William L. CALLEY, Jr., Petitioner-Appellee, Cross-Appellant, v. Howard H. CALLAWAY, etc., et al., etc., Respondents-Appellants, Cross-Appellees.
No. 74-3471
United States Court of Appeals, Fifth Circuit
Sept. 10, 1975
519 F.2d 184
As to (1) (the inference), we find no evidence in this record to support a finding that either appellant‘s sister or his attorney ever communicated the attorney‘s advice concerning the futility of appeal to appellant or ever received his agreement thereto. We hold the District Judge‘s finding in this regard to be clearly erroneous.
As to (2), we hold the legal conclusion referred to above is error. Appellant‘s right to appeal and to counsel at appeal are personal rights of Constitutional dimension. If such rights are to be waived, the Supreme Court has held that this cannot be done upon a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Similarly we hold that appellant‘s decision as to whether or not to appeal cannot be delegated to another upon a silent record. In this record there is no proof that appellant‘s sister ever communicated to him either his attorney‘s advice or her decision to agree with it. Likewise, there is no evidence that appellant ever delegated to his sister the decision as to whether or not to appeal.1
Under the circumstances of this case, there was no knowing, intelligent and intentional relinquishment (see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) of either appellant‘s right to counsel at appeal or of his right to appeal. We conclude that on the record below appellant is either entitled to have Kentucky review his trial as if on an original appeal, or to be released under a writ of habeas corpus.
The judgment of the District Court is vacated and the case is remanded for entry of an order granting the petition for writ of habeas corpus, conditioned as set forth below. The writ shall not issue if appellant fails, within ten days after receipt of this order, to initiate action to obtain an appeal in the State courts of Kentucky. Nor shall the writ issue if Kentucky within a reasonable time thereafter provides such an appeal. See Tipton v. Commonwealth, 456 S.W.2d 681 (Ky.1970); and Hammershoy v. Commonwealth, 398 S.W.2d 883 (Ky.1966).
Ronald T. Knight, Charles T. Erion, Asst. U. S. Attys., Macon, Ga., Capt. Arnold Anderson Vickery, Office of Gen. Counsel, Dept. of the Army, Pentagon, Washington, D. C., Capt. David P. Schulingkamp, Office of the Judge Advocate Gen., Washington, D. C., S. Cass Weiland, Crim. Div., Dept. of Justice, William A. Patton, Office of the Sol. Gen., Washington, D. C., for respondents-appellants, cross-appellees.
Kenneth Henson, Columbus, Ga., J. Houston Gordon, Covington, Tenn., G. W. Latimer, Salt Lake City, Utah, for petitioner-appellee, cross-appellant.
Before WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK and RONEY, Circuit Judges.*
AINSWORTH, Circuit Judge:
Petitioner Calley was charged on September 5, 1969, under the
On February 11, 1974, Calley filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia against the Secretary of the Army and the Commanding General, Fort Benning, Georgia. At that time, the district court enjoined respondents from changing the place of Calley‘s custody or increasing the conditions of his confinement. On February 27, 1974, the district court ordered that Calley be released on bail pending his habeas corpus application.
I. Summary of the Facts
On March 16, 1968, in the small hamlet of My Lai, in South Vietnam, scores of unarmed, unresisting Vietnamese civilians were summarily executed by American soldiers. A number of American soldiers were charged6 but only First Lieutenant William Calley was convicted of murder in what has been called the My Lai Incident and also the My Lai Massacre. The facts, which are largely undisputed, are set forth in considerable detail in the written opinions of the military courts, and will be summarized only to the extent necessary for our purposes.7
Lieutenant Calley was the 1st platoon leader in C Company, 1st Battalion, 20th Infantry, 11th Light Infantry Brigade, and had been stationed in Vietnam since December of 1967. Prior to March 16, 1968, his unit had received little combat experience. On March 15, members of the unit were briefed that they were to engage the enemy in an offensive action in the area of My Lai (4). The troops were informed that the area had long been controlled by the Viet Cong, and that they could expect heavy resistance from a Viet Cong battalion which might outnumber them by more than two to one. The objective of the operation was to seize the hamlet and destroy all that could be useful to the enemy.
The attack began early in the morning of March 16. Calley‘s platoon was landed on the outskirts of My Lai after about five minutes of artillery and gunship fire. The assault met no resistance or hostile fire. After cautiously approaching My Lai (4), C Company discovered only unarmed, unresisting old men, women and children eating breakfast or beginning the day‘s chores although intelligence reports had indicated the vil-
Specification 1 of the first charge against Calley stemmed from events occurring at a collection point for civilians along a trail in the southern part of My Lai (4). This charge was also first in time of the charges against Calley. The remaining charges and specifications also followed in chronological sequence. The initial charge, with two specifications, related to two separate group killings at different locations. Private First Class Meadlo was guarding a group of between 30 and 40 unarmed old men, women and children at the trail location. Calley approached Meadlo and told him, “You know what to do,” and left. Meadlo continued to stand guard over the villagers. Calley returned and yelled at Meadlo, “Why haven‘t you wasted them yet?” Meadlo replied that he thought Calley had meant merely to watch the villagers. Calley replied, “No, I mean kill them.” First Calley and then Meadlo opened fire on the group, until all but a few children fell. Calley then personally shot the remaining children. In the process, Calley expended four or five magazines from his M-16 rifle. Calley was charged with the premeditated murder of not less than 30 human beings as a result of the killings at this location. Although numerous bodies, about 20, were shown at this point by photographs introduced in evidence, a pathologist testified that he could point to only one wound on one body which, in his opinion, was certain to have been instantly fatal. The court members found Calley guilty under this specification of the murder of not less than one human being.
After the killings along the trail at the southern edge of My Lai (4), Calley proceeded to the eastern portion of the hamlet. There, along an irrigation ditch, another and larger group of villаgers was being held by soldiers. Meadlo estimated the group contained from 75 to 100 persons, consisting of old men, women and children. Calley then ordered Meadlo, stating: “We got another job to do, Meadlo.” The platoon members with their weapons then began pushing these people into the ditch. They were yelling and crying as they knelt and squatted in the ditch. Calley ordered the start of firing into the people and he with Meadlo and others joined in the killing. Private First Class Dursi refused to follow Calley‘s order that he assist with the executions; he testified, “I couldn‘t go through with it. These little defenseless men, women, and kids.” Specialist Fourth Class Maples refused Calley‘s request for Maples’ machine gun to be used in the killing. A number of different groups of civilians were brought to the ditch, there to be slaughtered by the soldiers at point-blank range. A helicopter pilot landed his craft near the ditch, and had a discussion with Calley. The pilot was able to evacuate some of the villagers from the scene. After speaking to the pilot, Calley returned to the ditch and resumed the killing, stating, “I‘m the boss here.” In all, Calley supervised and participated in killings at the ditch for about forty-five minutes to an hour, and personally expended between 10 and 15 magazines of ammunition. Calley was charged with the murder of not less than 70 human beings at the ditch; the court members found him guilty of the murder of not less than 20 persons.
After the incident at the ditch, Calley and Specialist Fourth Class Sledge encountered a forty- to fifty-year-old man dressed in the white robes of a monk. After questioning the man whether he was a Viet Cong, Calley shot the man in the face, blowing half his head away. The court members found Calley guilty of the premeditated murder of one male human being, as charged.
Sledge stated he observed this from a distance of 20-30 feet. He testified one shot was fired by Calley at the child from a distance of 4 or 5 feet, but did not see whether it struck. Calley was charged with the premeditated murder of one human being approximately two years old; the court members found him guilty of assault with intent to commit murder on this charge. A total of two to four hours had elapsed between the time the attack on My Lai (4) began and the killing of the villagers was completed.
At trial and on appeal to the military courts, Calley‘s participation in most of the killings was conceded—those at both the trail and the ditch. Calley admitted ordering Meadlo to kill the villagers at the trail, and admitted that he fired into the people at the ditch with his gun‘s muzzle within 5 feet of the people kneeling or squatting there. He denied killing the monk, stating he merely “butt-stroked” the man in the face with the butt of his rifle, and also denied killing the two-year-old child. The major emphasis of Calley‘s defense was that he was not legally responsible for the killings because there was an absence of malice on his part, that he thought he was performing his duty in the operation, having been ordered by Captain Medina to kill everyone in the village. Calley‘s principal defense, therefore, was his claim that the night before the attack on My Lai (4) and two times by radio while he was present in the village, he had received orders from Captain Medina to kill all villagers the soldiers encountered. Captain Medina, who was called as a witness at the request of the court members, stated that during the briefing on the night of March 15 he was asked by someone specifically whether women and children were to be killed. He testified that his answer was:
No, you do not kill women and children. You must use common sense. If they have a weapon and are trying to engage you, then you can shoot back, but you must use common sense.
There was considerable dispute at the trial about this statement. Twenty of the 27 persons who were members of Calley‘s platoon on March 16 testified at trial, along with others who were presented at the briefing. Some stated that Medina‘s answer to the question was “Yes, it means women and children,” while most of these witnesses, however, had no recollection of orders by Medina at the briefing to kill women and children. The findings of guilty of the court members resolved what was a classic jury issue.
