19. Captain Siegel did not know of Captain Doucett's name having appeared on the list, did not at any time consider his being in any way a participant in the defense of William D. Harvey, and at no time discussed the defense with or revealed any defense matters to Captain Doucett.
20. The only connection with the first William D. Harvey trial known either to Captain Doucett or to the Defense Counsel Major Matthews, or the Assistant Defense Counsel Captain Siegel, was that Captain Doucett had, as an Assistant Trial Judge Advocate, served the charges upon William D. Harvey on December 9, 1947.
21. The only evidence introduced by the prosecution at the second trial consisted of official records, which were in no sense confidential defense matters, and the testimony of two witnesses whose names appeared on the pre-trial investigation report prior to the time that Captain Doucett, as an Assistant Trial Judge Advocate, served the charges upon William D. Harvey.
22. Captain Doucett as Trial Judge Advocate at the second trial, before presenting the prosecution's case, repeatedly asked the defense whether it had any special pleas or motions and no such defense as now presented was mentioned at that time.
Conclusions of Law.
1. Captain Doucett did not act for both the prosecution and the defense in the case of William D. Harvey.
2. There was no denial of due process nor any fundamental unfairness that would render the trial a nullity.
A mere technicality which in no way affected the fundamental fairness of Harvey's second trial certainly cannot be considered the basis for declaring such trial a nullity. Nor can the placing of Captain Doucett's name among Assistant Defense Counsel on the General Court-Martial established by Special Orders No. 281 of December 9, 1947, be considered as rising even to the dignity of being referred to as a technicality since he did not know his name had so appeared thereon, was never assigned to the Harvey trial as an Assistant Defense Counsel, never acted in such capacity, and some time during the short period between December 9, and December 30, 1947, again without his knowledge, was excused as such Assistant Defense Counsel (apparently to avoid any complications and to correct an evidently erroneous designation) by the Commanding Authority. His contention that he could not challenge Captain Doucett as Trial Judge Advocate at the second trial is without merit. The Manual for Courts-Martial, U.S. Army, 1928 (Corrected to April 20, 1943) Paragraph 41, Page 30, specifically provides as to the Trial Judge Advocate that 'When it appears to the president of the court, or to the trial judge advocate himself, that the latter is for any reason, including bias, prejudice, or hostility in a particular case, disqualified or unable properly and promptly to perform his duties, the facts will be reported at once to the appointing authority through appropriate channels.' Certainly the Trial Judge Advocate could not be expected to reveal what he did not know, but the accused could have informed the court. In this respect it is highly significant that if the situation had existed as he seeks now to portray it, and if he then considered himself as being deprived of a fair trial as he now contends, he did not mention it to even his own counsel. Moreover, as to his present oral testimony that Captain Doucett, when as Trial Judge Advocate he talked to Harvey just prior to the second trial, had in his possession the typewritten copy of his 'statement', the evidence is most convincing that Captain Doucett never say such a statement, and that in fact no such typewritten copy was ever made of such statement, and the written statement was destroyed some time prior to the alleged occurrence.
Petitioner contends that because Captain Doucett's name appeared on the list in Special Orders No. 281 he might have been designated as of Defense Counsel for the Harvey trial, even though such event did not occur, and that this in itself was sufficient. As was indicated by the Supreme Court in Eagles, Post Commanding Officer v. United States ex rel. Samuels, 329 U.S. 304, 315, 67 S. Ct. 313, 319, 91 L. Ed. 308, 'The function of habeas corpus is not to correct a practice but only to ascertain whether the procedure complained of has resulted in an unlawful detention. It is the impact of the procedure on the person seeking the writ that is crucial. Whatever potentialities of abuse a particular procedure may have, the case is at an end if the challenged proceeding cannot be said to have been so corrupted as to have made it unfair. Samuels points to possibilities of abuse. But he fails to establish prejudice in his case.'
The allegation that Captain Doucett in addition to participating as Trial Judge Advocate in William D. Harvey's trial also participated therein as Assistant Defense Counsel has not been sustained. Nothing has been shown to indicate in any way that this Court-Martial proceeding, or 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. There was no 'unfairness' in the second Court-Martial trial.
The petition for Writ of Habeas Corpus is denied and the Rule to Show Cause dismissed.