Anthony v. Hunter

• Decision Date: 29 May 1947
• Docket Number: No. 984 H. C.,984 H. C.
• Citation: 71 F. Supp. 823
• Parties: ANTHONY v. HUNTER, Warden.
• Court: U.S. District Court — District of Kansas

71 F. Supp. 823

ANTHONY v. HUNTER, Warden.

No. 984 H. C.

District Court, D. Kansas, First Division.

May 29, 1947.

Harry H. Dunn, of Hutchinson, Kan., and Howard F. McCue, of Topeka, Kan., for petitioner.

Randolph Carpenter, U. S. Atty., and James W. Wallace, Asst. U. S. Atty., both of Topeka, Kan. (Colonel William J. Hughes, Jr., JAGD, of Washington, D. C., on the brief), for respondent.

MELLOTT, District Judge.

Petitioner alleges that he is illegally held in custody and deprived of his liberty by the Warden of the United States Penitentiary at Leavenworth, Kansas. Respondent admits the custody, asserting that it is lawful and attaching to his return photostatic copies of (1) a General Court-Martial Order, 20 September 1945, committing petitioner to the United States Penitentiary at Lewisburg, Pennsylvania, for the term of his natural life; (2) a General Court-Martial Order dated 2 February, 1946, changing the place of confinement of petitioner to the United States Penitentiary at Leavenworth, Kansas; and (3) a letter of the Adjutant General, by order of the Secretary of War, remitting, by direction of the President, so much of the sentence to confinement as is in excess of thirty-five years. At the hearing the documents above referred to were introduced in evidence, as was also the record of a common trial of petitioner and Private E. J. Arnold by a general court-martial which convened at Jugesheim, Germany, 3 April 1945. In addition to the evidence so adduced petitioner and his wife testified. The major portion of the testimony before this court, however, was given by William L. Kline, formerly a Second Lieutenant in the 704th Tank Destroyer Battalion, United States Forces, European Theater. From the whole record¹ the court makes the following:

Findings of Fact

1. Petitioner, a married man and the father of a son four years of age, is twenty-six years old (T. 14). He was inducted into the United States Army at St. Augustine, Texas, in December 1942. After several months training he was sent overseas, landing in France in July of 1944 as a private in the 704th Tank Destroyer Battalion, 4th Armored Division. He was in active combat from that time on, participating in the drive through France, the Battle of the Bulge and the invasion of the Rhineland (T. 15, 16).

2. On March 17, 1945, petitioner's company moved into the town of Langenlonsheim, Germany, out-posting the town. In the evening of that day petitioner and his co-defendant in the trial which was later held before a court-martial (Arnold) went into the town, ostensibly in search of another soldier, and entered a cellar in which some sixty odd Germans, mostly women and children, were quartered for protection from artillery fire (T. XX-XX-XXX).

3. On the morning of March 18, 1945, petitioner and Arnold were informally accused of having raped some German women during the night and were taken before the German civilians, including the several who thereafter became the complaining witnesses, for identification. None of them at that time identified petitioner (T. 19, 20, 278). He and Arnold, however, were taken into custody and removed to Battalion Headquarters, some 15 or 20 miles to the rear (T. 21, 82). Thereafter petitioner was confined to a supply truck, which moved forward with Headquarters (T. 21).

4. After petitioner and Arnold were taken into custody and on March 18, 1945, Second Lieutenant William L. Kline — who a few weeks earlier had been commissioned in the field (T. 56) — Adjutant of the Battalion, was appointed to investigate the accusations made against the prisoners (T. 43). He had had no previous experience in investigating serious charges; but upon his appointment, with an interpreter and a stenographer, he went to Langenlonsheim, Germany, where he interrogated several witnesses and made a record of their testimony (T. 43). During this investigation the accused were not present.

5. On or about March 21, 1945, Lieutenant Kline took the accused and other soldiers to Langenlonsheim where they were viewed by the witnesses. Most of them identified Arnold, "approximately half" of them "picked Anthony," "two or three were undecided and two or three picked another man," whom the investigating officer knew was not present (T. 44). Anthony had never worn a mustache (T. 54-29); but the witnesses who identified him stated that he "had a mustache" at the time of the alleged commission of the offense (T. XX-XXX-XXX).