Calley further claimed that he had received orders by radio directing him to dispose of the Vietnamese and get on to other duties during the day of March 16 while he was in My Lai (4). Calley‘s testimony in this regard was not substantiated by the two persons who acted as radio operators to Captain Medina on March 16. One of the operators stated he had no recollection either way regarding such orders. The other operator stated positively that no orders to kill or waste civilians went out over the unit radio to Calley. Moreover, even if Calley had received the orders as claimed, he would not necessarily have been exonerated. The military judge properly instructed that an order to kill unresisting Vietnamese would be an illegal order, and that if Calley knew the order was illegal or should have known it was illegal, obedience to an order was not a valid defense. Thus, the military jury could have found either that the alleged order to kill was not issued, or, if it was, that the order was not a defense
With this review of the facts, we turn to the issues on appeal. District Judge Elliott‘s extensive written opinion concluded that Calley was entitled to a writ of habeas corpus for four principal reasons: (1) prejudicial pretrial publicity concerning the My Lai incident and Calley‘s participation therein deprived him of an opportunity to receive a fair and impartial trial; (2) the military judge‘s failure to subpoena certain witnesses requested by the defense deprived Calley of his right of confrontation and compulsory process and deprived him of due process; (3) the refusal of the House of Representatives to release testimony to the defense taken in executive session in its My Lai investigation deprived Calley of due process; and (4) the Charges, Specifications and Bill of Particulars under which Calley was tried did not adequately notify him of the charges against him nor fully protect him against possible double jeopardy.
II. Scope of Review of Court-Martial Convictions
We must first consider the extent to which a federal court is empowered to review court-martial convictions on petitions for habeas corpus. The Government contends that the district court exercised an impermissibly broad scope of review of Calley‘s claims.9 Relying on Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), the Government argues that review by the federal courts is complete after a determination that the military courts have fully and fairly considered Calley‘s claims, and that, since that has been accomplished by the military courts, further review by way of habeas corpus proceedings is not appropriate.
A brief historical outline is helpful to a determination of this question.10 The first military habeas corpus case to reach the Supreme Court was Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879).11 Reed held that a federal civil court‘s inquiry into a military court-martial conviction could extend only so far as to ascertain whether the military court was properly vested with jurisdiction “over the person and the case. . . Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority.” 100 U.S. at 23, 25 L.Ed. at 539. Subsequent Supreme Court decisions followed the jurisdictional test and emphasized that the scope of inquiry for federal courts was limited to whether the court-martial was properly constituted, whether it had jurisdiction over the person and the offense charged, and whether the sentence was authorized by law.
The jurisdictional test, however, was not limited to military habeas corpus cases, but extended also to criminal convictions in civil courts. Mr. Justice Hughes stated in In re Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184 (1911) that “[t]he only question before us” in a habeas case is whether the court “had jurisdiction to try the issues and to render the judgment.” Id. at 213, 31 S.Ct. at 143. In Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036 (1925), the Court noted that habeas corpus was a means to determine whether a person “is restrained of his liberty by judgment of a court acting without jurisdiction.” In reiterating that jurisdiction was the proper inquiry, the Court held that “the judgment of state courts in criminal cases will not be reviewed on habeas corpus merely because some right under the Constitution of the United States is alleged to have been denied to the person convicted.” 268 U.S. at 447, 45 S.Ct. at 524-525. See also Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101 (1910); In re Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105 (1906); Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110 (1904); Storti v. Massachusetts, 183 U.S. 138, 22 S.Ct. 72, 46 L.Ed. 120 (1901). Thus, “[h]abeas corpus was, prior to World War II, a limited form of relief in both the civilian and the military areas, with the scope of inquiry limited to jurisdiction of the tribunal to hear a given case and render judgment. Procedural considerations—rulings on challenges, pleas, admissibility of evidence—as well as more substantial due process questions were not reviewable on collateral attack.” Note,
In the late 1930‘s, however, the Supreme Court first expanded and subsequently abandoned the jurisdiction rubric. The Court began to uphold habeas attacks on federal and state convictions obtained in violation of federal constitutional rights even where the courts possessed jurisdiction in the traditional sense. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Court held that jurisdiction, though present at the beginning of the trial, was “lost” in the course of the trial by the failure to provide counsel fоr the accused. The Court said that a violation of the Sixth Amendment “stands as a jurisdictional bar to a valid conviction and sentence. . .” 304 U.S. at 468, 58 S.Ct. at 1024 (emphasis added). Johnson altered the prior rule—while jurisdiction was still nominally the test, the meaning of jurisdiction was expanded to include due process defects in trial proceedings. Four years later, the Supreme Court finally discarded the jurisdiction test, and in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942), explicitly stated that jurisdiction alone was no longer the sole consideration.13 The Court held that the Great Writ “extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.” 316 U.S. at 105, 62 S.Ct. at 966. In House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739 (1945), the holding in Waley, a federal habeas corpus case, was applied to habeas review of state court
World War II provided an important impetus for federal courts to broaden habeas corpus review of military cases. When millions of persons suddenly became subject to military justice, greater concern seemed essential. As Chief Justice Warren said in this regard, “When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question.” Warren,
Thus, federal courts, having expanded collateral attack in civilian habeas corpus cases, were confronted with new pleas by military defendants that the courts give cognizance to allegations that their convictions were invalid by virtue of constitutional, if not jurisdictional, deficiencies.16 The stage was thus set for a reevaluation by the Supreme Court of the proper response by federal courts to habeas corpus attacks on court-martial convictions; Burns v. Wilson, 346 U.S.
Burns v. Wilson
The petitioners in Burns had been found guilty of rape and murder and sentenced to death by court-martial. Burns alleged in his habeas petition several deprivations of constitutional rights, contending that the military had coerced his confession, suppressed evidence favorable to him, denied him effective counsel, detained him illegally and created an atmosphere of terror and vengeance not conducive to a fair decision. See 346 U.S. at 138, 73 S.Ct. at 1047. The court of appeals affirmed denial of the writs, but only after a detailed review of the facts and the court-martial transcripts. Burns v. Lovett, 1952, 91 U.S.App.D.C. 208, 202 F.2d 335.
The Supreme Court affirmed the denial of habeas corpus relief, but stated that the circuit court had “erred in reweighing each item of relevant evidence in the trial record . . .” 346 U.S. at 146, 73 S.Ct. at 1051. A plurality of the court18 (Chief Justice Vinson, Justices Burton, Clark and Reed) agreed that the constitutional guarantee of due process was meaningful enough to protect both soldiers and civilians “from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness . . .” Id. at 142, 73 S.Ct. at 1049. Nonetheless, in reviewing court-martial convictions to ascertain whether due process rights had been abridged, the Court stated that “in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases.” Id. at 139, 73 S.Ct. at 1047. The Court stated that “when a military decision has dealt fully and fairly with an allegation raised in that application [for habeas corpus], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” 346 U.S. at 142, 73 S.Ct. at 1049.19 Its review of the case showed
Accordingly, it is not the duty of the civil courts to repeat that process—to re-examine and reweigh each item of evidence of the occurrence of events which tend to prove or disprove one of the allegations in the application for habeas corpus. It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims. (citation omitted) We think they have.
Id. (emphasis added).
Burns thus announced a scope of review in military habeas cases broader than the old jurisdictional test, but narrower than that in state and federal habeas cases. Federal courts have interpreted Burns with considerable disagreement.20 Soon after the decision in Burns, we noted the “uncertain state of the law” regarding the proper scope of review. Bisson v. Howard, 5 Cir., 1955, 224 F.2d 586, 589-590, cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 803. More recently we said that while Burns allowed collateral attack on courts-martial, “the scope of that review was left uncertain.” Mindes v. Seaman, 5 Cir., 1971, 453 F.2d 197, 201. We have stated that, since Burns, “the scope of review has been considerably broadened,” Betonie v. Sizemore, 5 Cir., 1974, 496 F.2d 1001, 1005; that “[c]ourt-martial convictions alleged to involve errors of constitutional proportion have consistently been held to be subject to court review.” Mindes v. Seaman, supra, 453 F.2d at 201. But we have also stated that there is a “very limited field in which the civilian courts can review court martial proceedings,” Bisson v. Howard, supra, 224 F.2d at 587, that “[h]abeas corpus review of convictions by court-martial is limited to questions of jurisdiction (citation omitted), and the limited function of determining whether the military has given fair consideration to petitioners’ claims, (citing Burns).” Peavy v. Warner, 5 Cir., 1974, 493 F.2d 748, 749. Other circuits are divided on the proper scope of review.21
Determining the Proper Scope of Review
The cited cases establish the power of federal courts to review court-martial convictions to determine whether the military acted within its proper jurisdictional sphere. We are more concerned here, however, with the extent to which federal courts may review the validity of claims that errors in the military trial deprived the accused of due process of law, when the military courts have previously considered and rejected the same contentions. We conclude from an extensive research of the case law that the power of federal courts to review military convictions of a habeas petition depends on the nature of the issues raised, and in this determination, four principal inquiries are necessary.
1. The asserted error must be of substantial constitutional dimension. The first inquiry is whether the claim of error is one of constitutional significance, or so fundamental as to have resulted in a miscarriage of justice. Most courts which have interpreted Burns to allow review of nonjurisdictional claims have given cognizance only to assertions that fundamental constitutional rights were violated.22 The premise that we cannot review a military conviction without substantial claim of denial of fundamental fairness or of a specific constitutional right is strengthened by the holding in United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), in which the Supreme Court held that the Court of Claims erred in considering petitioners’ assertions where only an error of law (an asserted violation of the
Most habeas corpus cases have provided relief only where it has been established that errors of constitutional dimension have occurred. But the Supreme Court held in a recent decision that nonconstitutional errors of law can be raised in habeas corpus proceedings where “the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and when the alleged error of law ‘present[ed] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.‘” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974), quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Thus, an essential prerequisite of any court-martial error we are asked to review is that it present a substantial claim of constitutional dimension,23 or that the error be so fundamental as to have resulted in a gross miscarriage of justice.
