Page images
PDF
EPUB

Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied.

E. M. BRANNON
Major General, USA

The Judge Advocate General

JAGY CM 296265

28 August 1950

MEMORANDUM OPINION

SUBJECT: Application for Relief under Article of War 53 in the Case of Technician Fifth Grade Ben L. Beets, 38405308, et al (CM 296265)

The applicant was tried jointly with Technician Fifth Grade Lonnie W. Nanney, 14040408, by general court-martial at Darmstadt, Germany, on June 1, 1945, charged with rape, in violation of Article of War 92. Both were found guilty and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for life. The reviewing authority approved the sentence. After a board of review in a branch office of The Judge Advocate General with the European Theater, constituted under Article of War 502, held the record of trial legally sufficient, the sentence was ordered executed. Through subsequent clemency action, the sentence of Beets has been reduced to ten years.

An application for a writ of habeas corpus was made by petitioner to the Federal District Court, First Division, Kansas, in 1947. This court, on January 22, 1948, on the evidence presented before it at that time, found that Beets was denied effective assistance of counsel and counsel of his own selection "in violation of the Sixth Amendment to the Constitution" and Article of War 17, that he was tried, convicted, and imprisoned "in violation of the due process requirements of the Fifth Amendment"; and that the court-martial was without jurisdiction to try and sentence him.1 He was thereupon released from custody. Motions to vacate judgment were overruled on December 30, 1948. An appeal to the Court of Appeals, Tenth Circuit, resulted in a reversal on February 2, 1950, of the judgment of the district court,' based upon the applicant's failure to exhaust his remedies prior to the habeas corpus application, in that relief had not been sought under Article

1 Beets v. Hunter, 75 F. Supp. 825 (Kans. 1st Div. 1948).

2 Hunter v. Beets, 180 F. 2d 101 (10th Cir. 1950).

of War 53. The opinion recited that the determination was without prejudice to further proceedings after the Article of War 53 remedy had been exhausted. A petition for certiorari was filed in the United States Supreme Court by Beets on March 29, 1950, but was denied.'

The applicant, through counsel, now files a petition for relief under Article of War 53, seeking vacation of the sentence and restoration to Army duty, or an honorable discharge. He urges that the trial, conviction, and sentence were unlawful and void. These contentions are based upon allegations that there were irregularities in the pre-trial investigation, that the petitioner was denied his right to produce witnesses at the trial, that he was denied effective counsel, that the "rigid discipline" in the organization in which the case was tried was such that the guilt of the accused was “in a sense pre-judged," and that all courts-martial in that organization "were under the influence and domination of Army command authority."

The record reveals that Beets and his co-defendant, Nanney, were members of the 33d Armored Regiment of the 3d Armored Division on April 3, 1945, at which time they were located near Dahl, Germany. During the afternoon of that day, Beets and Nanney entered a farm house that was being used as a hospital; the former was armed with a carbine, Nanney with a pistol, and both had been drinking intoxicants. Nanney entered a room in which Miss Wilma Ley, a 25-year-old German physician, was partly clad and bathing. She asked him to leave and he complied, but again entered shortly afterward, Miss Ley having meanwhile fully dressed. He handed her a bottle and told her to take a drink which she did. Then Beets entered and Nanney held a pistol to her "stomach," at which time she called to a student nurse who was outside the room, telling her to seek help. After both soldiers had forcibly undressed the physician, Beets threw her upon the bed and had sexual intercourse with her while Nanney held her; she struggled to free herself, but applicant struck her twice and his companion held her by the hair. About that time the student nurse returned with three American soldiers whose assistance she had sought; as they attempted to enter, the door was held by Nanney who also fired a shot inside the room. One of the soldiers, whom the student nurse had brought, left to summon an officer, and the others demanded that Beets and Nanney come out of the room, threatening to use their weapons in the event of refusal. Then Dr. Ley hurried out of the room, followed by Beets and

a No. 711, Sup. Ct. of the U. S.

4 339 U. S. 963.

Nanney, who were thereafter held by the other soldiers until an officer arrived.

The accused did not make any statement at the court-martial trial nor offer any evidence to dispute the testimony of the witnesses called by the prosecution.

The purported irregularities in the pre-trial investigation involved a supposed absence of impartiality in the conduct of the inquiry. Petitioner adds that a thorough and impartial investigation would have "eliminated the doubts and uncertainties, the conflicts and inconsistencies contained in the Beets court-martial record." He does not elaborate and explain how this would have aided him, and it would appear that such an action would normally result in the reverse, since any "irregularities" in the prosecution's case would not then appear. To support these allegations, the petitioner states that he was not identified by the rape victim prior to trial, and recounts minor inconsistencies in the testimony given by witnesses to the investigating officer when compared with that later adduced during the trial. At the outset, the remarks of the United States Supreme Court on this subject should be noted. It said:

*

*

"We do not think the pre-trial investigation procedure required by Article 70 can properly be construed as an indispensable prerequisite to exercise of Army general court-martial jurisdiction. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70.""

However, a consideration of the above alleged irregularities will reveal that even had they existed, they would not have adversely affected the substantial rights of the accused. In view of the fact that Beets was apprehended immediately after the commission of the offense, by American soldiers who were at the scene of the crime and who positively identified him at the trial, his identity as the perpetrator, apart from the testimony of the victim, cannot be seriously questioned. In fact, an affidavit, dated April 22, 1947, from applicant's defense counsel at the court-martial trial indicates that at that hearing accused's defense posture was not lack of identity but consent by the victim. The so-called inconsistencies in the testimony were not such as to cast doubt upon the fact that the crime was committed by the accused, as charged, so it does not appear that they produced any substantial prejudice to his rights.

