UNITED STATES v. AUGENBLICK

Transcript: 

Argument of Edwin L. Weisl

Chief Justice Earl Warren: Number 45, United States Petitioner versus Richard G. Augenblick et al.

We will wait for a moment until it gets quiet.

Now Mr. Weisl you may proceed with your argument.

Mr. Edwin L. Weisl: Thank you Mr. Chief Justice and May it please the court.

These are two cases here on writs of certiorari to the United States Court of Claims.

In each of them, the United States seeks reversal of judgments of that court granting back pay to former servicemen, each of whom had been discharged from the service pursuant to judgments of conviction of court-martials.

In each of these cases, the United States urges that the Court of Claims lacks power to an effect constitute itself an additional appellate tribunal to review courts-martial for errors of law and therefore their judgment should be reversed.

Beyond the common question of law, neither of these cases has anything in common.

In Augenblick, we have a conviction of a naval officer for an indecent -- commission of an indecent lewd and lascivious act and Juhl, the conviction for black market activities.

In Augenblick, the Court of Claims in effect reversed the court-martial conviction and granted back pay because of a purported Jencks Act question.

In Juhl, the court of claims purported to reverse a court-martial conviction and award back pay, because of a question of a conviction of Juhl's on what the Court of Claims said was self-contradictory, uncorroborated, accomplice testimony.

In other words, a mere evidentiary question.

The United States says of the Court of Claims lacks to power to do this.

That the finality provisions of the Uniform Code of Military Justice providing for review of courts-martial ultimately by the Court of Military Appeals bars the Court of Claims from reviewing once again these judgments of conviction for factual Jencks Act questions and the like.

But that even if this Court finds that the Court of Claims has some measure of power to review courts-martial, no matter whether that power be broader or narrow, the Court of Claims was in error here.

Augenblick --

Justice John M. Harlan: Does the Court of Claims judgment in the United jurisdiction reinstate this man?

Mr. Edwin L. Weisl: No sir, I believe their only power is to reward back pay, but I think that clearly the effect is to reverse the conviction.

I'm not certain whether or not a board for the review of records, military records would then reinstate the man and wipeout the conviction utterly.

I certainly think -–

Justice Potter Stewart: How would he go about, he was dismissed of course from the service?

Mr. Edwin L. Weisl: They were both dismissed yes sir.

Justice Potter Stewart: How would they go about after the Court of Claims decisions if they stand are getting reinstated?

Mr. Edwin L. Weisl: I believe that each service now has a board for the correction of records and they would apply to that board citing the decision of the Court of Claims.

Justice Potter Stewart: You don't know whether that's happened or neither.

Mr. Edwin L. Weisl: I do not sir and I really do not know whether this is ground.

Justice Potter Stewart: Incidentally, the Court of Military Appeals denied review in the Augenblick case, but it was in effort to get in Juhl a review of the court --

Mr. Edwin L. Weisl: Juhl was not entitled to such review, because this conviction was for less then six months or was for six months.

Justice Potter Stewart: And the jurisdiction in the Court of Military Appeals is completely discretionary.

Mr. Edwin L. Weisl: It is discretionary except -- first of all, it can only review convictions in which sentences of a year or more then awarded.

I believe that as mandatory review of conviction of officers of flag –

Justice Potter Stewart: That was Augenblick's conviction one that was within the –-

Mr. Edwin L. Weisl: Yes it was.

Justice Potter Stewart: Could have been reviewed, but it's discretionary whether or not –

Mr. Edwin L. Weisl: It was discretionary.

They have a certiorari I would say type jurisdiction.

Justice Potter Stewart: Even though he wasn't sentenced to jail.

Mr. Edwin L. Weisl: That's correct.

Justice Abe Fortas: Well, your point really is Article 76 of the Uniform Code of Military Justice; page two of your brief should be read to mean that the judgments are not only final and conclusive, but that they must be accepted as concluding of -- as final and conclusive in a subsequent civil suit.

Mr. Edwin L. Weisl: That is correct Mr. Justice Fortas and I wish to point out however that -- remember we are dealing with back pay cases and not with habeas corpus situations.

Of course, there is a review by habeas corpus of courts-martial.

Unknown Speaker: (Inaudible)

Mr. Edwin L. Weisl: No, Augenblick could not have had a review by habeas corpus, Juhl could have he did serve some time.

Justice Potter Stewart: Well, Augenblick I gather after the denial by the Court of Appeal, government's position must be, he had nowhere else to go, he couldn't have come here.

Mr. Edwin L. Weisl: That is correct.

Justice Potter Stewart: He couldn't come here from the Court of Military Appeal.

Mr. Edwin L. Weisl: That is correct.

Justice Potter Stewart: So he is finished.

Mr. Edwin L. Weisl: Yes, we feel that he was finished when his conviction was in effect upheld by the Court of Military Appeals.

Justice Potter Stewart: Now that's why I asked you, what do you mean that in effect upheld, they simply refused him --

Mr. Edwin L. Weisl: Well, their denial of -–

Justice Potter Stewart: We don't uphold things here when we refuse, when we deny cert.

Mr. Edwin L. Weisl: No, I think that perhaps I failed to point out that courts-martial are reviewed even if they do not ultimately reach the Court of Military Appeals.

Justice Potter Stewart: Internally within the service.

Mr. Edwin L. Weisl: Within the services indeed, but they are constituted within each services, boards of review that by statute, recent statute have been elevated at least to the title of Courts of Military review or appeal consisting of Judge Advocate General officers and/or civilians, which have a very large degree of independence I think and freedom from influence by the command.

Certainly, when you think that the purpose of courts-martial are disciplinary.

Justice Potter Stewart: Do these two cases go through such boards.

Mr. Edwin L. Weisl: Juhl case again because of the shortness of the conviction did not reach such a board, but it was reviewed by the convening authority of the court and somewhat –-

Justice Potter Stewart: By the chain of command --

Mr. Edwin L. Weisl: Yes, but each of them have judge, staff judge advocates to advice them on questions of law and fact that may be relevant and I think there has been a high degree of scrupulousness to protect rights of defendants in these courts-martial.

I think this Court can well take into account the fact --

Justice Potter Stewart: Yes, but I gather it, and if actually there had been a serious defect in this court-martial, even constitutional in Augenblick's case.

Since he could not go to habeas, I gather and the Court of Military Appeals here had denied it.

Even though there is a serious constitutional defect in this court-martial conviction.

No court can do anything about.

Mr. Edwin L. Weisl: I would say that --

Justice Potter Stewart: That has to be your position.

Mr. Edwin L. Weisl: That is my position and in Augenblick, I say this is not a harsh one because the Court of Military Appeals could have presented to it any constitutional issue and if there were a substantial one, I submit --

Justice Potter Stewart: Were they still however substantial in that -- we might think it's substantially, they might not and refuse review, is that so?

Mr. Edwin L. Weisl: I'm sure that it is possible this court and that –-

Justice Potter Stewart: No, but they might refuse review.

Mr. Edwin L. Weisl: Yes.

Justice Potter Stewart: And we couldn't reach it.

Mr. Edwin L. Weisl: That is correct.

Justice Abe Fortas: So, let us assume Mr. Weisl that all of the proceedings were held in the Courts of Military Justice and no question about them.

Your position has to be that when the defendant in the criminal case or whatever it is called.

In the military -- before the military courts files an action for back pay in the Court of Claims, a separate jurisprudential system that the -– that Court cannot then go into any questions at all.

Mr. Edwin L. Weisl: It is my -– I believe this is the standard conclusion, we suggest in our brief and I'm prepared to argue that at times a broader scope of review has been considered by this court and at other times the Court of Claims has assumed that power without having an appeal taken to this Court.

There is no need for –-

Justice Abe Fortas: As far as that Court of Claims discovers that or concludes that the Military Courts and no jurisdiction.

And that therefore over the offense charge and that therefore the soldier was wrongly separated from the service, but on a jurisdictional ground, would that the open to the Court of Claims?

Mr. Edwin L. Weisl: I suggest that there is no need for that.

The question that's really before this Court.

Your Honor I would submit that the Court should hold that the Court of Claims need not in fairness to accused persons have that jurisdiction now.

I will say that they have exercised it though.

Justice Abe Fortas: I'm asking you but your theory, theory of the United States.

Is it the theory of the United States that in a subsequent suit for back pay, the Court of Claims should be precluded from enquiring into the jurisdiction of the Military Courts with respect to the person and the offence charged?

Mr. Edwin L. Weisl: It is our theory, it is.

We concede however that the Court of Claims has in the past, without being challenged, assumed the power to look at the jurisdiction.

We cite in point two of our brief, a couple of cases where they did that very thing, they realized at the Court was improperly constituted, didn't have the proper officers sitting on it and then they granted back pay.

I submit though with what Congress has done to protect the accused providing I think a very elaborate and adequate system of review, there is no need for the Court of Claims to –-

Justice Abe Fortas: Well, that seems me that's different a question though, because I'd suppose the accused says alright I accept this.

I not going -– I'm not interest in getting and setting aside the conclusion that I am to be separated from the service or whatever it may be, but I want to exhaust my remedies provided by law.

I want to resort my remedies provided by law for the recovery of back pay.

And then it files an action in the Court of Claims.

I take it now that your position is that regardless of the alleged effect even if it's a jurisdictional defect and the Military Tribunal's position of the United States, is that -- that is that the Court of Claims is precluded from going into that?

Mr. Edwin L. Weisl: What we really feel Mr. Justice Fortas is that there is a statute, Congressional Act, which was embodied in Article 76 and the UCMJ.

That is maybe review within the Court Martial military system, final and conclusive.

We think that it is adequate to protect defendants against improperly constituted tribunals, therefore the Court of Claims is precluded from doing this.

Now I understand the Court's difficulty and problem with it, but I'm sure whether one is really tilting at windmills these days, when there is a true adequate and largely civilian reviewed Court Martial, most of the Judge Advocate Officers in the services today, this Court well knows are really oriented people who are serving brief time in military service, in order to satisfy their obligation, they are jealous guardians of the rights of defendants.

Court of Military Appeals record of reversal not convictions is astoundingly high, I think probably higher that any civilian court that reviews –-

Justice Potter Stewart: Well I suppose that Mr. Weisl, if one convicted by a military Court Marital really has a substantial constitutional claim, and he just got a bang that he's sentenced to prison, so he can under habeas corpus shouldn't he?

Mr. Edwin L. Weisl: Well I think that's an important distinction that we have habeas preserved where the –-

Justice Potter Stewart: Well, how do you preserve only where he is sent to prison?

Mr. Edwin L. Weisl: Yeah but it's really --

Justice Potter Stewart: Otherwise as I understand your answers to Mr. Justice Fortas no matter how defective the Court Martial proceeding, if the Court of Military Appeals doesn't review it, you can't ever get any judicial review.

Mr. Edwin L. Weisl: One, being deprived of one's liberty or one's life to which habeas also attaches, is a far more injurious and then –-

Justice Potter Stewart: You don't think dismal from the service.

Augenblick was in the previous --

Mr. Edwin L. Weisl: Absolutely don't appoint the two, certainly the constitution prohibits any suspension of writ of habeas corpus, except at time of war where it's silent about suspension of the right of an action for back pay, one way or the other.

I don't think you can really equate the two and I think that you've got also to realize that at some point a conviction of Court Martial must be final, and I think its reasonable to say that when Congress, again I think is jealously considering the rights of defendants and setting up an elaborate system of review has considered the question and as an act of the finality clause --

Justice Abe Fortas: Mr. Weisl had Article 76 never been passed would then your positions, that Court of Claims had no jurisdiction whatsoever?