2. The issue must be one of law rather than of disputed fact already determined by the military tribunals. The second inquiry is whether the issue raised is basically a legal question, or whether resolution of the issue hinges on disputed issues of fact. This circuit said in Gibbs v. Blackwell, 5 Cir., 1965, 354 F.2d 469, 471, that “In reviewing military convictions, the courts must be on guard that they do not fail to perceive the difference between reviewing questions of fact and law. This is especially true at the constitutional level.” Compare Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), where the review of matters resolved against a serviceman “on a factual basis by the court-martial which convicted him” was held to be beyond the proper scope of review. Id. at 760-761, 94 S.Ct. at 2564. The Court of Claims has noted that abstinence from reviewing court-martial proceedings need not necessarily be practiced “where the serviceman presents pure issues of constitutional law, unentangled with an appraisal of a special set of facts.” Shaw v. United States, 1966, 357 F.2d 949, 953-954, 174 Ct.Cl. 899.24 See Burns v. Wilson, supra, 346 U.S. at 142, 145, 146, 73 S.Ct. at 1049, 1050, 1051. Thus, a conclusion that a military prisoner‘s claim is one of law and not intertwined with disputed facts previously determined by the military is one important factor which favors broader review.
3. Military considerations may warrant different treatment of constitutional claims. The third inquiry is whether factors peculiar to the military or important military considerations require a different constitutional standard. Where a serviceman‘s assertion of constitutional rights has been determined by military tribunals, and they have concluded that the serviceman‘s position, if accepted, would have a foreseeable adverse effect on the military mission, federal courts should not substitute their
This Court repeatedly has recognized that, of necessity, “[m]ilitary law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953); Parker v. Levy, 417 U.S. 733, 744, 94 S.Ct. 2547, 2556, 41 L.Ed.2d 439 (1974).
Id. at 746, 95 S.Ct. at 1307. See also Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974), where the Court noted that “[t]he fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.” The Supreme Court in Burns emphasized that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment.” 346 U.S. at 140, 73 S.Ct. at 1048.25 Cf. Mindes v. Seaman, supra, where this circuit noted that one factor determining whether a federal court should review internal military affairs is the type and degree of anticipated interference with the military function and the extent to which military expertise and discretion are involved. 453 F.2d at 201-202. The importance of this policy was recently reiterated in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). In that case, the Court reviewed the traditional deference allowed for rules and regulations within military society. See 417 U.S. at 743-744, 749-752, 756-759, 94 S.Ct. at 2555-2556, 2558-2560, 2562-2564. The armed forces’ requirements of obedience and discipline, the Court stated, justified a less stringent standard of review for vagueness and overbreadth attacks on Army regulations. Even as to the First Amendment rights asserted by Captain Levy, the Court stated that “the different character of the military community and of the military mission require a different application of those [First Amendment] protections.” Parker v. Levy, 417 U.S. at 758, 94 S.Ct. at 2563.26 See also Schlesinger v. Councilman, supra.
There are other reasons why federal courts should not intervene in basically military matters. Congress, with its power to create and maintain the armed forces and to declare war, and the President, with his power as Commander-in-Chief, have great powers and responsibilities in military affairs.27 Congress has
4. The military courts must give adequate consideration to the issues involved and apply proper legal standards. The fourth and final inquiry is whether the military courts have given adequate consideration to the issue raised in the habeas corpus proceeding, applying the proper legal standard to the issue. Decisions by reviewing courts within the military justice system must be given a healthy respect, particularly where the issue involves a determination of disputed issues of fact. But a necessary prerequisite is that the military courts apply a proper legal standard to disputed factual claims. See S. E. C. v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943). Burns requires that particular respect be given military decisions: “In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings—of the fair determinations of the military tribunals after all military remedies have been exhausted.” 346 U.S. at 142, 73 S.Ct. at 1048-1049.
To summarize, the scope of review may be stated as follows:
Military court-martial convictions are subject to collateral review by federal civil courts on petitions for habeas corpus where it is asserted that the court-martial acted without jurisdiction, or that substantial constitutional rights have been violated, or that exceptional circumstances have been presented which are so fundamentally defective as to result in a miscarriage of justice. Consideration by the military of such issues will not preclude judicial review for the military must accord to its personnel the protections of basic constitutional rights essential to a fair trial and the guarantee of due process of law. The scope of review for violations of constitutional rights, however, is more narrow than in civil cases. Thus federal courts should differentiate between questions of fact and law and review only questions of law which present substantial constitutional issues. Accordingly, they may not retry the facts or reevaluate the evidence, their function in this regard being limited to determining whether the military has fully and fairly considered contested factual issues. Moreover, military law is a jurisprudence which exists separate and apart from the law governing civilian society so that what is permissible within the military may be constitutionally impermissible outside it. Therefore, when the military courts have determined that factors peculiar to the military require a different application of constitutional standards, federal courts are reluctant to set aside such decisions.
With these principles in mind, we consider the additional issues raised by this appeal.
III. Pretrial Publicity
Neither side disputes the magnitude of the publicity which surrounded this case:
In the past two and one-half decades, the Supreme Court has handed down a number of decisions discussing and balancing the conflicts created when there exists the possibility that the press may have jeopardized the important right of a defendant tо a fair trial.31 The primary problem here is that a court member who has had substantial contact with reports and stories concerning the defendant whose fate he will decide, may make his decision based on information gathered outside the courtroom. An important prerequisite of a fair and impartial trial “is the requirement that the jury‘s verdict be based on evidence received in open court, not from outside sources.” Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966); see Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1970). The general rule is that a defendant has the burden on appeal of proving actual jury prejudice if a conviction is to be reversed on grounds of prejudicial publicity. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961); Reynolds v. United States, 98 U.S. 145, 156-157, 25 L.Ed. 244 (1879).32 Other Supreme Court decisions33 have reversed convictions and dispensed with the requirement of showing actual prejudice in the jury box in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. See Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1966).
The Supreme Court has noted that generalizations are not helpful, and that “each case must turn on its special facts.” Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959); see United States v. Schrimsher, 5 Cir., 1974, 493 F.2d 848, 854; Gordon v. United States, 5 Cir., 1971, 438 F.2d 858, 873, cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 77; Hale v. United States, 5 Cir., 1970, 435 F.2d 737, 746, cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). Additionally, we must review the merits of the prejudicial publicity claim. Sheppard v. Maxwell, supra, 384 U.S. at 362, 86 S.Ct. at 1522; Irvin v. Dowd, supra, 366 U.S. at 723, 81 S.Ct. at 1643; Hale v. United States, supra, 435 F.2d at 746; Gawne v. United States, 9 Cir., 1969, 409 F.2d 1399, 1401, cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970); Margoles v. United States, 7 Cir., 1969, 407 F.2d 727, 730-731, cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84.
There is no contention here that publicity has been a driving force behind the securing of an indictment — that publicity has initiated the prosecution.34 As the district court noted, though Calley was charged on September 5, 1969, for the murder of civilians at My Lai, there was little or no publicity surrounding the charges or the My Lai incident until mid-November of the same year. Moreover, Calley‘s trial was conducted with restraint and dignity, and there is no assertion that the court members, though not sequestered, had any contact with the massive publicity spawned by the trial itself.35 Thus, our focus is on the post-indictment, pretrial publicity and its impact on petitioner‘s trial.
A. The District Court‘s View
The district judge concluded that Calley had been persecuted and pilloried by news media so intent on making prejudicial revelations about the incident that Calley‘s right to a fair and unbiased hearing was impossible. The court‘s review led it to conclude that the publicity was clearly improper, largely biased and undoubtedly prejudicial.36 The district judge concluded that “it was not humanly possible for the jurors not to be improperly influenced by prior exposure,” that “[n]o person, however honest minded he might try to be, could avoid the lasting emotional impact” of some of the publicity, and that, with all the publicity given the incident, “it would be sheer fantasy to believe that the jurors did not see, hear and read [the publicity] or that they were not influenced by it.” 382 F.Supp. at 685, 672, 686. These findings led the court to hold the publicity inherently prejudicial to Calley‘s Sixth Amendment rights. The court also found “isolatable prejudice” in the fact that one court member stated during voir dire that he had seen Captain Medina on television at one time, and that Medina had appeared credible and straightforward. 382 F.Supp. at 690. We hold that the trial court‘s findings of inherent and actual prejudice are erroneous, and conclude that pretriаl publicity did not deprive Calley of a fair trial.
B. Inherent Prejudice
The district court emphasized that the case involved “massive” and “intense” publicity. Yet this court has noted previously that “[w]e cannot accept the position that ‘prominence brings prejudice.‘” Hale v. United States, supra, 435 F.2d at 747. Moreover, no court has held that the only impartial juror is an uninformed one. We cannot expect jurors to live in isolation from the events and news of concern to the community in which they live.
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that
Irvin v. Dowd, supra, 366 U.S. at 722-723, 81 S.Ct. at 1642-1643.
Our review discloses that some of the publicity is favorable to Lieutenant Calley. The record discloses reports of rallies in his behalf, campaigns to have the Army drop charges against him, and efforts to raise funds for his defense. One newspaper clipping describes Calley‘s appearance before cheering American Legionnaires at Columbus, Georgia, to receive a contribution to defray the costs of his defense. The clippings substantiate the observation of the Court of Military Review that at the situs of the court-martial, Fort Benning and neighboring Columbus, Georgia, “there were indications that the climate was somewhat favorable to Lieutenant Calley.” At the very least, these reports indicate that, unlike the situation in Sheppard v. Maxwell, Calley was not being tried in an atmosphere of hostility and persecution. Also ignored by the lower court was the fact that a good deal of the extensive publicity surrounding the incident did not contain virulent and oppressive attacks on Calley, but rather objective statements of the facts known and discovered about the My Lai incident or the more general topic of the conduct of the war in Vietnam. A prejudicial publicity claim must be viewed differently when the news accounts complained of are “straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness.” Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 963, 8 L.Ed.2d 98 (1962); see Gordon v. United States, 5 Cir., 1971, 438 F.2d 858, 873 & n. 48. We cannot, therefore, agree with the district judge that the total effect of the publicity in this case “was to convict the Petitioner as surely as if he had confessed on the television screen.” 382 F.Supp. at 683.
