*1 MAYDEN, WARDEN GOSA Argued 1973.* No. 71-6314. December 1972—Decided June *Together with 71-1398, Warner, No. Secretary Navy Flemings, on certiorari to the United Appeals States the Second Circuit. *2 J.,
Blackmun, judgments announced the Court’s and delivered opinion, an J., JJ., in which C. and and Burger, Powell, White joined. Rehnquist, J., opinion concurring judgments, filed an post, p. J., Douglas, opinion concurring 692. filed an in the result part 71-6314, 71-1398, in in concurring No. in in the result No. post, p. J., Stewart, opinion concurring an 686. filed in the result 71-1398, in Douglas, J., joined, in dissenting No. which in 71-6314, post, p. J., dissenting opinion, No. 693. filed Marshall, J., joined J., joined, which Brennan, Stewart, and in which applies 71-6314, post, p. to No. 693. Solicitor argued peti- General Griswold the cause tioner No. 71-1398 and for No. 71-6314. respondent him With on the were Assistant briefs both cases Petersen, Attorney General Deputy Solicitor General *3 Lacovara, William A. Reynolds, Roger and Bradford Pauley. John R. argued petitioner the for cause Saalfield Perritt, in No. 71-6314. the brief Franklin On was H. Jr. Meltsner, appointment
Michael by the Court, 919, argued U. S. respondent cause and filed a for brief in No. 71-1398.† judgments announced the Justice Blackmun
Mr. opinion the Court and an in which The Chief Justice, join. and White, Justice Powell Justice Mr. Mr. Parker, In O’Callahan v. 258, 2, decided June 1969, Court, this a 5-3 vote, held that when a person military in service is charged with a crime that is id., not “service connected,” at is defendant despite entitled, military his status, to the benefit of important “two id., constitutional guarantees,” † Rowland Watts a filed brief League Workers Defense urging amicus curiae reversal in No. 71-6314 and affirmance in No. 71-1398. by jury and trial jury1 grand indictment
namely, court. civilian ab- “properly was that O’Callahan noted he committed military base when from sent his ibid.; was that there charged,” he which crimes with crimes; duties and his between no connection military post off the committed were the offenses that any performing not was the victim enclave; or that crimes of the that situs military; duty to the relating military control; or territory under occupied was the civilian courts offenses; that they peacetime were that question no offenses involved open; and were post security, or military authority, flouting of the military property. integrity Commandant, (1970), Later, Relford retroactivity scope “limited to certiorari granted we decided, v. Parker.” When of O'Callahan Relford held that an offense committed we U. S. 355 service, individual viola- military post on a an person property on security of another tion O’Callahan’s within post, connected,” was “service case, His qualified. Relford’s offenses so language. scope on the of O’Callahan did not went off thus, retroactivity. We concluded that reach issue issue, although having “important dimensions, both latter *4 collateral,” in other direct and was “better resolved liti- solely dispositive it would gation perhaps, be of where, Id., Cosa, the case.” at 370. One of the cases, now presents solely. issue case, before us The other Flemings, presents issue, solely. the but not course, yet Court, require
1 The
of
has not
held the indictment
binding
upon
ment of
Fifth Amendment
to be
the States.
California,
(1884);
Washington,
Hurtado v.
I No. petitioner Roy December 1966 James 71-6814. class, an airman third stationed at Warren Air Gosa, Wyoming, Force Base in tried a court-martial was of and convicted violation of rape, Art. Military Code Justice, §
Uniform S. C. 920. place The preceding offense took in what August, respondent peacetime,2 has stated to when Gosa city Cheyenne. was in At the he offi- time, was cially duty off and absent from the base on authorized leave. He was in uniform. The victim was not the military connected with to military per- related Shortly sonnel. after the incident Gosa was arrested by civilian authorities. He was unable to make bond detained pending preliminary hearing. did not complaining appear witness at the hearing. Gosa, was released. He accordingly, was taken into however, and custody, charged with Art. vio- A lation. general court-martial was convened. Gosa was tried and convicted. He was years’ sentenced to 10 imprisonment at hard labor, pay forfeiture and allow- ances, reduction rank to the pay lowest grade basic, airman and a bad conduct discharge. As required by Art. 61 of Code, S. C. 861, the convening § authority then referred the case to his staff judge advo- cate for review. The judge staff recommenda- advocate’s tion that findings sentence of the general court- martial be approved were adopted the convening authority. Pursuant Code, 66 of Art. 10 U. S. C. 866, the § case was referred to an Air Force Board of Review. That Board affirmed the conviction and sen- tence. On August 16, 1967, United States Court of Military Appeals petition denied a for review. 17 U. S. Arg. Tr. of 16. Oral
670 Art. 76 final, thereupon became The case A. 648.
M.C. course, subject, 876, §C. 10 U. S. Code, States in United recognized corpus exception habeas (1969). 349-350 348, Augenblick, 393 pro- review and the the trial throughout time At no power any question as raise did Gosa ceedings try him. tribunal O’Callahan, Gosa Court’s decision Following the in the corpus of habeas a writ for application filed an District for the Northern District Court States United Federal Correc- from the release seeking his of Florida con- then he was where at Tallahassee tional Institution with the United States filed he Subsequently, fined.3 sen- his motion vacate Appeals a Military petition was treated as conviction; this tence vote with by a divided and was denied reconsideration 327, M. A. C. opinions. S. accompanying also was application habeas (1970). C. M. R. that upon its determination by the District Court denied Denno, in Stovall promulgated the standards 293, cases, precluded and related retroactive (ND Supp. 1186 Fla. application of O’Callahan. 305 F. 1969). con- appeal, On face of a Government alleged connected, cession that the offense was not service Appeals for Circuit, judge the Court of the Fifth one dissenting, affirmed. 2d (1971). 450 F.
No. 71-1398. when the United States was formally at war, respondent James W. then Flemings, age class, a seaman second was stationed at the Jersey. Naval Depot Ammunition in New August On year Flemings failed to return on time from an 3 Gosa has since been released. Inasmuch as the District Court possessed jurisdiction application federal habeas when Gosa’s filed, prior was not defeated his release to the completion of proceedings application. LaVallee, on the Carafas 238-240
671 by three-day apprehended leave. He authorized was Pennsylvania police while he was in an automobile stolen Jersey. days two earlier in New was Trenton, Flemings military He charged turned over to authorities. was duty with unauthorized absence from during his station wartime and with theft of an automobile “from 4 possession of ... a civilian.” Brooklyn
A Navy court-martial was convened at the represented Yard. by Flemings, lieutenant, a reserve pleaded to guilty charges. the two He was sentenced years’ to three imprisonment, reduction in rank ap- to prentice seaman, and After discharge. dishonorable two years’ confinement he dishonorably was released and was discharged October 1946. 1970, Flemings instituted suit in the United States
District Court for the Eastern York, District New on relying O’Callahan and seeking compel to the Secre- tary of Navy overturn the court-martial conviction for auto theft and to military correct his with respect records dishonorable discharge. He did challenge validity not of his conviction for being absent without leave.
The District Court held that the auto theft offense was service connected the O’Callahan sense and that O’Gallahan applied was to be retroactively to in- validate the court-martial conviction on that charge. Supp. F. The Court of Appeals for the Second Circuit affirmed. F. 2d 544 (1972).
We granted certiorari in both cases resolve the conflict. 407 U. (1972).5 920 and 919 S. appears It automobile was owned a member of the Signal Corps being but the car was used him on purely personal errand when stolen. The owner compen was not sated for its use. 5 See Moseley, also Schlomann v. (CA10 1972), F. 2d 1223 denied, post, p.
cert. 919; Thompson Parker, Supp. 904, 308 F. (MD Pa.), appeal (No. 907-908 dismissed 18868, CA3 1970); and
II Parker, words use the Justice Mr. O’Callahan States, S. 394 U. United Desist v. employed Stewart past.” break with clear was “a 244, 248 harmonizing that, concluded the Court In O’Callahan 264, 265 41 M. R. C. Dillon, M. C. A. Mercer *7 application Military Appeals confined the Court of where when O’Callahan final were not to those convictions of O’Callahan 2, 1969. on June was decided The is divided. retrospectivity
Scholarly O’Callahan comment on Everett, nonretroactivity: O’Callahan following or favor predict Military Justice?, 1969 Duke or Millstone in v. Parker —Milestone Westbrook, Juris 886-889; Court-Martial 853, Nelson & L. J. Analysis of An Offenses: for “Civilian” diction Over Servicemen Note, (1969); Parker, 1, 39-46 v. 54 Minn. L. Rev. O’Callahan Limited Military Law-Court-Martial Jurisdiction Law-Constitutional 417, cases, 44 L. Rev. 423-424 Tulane to “Service-Connected” Jurisdiction-Military RETROACTivmr-Military (1970); Note, Con Be Vacated for Offenses Should victions Nonservice-Connected Note, Retroactively, (1972); CONSTITUTIONAL Tex. L. Rev. 405 50 LAW-Retroactivity Parker, 47 L. Rev. v. St. John’s O’Callahan (1972); Note, and Nice Subtleties of Constitutional 235 The Sword A.) 188, Parker, Loyola (L. n. L. Rev. 198 Law: O’Callahan v. 3 Comment, (1970); 67 Courts Martial-Jurisdiction-Service-Connected following predict 781, (1969). Crime, 793-794 The 21 S. C. L. Rev. Retroactivity retroactivity: Blumenfeld, After O’Callahan: or favor (1972); Analytical Approach, L. J. 551 60 Geo. An and Statistical Narrowing Wilkinson, Scope Jurisdiction: of Court-Martial (1970); Higley, Parker, 193, 197-201 L. J. v. 9 Washburn O’Callahan 27 Retroactivity: Proposition, for the Argument An O’Callahan Military (1972); Note, Parker, v. 85, A J. O’Callahan JAG 96-97 Baylor (1970); Note, Dilemma, 64, 22 L. Rev. 75 Jurisdictional Military Having Denial of Jurisdiction over Servicemen’s Crimes Courts, Military Cognizable 64 Nw. Significance and in Civilian No (1970). Fowler, 930, U. L. Rev. 938 See Birnbaum & O’Callahan Reljord Military Developments Parker: The Decision and Further (1971). Justice, 729, Ford. L. 739-742 39 Rev. compilation general comments on appears
A
O’Callahan
Commandant,
355,
(1971).
