# William L. Calley, Jr., Cross-Appellant v. Howard H. Callaway, Etc., Etc., Cross-Appellees > Court of Appeals for the Fifth Circuit · September 10, 1975 · 519 F.2d 184 URL: https://www.frixlaw.com/law-library/cases/9461920 ## Case - **Full name:** William L. CALLEY, Jr., Petitioner-Appellee, Cross-Appellant, v. Howard H. CALLAWAY, Etc., Et Al., Etc., Respondents-Appellants, Cross-Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** September 10, 1975 - **Citations:** 519 F.2d 184; 1975 U.S. App. LEXIS 12794 - **Precedential status:** Published - **Opinion:** Dissent by Bell - **Judges:** Wisdom, Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth, Godbold, Dyer, Simpson, Morgan, Clark, Roney - **Cited by:** 168 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461920 ## Opinion text BELL, Circuit Judge, with whom GEWIN, THORNBERRY, MORGAN and CLARK, Circuit Judges, join (dissenting). Justice Holmes once observed that: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” 1 This is such a case. It was tried in the midst of the unusual emotion of the Nation’s Vietnam Era. It was an emotion generated by a people sharply divided over the unprecedented and extraordinary use of our military resources in diplomacy; an emotion fueled by the print and electronic media in shaping public opinion without the impediment of censorship in what for all intent, purpose, and result was a war. The issues presented in this case, with the exception of the contention respecting the charges and their specificity, are all permeated to some extent with this atmosphere. In the view we take of the case, the withholding of evidence by the Congress (a Committee of the House), requires a new trial, or further proceedings in the district court. Thus we would pretermit decision as to the prejudicial pretrial publicity issue. The Vietnam tragedy having ended, and the emotion and even the newsworthiness of the event and its component parts having subsided, it is unlikely that an arguable case could be made of prejudicial pretrial publicity in the event of a retrial. Before joining issue with the majority on the conduct of Congress in withholding evidence, we note that the issue is not guilt or innocence, but whether Lt. Calley was denied substantial constitutional rights in his trial. It is necessary also to point out the following areas of agreement with the majority. First, we agree that the scope of review in a federal habeas proceeding involving a military conviction is limited to claims: “ . . . that the court-martial acted without jurisdiction, or that substantial constitutional rights have been violated, or that exceptional circumstances have been presented which are so fundamentally defective as to result in a miscarriage of justice. Consideration by the military of such issues will not preclude judicial review for the military .must accord to its personnel *229 the protections of basic constitutional rights essential to a fair trial and the guarantee of due process of law. The scope of review for violations of constitutional rights, however, is more narrow than in civil cases. Thus federal courts should differentiate between questions of fact and law and review only questions of law which present substantial constitutional issues. Accordingly, they may not retry the facts or reevaluate the evidence, their function in this regard being limited to determinining whether the military has fully and fairly considered contested factual issues. . . . ” Majority op., p. 203. We believe that the withholding of evidence from Calley by the Congress is an error of constitutional magnitude within this stated scope of review. Second, because counsel failed to preserve error in connection with the effort to subpoena Secretary Laird, Secretary Resor and General Westmoreland, we find no error of constitutional magnitude. We do not reach the question whether the military judge erred in conditioning the issuance of the subpoenas on a preliminary interview with the witnesses to determine facts within their knowledge regarding command influence. It was arguably these witnesses who would have exercised or known of the exercise of command influence. It is appropriate to note, however, that we do not approve of the idea of substituting an interview for an examination under oath as a method of proving command influence. We also find no error in the failure to subpoena John Tunstal. Third, we find no error warranting federal habeas relief in the notice and double jeopardy claims arising out of the Charges, Specifications and Bill of Particulars. Fourth, we conclude that the Jencks Act violation, 18 USCA, § 3500, does not rise to the level of a constitutional claim cognizable in a federal habeas proceeding involving a military conviction. Just as the majority points out, the Jencks Act does not set out constitutional requirements. United States v. Augen-blick, 1969, 393 U.S. 348, 356 , 89 S.Ct. 528 , 21 L.Ed.2d 537, 545 . Fifth, we find no cognizable error or errors in Lt. Calley’s cross-appeal. This brings us to the issue, the resolution of which, in our judgement, requires a new trial or further proceedings in the district court. This issue involves the conduct of a Committee of the Congress, conduct which in the hindsight of United States v. Nixon, 2 if not theretofore, appears cavalier if not arbitrary. Whichever, it constituted a denial to Lt. Calley of due process by the Congress, and thereby the government. Indeed, it should be said that one can scarcely imagine a more government-oriented and government-involved set of facts. Lt. Calley was in the army at the behest of his government; he was sent to Vietnam by his government; he was sent into combat at My Lai