The effect of the publicity on the American public in general is of course uncertain, but material contained in the record belies the district court‘s conclusion that anyone familiar with the news reports surrounding the My Lai massacre would automatically convict Calley. Time magazine was severely castigated by him for its role in the publicity. But a survey conducted for and published by Time in the first week of January 1970 (when the publicity was at its peak) reached the conclusion that there was “considerable sympathy” for Lieutenant Calley among the people interviewed. “By a margin of 55 percent to 23 percent, they believe Calley is being made a scapegoat by the Government“; also, that most people were disturbed over the publicity given the alleged massacre. Sixty-seven percent of those polled “believe that the press and TV should not have reported statements by soldiers involved prior to a trial.” The results of a Harris Poll published January 8, 1970 showed that 66 per cent of the public felt that soldiers killing even civilians should not be court-martialed if they did so under orders. These polls and figures are, of course, not directly relevant to a determination of whether the panel which ultimately convicted Calley was influenced by such publicity. We mention the above material only to emphasize that the district judge overlooked important aspects of the record in reaching his conclusions, and to note that there appears to have been no single sentiment regarding the case held by a vast segment of the American public.
The critical issue is the actual or probable effect of the pretrial publicity on the trial itself and, more precisely, on those who sat in judgment of Calley. A careful review of the exhaustive voir dire conducted at trial indicates that there is no likelihood that pretrial publicity prejudiced Lieutenant Calley such as to deny him a fair trial. An important
On the other hand, four prospective court members were dismissed from the panel because they held views so sympathetic to Lieutenant Calley that they could not objectively judge the case. Major Ehrhardt, a prospective court member, had expressed the firm opinion that the Government had been wrong in bringing charges against Calley.38 A Government challenge for cause was granted. Captain Gully also had expressed an opinion that the Government was incorrect in proceeding against Calley. Captain Gully stated that he had heard of similar incidents concerning the killing of civilians in Vietnam which had not resulted in prosecution of anyone, and stated that this plus other information known to him would make it difficult to make a decision based sоlely on information presented in court. A Government challenge for cause was granted. Captain Lum had stated that a prosecution was “pretty bad” when “the man gets charged for killing civilians or otherwise, not knowing whether the village was secured. . . . If it‘s just outright murder, it‘s different but to enter a village that was supposed to have been controlled by Viet Cong and being involved in something like this . . .” A challenge for cause was granted.39 Lieutenant Colonel Stith was one of the few persons who said his views had been influenced by publicity to the extent that he felt it would be impossible to put the things he had read from his mind. The impact of the publicity, however, was to prejudice Lieutenant Colonel Stith against the prosecution. The Government‘s challenge for cause was granted.
Of the court members selected, none stated that he had formed an opinion as to the guilt or innocence of Calley. All court members stated that their decision would not be influenced by any of the publicity with which they had been in contact. The district judge dismissed these statements, made under oath and after extensive questioning by all parties, as being largely meaningless. See 382 F.Supp. at 685. Given the presumption that court members will be impartial, we think the district court should not have dismissed these statements so
Two factors in particular give support to the credibility of the court members’ claims that they would reach a verdict unimpressed by pretrial publicity. The first is the long period of time between the peak of the publicity and the beginning of the trial. The publicity surrounding My Lai and Calley‘s trial was at its peak during November and December of 1969 and January of 1970. Very little new information was thereafter brought to light, and the publicity subsided substantially.40 The court members were not selected and the trial begun until November 1970. The military judge had delayed the trial in part to aid in empanelling an impartial court; he felt that the publicity had dissipated and that the court members selected were impartial and untainted by publicity.41 Sheppard v. Maxwell states that “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial,” “continu[ing] the case until the threat abates” is one means of assuring a fair trial. 384 U.S. at 363, 86 S.Ct. at 1522. We agree with the statement of the court in Wansley v. Slayton, 4 Cir., 1973, 487 F.2d 90, 93-94, cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974), that “recency is a critical factor to be considered in connection with any claim of pre-trial prejudicial publicity.” In addition to the long time lapse of little publicity prior to trial, there was the period of over four months during trial in which it is undisputed that no improper influences were brought to bear on the court members. Where there has been a substantial lapse of time between the publicity and the trial, there is a far lesser likelihood the publicity will affect the juror‘s deliberations. See, e. g., Beck v. Washington, supra (nine and one-half months sufficient time for impact of prejudicial publicity to subside); United States ex rel. Rosenberg v. Mancusi, 2 Cir., 1971, 445 F.2d 613, 617-618, cert. denied, 405 U.S. 956, 92 S.Ct. 1186, 31 L.Ed.2d 234 (1972) (eight months between crime and trial); United States v. Bowe, 2 Cir., 1966, 360 F.2d 1, 11-12, cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (adverse publicity appeared “several months” prior to trial).
The second reason to credit the court members’ statements is that they were the product of searching and sensitively conducted voir dire. The military judge conducted the voir dire in accordance with the recommendations of the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Fair Trial and Free
There are other reasons why this is not a case that has close parallels
C. Actual Prejudice
We have also reviewed the contention that actual, isolatable prejudice due to publicity has been demonstrated. Defense counsel challenged court member Colonel Ford for cause on the basis of “exposure to news accounts which, in my mind, cannot be erased from his mind and it wоuld substantially influence him on the findings.” Tr. at 585. Yet Colonel Ford had received orders almost a year prior to trial, on November 26, 1969, to refrain from any exposure to news accounts regarding the My Lai in-
Captain Brown, a court member, was challenged for cause by the defense “merely on the basis of the information he‘s heard from outside sources, such as, periodicals, news media and those others.” Brown stated that though he had been in contact with some publicity, nothing had made any lasting impression on him. He stated that he had heard about the incident on radio and TV, “but since then, since the initial outbreak on it, I haven‘t paid any attention to it.” He stated that he would make his decision in the case based solely on the evidence presented in the courtroom. Captain Brown had expressed no prior opinion on the circumstances surrounding the prosecution of Calley. Although he had heard only indirectly of comments on the case by the President and others, he stated that this would not affect or influence him. We believe the military trial judge did not err in refusing to grant the defense challenge.
The court member of most concern to the district judge was Major McIntosh. McIntosh had been exposed to magazine and newspaper accounts, and had seen some of the daily TV news reports. He stated that he had been unaffected by this exposure. Major McIntosh stated that he had seen Captain Medina on television, and that Medina had seemed credible. We have quoted this entire exchange between Major McIntosh and defense counsel on this subject below.47 Major McIntosh stated that the interview had not affected his opinion of the accused, that he had not formed an opinion as to Captain Medina‘s credibility, and that his opinion as to Medina‘s credibility would be based solely on Medina‘s appearance in the courtroom. The defense did not challenge Major McIntosh. The defense had an opportunity to assess whether Major McIntosh would be influenced by an event they were allowed fully to explore, and counsel apparently concluded, in light of McIntosh‘s responses, that he had not been influenced by publicity so as to be unable to fairly try his client. The fact that no challenge was raised “is strong evidence that he was convinced
D. Control of the Media by the Military Court
Throughout the district court opinion, it is stated that because the military judge “could not control the witnesses nor the news media,” 382 F.Supp. at 691, the court was unable to preserve Calley‘s right to a fair trial. See Id. at 657-658, 682-683, 691-692. But “there could be no constitutional infirmity in [the trial court‘s] rulings if petitioner actually received a trial by an impartial jury.” Beck v. Washington, supra, 369 U.S. at 556, 82 S.Ct. at 963.
It is not disputed that the military court used most of the means suggested by Sheppard v. Maxwell to ameliorate potential prejudice stemming from publicity. The court delayed the proceedings to allow publicity to abate, it allowed extensive voir dire examination to probe for any possible influence on the court members by the publicity. The court successfully took great pains to insure that no publicity reached the court members during the trial.48 Moreover, the court issued an order to all prospective witnesses, civilian and military, prohibiting disclosure of their prospective testimony. The military court refused, however, the defense request
to restrain the three major television networks, certain named daily newspapers, news magazines and wire services, as well as “all radio and television networks and stations, newswire services, newspapers, and magazines operating or otherwise doing business in the United States of America, or any territory thereof“, from publishing the statements of any witness to the events giving rise to the charges against Lieutenant Calley, or any photographs, sketches, or other pictorial reproductions purporting to represent the bodies of persons allegedly killed in the village of My Lai 4, Republic of Vietnam on March 16, 1968, . . . until the first witness testifies on the merits, at the contemplated trial.
United States v. Calley, 19 U.S.C.M.A. 96, 41 C.M.R. 96 (Memorandum opinion December 2, 1969).
In all likelihood it would have been unconstitutional for the court to grant the defense request. In United States v. Dickinson, 5 Cir., 1972, 465 F.2d 496, cert. denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 223 (1973), this court undertook a lengthy analysis of the “civil libertarian‘s nightmare” — the prospect that a free press could destroy the right to a fair trial. We noted the general reluctance to expand the courts’ power over the reporting of trials, and said that any control over the “content of news reports” would create “grave reservations whether such a limitation could be promulgated without making impermissibly serious inroads into the purview of the First Amendment.” 465 F.2d at 506. In Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17 (1974), a Louisiana state court entered an order barring the publication of certain information concerning the trial of a black defendant for the rape-murder of a white girl. The restrictions were “aimed at the content of news reporting,” 419 U.S. at 1306, 95 S.Ct. at 4, and included bans on publishing interviews with witnesses or any possible confessions or inculpatory statements. Mr. Justice Powell, as Circuit Justice, wrote:
The court‘s order imposes significant prior restraints on media publication. As such, it would come to this Court “bearing a heavy presumption against its constitutional validity.” (citations omitted)
419 U.S. at 1307, 95 S.Ct. at 4. Justice Powell doubted that the order “would withstand the limitations that this Court has applied in determining the propriety of prior restraints on publication,” 419 U.S. at 1308, 95 S.Ct. at 5, and stayed the order to the extent it imposed direct limitations on media reporting.