Mr. Edwin L. Weisl: Well I think at all times there has been --

Justice John M. Harlan: Actually they reported to exercise it for, (Inaudible) years without any question.

Mr. Edwin L. Weisl: Well there were very few cases Mr. Justice Harlan.

Justice John M. Harlan: Maybe he's exaggerating.

Mr. Edwin L. Weisl: The couplet returned in the century and then they were one like involving a World War II conviction where the man was denied right to counsel that was not taken to this Court.

Justice John M. Harlan: The really important thing I suppose is -- or at least one of the important thing is what effect, what's the purpose of 18 -- of Article 76?

Mr. Edwin L. Weisl: I also think however that the possibility of jurisdictional defects in Military Courts is far less then I think we may be talking about here today.

I can conceive of a civilian being improperly tried, of course that may happen, but I think this Court has laid those questions to rest in many of its decisions.

I think it's virtually impossible, if not utterly impossible having an improperly constituted Court because it is all laid out very clearly for the use of commanding officers who were generally advised by Judge advocates and certainly a legal review of patent defect of that character would ultimately reach a trained lawyer who would be able to advise his superior that such a Court Martial cannot stand.

I think, if you look at what the Court of Claims did here you can see at least the evils in giving them a very broad scope of review.

I'd like to turn to the facts, each of these cases briefly to show that really these are cases in which this Court has injected itself into the appellate proceedings unnecessarily and I think even under the broadest review improperly.

In Augenblick for example, as I said we have a reported Jencks Act question.

Augenblick was accused of committing an natural sex act with one airman Hodges and airman Hodges was interrogated by naval intelligence officers and purportedly a tape recording of his conversation was made.

When it came for trial, his tape recording had disappeared.

Contrary to what I think respondent Augenblick's brief says, a very full and adequate hearing was afforded at the Court Martial to try to find out what had happened to that tape.

The government voluntarily produced eight witnesses, each of whom testified before the Court Martial as to what precisely they knew about the tape, leading to the conclusion that if one had been made and it probably had, one; the tape recording device might have failed because in an other time, a partially garbled transcript was obtained, but at worst the tape had reached an opposite naval intelligence investigator who had by accident allowed the tape to be erased when it was used to records someone else.

The reason that this tape was sought supposedly was to investigate whether an alleged promise had been made to airman Hodges that if he testified against Augenblick, he would receive an honorable discharge.

But at his Court Marital his own defense counsel has conceded that this couldn't have happened because after all Hodges was in the air force and he was being interrogated by naval intelligence, civilian inspectors and even an airman wouldn't expect that a navy man could promise him an honorable discharge from his own service, so this had been conceded away.

And moreover we had a case of harmless error, because while Hodges had testified to the indecent act actually taking place, two police officers had seen the act, but at seeing something related to it which was well not the act, indecent and lascivious conduct and the Court convicted him only of the indecent and lascivious conduct, not of actually committing the unnatural act.

Justice Abe Fortas: No, but you're assuming all of this, this comes under Article 76, but this is an appellate review or a record of a trial provided by Article 76.

And that therefore because if it's not appellate review within the sense of Article -- in which that phrase is used in Article 76, then it is an original proceeding in the Court of Claims isn't it?

Mr. Edwin L. Weisl: Yes.

Justice Abe Fortas: And as an original proceeding in the Court of Claims, I suppose there are different standards are followed, but certainly Article 76 does not govern, isn't that right?

If you assume that this is an original proceeding and not appellate review in the Court of Claims, does Article 76 apply?

Mr. Edwin L. Weisl: I think it proposed to foreclose the study of the -- further review of the issues raised in the Court-Martial Article 76 does whether you deem the Court of Claims acts original or review --

Justice Abe Fortas: To me that's the issue here and it's an issue that turns upon the precise language of Article 76.

Chief Justice Earl Warren: We will recess now.

You may continue your argument.

Mr. Edwin L. Weisl: Thank you Mr. Chief Justice.

Answering the question which Mr. Justice Fortas posed just before the lunch recess, which I understand to be whether Article 76 applies to an original proceeding in the Court of Claims as opposed to a mere appellate review.

I think it is my position that I believe Article 76 was designed to accomplish the foreclosure of further proceedings even in the Court of Claims by way of original suit.

The second sentence of Article 76 which I would like to read to the Court, reads as follow.

Orders publishing the proceedings of Court-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies and officers of the United States subject only to action upon a petition for a new trial as provided in Article 73.

So I do believe that indeed.

Justice Potter Stewart: What where you reading?

Mr. Edwin L. Weisl: I was reading the second sentence of Article 76 of the uniform code, that's on page two of our brief.

I would like to correct a mistake that I believe I made to the Court and for which I apologize.

Justice Abe Fortas: Coming back to that, what does that mean orders publishing the proceedings of Courts-martial and all action taken pursuant to those proceedings?

The second didn't help you because action taken pursuant to the proceedings here was discharge of these men.

What does the first part mean?

Orders publishing the proceedings in the Courts-martial.

Mr. Edwin L. Weisl: It seems to me, it means the decisions and that the language of these decisions binds the Courts and they must follow them.

I admit it's confusing and I don't believe the legislative history enlightens us further on this particular point except that I would like to invite the Court's attention to one statement in both the House and Senate reports on Article 76 itself in which they say that -- of Article 76, that subject only to a petition for writ of Habeas Corpus in Federal Court.

Article 76 provides for the finality of Court-martial proceedings and judgements.

So I think that the legislative history at least supports the construction that I placed upon this second sentence.

Chief Justice Earl Warren: Mr. Weisl.

Now I'll ask you the question, perhaps I should know, but in some in some instances the defendant could come direct to this Court from the Court of Military Appeals.

I'm just wondering if that is true, is it not?

Mr. Edwin L. Weisl: No, Mr. Chief Justice.

Chief Justice Earl Warren: How do we get the court case, did that come from -- that's Habeas Corpus.

Yes, I beg your pardon, then I don't need to ask the question.

Mr. Edwin L. Weisl: I think I made one misstatement that I'd like to correct, then I believe I have left the Court in confusion somewhat as to the scope of the Court of Military Appeals powers of review.

First in the -- as to the Juhl case, I stated to the Court that he had been discharged from the service.

This in fact is not the case, he had been reduced in rank and deprived of pay.

He is still as I understand a member of the military service.

Juhl was the man who was convicted in the second case of black marketing.

Chief Justice Earl Warren: The commander is still in the service?

Mr. Edwin L. Weisl: No Commander Augenblick is the sexual offense, he has been dismissed.

Juhl, who was the enlisted man who was found guilty of black marketeering was merely reduced in rate and fine.

And this of course brings before us the question of the scope of the Court of Military Appeals, powers of review and it has the power to review Courts-martial when there is a sentence in excess of one year or when there is in the case of an officer dismissal from the service which is how Augenblick got at least to the point where they decided not to hear it.

And in the case of an enlisted man if he gets a bad conduct or dishonorable discharge, he than can have a review by the Court of Military Appeal.

Furthermore I analogized here review powers to certiorari in this Court.

I believe they -- when they deny a review, they're in effect doing a bit more than the mere denial of writ of certiorari because if they fail to find good cause they can decline to review it, so they at least have to look at a record to determine whether there is good cause shown for review, which I believe tends to be a stronger action than the mere denial of a writ of certiorari by this Court.

I was, at the close on my argument reviewing briefly the facts in Augenblick to show you what the Court of Claims is really doing here and I stated that they had heard eight witnesses to determine what had happened to these tape recordings that at most what was found was that the tape had been inadvertently re-used, that the witness Hodges really, his testimony was not that upon which Augenblick was convicted, but rather that a police officer so even if the defense did not have the statement of Hodges and even if the statement that he made was wholly inconsistent with his testimony or trial, the error would have been harmless.

Further a Board of Review heard the Augenblick case on the Jencks Act question, studied it thoroughly and issued a rather lengthy opinion, a dissenting opinion on the very Jencks Act question.

And yet the Court of Claims elevated this whole question into one of constitutionality I think, which is how they justified their taking of the case at all.

And I think this is one of the evils of giving the Court of Claims, a broad scope of review of Court-martial because they just go ahead to go into these facts, they're going to look at lengthy records, do something which in effect the defendant and the Court-martial already has done for him by Congressional mandate to what a fair chance at having his conviction reversed for errors of the type that was present in Augenblick.

Juhl is an even more striking example of why the Court of Claim should be kept out of this area, I believe.

In Juhl the question was whether his accomplice was the sole reason he was convicted and if so whether that accomplice's testimony was self contradictory.

And this question the Court of Claims in its own opinion elevated to one of jurisdiction of the Court-martial.

If you have accomplice's testimony and use it improperly this deprives the Court-martial jurisdiction, is the way the Court of Claims justified its action in Juhl.

Now here's what happened, Hughes was the accomplice of Mr. Juhl and he testified that together, Mr. Juhl and I are engaged in black market activities by buying goods from a PX and we were privileged to do it in England and selling it to civilians at considerable profit to ourselves.

Other witnesses which, I would think any civilian Court would conclude were corroborative, testified that at one point Mr. Juhl had gone into the PX and bought a lot of extra cigarettes or cigars.

Another witness placed Mr. Juhl at the scene where an admitted sale by Hughes of black market cigars to civilian, English civilians had taken place, he didn't show Juhl actually participating when he was at least there, which I certainly would suggest his corroboration.

And the wife of Hughes saw Mr. -- wife of Mr. Hughes the accomplish saw defendant Juhl at one point coming out of a building with a large roll of English currency, after a black market transaction had apparently taken place.

The Court of Claims not only looked at the accomplice testimony and said it was self contradictory and uncorroborated, but they said that this was jurisdictional.

Why was it jurisdictional, because it -- somewhat it seemed fit to have a separate chapter in the rules relating to accomplice testimony and they -- from this, they concluded that it was thought so important the accomplice testimony was that if you don't properly charge it, you can't base a conviction on and it's jurisdictional a bootstrap argument if I ever had one.

I might add also that in Juhl we had an actual waiver of an instruction on accomplice testimony, which was offered to the defense because the defense counsel, when the law officer of the General Court-Martial said, “Do you want an instruction on accomplice testimony?”

Replied, “No, I don't.

It's not the theory of our defense, it's not important to our defense.”

That's why I submit to this court that our position which may seem to be a harsh one that even for a lack of jurisdiction in the court-martial, the Court of Claims is foreclosed from review, is not as harsh as it may sound.

Because of the provisions for adequate review of these court-martial on the part with civilian lawyers when anything, really damaging to a defendant takes place, lengthy imprisonment, dismissal, dishonorable discharge, bad conduct discharge, he is protected, I submit.

Congress has seen to it that he is protected.

Secondly, if the Court of Claims is going to assume jurisdiction of these cases and elevate the very close, I don't even think it's close Jencks Act question in Augenblick to a constitutional question of the first magnitude or take accomplice testimony of a simple question where I think the Court of Claims was clearly wrong and was even waived by the defendant and say this is a jurisdictional defect in the court-martial, you are going to have every single court-martial that results in affirmance by at any point in the line brought to the Court of Claims and one final effort for one final reversal.

This is something that is contrary to good sense.

I think it's contrary to discipline in the services and it's not necessary for the protection of accused persons, habeas corpus exists in the really serious situation.

Chief Justice Earl Warren: No, question about the composition of this court.

Mr. Edwin L. Weisl: None whatsoever Mr. Chief Justice.

Chief Justice Earl Warren: No question about the charge having been one for which the court-martial could discipline a; serviceman?