401 U.
n. 1
S.
RelFord
express
guarantees
the Fifth
and Sixth Amend-
respect
grand
with
ments,
jury indictment and trial
a jury,
power
civilian
with the
under
Congress,
| 8, cl.
I,
14,
Art.
“To make Rules
Constitution,
for the Government and Regulation of the land and
ordinarily
naval
Forces,”
may
try
tribunal
a serviceman charged
a crime that
with
has no service
connection.
the Court in O’Callahan
Although
did not
expressly
any prior
overrule
it did announce
decision,
a new constitutional principle, and it effected a decisional
prevailed
attitude
change
many
that had
decades.
The Court
long
consistently had recognized that
military status in itself was sufficient for the exercise
jurisdiction.
Singleton,
court-martial
Kinsella v.
234, 240-241,
Covert,
Reid v.
(1960);
1, 22-23
v. United
(1957);
States,
The approach new announced O’Callahan was cast, to be sure, “jurisdictional” terms, but this was “lest 'cases arising land naval forces, or in the Militia, when in actual service in of time War or public danger/ as used in the Fifth expanded Amendment, deprive to every member of the armed of services the benefits of an indictment by grand a jury and a jury trial of peers” (footnote omitted). his S.,U. 272-273. at The Court on emphasize went to “power the of Congress to make 'Rules for the Regu- Government and 14, cl. 8, Art. Forces,’ I, § and naval of the land
lation preserve those to in order read sparingly not be need as- it is For guarantees. important constitutional two Con- power to general express grant that an sumed guaran- harmony express with to be exercised is gress for Id., 273. basis at Rights.” the Bill of tees obviously was in O’Callahan holding “jurisdictional” the impor- recognition of awareness and increasing and Fifth embodied values tant constitutional the need extend the Faced with Amendments. Sixth widely possible, as Amendments of those protection power of Con- respecting time the same while Regu- for Government and “Rules make gress id., at Forces,” Court, of the land and naval lation necessity restricting the exercise 265, heeded the with to those crimes jurisdiction by tribunals appropriate and beneficial connection as an a service abso- deemed limitation “to narrowest troops lutely discipline among to maintaining essential Quarles, Toth v. 11, in active service.” appropriate That O’Callahan dealt exercise with jurisdiction by military apparent from tribunals Singleton, supra, Kinsella v. where the Court ruled that does Necessary Proper Clause, I, 18, Art. cl. 8, § not enable Congress to broaden the term “land and naval Forces” in Art. cl. include de- I, § a civilian pendent accompanying member of the Armed Forces overseas. held, such a it was a civilian de- case, pendent Ill is entitled Art. safeguards of the Fifth and Amendments, Sixth and conviction *9 constitutionally court-martial is not permissible: “But power to 'make Rules for the Govern- ment Regulation of the land and naval Forces’ bears no limitation as offenses. power there only the creation offenses granted includes If punishment therefor. civilian fixing but the and naval dependents are included the term ‘land they subject full all, power Forces’ are to the capital create as granted Congress therein to noncapital well as This Court cannot offenses. on case- expand power, diminish and either power or by-case basis on a there balancing III against safeguards granted Congress Article process and the Fifth and Sixth Due Amendments. cannot neither enlarge power. create ... It deals power with nor with but with their jurisdiction, exercise.” 361 S.,U. at 246.
Although emphasizes the decision in O’Callahan difference in procedural protections respectively afforded military and the civilian the Court cer- tribunals, tainly hold, did not or even prosecution intimate, in a court of a member Armed Services for a nonservice-connected crime was so unfair to be void ab Rather, initio. prophylactic rule there for- mulated protective “created a umbrella en- serving to newly hance” recognized principle. constitutional Michigan Payne, U. S. 47, That recognition and effect are given to a theretofore un- recognized and uneffectuated principle constitutional does not, of course, automatically mandate retroactivity. Williams v. States, United Justice White made it Linkletter
Mr.
clear, citing
Walker,
676 retroactivity and choice between that “the
it was said value of way turns on the nonretroactivity in no involved.” guarantee constitutional Bloom Louisiana, and (1968), 391 U. S. Duncan are illustrative Illinois, (1968), Duncan, In decision. of the O’Callahan context in criminal cases by jury “trial that since held . . justice, American scheme . to the is fundamental jury guarantees right Amendment a Fourteenth they to be tried in all criminal cases which—were trial come within Sixth Amend- in a federal court —would omitted). at (footnote S.,U. ment’s guarantee” criminal held serious In Bloom the Court that 149. they summarily and that may punished not be contempts provision. jury to the trial subject are Constitution’s 201-210. two cases the Court S., those jurisdiction over a exercising ruled a state court contempt case, in a criminal or criminal defendant serious jury in effect request trial, to honor a for failing but Woods, jurisdiction. without Yet DeStefano by per curiam opinion, the Court application denied retroactive to those new constitu- The concluded did holdings. tional Court thus every follow that rendered in a Duncan or judgment Bloom situation, prior in a to the decisions those cases, by infected to be null and was so unfairness as void. analysis pertinent application The same has to these very cases, it leads us to the similar conclusion that by validity military of convictions now tribunals, said jurisdiction inappropriately to have exercised over non- sufficiently service-connected offenses'is not in doubt so as to the reversal of all require such ren- convictions provided dered since 1916 when Congress trials for civilian offenses persons committed Act Aug. Armed 29, 1916, Services. c. Stat. 652. clearly pro situation is opposing contrasting
vided made argument respondent Flemings retroactivity effect that of O’Callahan is *11 be determined and is controlled United States v. U. S. Currency, Coin & In U. 715 (1971). 401 S. that case the Court held that its decisions in Marchetti v. United States, States, 390 U. 39 Grosso v. (1968), United (1968), 390 U. S. precluding the criminal conviction of gambler properly who asserted his Fifth Amendment privilege against self-incrimination as a for reason his to register failure and to pay tax, the federal gambling applied be retroactively would so as for to invalidate feiture proceedings upon under 26 U. S. C. 7302 ensuing § n & invalid conviction. To Coin Cur suggest the. rency is controlling ignore important distinction between that case and these. There the Court deter retrospective application mined that of Marchetti and Crosso required they was because “dealt with the kind of conduct that cannot constitutionally punished be in instance,” first S., 723; it conduct was “constitutionally immune from punishment” any court. Id., at 724. O’Callahan,
In on the other hand, the offense was one for which the defendant was not immune in any so court. The question was not whether O’Callahan could have been prosecuted; was, instead, one related to the forum, is, as we whether, said, have the exercise of jurisdiction military tribunal, pursuant to an act Congress, over his nonservice-connected offense was appropriate when balanced against important guaran- tees of the Fifth and Sixth Amendments. The Court concluded that the circumstances there presented the jurisdiction exercise was not appropriate, and fash- ioned limiting a rule the exercise of juris- court-martial protect diction order to the rights to indictment and jury trial. The Court did not hold that a authority without been always had was
tribunal offense. a nonservice-connected over exercise Ill our not end does course, conclusion, foregoing accorded should O’Callahan as to whether inquiry application. retroactive retrospectivity Term, this earlier decided two cases an issue. also decision constitutional a new suc- concerned (1973), Neil, U. S. 505
Robinson v. of- alleged prosecutions state municipal and cessive claim circumstances, and a the same arising from fenses intervening this Court’s based on jeopardy, of double Maryland, Benton decisions rec- Florida, We S.U. and Waller *12 new “charting Linkletter Court was the that ognized S., at 409 U. retrospectivity area, ground” obviously ibid., succeeding cases,” “Linkletter and that Denno, S., 297, established 388 U. at including Stovall v. Robinson, that determining retroactivity; standards for itself the Linkletter readily lend however, did not cases dealt with Linkletter and its related analysis; that guarantees procedural rights methods; trial and that and procedural retroactivity “cannot, related rules conveniently purposes, lumped together terms analysis.” Neil, U. Robinson v. at 508. S., Michigan Payne, v. (1973), U. S. 47 we were retroactivity concerned with of North the Carolina v. Pearce, 395 U. and S. the standards promulgated respect with to an judge-imposed increased sentence on retrial after a appeal. successful We there employed the Stovall criteria and held Pearce was that applied retroactively. not to be present In the cases we are not course, concerned, with procedural or trial rights exemplified as is methods, by the decisions concerning rule exclusionary (Link- letter), right (Stovall), confrontation adverse com- ment on a defendant's (Tehan failure to the stand take Shott, v. 406 (1966)), and a confession's admis- sibility (Johnson New Jersey, (1966)). S.U. Robinson, But neither are we were in concerned, we a prevent with right operates constitutional another trial all. taking place concern, from at Our instead, is with appropriateness of the exercise jurisdiction by military a forum.
