RELFORD v. U.S. DISCIPLINARY COMMANDANT
Legal provision: Uniform Code of Military Justice
Argument of Judson W. Detrick
Chief Justice Warren E. Burger: -- continue Detrick or do you wish to reserve for rebuttal?
Mr. Judson W. Detrick: Yes, Your Honor I wish to continue at this time.
Chief Justice Warren E. Burger: Very well.
Mr. Judson W. Detrick: Mr. Chief Justice and may it please the Court.
The second question raised by this Court’s grant on the writ of certiorari was the question of the retroactivity of O’Callahan v. Parker and it's our submission that O’Callahan v. Parker is precisely the kind of case that should be given full retroactive application so as to apply to petitioner’s conviction even though it became final within the military appellate system some six years prior to this Court’s decision O’Callahan v. Parker.
The Court has laid down a series of three criteria for determining the question of retroactivity significantly in Linkletter v. Walker and Stovall v. Deno.
Those three criteria are the purposes of the decision in question the reliance by law enforcement authorities on this standard existing prior to the substantive decision and the impact on the administration of justice of the retroactive application.
Now, in the context of these three criteria the court has often stated that the crucial question is whether the proscribed activity infects the integrity of the fact-finding process.
I would submit that the very heart of the court martial system is in question in O’Callahan and that was its power to act.
I think that the integrity of the process by which O’Callahan and petitioner were convicted is no less impugned by his conviction for a crime that the court had no power to try and convict him for then for his conviction for a crime he did not commit at all.
In both cases, the defect in his conviction goes to the very center of the legal -- of its legal justification.
Now I think the court’s emphasis on the integrity of the fact-finding process is merely and often articulated aspect of its general concern that any conviction be the product of a fundamentally fair proceeding.
I do not think that the court necessarily only means, it's very important that they are protecting against the risk of the conviction of the innocent.
Now I would cite the Court to its case in the Witherspoon v. Illinois where the Court refused to find that the jury selection standards in that case which excluded the jurors who were opposed to capital punishment from the jury.
The Court refused to find that that’s substantially increased the risk of conviction and yet the court -- conviction of the innocent and yet the court went on to find that the integrity of the fact-finding process by which that accused was convicted was necessarily undermined by that process.
And the court went on to give Witherspoon v. Illinois full retroactive application despite any considerations of reliance by law enforcement authorities or the impact on the administration of justice.
Unknown Speaker: Well, if you prevail on the merits, your retroactivity point is stronger than that, isn’t it? It was tried by tribunal where there’s no business trying it.
Mr. Judson W. Detrick: Yes, Your Honor and I think that is absolutely correct.
Now the respondent --
Unknown Speaker: That is if you prevail?
Mr. Judson W. Detrick: That is correct.
Respondent submits that the case should be given partial retroactive application only and that it should not apply to convictions that became final within the military appellate system prior to this Court’s decision in O’Callahan which was June 2 of 1969.
In part, their position is based upon this Court’s decision in DeStefano v. Woods.
In DeStefano, the Court found that the cases of Duncan v. Louisiana and Bloom v. Illinois, which imposed the jury trial requirements on the States should not be given retroactive application -- general retroactive application.
Now respondent maintains that the same reasoning applies in this case as applied in that case I submit that is not so.
First of all, the Constitutional provision involved in this case, respondent would be saying the Sixth Amendment should not be determinative of the question.
In each case the peculiarities of the decision and substantive decision should be looked at closely.
Now I feel further more that O’Callahan does involve more than DeStefano involve and that O’Callahan involves a determination that the Court has no subject matter jurisdiction.
So it was not the case in DeStefano v. Woods.
Such a determination necessarily as I’ve already pointed out goes to the very heart of the court martial process itself and does infect the integrity of fact-finding process.
In fact despite any references to whether the court martial processes at whole is more fair or less fair than a civilian process.
I would submit that any trial and conviction of someone by a court we have no jurisdiction or the subject matter is unfair.