Mr. Edwin L. Weisl: No question Mr. Chief Justice.

Chief Justice Earl Warren: No question about the procedures except the value of this evidence and how it should affect your innocence?

Mr. Edwin L. Weisl: No Mr. Chief Justice.

Now I say that if this court were to find that there is a limited scope of review in the part of the Court of Claims, it should fight at most, that there is a right to review in respect to whether the court-martial had jurisdiction of the person of the subject matter.

Answering an earlier question Mr. Justice Harlan as to whether if article 76 did not exist, would we be taking this position here in court? The answer is no, that the Court of Claims had purported to exercise the power to review courts-martial for lack of jurisdiction in the past and I would concede that absent article 76 today.

Once again, I believe this would be a very limited effect because of the rarity of a properly constituted courts-martial because for any type of offense today, legal advice is available to the convening authority can pose the court on the rules for how to constitute court-martial are very clearly laid out, and having dealt with them in my military career before I had gone through a last couple of events, so that a layman can understand.

I don't believe there is any need for this court to expand the jurisdiction of the Court of Claims even to areas where on habeas corpus of District Court could review a court-martial that is for in addition to jurisdiction, constitutional defect.

Once again in order to bootstrap itself into giving Augenblick and Juhl back pay, the Court of Claims elevated these rather elementary and, questions of certainly not constitutional law into constitutional questions in order to -- for reasons of its own grant pay to these men.

Justice Byron R. White: Mr. Weisl, could this plaintiff go anywhere else beside the Court of Claims to sue for back pay?

Mr. Edwin L. Weisl: For back pay, no sir.

He could however go to these boards for the correction of records to try and have his conviction expunge, which would give him the right to the back pay.

Justice Byron R. White: Why can't he go to the Court of Claims on this claim?

Mr. Edwin L. Weisl: Why?

Justice Byron R. White: Yeah.

This is just -- what kind of a suit is it?

Mr. Edwin L. Weisl: It's an action for back pay.

Justice Byron R. White: Back pay, and that's within the jurisdiction of the Court of Claims and no other Court?

Mr. Edwin L. Weisl: That's correct.

I believe.

Justice Byron R. White: In the case of Shapiro --

Mr. Edwin L. Weisl: Tucker act case Mr. Justice White.

Justice Byron R. White: Then you don't -- you don't then just say that there is anything distinctive about Court of Claims as compared with a district court?

Mr. Edwin L. Weisl: No sir, except I would say that in the sense that it reviews convictions that, in my mind lacks the expertise of a district court in looking into these matters and I think the decisions in both of these cases illustrate that lack of expertise very well, because as I say in elevating --

Justice Byron R. White: You based your finality argument on the fact this is the Court of Claims as distinguished from district court or --?

Mr. Edwin L. Weisl: Oh, no I say this is final as to any court expect in habeas corpus situation Mr. Justice White.

Justice Potter Stewart: You say that, at least your primary argument is that even jurisdictional questions are not reviewable in a pay claim in the Court of Claims?

Mr. Edwin L. Weisl: We've taken that position Mr. Justice Stewart.

I would say this -- that one of the reasons that let us, and led me to make this argument here is that it isn't harsh as it seems and I think pointed out why it isn't to the extent that this court feels if our position is harsh and is unfair to people, I would certainly not walk out of this court room feeling that the government has been done a disservice if the court would hold otherwise.

I do feel that it is not necessary to give the Court of Claims this kind of power in order to protect defendants in military court.

Justice Potter Stewart: But if -- even if given its all traditional power that it use to exercise around the century and perhaps later prior to the recent wholesale amendments of the military justice system, you would say that these two cases certainly don't even come close to be approaching --

Mr. Edwin L. Weisl: That is our position, but let me add one warning note to the assumption by the Court of Claims the power to decide question of jurisdiction.

Remember that in each of these cases it did try to elevate these questions into jurisdictional ones and constitutional ones the only review of the Court of Claims is in this court, does that mean that the government -- in cases such as these where they were clearly wrong, will have to be coming to the Supreme Court on rather simple elementary criminal law questions that the Court of Claims has demonstrated it lacks expertise on and their decision in this case I think clearly shows it.

Justice Potter Stewart: I just wanted to follow that up with one more question that is the Shapiro case, which did go considerably further than the earlier jurisdictional cases in the Court of Claims and which was on the books at the time that Congress enacted the new legislation with respect to military justice and therefore Congress can be presumed to have known about that case, what do you with that?

Mr. Edwin L. Weisl: Well, I think that the language of Article 76 together with the statement from the house and senate reports that I read to the court about finality indicates that they did not consider Shapiro or intended to overrule, and they did at one point say that the Article 76 or the whole was a quantification, I don't agree that Shapiro was written into the law, it may have been but I just do not feel that that was a case.

Justice Potter Stewart: What were the facts of the Shapiro case?

Mr. Edwin L. Weisl: Shapiro case was -- it's amusing enough to recite it like that, I think Shapiro was a defendant, a man at a court-martial, and the way he had done it was by substituting one Mexican American for another and the rape victim and everyone else identified the imposter as the actual defendant.

The defendant in that case was acquitted with so enraged Shapiro superiors that they ordered him tried for obstructing justice and they gave him a half hour to prepare.

He asked for counsel, and counsel asked for time to prepare, and they denied it and they held in effect he had deprived his right to counsel that under Johnson and Zerbst in effect that they are not having counsel at the trial, deprived the court of jurisdiction and therefore they gave him his pay.

Obviously, the government didn't choose to try to take Shapiro of this court.

I don't think the failure to appeal that case can be used an inference that we acquiescent --

Justice Abe Fortas: The matter of your, the matter of your position here is that the Court of Claims has no function with respect to the ascertain of claims for back pay, where the person has been separated from service, military service by Court Martial.

Mr. Edwin L. Weisl: Yes.

Justice Abe Fortas: You just carve that out of the clear statutory jurisdiction of the Court of Claims wouldn't you?

Mr. Edwin L. Weisl: Yes sir.

With the --

Justice Abe Fortas: How about with, are there any similar situations that would arise outside of the Court's martial?

Mr. Edwin L. Weisl: I've tried --

Justice Abe Fortas: Is there -- for example under the, with respect to civil servants, is there a procedure for a dismissal and is there a statutory provision that a dismissal shall be final and conclusive?

Mr. Edwin L. Weisl: I know of none Mr. Justice Fortas, on the other hand I don't -- where the dismissals have been reviewed in the appellate courts I do not know of any case where they've then gone to the Court of Claims and sought back pay.

Again I'm not able adequately to answer your question.

Justice Abe Fortas: Well there are claims for back pay by civilian employees who claim they've been unjustly dismissed.

Mr. Edwin L. Weisl: I know of no statute that would prevent them from going to the Court of Claims, despite the fact that their dismal had been reviewed by the Courts of Appeal and the Courts of Claims.

Justice Byron R. White: Well the Court of Claims still has jurisdiction over Commander Augenblick's claim, they just deny it.

Mr. Edwin L. Weisl: Well they have jurisdiction --

Justice Byron R. White: They sue or they sue and there's a defense that he is in service.

Mr. Edwin L. Weisl: That's right.

Justice Byron R. White: And they have given and they grant summary judgment.

Mr. Edwin L. Weisl: That's correct Mr. Justice White.

Justice Abe Fortas: They would have jurisdiction but they can't just -- under your theory they can't pass on constitutional jurisdiction or evidentiary issues, so I don't think they will have very nice time, will they?

Mr. Edwin L. Weisl: Yes, but as stated by you Mr. Justice Fortas, I think the consequences of these defendants are much harsher than they really are.

I agree with you though, that is our position.

I would like to reserve the rest of my time for rebuttal, which I trust I will get.

Chief Justice Earl Warren: Mr. Sharlitt?

Argument of Joseph H. Sharlitt

Mr. Joseph H. Sharlitt: Mr. Chief Justice and May it please the Court.

Let's get right to the heart of the matter.

There is an issue of law before the Court.

The issue of law is posed by the government's position in this case.

The government is proposing that all servicemen who've been subjected to unconstitutional abuse in their courts-martial and have been dismissed and disgraced, cannot go to any civilian court, cannot come to this Court for protection of their constitutional rights.

The government would have this Court believe that Congress did this, this sweeping reform, not by any statutory language nor by any manifestation of legislative intent, but did this by silence.

Mr. Weisl has said that this is not a harsh result.

The case I'm talking about, which is completely within the government's position, as it was articulated here today, is that if the defendant is denied counsel, is tortured into a confession, is ordered convicted by a kangaroo court and is given trail by fire or ordeal, by order of his commanding officer and then dismissed and disgraced, rather than put in jail he can go nowhere.

Justice Byron R. White: Go to the Court of Military Appeal.

Mr. Joseph H. Sharlitt: He can go to the Court of Military Appeal, that's correct.

And we have a perfect example of what happened in the Court of Military Appeals here in this case.

The Court of Military Appeals denied this case without any provision for -- without any reason for it, without any statement denied review --

Justice Byron R. White: But if they had taken it and affirmed it, wouldn't it come to them?

Mr. Joseph H. Sharlitt: No, no there is no jurisdiction between the Court of Military Appeals and this court.

Justice Abe Fortas: What is the difference between that and our certiorari?

Mr. Joseph H. Sharlitt: There is no certiorari jurisdiction to the Court of Military Appeals from this Court.

Justice Abe Fortas: Well, no, no.

I'm talking about the procedure that they have as between the Court Martial and themselves however, in these cases where it's optional with that.

Mr. Joseph H. Sharlitt: Well contrary to what Mr. Weisl said and so far as I read the Uniform Code of Military Justice.

Their jurisdiction over matters such as this is discretionary above the limit that Mr. Weisl posed.

That is to say if there is a fine of a certain amount or dismal, then they have discretionary jurisdiction, they don't have to take the case and in this case they did not.

Justice Abe Fortas: Their discretion.

Mr. Joseph H. Sharlitt: Their discretion here and they did not need to -- they deemed not to exercise their discretion.

But the real key to this Mr. Justice White is not really where you can go the Court of Military Appeals where the constitutional rights of servicemen can be the final arbiter of these constitutional rights is this Court.

Justice Thurgood Marshall: What constitutional right are you asserting?

Mr. Joseph H. Sharlitt: In this case?

Justice Thurgood Marshall: Yes sir.

Mr. Joseph H. Sharlitt: Mr. Justice Marshall we're talking in this case about the constitutional right to preparing adequate defense against impropriety that it spreads throughout this record.

Now this record, on this face it involves four --

Justice Thurgood Marshall: Well let's put, what constitutional section are you relying on?

Mr. Joseph H. Sharlitt: The Due Process Clause of the Fifth Amendment.

Justice Thurgood Marshall: What is the denial of due process here?

Mr. Joseph H. Sharlitt: The denial of due process here is the depravation of the right of the defense through statutory rights that he's been granted to prepare a defense against impropriety that is right from this record.

And if I can recite the facts, after all due process as it seems to me a visceral reaction to facts and the facts of this case are as follows.

In this case you had -- you had first a sex offense in which it's a private offense in which the word of the participants are the -- or the only things that can give the light to the accusation.

You had secondly the chief accuser, the accuser whose evidence was the controlling evidence in the conviction here interviewed immediately after the arrest by agents of the Office of Naval Intelligence.

Prior to this interview this chief and controlling witness, this partner in this alleged crime had any participation in it by him and by the defendant.

After the interview he changed his story and claim that there was a sex act, that he participated in --

Justice Abe Fortas: ell, but your client is only right to go the Court of Appeals is one conferred by the Congress is that right?