These cases, closely parallel therefore, DeStefano Woods, supra, appli where the Court denied retroactive cation Louisiana, to Duncan Bloom v. Illi supra, and nois, supra, in trial had jury each which a right been In denying retroactivity, integrity enunciated. of each of the earlier without proceedings, jury, recognized. applied was the test DeStefano S., Similarly here, Stovall U. test. 392 633-635. then, three-prong pertinency, test of Stovall has by proceed Flemings' claims we to measure Gosa’s and “(a) test directed to to be served purpose (b) the new reliance law extent of the standards, (c) enforcement on standards, authorities the old on justice effect the administration of of a retroactive application of new at 297. S., standards.”
A. Purpose. pur- “Foremost is the among these factors pose to be served new constitutional rule.” *13 States, Desist v. United 244, opinion States, his plurality the Williams v. United S., emphasized Mr. Justice White “the major purpose where of new doctrine constitutional to overcome” a aspect substantially is trial impairs “that function,” its truth-finding rule given new is com- plete effect, retroactive and good-faith either reli- “[n] ance” nor impact “severe on the justice” administration of require suffices to prospectivity. major whether therefore, is concern, initial
Our overcome was to O’Callahan holding in of the purpose substantially impaired military trials which aspect an question into brought process and truth-finding rendered verdicts accuracy guilty of all the that a fact however, the time, the same tribunals. At relia- or enhance improve incidentally rule tends new retroactive the rule’s itself mandate does not bility Jersey, 384 New in Johnson v. application. The Link- repeated suggested what had been atS., U. retroactivity Tehan, determine that “we must letter and of the traits peculiar by looking ‘in each case’ ” specific question’ ‘rule “ whether question that the emphasize we [f]inally, does or procedure criminal a constitutional rule of fact-finding reliability enhance the does not . degree. . . necessarily at trial is a matter process proba- a question are thus concerned with We account, factors, take other among bilities must of the are avail- safeguards extent which other protect able integrity truth-determining process at trial.” 384 U. at 728-729. S., Michigan Payne, See S., Thus, at 55. retro- activity required by determination that old standard was not the most effective vehicle for ascer- taining the truth, or that the truth-determining process has been aided somewhat by the new standard, or that one of purposes several in formulating the new standard was to prevent distortion in process. opinion
Although in O’Callahan was not uncritical of the military system of justice, and possible stressed command influence and the lack of certain procedural safeguards, S.,U. at 263-266, the decision there, as pointed has been above, certainly out was not based on any conviction that the court-martial lacks fundamental *14 integrity truth-determining process.6 its our Indeed, itself subsequent ruling our con- indicates Retford military clusion proceedings basically criminal are not unfair, clearly approves prosecution for in a mili- Relford tary of what is a court, crime, otherwise civilian when present factors are that establish the offense’s “service S., connection.” at 364-365. See Mr. Chief Jus- tice Warren’s The paper, Bill of and Rights the Military, 37 N. Y. L. (1962). U. Rev. 188-189
It, course, would demean rights the constitutional to indictment and jury trial to assert those guarantees play do not some role in assuring the integrity of the truth-determining process. right jury “[T]he trial generally prevent tends arbitrariness and repres- sion.” Woods, S.,U. at 633. The DeStefano same mission is fulfilled by the indictment right. But a policy prevention directed at and arbitrariness repression is not confined to the truth-determining proc- ess. It concerned, with well, larger range possible prosecution evils: that is malicious, prosecutorial overzealousness, excessiveness of sentence, and the like. very These ingredients present were also in the back- protections There are some system not afforded the accused in counterpart. example, civilian For Art. Code, 832, requires 10 U. S. C. “thorough impartial and § inves tigation” prior trial, prescribes rights accused the to be advised of charge, present to have counsel investiga at the tion, to cross-examine there, adverse present witnesses and to exoner ating evidence. It is not difficult to imagine, also, the situation defendant, where a service, may who is in well receive a more objective hearing in a court-martial than from jury a local of a community that military presence. resents the Military Uniform Code of Justice was not in effect when Flemings charged pleaded guilty. But the fact that his proceeding place took present under predecessor Code’s is no inevitable indication of basic Wilson, unfairness. See Burns v. U. S. 137 *15 not did the Court Yet, Bloom. and in Duncan
ground newly rights the retroactive necessary to hold find those cases. by established major that the indicates in O’Callahan said
Nothing remedy a defect towas decision of that purpose Rather, military trial. the process truth-determining to right Amendment Fifth of guarantees the broad right Amendment the Sixth and jury indictment grand heavily in limitation weighed jury to trial “ pos- least ‘the of court-martial exercise ” Toth v. proposed,’ end adequate to the power sible from taken phrase Quarles, 11, 350 U. Dunn, 204, Anderson v. Wheat. in O’Callahan enunciated the rule purpose
The behind retroactivity. does thus not mandate we repeat respect factor, to this Reliance. With B. that, before emphasized above, namely, what has been O’Callahan, the exercise the law was settled that military jurisdiction an committed allegedly over offense by appropriately was based a member of the Armed Forces was not military on and status of the defendant dependent on of the offense. There the situs nature military justifiable and extensive reliance specific rulings and all on this others Court. Military appropriately authorities acting pursuant were to provisions of the Military Justice, Code of Uniform 2, Art. C. and § its predecessors, could not be said civilian attempting usurp authority. military The to be is not for faulted its on reliance law as it stood before O’Callahan and for anticipating "clear break with past” O’Callahan entailed. The reliance factor, too, favors prospectivity.
C. on the Administration Justice. Effect Woods, S., Court, DeStefano considering the retroactivity of Duncan and Bloom, at- “the effect special significance tached the fact that on retroactivity law enforcement holding general would be justice significant, the administration of very in a jury because the denial of has occurred trial factor very present number of cases.” same great significance here, with like courts have functioning 1916, appropriately been in this area since they from this Court’s assuming successive holdings, properly were in cases exercising jurisdiction concerning nonservice-connected offenses committed allegedly *16 servicemen.
A glance reports mere at the of the United States Military Court of Appeals prose- discloses the volume of military cutions in Retrospective tribunals. application of O’Callahan only would not affect of validity many criminal convictions but would in adjust- result controversy ments and over back pay, benefits, veterans’ pay, retirement pensions, and other matters. In addi- of tion, task a establishing service connection on the basis of a record or in stale a new trial prove would impossible formidable if in many not cases, since at time the record made question was whether there was a service connection of no importance.