Furthermore, I think that O’Callahan involve more and simply the right of trial by jury and the right to grand jury indictment.
I think O’Callahan involved the right to trial by jury in a civilian court with all the tenet differences between civilian courts and military courts, and I think that this Courts opinion in O’Callahan points that fact out.
Chief Justice Warren E. Burger: Well your, your position really is isn’t it that this is just as though he were convicted in the Royal Courts of Justice in London.
They have no jurisdiction in this Court.
There’s no jurisdiction in that.
Mr. Judson W. Detrick: Well, this Court had no jurisdiction over the subject matter had no jurisdictional of the crime charged.
Yes, Your Honor.
Chief Justice Warren E. Burger: Doesn’t it make any difference whether one trial is better than the other or not, does it?
Mr. Judson W. Detrick: I don’t feel it that it does, Your Honor.
If that would be my position --
Chief Justice Warren E. Burger: If you’re right?
Mr. Judson W. Detrick: -- that would be my position.
Respondent also places great emphasis on the factors of reliance by law enforcement authorities and the impact on the administration of justice.
so I would like to point out that this Court has often held that when the purposes of a decision do favor it's retroactive application which I would submit the purpose of O’Callahan due to the factors of reliance and at the impact on the administration of justice are not significant and are not to be taken into consideration because only when the purpose is ambiguous as to whether it favors retroactivity or not that those two considerations are made.
Furthermore, I would like to state that the reliance factor on the O’Callahan is certainly not as strong as the reliance factor existing in many of the decisions of this Court. My time is up.
Chief Justice Warren E. Burger: Thank you.
Mr. Solicitor General.
Argument of Griswold
Mr. Griswold: May it please the court.
There is no dispute about the facts in this case.
It involves a serviceman who is stationed at Fort Dix who was off duty on an evening past and not in uniform.
The crimes occurred within the boundaries of a military reservation, incidentally, his military reservation where he was stationed.
The victims were dependents of servicemen.
In one case, the 14-year old sister of a serviceman who was visiting his wife who had just given birth to a child in the Army Hospital at Fort Dix.
And in the other case, the wife of a member of the Air Force stationed at Mc Guire Air Force Base immediately adjacent to Fort Dix and employed on the base.
Unknown Speaker: How did Fort Campbell get into this case, I saw some --
Mr. Griswold: I don’t know Mr. Justice; I didn’t know that it had got into it.
Unknown Speaker: I saw somewhere that -- I guess the soldier visiting his wife in the hospital was right inside of Fort Campbell.
Mr. Griswold: I believe that he was assigned to Fort Campbell.
Unknown Speaker: That was it?
Mr. Griswold: But the appropriate hospital apparently was at Fort Dix and that’s where his wife had come.
These were crimes of violence involving kidnapping and rape.
Rape is specifically made a crime under Article 120 of the Uniform Code of Military Justice and kidnapping was -- the charge of kidnapping was brought under the so-called General Article -- Article 134.
Unknown Speaker: The rape actually took place on the post?
Mr. Griswold: Yes Mr. Justice, all of the events
.Both the rape and the kidnapping occurred on the military reservation.
A radical change, I think it may be fairly said, was introduced in this law in this area by this Court’s decision in O’Callahan against Parker decided on June 2, 1969.
That decision left in it's wake many undecided and uncertain questions which the military lawyers and the Court of Military Appeals have been working hard to resolve until other cases can be brought forward like this one for guiding light from this Court.
One of the problems of course the retroactive application of the O’Callahan decision to which I will turn later in my argument.
Of immediate concern however, to the lawyers who are responsible for the administration of military justice, are such questions as these.
Not all of which are involved in this case but I want to list them as some of the problems in order to put this case in a larger setting.
In the first place the standard setup in the O’Callahan case is service connection.
What is service connection?
Is it enough if in this country the offense occurs on a military reservation and is committed by a serviceman?