Mr. Joseph H. Sharlitt: Court of Military Appeals?

Justice Abe Fortas: Court of Claims, Court of Claims.

Mr. Joseph H. Sharlitt: That's correct sir.

Justice Abe Fortas: And possibly Congress could circumscribe that right in various ways and I should think that the first task would be to ascertain whether Congress intended to circumscribe the jurisdiction of the Court of Claims in the way that Mr. Weisl has argued.

Mr. Joseph H. Sharlitt: I think if could --

Justice Abe Fortas: Then if you find, and if you conclude that Congress did intend so to circumscribe the jurisdictional Court of Claims maybe we come next to your -- to what you're making as a constitutional point.

Mr. Joseph H. Sharlitt: I think that's correct sir.

If I can deal with them in just that order and get back to it Mr. Justice Marshall's question, because I think it's important to deal with the facts as they really were in this case.

Chief Justice Earl Warren: Well on the use of that witness that you just mentioned, don't that facts that you've related go to the credibility of the witness rather than to the -- rather than to his right to testify?

Mr. Joseph H. Sharlitt: No sir, he was used -- it doesn't go to credibility, what it does do is that it goes to the question of impropriety on the part of the prosecution and arranging for the testimony of this key witness.

The one fact that I didn't add, which is quite compelling in this case is that after this change of story which took place during this interview, this airman was promised an honorable discharge and its so stated in the record.

But he was not given this discharge.

This discharge was kept hanging over his head through nine months and through two trials and only after he testified against the commander with a testimony that he had changed during this interview, was he then grated this honorable discharge.

He wasn't punished at all, although under the laws of the military he was at least pari delicto with the defendant here.

Chief Justice Earl Warren: Well wouldn't that still go to his credibility?

Mr. Joseph H. Sharlitt: No, I think it goes, Mr. Chief Justice to a point beyond credibility.

It goes to the question of impropriety, it goes to the question of the ability of the defendant to raise a defense against the chief witness against him.

The violations here, against which all the facts that I've just recited must be arranged as a backdrop.

The violation here were violations of the Jencks Act.

A tape was taken of this key interview two hours afterwards, during which time this witness changed his story, this sole witness of this very grave crime.

And it was this tape that was admittedly taken that was denied to the defendant and it was notes taken by the interrogator.

Justice Thurgood Marshall: Well was it denied or was there a dispute as to whether it was then in existence?

Mr. Joseph H. Sharlitt: It was never denied that it was in existence at the time it was made Mr. Justice Marshall.

Justice Thurgood Marshall: Oh no, I'm talking about the time it was asked for.

Mr. Joseph H. Sharlitt: You're quite correct it was --

Justice Thurgood Marshall: Was there dispute as to whether it was in existence?

Mr. Joseph H. Sharlitt: That quite correct there was dispute--

Justice Thurgood Marshall: Is that a question of fact?

Mr. Joseph H. Sharlitt: That question of fact was --

Justice Thurgood Marshall: Is it a question of fact?

Mr. Joseph H. Sharlitt: That is a question of fact clearly.

Justice Thurgood Marshall: Is that a constitutional question?

Mr. Joseph H. Sharlitt: It is in this case for the following reason.

Justice Thurgood Marshall: Or facts in that constitutional.

Mr. Joseph H. Sharlitt: No, certainly not, the facts can very often and most often not be, but in this case the resolution of this problem by the navy was to put the burden of proof of bad faith on the government in losing this tape or in destroying it on the defendant.

This obligation for production is the government's obligation.

Justice Thurgood Marshall: And what constitution of section does that deal with?

Mr. Joseph H. Sharlitt: By itself sir it doesn't deal with any constitutional section at all that's a violation.

Justice Thurgood Marshall: As a matter fact it's all the question of fact isn't it?

Mr. Joseph H. Sharlitt: No sir these are questions of law, every one of them, these are questions of law and the administration of the Jencks Act under the circumstances of this case.

Judge Davis, speaking from unanimous court below said that it's obvious that in all cases Jencks Act violation are not violations of the constitution and we adhere to that position, but in the circumstances of this case with the navy dealing with the absence of these key Jencks materials by placing the burden on the defendant to prove good faith or to prove bad faith rather than the government.

A defendant who is powerless to prove any bad faith on the part of the, on the part of the government, when the government has the obligation to produce that rule of law sir is a rule of law that is reviewable and --

Justice Thurgood Marshall: I have gotten to there, I was left with the point that I don't know as of right now whether those tapes were in existence at the time you are talking about I don't know.

Mr. Joseph H. Sharlitt: That's quite true sir.

Justice Thurgood Marshall: And you don't know.

Mr. Joseph H. Sharlitt: That's quite true sir.

Justice Thurgood Marshall: And nobody knows.

Mr. Joseph H. Sharlitt: And it's quite true, but that Navy's the exoneration of the government's obligation to produce these tapes, which were obviously, which were in the navy's hands, which were hand --

Justice Thurgood Marshall: At that time, they were in the navy's hand at that time?

Mr. Joseph H. Sharlitt: Well, the navy was -- the individual who took the tape was last one who the record shows have the tapes and he was one in whose hands the tape disappeared.

Justice Thurgood Marshall: But didn't they, wasn't there evident testimony to the fact that it could have very have been destroyed, they couldn't find it.

Mr. Joseph H. Sharlitt: And the one is --

Justice Thurgood Marshall: It could have been expunged.

Mr. Joseph H. Sharlitt: There is certainly evidence to that effect sir.

Justice Thurgood Marshall: There is isn't it.

Mr. Joseph H. Sharlitt: There is certainly evidence to that effect, but there is also evidence that this was in violation of the navy's owns policies and regulations with regard to Jencks materials.

There is further testimony that the last person that had this tape was the same person that was in this interview that denied for at least 12 pages of testimony that this tape never had been taken and then it's given into his hands by superior officer and from his hands had disappeared.

And then the navy justifies this conduct by saying that the burden of proof is on the defendants to show that the navy was in bad faith.

That sir is a rule of law, that sir is -- it raises on the factual pattern to this case a constitutional question, not as the Jencks Act.

There is a right of the defendant to raise the defense as impropriety on the facts of this case and no further.

Now if I can go back to the question that was raised by Mr. Justice Fortas.

I think that -- we have to look at the background of the enactment of Article 76.

Article 76 is word for word of Article 50 H Article of War 50 H and Act of 1948.

This as we set forth in our brief at page 61 came as a result of the post war reforms of the Articles of War.

Contrary to any attempt trying to eliminate rights of servicemen the Vanderbilt report which gave rise to the Kim Elston Amendments in 1948 had as it point the enlargement and the protection of servicemen and the Vanderbilt report indicated that the point of the Van article 50 H which became word for word Article 76 is to indicate at what point inside the military establishment these judgments becomes final, that is to say that they are impervious to command control.

They can't be set aside by commanding officers deciding they don't like to resolve this court martial and trying by another court.

That was point of Article 76 and it was a point articulated by Judge Vanderbilt in the Vanderbilt report, there was not a word said about the Court of Claims.

There was not a word said about civilian review in all of the deliberations that gave rise to Kim Elston Amendments.

Justice William J. Brennan: Well, is that true the second sentence was 76 2, that binding upon all the departments of court's agencies.

Mr. Joseph H. Sharlitt: Yes sir, that is because I think.

Justice William J. Brennan: Well, I mean does that have that limitation that you suggest, certainly it doesn't on the face of it, does it?

Mr. Joseph H. Sharlitt: Well, we -- the point of that is as far as I can see there were some, there are very many muddy things about this, but there is about the legislative history in this, the point of that as far as I can see is the elimination of command control in the first place to indicate where the cutting off point of military procedures are as it was --

Justice William J. Brennan: Yes, Mr. Sharlitt on its face the language is all action taken to disown to those proceedings or binding upon all departments, courts.

Mr. Joseph H. Sharlitt: Courts, yes --

Justice William J. Brennan: What the courts had to do with the man?

Mr. Joseph H. Sharlitt: I believe the meaning of that --

Justice William J. Brennan: What do they have to do with the chain of command control?

Mr. Joseph H. Sharlitt: Well, I believe that what they had to do with that in a situation such as this where you had the -- where you had a court-martial determination that the civilian, the Federal civilian courts, which is all that could be ruled upon here could not under those circumstances try to service him for the same crime.

I think it had that effect which is wholly apart from anything we are talking about here.

Now there is some legislative history to that effect Mr. Justice Brennan but they had nothing to do with collateral views these matters for constitutional, for constitutional errors.

Now I would point that when I say that everything that the government says today here is based on silence I mean silence because I think that the Article 50 H aimed at the elimination of command control, aimed at picking a point of time at which military remedies were exhausted so that you could then go to the civilian remedies and in 1948 when the Kim Elston Amendments came into being which became Article 76 two years later there isn't a single word about the elimination of the traditional courts of claims remedy for back pay, not one word anywhere in the legislative history.

Justice Abe Fortas: You don't agree that the Court of Claims could not properly reevaluate the evidence?

Mr. Joseph H. Sharlitt: Oh, I think that's clear the Court of Claims is not an ordinary appellate review of military court-martial under no circumstances.

Justice Abe Fortas: Then unless, unless the Court of Claim, unless it's a constitutional claim the Court of Claims could not arrive in a different judgment?

Mr. Joseph H. Sharlitt: I would very hardly agree with that sir, that unless you have rules of law that come to this court as rules of law and don't involve any resifting of the evidence, which this court very specifically proscribed in Burns versus Wilson then you don't have any jurisdiction in the Court of Claims, but you do have jurisdiction in the Court of Claims where you have rules of law such as you have in this case, such as you, the putting of the burden for showing bad faith in the destruction of the Jencks materials or the negligent loss of that material on the defendant, such as the failure to conduct an in camera examination of the notes taken during this key interview, such as the failure to call the key witness to testify as to what happened, the witness who denied of taking this tapes and the witness in whose hands this tape disappeared, failure to call him, these are rules of law.

These are not -- they have nothing to do with the facts, they dot no require any shifting of the evidence by the Court of Claims or by any court.

Justice Abe Fortas: But it's not every mistake as to law that is a constitutional error is it?

Mr. Joseph H. Sharlitt: I beg your pardon sir.

Justice Abe Fortas: It is not every mistake as to rule of law committed in the trial of a case that amounts to constitutional --

Mr. Joseph H. Sharlitt: Oh, absolutely not, no we are not our position is not.

Justice Abe Fortas: What you are saying here is there were so many mistakes made that in the aggregate they amount to constitutional error is that your point?

Mr. Joseph H. Sharlitt: What we are saying here sir is that exactly right, that the Jencks deprivation is that, the right as this court annunciated in all the cases in Johnson versus Zerbst court filed through the most recent one through the Giles case and all the case right down the line, that a defendant is entitled to a trial free from impropriety is meaningless tool unless the rights guaranteed him by statute exist to him to enquire into that impropriety and the right to enquire into that impropriety where the impropriety is on the record as it is in this case, is coextensive and vindictive with his right to a trail free from that, that impropriety.

Now I would go, I would like to point out to the court that on the very day, that the very next day rather, June 25th 1948 the Kim Elston Act passed Article 50 H, which is in haec verba where the Article 76 exactly the same.

The Tucker Act was reenacted by the Congress intact -- that's the best jurisdiction recorded claims to do just what did the Augenblick case and it was reenacted with considerable legislative history and there isn't one word on a major excision of one of the functions of the Court of Claims in that history.

Although five years later, when the Court of Claims when the Tuckers Act was again reenacted and a portion of its jurisdiction excised it was done in unmistakable terms.

