McClellan v. Humphrey, 228.

• Decision Date: 13 April 1949
• Docket Number: No. 228.,228.
• Parties: McCLELLAN v. HUMPHREY.
• Court: U.S. District Court — Middle District of Pennsylvania

83 F. Supp. 510

McCLELLAN v. HUMPHREY.

No. 228.

United States District Court M. D. Pennsylvania.

April 13, 1949.

Arthur A. Maguire, U. S. Atty., of Scranton, Pa., Charles W. Kalp, Asst. U. S. Atty., of Lewisburg, Pa., and Lt. Col. Thayer Chapman, Office of the Judge Advocate General, of Washington, D.C., for respondent.

FOLLMER, District Judge.

This habeas corpus proceeding was instituted by John D. McClellan, a military prisoner at United States Penitentiary, Lewisburg Pennsylvania, who was convicted by a General Court-Martial on charges of rape, desertion and escape from confinement.

Petitioner predicated his allegation of illegal restraint on ten separate issues, which may be briefly summarized as follows,

1. Noncompliance with the provisions of Article of War 70, 10 U.S.C.A. § 1542, relating to pre-trial investigation.

2. The additional charge and specification thereunder was not properly sworn to inasmuch as the officer taking the accuser's oath was the Acting Assistant Adjutant of the Command.

3. Denial of counsel of his own choice and ineffective representation by the appointed defense counsel who did defend him.

4. Counsel who did defend petitioner was not a duly appointed defense counsel on the court which tried petitioner.

5. Denied the right to have witnesses summoned in his behalf at the trial.

6. Petitioner was handcuffed during his trial before the Court Martial.

7. Conviction based on incompetent evidence.

8. Trial Judge Advocate improperly amended the record of the trial after the court adjourned.

9. Misconduct of Trial Judge Advocate in presenting case of the prosecution.

10. Board of Review erred in not granting petitioner a new trial.

The Court-Martial record is in evidence and oral testimony was presented upon the hearing in this Court, including that of the Investigating Officer, the Trial Judge Advocate, Defense Counsel, and four prisoners of the United States Penitentiary at Lewisburg, Pennsylvania, who were requested by petitioner.

We have here a case where a soldier in the Army of the United States has been convicted by a Court-Martial after an eminently fair trial, upon overwhelming evidence of guilt, of a brutal, sadistic and heinous offense against a thirteen and one-half year old girl; where the sentence has been approved and confirmed after the record of the trial was painstakingly reviewed by the agencies provided by law for that purpose, but where it is now claimed that certain errors occurring prior to and during the trial vitiated the entire proceedings.

It is the opinion of this Court, after a careful and thorough study of the Court-Martial record and seeing and hearing the witnesses on the stand in this proceeding, that the matters complained of are mere flea bites and completely without merit. To grant them credence would, in the language of Judge Hand speaking for the court in United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 608, 156 A.L.R. 240, certiorari denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630, "grant immunity to the relator for a crime, of which, as the record now stands, he has been lawfully convicted; an immunity based in no sense upon the merits of the trial, but only upon their regularities in the accusation. Nothing could more effectively defeat the interests of justice."

Considering the alleged errors seriatim,

1. Failure to provide a fair and impartial investigation as required by Article of War 70.

An exhaustive examination of this case had been conducted by the Army's Criminal Investigation Division (C. I. D.), statements of a number of witnesses were taken and given by the Chief of this division to the investigating officer as statements of witnesses who would be available to the prosecution. The investigating officer did not personally interview any of the witnesses. He did, however, submit all of the statements to the petitioner, together with a statement petitioner had given the C. I. D. investigator. He was thus fully and completely apprised of the evidence that he would have to meet, and was given an opportunity to cross-examine the witnesses. He refused the offer. He furthermore indicated he did not desire witnesses called on his own behalf.

I am firmly of the opinion that the thorough and impartial investigation required by Article of War 70 was complied with.¹

2. The additional charge and specification were not properly sworn to inasmuch as the officer taking the accuser's

oath was the Acting Assistant Adjutant of the Command.

This complaint is completely without merit.