Does that apply to all offenses including fraud, bad checks and so on or only the crimes of violence?
And if so, what crimes under what circumstances?
And enlarging somewhat on that, is there any way that there can be a sure simple test or standard of this or must it be resolved case by case someway trying to workout the fact of each case as to whether there is enough here to make it service connected or not?
The latter of course obviously, involving great difficulty and frequent reconsideration through appeals habeas corpus and so on.
Can a court martial try an offense which occurs off a military reservation in any case?
For example, an assault by one serviceman on another in a non-public -- in a public non-military place.
And then another question of great importance, can there be a waiver of the right not to be tried by court martial?
For example the serviceman in a city, near his base in a southern state might be charged with an offense with racial overtones.
He might much prefer to be tried by court martial and the local authorities might be willing.
Can this be done with his consent?
If the court martial has no jurisdiction, it may be hard to support a waiver --
Unknown Speaker: Is that question raised here?
Mr. Griswold: That question is not here.
I'm trying to put this in its broader context or suppose that a navy ship coast at Norfolk --
Unknown Speaker: As you know the historic practices of the court is to put a problem in its narrowest rather than its broadest.
Mr. Griswold: Yes, Mr. Justice but --
Unknown Speaker: Especially with the Constitutional overtones.
Mr. Griswold: And I will get to the narrow facts but the broad problem is one of great concern and the form of this Court’s opinion can be of considerable significance as well as the result at reach -- it reaches.
Suppose a navy ship coast at Norfolk and crew was given shore leave.
While in the city, one of the men gets involved in a drunken brawl, there are injuries but no one is killed.
The ship is under orders to leave the next morning.
The city authorities will turn the man over to the navy if the navy will really try him for the offense, the man is willing.
The navy needs him and can use him despite the charge.
He may have an important assignment on the crew.
Can the navy try him in such circumstances? Suppose that all of the witnesses are likewise members of the same crew and note too the civilian punishment might be a certain number of months in jail while the navy can be much more flexible with such punishments as reduction in grade, extra duty or weekends in the brig which may be effective in many cases and less disruptive of the military service.
And then there's the whole area abroad, can there be a court martial for any offense committed abroad whether on or off a military reservation, whether against military personnel or civilians.
Note that generally speaking no question or right to trial by jury is involved here.
In certain cases, the status of forces treaties are in effect under which we can turn the man over to the foreign authorities but suppose there is no such treaty or the foreign authorities do not want to try the man.
Can he be validly tried by the court martial against his objection?
The alternatives may be to turn also such offenders to the local authorities which may mean trial by an alien system and punishment which would not meet with approval here.
All of these questions and more have been left in uncertainty since the O’Callahan decision.
This Court’s guidance is needed.
The problems arise not only in the matters of current trials for offenses committed after the O’Callahan decision and in habeas corpus with respect to past convictions but also in suits for various collateral remedies.
Such as back pay restoration, to arraign, correction of military records, and so on.
It is a very complicated area filled with many difficulties in both past and prospective.
And now let me turn to the particular problem presented by this case.
There are as far as I know only two constitutional provisions which shed any light on this problem other than the provisions of Fifth and Sixth Amendments to the extent that they are not made inapplicable.
These two constitutional provisions are Article 1, Section 8, Clause 14 and the except clause in the Fifth Amendment.
The first of this express --
Unknown Speaker: I suppose the Necessary and Proper clause for instance?
Mr. Griswold: Yes Mr. Justice but that was pretty much read out of this area in the cases Reid and Covert in the later cases and I don’t want to throw away anything that any member of the Court thinks is useful to our side but I don’t particularly rely on the Necessary and Proper Clause.
I don’t see how it can expand the field within which Clause 14 gives power although it can certainly affect the way in which that power is exercised.
Clause 14 expressly gives to Congress the power to make rules for the Government and Regulation of the land and naval Forces.
And it is of course as much a part of Constitution as are the Fifth and Sixth Amendments.