by his government. He was at My Lai with the consent and implied approval of the Congress. The government court-mar-tialed him through the army and withheld evidence from him through the Congress. It is said that this is not a denial of due process. We disagree. Our understanding of the majority opinion is that it excuses the conduct of Congress in ignoring the request of the defense, the military judge, and the prosecution, for the testimony given to a subcommittee of the House Armed Services Committee of prosecution witnesses concerning the My Lai incidents. These witnesses later testified in the Calley trial. Their testimony to the Congress was never made available to the Calley defense. No claim of privilege was asserted by Congress nor was the testimony made available to the military judge for in camera examination. The requests to the Congress simply went unanswered. Even subpoenas were ignored. To this date neither this court nor the district *230 court has seen the testimony, although it appears conceded that the testimony does exist. 3 Five reasons are offered in the majority opinion to justify this course of conduct. First, more extensive pre-trial discovery rights were accorded Lt. Calley by the military court than would have been available to him in a civilian court. Second, Lt. Calley was furnished other statements of every one of the witnesses used against him whose Congressional testimony was withheld. Third, “many” of the witnesses involved gave testimony at his trial which was not critical to his conviction. Fourth, the defense was unable to meet its burden of demonstrating that the testimony withheld was material, i. e., valid impeachment material not duplicative of that already possessed by the defense. Fifth, the subcommittee’s statements were not available to the military court prosecution team. The first, second and third reasons are supportive of due process. Each one helped to assure that the trial proceedings were fair, but they cannot be viewed as complete guarantees of due process either separately or cumulatively. For example, the third reason does not claim every witness, whose testimony was withheld, gave noncritical testimony. We do not understand this to be an assertion that the withholding of the statements of these witnesses was, if error, harmless beyond a reasonable doubt. Moreover, the concept of due process is not satisfied with a trial that is “mostly” fair or one in which “many” aspects of fairness are present. The fourth and fifth reasons are unusual to say the least. It is said that the defense did not demonstrate that the content of the testimony withheld, by the Congress was material to the verdict. With equal certainty, we can state that the prosecution could not show that testimony withheld was immaterial or cumulative. When the majority fixes the “burden of proof” on Calley, it decides the issue against him. This case is distinct from every precedent that places the burden of demonstrating materiality on a defendant. These cases all involve fact situations in which the content of the material withheld was known when relief was sought. Here it was not. Cf. United States v. Deutsch, 5 Cir., 1973, 475 F.2d 55 . The effect of the holding that Calley had this burden is to say he cannot know what Congress withheld because he does not know what they withheld. While Brady v. Maryland, supra, establishes that unequal access to exculpatory facts by the prosecution over the defense can violate due process, it does not establish the opposite syllogism — if neither side has access to exculpatory facts, there can never be a violation of due process. The Constitutional guarantee of a fundamentally fair trial neither began with Brady, nor ended there. It is the broad Constitutional precept of fundamental fairness which separates us from the majority. The majority concedes that under Brady v. Maryland, supra, earlier statements of witnesses who testify for the prosecution, would be available to the defense if material to mitigation, exculpation, or impeachment. See Giglio v. United States, 1972, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 . It is argued, however, that Brady and its progeny speak in terms of the “prosecution” withholding evidence and thus wquld not apply to the Congress, citing Moore v. Illinois, 1972, 408 U.S. 786 , 92 *231 S.Ct. 2562 , 33 L.Ed.2d 706 . If this is the law, then it would follow that the denial of evidence known to exist, material to a defense, but beyond the subpoena power because of the power of some part of the government, be it executive or congressional, cannot serve as a basis for a denial of due process. The fundamental nature of due process requires that we hold otherwise. The United States Government has brought this defendant to trial, just as surely as that same government placed him in the chain of events leading to My Lai. To state that the defendant must face the government in fragmented form, executive, congressional or judicial, is to unduly freight the right to due process. Such fragmentation effectively eases the government’s burden of proof by allowing a so-called independent branch to withhold evidence material to innocence. Over the years courts have recognized that the law “will not allow governmental privileges to work against a criminal defendant who has a substantial stake in the outcome of the trial.” 4 See United States v. Reynolds, 1953, 345 U.S. 1, 12 , 73 S.Ct. 528 , 97 L.Ed. 727, 735 ; Jencks v. United States, 1957, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 . Even more so, a blanket refusal by the government to supply evidence favorable to a defendant results in a denial of due process of law. Though the Supreme Court in Brady spoke of evidence in the hands of the “prosecution,” 373 U.S. at 87, 83 S.Ct. 1194 , 10 L.Ed.2d 218 , we feel that this principle of due process applies equally to all parts of the government. Indeed, the concern of Brady was for the entire system of the administration of justice. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1197 , 10 L.Ed.2d 215, 218 . The breadth of the majority position must be that an exculpatory statement in the hands of the President or the Congress which absolutely absolves a defendant, could be withheld with impunity, even though resulting in a defendant’s conviction. The underpinning for this argument is the privilege to withhold. Fortunately, the Supreme Court has restricted this governmental privilege departure from the Anglo-American tradition that the public has a right to every man’s evidence except those protected by a constitutional, common law, or statutory privilege. See Branzburg v. Hayes, 1972, 408 U.S. 665 , 687 & n. 26, 92 S.Ct. 2646 , 33 L.Ed.2d 626 , 644 & n. 26. In United States v. Nixon, supra, the court said: “We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. 418 U.S. at 709, 94 S.Ct. at 3108, 41 L.Ed.2d 1064 . This statement of the philosophy of the adversary system in criminal justice is repeated in United States v. Nobles, 1975, -U.S.-, 95 S.Ct. 2160 , 45 L.Ed.2d 141 . *232 In United States v. Nixon, the President challenged a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution on the ground of privilege. The Supreme Court, rejecting the claim of privilege, held: “We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713, 94 S.Ct. at 3110, 41 L.Ed.2d at 1066, 1067. The Nixon holding is applicable to this case. Congress has no greater privilege than the President in the circumstances presented. There was no claim of privilege or of confidentiality except for the letter referred to in the majority opinion stating that testimony would be taken in executive session to avoid prejudicing the rights of any defendant in the My Lai prosecution. There is no general claim of secrecy under Art. I, § 5, Cl. 3, of the Constitution. We would hold that the government, through Congress, caused the army, pri-ma facie, to deny Lt. Calley due process of law in withholding the testimony of the witnesses who testified against Cal-ley. We say prima facie because the testimony has never been examined for its materiality on mitigation, culpability or impeachment. This brings us to the remedy we would afford. The district court should be directed to examine the testimony of the witnesses before Congress for materiality. Should it prove to be material, the writ should issue conditioned on the retrial of Lt. Calley within a reasonable time. If not material, the writ should be denied. In the event Congress refuses to produce the testimony or refuses to claim constitutional secrecy within a reasonable time, the district court should grant the writ conditioned upon the retrial of Lt. Calley, but with the stipulation that those witnesses whose testimony before the subcommittee is sought and not obtained shall not be allowed to testify. 5 These directions are without prejudice to the district court considering the testimony in camera for materiality should congress so request. 6 One underlying principle of American jurisprudence is that no man or institution is above the law. Congress is not exempt from this principle. The military judge sustained this principle in the Sgt. Mitchell My Lai trial, n. 5 supra. The military judge failed to uphold this principle in the Calley trial. The majority of this court now condones that breach. . Northern Securities Co. v. United States, 1904, 193 U.S. 197, 400-01 , 24 S.Ct. 436, 468 , 48 L.Ed. 689 , 726. . 1974, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 . . The Chairman of the Subcommittee, in response to an earlier request by the prosecution for all testimony and evidence adduced before the Congress in its My Lai investigation, took the position that Brady v. Maryland, 1963, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 , did not apply in the circumstances nor did the Jencks Act. We note, as an aside, that Congress is not the body that Brady contemplated as making the decision of the defense’s right to favorable testimony. This determination is to be made by the trial court. See United States v. Nixon, supra. . Note, A Defendant’s Right to Inspect Pretrial Congressional Testimony of Government Witnesses, 1971, 80 Yale L.J. 1388 , 1411; see United States v. Beekman, 2 Cir., 1946, 155 F.2d 580 ; United States v. Andolschek, 2 Cir., 1944, 142 F.2d 503 . . This form of relief was used in the trial of Staff Sgt. David Mitchell also accused of taking part in the My Lai incident. The military judge held that Mitchell had the right to inspect the congressional testimony. Upon Congress’s refusal to reply, the judge forbade the prosecution from calling those witnesses who had testified before the subcommittee. United States v. Mitchell, Decision on the Jencks Act motion (U.S. Army, Oct. 15, 1970), cited in 80 Yale L.J. 1388 , supra. . We have no reason to answer at this time any question as to remedy, in the event constitutional secrecy is claimed and sustained. In such event, the district court would be required to balance the rights of Lt. Calley to evidence with the constitutional right afforded Congress to secrecy. Roviaro v. United States, 1957, 353 U.S. 53, 62 , 77 S.Ct. 623 , 1 L.Ed.2d 639, 646 . See also Note, A Defendant’s Right to Inspect Pre-trial Congressional Testimony of Government Witnesses, 1971, 80 Yale L.J. 1388 , supra. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461920. Public record. Not legal advice.