error and the reviewing staff judge advocate specifically found that 'The record is legally sufficient to support the findings and sentence.' No error in the proceedings before trial was commented upon or even noted by the reviewing authorities.
Article 37 of the Articles of War, 10 U.S.C.A. § 1508, and paragraph 87.b. of the Courts-Martial Manual vest a sound legal discretion in the reviewing authority to the end that substantial justice may be done. In Hicks' case the failure of the reviewing authority to order a new trial was an abuse of legal discretion.
The Circuit Court of Appeals for this Circuit in United States v. Hiatt, 3 Cir., 141 F.2d 664, 666, held that the basic guarantee of fairness afforded by the due process clause of the Fifth Amendment applies to a defendant in criminal proceedings in a federal military court as well as in a federal civil court and that an ' * * * individual does not cease to be a person within the protection of the fifth amendment of the Constitution because he has joined the nation's armed forces and has taken the oath to support that Constitution with his life, if need be.' The court went on to state: 'This is not to say that members of the military forces are entitled to the procedure guaranteed by the Constitution to defendants in the civil courts. As to them due process of law means the application of the procedure of the military law. Many of th procedural safeguards which have always been observed for the benefit of the defendants in the civil courts are not granted by the military law. In this respect the military law provides its own distinctive procedure to which the members of the armed forces must submit. But the due process clause guarantees to them that this military procedure will be applied to them in a fundamentally fair way. We conclude that it is open for a civil court in a habeas corpus proceeding * * * and the manner in which it was conducted ran afoul of the basic standard of fairness which is involved in the constitutional concept of due process of law and, if it so finds, to declare that the relator has been deprived of his liberty in violation of the fifth amendment and to discharge him from custody.'
Respecting the Effect of Errors in the Proceedings before Trial.
The respondent contends that there was no error in the procedure before trial but if there was it is not proper subject matter for inquiry in a habeas corpus proceeding. The respondent's position in this regard is stated in his brief as follows: 'Such preliminary investigation resulting in actual filing of a charge of violation of an Article of War is not the 'criminal prosecution' itself.', citing, inter alia, Romero v. Squier, 9 Cir., 133 F.2d 528, certiorari denied sub nom. Romero v. Squire, 318 U.S. 785, 63 S. Ct. 982, 87 L. Ed. 1152; Young v. Sanford, 5 Cir., 147 F.2d 1007, and Burall v. Johnston, 9 Cir., 146 F.2d 230.
Conceding that the pretrial procedure, whether in a criminal proceeding before a civil court or before a court-martial is not the criminal prosecution itself, it must be admitted that irregularities in pretrial procedure may invalidate a judgment even in a civil court of criminal jurisdiction. See McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, Mitchell, 322 U.S. 65, 64 S. Ct. 896, 88 L. Ed. 1140 and Malinski v. People of State of New York, 324 U.S. 401, 65 S. Ct. 781
While one of the purposes of the prescribed pretrial procedures is to determine whether charges shall be brought against a member of the armies of the United States, a primary purpose is to enable the accused to prepare his defense. The soldier cannot avail himself of the means of procuring witnesses and pertinent testimony so readily available to a civilian defendant. Under such circumstances the employment of the investigative techniques prescribed by the Articles of War and the Courts-Martial Manual is essential if the accused soldier is to enjoy a fair trial. See United States v. Hiatt, supra, and compare Reaves v. Ainsworth, 219 U.S. 296, 31 S. Ct. 230, 55 L. Ed. 225. The failure to employ these required investigative techniques was the primary reason why evidence of the complaining witness's reputation for chastity never reached the court-martial at Hicks' trial. An available body of substantial and pertinent evidence on the only real issue of fact presented, viz., whether Hicks had compelled the complaining witness to have sexual intercourse with him without her consent, was not investigated. For this reason the petitioner was unable to prepare properly his defense. The petitioner was not given the benefit of the procedure of the military law in this regard. This was a denial of due process of law to him. I shall not discuss in detail the effect of other errors in the proceedings before trial.
Respecting the Effect of Errors at the Court-Martial.
There were numerous errors committed at the court-martial. Of these '(1),' and '(2)' and '(4)', under the heading 'Errors in the Court-Martial Proceedings', occurring in a criminal trial before a civil tribunal would each have constituted a denial of due process of law and a violation of the Fifth Amendment. The military procedure, as has been pointed out, afforded equivalent rights to Hicks. This procedure was breached and Hicks was denied due process of law thereby.
The court-martial did not receive evidence as to the complaining witness's reputation for chastity in her community. Such evidence was available and its existence must be presumed to have been known to the trial judge advocate for the report of the investigating officer was in his hands. Evidence as to Mrs. Murray's reputation for chastity was necessary 'for a proper determination' of the matter before the court-martial. The military procedure required this evidence to be produced before and to be received by the court-martial.
This procedure was breached and thereby Hicks was denied due process of law
While the matter just discussed may appear to lie in the evidentiary field and for that reason may seem to be beyond any question of denial of due process, such a view will not stand scrutiny. Here, as was also the case in respect to the insufficiency of the investigation referred to under the previous heading, the failure to observe the military procedure amounted to a denial of evidence to the accused. I conceive that it is not an answer to this statement to point out that no one intended to deny the petitioner a fair trial and that, perhaps if witnesses as to Mrs. Murray's reputation for chastity had come forward their evidence would have been received. Such witnesses were not 'available' to the petitioner because the military procedure was not observed and for that reason the petitioner was deprived of his rights.
I shall not discuss in detail the effect of the other errors in the court-martial proceedings.
Respecting the Totality of Errors.
Casting up all of the errors committed, hereinbefore referred to under the first three headings of this opinion, by reason of failure to observe the provisions of the Articles of War and the Courts-Martial Manual whether in the pretrial procedure, at trial and on review,
I conclude that these were so numerous and of such effect as to deprive Hicks of the substance of a fair trial. The procedures of the military law were not applied to Hicks in a fundamentally fair way.
The petitioner's conduct, however viewed, was such as to bring discredit and disgrace upon the armed forces of the United States. This fact may not be taken into consideration since the judgment of this court must be in accordance with law.
The motion made by the respondent to strike out exhibits offered by the petitioner will be denied. This court has made no use of the exhibits offered for the purposes of the decision except the 'Record of Trial by General Court-Martial' but concludes that all of the exhibits should remain in the record for the benefit of the reviewing courts.
The petitioner will be discharged from custody. An order to such effect will be entered.