The military court should not be criticized for refusing to do what was in all probability constitutionally impermissible — controlling or imposing prior restraints on the news media. See New York Times v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971). The three most important reports on the free press-fair trial dilemma have all stated that courts should avoid direct influence over the newsmen‘s domain while protecting defendants’ rights to a fair trial.49 Thus, we find no error in the actions taken by the military court which were fully consistent with the requirements of the Sixth Amendment and the limitations of the First Amendment.
We conclude, therefore, that petitioner Calley was not deprived of a fair trial by prejudicial pretrial publicity.
IV. Compulsory Process
Prior to trial, defense counsel sought unsuccessfully to have subpoenaed the following persons: Secretary of Defense Melvin R. Laird, Secretary of the Army Stanley R. Resor, and Chief of Staff of the Army William Westmoreland. The defense stated that these individuals were essential to establish Calley‘s defense that all charges against him should be dismissed because “command influence and control had permeated the processing of the charges against the Petitioner.”50 The military judge declined to require the appearance of these witnesses. The district court held that the failure to compel the attendance of these witnesses deprived petitioner of his Sixth Amendment right “to have compulsory process for obtaining witnesses in his favor . . .” We conclude, however, that the district court‘s holding was erroneous and exceeded the proper scope of review for reasons we shall articulate.
Most charges of command influence relate to attempts by superior officers to influence the court‘s decision as to the guilt or innocence and punishment of the accused.51 This is not, however, the contention raised here. Rather, it is that Calley was charged “in order to insulate higher-ups . . .” If, as counsel alleged, the charges were coerced, or unauthorized influence was utilized in having the allegations against Calley brought to trial, such activity would, in all likelihood, have violated
Calley‘s accusations that command influence was involved in bringing charges against him, and that he was being singled out as the Army‘s scapegoat, were based on speculations to this effect in news articles. The military prosecutor objected that such unconfirmed reports were an insufficient basis either for issuing subpoenas or for requiring the Government to come forward with proof rebutting the allegations. The military judge ruled, however, that since the issue of command influence had been raised, the prosecution was required to meet the issue.53 The military judge further indicated that he would accept defense counsel‘s allegations as fact unless the prosecution showed otherwise.
The Government subsequently called a number of witnesses: Colonel Lathrop, the staff judge advocate; Lieutenant Colonel Vincent and Captain Hill, who formally accused Calley of the charges subsequently lodged against him; Lieutenant Colonel Garrison, who had forwarded the charges with a recommendation of general court-martial; Lieutenant Colonel Cameron, who was directed to conduct an impartial Art. 32 investigation54 into the charges against Calley and submit his independent recommendations to the court-martial convening authority, the commanding officer of Fort Benning; and Generals Oscar Davis and Orwin Talbott, who together commanded Fort Benning (where Calley was accused, tried and convicted) from Au-
In sum, the military courts’ findings conclusively demonstrate that there was no colorable showing that any of the officers involved in processing charges against Calley were influenced either directly or indirectly by command pressure in their disposition of the case.55 At the conclusion of the testimony on this issue, Judge Kennedy stated, “[A]t this point there is absolutely no evidence that these people [Secretary Laird, Secretary Resor, General Westmoreland] communicated with any of the commanders down here.” The Court of Military Review exhaustively reviewed this question, and concluded:
All of the officers required to make a decision or recommendation in the processing of the charges against Lieutenant Calley testified that they did not receive, directly or indirectly, any instructions as to the appropriate disposition of the case.
46 C.M.R. at 1154.
The rule governing the issuance of subpoenas under military law, paragraph 115a of the Manual for Courts-Martial (Rev. ed. 1969),56 makes materiality and relevance important factors in the discretionary decision to issue a subpoena, and is very similar to
“if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous.” . . . That test places the burden of showing frivolity or abuse of process on the Government, where it properly belongs.
Welsh v. United States, 5 Cir., 1968, 404 F.2d 414, 417-418, quoting Greenwell v. United States, 1963, 115 U.S.App.D.C. 44, 317 F.2d 108, 110 (emphasis added). For cases following the rule in Welsh, see, e. g., United States v. Joyner, 5 Cir., 1974, 494 F.2d 501, 507, cert. denied, 419 U.S. 995, 95 S.Ct. 308, 42 L.Ed.2d 268; United States v. Romano, 5 Cir., 1973, 482 F.2d 1183, 1195, cert. denied, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753; United States v. Moudy, 5 Cir., 1972, 462 F.2d 694, 697-698; United States v. Hathcock, 5 Cir., 1971, 441 F.2d 197, 199-200. Cf. United States v. Smith, 5 Cir., 1971, 436 F.2d 787, 790, cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142, where we noted that a defendant‘s statements in an application to subpoena a witness do not “require the court to accept what is said in the application as gospel and forbid resorting to other sources to test the veracity of the averments.”
Under our previous cases, it is clear that if the prosecution successfully shows to be untrue the allegations upon which a request for the subpoenaing of a witness is based, there is no statutory or constitutional infirmity in the refusal to subpoena such witnesses. The military judge conducted an extensive hearing on Calley‘s contentions. He found there was no evidence to support the accusations of command influence. The defense was then forced to take the position that, although no one at Fort Benning was pressured into bringing charges as a result of command influence, General Westmoreland, the Secretary of Defense and the Secretary of the Army might nonetheless state, if called as witnesses, that they had in fact wielded such pressure. We hold that the conclusions of the military judge, which were fully and fairly considered and reaffirmed by the Court of Military Review, amply support the decision not to subpoena the witnesses in question.
In holding to the contrary, the district court exceeded the proper scope of review, and completely disregarded the finding of the military judge and the Court of Military Review that there was no factual basis for the allegations upon which the subpoena requests were premised. The district judge instead conducted his own review of the testimony presented to the military court, and concluded that there was improper influence and that the requested witnesses were necessary to Calley‘s defense. See 382 F.Supp. at 695 & n. 31, 696, 697 & nn. 35 and 36, 699. In our previous discussion of the scope of review, we have shown that it is erroneous for federal courts to “reweigh[] each item of relevant evidence in the trial record . . .” Burns v. Wilson, 346 U.S. at 146, 73 S.Ct. at 1051. Burns and its progeny require at a minimum that findings on disputed factual issues be adhered to where, as here, the issues have been “fully and fairly considered.” See, e. g., Parker v. Levy, supra, where the Court stated that factual determinations adverse to a petitioner could not be relitigated in habeas corpus proceedings and thus were beyond the proper scope of review. 417 U.S. at 760-761, 94 S.Ct. at 2564. As we held, supra, where a partic-
There is another important factor. After denying the request to subpoena Laird, Resor and Westmoreland, the military judge left open the possibility of granting the defense request. The military judge suggested that defense counsel attempt to obtain information from those persons about what their testimony might be, because defense counsel had conceded that he knew of no instance in which the individuals had been contacted personally regarding this matter. Defense counsel stipulated that he would make personal inquiries to the three individuals, and return subsequently with an offer of additional proof to justify granting the subpoenas should he develop any new information.58 Counsel failed to offer to the court any further evidence on the subject. Accordingly, petitioner may not now successfully claim that the military court‘s procedures were so grossly improper that there exists an error of constitutional magnitude. Cf. United States v. Smith, supra, 436 F.2d at 790.
The Failure to Subpoena John Tunstal
The district court also held that petitioner was deprived of his right to compulsory process by the military court‘s failure to subpoena John Tunstal to testify on Calley‘s behalf. The defense represented that Tunstal would testify that prior to March 16, 1968, prosecution witness Dennis Conti had been reprimanded or disciplined by petitioner for a sexual assault on a Vietnamese woman. This was claimed to support the defense contention that Conti was biased or prejudiced against Calley. But under questioning from the military judge, defense counsel acknowledged that this alleged incident occurred prior to My Lai, that Tunstal‘s previous statements had never indicated his knowledge of any such incident, that Tunstal had not even indicated whether Calley was present at or aware of the assault, and that Tunstal did not even indicate thаt
V. Discovery of Congressional Testimony
After the charges had been made against Calley and others, and national attention had been directed to the Army‘s handling of the case, Chairman L. Mendel Rivers of the House Armed Services Committee appointed an investigating subcommittee to make “a completely independent assessment of the case,” to be in charge of Congressman F. Edward Hebert. During its investigation, the subcommittee interviewed 152 witnesses, held 16 days of hearings, took 1,812 pages of sworn testimony, and examined hundreds of documents. In addition, the subcommittee took 3,045 pages of statements from witnesses, and conducted its own field investigation in Vietnam. Prior to commencing formal hearings, Congressman Hebert wrote Chairman Rivers a letter outlining the subcommittee‘s intended areas of study, and said:
Because of the pendency of certain criminal proceedings in the military courts and because some of the testimony expected before our Subcommittee may come within the purview of House Rule XI, we expect to hear all of our witnesses in executive session. And in a further effort to avoid prejudicing the rights of any present or potential defendant in any criminal case growing out of the alleged My Lai incident, the Subcommittee report will not seek to fix criminal responsibility. We feel that judgments in this area are within the purview of the courts.
Report of the Armed Services Investigating Subcommittee of the House Armed Services Committee, Investigation of the My Lai Incident, 91st Cong., 2d Sess. 3 (Comm.Print, July 15, 1970) [hereinafter cited as Hebert Report].
After the publication of the subcommittee report, the defense moved to
Due Process
The nature and extent of discovery allowed a defendant in a criminal case is relevant to the issue of whether due process requirements have gone unmet by the inability of the defense to obtain certain requested material. See United States v. Ross, 5 Cir., 1975, 511 F.2d 757, 763. Those tried before courts-martial have a substantial procedural advantage over civilian defendants in that
In the leading case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-1197. Brady requires the disclosure of material evidence favorable in the sense of mitigation or exculpation, and also requires the prosecution to disclose evidence important and useful for impeachment purposes. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Thus the principles of Brady do not apply unless the evidence is material to mitigation, exculpation or impeachment. United States v. Hildebrand, 5 Cir., 1974, 506 F.2d 406, 409.
