Appendix — Schick v. Reed

Supreme Court brief1974

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— A., CLERK

In THE

Supreme Caurt of the Anited States

Ocrommn Term, 1978

No. 73-5677

IN THE

Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-5677

MAURICE SCHICK,

Petitioner,

a ame

GEORGE J. REED, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

— ,

Relevant Docket Entries

Opinion of the United States Army board of review, Novem-

. 1 1

Opinion of the Court of Military Appeals. November 18.

1 f f

Opinion of the United States Army board of review on re-

consideration, February 20, 1956 ...... aa a

Opinion of the Court of Military Appeals, December 7.

1956 RRR *

Commutation Action by the President, March 25, 1960

Complaint for Declaratory Relief and for Injunction or Re-

lief in the Nature of Mandamus, filed April 19, 1971 ........

ii INDEX— Continued

Defendants’ Motion to Dismiss or for Summary Judgment,

filed September, 1971

8 Opposition to Defendants’ Motion, filed September

1971

U.S. District Court Order Granting Defendants’ Motion

Dismiss for Lack of Subject Matter Jurisdiction, Novem-

e r

r Motion for Summary Reversal, filed December

1971

* Motion for Summary Affirmance, filed December

1971

U.S. Court of Appeals Order Summarily Reversing Order of

the District Court, February 1, 1972 (Per Curiam) _.

District Court’s Order Granting Defendants’ Motion for

Summary Judgment, March 29, 1972 he

U.S. Court of Appeals Opinion Affirming the Judgment of

the District Court (Robb, Miller, JJ.; Wright, J., dissent-

— ͤ — p ¶ů¶ͥͤ w tiie

Order granting mot ion for leave to proceed in forma pauperis

and granting petition for writ of certiorari

Page

RELEVANT DOCKET ENTRIES

Date Proceedings

March 27, 1954 Petitioner convicted by general court-mar-

tial, Tokyo, Honshu, Japan of premeditated

murder

May 10, 1954 Convening authority takes action approving

finding and sentence

CM 373479 before the Army Board of Review and the

Court of Military Appeals (No. 6388 in the

Court of Military Appeals)

Nov. 30, 1954 Army board of review Opinion affirming

finding and sentence

Nov. 18, 1955 Court of Military Appeals remanded the

case to the board of review for reconsidera-

tion of the question of the accused’s sanity

Feb. 20, 1956 Board of review Opinion on reconsideration

affirming finding and sentence

Dec. 7, 1956 Court of Military Appeals, by split decision,

affirms board of review decision

July 22, 1957 Secretary of the Army’s transmittal of rec-

ord of trial to the President for action

March 25, 1960 President takes action approving finding of

guilty and commuting sentence to life im-

prisonment on condition that petitioner

never be considered for parole

April 13, 1960 Presidential action promulgated by General

Court-Martial Order No. 5, Headquarters,

Department of the Army

Civ. Action No. 779-71 in the United States District

Court for the District of Columbia

April 19, 1971 Complaint for declaratory relief and for in-

junction and relief in the nature of manda-

mus filed

Date

Proceedings

Sept., 1971

Sept. 20, 1971

Nov. 9, 1971

Nov. 16, 1971

Nov. 30, 1971

Defendants’ motion to dismiss or for sum-

mary judgment filed

Defendants’ memorandum of points and

authorities filed

Plaintiff’s opposition to defendants’ motion

to dismiss or for summary judgment filed

Plaintiff’s motion for summary judgment

filed

Order that defendants’ motion to dismiss

be granted for lack of jurisdiction over the

subject matter (Hart, J.)

Plaintiff's motion for leave to appear in

forma pauperis and for order that transcript

be furnished at the expense of the United

States

Order granting plaintiff's motion (Hart, J.)

No. 71-1994 in the United States Court of Appeals for

Dec. 6, 1971

Dec. 8, 1971

Dec. 28, 1971

Feb. 1, 1972

the District of Columbia

Plaintiff's notice of appeal filed

Appellant’s motion for summary reversal

filed

Appellees’ motion for summary affirmance

filed

Per curiam order summarily reversing Dis-

trict Court Order and remanding case to the

District Court with directions that the case

be reinstated (Robinson and MacKinnon,

JJ.)

Civ. Action No. 779-71 in the United States District

Court for the District of Columbia

March 29, 1972

Order granting defendants’ motion for sum-

mary judgment (Hart, J.)