Petitioner was tried in 1946 at which time Article of War 114 had been amended to include among those authorized to administer oaths the assistant adjutant or personnel adjutant of any command, A.W. 114, as amended by the Act of December 14, 1942, c. 730, 56 Stat. 1050, 10 U.S.C.A. § 1586. The oath in question was administered by Lieutenant Johnson, who at the time was the Acting Assistant Adjutant. The officer acting for the time being in place of the Assistant Adjutant is to all intents and purposes the Assistant Adjutant and has all the powers of such.²

In any event, the Judge Advocate General has consistently held:

"In the absence of objection by the defense, the fact that the charges were sworn to before an officer not competent to administer an oath does not invalidate the trial. CM 146230; CM 146536; CM 144896; CM 148709; CM 146349. (Maddox 9 B.R. 277, 279)."

In this case the Court-Martial Record is devoid of any such objection.

In Nickerson CM 172002, the Board of Review said:

"The provisions of A.W. 70 requiring the charges and specifications to be sworn to, was intended for the benefit of the accused in order that he might not be subjected to frivolous or malicious prosecution and if he did not object to the irregularity and the accusation is sustained by the proof, the fact that the charge and specifications were not sworn to would not in itself injuriously affect any of the substantial rights of the accused."

The courts have uniformly placed considerable reliance on opinions of the Judge Advocate General dealing with questions of military law.³

However, even assuming, for the sake of argument, that either of the above contentions were sound, the question here would be purely academic. There was no attack upon the validity of the oath to the original charge and since the charge of rape justifies the sentence, it is immaterial whether petitioner was lawfully convicted of the additional charge. The sentence was a general sentence. Consequently, if petitioner stands convicted of only one good charge which itself justifies the sentence, it makes no difference that he may have been erroneously convicted of others.⁴

3. Denial of counsel of his own choice and ineffective representation by appointed defense counsel.

Petitioner had requested a Lieutenant Fidellow as his defense counsel. The fact is that Lieutenant Fidellow's unit had been alerted to proceed to Germany and actually did depart on the very day petitioner was brought to trial. Lieutenant Fidellow was the only officer with his command at that time and in the opinion of his superiors could not be spared for extra duties as defense counsel.⁵ Petitioner was notified of this fact, convinced that he could not have Fidellow as his counsel and expressed satisfaction with Lieutenant Neville. As to the qualifications of the latter, he was a graduate of the University of Ottawa, Canada, and Harvard Law School, a practicing attorney for twelve years, formerly attached to the Antitrust and Criminal Divisions of the Department of Justice, Washington, D. C., and with considerable previous experience in the Army as Trial Judge Advocate and also defense counsel. An examination of the Court-Martial record convinces me that in Lieutenant Neville petitioner had the benefit of the services of a thoroughly competent, aggressive and conscientious attorney, and that furthermore the record gives every indication of adequate preparation for trial on the part of defense counsel. This complaint is completely without merit.

4. Counsel who did defend petitioner was not a duly appointed defense counsel on the court which tried petitioner.

The Court-Martial record indicates that Lieutenant Neville was duly appointed as a member of a General Court-Martial in the capacity of Assistant Defense Counsel by special order of the Commanding Officer, No. 169, dated July 24, 1946.⁶

The testimony indicated that Lieutenant Neville had served in previous Courts-Martial, in some in the capacity of Trial Judge Advocate and in others in the capacity of defense counsel. General Courts-Martial are appointed for the trial of such persons as may properly be brought before them. There is no testimony here that the instant case, or any other case for that matter, was assigned to more than one Court-Martial at the same time. Having in mind that this Court-Martial was set up in war time and in a foreign country, experienced legal personnel may or may not have always been available. While there is a definite statutory inhibition against one serving as Trial Judge Advocate and as defense counsel in the same case unless expressly requested by the accused,⁷ I find no restriction on one assigned as Trial Judge Advocate in one case serving even contemporaneously therewith as defense counsel in another case. The complaint is without merit.

5. Denied the right to have witness summoned in his behalf at trial.

Petitioner claims that he requested by letter through Army channels to the Commanding General, Western Base Section, that a witness, Technician Fourth Grade Sergeant Salvadore DeGesso, be summoned to testify for the defense at petitioner's trial and that no reply was received by petitioner as to whether or not the witness requested would be available.

At the hearing before this Court, Lieutenant Neville testified that acting on the request of petitioner he turned the name of the requested witness, together with...