In 1953 the Court of Claims act was –-

Justice William J. Brennan: Listening to your argument, you do not take the position that Congress could not have barred the Court of Claims from making this enquiry do you?

Mr. Joseph H. Sharlitt: The Congress could not have --

Justice William J. Brennan: Could not Congress constitutionally have barred the Court of Claims for making this enquiry.

Mr. Joseph H. Sharlitt: Mr. Justice Brennan that raises one of the great, great questions of constitutional law that I think is presently unresolved.

I think that there is grave doubt that the Congress could have told service men who have --

Justice William J. Brennan: Now that wasn't my question, my question was whether the Congress could have said that the Court of Claims might not, could not had no jurisdiction if you please whatever language you want to use, barred the Court of Claims from making any inquiry into this court-martial that it did make.

Mr. Joseph H. Sharlitt: I think that Congress that there is some large question of constitutionality as to whether Congress can do that, and I said so --

Justice William J. Brennan: Congress could abolish the Court of Claims couldn't it, it created them.

Mr. Joseph H. Sharlitt: Oh, yes, they readily do that, the question is whether Congress could take servicemen who have acknowledged constitutional rights, this court has articulated in Burns versus Wilson.

Justice Byron R. White: In fact we are talking about a particular tribunal --

Mr. Joseph H. Sharlitt: Yes sir.

But and I, and my answer has to involve the question, constitutional rights of serviceman, the Congress certainly could do that sir.

But Congress, I don't think can take a group of American citizens --

Justice Potter Stewart: Well let me ask you this, then you are saying if, if we were to constitute a 76 as barring the Court of Claims from making this inquiry then your position is that article 76 is unconstitutional.

Mr. Joseph H. Sharlitt: We say this in our brief, we stand by it sir.

The reason being that here you have constitutional rights of serviceman, so articulated by this court clearly in Burns versus Wilson.

We have no Article 3 court to go to, to protect those rights.

Justice Thurgood Marshall: Burns didn't involve Sara.

Mr. Joseph H. Sharlitt: No sir, Burns is habeas corpus, but Burns articulated constitutional rights Mr. Justice Marshall and my point is that if there are constitutional rights, then they are meaningless unless there is a court to protect them and in Article I court such as court of military appeals which had none of the attributes of an Article III court which has, well I think the selling substance is that the Supreme Court is and should remain the final arbiter -- of the constitutional rights of servicemen.

Justice Thurgood Marshall: You wanted to claim Article 76 unconstitutional?

Mr. Joseph H. Sharlitt: No sir, I do not I want you to -- I want this court simply to view the legislative history as I believe its properly viewed and that is not in anyway --

Justice Potter Stewart: Well let me see how far that goes Mr. Sharlitt.

Suppose then this had been taken to the Court of Military Appeals and had been a constitutional claim and had been resolved against your position by the Court of Military Appeal.

Are you saying we then would have had jurisdiction to review the judgment of the Court of Military Appeals.

Mr. Joseph H. Sharlitt: No sir.

No sir.

No I am saying --

Justice Potter Stewart: Then I don't follow your argument that this court should be the tribunal of last resort on the constitutional claims of Servicemen.

Mr. Joseph H. Sharlitt: Because the only way under the circumstances that Commander Augenblick could get in this court is sue the Court of Claims.

Justice Potter Stewart: No, no that's wasn't my question to you.

Suppose he had done his application in the Court of Military Appeals had been granted.

They had considered his claim on the merits, the court-martial has dismissal on the merits and had affirmed the dismissal, finding no merit in his constitutional claims the ones you are now asserting and did ascertain the Court of Claims.

Could this court ever view the judgment of the Court of Military Appeals?

Mr. Joseph H. Sharlitt: No sir cannot, they cannot not by direct --

Justice Potter Stewart: Then there are exceptions for your general proposition that this court should remain the court of last resort for the --

Mr. Joseph H. Sharlitt: No sir, they are not, because I am saying that in order to accept a government position you have to, you have to state that the place that the commander did go to him, the Court of Claims has denied him.

His only -- the reason that he would have no review would be that he was cut off in the Court of Claims review, that its his only avenue to come here.

Justice Potter Stewart: But he did, he had an opportunity for review and it was denied to him in the Court of Military Appeals wouldn't it, on these, on these very same claims?

Mr. Joseph H. Sharlitt: My point was that the, our (Inaudible) of constitutionality of serviceman should be the Supreme Court --

Justice Byron R. White: Why is that, where do you find that on the constitution?

Mr. Joseph H. Sharlitt: I don't sir, I don't find it --

Justice Byron R. White: Or anywhere else?

Mr. Joseph H. Sharlitt: I don't find it in the constitution but I do believe that --

Justice Byron R. White: What if the Congress said that in no events will Supreme Court review any instances of court-martial judgments?

Mr. Joseph H. Sharlitt: If they had said that the question would have been posed squarely and it hasn't said that and I think until it does this court --

Justice Byron R. White: I mean you can't find any grant by the Congress of any jurisdiction for this court to review courts-martial.

Mr. Joseph H. Sharlitt: No sir, but I can give you a long line of cases where this court is strained in every circumstance to find judicial review in a situation where Congress has purported to grant finality to an administrative agency.

Starting with Carlebach (ph) and after the Civil War and going right through Yakes (ph) through all of these cases where this court looking at ambiguous Congressional enactments has always attempted to find some review, now it's turned other way around in this case.

Justice Thurgood Marshall: Well Sharlitt, suppose a serviceman was found guilty of some minor charge and given six months without salary and he is still in army, its your position that he could go to the Court of Appeals and say I didn't get my Jencks Act materials, so I want my salary.

Mr. Joseph H. Sharlitt: He is out in prison sir?

Justice Thurgood Marshall: No he is out, he served his six months in stock clearing --

Mr. Joseph H. Sharlitt: Oh and those --

Justice Thurgood Marshall: But he is still in army.

He could go to the Court of Claims and litigate his back pay for that six months.

Mr. Joseph H. Sharlitt: No, I don't, if he had been denied back pay I believe that if he falls within the jurisdictional limits.

I'd say that he'd be entitled that.

Justice Thurgood Marshall: No, no my point is, he just alleges that he was denied Jencks act material.

Mr. Joseph H. Sharlitt: No sir, no because --

Justice Thurgood Marshall: What else would he have to do?

Mr. Joseph H. Sharlitt: He would have to show exactly what Judge Davis and unanimous court found below that the record supported a finding of unconstitutionality --

Justice Thurgood Marshall: Alright, then he sends the record which shows that.

Mr. Joseph H. Sharlitt: Then I think you have a case exactly --

Justice Thurgood Marshall: And is he is still over in the Germany but the Court of Claims has given his back pay.

Mr. Joseph H. Sharlitt: I believe under those circumstances that the Court of Claims jurisdiction for back pay still exists and that case it would be --

Justice Thurgood Marshall: Well what happens to the army discipline in the mean time?

Mr. Joseph H. Sharlitt: Well army discipline sir is --

Justice Thurgood Marshall: What happens to army discipline in that regiment in the mean time?

Mr. Joseph H. Sharlitt: Well army discipline sir is --

Justice Thurgood Marshall: When the Court of Claim moves in and upsets the army discipline.

Mr. Joseph H. Sharlitt: Well army discipline is always involved in these matters, when army, army prosecutions are conducted irregularly.

Justice Thurgood Marshall: Well I don't think army discipline as of now is involved with your commander because he is out and this man is still in.

Mr. Joseph H. Sharlitt: I don't think constitutionality of court-martials turns on whether a man is out or in sir.

Justice Thurgood Marshall: Discipline does.

Mr. Joseph H. Sharlitt: Well discipline and unconstitutionality are two different things and this court has said so.

Justice Thurgood Marshall: So that on the out, there are no judgment of a court-martial would be final until passed on by the Court of Claims.

Mr. Joseph H. Sharlitt: Absolutely not sir.

Justice Thurgood Marshall: Close.

Mr. Joseph H. Sharlitt: No sir, not even close, miles apart, miles apart because I might point out that twice in 17 years the Court of Claims has exercised its jurisdiction and in the Augenblick case --

Justice Thurgood Marshall: For this case, well I am looking for the future.

Mr. Joseph H. Sharlitt: Well I might point out that there has been no flood in the Court of Claims and there won't be sir.

Justice Thurgood Marshall: It be that they read Article 76 to say that no court has jurisdiction.

Couldn't it be that these people that didn't go to the Court of Claims read that literally, that the court didn't have jurisdictions, so why waste of time.

Mr. Joseph H. Sharlitt: Well now, I think the number there would at least eight times, at least seven times, Mr. Justice Marshall where these cases were taken to the Court of Claims, where the Court of Claims went through the exercise that the government now says was forbidden to of looking at the merits assume jurisdiction looked at the merits and denied the relief on grounds that there wasn't any constitutional exercise so that if there were any clubhouse for barracks and lawyers they have always existed and it hasn't been the language of the Article 76, that's inhibited this review, it's been the restraint of the Court of Claims.

The Court of Claims is looking, was it looking, but it was waiting until it was faced with a proper record and it didn't act until it was faced with a proper record.

Now if this man, if this man is denied review by the Court of Claims then among the various consequences the Jencks Act can be forgotten in the military because the military, the rule of law that will apply on the military is that anytime the prosecution has Jencks material he doesn't want to turn over to the defendant then he just doesn't turn it over and hopes the defendant can't prove that he didn't destroy it.

Justice Potter Stewart: That's not the law, the case law of the Court of Military Appeals is it?

Isn't that the tribunal trusted basically with the development of the case law for court's martial in this area.

Mr. Joseph H. Sharlitt: That's correct sir, that's correct.

Now that is the case --

Justice Potter Stewart: MThey can be counted on to do so based on their past record.

Mr. Joseph H. Sharlitt: No but as Mr. Weisl pointed out that there is an additional quantum of, well of rejection that's involved in the C.M.A's turning down a case simply much more than this court simply turning down a case and I would point out that in the Board of Review, the Board of Review's opinion which deals with this case that the law, the law now is as the law from the military since this went to the Court of Military Appeals and there was no review of this determination on Jencks, is that the burden, the clear burden and they couldn't be clear, it's in the record here.

The clear burden falls on the defendant to prove bad faith.

Now that has never been ruled on, that point have never before been ruled on by the C.M.A. so that that apparently is law of the military unless this court does something about it.

Now, this is Court is not sitting in a supervisory role over the C.M.A., I'm not pointing that out.

But I'm pointing out is one of the necessary consequences of this court's dealing with what is a clear constitutional question in terms of this man's right to defend himself would be the therapeutic effect on the military of this complete misconception of Jencks rights and it went not only to one point but it went to four points.

It went to the burden approved being put on the wrong party when a Jencks material is not produced, the failure to conduct in a camera examination of admitted notes, admitted Jencks materials, the failure to incorporate those notes into the record so that anybody the Court of Military Appeals or anybody else could review it and a failure to call a key witness to determine what happened to these States.

The witness that denied, it was taken on the witness in whose hands it disappeared.

Under circumstances that are most incriminating.

Justice Abe Fortas: Mr. Sharlitt suppose the Court of Military Appeals that, taken this case instead of having refused to review it and had heard all of your arguments along this line and had to affirm the conviction of this man would you then, would the Court of Claims then be available to you?

Mr. Joseph H. Sharlitt: Yes sir, it would.

Because the reason that the sole way to come -- again the sole way to determine the constitutionality of this action would be in this court and the only way that the commander could to this Court would then be through the Court of Claims under those circumstances the rule was, the scope of civilian review as enunciated in Burns versus Wilson is whether fair consideration has been given.