And the second excepts “cases arising in the land of naval Forces” from the grand jury clause of the Fifth Amendment showing that the framers of the Fifth Amendment two years after the Constitution went into effect where did not think they were restricting the power that had been granted by Clause 14.
The whole structure of military justice rests on this and it was this provisions which the court construed and applied in the O’Callahan decision.
They are obviously quite general and quite a lot can be read into them or not.
Obviously O’Callahan read less into them than have previously been supposed but how much and on what basis and principles is not yet wholly clear.
Since June 2, 1969 a considerable number of cases have come before the Court of Military Appeals which has the responsibility in the first instance of trying to work these matters off.
These decisions are summarized on pages 6 to 8 of our brief.
The Court of Military Appeals has held that O’Callahan does not apply to petty offenses.
That court, the Court of Claims and several district courts have held that on off duty, off post crime committed overseas may be punished by court martial and this Court denied certiorari and a case involving that question last term and again in another case this term.
The Gallagher case number 392 in which certiorari was denied on October 13.
With respect to serious crimes committed within the United States, the few cases we know of have applied a multi-factor approach that does not permit the statement the rules of thumb.
It reminds me a bit of the massing of the elements approach sometimes followed with confusion if I might say so.
In some modern state decisions in the field of conflict of laws, the Court of Military Appeals appears to have developed a rule that crimes committed by a serviceman on post are without more sufficiently service connected to justify court martial.
With respect to off post crimes, that court considers a number of factors case by case including the military status or relationship of the victim and the role of the offenders military -- the role which the military offenders military status are played in the crime.
In addition to the cases on pages 6 to 8 of our brief I can also refer to a decision of the Fifth Circuit Court of Appeals on November 9th, Zenor against Vogt which involved what you might call a routine assault by one serviceman on another serviceman.
They have both been to the club on the base.
The second serviceman had danced with the first man -- serviceman’s girlfriend in a way that the first man didn’t like.
There was a challenge and later still on the base there was an assault.
Chief Justice Warren E. Burger: What's that case again Mr. Solicitor General?
What case is this you’re referring to?
Mr. Griswold: This is one of the Fifth Circuit Court of Appeals decided on November 9th.
It is simply a case of an assault committed on base and the Fifth Circuit held that there should be no injunction against the conduct of a court martial that it was appropriate for court martial following the on-base rationale.
It's a case like this in many respects except that both parties were service en there and the offense here is more serious.
The various aspects of this case, the present Relford case which are in sharp contrast with O’Callahan.
There the crime occurred in a civilian community.
Here the crimes were on military post.
There the victim had no military connection.
Here the victim had military ties.
One is a minor sister of a serviceman and the other a wife of a serviceman.
The result we urge is that any crime by a serviceman jeopardizing the security of persons or property on a military reservation, particularly when it's his military reservation should be regarded as per se service connected because of the basic impact such crimes have on a military mission.
Whether the court martial jurisdiction should extend beyond that to off post crimes or to non-physical crimes on post like fraud or bad checks is not involved in this case and need not be decided here.
The rule for which we contend is implicit in the O’Callahan opinion itself.
The petitioner suggests that court martial jurisdiction should extend only to cases where the offender has violated a uniquely military standard of behavior such as failing to salute or assaulting an officer.
But the constitutional authority for the Government and Regulation of the land and naval Forces surely covers more than the authority to arrest the member of the Forces who jeopardizes the safety and security of this post and turn him over to the civilian authorities who may have little natural interest in the problem for prosecution.
Unknown Speaker: Mr. Solicitor General, do you know how many servicemen are now incarcerated or serving sentence under court martial sentences?
Mr. Griswold: There were some figures quoted in O’Callahan and I believe in our brief in this case.
They aren’t very meaningful until they are broken down to eliminate AWOL and things of that kind.
It lies in my mind that there are some 725 now incarcerated for serious what might be called criminal offenses.