EEE

Date

Proceedings

May 5, 1972

Notice of appeal filed

No. 72-1508 in the United States Court of Appeals

Aug. 28, 1972

Nov. 17, 1972

Aug. 21, 1973

Oct. 1, 1973

for the District of Columbia

Appellant’s brief filed

Appellee’s brief filed

ini Is affirming,

Opinion of the Court of Appea

by split decision, the judgment of the Dis-

trict Court (Robb, Miller, JJ.; Wright, J.,

dissenting)

Appellant’s petition for rehearing and sug-

gestion for rehearing en banc filed

Appellant’s petition denied

No. 73-5677 in the United States Supreme Court

Oct. 31, 1973

Nov. 12, 1973

March 28, 1974

April 12, 1974

April 22, 1974

Petition for writ of certiorari filed

Motion for leave to proceed in forma pau-

— and supporting affidavit filed

Memorandum for respondents in opposition

filed

Petitioner’s supplemental brief filed

Order granting petition for writ of certiorari

and motion for leave to proceed in forma

pauperts

DEPARTMENT OF THE ARMY

OFFICE OF THE JUDGE ADVOCATE GENERAL

WASHINGTON 25, D. C.

In the Board of Review, United States Army

Before

POTTER, GOEBEL and BERKOWITZ

Members

GM 373479

UNITED STATES

Master Sergeant Maurice L. Schick, RA 33 688

5 . 357,

Detachment Army Medical Service, United States Army

Hospital, 8169th Army Unit, APO 50

CENTRAL COMMAND

Sentence adjudged 27 March 1954

Approved sentence: To be put to death

Appellate Counsel for the Accused:

WILLIAM C. DAVALLE, ESQUIRE

Lieutenant Colonel HARLEY A. LANNING, JAGC

Appellate Counsel for the United States:

Major MERLE C. Rwour, JR., JAGC

DECISION

The accused was charged with premeditated

in violation of Article 118 of the Uniform Code 7225

— — —

tary Justice. He pleaded not guilty to the specification

and the charge. He was found guilty of both and was

sentenced to be put to death. The convening authority

approved the sentence. No previous convictions were con-

sidered by the court.

The offense occurred at Sagamihara, a dependent hous-

ing project, near Camp Zama, Tokyo, Honshu, Japan, on

21 November 1953. The victim was Susan, the eight

year old daughter of Colonel and Mrs. Jacquard H. Roths-

child, an Army officer assigned to Army Forces Far East.

The evidence adduced by the prosecution establishes

that on the afternoon of 21 November 1953 Susan visited

with the daughter of Sergeant Clark W. Overton, who

lived on the reservation in quarters 148-c. Later in the

afternoon at about 1705 hours, she left Sergeant Over-

ton’s quarters riding her bicycle towards home. She rode

easterly in the direction of a path running generally east

and west across the area. This path was frequently used

by the children in order to avoid the traffic on the roads.

She was wearing a green polka-dot dress, a western style

jacket and a white handkerchief, or scarf, on her hair.

At about the same time Susan started for home a

soldier entered the area at Gate #2, asked the gate

guard the time and proceeded westwardly along the path.

When Susan did not return home her father called

Sergeant Overton inquiring if she was still at his home.

When told that she had left, Colonel Rothschild asked

Sergeant Overton to help him search for the little girl.

A short time later Colonel Rothschild found Susan’s

body lying face downward under water in a moat which

runs parallel to the path. She had been gagged with her

panties and the lower portion of her torso was bare. Her

shoes were found nearby on the path. Her bicycle, facing

eastward, was still leaning on its rest at a place about

8 feet south of the path and about 25 feet from where

her shoes were found. Susan’s white scarf was found on

the path about four feet from her bicycle.

A medical examination, made soon after the discovery

of the body, established that there were bruise marks

and abrasions about Susan’s neck, some swelling of her

eyelids and blood in her trachea. An autopsy established

that there was an increased amount of blood in most of

the organs, particularly in the lungs and brain and a

swelling in the voice box, trachea and lungs. The cause

of death was established as asphyxia due to strangula-

tion or possibly drowning.

