DeChamplain v. Lovelace, 74--1766
| Citation | 510 F.2d 419 |
| Decision Date | 02 June 1975 |
| Docket Number | No. 74--1766,74--1766 |
| Parties | Raymond G. DeCHAMPLAIN, Appellant, v. Col. Hewitt E. LOVELACE, Jr., et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Eric M. Lieberman, New York City, for appellant.
Major Franklin A. Luna, Office of the Air Force Judge, Advocate Gen., United States Air Force, Washington, D.C., for appellees.
Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge. *
The petitioner DeChamplain, an Air Force master sergeant, appeals from the denial of a writ of habeas corpus (alternatively designated as a writ of mandamus) in which he sought release from confinement pending retrial by court-martial on charges of espionage. The United States District Court for the Western District of Missouri, the Hon. William H. Becker presiding, denied the petition in an unreported opinion holding that neither the Eighth Amendment nor the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801 et seq., provide for release on bail of a serviceman pending court-martial, that a hearing on pretrial release was not required, and that confinement was reasonable in any event. 1
We find it unnecessary to pass on the Eighth Amendment challenge to the unavailability of bail under the UCMJ; 2 we reverse the denial of the writ and remand to the district court for a hearing on pretrial release to be held before a neutral military officer or military judge.
DeChamplain has been deprived of his liberty since his arrest on July 2, 1971. Prior to his first trial, he was only restricted to the confines of Anderson Air Force Base on Guam. Since then, he has been held in prison-type cells, most recently at Richards-Gebaur Air Force Base in Missouri. He was ordered into confinement under Article 9 of the UCMJ, 10 U.S.C. § 809, which permits any commissioned officer to order an enlisted man arrested or confined on probable cause. The UCMJ does not provide any system of bail or a hearing on the possibility of pretrial release. The decision on whether and under what conditions to confine the accused pending court-martial in the Air Force is presently made ex parte by his commanding officer and, in cases of extended confinement, by the officer with authority to convene a general court-martial for that jurisdiction as well. 3 The decision may be reviewed for abuse of discretion by the Court of Military Appeals.
Petitioner urges that this is a hollow procedure in most instances. He asserts that at no point is the accused afforded an opportunity to appear and present evidence on his behalf; he is limited to challenge by written petition after the initial decision has been made. Further, he states that the Court of Military Appeals has never found any confinement decision to be an abuse of discretion. 4
The threshold question we must resolve is the reach of the writ of habeas corpus over the proceedings of a court-martial. The UCMJ, promulgated in 1950 and amended in 1968 by the Military Justice Act, Pub.L.No. 90--632 (October 24, 1968), is a code governing all branches of the armed services. It defines offenses triable by courts-martial and the procedures to be followed by those courts. The jurisdictional base is not Article III of the Constitution but rather the Article I power of Congress to regulate the land and naval forces.
Military law has been described by the Supreme Court as 'a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.' Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 2556 (1974), quoting from Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). In Burns, Chief Justice Vinson, in a plurality opinion (joined by Justices Reed, Burton and Clark), said:
The statute which vests federal courts with jurisdiction over applications for habeas corpus from persons confined by the military courts is the same statute which vests them with jurisdiction over the applications of persons confined by the civil courts. But in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950). Thus the law which governs a civil court in the exercise of its jurisdiction over military habeas corpus applications cannot simply be assimilated to the law which governs the exercise of that power in other instances. It is sui generis; it must be so, because of the peculiar relationship between the civil and military law. 346 U.S. at 139--140, 73 S.Ct. at 1047.