Unknown Speaker: If you take the dichotomy or the division that you’re tendering here, I suggest that how they are going through that?
Mr. Griswold: Well, there are --
Unknown Speaker: Those not committed out post?
Mr. Griswold: There are some millions who have been subjected to court martial trials in the period since the Second World War.
The number would be relatively smaller, that would be of the order of a thousand or a few thousand rather than the 25,000 if you include petty crimes and what might be called purely military offenses.
I can undertake to get some figures on this and submit it in a memorandum.
I'm not prepared to give you a definitive answer now.
The contention which we urge seems to have been recognized in the O’Callahan opinion which referred to the fact that the crimes there were not committed on a military post or enclave according from the opinion and also to the fact that the crimes there did not affect the security of the military post.
There is surely a clear military interest in the security of persons having business on a military post from physical attack by servicemen on that post.
The Commander of a Military Installation clearly has the responsibility to maintain law and order in his command.
And he should have the authority to do so in so far as service personnel are concerned.
A post cannot be segregated into military and non-military areas for law enforcement purposes nor should it make any difference whether the offender is technically on duty or in or out of uniform.
So long as he is in the military service and remains on post, he necessarily remains subject to such elementary regulation by his Commander.
This is particularly true where the victims are close relatives of servicemen as they are here.
In the interest of clarity we urge the court to hold that the fact that a crime committed by a servicemen against person or property occurred on a military reservation.
A territorial jurisdiction test which is traditional in our criminal law is alone enough to warrant court martial of the offender.
It's not enough to say that the man should be turned over to the civilian authorities, some military reservations are vast and remote and it's not clear as a matter of the allocation of governmental responsibility why a local court in jury perhaps far removed should be expected to vindicate the military’s disciplinary problems with it's own personnel in it's own community.
But more fundamentally, the constitutional grant of power of Government and Regulation should carry with them the power to punish and not simply the power to arrest and accuse.
Now I turn to the other question on which certiorari was granted.
It's also important that in the administration of military justice to know whether the O’Callahan decision is to be applied retroactively and if so to what extent?
Although a favorable decision on the either question would dispose of this case, we urge the Court to decide both questions in order that the many people having responsibility in this area, military personnel, military judges, the court of military appeals and the lower federal courts may have appropriate guidance in carrying out their duties.
In O’Callahan, statutory provisions going directly back to 1916 and indirectly back to the beginning of the republic where held unconstitutional.
This has required the revamping of military justice on a large scale and it is meant that practice is long followed in good faith can no longer be followed.
Of course, the decision of this Court will be complied within the future.
So as I have indicated much guidance is still needed but things that were done in the past in good faith should be regarded as having at least de facto validity.
We submit that this change and basic court martial law for it was a change should be treated as prospective only.
Justice Potter Stewart: Mr. Solicitor General was the O’Callahan holding ever -- was the point raised in O’Callahan ever raised before in any case and rejected?
Mr. Griswold: Yes Mr. Justice it has been raised in a number of cases in the lower courts.
All of which has decided that there was jurisdiction to tried for a court martial trials.
It was the first time that this question had ever been brought to this Court although in a number of the previous cases certiorari had been denied.
Justice Potter Stewart: Was the matter mooted at all in the last codification of the military?
Mr. Griswold: I think it's fair to say that it had not been mooted at this level.
The only suggestion I think was in an article published in 1960 which is cited in our brief.
A Law Review Article but -- and I think it's also appropriate to say that in the cases which held that non-military persons could not be subjected to court martial, Reid and Covert, and Kinsella against Singleton and several others.
There -- even with the benefit of the hindsight which I have now in rereading those opinions, I can find no suggestion by the Court that this was an area involving servicemen which was subject to reconsideration.
I think more specifically on that in the opinion of the court in Kinsella against Singleton 361 U.S. written by Mr. Justice Clark with seven members of the court concurring in that decision.