After the prosecution had established the corpus delicti

by competent evidence the signed pretrial statement of

the accused was admitted into evidence as Prosecution’s

Exhibit #1 (R 237), without objection by defense coun-

sel. Without going into details of the offense, it is suffi-

cient to state that the accused admitted killing Susan by

choking her and by placing her face down in the moat

and by holding her head under water with his foot. De-

fense submitted no evidence on the merits of the case

(R 240).

Defense raised the question of the mental capacity of

the accused and prior to the submission of the case on

its merits made various motions for continuances to

permit psychiatric examination of the accused by civilian

psychiatrists. After overruling a motion for an indefi-

nite delay, the law officer granted a continuance for the

purpose of having accused examined by two qualified

Japanese civilian psychiatrists. Prior to trial, a board

of Army psychiatrist had been convened to examine and

to determine the mental status of the accused.

The record of trial is replete with evidence concerning

aceused's mental responsibility at the time of the com-

mission of the offense and at the time of trial. Suffice

it to say that the Japanese doctors determined that ac-

cused was psychotic, either epileptic or schizophrenic (R

71) and that he was unable to distinguish right from

wrong or to adhere to the right (R 69). The board of

Army psychiatrists, on the other hand, diagnosed the

accused as follows: Antisocial personality, chronic se-

vere, with aggressive and sadistic tendencies, manifested

by life-long disciplinary difficulties, inability to profit

from experience, absence of real loyalties to persons,

groups or codes, and in this case by egocentricity, gran-

diosity, a desire for omnipotence, impulsive aggressive

outbursts, excessive indulgence in alcohol, and a tendency

to make and act upon his own laws (R 125-156, 163).

The board members further determined that at the time

of the commission of the offense, he could differentiate

between right and wrong, could adhere to the right and

that at the time of the trial he could understand the

nature of the proceedings against him and intelligently

conduct or cooperate in his own defense (R 126, 157,

164).

Prior to filing an assignment of errors, the civilian

appellate defense counsel and the military appellate coun-

sel filed with the board of review a motion requesting

the board to direct that the accused be transported from

Japan to the United States for further psychiatric exam-

ination. Subsequent to the filing of this motion defense

counsel filed their assignment of errors.

Civilian defense counsel argued both the motion and

the errors set forth in the assignment of errors at the

same hearing before the board of review. He requested,

that, as an alternative to the motion to return the ac-

cused for further psychiatric tests, the board of review

forward the record of trial, containing the testimony of

all the psychiatrists who examined the accused to the

Surgeon General of the Army for an opinion concerning

the mental responsibility of the accused. Pursuant to

this request and in accordance with paragraph 124,

Manual for Courts-Martial, United States, 1951, and

Rule IX f 3 of the Uniform Rules of Procedure in and

before the Boards of Review, the board forwarded the

allied papers and the record of trial to the Surgeon Gen-

eral of the Army who subsequently returned the docu-

ments to the board of review stating that in his opinion

“a. The accused was at the time of the alleged

offense so far free from mental defect, disease, or

derangement as to be able concerning the particular

acts charged to distinguish right from wrong.

„b. The accused was at the time of the alleged

offense so far free from mental defect, disease, or

derangement as to be able concerning the particular

acts charged to adhere to the right.

„e. The accused at the time of trial did possess

sufficient mental capacity to understand the nature

of the proceedings against him and intelligently to

conduct or cooperate in his defense.

“d. There is no indication in the available record

that the accused does not at the present time possess

sufficient mental capacity to understand the nature

of the appellate proceedings in this case and intelli-

gently to cooperate in his defense.”

The instructions of the law officer concerning the ele-

ments of the offense charged and on the issue of the

sanity were correct. The lesser included offenses were

submitted to the court-martial under full, complete and

appropriate instructions. The factual situation was de-

cided by the court-martial adversely to the accused.

There appears to be nothing of record to merit disturb-

ing the finding and sentence of the court.

The board of review has given careful consideration to

the assignment of errors filed by the appellate defense

counsel and has heard extended oral argument in sup-

port thereof. The assignment of errors is considered

without merit. The finding of guilty and the sentence

are supported by the competent evidence of record.

For the reasons stated above the board of review finds

the approved finding of guilty and the sentence correct

in law and in fact and having determined on the basis

of the entire record that they should be approved, the

same are hereby

Affirmed.

COURT OF MILITARY APPEALS

UNITED STATES, APPELLEE

MAURICE L. Schick, Master Sergeant,

U. S. Army, APPELLANT

6 USCMA 493, 20 CMR 209

No. 6388

Decided November 18, 1955

On mandatory review. CM 373479, not reported below.