The materiality requirement of Brady and subsequent cases is important here, for not every piece of evidence potentially useful to the defense need be disclosed. In Ross v. Texas, 5 Cir., 1973, 474 F.2d 1150, cert. denied, 414 U.S. 850, 94 S.Ct. 141, 38 L.Ed.2d 98, we rejected the suggestion that Brady encompasses all material which might have led a jury to entertain a reasonable doubt as to a defendant‘s guilt. We have instead held that before the nondisclosure of evidence reaches a level of constitutional significance, the evidence must be “crucial, critical, highly significant . . .” Luna v. Beto, 5 Cir., 1968, 395 F.2d 35, 41 (en banc) (Brown, C. J., concurring, joined by a majority of the court). See
While the testimony in question was assertedly needed for adequate cross-examination, this was not an instance where the “estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence . . .” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In Napue and Giglio, convictions were reversed for the failure to provide the defense with certain information critical to the credibility of a key prosecution witness. More generally, when Brady is invoked to obtain information not favorable on the issue of guilt or innocence but useful for attacking the credibility of a prosecution witness, the information withheld must have a definite impact on the credibility of an important prosecution witness in order for the nondisclosure to require reversal. See, e. g., United States v. Tashman, 5 Cir., 1973, 478 F.2d 129 (nondisclosure of plea bargaining session pertaining to defendant-turned-witness whose testimony was critically important); Flanagan v. Henderson, 5 Cir., 1974, 496 F.2d 1274 (withholding of rape prosecutrix‘s original affidavit charging another person with crime); United States v. Deutsch, 5 Cir., 1973, 475 F.2d 55 (failure to turn over to defense personnel file of witness who “was the government‘s whole case“); United States v. Hibler, 9 Cir., 1972, 463 F.2d 455 (nondisclosure of evidence refuting uncorroborated testimony of key accomplice-witness); Powell v. Wiman, 5 Cir., 1961, 287 F.2d 275 (nondisclosure of psychological background of key witness); cf. Evans v. Janing, 8 Cir., 1973, 489 F.2d 470 (reversal not required where no significant chance undisclosed evidence would have induced reasonable doubt in jurors’ minds).
The defense has not made the necessary showing of materiality in this case. The defense apparently concedes that there is not even a reasonable possibility that any of the evidence would be exculpatory, since it argues only that the requested testimony was essential for impeachment purposes. It is contended that it “was impossible for the defense to question” the witnesses’ truth or veracity without access to the prior testimony. This assertion overlooks or ignores the fact that the defense had numerous statements available for the cross-examination of every witness in question. This fact forces the defense to make the extremely speculative assertion that the “statements made to the Subcommittee cannot be equated to other statements [possessed by the defense]” because “there is a greater chance a witness would tell the ‘truth’ at a Congressional hearing . . .” We find this argument unpersuasive. Moreover, a number of the witnesses in question did not provide testimony essential to the prosecution‘s case. The Court of Military Review noted that “[t]hose witnesses who testified before the investigating subcommittee and at trial did not present the heart of the Government‘s case.” 46 C.M.R. at 1195. For example, witnesses Colburn, Hodde, Lagunoy and Culverhouse testified regarding the killings that occurred in My Lai. Calley‘s position at trial was not to refute the assertion that the killings occurred and that he participated in them, but rather
An additional factor is relevant to our conclusion that there was no Brady due process problem in this case. The testimony in question was never available to the prosecution, which not only did not benefit from the information, but was not responsible for its nonproduction. This fact distinguishes the present case from other Brady cases, because the defense contention in the present case is that Brady or the Due Process Clause entitles the defense to obtain evidence unavailable to the prosecution and beyond the power of the prosecution to obtain.
The holding of the Brady case, quoted supra, is that “the suppression by the prosecution” of certain kinds of evidence violates due process. The basic import of Brady is not that there is an abstract right on the part of the defendant to obtain all evidence possibly helpful to his case, but rather that there is an obligation on the part of the prosecution to produce certain evidence actually or constructively in its possession or accessible to it in the interests of inherent fairness. As we stated most recently in United States v. Ramirez, 5 Cir., 1975, 513 F.2d 72, 78, Brady “rests upon an abhorrence of the concealment of material arguing for innocence by one arguing for guilt.” 513 F.2d at 78. The Supreme Court‘s most recent discussion of Brady is in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). There, the Court stated that “[t]he heart of the holding in Brady is the prosecution‘s suppression of evidence, in the face of a defense production request . . .” (Emphasis added.) The Court then noted that prosecutorial suppression of evidence is one of the three elements of a Brady violation. 408 U.S. at 794-795, 92 S.Ct. at 2568.62
Jencks Act
The defense also invoked the Jencks Act,
The district court held that under the Jencks Act “the statement need not be made to or held by the prosecution; any statement held by any part of the United States Government is covered.” 382 F.Supp. at 700. The Court of Military
The Jencks Act followed swiftly on the heels of the Supreme Court decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), which reversed a federal conviction because of the failure to provide the defense with certain pretrial statements of key Government witnesses. But the Supreme Court has noted that the Jencks decision was “not required by the Constitution,” Scales v. United States, 367 U.S. 203, 258, 81 S.Ct. 1469, 1501, 6 L.Ed.2d 782 (1961), and that the decision was not cast in constitutional terms. Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 1229, 3 L.Ed.2d 1287 (1959). The decision in Jencks v. United States and the Jencks Act itself do not set forth constitutional requirements. Rather “[t]hey state rules of evidence governing trials before federal tribunals; and we have never extended their principles to state criminal trials.” United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969) (emphasis added).66
The Supreme Court decision in United States v. Augenblick controls our decision in this case, as it demonstrates
VI. Notice and Double Jeopardy
The district court also held that the Charges, Specifications and Bill of Particulars under which Calley was tried did not adequately notify him of the charges against him nor fully protect him against the possibility of double jeopardy. The court apparently found fair notice problems in the fact that the first and second Specifications of the Original Charge against Calley (the killings at the trial in the southern part of the hamlet and at the ditch in the eastern portion) covered multiple unnamed victims in a single specification. The double jeopardy problem discerned by the court was two-fold. First, quoting a hypothetical situation posed by Calley‘s counsel, the district court found that there was a risk that Calley might have been twice convicted for killing the same individual within the same trial. See 382 F.Supp. at 710. Second, the district court speculated that Calley might again be charged for other killings in Vietnam and might not bе able accurately to plead former conviction.67 We find no merit in these conclusions.
Fair notice and double jeopardy issues involve requirements of both the Fifth and Sixth Amendments. See United States v. Sanchez, 5 Cir., 1975, 508 F.2d 388, 395. The Constitution requires that criminal charges be sufficiently specific (1) to apprise the defendant of what he must be prepared to meet at trial, and (2) to enable the defendant to show with accuracy the extent to which he may plead former acquittal or conviction in other proceedings brought against him for a similar offense. Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962) and cases cited. We are satisfied that the charges against Calley, as amplified in
The charges set forth the time and place of the alleged offense. Under the Bill of Particulars, the prosecution set forth the chronological sequence of the separate charges: the killings at the trail occurred first, followed by the killings at the ditch, and next followed by the murder of the monk and then the child. The Bill of Particulars specified the actual physical location: the killings at the trail were in the southern portion of the village, those at the ditch occurred in the eastern part of My Lai (4). The instructions of the military judge were detailed and thorough, and required the prosecution‘s proof to conform to these allegations in the Bill of Particulars. The killings of the monk and the child, for example, were required to be proven as occurring in sequence after the mass killings at the ditch. The effect of Judge Kennedy‘s instructions is most evident with regard to the alleged killings at the trail. While there was substantial evidence of extensive participation by Calley in the slaying of the estimated 30-40 persons at this location, the court members returned a verdict of guilty for “not less than one” murder. This was no doubt due to the instructions and the testimony of a pathologist that he could point to only one wound on one body which he was certain to have been instantly fatal. Also, in considering the fair notice requirement, we mention again that Calley did not deny his involvement and participation in the mass killings at the ditch and the trail. It is difficult to understand how a defendant is deprived of fair notice of the charges against him when he confirms that the alleged incidents happened and that he participated in them. We are convinced that there was no failure to provide Calley fair notice of the charges against him, nor is there any likelihood that there will be any double jeopardy problems.
VII. Petitioner Calley‘s Cross-Appeal
Calley urged several additional contentions before the district court which the district judge did not discuss in his opinion. Among these was Calley‘s contention that the Army lacked jurisdiction over his person because he was improperly retained on active duty by the Army beyond his scheduled separation date of September 6, 1969, and that the military has no authority to court-martial a serviceman after the date of his scheduled separation by so retaining him on active duty. We agree, however, with the Government that Calley was lawfully retained in active duty status, and that military jurisdiction having properly attached prior to September 6, 1969, it continued until disposition of the case. See 46 C.M.R. at 1138-1142. We have carefully considered Calley‘s other contentions and, in light of our discussion of the proper sсope of review in part II, supra, conclude that the additional issues presented for review are beyond the scope of review of the federal courts.68
VIII. Conclusion
This Court is convinced that Lieutenant Calley received a fair trial from the
There is no valid reason then for the federal courts to interfere with the military judgment, for Calley has been afforded every right under our American system of criminal justice to which he is entitled.
Accordingly, the order of the district court granting a writ of habeas corpus to Calley is
Reversed.
BELL, Circuit Judge, with whom GEWIN, THORNBERRY, MORGAN and CLARK, Circuit Judges, join (dissenting).
