Schilder v. Gusik, 10978.
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | SIMONS, McALLISTER and MILLER, Circuit |
| Citation | 180 F.2d 662 |
| Parties | SCHILDER v. GUSIK. |
| Docket Number | No. 10978.,10978. |
| Decision Date | 05 June 1950 |
180 F.2d 662 (1950)
SCHILDER
v.
GUSIK.
No. 10978.
United States Court of Appeals Sixth Circuit.
March 20, 1950.
Writ of Certiorari Granted June 5, 1950.
Alan R. Browne, Office of the Judge Advocate General, Washington, D. C., R. J. O'Donnell, and Loren G. Windom, Columbus, Ohio, Reginald C. Miller, Lt. Colonel, Office of Judge Advocate General, Washington, D. C., on the brief, for appellant.
Morris Morgenstern and Bernard B. Direnfeld, Cleveland, Ohio, Morris Morgenstern,
Before SIMONS, McALLISTER and MILLER, Circuit Judges.
Writ of Certiorari Granted June 5, 1950. See 70 S.Ct. 1014.
SIMONS, Circuit Judge.
This is an appeal by the warden of the Federal Reformatory at Chillicothe, Ohio, from an order of discharge in a habeas corpus proceeding releasing the appellee from custody while under sentence of a military court for murder. The appellee Thomas Gusik was, in August, 1947, a member of a Guard Company stationed at or near Tirrenia, Italy. Early in the morning of August 13, two Italian civilians were shot and killed near the wire fence which enclosed the depot along Gusik's guard post. On September 18 Gusik was charged with the murder of these persons in violation of the 92nd Article of War, 10 U.S.C.A. § 1565. Trial was had on these charges before a general court-martial appointed by the Commander of the Port of Leghorn, U. S. Army. There was evidence which, if credited, tended to prove that Gusik had lured certain Italian black-marketeers with whom he had had contact to his post by a prearranged signal, that he had previously threatened to get even with their leader, that he had permitted them to approach and cut the wire without calling upon them to halt or firing a warning shot, and had fired a burst from his automatic carbine at the wire. Conviction and sentence followed.
The record of the trial was reviewed by the Staff Judge Advocate of the Port of Leghorn, who found the evidence sufficient to sustain the findings and sentence and that the court was legally constituted and had jurisdiction of the accused and the offense charged. The Commander of the Port of Leghorn approved the sentence. The Board of Review in the office of the Judge Advocate General, reviewed the case and likewise found the trial record legally sufficient to support the sentence, the court legally constituted and with jurisdiction. The Judge Advocate General approved the holding of the Board of Review but recommended to the Secretary of the Army that the sentence be reduced from life imprisonment to 16 years. His recommendation was accepted. Gusik being confined in the Southern District of Ohio, sued out a writ of habeas corpus in the court below and was discharged from custody on the ground that he was deprived of liberty without due process of law because no thorough and impartial pre-trial investigation had been conducted in compliance with Article of War 70, 10 U.S.C.A. § 1542, the trial Judge Advocate failed to call all material witnesses and Gusik was denied the effective assistance of counsel.
The warden appeals, challenges jurisdiction of the district court to grant the writ, contends that pre-trial investigation pursuant to Article of War 70 is not an indispensable prerequisite to Army court-martial jurisdiction, asserts the competency of the defense counsel as evidenced by his law degrees and wide experience in court-martial procedure, denies that there were errors at the trial but contends that if any were made they may not be collaterally attacked by petition for the writ of habeas corpus. The order of discharge is defended by Gusik not only on the grounds relied upon by the district judge but on the ground that the law member of the court-martial was not a member of the Judge Advocate General's Department and because errors at the trial which, separately considered, might not have been prejudicial yet in their cumulative effect constituted denial to Gusik of his constitutional right to due process of law.
For reasons to be presently set forth we find...
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Messelt v. State of Ala., Nos. 78-2282
...v. Lewis, 442 F.2d 29, 35 (7th Cir. 1971); United States ex rel. Wissenfeld v. Wilkins,281 F.2d 707 (2d Cir. 1960); Schilder v. Gusik, 180 F.2d 662, 665 (6th Cir.), Rev'd on other grounds, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950). The continued viability of this rule was reaffirmed i......
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United States v. Chamberlin, 10143.
...Tenth Circuit in McMahan v. Hunter, 179 F.2d 661, and in Spencer v. Hunter, 177 F.2d 370; and in the Sixth Circuit in Schilder v. Gusik, 180 F.2d 6622; and in the Fifth Circuit in Whelchel v. McDonald, 176 F.2d 2602, in Hiatt v. Burchfield, 179 F.2d 679; in Hiatt v. Fugate, 179 F.2d 679; in......
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Gusik v. Schilder, 110
...failed to call material witnesses, and because Gusik was denied the effective assistance of counsel. The Court of Appeals reversed, 180 F.2d 662. It did not reach the merits of Page 130 the case; it held that there was an administrative remedy which petitioner had not exhausted and that the......
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Persky v. Edwards
...court to hold in abeyance pending exhaustion of administrative remedies. See Gusik v. Schilder, 340 U.S. 128, 131-32 (1950), rev'g, 180 F.2d 662 (6th Cir. 1950); Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981); Seepe v. Department of the Navy, 518 F.2d 760 (6th Cir. 1975); Six v. Unite......
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Messelt v. State of Ala., Nos. 78-2282
...v. Lewis, 442 F.2d 29, 35 (7th Cir. 1971); United States ex rel. Wissenfeld v. Wilkins,281 F.2d 707 (2d Cir. 1960); Schilder v. Gusik, 180 F.2d 662, 665 (6th Cir.), Rev'd on other grounds, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950). The continued viability of this rule was reaffirmed i......
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United States v. Chamberlin, 10143.
...Tenth Circuit in McMahan v. Hunter, 179 F.2d 661, and in Spencer v. Hunter, 177 F.2d 370; and in the Sixth Circuit in Schilder v. Gusik, 180 F.2d 6622; and in the Fifth Circuit in Whelchel v. McDonald, 176 F.2d 2602, in Hiatt v. Burchfield, 179 F.2d 679; in Hiatt v. Fugate, 179 F.2d 679; in......
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Gusik v. Schilder, 110
...failed to call material witnesses, and because Gusik was denied the effective assistance of counsel. The Court of Appeals reversed, 180 F.2d 662. It did not reach the merits of Page 130 the case; it held that there was an administrative remedy which petitioner had not exhausted and that the......
-
Persky v. Edwards
...court to hold in abeyance pending exhaustion of administrative remedies. See Gusik v. Schilder, 340 U.S. 128, 131-32 (1950), rev'g, 180 F.2d 662 (6th Cir. 1950); Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981); Seepe v. Department of the Navy, 518 F.2d 760 (6th Cir. 1975); Six v. Unite......