He said on pages beginning on 240 and continuing on page 241 “the test for jurisdiction it follows is one of status namely whether the accused in the court martial proceeding is a person who can be regarded as falling within the term land and naval Forces.”
And I think that was the last authoritative word from this Court and the last intimation until the O’Callahan case was decided.
Justice Thurgood Marshall: Mr. Solicitor General, the rule as I understand was not that automatically and without exemption be retried in the military.
There were cases in the World War II where one in particular Camp Claiborne.
A rape occurred on Camp Claiborne's territory and the men were investigated by CID, etcetera and then turned over to the civilian federal authority.
Mr. Griswold: I think Mr. Justice that it is right that there were quite a considerable practice of concurrent jurisdiction and that it was not denied that the States have the power to try depending on this complicated questions about the title and ownership of the military reservations which are very confused --
Justice Thurgood Marshall: But it ended up and that that one was the largest camp at that time.
It was not a military reservation.
Mr. Griswold: Yes, I have no doubt that there are many cases of concurrent jurisdiction.
All I am asserting is that where it does involve a serviceman and is on the base that he should be subject to military jurisdiction.
Now the problems of retroactivity are now before this Court in other cases and they are difficult.
In closing my argument on this, I would like to refer to another – a pair of cases which are not cited in our brief.
I gave Mr. Detrick a memorandum of them yesterday.
In searching for guidance in this area and one of the things which I read was the opinion of Mr. Justice Brennan in Bell against Maryland in 378 U.S.
The problem there is rather different from here but it is one of the few places where there is some discussion of what happens when there’s a change in the law.
And in a footnote in that opinion there is cited the case of United States against Chambers and 291 U.S., a case on which I worked many years ago and that brought back recollections to me.
The Chambers case is one which arose out of the repeal of the Eighteenth Amendment and by the Twenty-First Amendment in 1933 and 1934.
And the Chambers case itself simply holds that pending prosecutions which have not become final would fall with the repeal of the Eighteenth Amendment.
But the question what to do about convictions which have become final before the Twenty-First Amendment was adopted never came to this Court.
It was decided a number of times in lower courts and this Court only denied certiorari and the whole inference, the whole basis of assumption in the Chambers opinion recognized in the ensuing failure to take up any cases and reach a different result was that when the Eighteenth Amendment was repealed that had no effect on judgments which had become final.
Now I recognize that this is a different forum of constitutional change than was that involved in the adoption of the Twenty-First Amendment repealing the Eighteenth Amendment.
Nevertheless, it seems to me that whatever the form is this is a case of constitutional change.
A well understood and accepted and acted upon understanding of constitutional power under which these prior convictions have been obtained was determined in O’Callahan to be no longer effective.
Of course I do not --
Unknown Speaker: Solicitor Griswold, do you have any figures at all or any idea of the impact on the -- let’s assume that O’Callahan did not meet this case.
That this was a serviceman connected.
What about the retroactivity of O’Callahan on that on the stand in the terms of impact?
Mr. Griswold: I do not know Mr. Justice how many persons are now being held if for none purely military offenses pursuant to judgments which became final before June 2, 1969.
I can say from my own experience that there have been fewer petitions for habeas corpus relying on O’Callahan then I anticipated that there would be.
Should this Court hold that it is retroactive, I would anticipate that there would be a considerable increase in the numbers such of the petitions.
I will endeavor to see if I can get any figures on that and submit them with respect to the other material that I have said I would present.
And so we submit that the judgment below can be affirmed on both grounds that is, that there was court martial jurisdiction here and that O’Callahan should not be given a retroactive application to this case.
Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.
Mr. Detrick your time is exhausted, thank you for you submission.
The case is submitted.
Mr. Detrick, I observed that you were appointed by the Court to act in this case and on behalf of the Court we wish to express our appreciation for your services to the petitioner and your assistance to the Court.
Rebuttal of Judson W. Detrick
Mr. Judson W. Detrick: Thank you.
It’s my pleasure.