Justice Holmes once observed that:
“Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”1
This is such a case. It was tried in the midst of the unusual emotion of the Nation‘s Vietnam Era. It was an emotion generated by a people sharply divided over the unprecedented and extraordinary use of our military resources in diplomacy; an emotion fueled by the print and electronic media in shaping public opinion without the impediment of censorship in what for all intent, purpose, and result was a war. The issues presented in this case, with the exception of the contention respecting the charges and their specificity, are all permeated to some extent with this atmosphere. In the view we take of the case, the withholding of evidence by the Congress (a Committee of the House), requires a new trial, or further proceedings in the district court.
Thus we would pretermit decision as to the prejudicial pretrial publicity issue. The Vietnam tragedy having ended, and the emotion and even the newsworthiness of the event and its component parts having subsided, it is unlikely that an arguable case could be made of prejudicial pretrial publicity in the event of a retrial.
Before joining issue with the majority on the conduct of Congress in withholding evidence, we note that the issue is not guilt or innocence, but whether Lt. Calley was denied substantial constitutional rights in his trial. It is necessary also to point out the following areas of agreement with the majority.
First, we agree that the scope of review in a federal habeas proceeding involving a military conviction is limited to claims:
” . . . that the court-martial acted without jurisdiction, or that substantial constitutional rights have been violated, or that exceptional circumstances have been presented which arе so fundamentally defective as to result in a miscarriage of justice. Consideration by the military of such issues will not preclude judicial review for the military must accord to its personnel
the protections of basic constitutional rights essential to a fair trial and the guarantee of due process of law. The scope of review for violations of constitutional rights, however, is more narrow than in civil cases. Thus federal courts should differentiate between questions of fact and law and review only questions of law which present substantial constitutional issues. Accordingly, they may not retry the facts or reevaluate the evidence, their function in this regard being limited to determinining whether the military has fully and fairly considered contested factual issues. . . .”
Majority op., p. 203.
We believe that the withholding of evidence from Calley by the Congress is an error of constitutional magnitude within this stated scope of review.
Second, because counsel failed to preserve error in connection with the effort to subpoena Secretary Laird, Secretary Resor and General Westmoreland, we find no error of constitutional magnitude. We do not reach the question whether the military judge erred in conditioning the issuance of the subpoenas on a preliminary interview with the witnesses to determine facts within their knowledge regarding command influence. It was arguably these witnesses who would have exercised or known of the exercise of command influence. It is appropriate to note, however, that we do not approve of the idea of substituting an interview for an examination under oath as a method of proving command influence.
We also find no error in the failure to subpoena John Tunstal.
Third, we find no error warranting federal habeas relief in the notice and double jeopardy claims arising out of the Charges, Specifications and Bill of Particulars.
Fourth, we conclude that the Jencks Act violation,
Fifth, we find no cognizable error or errors in Lt. Calley‘s cross-appeal.
This brings us to the issue, the resolution of which, in our judgement, requires a new trial or further proceedings in the district court. This issue involves the conduct of a Committee of the Congress, conduct which in the hindsight of United States v. Nixon, 1974, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039,2 if not theretofore, appears cavalier if not arbitrary. Whichever, it constituted a denial to Lt. Calley of due process by the Congress, and thereby the government. Indeed, it should be said that one can scarcely imagine a more government-oriented and government-involved set of facts.
Lt. Calley was in the army at the behest of his government; he was sent to Vietnam by his government; he was sent into combat at My Lai by his government. He was at My Lai with the consent and implied approval of the Congress. The government court-martialed him through the army and withheld evidence from him through the Congress. It is said that this is not a denial of due process. We disagree.
Our understanding of the majority opinion is that it excuses the conduct of Congress in ignoring the request of the defense, the military judge, and the prosecution, for the testimony given to a subcommittee of the House Armed Services Committee of prosecution witnesses concerning the My Lai incidents. These witnesses later testified in the Calley trial. Their testimony to the Congress was never made available to the Calley defense. No claim of privilege was asserted by Congress nor was the testimony made available to the military judge for in camera examination. The requests to the Congress simply went unanswered. Even subpoenas were ignored. To this date neither this court nor the district
Five reasons are offered in the majority opinion to justify this course of conduct. First, more extensive pre-trial discovery rights were accorded Lt. Calley by the military court than would have been available to him in a civilian court. Second, Lt. Calley was furnished other statements of every one of the witnesses used against him whose Congressional testimony was withheld. Third, “many” of the witnesses involved gave testimony at his trial which was not critical to his conviction. Fourth, the defense was unable to meet its burden of demonstrating that the testimony withheld was material, i. e., valid impeachment material not duplicative of that already possessed by the defense. Fifth, the subcommittee‘s statements were not available to the military court prosecution team.
The first, second and third reasons are supportive of due process. Each one helped to assure that the trial proceedings were fair, but they cannot be viewed as complete guarantees of due process either separately or cumulatively. For example, the third reason does not claim every witness, whose testimony was withheld, gave noncritical testimony. We do not understand this to be an assertion that the withholding of the statements of these witnesses was, if error, harmless beyond a reasonable doubt. Moreover, the concept of due process is not satisfied with a trial that is “mostly” fair or one in which “many” aspects of fairness are present.
The fourth and fifth reasons are unusual to say the least. It is said that the defense did not demonstrate that the content of the testimony withheld by the Congress was material to the verdict. With equal certainty, we can state that the prosecution could not show that testimony withheld was immaterial or cumulative.
When the majority fixes the “burden of proof” on Calley, it decides the issue against him. This case is distinct from every precedent that places the burden of demonstrating materiality on a defendant. These cases all involve fact situations in which the content of the material withheld was known when relief was sought. Here it was not. Cf. United States v. Deutsch, 5 Cir., 1973, 475 F.2d 55. The effect of the holding that Calley had this burden is to say he cannot know what Congress withheld because he does not know what they withheld.
While Brady v. Maryland, supra, establishes that unequal access to exculpatory facts by the prosecution over the defense can violate due process, it does not establish the opposite syllogism — if neither side has access to exculpatory facts, there can never be a violation of due process. The Constitutional guarantee of a fundamentally fair trial neither began with Brady, nor ended there. It is the broad Cоnstitutional precept of fundamental fairness which separates us from the majority.
The majority concedes that under Brady v. Maryland, supra, earlier statements of witnesses who testify for the prosecution, would be available to the defense if material to mitigation, exculpation, or impeachment. See Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104.
It is argued, however, that Brady and its progeny speak in terms of the “prosecution” withholding evidence and thus would not apply to the Congress, citing Moore v. Illinois, 1972, 408 U.S. 786, 92 S.Ct. 2562, 2567, 33 L.Ed.2d 706. If this is the law, then it would follow that the denial of evidence known to exist, material to a defense, but beyond the subpoena power because of the power of some part of the government, be it executive or congressional, cannot serve as a basis for a denial of due process. The fundamental nature of due process requires that we hold otherwise.
The United States Government has brought this defendant to trial, just as surely as that same government placed him in the chain of events leading to My Lai. To state that the defendant must face the government in fragmented form, executive, congressional or judicial, is to unduly freight the right to due process. Such fragmentation effectively eases the government‘s burden of proof by allowing a so-called independent branch to withhold evidence material to innocence.
Over the years courts have recognized that the law “will not allow governmental privileges to work against a criminal defendant who has a substantial stake in the outcome of the trial.”4 See United States v. Reynolds, 1953, 345 U.S. 1, 12, 73 S.Ct. 528, 534, 97 L.Ed. 727; Jencks v. United States, 1957, 353 U.S. 657, 670-71, 77 S.Ct. 1007, 1014-15, 1 L.Ed.2d 1103. Even more so, a blanket refusal by the government to supply evidence favorable to a defendant results in a denial of due process of law. Though the Supreme Court in Brady spoke of evidence in the hands of the “prosecution,” 373 U.S. at 87, 83 S.Ct. at 1194, 10 L.Ed.2d 218, we feel that this principle of due process applies equally to all parts of the government. Indeed, the concern of Brady was for the entire system of the administration of justice.
Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215, 218.
The breadth of the majority position must be that an exculpatory statement in the hands of the President or the Congress which absolutely absolves a defendant, could be withheld with impunity, even though resulting in a defendant‘s conviction. The underpinning for this argument is the privilege to withhold. Fortunately, the Supreme Court has restricted this governmental privilege departure from the Anglo-American tradition that the public has a right to every man‘s evidence except those protected by a constitutional, common law, or statutory privilege. See Branzburg v. Hayes, 1972, 408 U.S. 665, 687 & n. 26, 92 S.Ct. 2646, 2660 & n. 26, 33 L.Ed.2d 626, 644 & n. 26.
In United States v. Nixon, supra, 418 U.S. at 709, 94 S.Ct. at 3108, 41 L.Ed.2d 1064, the court said:
“We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”
This statement of the philosophy of the adversary system in criminal justice is repeated in United States v. Nobles, 1975, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.
“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
418 U.S. at 713, 94 S.Ct. at 3110, 41 L.Ed.2d at 1066, 1067.
The Nixon holding is applicable to this case. Congress has no greater privilege than the President in the circumstances presented. There was no claim of privilege or of confidentiality except for the letter referred to in the majority opinion stating that testimony would be taken in executive session to avoid prejudicing the rights of any defendant in the My Lai prosecution. There is no general claim of secrecy under Art. I, § 5, Cl. 3, of the Constitution.
We would hold that the government, through Congress, caused the army, prima facie, to deny Lt. Calley due process of law in withholding the testimony of the witnesses who testified against Calley. We say prima facie because the testimony has never been examined for its materiality on mitigation, culpability or impeachment.
