Richards v. Cox

• Decision Date: 16 May 1960
• Docket Number: No. 2845 H.C.,2845 H.C.
• Citation: 184 F. Supp. 107
• Parties: Lyman L. RICHARDS, Petitioner, v. Col. Weldon W. COX, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Respondent.
• Court: U.S. District Court — District of Kansas

184 F. Supp. 107

Lyman L. RICHARDS, Petitioner, v. Col. Weldon W. COX, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Respondent.

No. 2845 H.C.

United States District Court D. Kansas.

May 16, 1960.

J. R. Groff (court-appointed), Topeka, Kan., for petitioner.

Wilbur G. Leonard, U. S. Atty., Topeka, Kan., Lt. Col. Peter S. Wondolowski, JAGC Lt. Col. Thomas A. Ryan, JAGC Office of The Judge Advocate General, Dept. of Army, Washington, D. C., for respondent.

HUXMAN, Circuit Judge (assigned).

This cause came regularly on for trial on the 22nd day of March, 1960, at Topeka, Kansas, petitioner being present in person and by his court-appointed counsel, J. R. Groff, and the respondent being represented by Wilbur G. Leonard, United States Attorney, and Col. Peter S. Wondolowski. Thereupon, the cause being regularly called for trial, statements were made by the respective parties as to their contentions, and arguments were heard by the court. At the conclusion of the hearing, the case was taken under advisement and briefs were requested to be filed. These have been considered by the court. The court finds these facts.

Petitioner, while an active member of the United States Army, was convicted by a General Court-Martial convened in Korea on October 24, 1957, of assault with a carbine, as well as other offenses. He received a sentence of 10 years, dishonorable discharge from the service, and forfeitures. All review proceedings under the Military Code, 10 U.S.C.A. § 801 et seq., have been exhausted.

In this habeas corpus action, he challenges the legality of his sentence. His general contention is that the procedure under which he was tried was so grossly unfair as to deprive him of due process and give this court jurisdiction to review the proceedings under the decision of the Supreme Court in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 1049, 97 L.Ed. 1508. The philosophy of the Burns case is that where grave questions have been presented and fairly considered by the military court-martial tribunals, the law courts are without jurisdiction to review and consider the same questions. Law courts may interfere only to protect soldiers "from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness rather than finding truth through adherence to those basic guarantees which have long been recognized and honored by the military courts as well as the civil courts." In other words, it is only when the overall picture presented by the record is offensive to the concepts of common justice and fairness that a law court may intervene.

Considering this case in the light of this principle, the court is of the view that it is without jurisdiction and that the case therefore should be dismissed. This conclusion does not mean that the record is, in the court's opinion, free from errors or that it approves fully of the manner in which the trial was conducted.

Here are the facts of the case. After the commission of the offenses and prior to the filing of the charges, petitioner's commanding officer referred him to an Army psychiatrist, Captain Robert R. Komar, for observation and examination to determine his mental condition at the time of the commission of the alleged offenses. Captain Komar examined petitioner and submitted his report to petitioner's commanding officer in which he found petitioner legally sane both at the time of the commission of the alleged offenses and at the time of the examination. Pursuant to the Manual for Courts-Martial, the commanding officer forwarded the court-martial charges to the next superior officer with recommendation that petitioner be tried by general court-martial. The officer exercising summary jurisdiction and special court-martial jurisdiction referred the court-martial charges to an impartial investigating officer for the pretrial investigation required by the Articles of War. Petitioner was represented at the pretrial investigation by Captain Marshall Bailey who was subsequently appointed to represent him at the trial. The pretrial investigating officer interviewed all witnesses in the presence of petitioner and his counsel. He also considered Captain Komar's report. Petitioner and his counsel were offered the opportunity to cross examine all witnesses and to offer testimony of their own. At the conclusion of the hearing, the pretrial investigating officer recommended a trial by general court-martial. The charges and allied papers were forwarded to the officer exercising general court-martial jurisdiction with recommendations that the charges be tried by a general court-martial. This officer referred the court-martial charges and the report of the pretrial investigation and the recommendation of the commanding officer to the Staff Judge Advocate for consideration and advice, as required by the Articles. The Staff Judge Advocate reviewed the charges and the record submitted to him and advised the Convening Authority that the charges alleged offenses and that they were sustained by the evidence indicated in the report of investigation. He recommended trial by general court-martial. Subsequent to these proceedings, petitioner was tried by general court-martial.

The record reveals that during the trial, petitioner's counsel raised the question of sanity at the time of the offenses through the examination of witnesses who testified. Captain Komar, the Army psychiatrist, testified for the prosecution that petitioner was legally sane. Petitioner did not request that a Special Board of Officers be appointed to determine his mental condition.

After petitioner was found guilty, the record was referred to the Staff Judge Advocate for review. After an examination of the record, he submitted his written opinion to the convening authority finding that the findings of guilty and sentence imposed were correct in law and in fact, and recommended that the findings and sentence be approved. Based thereon, the sentence was approved. The convening authority then forwarded the record of trial to the Judge Advocate General of the Army for review by a Board of Review. The Board of Review in the office of the Judge Advocate General reviewed the entire record. Pursuant to petitioner's request, he was represented at all of these proceedings by qualified military appellate counsel designated by the Judge Advocate General. His counsel submitted an assignment of errors and made written and oral argument thereon before the Board of Review....