United States v. Hiatt, 8455

• Decision Date: 15 March 1944
• Docket Number: 8536.,No. 8455,8455
• Citation: 141 F.2d 664
• Parties: UNITED STATES ex rel. INNES v. HIATT, Warden, et al. SAME v. STIMSON, Secretary of War, et al.
• Court: U.S. Court of Appeals — Third Circuit

141 F.2d 664 (1944)

UNITED STATES ex rel. INNES v. HIATT, Warden, et al. SAME v. STIMSON, Secretary of War, et al.

Nos. 8455, 8536.

Circuit Court of Appeals, Third Circuit.

Submitted on briefs February 21, 1944.

Decided March 15, 1944.

Appellant for himself.

Herman F. Reich, Asst. U. S. Atty., of Lewisburg, Pa., for appellee.

Before MARIS and JONES, Circuit Judges, and BARD, District Judge.

MARIS, Circuit Judge.

These are appeals by the relator from two orders of the district court dismissing his petitions for writs of habeas corpus. The facts are sufficiently stated in the opinions of the district court, 50 F. Supp. 756, 52 F.Supp. 425, and need not be repeated here. The district court declined to issue the writs and dismissed the petitions because it concluded that the facts alleged by the petitioner did not make out a case for habeas corpus. The basic issues which the relator sought to raise were all involved in a prior habeas corpus application made by him in the Eastern District of New York and were decided adversely to him by the district court and on appeal by the Circuit Court of Appeals for the Second Circuit.¹ United States ex rel. Innes v. Crystal, 131 F.2d 576, certiorari denied 319 U.S. 755, 63 S.Ct. 1164, 87 L. Ed. 1708, rehearing denied 319 U.S. 783, 63 S.Ct. 1173, 87 L.Ed. 1727.

The relator urges that the Circuit Court of Appeals for the Second Circuit did not pass upon certain of his present contentions including his contention that the general court-martial which convicted him of assault with intent to commit sodomy lost its jurisdiction over him because it heard the trial judge advocate in his absence, a procedure which, he contends, violated the due process clause of the fifth amendment to the Constitution. The circuit court of appeals stated that it did not deem it necessary to pass upon this contention because it found that the record of the trial did not disclose the facts to be as alleged by the relator. Upon these appeals, however, we must assume that the relator's allegations are true² since the question before us is whether the district court erred in refusing the issuance of writs under which their truth might be inquired into. The relator's allegations raise the question whether the proceedings of the court-martial failed to accord him due process of law. Before we reach the merits of this contention we must consider whether the writ of habeas corpus is sufficiently broad to bring such a question within the purview of a civil court.

The writ of habeas corpus is used to obtain an adjudication of the alleged unlawfulness of a person's detention.³ Where the detention is by virtue of a sentence of a court the inquiry is ordinarily concerned with the jurisdiction of the court. This was the rule as to the scope of inquiry in habeas corpus proceedings in which the confinement resulted from the sentence of a civil court.⁴ It was likewise the rule where the confinement resulted from a judgment and sentence of a court-martial. Thus it was held that a civil court in habeas corpus proceedings could inquire whether the court-martial was properly constituted,⁵ whether it had jurisdiction of the person and subject matter,⁶ and whether it had power to impose the sentence which it did impose.⁷ Only questions dealing with jurisdiction were thought to be proper subjects of inquiry.⁸ In recent years, however, the use of the writ of habeas corpus in the federal courts to test the validity of a conviction for crime by a civil court has been extended to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused and where habeas corpus is the only effective means of preserving such rights. This is so where the alleged invasion of constitutional rights is founded upon the due process clause as well as where the specific guarantees of the Constitution are invoked.⁹

The question at once arises as to the circumstances under which a person convicted of a crime, who relies upon an abuse of power rather than a want of it, may in a habeas corpus proceeding be found to have been denied due process of law. This question has been cogently answered for us by Justice Roberts in Lisenba v. California, 1941, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, in which case he said:

"As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."

Justice Roberts cited as illustrations of what he meant by the denial of fundamental fairness which would amount to a deprivation of due process the cases of Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, in which the trial was dominated by mob violence in the court-room, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406, in which by reason of the fraud, collusion, trickery and subornation of perjury on the part of those representing the State the trial of the accused resulted in his conviction, and Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, in which by threats or promises in the presence of court and jury a defendant was induced to testify against himself.

We think that this basic guarantee of fairness afforded by the due process clause of the fifth amendment applies to a defendant in criminal proceedings in a federal military court as well as in a federal civil court. An individual does not cease to be a person within the protection of the fifth amendment of the Constitution because he has joined the nation's armed forces and has taken the oath to support that Constitution with his life, if need be. The guarantee of the fifth amendment that "no person shall * * * be deprived of life, liberty, or property, without due process of law," makes no exception in the case of persons who are in the armed forces. The fact that the framers of the amendment did specifically except such persons from the guarantee of the right to a presentment or indictment by a grand jury which is contained in the earlier part of the amendment makes it even clearer that persons in the armed forces were intended to have the benefit of the due process clause. This is not to say that members of the military forces are entitled to the procedure guaranteed by the Constitution to defendants in the civil courts. As to them due process of law means the application of the procedure of the military law.¹⁰ Many of the procedural safeguards which have always been observed for the benefit of defendants in the civil courts are not granted by the military law. In this respect the military law provides its own distinctive procedure to which the members of the armed forces must submit. But the due process clause guarantees to them that this military procedure will be applied to them in a fundamentally fair way. We conclude that it is open for a civil court in a habeas corpus proceeding to consider whether the circumstances of a court-martial proceeding and the manner in which it was conducted ran afoul of the basic standard of fairness which is involved in the constitutional concept of due process of law and, if it so finds, to declare that the relator has been deprived of his liberty in violation of the fifth amendment and to discharge him from custody. Accordingly the allegations of the relator must be examined to ascertain whether even if they were proved to be true it would still have to be concluded that he had failed to establish any fundamental unfairness in his trial by the court-martial which convicted him.

The relator alleges that on June 22, 1942, after the evidence was all in and the summations had been made and after the court-martial had closed to deliberate upon its findings, the court, instead of proceeding to vote, called in...