Mercer v. Dillon

Opinion of the Court DARDEN, Judge: This petition presents the issue of whether the decision of the Supreme Court in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), is to be applied in cases not subject to direct review on the date of that decision. After his plea of guilty in 1967, a general court-martial2 convicted the petitioner of rape and sentenced him to a dishonorable discharge, total forfeitures, confinement at hard labor for life, and reduction in grade. The convening authority reduced the period of confinement to ten years and the board of review affirmed. This Court denied a petition for review in August 1968, and the petitioner is serving his sentence at the United States Disciplinary Barracks, Fort Leavenworth, Kansas. His petition seeks reconsideration of this Court’s order denying review or release upon habeas corpus or coram nobis. This Court is not unanimous in viewing the consideration of extraordinary relief in this instance as being in aid of its jurisdiction, as section 1651 of Title 28, United States Code, [265] requires, but the majority position on that issue results in our addressing the petition on the merits. At the time of the offense the petitioner lived on post at Schofield Barracks, Hawaii, with his wife and her two children by a former marriage. When he was unsuccessful in trying to persuade his wife not to go out with another man, he informed her that “something was going to happen that night” and that he would call her to explain “what he had done.” Later he drove off base with his eight-year-old stepdaughter, raped her, and returned to his home. Although the Government contends that the offense in this case was service-connected within the meaning of O’Callahan v Parker, supra, we do not decide that question in view of our disposition of the case on other grounds. For the reasons stated below we propose to apply the decision in O’Callahan v Parker, supra, only to those convictions that were not final before June 2, 1969, the date of the O’Callahan decision. This Court has already given a limited retrospective effect to the O’Callahan decision by applying it to those cases still subject to direct review on the date of that decision. United States v Borys, 18 USCMA 547, 40 CMR 259 (1969); United States v Prather, 18 USCMA 560, 40 CMR 272 (1969). Anything less than full retroactivity is subject to incongruities such as the one mentioned by Mr. Justice Douglas dissenting in Desist v United States, 394 US 244, 255, 22 L Ed 2d 248, 89 S Ct 1030 (1969): “. . . The most notorious example is Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 974, where, as I recall, some 80 eases were presented raising the same question. We took four of them and held the rest and then disposed of each of the four, applying the new procedural rule retroactively. But as respects the rest of the pending cases we denied any relief. Johnson v New Jersey, 384 US 719, 16 L Ed 2d 882, 86 S Ct 1772. Yet it was sheer coincidence that those precise four were chosen. Any other single case in the group or any other four would have been sufficient for our purposes.” Chief Justice Warren had what is to us a sensible answer when" he recognized in Jenkins v Delaware, 395 US 213, 23 L Ed 2d 253, 89 S Ct 1677 (1969), that such incongruities must be balanced against the objective of the changed constitutional interpretation that could not otherwise be practically effected. The decision in O’Callahan speaks in terms of jurisdiction. Traditionally, lack of subject-matter jurisdiction voids a conviction. Ex parte Siebold, 100 US 371, 25 L Ed 717 (1880). Because the new standard in O’Callahan was expressed in terms of jurisdiction, does this necessarily change the pronouncements in Linkletter v Walker, 381 US 618, 14 L Ed 2d 601, 85 S Ct 1731 (1965), that the Constitution neither prohibits nor requires retrospective effect? The effect of the O'Callahan decision may be viewed as extending to members of the armed forces in some circumstances constitutional rights, of grand jury indictment and trial by petit jury. Such a view conduces to only a prospective application of the extension. Gosa v Mayden, 305 F Supp 486 (ND Fla) (1969). Other ^possible justifications for prospective effect are the thoughts that O’Callahan did not rule on the existence of subject-matter jurisdiction, that it limited the exercise of such jurisdiction, and that this limitation is functional only. United States v King, ACM 20361, July 30, 1969. In a flow of decisions over the last decade that has been termed a criminal law revolution, the Supreme Court has redefined and extended the rights of persons subjected to both [266] Federal and State trials. Although these decisions have often dealt with th,e applicability of various provisions of the Bill of Rights to the States through the due process clause of the Fourteenth Amendment, they have not related exclusively to State procedures. Cf. United States v Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926 (1967). In Linkletter v Walker, supra, the Supreme Court reviewed the arguments on whether a judicial decision that overturns previously established law is to be applied retroactively. The Court concluded that “the Constitution neither prohibits nor requires retrospective effect.” Linkletter v Walker, supra, at page 629. Each ease must be determined by a careful weighing of the complex interests enumerated in Stovall v Denno, 388 US 293, 18 L Ed 2d 1199, 87 S Ct 1967 (1967), as: (a) The purpose to be served by the new standard; (b) The extent of the reliance by law enforcement authorities on the old standards; and (c) The effect on the administration of justice of a retroactive application of the new standard. The purpose to be served has been called the foremost of these factors and the other two have been relied on only when the purpose did not clearly dictate either a retroactive or a prospective application. Desist v United States, supra. We consider first the purpose of the O’Callahan decision. Our present task is not to reargue the merits of that decision by emphasizing the extensive statutory and judicial protections an accused in the armed forces enjoys.3 We think it relevant to point out, however, that one of the deficiencies in military justice mentioned in the O'Callahan decision is that the presiding judge does not enjoy constitutional protection of tenure and salary; this is also true of State courts, in which most of the serious nonservice-connected crimes such as murder and rape are now being tried. While the military lacks a true grand jury system, Article 32 of the Uniform Code of Military Justice, 10 USC § 832, provides a substitute pretrial investigation that in some ways may be considered superior to the grand jury in that an accused has the right to be present, to present exonerating evidence, to cross-examine adverse witnesses, and to be represented by counsel, none of which rights he enjoys as constitutional rights in civilian proceedings. In fact, under existing constitutional decisions, the Federal right to indictment or to presentment by grand jury does not apply to the States. Hurtado v People of California, 110 US 516, 28 L Ed 232, 4 S Ct 111 (1884) ; see Beck v Washington, 369 US 541, 8 L Ed 2d 98, 82 S Ct 955 (1962). Other aspects of a military trial that have been cited unfavorably in comparison with civilian trials are the absence of a requirement for a unanimous verdict and the possibility that members of the court may not enjoy the same independence of judgment as civilian members of a jury. Against these charged deficiencies should be balanced the possibility that the composition of a court-martial is for a member of the armed forces more nearly a jury of his peers than is a civilian panel in a State where the member may be involuntarily stationed. Irrespective of whether the purpose of the new decision indicates the result on retroactivity, we believe that the second and third factors in the Stovall standard strongly suggest a denial of retroactive application. Regarding the second Stovall test, the armed forces have acted in good faith in assuming that the Constitution empowered Congress to provide for trial by courts-martial of offenses now held to be nonservice-connected. The result in O’Callahan had not been [267] foreshadowed in other opinions. Before O’Callahan the armed forces had absolutely no hint that such considerations as the nature, time, and place of the offense might limit trials by courts-martial. In Wolf v Colorado, 338 US 25, 93 L Ed 1782, 69 S Ct 1359 (1949), the Supreme Court had given notice of its concern that States not permit use of illegally procured evidence and in the absence of State-initiated safeguards the Court later implemented its concern in Mapp v Ohio, 367 US 643, 6 L Ed 2d 1081, 81 S Ct 1684 (1961). In contrast, all the guidance the military had tended to indicate that the sole determinant of jurisdiction was status. For instance, in Kinsella v United States, 361 US 234, 246, 4 L Ed 2d 268, 80 S Ct 297 (1960), the Supreme Court declared: “. . . [T]he power [of Congress] to ‘make Rules for the Government and Regulation of the land and naval Forces’ bears no limitation as to offenses. The power there granted includes not only the creation of offenses but the fixing of the punishment therefor. If civilian dependents are included in the term ‘land and naval Forces’ at all, they are subject to the full power granted the Congress therein to create capital as well as noncapital offenses. This Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the safeguards of Article 3 and the Fifth and Sixth Amendments. Due proc-cess cannot create or enlarge power.” [Emphasis supplied.] In that same opinion the Court also indicated “[t]he test for jurisdiction, it follows, is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’ ” Id., at page 241. In the absence of any indication of a constitutional infirmity in courts-martial, neither the Congress