Remanded.

William C. Du Valle, Esq., argued the cause for Appel-

lant, Accused. With him on the brief were Lieutenant

Colonel James M. Scott and Lieutenant Colonel Harley

A. Lanning.

Major Merle C. Rideout, Jr., argued the cause for

Appellee, United States. With him on the brief was Lieu-

tenant Colonel Thomas J. Newton.

OPINION OF THE COURT

Ropert E. QUINN, Chief Judge:

A general court-martial in Tokyo, Japan, tried, con-

victed, and sentenced the accused to death for the pre-

meditated murder of eight-year-old Susan Rothschild. In-

termediate appellate authorities affirmed the accused’s

conviction and sentence, and the case was forwarded to

this Court for review. Article 67(b) (1), 50 USC § 654.

After the appeal was assigned for argument in this

Court, appellate defense counsel moved to remand the

case to the board of review, or, in the alternative, for a

continuance, for the purpose of obtaining a psychiatric

examination of the accused by a civilian psychiatrist. We

granted a continuance and directed that the findings of

the psychiatrist be reported to this Court.

A team of staff psychiatrists and psychologists of the

Menninger Clinie examined the accused. Their report

says that, in their opinion, the accused was unable to

adhere to the right with regard to the offenses charged

at the time he committed the crime. They also indicate

that they consider the accused “at this time, permanently

and incurably ill.”

Once an accused has had a fa‘r opportunity at the trial

level to litigate the issue of his mental responsibility for

an offense and his capacity to stand trial, those issues

should, on appeal, be accorded the same treatment as all

other contested matters. We mean that the question

should not be tried de novo at every appellate level. A

day in court means one fair and just trial of contested

issues, and, when that has been granted to an accused,

he does not have a right to a second trial in an ay ellate

forum.

The unusual circumstances here which prompt us to

permit further consideration of accused’s sanity merit

enumeration. This accused has been sentenced to death

for the commission of an atrocious crime. He was tried

in Japan where the only civilian medical experts avail-

able to him were Japanese. One of the psychiatrists was

obliged to testify through an interpreter, and, thus, he

may have labored under a rather severe handicap in his

ability to convey his findings to the court-martial. Both

medica! witnesses had a minimum of time to conduct

their examinations, and they indicate that during the

trial they were handicapped in the development of the

bases for their conclusions.

In view of the Menninger report, and the circum-

stances set out above, we remand the case to the board

of review for reconsideration of the question of the ac-

cused’s sanity. United States v. Bell, 6 USCMA 392, 20

CMR 108; United States v. Washington, 6 USCMA 114,

19 CMR 240. The board of review will evaluate that

report in conjunction with the evidence in the record

and with such other psychiatric evidence as it may ob-

1; ———

in in an investigation of its own if it considers such

tevestigntion — or desirable. United States v.

Burns, 2 USCMA 400, 406, 9 CMR 30. In taking this

action we are not holding out to accused persons the

hope that this Court will require boards of review to

become trial forums. Only when a situation is as un-

usual as this can we be asked to exercise our discretion.

A procedural matter of some significance merits com-

ment. This case reached the Court on mandatory review.

As previously noted, appellate defense counsel moved to

remand the case to a board of review or, in the alterna-

tive, for a continuance until a psychiatric examination

could be made and a report filed in this Court. This

prayer for relief was unusual. We entertained the mo-

tion because of the special circumstances earlier enumer-

ated, and we granted a continuance. After the psychi-

atric report was received by the Court, the issue was set

down for oral argument. Counsel for both parties ap-

peared and in open court indicated that they were pre-

pared to and would argue both the motion to remand

and the errors raised on appeal. They were permitted

to do so. Consequently, if this case again reaches this

Court, no additional arguments will be heard, unless it

clearly appears that questions are raised by the decision

of the board of review which were not in issue at the

ime of argument.

ene call — possible misunderstanding, it should be

understood by the board of review that our refer nce to

unusual circumstances is for the purpose of emphasizing

that this case is sui generis. We express absolutely no

opinion on the merits of the accused’s defense of in-

sanity. The board of review should consider the entire

record, including the recently submitted report, unin-

fluenced by any proceeding before this Court, or by the

procedure directed by us. The responsibility for making

appropriate factual findings rests solely with the mem-

bers of the board of review.