This brings us to the remedy we would afford. The district court should be directed to examine the testimony of the witnesses before Congress for materiality. Should it prove to be material, the writ should issue conditioned on the retrial of Lt. Calley within a reasonable time. If not material, the writ should be denied. In the event Congress refuses to produce the testimony or refuses to claim constitutional secrecy within a reasonable time, the district court should grant the writ conditioned upon the retrial of Lt. Calley, but with the stipulation that those witnesses whose testimony before the subcommittee is sought and not obtained shall not be allowed to testify.5 These directions are without prejudice to the district court considering the testimony in camera for materiality should congress so request.6
One underlying principle of American jurisprudence is that no man or institution is above the law. Congress is not exempt from this principle. The military judge sustained this principle in the Sgt. Mitchell My Lai trial, n. 5 supra. The military judge failed to uphold this principle in the Calley trial. The majority of this court now condones that breach.
Notes
The traditional rule in such cases has been that there must exist a nexus between community prejudice and jury prejudice; there must be a showing that “prejudice found its way into the jury box.” Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir. 1966).
Major Ehrhardt stated his views as follows:
I have been in combat, not only in Vietnam but also in Korea and know the stress and strain that is on the man on the ground having to make decisions and also being in Vietnam and being with the Vietnamese, I have seen some things that the Viet Cong have done to people that they are supposed to be liberating and you can‘t tell in Vietnam whether the man sitting down at the table with you, if he is Vietnamese, whether he is friendly or the enemy and at that time, this was before the full investigation and everything, I made the statement that I thought the Army, at that time, was making a mistake.
Tr. at 636.
The military judge stated:
The voir dire has now been completed, and I‘m satisfied that any potential adverse effect of the pretrial publicity has been dissipated by the very delay in this case, and, of course, that is the reason I delayed the trial of this case as long as I did, that is, to let the effect of any pretrial publicity dissipate, and I am satisfied that the selected jurors aren‘t tainted by the publicity and will decide this case solely on the evidence that they hear presented in open court, and follow the law that I will give them following the presentation of the evidence.
Tr. at 918.
3.4 Selecting the jury.
It is recommended that the following standards be adopted in each jurisdiction to govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised.
(a) Method of examination.
Whenever there is believed to be a significant possibility that individual talesmen will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors. An accurate record of this examination shall be kept, by court reporter or tape recording whenever possible. The questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how his exposure has affected his attitude towards the trial, not to convince him that he would be derelict in his duty if he could not cast aside any preconceptions he might have.
47. Q Did you hear Captain Medina on the TV?
A On one occasion, yes.
Q And involved in that appearance was there some statements made by him as to what he may have done or may not have done?
A I don‘t recall the contents of the interview. I don‘t even remember where it took place but it was with a newscaster but I don‘t recall what the contents of the interview was.
Q Was there anything so impressive about Captain Medina that would affect you one way or the other against the accused?
A No, other than the fact that he appeared to answer his questions by the interviewer straight forward. That‘s the only thing that impressed me.
Q If it came to a question of credibility as between two officers, would that appearance and the impressiveness, if he was impressive, have any impact on you to that appearance on the TV?
A He seemed credible, yes.
Q Did you form an opinion of his credibility at that time?
A No.
Q Then, I will ask you, would you, while you feel he was very credible on that occasion, would you take that into account or would you limit your feelings to the credibility as he appears in the courtroom, if he appears?
A I would limit it to that.
Q To what occurred in the courtroom as to credibility without reference to what you saw on TV?
A No. I would evaluate just exactly what he presented to the court.
Q And you would forget about his TV impressions?
A Yes, sir.
The Report of the Committee on the Operation of the Jury System on the “Free Press-Fair Trial” Issue (Kaufman Committee), 45 F.R.D. 391 (1968) commented:
The Committee does not presently recommend any direct curb or restraint on publication by the press of potentially prejudicial material. Such a curb, it feels, is both unwise as a matter of policy and poses serious constitutional problems.
Id. at 401-402. The report of the Special Committee on Radio, Television, and the Administration of Justice of the Association of the Bar of the City of New York, Freedom of the Press and Fair Trial (1967) (the Medina Report), concludes that “as a matter of both constitutional law and policy, . . . extension of the contempt power is neither feasible nor wise.” Id. at 11. The American Bar Association Standards Relating to Fair Trial and Free Press (the Reardon Report) states that “the Committee is opposed to expanded use of [the contempt] power, both because of the constitutional problems that would be raised and because of the inhibitory effect on speech that ought not to be prohibited.” Id. at 27 (Approved Draft, 1968).
The request that General Westmoreland be subpoenaed was also indirectly relevant to Calley‘s assertion that the former Chief of Staff had a personal interest in the outcome of the case. It was contended that if Westmoreland had such an interest in the case, he was an accuser within the meaning of
(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.
Judge Kennedy stated:
[Y]ou better be prepared when you come in here . . . to show by live witnesses whether or not there has been influence on any commanders here at Fort Benning to prefer any charges against Lieutenant Calley. I think the issue is raised squarely by the statements, if true, that the defense has previously introduced in these proceedings, the quotes from Time magazine and Life and others as to the interest of the President, the Secretary of Defense and the Secretary of the Army . . . When there is a specter of command influence, the government must dispel it.
Tr., 116-117.
An
(a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel. Upon his own request he shall be represented by civilian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.
Paragraph 115a provides as follows:
A request for the personal appearance of a witness will be submitted in writing, together with a statement, signed by the counsel requesting the witness, containing (1) a synopsis of the testimony that it is expected the witness will give, (2) full reasons which necessitate the personal appearance of the witness, and (3) any other matter showing that the expected testimony is necessary to the ends of justice. The decision on the request must be made on an individual basis in each case by weighing the materiality of the testimony and its relevance to the guilt or innocence of the accused, together with the relative responsibilities of the parties concerned, against the equities of the situation.
The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same mаnner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.
The following colloquies are instructive:
MJ [Military Judge]: The point was made initially, the offer of proof as to what you thought you were going to say.
IC [Defense Counsel Latimer]: That is correct.
MJ: Which of course, raises in my mind the issue of command influence, but at this point there is absolutely no evidence that these people in any way communicated with any of the commanders down here.
. . . [A]bsent any showing at all that there was a communication, I don‘t see why a subpoena should be issued to any of these three people. I take it the Government resists the issue of a subpoena. If they consent, then
TC [Prosecution]: It does.
MJ: Very well.
IC: I‘m not even sure they‘ll answer the questions at all without a subpoena. They may refuse to answer them. Then what do I do? I think I should have some way of getting the information. Now, I‘m perfectly willing to find out if they‘ll interview and if they‘ll take an interview, and we‘ll go up and see exactly whether they do have any information that would be relevant in this case.
MJ: Why don‘t this time then I‘ll deny the request for the subpoenas at this time absent a further showing on the part of the defense if their testimony in fact would be relevant.
Tr. 272-273.
Shortly thereafter, defense counsel succinctly stipulated for the record his understanding of the agreed-upon procedure:
IC: I see, I‘m perfectly willing to stipulate with the Government that I will make inquiry of the witnesses we have been talking to and that if it‘s decided that we can make a presentable showing that we will furnish the information in written form to the judge, and if at that time, it is decided to go further, we would include at that time any requests for any further action, and I believe I would stipulate the arguments could be made either by brief, or they can be made by Major Raby in my absence.
Tr. 304.
We recently held that suppression is an important element of the due process issue. In Flanagan v. Henderson, 5 Cir., 1974, 496 F.2d 1274, 1276, we stated that due process is denied when the prosecution “deliberately” keeps from the defendant “evidence in its possession which was favorable to [the defendant‘s] acquittal . . .” (Emphasis added.) See Shuler v. Wainwright, 5 Cir., 1974, 491 F.2d 1213, 1220-1224; United States v. Ruggiero, 2 Cir., 1973, 472 F.2d 599, 604, cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398; Giles v. Maryland, 386 U.S. 66, 96, 87 S.Ct. 793, 808, 17 L.Ed.2d 737 (1967) (White, J., concurring).
The situation most closely resembling the Brady issue presented in this case occurred in United States v. Ehrlichman, D.D.C., 1974, 389 F.Supp. 95. There, G. Gordon Liddy moved to strike the testimony against him of E. Howard Hunt “on the ground that prior testimony of Hunt given under oath in executive session before the Subcommittee on Intelligence of the House Armed Services Committee last year has not been produced . . .” Both the Jencks Act and Brady v. Maryland were invoked to establish that the nonproduction of testimony was improper. In his opinion rendered July 3, 1974, Judge Gesell of the District of Columbia District Court concluded that Brady was inapplicable to the request because “[t]he subpoenaed testimony is not in the possession of the Government within the meaning of that decision, since the Subcommittee is neither an investigative or a prosecutorial arm of the Executive branch nor an agency of the Government in any way involved in the offense or related transactions.” (citations omitted).
The district judge held:
Since the news media told the world that this “murdering monster” could have been involved in the killing of as many as 600 “innocent civilians“, and considering the predilection of some to make Calley responsible for everything that happened in Vietnam, it is not inconceivable that further charges may be brought against him in some tribunal accusing him of the murder of “578 individuals of no specific age or sex” (or the “victim” might even be specified); how would it then be known by the accused whether he had already been convicted for the murder of 22 of them, since the “persons” alleged to be the victims of the murders for which he has been convicted are not identified in the specification or bill of particulars?
382 F.Supp. at 710-11 (emphasis in original).
The other issues presented in the cross-appeal are as follows: (1) whether Calley was denied due process of law because he received inadequate training and preparation on when to disobey an order; (2) whether the members of the Army Court of Military Review panel which reviewed Calley‘s case should have disqualified themselves; (3) whether command influence prevented Calley from obtaining a fair trial; (4) whether the court-martial was without jurisdiction to try Calley because Army Chief of Staff General Westmoreland had an alleged personal interest in the proceeding, see note 50, supra; (5) whether the application of the “ordinary sense and understanding” standard to the defense of superior orders deprived Calley of due process or subjected him to cruel and unusual punishment; (6) whether Calley was denied due process by being prosecuted for the crime of murder under the U.C.M.J. rather than for a war crime; and (7) whether Calley‘s sentence by the court members was unconstitutional under the Eighth Amendment.