nor the armed forces had any reason to restrict the jurisdiction of such courts. The transcendent reason for our position is the effect of a retroactive application of O’Callahan on the administration of justice, the final test as outlined in Stovall v Denno, supra. About the right to trial by jury in the States, the Supreme Court noted in DeStefano v Woods, 392 US 631, 634, 20 L Ed 2d 1308, 88 S Ct 2093 (1968): “. . . [T]he effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases. . . .” In many of the courts-martial of earlier years, jurisdictional facts could have been developed on the record if there had been any reason to predict the need for doing so. The practical effect of voiding earlier convictions will often be to grant immunity from prosecution as a result of State statutes of limitations having run, witnesses having been scattered, and memories having been taxed beyond permissible limits. Peacetime court-martial jurisdiction over what became nonservice-eon-nected offenses under O’Callahan was first expressly conferred in 1916.4 This jurisdiction was extended in 1950 to include murder and rape committed in the United States in peacetime.5 Thus the possibility of retroactive reconsideration exists as far back as 1916. We recognize that not all the persons possibly entitled to review and relief would have the initiative or a sufficient financial interest to justify the time and expense of bringing suits or applications. A reliable estimate of the number of court-martial convictions that could be overturned by [268] a retroactive application of O’Callahan is nearly impossible to secure. For the one fiscal year of 1968, the Army, the Navy, and the Air Force conducted. approximately 74,000 special and general courts-martial. If only the smallest fraction of these courts-martial and those conducted in the other years since 1916 involved an O’Callahan issue, it is an understatement that thousands of courts-martial would still be subject to review. The range of relief could be extensive, involving such actions as determinations by the military departments of whether the character of discharges must be changed, and consideration of retroactive entitlement to pay, retired pay, pensions, compensation, and other veterans’ benefits. Among the difficulties would be the necessity of reconstructing the pay grade that a member of the armed forces would have attained except for the sentence of the invalidated court-martial, a task complicated by the existence of a personnel system involving selection of only the best qualified eligibles and providing for the elimination of others after specified years of service. A per curiam opinion in DeStefano v Woods, supra, refers to the Court’s statement in Duncan v Louisiana, 391 US 145, 158, 20 L Ed 2d 491, 88 S Ct 1444 (1968), that “We would not assert, however, that every criminal trial — or any particular trial — held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.” The DeStefano opinion continues: “. . . The values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial. . . . States undoubtedly relied in good faith upon the past opinions of this Court to the effect that the Sixth Amendment right to jury trial was not applicable to the States. . . . [T]he effect of a holding of general retroactivity on law enforcement; and the pdmiq-istration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases in those States not until now accepting the Sixth Amendment guarantee.” [392 US, at page 634.] It seems that all these comments apply with at least equal force to an analysis of the effect of applying O’Callahan retroactively. Though we deal here with the fairness of a trial by members of a court-martial as compared to a jury, while in Duncan the comparison was between judge and jury, we still could not assert that every criminal trial or any particular trial by court-martial is unfair or that an accused may never be as fairly treated by members of a military court as he would be by a civilian jury. As in many of the cases affected, the accused in the case sub judice pleaded guilty. How could it be argued that he has been subjected to an unfair trial on the issue of his guilt? Second, the armed forces undoubtedly relied on the absence of any earlier indication that anything other than status limited the authority of Congress to make crimes punishable by court-martial. Finally, when a holding of gsneral retroactivity would place countless convictions for serious crimes in jeopardy and would often result not in a retrial by a civilian court but an avoidance of further trial, we have no difficulty in concluding that the disruption of the administration of justice would be substantial. The petition is denied. Chief Judge Quinn concurs. Footnotes [2] CM 417336. [3] Quinn, Some Comparisons Between Courts-Martial and Civilian Practice, 15 UCLA Law Review 1240 (1968). [4] Act of August 29, 1916, chapter 418, section 1342, 39 Stat 650. [5] Act of May 5, 1950, chapter 169, 64 Stat J07,