The opinion of the court was delivered by: FOLLMER
The application for Writ of Habeas Corpus by William D. Harvey alleges that as a First Lieutenant in the United States Army he was tried on December 30, 1947, before a General Court-Martial on the charge of violating the 58th Article of War, 10 U.S.C.A. § 1530. That at such trial one Captain Raymond G. Doucett, Jr., was assigned to him as Assistant Defense Counsel. That the conviction on such trial was disapproved by the reviewing authority and a new trial ordered. That on May 14, 1948, he was again tried before a General Court-Martial (the charges being violation of Articles of War 58 and 94, 10 U.S.C.A. §§ 1530, 1566) and at such second trial said Captain Doucett was assigned as Trial Judge Advocate to prosecute him. He alleges that he was thereby denied due process of law. This is amplified by the allegation in his traverse 'that Captain Raymond G. Doucett, Jr., O-452615, who had been designated as one of the Assistant Defense Counsel of the General Court Martial before which the petitioner was tried on December 30, 1947, did participate with the petitioner in the preparation of his defense and in the preparation of his trial by General Court Martial, and further, because of the relationship existing between the petitioner and the said Captain Raymond G. Doucett, Jr., the petitioner confided in the said Captain Doucett certain facts and information which were of a privileged and confidential nature, and which were subsequently available to the said Captain Raymond G. Doucett, Jr. in his capacity as Trial Judge Advocate at the second trial of the petitioner * * * .'
1. The charges were originally preferred on October 13, 1947.
2. The pre-trial investigation was conducted during November 1947, at which time Captain Martin Siegel participated as Defense Counsel on behalf of William D. Harvey.
3. The case of William D. Harvey was originally assigned on December 2, 1947, for trial to a General Court-Martial which had been set up by Special Orders No. 185 of August 15, 1947, and to which court Captain Raymond G. Doucett, Jr., had been assigned generally- on November 3, 1947, as one of the Assistant Trial Judge Advocates.
4. As such Assistant Trial Judge Advocate, Captain Raymond G. Doucett, Jr., was directed by the Trial Judge Advocate to serve, and on December 9, 1947, did serve the charges upon William D. Harvey.
5. The case was subsequently reassigned to a General Court-Martial designated on December 9, 1947, under Special Orders No. 281, which order designated twenty-eight officers as members of the court, Major William A. Hunt, Jr., as Trial Judge Advocate and four others, including First Lieutenant Paul W. Hughes who actually prosecuted the case at the first trial, as Assistant Trial Judge Advocates, and designated Major Percy A. Matthews as Defense Counsel with Captain Raymond G. Doucett, Jr., and Captain Martin Siegel as Assistant Defense Counsel.
6. Major Percy A. Matthews as Defense Counsel designated Captain Siegel, who had previously acted as Defense Counsel for William D. Harvey during the pre-trial investigation, as Assistant Defense Counsel for the preparation for and trial of William D. Harvey, and Major Matthews as Defense Counsel participated therein.
7. A person listed generally as Assistant Defense Counsel in such a special order establishing a General Court-Martial would not participate in any particular case assigned to that court unless designated therefor or directed to participate therein by the Defense Counsel.
9. Captain Doucett did not occupy space in the Defense Counsel room but was located in the room occupied by the Assistant Trial Judge Advocates.
10. Major Matthews, in the preparation of the defense and in the trial of William D. Harvey, did not assign any duties whatsoever to Captain Doucett, but did assign such duties to Captain Siegel who did participate in the defense preparation and at the trial as Assistant Defense Counsel.
11. Major Matthews did not confer with Captain Doucett in any manner concerning the defense of William D. Harvey and at no time revealed to Captain Doucett any confidential information that might have been furnished by William D. Harvey.
12. Captain Doucett never considered himself as an Assistant Defense Counsel for William D. Harvey and never in any respect acted as such, and had no knowledge of the fact that his name had been included in the general list on Special Orders No. 281 until an inquiry ...