Judges LATIMER and BROSMAN concur.

UNITED STATES ARMY BOARD OF REVIEW

UNITED STATES

Master Sergeant Maurice L. Schick, RA 33688357, De-

tachment Army Medical Service, United States Army

Hospital, 8169th Army Unit, APO 50

CM 373479 (recon) “

Sentence adjudged 27 March 1954. A :

“= put to death. 1

ppearances: Mr. William C. DuValle, Mr. Harl

M. Huckabee, Lieutenant Colonel James M. Scott, JAGC,

appellate counsel for the accused; Captain M. Douglas

Hodges, JAGC, appellate counsel for the United States.

DECISION ON RECONSIDERATION

Upon original review of the record of trial i in-

stant case the Board of Review by its decision phe! 30

November 1954 affirmed the approved findings of guilty

er in violation of Article 118 of

niform of Mili i

212 tary Justice, and approved the

Since this case involves a sentence to death, a -

tory appeal was taken to the United States on a

Military Appeals. Article 67 (0 (1), Uniform Code of

Military Justice. Subsequent to the filing of the appeal

and prior to argument on the merits, appellate defense

counsel moved the Court to remand the case to the Board

of Reivew, or, in the alternative, for a continuance for

the purpose of obtaining a psychiatric examination of

the accused by a civilian psychiatrist. The Court granted

the continuance and directed that the findings of the psy-

chiatrist be filed with the Court. In compliance with the

order of the Court the accused was examined by psychia-

trists and psychologists of the Menninger Clinic, who

* Original decision by board of review not reported below

submitted their findings to the Court by a comprehensive

report dated 19 August 1955. On 6 October 1955 argu-

ments by counsel were heard and the case was submitted

to the Court.

By order dated 30 November 1955, the United States

Court of Military Appeals remanded the case to The

Judge Advocate General of the Army for reference to

the Board of Review for further review in accordance

with the Court’s opinion dated 18 November 1955 (United

States v. Schick (No. 6388), 6 USCMA 493, 20 CMR

209). On 6 December 1955, The Judge Advocate Gen-

eral returned the case to the Board of Review for fur-

ther action in accordance with the mandate of the Court.

Subsequent to said reference, oral arguments by appel-

late defense and Government counsel on the question of

the sanity of the accused were heard.

Pursuant to Rule IX F 3, Uniform Rules of Procedure

for Proceedings In and Before Boards of Review, a Board

of Review is empowered to consider matters outside the

record of trial with respect to matters affecting the sanity

of an accused tending to show that further inquiry as

to his mental condition is warranted in the interest of

justice. Consequently this board will receive and evaluate

all matter concerning the mental responsibility of the

accused obtained subsequent to the prior decision of this

board.

The report of the Menninger Clinic concludes as fol-

lows:

“A. The subject is suffering from a definite men-

tal illness characterized by periodic episodes of un-

controlled violence and excitement, interspersed with

periods in which he appears either normal or rebel-

lious and anti-social to casual observers. Even in

these non-violent periods, there is evidence of the

underlying mental illness. In the American Psychi-

atric Association Standard Nomenclature currently

in use, this illness would be classified as, Schizo-

phrenic Reaction, chronic, undifferentiated type,

manifested by episodes of transitory dereistic excite-

ment, inappropriate emotional responses, extensive

inner fantasy life, perplexity and concern over men-

tal illness, blurring of boundaries between fantasy

and realty, impulsive aggressive behavior, with ego-

centricty and fantasies of omnipotence.

External Precipitating Stress: Unknown

Predisposition : Severe; lifelong pattern of anti-

social behavior.

Degree of Impairment: Severe; requires hospital-

ization.

B. The actual murder itself was senseless, from

any rational point of view, but was related in many

irrational ways to patient’s pathological thinking and

feeling. It was definitely a product of the illness

and the culmination of the gradual decompensation

of a chronically sick person.

C. On the basis of our examination of the pa-

tient, a review of his history, and a study of his

previous medical records, it seems clear he has a

mental disease which deprived him completely of the

power of choice and volition so that he was unable,

concerning the particular act charged, to adhere to

the right.”