6. Following the viewing of the accused, as referred to in the preceding finding, petitioner asked Lieutenant Kline "what he thought about it" to which he responded: "Well, according to the identification there couldn't be much to it" (T. 22). Lieutenant Kline reported the results of his investigation to his Commanding Officer, Lieutenant Colonel James W. Bidwell, after which he consulted with Lieutenant Colonel Chester D. Silvers, Judge Advocate for the Division. The latter, after examining the statements secured by Lieutenant Kline, indicated an opinion that the accused were guilty and that they should be made an example of for disciplinary purposes (T. 45).

7. At no time during the investigation heretofore referred to was petitioner given an opportunity to cross-examine the witnesses being interrogated by the investigating officer; but Lieutenant Kline informed him of the nature of the charges which were being considered (T. 46, 47). The accused were confronted with the witnesses, prior to the trial by the court-martial, only at the time of the viewing on March 21, 1945, prior to which the statements had been taken from the witnesses (T. 47-50-51). When the statements were taken only the investigating officer, the interpreter, the stenographer and the witness were present (T. 61).

8. After the statements were taken and the viewing occurred the army continued to move forward, progressing approximately 200 miles from Langenlonsheim within the next ten or twelve days. Petitioner moved forward with the Battalion (T. 61, 62). The trial before the court-martial hereinafter referred to took place at Jugesheim, Germany, approximately half-way between the front and Langenlonsheim where the alleged offenses occurred.

9. On March 29, 1945, Lieutenant Kline returned from the front to Division rear for consultation with the Judge Advocate for the Division (T. 73). The actual drawing up of the charges and specifications was done at that time with his help and the use of his stenographers (T. 74). The "Pretrial Investigating Officer's Report" (T. 190 to 193 inc.) was prepared by filling in blanks, designating the name of the accused and the witnesses, the body and principal part of the report being mimeographed. The "Charge Sheet" was similarly prepared (T. 194-196), Charge I being a violation of the 92nd Article of War, 10 U.S.C.A. § 1564 — carnal knowledge of two German females — and Charge II being a violation of the 93rd Article of War, 10 U.S.C.A. § 1565, viz., sodomy.

10. The charges were sworn to by First Lieutenant Marion E. Taake before Lieutenant Kline on the 29th day of March, 1945. On 31 March, 1945, they were referred by Lieutenant Colonel R. M. Connolly, by command of Brigadier General Hoge to Major Lowell A. Spires, trial judge advocate (T. 196). On 1 April 1945 they were read to the accused by Lieutenant Kline.

11. The "Pretrial Investigating Officer's Report" (mimeographed paragraphs 1 and 2, T. 190, 191) states that Lieutenant Kline informed the accused of the charges alleged against him; of the names of the accuser and witnesses so far as known; of the fact that the charges were about to be investigated; of his right to cross-examine all available witnesses against him and to present anything he might desire in his own behalf, either in defense or mitigation; of his right to have the investigating officer examine available witnesses requested by him; and that, in the presence of the accused, the investigating officer had examined all available witnesses and documentary evidence and reduced the material testimony to a statement embodying the substance of the testimony taken on both sides. The language referred to was part of a mimeographed form supplied to Lieutenant Kline on or about 29 March, 1945. He actually did none of the things therein stated between 29 March 1945 and 31 March 1945 (T. 103, 104 to 109), all of his investigation having been made prior to 21 March 1945 (T. 46). However, on 1 April 1945, he showed petitioner copies of some of the statements he had taken from the complaining witnesses (T. 35).

12. Following the reading of the charges to petitioner by Lieutenant Kline on 1 April 1945 petitioner was taken back to Jugesheim, Germany, approximately 100 miles east of Langenlonsheim and placed in confinement to await trial by a general court-martial. Lieutenant Kline rejoined his company at the front, approximately 100 miles east of Jugesheim and 200 miles east of Langenlonsheim.

12. On 2 April 1945 petitioner was advised that his trial would be held the next day, 3 April (T. 24). Dr. Joseph J. Frank, a Major in the Medical Corps, had been appointed by the court at a time not disclosed by the record to defend petitioner (T. 24-237). Petitioner first learned of the appointment at about 5:00 P.M. on 2 April 1945. At that time he had a conversation with Major Frank and told him that he wanted Captain Evans of Battalion Headquarters, who had had considerable experience in defending before courts-martial, to aid in his defense as counsel, Major Frank having advised him that he (Frank) had had no experience in defending (T. 41). Major Frank agreed to "see what he could do saying the trial was coming up the next day and he would ask at the trial for a continuation to secure witnesses also, and request the defense counsel" (T. 25). The record of trial shows no such requests. However, it does show "The accused stated that they were satisfied with the appointed counsel" (T. 240).

13. Petitioner had...