Now some consideration is not fair consideration, and when rules of law are completely misstated, I don't believe that any court would determine that this is fair consideration and I would say that on the facts of this case, the constitutional issue has been raised in these Jencks Act violations, that the legislative history indicates that the Court of Claims neither in 1948 or 1950 was exercised in this jurisdiction, nothing was said about them and point of fact the only thing was said what to the effect -- was to the effect in a report that was filed in the congressional record that the Court of Claims jurisdiction remained and under those circumstances this court cannot deprive servicemen of the right to come to this Court by silence and by implication.

Chief Justice Earl Warren: Mr. Steiner?

Argument of Francis J. Steiner

Mr. Francis J. Steiner: Mr. Chief Justice, May it please the Court.

The court martial of the respondent Kenneth N. Juhl was fundamentally unfair.

The testimony against him was by a man named Hughes, was an accomplice.

Hughes's testimony was an admitted perjury, he had been engaged in black-marketing for years.

He was tried himself, sentenced and convicted.

Then he was approached and he was told that unless you testify implicate Juhl, we're going to retry you on other charges and you'll get five years imprisonment and a dishonorable discharge.

He had a foreign wife this would also -- prevented him from bringing his wife back to this country.

Justice Abe Fortas: Was it put to him in just that language that you've said, where in the record --?

Mr. Francis J. Steiner: Your Honor, Appendix III, pages 362 and 363 is an affidavit of an air policeman who had custody.

Justice Abe Fortas: Well, he wasn't a witness.

Mr. Francis J. Steiner: No, this is an affidavit in the board of correction proceedings Your Honor.

This affidavit of this technical sergeant who was an air policeman, who had custody of Juhl and he stated that these facts were told to him.

And this is controverted.

Justice Abe Fortas: And this is the part of the record of the trial?

Mr. Francis J. Steiner: Not of the court-martial Your Honor, it was an affidavit submitted to the Correction Board, but it's part of this trial and part of this record Your Honor.

The other facts which are part of this trial show that after he agreed to implicate Juhl, he was given special privileges, he was given easy work, he was given permission at night to go to movies with this wife and to watch television with his wife and he was given Christmas leave, this is while he was serving a sentence he never left the base --

Justice Abe Fortas: Let me revert just a moment, I've, I want to know if you're telling us precisely what you said and I'm looking at this affidavit and it says subsequent to airman Hughes' trial and prior to Sergeant Juhl's court-martial, this airman was advised that unless he agreed to appear as a prosecution witness and testify, he would be tried by a general court-martial and so forth.

Mr. Francis J. Steiner: Yes, Your Honor.

Justice Abe Fortas: You just told us that unless he testified and implicated this man now he didn't say that according to this affidavit.

Mr. Francis J. Steiner: Well, Your Honor that he testified against Juhl that's what I meant--

Justice Abe Fortas: Well, it says that he --

Mr. Francis J. Steiner: As a prosecution witness Your Honor.

Justice Abe Fortas: Testified for the prosecution.

Mr. Francis J. Steiner: For the prosecution, as a prosecution witness.

Justice Abe Fortas: But does that imply that he used to tell anything but the truth.

Mr. Francis J. Steiner: Not that alone Your Honor but when combined with all of these facts of this case, his testimony was replete within inconsistencies, with self contradiction.

Justice Abe Fortas: No, I'm not quarreling with that, I just want, I just -- calling your attention to what you said and what the affidavit says.

Mr. Francis J. Steiner: Yes, Your Honor I think that -- well I interpreted that as a prosecution witness and it maybe a little more of an interpretation of it.

Justice Abe Fortas: That's all, that's all I don't want to interrupt your argument otherwise go ahead --.

Mr. Francis J. Steiner: Yes Your Honor but combined with all of these facts and the inconsistencies and self contradictions under oath in his testimony, it was totally unreliable.

I think these facts alone were sufficient to raise a constitutional question of whether he had a fair trial and I do not believe he had a fair trial with untampered witnesses, when this type pressure was put upon a man of Hughes' character that would have a fair witness who would come in.

This man Hughes would have said anything -- if you look at his past record, if you look at his testimony under oath.

Justice Thurgood Marshall: Is there anything to show that he did partner himself in this hearing?

Mr. Francis J. Steiner: Well, Your Honor the closest to it -- one is he denied all these things but in this hearing, you could say this time he's telling the truth, but in the Article 32 proceedings, which is also part of these records, the discovery records, they're asking, would you lie under oath, would you lie under oath, and like he said yes that's part of the record to that -- now whether he's telling the truth this time or not, but the inconsistencies and improbabilities in his testimonies make it look that all the pages are fraud.

He says --

Justice Thurgood Marshall: That shows the credibility doesn't it?

Mr. Francis J. Steiner: Yes, Your Honor it does but when you get so many of them I think it comes --

Justice Thurgood Marshall: And credibility is a little below a constitutional question, isn't it?

Mr. Francis J. Steiner: Yes, Your Honor just on credibility but you also get a statistical impossibility when there are so many of these inconsistencies.

So many of the things he puts up to implicate this to Juhl.

Justice Thurgood Marshall: It's still one witness's credibility.

Mr. Francis J. Steiner: Well, it's still the fact that he's also testified on these very same facts under oath --

Justice Thurgood Marshall: Well normally in an ordinary criminal trial you know the credibility left to the triar of facts usually.

Mr. Francis J. Steiner: But Your Honor we have a provision here which covers under the manual itself, I think that alone is enough regardless of Section 76 but if it's not, the manual for court-martials provide in Section 153 (a) and this is an instruction to the court-martial panel, you cannot face a conviction upon the un-corroborated testimony of an accomplice, if that testimony is self-contradictory, uncertain or improbable.

Justice Thurgood Marshall: And who is to be the Judge of that?

The court?

Mr. Francis J. Steiner: I think, not that court necessarily Your Honor, if the record shows that no other conclusion can be reached, if you have a jury trial.

Justice Thurgood Marshall: Do you have anything in your case other than the credibility of the witnesses?

Mr. Francis J. Steiner: Yes, Your Honor I've got the assurance of the -- it's not just the credibility of the witnesses, it's the question of all these facts showing that no other conclusion can be reached then --

Justice Thurgood Marshall: Is this man still in the army?

Mr. Francis J. Steiner: Yes, Your Honor, he is.

Justice Thurgood Marshall: He is still serving?

Mr. Francis J. Steiner: In the air force.

Justice Thurgood Marshall: He is in air force.

Mr. Francis J. Steiner: Yes, Your Honor.

Justice Thurgood Marshall: And you want us to approve paying him his back pay.

Mr. Francis J. Steiner: Yes, Your Honor.

Justice Thurgood Marshall: While he's still in the air force?

Mr. Francis J. Steiner: Yes Your Honor.

Justice Thurgood Marshall: And you don't see a disciplinary problem either do you?

Mr. Francis J. Steiner: No, your -- not -- when it conflicts with the constitutional right of a fair trial.

And I don't think he got this here and I think they violated Section 153A which tells them the court-martial panel itself you cannot base a conviction upon the uncooperated testimony of an accomplice where that testimony is uncertain or improper.

Justice Thurgood Marshall: Well that's just like an instruction isn't?

Mr. Francis J. Steiner: No, no I don't believe it is Your Honor, not at all.

This is the statement through the court-martial panel.

This was in the manual for court-martials which was by Executive Order and referred back to Congress for approval.

This is what the court-martial can do and this is where it cannot convict.

Justice Abe Fortas: (Inaudible) is a daily matter for the enforcement of the narcotic laws that the government uses narcotic addiction notoriously irresponsible and untruthful, will have a string of convictions, maybe a block long.

Doesn't the government use those people as a principle witness in their cases?

Mr. Francis J. Steiner: Well yes, Your Honor.

But when their testimony --

Justice Abe Fortas: Does that deprive the Court of Jurisdiction?

Mr. Francis J. Steiner: Your Honor, if the facts were the same as this I would say yes, I would say with all of the self contradictions and the improbabilities in his testimony, if that was the only evidence, it wouldn't be sufficient to convict.

If that where the only -- based upon the facts of this case, with the contradictions that we have in his own testimony, where the man you cannot read this record.

From back to the front and not conclude that the man was lying, I do not believe.

And where that is there can be no reasonable doubt about it.

Justice Abe Fortas: Is there any other evidence besides him in this case?

Mr. Francis J. Steiner: None that would tie him -- this is not corroborated, there is other testimony.

Justice Abe Fortas: Nothing that would corroborate him?

Mr. Francis J. Steiner: Nothing that would corroborate him, Your Honor.

I do not believe.

Now this is -- this may be a judgment.

Also again, I believe reading the record that not -- this is not controverting fact, that is where what does this really, but just the only conclusion you can reach, the only conclusion you can reach, is that it's not corroborative.

There is no one -- for example, they have the sales girls, he said the government stated that it was corroborated by them and he purchased unusual amounts.

The sales girl said he did not purchase that this is -- whether it was -- irregular amounts or excessive amount.

And they said no, he purchased what was normal and he purchased large amounts but never in excess of his rights.

Justice Thurgood Marshall: But didn't she also testify that they would punch it twice in the same hole on his ration card?

Mr. Francis J. Steiner: No, Your Honor.

I don't think she testified to that.

She didn't say she did that --

Justice Thurgood Marshall: Somebody did in the record.

Mr. Francis J. Steiner: Oh, yes Your Honor they are.

Justice Thurgood Marshall: And that would look like it was getting more than the usual amount.

Mr. Francis J. Steiner: No, Your Honor this -- she said that --

Justice Thurgood Marshall: It would usually save hole for two cottons.

Mr. Francis J. Steiner: She did -- she said she did this for some people, but again this is another.

This is really the key to this whole case.

This is the reason the air force convicted him.

This is the reason, they seized this ration card illegally from him, which obviously has marks over, where he purchased more than the normal amount.

This was seized illegally and it was not used at the court-martial.

But the government had used it every sense, including the reply to this brief.

Now I asked my client about this, and he said that this -- these things were old on his card, what they did, they called him in and ordered him to produce it.

He said they were old and I wondered about that when I went to prison I took my other card that I had up there and I gave it -- I had it stamped, cut and when I happened to ask Curt and sure enough he sent me his card which is in evidence.

Where it shows where they cut his and it didn't cut it out all together.

In other words it was necessary to do it twice, is that true, I don't know.

But the thing is that was seized illegally, it was not part of that trial, there was no way for him to defend it, but that is the very reason, that is the very reason that this man has been convicted and put where he is now and they had refused to do anything about it.

And it was illegally seized and it's something that should never have been brought up and if it should have been, it should have been taken properly and he should have a right to explain it, which he did have an explanation.

And there was no question about it being seized illegally, the government admits that and it was not used at the court-martial.

But even then there is no where comparable that the -- what they charged him with and what they tried him with he was not guilty of, it was clear fabrication.

The government argues on Habeas Corpus that is more limit than what this Court has defined Habeas Corpus to be.

This man is still in the service.Every time his file jacket is open this conviction is part of that.

Every time he comes up for promotion and every time he is considered for any job, this is all part of it.

And under the recent case of Carafas v. LaVallee, the Court defined Habeas Corpus.

The government's initial brief was that well he wasn't in confinement, but this man was in confinement, he was out and it's a restraint that still follow.

Justice William H. Rehnquist: Well, this is not a Habeas Corpus case is it?

Mr. Francis J. Steiner: Well, Your Honor the same rules would apply.

Justice William H. Rehnquist: No, this is not Habeas Corpus case.