This report was forwarded to The Surgeon General

of the Army for his opinion as to the accused’s mental

1 His opinion, dated 9 January 1956, is as

ollows: ö

3. After reconsideration of the records avai

on 12 November 1954 at the time of his first —

and consideration of the new medical studies and

opinions presented in the Menninger Clinie Report

Doctor Guttmacher’s letter, and reports from the

United States Disciplinary Barracks, Fort Leaven-

worth. The Surgeon General continues to concur in

the diagnosis of a character and behavior disorder

as set forth in the Board of Medical Officers con-

vened at the United States Army Hospital, 8167th

AU, APO 1055, San Francisco, California, dated 19

January 1954 and 6 February 1954. With particu-

lar reference to the questions asked in paragraph 3,

Comment No. 1, TJAG, 15 December 1955, The Sur-

geon General is of the following opinion:

a. The accused was at the time of the alleged

offense so far free from mental defect, disease, or

derangement as to be able concerning the particular

acts charged to distinguish right from wrong.

b. The accused was at the time of the alleged of-

fense so far free from mental defect, disease, or

derangement as to be able concerning the particular

acts charged to adhere to the right.

e. The accused at the time oi trial did possess

sufficient mental capacity to understand the nature

of the proceedings against him and intelligently to

conduct or cooperate in his defense.

d. There is no indication in the available record

that the accused does not at the present time possess

sufficient mental capacity to understand the nature

of the appellate proceedings in this case and intelli-

gently to cooperate in his defense.”

Subsequently all of the reports and testimony herein

referred to were submitted by appellate defense counsel

to Dr. Winfred Overholser for his study and opinion.

By a report dated 24 January 1956, he stated:

“However, even with all the psychiatric defects of

the present ‘tests,’ it is my considered opinion that

Schick is entitled to a verdict of acquittal by reason

of insanity.”

Our prior decision set forth the evidence at the trial

level concerning the commission of the offense, the diag-

nosis of the Japanese doctors employed by the defense

and the diagnosis of the Board of Army psychiatrists. The

substance of the testimony of the Japanese doctors was

that the accused was psychotic, either epileptic or schizo-

phrenic, and that he was unable to distinguish right from

wrong or to adhere to the right. The Army Board of

psychiatrists’ conclusions and diagnosis was that:

“(1) The clinical psychiatrie diagnosis is anti-

social personality.

“(2) The accused knew at the time of

offense that the act was wrong. 3

“(3) The accused was able at the time of the al-

leged offense to adhere to the right. *

4 His intelligence level is bright no i

an intelligence quotient of 115. —— e

“(5) He was not drunk at the time the alle

act was committed. He was drinking prior to =

time but did so voluntarily. He is not a chronic

alcoholic or a victim of an alcoholic psychosis. He

did not have ‘pathologic intoxication.’

“(6) He understands the nature and seri

of the charges. He is mentall —

ing in his own defense. 6

1 He was capable of forming the degree

intent, willfulness, malice and — called

for by the nature of the offense charged.

“It was the unanimous conclusion of i

Board that the patient, M/Sgt Maurice 1 Sebi BD

now, was in the past, and was at the time of the

commission of the alleged offense, entirely sane, com-

petent and responsible for his actions, able to differ-

entiate between right and wrong, and able to ad-

here to the right. He has a history of life-long mal-

adjustment, rebellion towards superiors, and resent-

ment toward authority, all of which reflect poor

interpersonal relationships in his family, resentment

of his parents’ restrictions and his eldest brother’s

superiorities, delinquent and non-conforming be-

havior, and on a number of occasions, incredibl

antisocial homicidal acts. These latter have been —

sistently rationalized and justified in the patient’s

mind by invoking his own special set of moral stand-

ards. It is therefore true beyond any doubt that this

man is abnormal. It is by the nature of our social

organization abnormal to kill other members of the

society except when one’s own life is threatened or

in some similar conventionally accepted situation

Like any antisocial personality, this man, while

grossly abnormal, is not insane. The difference does

not consist of a finely shaded definition. This patient

was capable of forming an intent and of acting

in a complex, carefully thought-out way on the basis

of his intent. No profound change has occurred in

his personality or character and no such change is

likely to occur. He is therefore at this moment es-

sentially the same as he was when he allegedly

killed Susan Rothschild. . . He is considered to

be a menace to society and because his behavior is

not the result of a transient personality disorder or

a transient or curable mental disease, it is the

considered opinion of this Board that he will through-

out his life continue to be a menace to society.