Gosa and press upon Flemings aus recent law review article. Blumenfeld, Retroactivity After O’Callahan: An Analytical and Statistical Approach, 60 Geo. L. J. 551 (1972). The author of that article (1) concludes: On of a sampling basis of cases reviewed the Court Military of Appeals and Army Court Military of Review between 2, June (the date of O’Calla- han), and December 31, only about 1% general court-martial cases were Id., service connected. (2) at 580 n. 147. “[V]ery few” sought servicemen have collateral review of their convictions since O’Callahan Id., was decided. at 578 n. 141. The author asserts, however: “Even if the number of requests for relief sent expectations, exceed should military departments and personnel of abundance with an Department, Defense quick insure a develop procedures could computers, necessary military has The Id., (3) at 572. review.” review. petitions and claims machinery process ruling impact of financial Id., (4) 571-575. most servicemen not be since great would retroactivity of would crimes not nonservice-connected convicted any pay and, pension or retirement entitled to Id., exceed $1,500. return should average event, at 574-575. M. R. 264, 41 C. Dillon, M. A. 19 U. C. S. Mercer Military Appeals, States the United § C. judges, of civilian composed tribunal system justice, with the familiar uniquely
but A factor, too, is pertinent vein.7 spoke another possibly persons not all the entitled recognize that “We have or a sufficient financial would the initiative review relief bringing appli expense justify interest to the time suits number of court-martial con cations. A reliable estimate application of victions be overturned a retroactive that could year nearly impossible O’Callahan to secure. For one fiscal *17 Navy, Army, approxi Force of the the and the Air conducted mately 74,000 general only special and If courts-martial. smallest of these and those fraction courts-martial conducted years issue, other since 1916 involved an O’Callahan it is an understatement that thousands be of courts-martial would still subject range extensive, involving review. The of relief could be military by such departments actions as determinations of changed, whether of discharges the character be must and considera tion of pay, pay, retroactive entitlement retired pensions, com pensation, Among and veterans’ other benefits. the difficulties would necessity be the reconstructing pay grade of that a member of the armed forces would have except attained for the sentence of court-martial, by the invalidated complicated task the existence personnel system involving of a only qualified selection of the best eligibles providing for the elimination of specified others after years of service.” 19 U. C. A., 267-268, R., M. at 41 C. M. 267-268. emerged Circuit, case in the Flemings’
until Second military against apply- civilian and the courts had ruled O’Callahan thus no ing retroactively; there was decisional impetus to encourage litigation. necessarily must impact
We also consider the of a retroactivity on holding society the interests when the new constitutional standard promulgated bring does not question accuracy prior into adjudications guilt. Wholesale invalidation of years convictions rendered ago could well persons mean that convicted would be freed retrial, without witnesses, particularly ones, may no be longer readily may available, memories have may faded, incomplete records physical missing, may evidence have disappeared. Society must not be made to tolerate a result of kind when there question significant no concerning accuracy process which judgment was or, in other rendered words, justice when essential is not involved. conclude that the purpose
We be served O’Calla- han, the reliance on the law it stood before that de- as cision, and the of a effect holding retroactivity, all that O’Callahan be require accorded prospective applica- only. tion so hold.8 We
IV Flemings urges that, also because his court-martial proceeding convened in Brooklyn, was whereas the auto place Jersey theft took New and his in Pennsyl- arrest he vania, deprived was of the right to a trial Art. vicinage, guaranteed cl. 2,§ Ill, Flemings’ case, Secretary argues, alternative, require O’Callahan does not the invalidation of theft the auto con viction because the offense was respondent committed while the during said, absent without reason, leave wartime. For that it is *18 the offense was service connected under the of rationale In Relford. holding view reach, our on the issue of retroactivity, do not we resolve, and need not argument. this alternative mili- before the not raised claim This Constitution. I an Article is military tribunal Moreover, court. tary independent jurisdiction with court legislative Ex III. by Article defined created and power judicial McDon- (1942); Whelchel Quirin, 1, 39 317 U. S. parte Mendoza- Kennedy v. (1950); ald, court- General Martinez, territorially to restricted is not martial Winthrop, district. W. particular State limits of a 1896). (2d ed. 104-105 and Precedents Military Law relevance primary has requirement vicinage And the demonstrated any Flemings has event, by jury. trial prejudice. no affirmed; in No. 71-6314 judgment 71-1398 is reversed.
No. ordered.
It is so in the result concurring Douglas, Mr. Justice result concurring 71-6314 and part No. No. 71-1398. respondent
I with Mr. agree Justice Stewart crime.1 committed a “service connected” Flemings I down put Gosa case think the case should be As to the judicata the dis- on whether res controls reargument goes case. The that it position argument does follows: rape before a mili-
Petitioner Gosa was tried for tary tribunal and convicted. The went through case hierarchy of review within the establishment affirmed, and after conviction and sentence were Flemings respondent In the case in time war went AWOL military charge against him was stole a car from a civilian. The duty during an wartime and unauthorized absence from his station only guilty; pleaded theft a car and the from a civilian. He brought years sought of his action came later when he correction military records.
petition for review was filed with the of Military Appeals (a by Congress); civilian court created but that place court denied review.2 The events described took O’Callahan 2, 1969, 1966 and 1967. On June we decided Parker, v. court-martial invalidating rape for military by conviction committed off the base a serviceman who was on leave.
O’Callahan in respect that is on all fours with case, officially instant here petitioner off-duty, for clothes, civilian raped and was found to have a civilian way in no connected military, with the while he inwas Cheyenne, Wyoming, Air near Warren Force Base but not on the base.
O’Callahan was decided in 1969 and in reliance on it petitioner Gosa started this habeas corpus action3 seeking Military The Uniform Justice, providing Code of in after vestigation charge general before a is referred to a court-martial in goes (a), Art. (b): on to state Art. 32
“The charges against accused shall be advised of the him and of right represented his investigation by to be Upon that counsel. request his represented by own he shall be pro- civilian counsel if by him, military vided or counsel of own if his selection such counsel reasonably available, by counsel detailed the officer exer- cising general court-martial over the At command. investigation opportunity given full shall be to the accused to against cross-examine they witnesses him if are available and to present may anything behalf, he desire in his own either in defense or mitigation, and investigating officer shall examine available requested by witnesses charges the accused. If the are forwarded investigation, they after the accompanied shall be a statement of testimony the substance of the taken on copy both and a thereof sides given (b). shall be to the accused.” 10 U. S. C. §832 Petitioner had Military counsel before the Appeals, Court of one designated Army; only “the merits” of the conviction were question raised, being “jurisdiction” no relating raised to the military. provides Title 10 U. S. C. 876 review of court- § martial convictions shall be “final and “binding upon conclusive” and military sentence. under the his confinement from release de- our constitutional one whether question us before been retroactively applied has cisions should Walker, 381 U. S. Linkletter occasions. numerous on Desist Denno, 293, 297; *20 618; Stovall Woods, 392 States, 244; 394 U. S. United DeStefano S. 631. U. retroactivity the involved date which all in cases
But is judgment court whose the been whether has question of in interests required be the reviewed should being under the new retry accused the justice substantial first by after the the Court rule announced constitutional new constitutional but before the completed been had trial United in the we noted ... of United States.” As . . all . courts by way Augenblick, 348, 349-350, of habeas relief 393 S. States v. U. finality corpus exception clause. an in opposi- in his brief by the General suggested It Solicitor was of in petition file for writ certiorari for leave to to a motion tion States, the statutes that while United Crawford Military Appeals and of “final judgment made of the Court the conclusive,” person confined corpus would available to a habeas Court if he is error coram nobis District and writ of intending (c) (probably 28 confined; citing 25 U. S. 1254 §C. Brown, 103, 106 1. (1)); Hiatt v. n. S. C. U. U. § by way obtaining of relief In that view one who unsuccessful court, be able to seek review coram nobis in the district would ultimately by in this appeals of certiorari Court. court the question by Court, That was not resolved this since we denied question case. In the case the certiorari Crawford Crawford of tendered on the merits was whether restriction court-martial membership officers, excluding to senior noncommissioned entire statutorily eligible prospective members, de- classes of court-martial prived petitioner process of due and violated 10 U. S. C. 825 so § jurisdiction. deprive as to For court-martial the decision Military Crawford, Appeals see United States Schiesser, by M. A. 35 C. M. R. 3. And see Trial C. Peers: Courts-Martial, Enlisted Members on Cath. L. Rev. applied measure decision was announced. The or retroac- prospective whether the new rule should be in Stovall v. tive4 was the stated three-pronged test Denno, resolu- supra, guiding at 297: “The criteria tion of to be question implicate (a) purpose reli- standards, (b) served the new the extent ance law enforcement authorities on old standards, (c) justice the effect of a on the administration application retroactive of the new standards.” question Here the civilian, is whether a rather than a tribunal military, ques- should have tried him. Does the tion “jurisdiction” whether the tribunal can be contested at this late date turn on whether res judicata bars that inquiry?
Petitioner Gosa in the review of his conviction military tribunal never question raised raised *21 O’Callahan.6 If “constitutionally he was from immune punishment” in any court, problem we would have the presented in United States v. Coin Currency, U. S. & 401 715, petitioner 723-724. But was not tried aby
4 Military Appeals The of Court decided that O’Callahan v. Parker only applied would be to those convictions that were not final before the date of that Dillon, decision. Mercer v. 264, 19 U. S. C. M. A. 41 C. M. R. purposes historically For corpus, of habeas used to test “jurisdiction” try of defendants, tribunals to concept has been broadened to guarantees. include constitutional in Johnson v. Thus Zerbst, 458, compliance 304 U. S. with the constitutional mandate that an accused is entitled to counsel was held to be “an essential jurisdictional prerequisite authority to a federal deprive court’s to Id., an liberty.” accused of his life or 467. The rule announced “jurisdiction” used way in an innovative with purpose giving of up counsel to defendants who to the time of our in Gideon decisions Wainwright, 335, Argersinger Hamlin, U. S. 407 U. S. 25, lawyers no represent had commonly to them and were thus deprived rights. of their constitutional 2, supra. See n. by vigilantes but eager by court
kangaroo Congress established framework within the authorities Military Justice. Code the Uniform Deming, McClaughry v. unlike is somewhat The case constituted was court-martial 49, where U. S. Congress Act of who an army regular officers on volunteers. in judgment sit authorized were on sit incompetent held was court-martial an Act of plain violation because acted case authorized no tribunal There was therefore Congress. Consent challenged judgment. render the by law to in face confer could not tried be so Congress present In the cases of the statute. mandate the Code had authorized provisions of express in these of cases. types military tribunals to sit District v. Baxter State Drainage County In Chicot readjusted by Bank, municipal debts were which Congress an district under Act of a federal court The latter later be unconstitutional. Court held to this District, Cameron County was in Ashton v. ruling divided held that an ex- closely where a readjustment Act Bankruptcy tension of the to include a municipalities the debts of counties uncon- readjusted stitutional. Petitioner had its debts under Act, permitted which than less all of the outstanding plan. bondholders to agree plan That was consum- mated before the Ashton decision. Respondent was one of the nonconsenting bondholders. Ashton After the deci- *22 it brought sion suit on its bonds. The question before the in County the Chicot Drainage District case was the extent to which the Ashton case should be made retro- speaking active. Court, through Mr. Chief Justice said that Hughes, proceedings in the District Court complete “were conducted in conformity to the statute” question “no and that had been raised as to the regu- larity S., of the court’s action.” 308 U. at 375. Since of in- parties question had an to raise the opportunity validity they the less bound so, but did not do “were not Ibid. it.” they the decree because failed raise id., Hughes added, Mr. Chief at 377: Justice jurisdiction may “Whatever the contention as to whether it be, is that the boundaries a valid statute have been itself is transgressed, statute invalid, question still one for judicial If determination. the contention is one as validity, question is to be considered light standing party who seeks raise question particular and of its application.” id., He went say, on to at 378: judicata may pleaded only bar, as a
“[H]es respects actually matters presented to sustain or defeat right proceeding, asserted in the earlier ‘but respects any also as other available matter which might have been presented to that end/ Grubb v. Public Comm’n, Utilities [281 479].”