Mr. Francis J. Steiner: We are not seeking the relief, but I believe the same principle applies.

He is seeking something that is due him and the same theory of Habeas Corpus should apply.

Now this is a man who was confined, these are restraints that still follow him.

This perfectly qualified as a Habeas Corpus action, that he still has a restraint on him because of this conviction.

Justice Thurgood Marshall: My great difficulty is that none of that is in the purview of the Court of Claims.

So all in the Court of Claims can do is to give him his back pay.

Mr. Francis J. Steiner: He has the right to his back pay, under the Court of Claims Jurisdiction.

Justice Thurgood Marshall: Period.

Mr. Francis J. Steiner: Under the constitution.

Justice Thurgood Marshall: But can the Court of Claims issue writ of Habeas Corpus?

Mr. Francis J. Steiner: No, Your Honor they cannot.

Justice Thurgood Marshall: Of course not.

Mr. Francis J. Steiner: But as a practical man --

Justice Thurgood Marshall: Then why you are trying to put them together?

Court of Claims is the Court of limited Jurisdiction.

Mr. Francis J. Steiner: No, Your Honor he has been constitutionally deprived of his property and even if it's a smaller amount he's still being deprived of it, and the Court of Claims has jurisdiction to rule upon that, on his constitutional deprivation of salary.

Justice Thurgood Marshall: -- look on whether or not gets his back pay.

Mr. Francis J. Steiner: Well, Your Honor I do not believe it's the equivalent of that in the first place.

Justice Thurgood Marshall: You are going to extend the Court of Claims jurisdiction?

Mr. Francis J. Steiner: No, Your Honor.

No, Your Honor.

But when this happens and I know of no case otherwise, the Correction Board, when this decision becomes final in effect corrects the record on application based upon that decision and I haven't heard of any decision where it was otherwise.

Justice Thurgood Marshall: Oh, that's what you want to do now.

You want to get us to pay us on and so you can go to the Correction of Records Board in the air force, is that what you want?

Mr. Francis J. Steiner: Yes, Your Honor I'll do that as soon as this decision --

Justice Thurgood Marshall: Well, have you applied there yet?

Mr. Francis J. Steiner: Yes, Your Honor.

Justice Thurgood Marshall: And is it being held?

Mr. Francis J. Steiner: No, Your Honor.

Justice Thurgood Marshall: Or have they ruled?

Mr. Francis J. Steiner: They denied it and this is another basis for jurisdiction.

Justice Thurgood Marshall: They denied it, so you really appealing from that denial aren't you?

Mr. Francis J. Steiner: No, Your Honor.

No Your Honor.

Well I am yes, I am questioning that opinion.

In my brief, I say this is another basis for jurisdiction.

In the first place, one under the correction statute the secretary can attack a court-martial.

In other words Section 76 of the Finality Clause says that these -- this decision on a court-martial will be final on all officers.

But then they come along with the correction statute where the Secretary wants to correct them to save Congress from making private bills.

So the Mr. Francis J. Steiner General rules and the government agree the Secretary can than collaterally attack the court-martial.

The Secretary can do that.

Now the decision of the Secretary is just final on officers, it's not final on Courts.

All the decisions of the Secretary under the Correction Board can be reviewed by the Court of Claims.

There is no basis in the legislative history or any other thing to show that they could not review a court-martial.

Nowhere does it say that and the government admits that the Secretary can collaterally attack it, that's an exception to Section 76.

And the statute under which he does it is only final on officers, it's not final on courts.

So under the correction statute he has a right to be reviewed in the Court of Claims under this, nowhere does it say otherwise.

But even the Section 76 found, and I believe under the decisions of this Court in Estep versus U.S. and the Harmon v. Brucker case, we had other statutes which had finality provisions in them, there was a finality provision in the law.

And the Court looked at this in effect as a final legal order.

They can make a final legal order, they don't consider all orders final, just only the final legal order.

Justice Thurgood Marshall: Did you go to the Court on Military Appeals?

Mr. Francis J. Steiner: No Your Honor.

This is another thing.

Justice Thurgood Marshall: Why not?

Mr. Francis J. Steiner: He had no appeal, he could not take it up, he could not even ask him to review it.

There was no appeal whatsoever.

The one man that reviewed it was in the convening authority who was a staff judge advocate, who was a military lawyer.

He is also the same man who reviewed the specifications and advised suit to be filed and advised on the wording of them.

In other words, the only review was by the prosecutor in effect, this -- just this court-martial itself there was nowhere he could go.

Justice Abe Fortas: Do you mean that the Court of Military Appeals had no jurisdiction?

Mr. Francis J. Steiner: That's right Your Honor, not even to consider whether they would review it.

There was nothing he could do.

No where to go, this was the only court that could possibly consider his constitutional claims.

Justice Abe Fortas: That is because of the minor, the minor penalty that was put on his --

Mr. Francis J. Steiner: Yes Your Honor, yes.

Justice Abe Fortas: Now does that mean that every, every penalty that, in the armed forces, it is so minor that it cannot get to the Court of Military Appeals has a right to go direct to the Court of Claims?

Mr. Francis J. Steiner: Yes, Your Honor, if it's a constitutional depravation, I believe under like Thompson versus City of Louisville where we had a $20 fine.

This was constitutional; this was taken away from him constitutionally.

Justice Abe Fortas: I see.

Mr. Francis J. Steiner: Here there was no way, no review he had at all.

This is not a question on corroboration for example of any controverted facts, the record has to be read.

But the record as read shows this constitutional depravation that it was not corroborated.

It also was not waived as, if it's jurisdictional, which I believe that it is under this 153A.

Justice Byron R. White: Is there some sort of collateral relief inside the military?

Mr. Francis J. Steiner: The Board for the Correction of Military Record is the only thing Your Honor.

Justice Byron R. White: What section is that under 67?

Mr. Francis J. Steiner: 1552A 28 U.S.C. -- 10 U.S.C excuse me.

1552 A.

Justice Byron R. White: What does that involve?

Mr. Francis J. Steiner: Your honor, there the secretary has given the authority to review, to correct any record point in justice.

Justice Byron R. White: Did that involve jury or is that on the record and -?

Mr. Francis J. Steiner: He can do, he can take a hearing, he gathered all the records and he will accept any evidence you have, affidavits or he can also hold a hearing, many times it's just decided just upon the record.

Justice Potter Stewart: Do you have a board, do we appoint a board for that purpose or -- a permanent board or you have a --

Mr. Francis J. Steiner: Your honor, I'm not sure of the exact procedure -- they do have someone over here who does this work, who reviews it, and says this is what can be done.

The statute reads the secretary of a military department under procedures established by him and approved by the Secretary of Defense and acting through boards of civilians of the executive.

Part of that -- acting through boards of civilians.

Justice Potter Stewart: That indicates there's a board.

Mr. Francis J. Steiner: Yes Your Honor, through the executive part of that military department may correct any military record of that department when he considers it necessary to correct an error or remove an injustice, and that is then reviewable in the Court of Claims, they considered in this correction statute should we make it final on the courts, in the legislative history and they didn't, they struck that out –

Justice Byron R. White: Could you, are there some jurisdictional limits on what the board can do in the sense could they have reconsidered your case?

Mr. Francis J. Steiner: Yes, Your Honor, they did consider it and deny it.

I believe there's no limits whatsoever I think Custer's lieutenant was correct.

Justice Byron R. White: You say you could have had your review on the Court of Claims from that?

Mr. Francis J. Steiner: No Your Honor, I could review the Board of Correction of Military Records in the Court of Claims.

Justice Byron R. White: How?

Mr. Francis J. Steiner: Because --

Justice Byron R. White: By filing a suit for back pay?

Mr. Francis J. Steiner: Yes, Your Honor.

Justice Byron R. White: Which is what you've done?

Mr. Francis J. Steiner: Yes, Your Honor.

Now, the government admits that you can do this.

Justice Byron R. White: Well, now if you're going to do that.

If that's the way, would you say you have a de novo review here or not?

Mr. Francis J. Steiner: No Your Honor.

Justice Byron R. White: Would it be on the record of the board of review?

Mr. Francis J. Steiner: Yes Your Honor, the measurement is whether it's arbitrary and capricious and not supported by substantial evidence.

Justice Abe Fortas: Well, I suppose and following up the question I ask you -- we would have to say, if we agreed with you, that in every conviction, military conviction where the punishment was so small that it could not be reviewed by the Court of Military Appeals that this court would have the responsibility of eventually reviewing these cases just on the record of the military trial.

Mr. Francis J. Steiner: Yes, Your Honor.

I believe that so, and I believe it's a constitutional deprivation.

Here this man could have been sentenced to 16 years in prison but this record was so unreliable that even they couldn't believe it.

What they must have reacted on was he was charged, so he must be guilty so we're giving six months and then there is no review.

Justice Potter Stewart: Is that – that difference between your case and the Augenblick case namely that you did apply to the Board for Correction of Records and had its determination before you went to the Court of Claims.

Mr. Francis J. Steiner: I have two distinctions, that's one Your Honor.

Justice Potter Stewart: That's one -- but I just want to be sure in the Augenblick case, that did not happen.

Is that right?

Mr. Francis J. Steiner: I don't know about Augenblick.

There's something I know that they did not make it an issue in the Court of Claims on whether that was exceeded, whether they had appealed under the Board of Correction but I hate to say on Augenblick, on this thing.

But there are other differences, one --

Justice Potter Stewart: You're saying that whatever may it be, as I understand you now, whatever may be the interpretation on ‘76 that there is review in the Court of Claims of the determination of the Board to correct the records because Congress considered having the same prohibition against judicial review as determinations of that Board and rejected that in this case.

Mr. Francis J. Steiner: Yes, Your Honor, yes Your Honor.

Justice Potter Stewart: Where is that?

Mr. Francis J. Steiner: This legislative history as in Ashe v. McNamara that they discuss it --

Justice Byron R. White: The express statute which grants the Court of Claims this kind of jurisdiction to review appellate jurisdiction?

Mr. Francis J. Steiner: Well, Your Honor the Court of Claims has jurisdiction under any statute treaty or constitution and this would be under a statute.

Justice Byron R. White: You mean, namely a pay statute?

Mr. Francis J. Steiner: Well, the pay statute and also the Correction Board statute because the secretary under the statute is given authority to correct an error or remove an injustice.

If that decision is arbitrary and capricious and not supported by substantial evidence, he can then take it to the Court of Claims.

Justice Byron R. White: Now that's -- and your authority for that is what just logic or --?

Mr. Francis J. Steiner: Well, the correction statute and the legislative history Your Honor and the wordings of the two statutes Section 76.

Justice Byron R. White: Do either one of -- does any of the statute say that this kind of a determination may be reviewed in the Court of Claims?

Mr. Francis J. Steiner: No, Your Honor, I know what they say a court-martial specially be reviewed, but they have reviewed, the attorney general says the secretary can review this.

There is no basis in the history for distinguishing between the decisions of the secretary.

Justice Potter Stewart: Well I suppose if Shapiro was considered by the Congress in the context of all of this.

Shapiro at least indicated that there was authority in the Court of Claims to act on these claims.

Mr. Francis J. Steiner: Yes.

Justice Potter Stewart: What you are saying is when they came up, as I understand you now, on the applications made for review to the Board of Corrections of Records, that they considered the same kind of the prohibition against additional review that we have in ‘76 and rejected it, is that what you're telling?

Mr. Francis J. Steiner: Yes, Your Honor.

Yes Your Honor, they considered shall we make this finding final on the courts and they struck it out, that's in the legislative history.