The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. . . . (W)hen a military decision has dealt fully and fairly with (a serviceman's constitutional claim,) it is not open to a federal civil court to grant the writ simply to reevaluate the evidence. 346 U.S. at 142, 73 S.Ct. at 1048 (emphasis added). 5 Although there has been considerable academic debate about whether all, some or none of the Bill of Rights was originally intended to apply to armed forces personnel, 6 there is almost no disagreement that the Due Process Clause binds the military, Burns v. Wilson, supra at 142--143, 73 S.Ct. 1045, and that through it, if not directly, other constitutional provisions apply. Daigle v. Warner, 490 F.2d 358, 364 (9th Cir. 1974). The highest military court, the Court of Military Appeals, has held that constitutional safeguards apply to courts-martial except where expressly or by necessary implication made inapplicable. United States v. Jacoby, 11 U.S.C.M.A. 428, 430--31, 29 CMR 244, 246--47 (1960). 7
The process of defining the constitutional protections afforded in the military is far from complete, and this past year's Supreme Court decisions in Parker v. Levy, supra, and Secretary of the Navy v. Avrech, supra, shed little guidance on the matter other than reaffirming what was common ground in Burns v. Wilson, that while the Due Process Clause does protect soldiers, its content is different than in civilian life due to the institutional need for discipline. Thus, while entry into the service does not entail forfeiture of all the protections of the Bill of Rights, 'the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . ..' Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048 (1953); accord, Parker v. Levy, supra; Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991, 997 (1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1970); Gallagher v. Quinn, 124 U.S.App.D.C. 172, 363 F.2d 301, 304, cert. denied, 385 U.S. 881, 87 S.Ct. 107, 17 L.Ed.2d 108 (1966).
Adopting the recognition by the Military Court of Appeals in United States v. Jacoby, supra, of the military's constitutional obligations, the District of Columbia Circuit Court of Appeals recently stated:
We hold that the test of fairness (a reference to the Burns v. Wilson 'full and fair consideration' test) requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule. . . . Kauffman v. Secretary of the Air Force, supra, 415 F.2d at 997.
Under this principle, with which we are in accord, we deem servicemen to enjoy the same rights of due process as civilians unless the government demonstrates a need for a different rule in the military.
We then move to the question of whether DeChamplain is entitled to a hearing on pretrial release before a neutral officer or military judge. 8
First, a fundamental component of due process is the presumption of innocence accorded the criminal defendant. In re Winship, 397 U.S. 358, 362, 91 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Pretrial release has long been recognized as a vital concomitant of that presumption. If a person may arbitrarily be confined before his trial, then in truth punishment precedes conviction and the presumption of innocence avails defendant little. Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Furthermore, the 'traditional right to freedom before conviction permits the unhampered preparation of a defense . . ..' Id., see Hudson v. Parker, 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424 (1895); Kinney v. Lenon, 425 F.2d 209, 210 (9th Cir. 1970).
Whether the right to pretrial release is based on the Fifth Amendment guarantee of no deprivation of liberty without due process of law or on the Eighth Amendment's prohibition of excessive bail, it clearly is not absolute in either the civil or military spheres. The government's legitimate interest that those arrested on probable cause give reasonable assurance that they will appear for trial and submit to sentence if convicted must be weighed in the balance. Stack v. Boyle, supra at 4, 72 S.Ct. 1; Ex Parte Milburn,34 U.S. (9 Pet.) 704, 709, 9 L.Ed. 280 (1835). In Stack v. Boyle, the Court held that bail should be no higher than that necessary to reasonably assure the presence of the defendant, considered as an individual, at trial. 342 U.S. at 5--6, 72 S.Ct. 1. The UCMJ, while not providing a bail system, adopts a similar test for conditions of pretrial release. UCMJ Article 13 provides:
(N)o person, while being held for trial . . . may be subjected to punishment . . . other than arrest or confinement . . ., nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence . . ..
UCMJ Art. 13, 10 U.S.C. § 813. See also United States v. Blackwell, 19 U.S.C.M.A. 196, 41 CMR 196 (1970); United States v. Bayhand, 6 U.S.C.M.A. 762, 21 CMR 84 (1956).
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McDonald v. United States
...of the Task Force on the Administration of Military Justice in the Armed Forces, Vol. I, pp. 86-87. 9 Plaintiffs invoke DeChamplain v. Lovelace, 510 F.2d 419 (C.A. 8), vacated as moot, 421 U.S. 996, 95 S.Ct. 2392 (1975), as holding that the convening authority is necessarily a biased offici......