Petitioner claims, respondent as did in the Chicot County Drainage District case, that the tribunal that first adjudicated the cause acted unconstitutionally. At the time the military court acted, however, it was assumed to “jurisdiction” have “jurisdiction” its way no challenged in the review proceedings available to peti- tioner. Did the “jurisdiction” issue of for that case therefore judicata? become res
These are, brief, the why judicata reasons res argu- ably should lead to an affirmance in the Gosa case. Con- trary to intimations the dissenting opinion I have reached no position on the merits and would judg- reserve ment until the issue was fully explored on reargument. *23 judgments. concurring Rehnquist,
Mr. Justice
would
decisions
believe that
I
do
this.
O’Calla-
in
rule
announced
that
holding
support a
ap-
not be
Parker,
should
han
entered
convictions
to court-martial
retroactively
plied
O’Callahan, the Court
in that case.
decision
before the
not have
did
courts-martial
clearly
that
held
For
crimes.
“non-service connected”
for
servicemen
try
Mar-
Brother
by my
substantially
reasons stated
Neil,
In No. since only prospective any given event be in could not. rule analytical whether question arises application, be under- even should decision sanctioned that inquiry decided, O’Callahan, my wrongly inwas, opinion, taken. by Mr. forth the reasons set I would overrule for and S., dissenting opinion. Harlan his Justice 274-284. I followed, if O’Callahan were
In No. even 71-1398, of- my Brother Stewart. agree with the views period war, fense committed of declared during was official respondent furthermore while absent without For of the purposes leave from his duties. dichotomy “service connected” connected” —“non-service by O’Callahan, announced I any would hold that crime by a committed member the Armed Forces during time of war is “service connected,” and he can validly tried court-martial that offense. Cf. Relford Commandant, 401 U. S. 355
I therefore concur judgments Court, would affirm the judgment of the Appeals Court of 71-6314 No. and reverse No. 71-1398. *24 in No. 71-6314, Stewart, dissenting Justice
Mr. Douglas, by Mr. Mayden, joined Justice and, Gosa v. Warner in No. concurring the result 71-1398, Flemings. Parker, 258,
I in O’Callahan v. 395 U. S. dissented was and continue believe that that case to O’Callahan over- decided. Until unless wrongly I fully retro- however, given think it must be ruled, my for the Brother application active reasons stated post, page. persuasive dissenting opinion, Marshall’s this I join dissenting opinion applies to Accordingly, his 71-6314, Mayden. No. Gosa v. view, my
But opinion, dispose does not 71-1398, Flemings. No. Warner v. I think that a service- man who post deserts during congressionally his a time declared war steals an guilty automobile is of a “service connected” I offense. Accordingly, conclude respondent that the Flemings properly tried before a court-martial under O’Callahan. Cf. v. Com- Relford mandant, 401 365 (1971). For I reason this concur in the result Flemings reached Court in the case.
Mr. Justice Marshall, with whom Mr. Justice Brennan and Mr. Justice Stewart* join, dissenting.
I Mr. Justice Blackmun’s plurality by its opinion, efforts establish that Parker, O’Callahan v.
258 (1969), was not decision dealing jurisdic- with tion in its classic form, implicitly acknowledges that if O’Callahan were in fact concerned with adjudicatory *Mr. joins Justice Stewart opinion only this applies as it No. 71-6314. ante, See page. this mili- competency1 jurisdictional is, power —of —that fully necessarily would holding its tribunals, tary Walker, Linkletter g., e. cf. effect, retroactive forth puts now plurality true with the concerned was not O’Callahan the view but that courts-martial competency jurisdictional This rule. constitutional merely a new yielded decision plurality permits of O’Callahan characterization judge employed test three-prong case the in this apply Linkletter under rules retroactivity procedural newof States, 394 g., Desist United see, e. progeny, and its *25 Denno, 293, (1969); Stovall 244, 249 of that application surprisingly, (1967). And, have should that O’Callahan to the conclusion test leads I must respect, all due prospective effect. With only dissent. characteriza- plurality’s
I am unable to with agree be under- my view, only it can tion of O’Callahan. limits a constitutional dealing stood as decision with the military’s power over offenses com- adjudicatory of the plainly could more mitted servicemen. No decision power juris- involve the of a exercise limits tribunal’s particular clearly diction over offenses and thus more demand application. retroactive
A In holding that O’Callahan only pros- is to be given pective effect, plurality reject does not outright view that the jurisdictional decision was in nature. Yet clearly it reject does the contention that O’Callahan dealt question with a jurisdictional of true compe- tency, we are told that the decision “did announce a new constitutional principle,” ante, at 673, and that it really “dealt with appropriate exercise generally Judgments See 7, Restatement of comments at 41-46 § ante, be- tribunals,” at 674. The difference by military jurisdictional tribunal’s concerning tween a decision a is, adjudicatory the limits of its competency —that jurisdic- power appropriate “the exercise [its] —and me, here, tion” clear to at least where, is less than ultimately on the turns question “appropriateness” authority Art. I, under Congress’ extent of constitutional 8, 14, Regu- § cl. to “make Rules for the Government lation of the land and naval Forces.” But whatever the plurality seeks nature of the distinction that now draw, my opinion, obscure the essential cannot, in O’Callahan. character decision required O’Callahan this define the class offenses committed servicemen under Congress, constitutionally Art. I, 8, empower § cl. could try. tribunals The nature of the inquiry ultimate plain there from question upon which the Court “ granted certiorari: ‘Does court-martial, held under the Articles Tit. War, seg.,, U. S. C. 801 et juris- § have try diction to a member of the Forces who is Armed with charged commission of crime cognizable in a civil- ian court no and having military significance, alleged to have been off-post committed and while on leave, thus *26 him depriving of his constitutional rights to indictment by grand jury and trial petit a jury in a civilian ” court?’ 395 IT. at 261. The S., O’Callahan Court’s dis- cussion this consistently issue was couched in terms of 2 the jurisdiction of military tribunals; and, in dissent, Mr. Harlan, Justice framed too, the issue presented in the unmistakable terms “the appropriate subject-matter jurisdiction of courts-martial,” id., at 276. Even the Court of Appeals in No. 71-6314, while ultimately hold- ing the O’Callahan decision to be prospective only, acknowledged that the decision upon turned a deter- mination of “lack of adjudicatory power” “O’Cal- —that
2 S., See 265, 267, 395 U. 269, 272.
696 deny the to and structure framework foundation,
lahan’s into life judicial breath the breathed which legislation necessary basis O’Callahan, Sgt. that tried forum 3 450 of case.” type his to reach power in constitutional rel. ex States United 1071). See also (CA5 F. 2d 1972). (CA2 544, 549-550 F. 2d Flemings Chafee, v. ulti- nature jurisdictional evident Despite the attempts O’Callahan, plurality in presented issue mate Woods, 392 U. S. to this case to analogize DeStefano in the decisions that Court held where the (1968), Bloom (1968), Louisiana, 391 S.U. Duncan v. only pro- to have were Illinois, (1968), S. 194 Amendment that Sixth Duncan held spective effect. been cases had jury criminal of trial guarantee Amend- Fourteenth applicable to the States made jury trial right And Bloom established the ment. contempt proceedings. criminal serious the context of Linkletter offspring the other DeStefano —like determine retro- three-prong test applied have established activity rulings constitutional —involved or for the procedures for conduct of trial use new hardly O’Callahan such a evidence. But was case. pro- in O’Callahan not forth setting cedures which was constitutionally required adopt Had been proceedings. its the Court doing certainly so, case; this would analogy different Commandant, Mr. Jus Relford Blackmun, tice speaking Court, described the O’Callahan for the decision as follows:
“In O’Callahan ... , by vote, a five-to-three the Court held may try that a court-martial a member of our armed forces charged attempted rape civilian, with housebreaking, of a with with assault rape, alleged with intent when the were offenses off-post territory, committed on American when the soldier was leave, on charges and when prosecuted have been could *27 civilian court.” true, is appropriate. It then well might
to DeStefano O’Callahan out, now that the plurality points as the jury trial on lack of emphasis placed considerable part only a so system. But it did the court-martial determining proper analytic process of general of two essen- jurisdictions the competing reconciliation of civil and tially judicial namely, systems, distinct4 military systems basic concern justice. Court’s process preservation this was the fullest extent —to possible legitimate mili- consistent with the needs tary the fundamental civil our rights guaranteed —of Constitution and Bill Rights. Those civil rights were, words, the Court’s the “constitutional stakes the . . . litigation.” Parker, O’Callahan v. supra, at 262.