Justice Byron R. White: You've got that in your brief?

Mr. Francis J. Steiner: Yes Your Honor, well, I've citied in Ashe v. McNamara which has a full discussion of it, which I've referred from Ashe v. McNamara to the legislative history, but in addition one what the difference is --

Justice Abe Fortas: What brief is that you state your evidence?

Mr. Francis J. Steiner: In Your Honor where -- it's in my brief that a filed here, where I've citied --

Justice Abe Fortas: This brief?

Mr. Francis J. Steiner: Yes, Your Honor.

Justice Abe Fortas: Here it is.

Mr. Francis J. Steiner: Yes that -- Your Honor on page 14 of my brief, on the second paragraph the --

Justice Abe Fortas: Mr. Steiner you've filed more than a memorandum on opposition, didn't you?

Mr. Francis J. Steiner: Yes Your Honor.

I've filed a brief, reply brief of the respondent Kenneth N. Juhl.

But the two circuits, the two circuits, the First and Tenth Circuit have construed this correction statute to give them authority to review court-martials and Ashe v. McNamara is one and Smith v. McNamara is the other.

So this and there is no decision saying that the courts cannot look into court-martials under the Correction Board statute.

The only case closest is Davies v. Clifford, which the government citied, in which they said that he was -- he received full relief from the secretary so we had no claim under that.

So my main difference is though that I made with Augenblick was the Correction Board statute, the fact that there was no review whatsoever for this man, not even discretionary and the fact that this is jurisdictional, this was basic jurisdiction under 153A.

The court-martial cannot base the conviction upon the uncorroborated testimony of an accomplice, where it's uncertain, doubtful or improbable.

That was jurisdiction that told them what they could do.

Those three factors are the reasons that turn in.

Justice Abe Fortas: To what extent must, must it be corroborated?

Mr. Francis J. Steiner: I think with any corroboration Your Honor that its corroboration but you can't read just, for example the testimonies of the people who said, yes he was out here, but he didn't engage in any of this activity.

In fact he went around and sat in the front yard with my wife and I was so surprised to see him come out.

In other words, he contradicted Hughes on everything that Hughes said to implicate it, contradicted him on every single factor.

Now that can't be corroboration just because he was out there and he went around to sit there in the front yard, where his wife also in a later affidavit says he was in the front yard the whole time.

And Hughes's testimony on that there he said, once he rode out there with me and he stood beside the car and acted as a lookout.

Later at the trial, he says he went out into the road down the driveway to act as a lookout.

He testified at the Article 32, all these cigars boxes we are sitting right on the front seat where he could see it.

The other man comes up and says they were in the truck and there weren't anyway he could have seen.

This was the corroborating witnesses.

Justice Byron R. White: You say the other man --

Mr. Francis J. Steiner: Yes, the other, the other possible collaborator, in other words he contradicting on everything and –-

Justice Abe Fortas: The fact they were contradicted with the --

Mr. Francis J. Steiner: No, Your Honor but --

Justice Abe Fortas: They told it?

Mr. Francis J. Steiner: Yes, Your Honor but that has to be corroborate -- in other words he didn't corroborate on any of the criminal factors and Hughes didn't repeat that testimony at the trial.

Justice Abe Fortas: Who said the cigars --?

Mr. Francis J. Steiner: This was the Article 33.

Justice Abe Fortas: Who said the cigars were in the front seat?

Mr. Francis J. Steiner: Hughes, Hughes, the name the name of accomplish, the man we complain off.

He said they were –

Justice Abe Fortas: The car in which the defendant was when they went to sell this --

Mr. Francis J. Steiner: Yes Your Honor, He said they were sitting in the front seat.

Now he said --

Justice Abe Fortas: Now why isn't that that corroboration?

Mr. Francis J. Steiner: That's his testimony, his testimony has to be corroborating.

He is Hughes, he has testified it, his testimony but he didn't repeat that at the trial because (Inaudible) said, no it was in the trunk, there weren't anyway you could have seen, but these are just replete with this through out this record.

Justice Hugo L. Black: For the courtwide reasons -- now let me ask you –

Mr. Francis J. Steiner: Yes Your Honor.

Justice Hugo L. Black: Now I understand you now to be fair that despite the conviction, despite the Board of Appeals in the military, there is still a limit provided in a Code section for an examination by a board and if they decide against the man, the soldier there, he can have that reviewed in the Court of Appeal in the Court of Claim.

Mr. Francis J. Steiner: Yes Your Honor that's correct.

Justice Hugo L. Black: What is that code section that authorize it?

Mr. Francis J. Steiner: 10USCA 1552(a) I've cited it on page 2 of my brief.

10USC 1552(a).

Justice Hugo L. Black: Has the government said anything about that in its brief?

Mr. Francis J. Steiner: Well Your Honor they say that this, well this is okay for the secretary to do it, but it doesn't, they didn't mean to vary but there is no provision, that they didn't mean that a Court could then review it.

But there is no basis --

Justice Hugo L. Black: In Court of Claims do you say it authorizes the Court of Claims, is that set out anywhere in your brief or you just refer to it.

Mr. Francis J. Steiner: No, this is one of my basic arguments Your Honor.

Justice Hugo L. Black: But is it set out in your brief in the Court section?

Mr. Francis J. Steiner: Yes Your Honor it is, I've cited.

Justice Hugo L. Black: But is it quoted?

Mr. Francis J. Steiner: Yes Your Honor it's quoted.

Justice Hugo L. Black: Where?

Mr. Francis J. Steiner: On page 2.

Justice Hugo L. Black: Of the reply brief?

Mr. Francis J. Steiner: Yes Your Honor.

Justice Hugo L. Black: 1552 (A).

Justice Thurgood Marshall: But it doesn't say anything about the Court of Claims.

Mr. Francis J. Steiner: No Your Honor.

But in the legislative history they said --

Justice Thurgood Marshall: Well does that say?

Mr. Francis J. Steiner: Will be filed just on officers and that they consider will it be on court --

Justice Thurgood Marshall: It says officers.

Mr. Francis J. Steiner: It says officers and they deleted courts.

Justice Abe Fortas: Well and then say it in the statute and the Court of Claims have never done it, is that right?

Mr. Francis J. Steiner: Pardon me Your Honor.

Justice Abe Fortas: It doesn't say in the statute and the Court of Claims has never reviewed that sort of a determination, am I right or wrong?

Mr. Francis J. Steiner: You are right on that, that they have never reviewed a court-martial but two circuits have, two circuits have and --

Justice Abe Fortas: No, but you were saying Court of Claims and in fact of the matter is statute does not mention the Court of Claims and the Court of Claims has never have reviewed it, has never exercised power that I understood you to assert that it has.

Mr. Francis J. Steiner: Well Your Honor I think if they were faced with a case directly in point, well that was the only basis they would construe it that way, now that's just conjecture but they haven't ruled that I know, that no this prohibits us from reviewing it.

And the thing is, it excluded any Court, this is general Court, they didn't specify courts could and which couldn't.

Justice Byron R. White: Was that involved in the Ashe case.

Mr. Francis J. Steiner: Yes, Your Honor.

This is the very basis of the Ashe.

Justice Byron R. White: Plus the 28 U.S code.

Mr. Francis J. Steiner: Yes sir.

Justice William J. Brennan: Now these two circuits that have that -- what cases are those?

Mr. Francis J. Steiner: The First and Tenth Circuit Your Honor Ashe versus McNamara.

Justice William J. Brennan: Uh-huh.

Mr. Francis J. Steiner: Which is 3355 Federal Second 277, yes Your Honor.

Justice William J. Brennan: That's First circuit and the Tenth circuit case is.

Mr. Francis J. Steiner: Is Smith versus McNamara 395 F Second 896.

Justice William J. Brennan: Well, I thought those are habeas corpus cases.

Mr. Francis J. Steiner: No, Your Honor these were under the correction board statue Ashe for example was not in fact -- and they didn't hold in its favor and Smith, but they ruled they had jurisdiction in accordance of Ashe.

Justice William J. Brennan: Thank you.

Justice Byron R. White: I take it there would be any limit on the nature of the attack which the secretary of the board under this section could have entertained.

Mr. Francis J. Steiner: The secretary could do anything Your Honor I believe.

Justice Byron R. White: Under this section, he could just say –- he can say there has been an error here, because there wasn't enough evidence to sustain my conviction by the court-martial and the -– and so the Secretary could if he wanted to despite 76 review the evidence and then you would say the court might review him.

Mr. Francis J. Steiner: Yes Your Honor.

Thank you.

Chief Justice Earl Warren: Mr. Weisl.

Rebuttal of Edwin L. Weisl

Mr. Edwin L. Weisl: Very briefly Chief Justice --

Justice William O. Douglas: Was the certiorari sought in that Ashe you remember --

Mr. Edwin L. Weisl: I don't believe it was Mr. Justice Douglas, the speaker as to the board question that has been the subject to extensive examination by the court -- there is a discussion in our brief of footnote 31 on page 46.

In this brief, our position that legislative history of the statute establishing the court provides that there maybe judicial review under appropriate circumstances.

The government I feel certainly would take the position that if the underlying action being reviewed by the board was a court-martial that the finality clause of Article 76 would bar judicial review of the board's decision.

The board's decision however --

Justice William O. Douglas: Mr. Weisl -- what does this mean, I am reading from Ashe.

In light of this history, we are confident that the finality provision as it now exists quoting it “a correction under this section is finally conclusive on all offices of the United States, was not intended to conclude any otherwise proper judicial review of the departmental action upon a petition to change by petitioner”.

Mr. Edwin L. Weisl: I think that case is clearly wrong to the extent that it says if you can review a board.

Justice William O. Douglas: But it is contrary to your position.

Mr. Edwin L. Weisl: Yes sir.

Justice William O. Douglas: I see.

So we have to disapprove it then.

Mr. Edwin L. Weisl: Your Honor, I think you'll see it from the Court of Claims decision in Juhl that there are two questions --

Justice William O. Douglas: Can I ask then before -- what about the other case, was there any proceeding before the Augenblick case, any effort to get a proceeding before a correction board in that case?

Mr. Edwin L. Weisl: To the best of my knowledge, there was not --

Justice William O. Douglas: I don't see any conflict in Ashe and your position here.

Mr. Edwin L. Weisl: Here no, but I said if the question arose again whether the board for the correction of records could be reviewed in court when they have corrected a court-martial, we would urge that Article 76 bars judicial review of that board Ashe.

Yeah, finally in conclusion I would like to I think place this case in respect to both these cases by saying that I think we are all concerned about probably is whether a military defendant has access at some point to a civilian court to make sure that he was not convicted on fundamentally unfair grounds by fundamentally unfair procedures and briefly these are the instances under which a military defendant can at some point get civilian review by a civilian court.

He is imprisoned over one year; he can go to the Court of Military Appeals or of course habeas corpus.

He is dismissed from the service as was Augenblick; it's a bad conduct or dishonorable discharge.

He is an enlisted man; he can go to the Court of Military Appeals, which is a civilian court.

If he is imprisoned for less than one year, truly must act promptly, but he can seek the remedy of habeas corpus and that remedy has been made much more meaningful by this court, because even if he has properly applied for that writ, even though his imprisonment is over and he has served his term, this court has recently held in the Carafus v. LaVallee case that he can pursue his habeas remedy and have his conviction expunged.

Therefore, only in the petty area where a fine is imposed or a reduction in pay takes place is he foreclosed by review by habeas or the Court of Military Appeals.

I think that this situation shows that fundamentally the position the government has urged is fair, thank you.

Chief Justice Earl Warren: Thank you Gentlemen.