Henry v. Warner
| Decision Date | 13 April 1973 |
| Docket Number | No. 73-354-DWW.,73-354-DWW. |
| Citation | 357 F. Supp. 495 |
| Court | U.S. District Court — Central District of California |
| Parties | Daniel Edward HENRY, etc., et al., Individually and on behalf of all persons similarly situated, and Stephen L. Bray II and Michael A. Ness, Intervenors, Petitioners-Plaintiffs, v. Honorable John E. WARNER, Individually and in his capacity as Secretary of the Navy, et al., Respondents-Defendants. |
COPYRIGHT MATERIAL OMITTED
Nathan Zahm, Sherman Oaks, Cal., for petitioners-plaintiffs.
William D. Keller, U. S. Atty., by John E. Nordin, Joel Levine, Asst. U. S. Attys., Los Angeles, Cal., Lt. Commander Carl Horst, JAG Corps U. S. Navy, Naval Air Station, Miramar, San Diego, Cal., for respondents-defendants.
The Petitioners-Plaintiffs (hereinafter Petitioners) are either members of the United States Navy or the Marine Corps and they have been charged with relatively minor offenses which constitute violations of the Uniform Code of Military Justice (hereinafter UCMJ). Petitioners, Henry and Kirby were charged with "unauthorized absence;" McLean was charged with the same offense, "misbehavior of sentry on post," and "disrespect to a non-commissioned officer." Each was convicted at a summary court-martial proceeding at which he was not represented by legal counsel and each was ordered confined for a period not to exceed 30 days. Petitioners Haecker, Jackson, Mims and Petitioner-Plaintiff-Intervenors (hereinafter Petitioners) were charged with various similar infractions and ordered to stand trial at a summary court-martial on a date yet to be fixed, at which no legal counsel would be provided.
The UCMJ, 10 U.S.C. 816(3), 820 and 824 creates a "summary court-martial consisting of a non-commissioned officer" which is given jurisdiction to try all persons subject to the UCMJ except officers, cadets, aviation cadets and midshipmen, for non-capital offenses, and is authorized to adjudge punishment upon conviction no greater than confinement at hard labor for one month and certain ancillary punishment. At the outset of a summary court-martial an accused is advised by the summary court officer of the nature of the charges against him, "by whom he is accused", a general statement of his right to plead not guilty and confront witnesses against him, to present evidence in his own behalf and to be assisted in this endeavor by the summary court-martial officer. A plea of guilty cannot be accepted by the summary court-martial officer unless he is satisfied that an accused voluntarily waives his right to a trial, understands the elements of the offense and the consequences of his plea. The accused is further advised that if tried by summary court-martial he will not be represented by appointed military counsel but that the summary court-martial officer (who subsequently determines the guilt or innocence of the accused) will thoroughly and impartially inquire into both sides of the matter and will assure that the interest of both the Government and the accused are safeguarded. The accused is further told that if he desires representation by appointed counsel he must object to trial by summary court-martial and that if his case is then referred to a special court-martial, he will be provided counsel. However, if the accused makes the decision that causes him to be tried before a special court-martial (with counsel) instead of a summary court-martial (without counsel) he subjects himself upon conviction to the possibility of a greater period of incarceration and stiffer ancillary punishment than would be possible in a summary court-martial.
At the outset, it should be understood that even in the case of an aggravated offense tried in special or general court-martial, the accused is not necessarily provided with a legal counsel who is trained as a lawyer or a member of the bar of some state. He is furnished a nonlawyer legal aide who has had training in the handling of trials in the military; a similarly trained member of the military personnel is assigned to handle the Government's prosecution of the charge.
The verified petition for a Writ of Habeas Corpus of Petitioners Daniel Edward Henry, John Thomas Kirby, and Kenneth Wayne McLean, individually and on behalf of all persons similarly situated, and the complaint of said Petitioners and of David Alan Haecker, A. C. Jackson, and Aubry Duglass Mims, individually and on behalf of all persons similarly situated, for injunctive, mandamus, and declaratory relief, together with motions for a temporary restraining order and preliminary injunction order designating the action as a class action, and an order allowing Petitioners to proceed in forma pauperis, were filed in this Court on February 16, 1973.
Petitioners Stephen L. Bray II and Michael A. Ness whose motion to intervene in the petition for a Writ of Habeas Corpus, and other requested relief, having been previously filed under an order shortening time, were allowed as party-intervenors pursuant to FRCiv.P 24(a)(2). This Court further ordered issuance of a Writ of Habeas Corpus as to Kirby, Bray II, and Ness and their immediate release from confinement pending further order of the Court with regard to their respective convictions and sentencing by summary courts-martial. Finally, it was ordered that Respondent-Defendants (hereinafter Respondents) refrain from conducting any summary courts-martial within the territorial jurisdiction of this Court without affording the accused the assistance of counsel, pending further order of the Court.
