered also the last resort for protection of the con-stitutional rights of military personnel.Whether the Supreme Court would review in a habeas corpus casethe application of due process in a military court is as yet a matter21 The Immigration Act, 39 Stat. 874 (1917), 8 U.S.C.A. §173 (1942),had no provision for appeal from the decision of the Secretary of Labor.Likewise, there is now no provision for appeal from the decision of theAttorney General, 39 Stat. 889 (1917), 8 U.S.C.A. §155 (1942).22Johnson v. Zerbst, 304 U.S. 458 (1938) (accused counterfeitersdenied right of counsel).23 Moore v. Dempsey, 261 U.S. 86 (1923) (negroes convicted by mobdominated court); Waley v. Johnston, 316 U.S. 101 (1942) (coerced pleaof guilty). Cf. Mooney v. Holohan, 294 U.S. 103 (1935) (where WorldWar I bomb thrower had not exhausted remedy on appeal, habeas corpuswas denied).24 Smith v. O'Grady, 312 U.S. 329 (1941) (duped plea of guiltywithout counsel); Lisenba v. California, 314 U.S. 219 (1941) (admissionof coerced confessions).25 Note (1935) 35 Col. L. Rev. 404.26 Stein, Judicial Review of Determinations of Federal MilitaryTribunals (1941) 11 Brooklyn L. Rev. 30; Note (1939) 7 Geo. Wash.L. Rev. 503. See also, Dynes v. Hoover, 61 U.S. 65 (1857); In re Grim-lery, 137 U.S. 147 (1890); Collins v. McDonald, 258 U.S. 416 (1922).27 See Ex parte Watkins, 28 U.S.- 193, 209 (1830).28 Cf. Ex parte Benton, 63 F. Supp. 808 (N.D. Cal. 1945).REVIEW OVER COURTS-MARTIAL%for conjecture, inasmuch as the Hicks case will not be appealed. 29The decisions in Ex parte Quirin3o and Application of Yamashita31would seem to indicate that it would not.3 2 However, it might wellbe pertinent to observe, as possible grounds for distinction, that thedefendant in the Yamashita case was an enemy belligerent, capturedby American military forces, and tried by a military comimissioi, asopposed to an American soldier tried by court martial; and that theerrors alleged in no way violated any act of Congress or other ap-plicable law; therefore, an accumulation of such alleged errors couldnot be considered a deprivation of due process.3 3 At any rate in bothdissenting opilions the view was taken that the way was open onhabeas corpus to protect the right to due process of law of one con-victed by a military tribunal 34If there is actually a trend toward a broader scope of review onhabeas corpus, the future may bring forth more cases like Hicks v.Hiatt. A strong argument on the point can be made, and those courtsin which the problem arises will find it necessary to weigh the ques-tion carefully. There may be many cases where the constitutionalrights of a petitioner cannot be protected without looking beyondjurisdiction. In those cases it would.seem that in order to do sub-stantial justice it will be necessary for the courts to determine whetherthe petitioner has had a fair hearing by examining the proceedings.Grant F. Watson29 At the time that the decision was filed the court wag apparentlyunaware that four days previously the War Department had issued anorder restoring Hicks to duty. See footnote 28; Hicks v. Hiatt," 64 F.Supp. 238, 250 (1946).30317 U.S. 1 (1942).31 - U.S. - , 66 S. Ct. 340 (1946). See Note (1946) 40- Ill. L.Rev. 546.32 The statement in Ex parte Quirin on the p6int was clearly dictum.33 It is not clear whether Chief Justice Stone intended to limit thescope of review in cases arising out of such unusual circumstances asthe Yamashita trial 6r in all cases orig~ihating in military tribunalswhen he said, "We cannot say that the commission, in admitting evidenceto which objection is now made, violated any act of Congress, treatyor military command defining the commission's authority. F6r reasonsalready stated we hold that the commaission's rulings on evidence andon the mode of conducting these proceedings against petitioner are notreviewable by the courts, but only by the reviewing military authorities.From this viewpoint it is unnecessary to consider what, in other situa-tions, the Fifth Amendment might require, and as to that no intimationone way or the other is to be implied. Nothing we have said is to betaken as indicating any opinion oh the question of the wisdom ofconsidering such evidence, or whether the action of the military tribunalin admitting evidence, which Congress or controlling military com-mand has directed to be excluded may be drawn in question by petitionfor habeas corpus or prohibition." - U.S. - , 66 S. Ct. 340, 351(1946).34 Mr. Justice Murphy in his dissent.- U.S.-, 66 S. Ct. 340, 355(1946) said, "I do not feel that we should be confined by the traditionallines of review drawn in connection with the use of the writ by ordinarycriminals who have direct access to the judiciary in the first instance.Those held by the military lack. any such access; consequently thejudicial review, available by habeas corpus must be wider than usual inorder that proper standards of justice may be enforceable."

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The Scope of Review over Courts-Martial on Habeas Corpus

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