Thus, pointed the Court out one that tried before a military tribunal is without the benefit of not trial only by jury but also jury. Ibid. grand indictment Nor are the same rules of procedure evidence and applicable in proceeding, a factor affect- ing, for example, the defense’s compulsory access to id., process, n. 4. In addition, the Court was concerned with the fact the presiding officers at do enjoy courts-martial independence thought to flow from life tenure and undiminishable salary. To the contrary, the Court recognized that “the possibility of influence on the actions of the court-martial by the officer who convenes selects it, its members and the counsel on both usually who sides, has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate danger.” Id., at 264. In short, the Court con- 4 A serviceman convicted does, a court-martial course, ultimately judicial have access system to the by way federal of a petition for federal corpus. See, habeas g., e. Burns Wilson, (1953); S. 137 Gusik v. Schilder, 340 U. S. 128 *28 independent yet an is not court-martial
eluded that “[a] degree significant remains to a justice but of instrument by which mechanism the overall part of specialized Id., at 265. discipline preserved,” is military factors was these considering purpose The Court’s military system justice, in the require changes not to differences illustrate its “fundamental but rather to id., differences courts,” 262, at from . . the civilian . “ military tribunals 'to restrict compelled the Court essential absolutely deemed the narrowest to ” service,’ in active maintaining discipline among troops to id., Quarles, 11, Toth 265, quoting at from that the “crime (1955). As a Court concluded result, military jurisdiction must service con- to be under power . . . at that the of Con- ,” S., 272, nected so gress I, 14, under Art. cl. “make 8,§ to Rules the Gov- Regulation ernment and of the land and naval Forces,” exemption grand also the from the jury requirement of the Fifth Amendment for arising “cases the land or or in forces, naval when in Militia, actual service in time public of War or danger” are not expanded deprive to servicemen unjustifiably of their civil rights.5 The Court found that when an offense is not service 5Indeed, military even if the voluntarily provide elected to service men on before trial courts-martial panoply procedural with the full rights constitutionally required forums, in civil that would not affect the decision in Implicit O’Callahan. in O’Callahan is the fact that military system justice has never been understood to be constitutionally compelled provide many procedural rights courts, afforded the civilian always and thus it would remain free provide only that which is constitutionally necessary. It was understanding with an of what constitutionally required, not of military might what the elect provide, that the scope Congress' power I, 8, under Art. 14, cl. be, was, had to § defined in O’Callahan, S., see 395 U. at 261-262. It is this fact perhaps jurisdictional best demonstrates the true opposed procedural— —as nature of that decision. not significantly are the needs of connected, con- Congress' and thus that the limits implicated Art. cl. I, § over under power servicemen stitutional of “peacetime context passed, have been least offenses,” S.,U. at 273. of the O’Callahan
Certainly jurisdictional nature *29 previous by amply decision is demonstrated this Court’s McClaughry Deming, S. 49 decision upon power “the There the Court was called to decide of of an officer a court-martial for the trial convening an of troops], compose officer volunteers to [reserve entirely Army.” that court officers of Regular of Id., The Court at 53. determined that had Congress by Army directed statute that volunteer of officers only by tried composed court-martial of volunteer offi- cers. In light this determination the Court concluded:
“As to the officer to be no court, tried there was for it seems us it cannot be contended that men, not one of whom is authorized sit, law to but the contrary on all of whom are forbidden sit, can constitute legal court-martial because detailed to act as such court an officer who in making such detail contrary acted to and in complete vio- lation of law. Where does such a court obtain jurisdiction perform a single official function? How get jurisdiction it does any over subject-matter person or any over the individual? par- ticular tribunal is a mere creature of the statute, we have said, and must be created under provisions.” its Id., 64. at
In the same the Court vein, elsewhere stated: “A court- martial is the creature of statute, and, as a body tribu nal, must be convened and constituted in entire con formity provisions with the of the or else statute, it is jurisdiction.” Id., without at 62. Because of the flaw which flaw court-martial, a of the composition the court- issue of on the determinative considered Court court’s a lower affirmed the Court jurisdiction, martial’s officer’s corpus to secure habeas writ of of a issuance writ this custody. Significantly, from release lay only corpus clearly habeas when at a time was issued over the jurisdiction “no had the court-martial where of the subject-matter or the the defendant person Id,., 69.6 O’Callahan him.” charges against par of a composition with the concerned was not question fundamental but with court-martial, ticular power to estab constitutional Congress’ extent committed over offenses court-martial lish juris goes If former issue our servicemen. certainly the latter does. military tribunals, diction B O’Callahan, I con believe, understanding of With this *30 applica the retroactive trary plurality’s view, that prior de required our holding tion of our there Neil, (1973), 409 in Robinson v. U. S. 505 cisions Currency, 401 U. S. States v. S. Coin & and United retroactive (1971). 722-724 Robinson involved the Florida, in Waller 397 application of the decision v. (1970), guar U. S. 387 that the Fifth Amendment’s applicable made the Four antee, through States Amendment, person put teenth that no should be twice in jeopardy for the offense barred same an individual’s prosecution a single for offense both a and State municipality of State, is, that a legal subdivision U. S. Coin Currency State. & held retro-
6
Developments
See also
Corpus,
the Law —Federal Habeas
83
(1970).
Harv. L.
beyond
Rev.
1209
The Court moved
jurisdictional
limitation on
upon
collateral attacks
court-martial
con
Wilson,
in Burns
(1953).
victions
v.
Developments
701
prior determination
Fifth
active the
Court’s
compulsory
privilege against
Amendment
self-incrimina-
prosecution
tion barred the
for failure
gamblers
register
report
proceeds
and to
for tax
illegal gambling
States,
see Marchetti v. United
U. S. 39
purposes,
390
States,
Grosso
(1968);
(1968).
United
“Unlike some of retroactivity our earlier decisions, we are not here concerned with the implementation procedural of a rule which not undermine does accuracy basic of the factfinding process at trial. Walker, Linkletter v. (1965); Tehan Shott, 406 (1966); U. S. Johnson v. New Jer- sey, 384 Denno, U. S. (1966); Stovall v. Rather, Marchetti and Grosso dealt with the kind of conduct that cannot con- stitutionally punished in the first instance.” S.,U. at 723.
The Robinson adopted essentially the same view of the Waller decision concerning the Double Jeopardy and multiple Clause prosecutions by different sub- legal divisions of a single sovereign. See 409 S.,U. at 508. *31 In this case, too, we are concerned, not with “the im- plementation procedural of a rule,” but with an un- avoidable constitutional impediment prosecution to the of particular conduct. O’Callahan, as has been seen, the ultimate issue
was the extent of the constitutional power that underlies an offense Where tribunals. jurisdiction just there exists power, of that limits outside the
lies by court- trial to impediment of a constitutional much in Marchetti trial a civilian to as there existed martial self-incrimination against privilege to the Grosso due cannot It Clause. Jeopardy Double due to in Waller of limited are courts military tribunals that forgotten at Deming, S.,U. McClaughry v. jurisdiction. See They can- Watkins, 3 Pet. parte Ex 63; conferred has not authority Congress which exercise not is without authority Congress which much less upon them, fundamental this confer.7 It is power to constitutional of the de- application retroactive compels principle that cision O’Callahan. & Cur- distinguish U. S. Coin plurality seeks the former grounds that
rency Robinson on from being offender prevented right involved a prevented "an- right at and the latter a tried all ante, all,” at taking place other from trial merely in this case is underlying issue whereas jurisdiction try can committed service- which offenses they meaning; men. But these are distinctions without (1942) Judgments 7, b, pp. Cf. Restatement of comment 42-43 : § many competency “There are in which a situations court lacks Thus, judgment. although to render a a has State grant parties State, a divorce of domiciled within the a decree of empowered divorce rendered a court not entertain is which Similarly, judgment by justice suits for divorce is void. a a rendered peace justices of the void is if under the law of the State such are empowered subject action; as, to deal with matter example, justices where the action is one for tort and peace given power are no except also, actions contract. So given power where a is involving court to deal with actions no more designated amount, limiting than the statute amount ordi- narily merely construed not judgment make erroneous rendered by such a its power, court excess of judgment but to make such void.” *32 constitu- nature of the
merely reflect the differences case. impediment in each tional trial at issue is that together essential common thread cases tying these barrier to least, each a constitutional involved, the fair- particular regardless trial before forum, of the procedures factfinding process ness of the relevant forum. broadly, sure,
U. S. Coin to be Currency swept & effec- guarantee for concerned a that constitutional prevented tively par- trial of any the offender for ticular Jeopardy offense. But nature of the Double may Clause at issue offender Robinson is such that the particular par- tried once for a a offense court a sovereign; ticular prosecution it is for the the second same offense another that sovereign court same clearly Clause Similarly a serviceman here, bars. charged awith subject nonservice-connected offense is trial that offense by civil but tribunals, tribunals necessary lack the power, constitutional at least in peacetime, try an such in Rob- offense. As was true inson, this case involves a adju- constitutional barrier to dication of a particular particular offense a forum, yet in neither case does it follow that the offender is con- stitutionally entitled to go unpunished altogether. I fail to see, therefore, why different rules from those applied only recently in Robinson should be applied this case.