At a subsequent hearing this court granted the motion by counsel for Petitioners that the hearing on the application for a preliminary injunction be consolidated with the trial of this action on the merits pursuant to FRCiv.P 65(a) (2), and that the named Petitioners be allowed to proceed in forma pauperis pursuant to 28 U.S.C. § 2250.
The trial procedure detailed above was and is the same procedure followed at all U. S. Navy and U. S. Marine Corps installations and stations in conducting trials by summary court-martial. That procedure will continue to be utilized unless otherwise ordered by a court of competent jurisdiction, according to the opinion issued by the Judge Advocate General of the U. S. Navy. The Judge Advocate General maintains that the decision of the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) is not applicable to military summary court-martial procedures. The precise holding of Argersinger is "that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Argersinger at 37, 92 S.Ct. at 2012.1
Since the filing of the Petition and Complaint herein, and upon a request in chambers by this Court to Respondents, no summary court-martial has been conducted with respect to charges against Petitioners Haecker, Jackson, and Mims.
Service of process on each and all of the named Respondents was timely and properly made.
After hearing evidence and evaluating all papers filed with this Court, this Court grants Petitioners relief as a class pursuant to FRCiv.P 23(b)(2) and (c), defined below, in the form of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. and in the nature of mandamus pursuant to 28 U.S.C. § 1361 against Respondents Warner, Zumwalt, and Cushman. It is further ordered that John E. Warner, Secretary of the Navy, Admiral Elmo Zumwalt, United States Navy, and General Robert E. Cushman, United States Marine Corps, direct their agents to insure that no summary courts-martial pursuant to 10 U.S.C. § 820 be commenced by the Navy or Marine Corps throughout the world unless the requirements of Argersinger are satisfied.2
It was to be ordered that the findings of guilt and sentence of Petitioners be vacated, subject, however, to retrial. As noted in Daigle v. Warner, 348 F.Supp. 1074 (D.Haw.1972), however, Navy regulations do not permit such retrial; thus, the respective sentences to confinement are adjudged invalid and the records of the proceedings are to be expunged.
The central issue in this case as in Daigle v. Warner, supra, is whether the decision in Argersinger applies to summary courts-martial proceedings conducted under 10 U.S.C. § 820.
Two other issues raised by the parties and worthy of analysis are the problem of the exhaustion of military remedies and whether a class of plaintiffs and/or a class of defendants should be recognized by this Court.
Granting Petitioners motion for a class action, I define the Petitioners class as all those persons who are members of the U. S. Navy and Marine Corps and who, 1) were or are now or will be required after April 16, 1973, to stand trial by summary courts-martial; 2) were not or are not advised of their right to assistance of counsel during their summary courts-martial proceedings, and if indigent, advised that counsel must be provided without cost; and, 3) had not made a knowing and intelligent waiver of counsel.
The requirements of FRCiv.P 23(a) have been met in that this action is being maintained by members of the class; the class is quite numerous numbering several thousand persons; the question presented is a pure question of law common to all members of the class: the validity of summary courts-martial proceedings pursuant to 10 U.S.C. § 820 without the assistance of counsel. In addition, there is a fact common to the entire class: each member of the class has been, will be, or could be tried by a summary court-martial and either faces or could face incarceration without benefit of counsel. The claims of the representative parties are thus typical of the claims of the entire class. Because of this close identity the representative parties are thus typical of the claims of the entire class and will fairly and adequately protect the interests of the entire...
To continue reading
Request your trial
-
Middendorf, Ii v. Henry Henry v. Middendorf, Ii
...or will be required after (the date of the order) to stand trial by summary courts-martial" and who had not been afforded counsel. 357 F.Supp. 495, 499 (1973). 8. These features are mandatory for general courts-martial. Special courts-martial may be, but seldom are, convened without a milit......
-
Betonie v. Sizemore
...cert. den., 394 U.S. 934, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1969) ; Kennedy v. Commandant, 377 F.2d 339 (10th Cir. 1967) ; Henry v. Warner, 357 F.Supp. 495 (C.D.Cal.1973) ; Application of Stapley, 246 F.Supp. 316 (D.Utah 1965) ; Denton v. United States, 144 Ct.Cl. 840, 863, cert. den., 361 U.S......
-
Fitzgerald v. Sigler
...by this Circuit in Eisel v. Secretary of the Army, supra. See also Orito v. Powers, 479 F.2d 435 (7th Cir. 1973); Henry v. Warner, 357 F.Supp. 495, 502 (C.D.Cal.1973). While in the case under consideration, concurrent jurisdiction may exist in both the District Court for the Eastern Distric......
-
Henry v. Warner, 73-1694
...a matter of right, to be represented by counsel or a counsel substitute. We reversed the District Court's judgment, reported at 357 F.Supp. 495 (D.C.Cal.1973), and remanded the cause to the District Court for reconsideration in the light of our previous holding in Daigle v. Warner, 490 F.2d......