Humphrey v. Smith, 336 U. S. 695, 697, hn 2 (1949)

The petition states that the accused unsuccessfully sought Sergeants Lum G. Hunt, Arthur W. Wiggins, Robert L. Maison, and Technician Fifth Grade Guy Dan Smith, as witnesses in his behalf. Affidavits of these four, given at the pre-trial investigation, are appended to the record of trial, and show the nature of the information which they possessed. These affidavits also indicate that the accused was permitted to question the affiants during the pre-trial investigation. None of them had seen the petitioner within an hour of the offense (fixed at 6 p. m. by the investigation, although not fixed in the record of the trial), although one affiant was with the accused until 5 p. m., and two others saw him at 7 p. m. These three affiants said that Beets had been drinking but was not drunk at the time they saw him.

The only corroboration given to the applicant's contention that he was wrongfully denied this testimony is his own statement given in Federal court at the habeas corpus hearing; because of obvious self-interest, it lacks persuasion. The further facts that no continuance was requested in order that the defense might procure as evidence whatever information these individuals possessed, and that it could have no bearing upon the outcome of the trial, in any event, sustain the conclusion that the petitioner was not improperly denied the right to present witnesses. A defense counsel may exercise judgment in the matter of witnesses that he will call to support his client.'

It is contended by petitioner that he was denied effective counsel; he bases this upon the asserted failure to grant his request that he be defended by a Lieutenant Fox, allegedly inadequate available time for preparation by Captain Morgan as regularly appointed defense counsel, and an averment that Captain Morgan had been censured and coerced by members of the court at some prior time. The law which provides for defense counsel of the accused's own choosing does not give an absolute right to such representation; favorable consideration of the selection is dependent upon the availability of the counsel sought. It is shown by the present petition that Lieutenant Fox was in England at the time of the trial, and that the trial was held in Germany under virtual combat conditions, although shortly after the cessation of hostilities; this would appear to suffice as adequate reason for the unavailability of Lieutenant Fox. In any event, this determination is one for the appointing authority to make on

Adams v. U. S. ex rel McCann, 317 U. S. 269, 281, hn 5 (1942).
Lewis v. Sanford, 79 F. Supp. 77, 78, hn 5 (N. D. Ga. 1948).

$ Article of War 17, Manual for Courts-Martial, U. S. Army, 1928.

the spot; there is no evidence to indicate an abuse of his discretion in this respect."

The record of trial does not disclose that any continuances were requested in order to give the defense counsel more time in which to prepare, and it affirmatively appears that Beets expressed satisfaction, at the beginning of the trial, with the regularly appointed defense counsel. The question of inadequate time to prepare for trial was raised in Avery v. State of Alabama, a case in which the defendant was tried for murder, and defense counsel were appointed by the court only three days before the actual trial. The attorneys for the defendant made an affirmative showing there that other litigation took much of their time during that three-day period, but the United States Supreme Court denied the contention of ineffective counsel, saying:

"That the examination and preparation of the case, in the time permitted by the trial judge, had been adequate for counsel to exhaust its every angle is illuminated by the absence of any indication, on the motion and hearing for new trial, that they could have done more had additional time been granted.""

Petitioner herein has failed to show, or even claim, that a better defense could have been perfected, regardless of additional time which might have been granted his counsel in which to prepare." It has been said that it is a favorite game of those convicted of offenses to criticize their counsel's efforts. "The opportunity to try his former lawyer has its undoubted attraction to a disappointed prisoner.'

9912

66 6 * * * Unquestionably, now that the record is made, able counsel can go over every question and perhaps frame a better one, may assign better reasons for objections taken, may suggest avenues of cross-examination which did not occur to him who actually faced the court and jury. So, too, military strategists go over the movements of lost battles and demonstrate how it might have been won. The short answer to this line of argument is that the constitution does not guarantee the assistance of the most brilliant counsel' * * Even were minor errors of counsel discovered, they must be accepted under the circumstances in the case, absent timely complaint, as waived by the accused."

9913

"Hiatt v. Brown, 339 U.S. 103, 108, hn 2 (1950); Henry v. Hodges, 171 F. 2d 401, 403, hn 5 (2d Cir. 1948) cert. den. 69 S. Ct. 937, rehearing den. 69 S. Ct. 1167. 10 Avery v. State of Alabama, 308 U.S. 444, 452, hn 7 (1940).

11 United States v. Lowrey, 84 F. Supp. 804, 806, hn 1 (W. D. Pa., 1949). 12 Diggs v. Welch, 148 F. 2d 667, 670, hn 4 (App. D. C., 1945) cert. den. 325 U.S. 889; cf. Dorsey v. Gill, 148 F. 2d 857, 876, hn 49 (App. D. C. 1945); U.S. ex rel Feeley v. Ragen, 166 F. 2d 976, 980, 981, hn 9, 10 (7th Cir. 1948); U. S. ex rel Thompson v. Nierstheimer, 166 F. 2d 87, 88, 89 (7th Cir. 1948).

13 U.S. ex rel Mitchell v. Thompson, 56 F. Supp. 683, 688, hn 8 (S. D. N. Y. 1944). 14 Tomsett v. Ohio, 146 F. 2d 95, 98, hn 2 (6th Cir. 1944) cert. den. 326 U.S. 869.

« PreviousContinue »