There is, course, the additional fact that the Robin son open left question whether reasonable, official upon particular reliance rule might properly be considered “in determining retroactivity a nonpro- cedural constitutional decision such as Waller.” at 511.8 S., And in this case the plurality, in attempt Cqurt itself, Robinson that, events, concluded in all there was no substantial element of reliance since “Waller cannot be said to have departure marked a past from decisions of this Court.” S., at 510. “ with break ‘clear O’Callahan to establish ing *33 ” States, 394 Desist v. ante, citing United at past/ only pro applied be therefore should 248, and S., that sub argument of the make much does
spectively, placed pre-O’Callahan on was reliance justifiable stantial, jurisdiction of court-martial the exercise concerning law seriously IBut ante, at 672-673. see servicemen, over reliance official into any inquiry of the relevance question com jurisdictional is the issue where, here, prior on law O’Calla the moment that assuming for petency. Even Congress' limits of reinterpreted completely han the deci on jurisdiction courts-martial, power confer to aof consti construction the authoritative sion involved ever military tribunal could no provision tutional power resided more than constitutionally have had O’Callahan did point that real is therein. But the prior departure from law. new sharp, mark a in- O’Callahan did not that plurality acknowledges ante, precedent, at 673. any prior of overruling volve indicates, a number of plurality as the that true, It “military status suggested had prior decisions exercise of court-martial for the itself was sufficient upon of the cases which jurisdiction,” ibid. Yet none with a plurality relies dealt fact nonservice- by in peace- offense committed a serviceman connected say, to that until O’Callahan short, time.9 It is fair 9 Covert, Singleton, Kinsella Reid (1960), 361 234 U. S. 354 parte Milligan, Ex (1866), (1957), U. S. dealt with Wall. military civilians, jurisdiction try of the exercise not servicemen. case, jurisdiction military In each the Court held that lacked try the civilians. States, v. United (1907), U. S. 333 Grafton acquitted by held that a soldier who had properly been a convened charge shooting court-martial of a growing homicide out of the guard duty of a civilian while he on Phillipine Islands could not thereafter tried and convicted same offense Sayre, Johnson Territory. a civilian court of that 158 directly of the service- the Court had not faced the issue connected nature servicemen's offenses. perhaps,
More O’Callahan Court’s importantly, jurisdic- define the constitutional limits efforts tion of such hardly beginning courts-martial was by the a efforts Court. O’Callahan was one of series but steps taken this Court since the conclusion Second World War to restrict its constitutionally appropriate limits. in Toth v. Thus, Quarles, the Court ruled dis- charged serviceman could not be tried a court-martial for offenses committed while member of the Armed *34 Forces. it was Subsequently, established that courts- martial not jurisdiction did have to try offenses committed by civilian dependents accompanying military personnel (1895), involved the navy court-martial paymaster, conviction of a whom the Court found to the naval service of United the States, embezzling for serving receiving naval funds while on a ship Navy. of the United States And in Whitney, Smith v. 116 S.U. (1886), 167 the Court was asked to prohibition order that a writ of against be issued try court-martial convened to pay a naval inspector essentially making for various contracts not the best Navy, failing of properly interest for to enforce contractual agreements Navy, with the for compelling payment illegal of con- against Navy, tractual claims failing and for perform to his duties responsibilities. and question There can be little that each Grafton, Johnson, of the offenses Smith, was “service con- nected” within meaning of O’Callahan. Contrast v. Relford Commandant, S., at 365.
Finally,
Tennessee,
Coleman
serving overseas. Finally, (1957). Covert, 354 U. S. Reid v. (1960); military with the employed civilians held that jurisdiction. court-martial subject to were overseas McElroy (1960); Hagan, Grisham See of cases This series Guagliardo, 361 U. S. to members of courts-martial limited the reach on go the Court to require did not Forces; they Armed which for servicemen breadth of offenses define the cases Nonetheless, these could be tried courts-martial. cloth. of the same clearly pieces were all and O’Callahan seriously retro doubt that I circumstances, these Under any violence application would do substantial active as upon prior law10—even official reliance legitimate, be a valid consideration here.11 suming that question reliance, it been regard official has With ago Departments of Justice pointed long out as federal offenses committed agreement that at least Defense reached an jurisdiction fall the Justice off-post would within servicemen Department on-post committed would be within while those Department: Defense Departments “The Defense have found it desirable Justice and trying ground determining to establish rules forum for charged serviceman with a civil in violation of both offense rules, general, and federal which were law. these established *35 Departments 1955, give military agreement between to the responsibility department investigating prose- of concerned by persons subject cuting offenses committed to the Code Uniform Military only involving persons of Justice and as victims those dependents residing military their civilian on the installation question.” Vogel, Duke & Standing The Constitution and the Army: Jurisdiction, Another Problem Court-Martial 13 Vand. L. 435, citing (196.0), Army Reg. 22-160, 7, 1955, imple- 455 Rev. Oct. menting Understanding Departments Memorandum of Between the Relating Defense of Justice and to the Prosecution Over of Crimes Departments (July 19, the Two have Concurrent Which Jurisdiction 1955). 11 opinion plurality necessary not find it Since does reach Secretary’s argument in additional No. 71-1398 that the auto
707 II in his con- concurring opinion, Douglas, Justice Mr. petitioner tends that Gosa’s case merits reargument consider whether he should be denied relief because he jurisdictional objection failed to raise his before the Douglas court-martial tried him. Mr. Justice intimates that jurisdiction since the try petitioner initially judicata was not “res contested, [may inquiry” now into the question of jurisdiction, bar] ante, at 689. In my opinion, argument such an is clearly untenable, and hence reargument petitioner Gosa’s unnecessary. case is
A jurisprudence One the most basic principles of our subject-matter cannot be conferred upon a court consent of the Ameri parties. g., e. See, Finn, can Fire Casualty & Co. 341 6, v. U. S. 17-18 Commissioner, Industrial Addition (1951); Assn. 323 313 310, (1945); People’s Calhoun, U. S. Bank Rae, S. 256, (1880); 260-261 Cutler 729, 7 How. (1849).12 objection An adjudicatory power to the may generally tribunal time raised for the first any Cohen, stage litigation.13 See, g., e. Flast v. n. 83, 2 (1968); Griffin, United States v. (1938); Fortier 226, v. New Orleans National Bank, 112 U. 444 (1884). S. 439, principles Those are applicable even in the context of upon collateral attacks theft there at issue was service connected because the offense took place respondent while during wartime, was absent without leave I inappropriate express think any for me to view on that additional argument at this time. 12See also of Judgments d, Restatement p. comment § Contrast n. *36 infra. Court’s from this evident as is proceedings, court-martial Deming, McClaughry decision a col- involved indicated, McClaughry, previously a vol- conviction upon court-martial attack lateral court- Army Regular who claimed that officer unteer had constituted him been had tried martial which was without and therefore law of the relevant violation to raise had failed officer The volunteer jurisdiction. court-martial, before the objection jurisdictional this “his con- before this Court contended id., The at 66. invalidity,” question waived sent saying: rejected contention, his statutory some “It was not a mere consent waive waived, permitted which, if provision his favor no more could proceed. the court to His consent subject- jurisdiction court, to the either over give com- if been or his it had person, matter over than .... posed of like number civilians difficulty lies in that the court fundamental the fact statute, in direct of the was constituted violation no confer over the jurisdiction consent could subject-matter person the defendant over the accusation, jurisdiction because such take plain, would constitute a violation of law.” Ibid. id., Zerbst, at 68; also Givens v. See (1921); Sirmyer, Ver Mehren 36 F. 2d 879-880 (CA8 1929). Just as the silence of the accused in McClaughry confer could not on a court- Army of the Regular martial acting excess of statutory its here so authority, failure Gosa to raise jurisdictional his objection before the court-martial could upon not have conferred authority that tribunal that con- stitutionally could not be conferred. Consequently, his
709 object jurisdiction failure to to the of the court-martial him that tried cannot be deemed fatal this Court.14
B Moreover, even if O’Callahan were to be treated as merely procedural a jurisdictional rather than aas true application judicata decision, of res doctrine would entirely nonetheless be inappropriate context petitioner Gosa’s case since by that action was brought way petition of a for federal corpus. habeas Specifically, I vigorously must disagree with suggestion, neces- Douglas’ sarily inherent opinion, Justice Mr. judicata res may doctrine of have place some corpus. law federal habeas In the past, this Court quite indicated explicitly has contrary: common “At law judicata the doctrine of res did extend to a decision on habeas corpus refusing discharge prisoner. gen- state courts erally accepted have that rule where not modified . ; statute . . and this Court has conformed to thereby sanctioned it regard ... . We rule as well established in this jurisdiction.” Sal- Loisel, inger v. 265 U. 224, S. 230 (1924). Noia, Fay
