Hiatt v. Brown, 12641.

Decision Date16 June 1949
Docket NumberNo. 12641.,12641.
Citation175 F.2d 273
PartiesHIATT, Warden, v. BROWN BROWN v. HIATT, Warden.
CourtU.S. Court of Appeals — Fifth Circuit

J. Ellis Mundy, U.S. Atty., and Harvey H. Eisinger, Asst. U.S. Atty., Atlanta, Ga., Eugene M. Caffey, Col. JAGD Hq. 3rd Army, and H. M. Peyton, Lt. Col. JAGD Hq. 3rd Army, Fort McPherson, Ga., for appellant and cross-appellee.

Walter G. Cooper, Atlanta, Ga., for appellee and cross-appellant.

Before HOLMES, McCORD, and WALLER, Circuit Judges.

McCORD, Circuit Judge.

Eugene Preston Brown, while serving as a soldier in the occupation forces of the United States Army, was tried and convicted by a general court-martial at Mannheim, Germany, on January 14, 1947, for a violation of Article of War 92. Title 10 U.S. C.A. § 1564. He was thereupon sentenced to be confined at hard labor for life, to be dishonorably discharged from the service, and to forfeit all pay and allowances due or to become due. Upon recommendation of the Army reviewing authorities, his term of confinement was thereafter reduced to twenty years, and he was imprisoned in the United States Penitentiary at Atlanta, Georgia, on September 24, 1947.

On July 9, 1948, Brown petitioned the United States District Court for the Northern District of Georgia for a writ of habeas corpus. After a hearing thereon the writ was sustained, and the petitioner released on bond. From such ruling of the court sustaining the writ and releasing petitioner the United States has appealed. Petitioner has also filed a cross-appeal, alleging numerous additional grounds for sustaining the writ.

The controlling questions presented are: (1) Whether the court-martial, as organized, had jurisdiction over the offense, and (2) whether, assuming jurisdiction appears, there was nevertheless such a denial of due process to petitioner as would require us to invalidate his conviction and sentence.

The district court found that the court-martial which tried petitioner was illegally constituted and without jurisdiction, for the reason that it was organized in plain disregard of the requirements of the 8th Article of War, Title 10 U.S.C.A. § 1479, the pertinent provision of which reads as follows:

"The authority appointing a general court-martial shall detail as one of the members thereof a law member, who shall be an officer of the Judge Advocate General's Department, except that when an officer of that department is not available for the purpose the appointing authority shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member. The law member, in addition to his duties as a member, shall perform such other duties as the President may by regulations prescribe."

The record conclusively reveals that the law member appointed to serve on the court-martial was not an officer of the Judge Advocate General's Department. It further appears from the order convening the court-martial that although a Captain of the Judge Advocate General's Department and one other Judge Advocate officer were then available for appointment as law member, the appointing authority nevertheless detailed both these officers to serve as assistant trial judge advocates, and named a Colonel of the Field Artillery to serve as law member instead. No authority, explanation, or reason whatever is offered in justification or excuse of this action.

It is well settled that a court-martial is a military court of limited statutory jurisdiction whose judgments are subject to collateral attack on habeas corpus. Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167; McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049; Givens v. Zerbst, 255 U.S. 11, 41 S.Ct. 227, 65 L.Ed. 475; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. There is no presumption in favor of the validity of a judgment or sentence of a court-martial, and the burden of proving that it was legally organized, that it had jurisdiction, and that all statutory requirements governing its proceedings were complied with, rests upon the party seeking to uphold its judgments. McClaughry v. Deming, 186 U.S. 49, 62, 63, 22 S.Ct. 786, 46 L.Ed. 1049; Runkle v. U.S., 122 U.S. 543, 555, 7 S.Ct. 1141, 30 L.Ed. 1167; Schita v. King, 8 Cir., 133 F.2d 283. Moreover, while under the decisions of our Court of Last Resort we are not permitted to pass upon or weigh the evidence in order to question the innocence or guilt of persons convicted by courts-martial, the inherent prerogative of a federal court to inquire into the jurisdiction of a court-martial, on application for habeas corpus, has been specifically upheld in the recent pronouncement of Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 831, wherein the following language appears:

"It is contended that the court-martial was without jurisdiction to try respondent. If so the court-martial exceeded its lawful authority and can be invalidated despite the limited powers of a court in habeas corpus proceedings. * * *" See also, United States v. Cooke, 336 U.S. 210, 69 S.Ct. 530; In re Yamashita, 327 U.S. 1, 8-9, 66 S.Ct. 340, 90 L.Ed. 499; Collins v. McDonald, 258 U.S. 416, 418, 42 S.Ct. 326, 66 L.Ed. 692.

We are of opinion the 8th Article of War requires, in order to insure the protection of fundamental and constitutional safeguards to members of our armed forces, certainly in times of peace, that the presence of a duly qualified law member from the Judge Advocate General's Department be made a jurisdictional prerequisite to the validity of such court-martial proceeding, except in the single instance where such officer is actually, and in fact, "not available". It is without dispute that such law member is charged with the solemn duty and responsibility of a final ruling upon every disputed issue at the trial, of restraining the prosecution within proper legal bounds, and of insuring the accused due process of law by carefully preserving his constitutional rights. And where, as here, it conclusively appears that although two of the required law members were actually "available" at the time of their court-martial appointment for the position of law member, and the appointing authority has arbitrarily, and without apparent justification or excuse, appointed both of them to serve as assistant prosecutors of the accused, it leaves the entire proceeding in some sort analogous to a jury trial without a judge present. Cf. Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537; Mullan v. United States, 140 U.S. 240, 11 S.Ct. 788, 35 L.Ed. 489; Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823.

We readily concede that where the required law member does not clearly appear to have been available at the time a court-martial is organized, an appointing authority may, in his discretion, appoint as law member thereof another officer "specially qualified to perform the duties of law member" who need not be a member of the Judge Advocate General's Department. Such is not the case here. In this case no evidence whatever has been offered to disprove the undisputed fact that a law member from the Judge Advocate General's Department was actually "available" at the time the court-martial was organized, nor does it appear that any discretion was exercised by the convening authority.1 It is well settled that a party claiming the benefit of a statutory exception must bring himself squarely within its terms. Ver Mehren v. Sirmyer, 8 Cir., 36 F.2d 876, 880; Vondermuhll v. Helvering, 64 App.D.C. 137, 75 F.2d 656; Canadian Pacific Rwy. Co. v. United States, 9 Cir., 73 F.2d 831, 834; Givens v. Zerbst, 255 U.S. 11, 41 S.Ct. 227, 65 L.Ed. 475.

The arbitrary action of organizing this court-martial in complete disregard of the plain requirements of the 8th Article of War is manifestly reviewable, both as an abuse of discretion, and as a fatal organizational defect which effectually divests the court-martial of jurisdiction. Cf. Henry v. Hodges, 2 Cir., 171 F.2d 401.2 To hold otherwise would violate both the spirit and mandate of the Congressional enactment. Manifestly, this is true where the accused, as here, is being tried in time of peace for the offense of murder.

Passing from the jurisdictional issue involved, there remains an additional and independent ground on which this writ should be sustained. The record of this court-martial conviction is replete with highly prejudicial errors and irregularities which have manifestly operated to deprive this petitioner of due process of law. We need cite only a few patent instances:

(1) Accused was convicted on the theory that although he was on duty as a...

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