Burns v. Wilson/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

The charges which are made concerning the confessions exacted from these accused are quite lurid. But the basic, undisputed facts, though not dramatic, leave the clear impression that one of the petitioners was held incommunicado and repeatedly examined over a 5-day period until he confessed.

Herman Dennis.-On January 7, 1949, Herman Dennis was taken into custody by the civil authorities. (At this time Guam was under a government supervised by the Navy.) He was asked or told to give consent to take a lie detector test. He was given the test and thereafter confined. Instructions were issued that he was to talk to no one except the two investigators, one the Assistant Chief of Police of Guam, and the other a member of the Berkeley, California, police department who had been called in to assist in the solution of the crime. Dennis was questioned intermitently by these two officers from Friday, January 7, until Tuesday, January 11. On the latter date he was informed that his 'half-brother,' Calvin Dennis, had confessed. He refused to believe it. Calvin was brought before him and asked if he had confessed. Calvin answered 'yes' and was immediately taken away.

During the evening of January 11, Herman agreed to confess and executed two hand-written notes. The investigators left him alone at about midnight. The next morning he was taken to an office and in the presence of several officers, he made a confession which was typed and signed by Herman on each page. He made another such statement the next day, January 13, 1949. Later he repudiated all his confessions.

He was taken before a magistrate on January 17, 1949, and turned over to the military authorities on January 29, 1949. He was formally charged with rape and murder on February 1, 1949, and tried by general court-martial from May 9 to May 16, 1949. The confessions were introduced over objection by the defense. Herman took the stand and testified that they were involuntary and untruthful. The trial resulted in conviction and sentence of death.

Robert Burns.-This defendant was taken into custody by the civil authorities on January 7, 1949. He was turned over to the military on January 30, 1949. He did not confess. He was formally charged with rape and murder on February 20, 1949, and was tried by general court-martial from May 27, 1949 to May 30, 1949. Calvin Dennis testified against him. It appears that calvin had previously been tried and convicted of the same crimes and sentenced to death. His sentence was later commuted to life imprisonment by the President.

Those are the undisputed facts concerning the confessions.

The role of Calvin Dennis is not too clear; and he is not a petitioner here. But it appears that he was arrested at the same time as the others and confessed some time between Friday, January 7 and Tuesday, January 11. His affidavit attached to the petition below alleges that he was beaten and forced to confess and that the authorities promised him money had a light sentence if he would implicate the others. He says that his testimony at the Burns trial was false and given under duress. Both he and Herman now state that they are not half-brothers and are in fact in no way related.

I think petitioners are entitled to a judicial hearing on the circumstances surrounding their confessions.

Congress has power by Art. I, § 8, cl. 14 of the Constitution 'To make Rules for the Government and Regulation of the land and naval Forces'. The rules which Congress has made relative to trials for offenses by military personnel are contained in the Uniform Code of Military Justice. 64 Stat. 108, 50 U.S.C. § 551 et seq., 50 U.S.C.A. § 551 et seq. Those rules do not provide for judicial review. But it is clear from our decisions that habeas corpus may be used to review some aspects of a military trial.

The question whether the military tribunal has exceeded the powers granted it by Congress may be tested by habeas corpus. See Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691; Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. But it is also clear that that review is not limited to questions of 'jurisdiction' in the historic sense.

Of course the military tribunals are not governed by the procedure for trials prescribed in the Fifth and Sixth Amendments. That is the meaning of Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3, holding that indictment by grand jury and trial by jury are not constitutional requirements for trials before military commissions. Nor do the courts sit in review of the weight of the evidence before the military tribunal. Whelchel v. McDonald, supra, 340 U.S. at page 124, 71 S.Ct. 147. But never have we held that all the rights covered by the Fifth and the Sixth Amendments were abrogated by Art. I, § 8, cl. 14 of the Constitution, empowering Congress to make rules for the armed forces. I think it plain from the text of the Fifth Amendment that that position is untenable. The Fifth Amendment provides:

'No person shall be held to answer for a capital, or     otherwise infamous crime, unless on a presentment or      indictment of a Grand Jury, except in cases arising in the      land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor      shall any person be subject for the same offence to be twice      put in jeopardy of life or limb; nor shall be compelled in      any criminal case to be a witness against himself, nor be      deprived of life, liberty, or property, without due process      of law; nor shall private property be taken for public use,      without just compensation.'

What reason is there for making one specific exception for cases arising in the land or naval forces or in the militia if none of the Fifth Amendment is applicable to military trials? Since the requirement for indictment before trial is the only provision of the Fifth Amendment made inapplicable to military trials, it seems to me clear that the other relevant requirements of the Fifth Amendment (including the ban on coerced confessions) are applicable to them. And if the ban on coerced confessions is applicable, how can it mean one thing in civil trials and another in military trials?

The prohibition against double jeopardy is one of those provisions. And consistently with the construction I urge, we held in Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 837, 93 L.Ed. 974, that courtmartial action was subject to that requirement of the Fifth Amendment. The mandates that no person be compelled to be a witness against himself or be deprived of life or liberty without due process of law are as specific and as clear. They too, as the Court of Appeals held, are constitutional requirements binding on military tribunals.

If a prisoner is coerced by torture or other methods to give the evidence against him, if he is beaten or slowly 'broken' by third-degree methods, then the 'trial' before the military tribunal becomes an empty ritual. The real trial takes place in secret where the accused without benefit of counsel succumbs to physical or psychological pressures. A solider or sailor convicted in that manner has been denied due process of law; and, like the accused in criminal cases, see Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, he should have relief by way of habeas corpus.

The opinion of the Court is not necessarily opposed to this view. But the Court gives binding effect to the ruling of the military tribunal on the constitutional question, provided it has given fair consideration to it.

If the military agency has fairly and conscientiously applied the standards of due process formulated by this Court, I would agree that a rehash of the same facts by a federal court would not advance the cause of justice. But where the military reviewing agency has not done that, a court should entertain the petition for habeas corpus. In the first place, the military tribunals in question are federal agencies subject to no other judicial supervision except what is afforded by the federal courts. In the second place, the rules of due process which they apply are constitutional rules which we, not they, formulate.

The undisputed facts in this case make a prima facie case that our rule on coerced confessions expressed in Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801, was violated here. No court has considered the question whether repetitious questioning over a period of 5 days while the accused was held incommunicado without benefit of counsel violated the Fifth Amendment. The highest reviewing officer, the Judge Advocate General of the Air Force, said only this:

'After reading and re-reading the record of trial, there is     no reasonable doubt in my mind that all the confessions were      wholly voluntary, as the court decided, and were properly      admitted. Where the evidence as to whether there was coercion     is conflicting, or where different inferences may fairly be drawn from      the admitted facts, the question whether a confession was      voluntary is for the triers of the facts (Lyons v. Oklahoma,      322 U.S. 596 (64 S.Ct. 1208, 88 L.Ed. 1481); Lisenba v.     California, 314 U.S. 219 (62 S.Ct. 280, 86 L.Ed. 166)). Thus     the court's decision on the voluntary nature of the      testimony, arrived at from first-hand hearing and      observation, is presumptively correct and will not be      disturbed unless manifestly erroneous (MGM Corporation v.      Fear (9 Cir.), 104 F.2d 892; ACM 3597, Maddle, 4      Court-Martial Reports (AF) 573).'

There has been at no time any considered appraisal of the facts surrounding these confessions in light of our opinions. Before these men go to their death, such an appraisal should be made.