See v. 391, 372 U. S. 423 (1963); Darr Bur ford, 200, 214 (1950). S. Indeed, the rule still Douglas Mr. Justice would seem inclined to limit unwaivable jurisdictional flaws to instances which an accused is “tried a kangaroo by eager vigilantes court ante, or . . . at 689-690. But presence adjudicatory power only absence of turn does not on proceeding particular the fairness of the forum; rather, afforded a McClaughry adequately illustrates, jurisdictional as competency in the context of courts of limited such as courts-martial necessarily statutory involves the limits and constitutional authority provides legal underpinnings for such tribunals. Brown, See also Hiatt (1950); supra. and n. few months just jurisdiction” in this “well established 188, 190-191 Biggers, Neil ago.15 See means are not without courts, sure, to be The federal Douglas’ reli reason, I Mr. Justice believe that For this Bank, County Drainage Baxter State District v. ance on Chicot petitioner clearly misplaced insofar question County con involved Chicot is concerned. Gosa’s case *38 whigh municipal bonds on certain cerning of indebtedness the extent readjust subject proceeding to of a federal previously been the had Following readjust the bankruptcy laws. the under indebtedness the statute unconstitutional this Court declared proceeding, ment Ashton v. brought, see Cameron proceeding had been under which County, (1936). Chicot County District, 298 513 U. S. open original decree held that this then nonconsenting bondhold attack to collateral as void readjustment original proceeding had notice of the ers who had jurisdiction. lodged objection to the no court’s but had there resting of simply on doctrine can seen as decision in judicata points opinion, referred at its to which the Court res County, plaintiffs in second supra, at 374-375. The see Chicot litigate opportunity full to the issue action had a and fair had first but failed to do so. At proceeding, in the had had taken in reliance on the time, same there been substantial action readjustment approved proceeding. New had plan in the first bonds Corporation which then been Finance had sold to the Reconstruction purchased exchange in circum old bonds for them. Under these litigation juris to proper it was both fair bar stances proceeding. diction in the Cf. issue collateral Restatement Judgments (1942). and comment §10 But, judicata pointed out, as has been res no the doctrine of has place rigid restricting questions corpus; in federal habeas what rules open litigation inappropriate are on collateral are attack in course, judgments affecting personal liberty. are, There context of legitimate finality proceedings with concerns in criminal civilian —both orderly independent functioning judicial with the —and systems. concerning exhaustion, waiver, But we have rules and non- repetitious application protect those concerns context of corpus. federal habeas County generally, probably appropriately
More Chicot most is early interpreted an concerning decision appli- the nonretroactive decision, particular nameiy, Despite cation of a Ashton. the Court’s corpus, repetitious applications habeas dealing with Loisel, g., Salinger supra, e. C. see, 231-232; U. S. (b), or with (a), applications raising questions §§ previously litigated in this C. 2244 Court, § see U. S. But no (c). problems presented such are here. Rather, procedural problem peti- arises this case because tioner “jurisdictional” Gosa failed to assert the defect, which he now raises, seeking appeal leave for a direct Military my the Court of Appeals. This reflects, view, part a failure on the satisfy of Gosa to exhaustion which requirement, applied the context of collateral attack on thereby federal habeas corpus, raising question a substantial whether he has waived his right “jurisdiction” challenge of the court-martial on corpus. habeas
The exhaustion doctrine evolved in the context of collateral attack on state criminal proceedings. See, Hawk, g., parte e. Ex parte Ex (1944); Royall, 117 It generally requires state *39 petitioners to utilize available state court remedies be- places judicata, to the rubric of res resort at presence the of sub pre-existing stantial clearly reliance on law important was an con sideration in the Court’s decision not to allow intervening decision in Ashton collaterally to be used to original plan attack the of re adjustment. County Furthermore, Chicot heavily upon relied gave this Court when it principles retroactivity governing the procedural new expression constitutional rules full in Linkletter Walker, v. 618, 381 U. S. (1965); 625-626 and the case has been retroactivity cited as a decision on a number of occasions since Linkletter, Chevron Huson, Oil Co. v. see 97, (1971); 404 U. S. United States U. S. Coin Currency, & 715, 401 U. S. 742- (1971) (White, J., dissenting); cf. United States v. Estate of Donnelly, 286, id., (1970); S. 293-294 (Douglas, at 299-300 J., dissenting). precursor Viewed then as a present-day of the doctrine, County retroactivity Chicot has no relevance for question threshold whether Gosa is barred raising juris from his challenge dictional corpus on habeas because he present failed to applying in for appeal leave to to the Court Military Appeals. thus serves corpus,16 and habeas to federal resorting fore judicial functioning of state orderly ensure both to intervention, court federal disruptive without processes, co-equal roles as their to fulfill courts state and to allow enforcement courts federal with the partners for federal the need eliminating thus law, often federal unnecessary friction between avoiding action, court in same considerations These federal courts. state and federal court attack in collateral in the context here which con military tribunals, judgments upon the peculiar with its own system system judicial stitute a —a federal from the legal traditions —distinct purposes and judicial independent state much like the judicial system normally has required this Court systems. Accordingly, remedies exhaust all available military petitioners Bond, Noyd v. justice system. See within Schilder, Gusik 340 U. S. (1969); ini petitioner At time Gosa (1950).17 128, 131-132 indeed not attack he had exhausted tiated this collateral formerly him available to military remedy which was however, more not, courts to This rule does entitle state Brown Thus, claim. opportunity than one to consider the same Allen, pre petitioners had where the review, direct sented their federal claims to the state courts on said, necessary prisoner “It is not circumstances such relief, on the same to ask the state for collateral based evidence already Indeed, . if the direct review . issues decided . .” requirement providing restricted levels exhaustion were all claim, opportunity courts an his state with hear federal effectively prisoners reaching it would bar state from ever a federal appli forum in which an unlimited number of identical States post-conviction permitted. cations for state *40 relief are exhaustion requirement “repetitious applications does not demand such to state Id., 448-449, courts.” at n. 3. McElroy Guagliardo, Reid (1960); But see v. 361 U. S. 281 Covert, Quarles, Toth (1957); (1955); v. S. 1 354 U. Noyd Bond, n. 8 respect now But cer- to the claim he asserts. with tainly the end ought inquiry. not of the Noia, Fay re- 372 U. the Court S. jected position prisoner that a who not state had from pursued appellate his state remedies was barred corpus federal habeas because his failure to seeking exhaust, appellate where state were no remedies longer instead, available. The concluded, “requirement only exhaustion refers to a to ex- failure open applicant haust state remedies still to the at the he application time files his fed- corpus habeas Id., eral court.” 399. Court established that there where has been a failure to resort to a state court remedy remedy and that is no longer available, the avail- ability of corpus federal habeas would turn on whether there was bypass a deliberate process. Id., state In determining at 438. whether such a bypass has oc- curred, the Court said that classic definition of “[t]he Zerbst, waiver enunciated in Johnson v.
464—'an relinquishment intentional or abandonment of a right known or privilege’ the controlling stand- —furnishes ard.” 372 S.,U. at 439.
This Court has never considered
applicability
the nondeliberate-bypass
rule in the
military
context of
petitioners. Fay does
speak
specifically
respect
with
petitioners.
such
Nonetheless,
considerations
argue
which
favor
tempering the exhaustion re-
quirement with a rule of
bypass
nondeliberate
in the
context of
petitioners
state
equally applicable
are
context of military petitioners.
peti-
Certainly, military
tioners should be encouraged to raise their constitutional
claims before available military tribunals
in order to
ensure the orderly
functioning
system
of military
justice,
avoid needless federal court action, and to
allow
an
tribunals
initial opportunity to correct
*41
subverted,
not
are
These interests
errors.
their own
fed-
to seek
military petitioner
a
by allowing
however,
he failed
claim
the basis of a
which
corpus on
habeas
eral
either
because he
military courts
raise before
to raise
fail
willingly
not otherwise
or did
of
unaware
integrity
petitioners,
with
claim. As
state
that
by a
adequately protected
requirement
exhaustion
mili-
an
bypass of
available
a deliberate
prohibiting
rule
only
A
rule would serve
stringent
more
tary tribunal.
any
federal
without
of valid
claims
presentation
bar
justification
doing
for
so.
countervailing
I
con-
impossible
find it
of this case,
facts
On the
to chal-
right
waived
petitioner
clude
Gosa has
his
that
con-
which
“jurisdiction” of the court-martial
lenge
the offense was
rape
ground
him of
on the
that
victed
A
“in-
requires
valid waiver
not service connected.
18 At
of a known
relinquishment
right.”
...
tentional
Henderson,
Nothing
in Tollett
in this Court’s recent decisions
States,
(1973),
and Davis v. United
Since then I dissent. or Mr. Justice plurality Douglas, case, corpus pending any application while his for habeas Court, petitioner filed a motion vacate his in the District Gosa O’Callahan, sentence, conviction and on the basis of in the Court Subsequent Military Appeals. the denial of relief Military Court, treating Appeals, petitioner’s District the Court of petition reconsideration, motion also It denied relief. did so, “jurisdictional” question not on basis Gosa had waived the present failing appeal, on direct but on the of its basis previous holding decision in Mercer O’Callahan to be nonretroactive. (1970). Thus, events, 19 U. S. M. A. C. C. M. R. 327 in all adequately it seems clear has now Gosa exhausted his previous longer bypass remedies and his can no be deemed a waiver “jurisdictional” question, Hayden, see Warden 387 U. S 297 n. 3