It is strongly recommended whatever the findings of

the court in this case and whatever the sentence in

the event of conviction, that steps be taken to segre-

gate this man from society to prever.t the repetition

of his confessed homicidal acts. Since this man is

not psychotic, he cannot be committed to an institu-

tion for the mentally ill.”

On 2 November 1954 the record of trial and trial level

phychiatrie reports were submitted to The Surgeon Gen-

eral of the Army for his opinion as to the mental re-

sponsibility of the accused at the time of the commission

of the offense and at the time of trial. He replied, on

12 November 1954, stating that he concurred in the

diagnosis, findings, conclusions and recommendations of

the Board of Medical Officers who had previously exam-

ined the accused.

The Menninger report, the latest opinion of The Sur-

geon General, including the inclosures thereto, and Dr.

Overholser’s opinion, dated 24 January 1956, is the only

additional evidence not considered by the Board of Re-

view in its original review of the record of trial and in

arriving at its prior decision. This evidence is sub-

stantially the same as that considered and evaluated by

the court-martial at the trial which was decided ad-

versely to the accused.

The question now presented for consideration is wheth-

ér the report of the Menninger Clinic and Dr. Over-

holser’s opinion, when weighed and evaluated with the

testimony of the witnesses at the trial, and the opinions

of The Surgeon General, dated 12 November 1954 and

9 January 1956, are sufficient to raise a reasonable doubt

in the minds of the members of the board as to the ac-

cused’s sanity. It is the opinion of the Board of Review

that the reports of the Menninger Clinic and Dr. Over-

holser disclose no essentially new facts not previously

known to the court-martial, which as the finders of the

facts saw and heard all the evidence, including that of

the Japanese psychiatrists and the Army psychiatrists,

and, under proper instructions from the law officer, re-

solved the issues against the accused.

The Board of Review is under no compulsion to accept

the above reports as a matter of law. United States v.

Kunak (No. 3787), 5 USCMA 346, 17 CMR 346. The

United States Court of M itary Appeals in that case

said:

“. . . While the evidence last obtained was con-

trary to other expert testimony in the record, we

cannot say that the board of review was compelled

to accept it as a matter of law....

“. . . The latest acquired evidence merely created

a disputed question of fact which, under the provi-

sions of the Code, the board was permitted to re-

solve. Its decision is not subject to reversal if there

is substantial evidence to support it.

The Board of Review believes that the following state-

ment from Holloway v. United States, 148 F2d 665 ( App

DC, 1945), cert den 334 US 852 (1948), 92 , ed 1774,

68 S Ct 1507, is apropos of this case:

“And so it is that when psychiatrists attempt on

the witness stand to reconcile the therapeutic stand-

ards of their own art with the moral judgment of

the criminal law they become confused. Thus it is

common to find groups of distinguished scientists of

the mind testifying on both sides and in all direc-

tions with positiveness and conviction. This is not

they are unreliable or because those who

— — side are more skillful or learned than

those who testify on the other. It is rather because

to the psychiatrist mental cases are a series of im-

perceptible gradations from the mild psychopath to

the extreme psychotic, whereas criminal law allows

for no gradations. It requires a final decisive moral

judgment of the culpability of the accused.

5 4 . To justify a reversal eireumstances must be

such that the verdict shocks the conscience of the

court.” (p 667)

tly, pursuant to our power under the Uni-

3 Military Justice, Article 66(c), and in ac-

cordance with the order of the United States Court of

Military Appeals, the board has considered reports of

Doctors Menninger and Overholser concerning the ac-

cused’s sanity and evaluated them in conjunction with

the evidence of record, together with the latest opinion

of The Surgeon General of the Army and has 1

ently arrived at the same conclusion as the members 0

the court-martial, and finds that the accused was at the

time of the offense and at the time of trial and is pres-

ently beyond a reasonable doubt mentally responsible for

a er the reasons stated, upon reconsideration the Board

of Review finds the findings of guilty and the sentence

as approved by proper authority correct in law and —

and having determined on the basis of the entire reco

that they should be approved, the same are hereby

Affirmed.

GOEBEL, STEELE and BERKOWITZ, Judge Advocates. 20

February 1956.

COURT OF MILITARY APPEALS

UNITED STATES, APPELLEE

MAURICE L. SCHICK, Master Sergeant,

U. S. Army, APPELLANT

7 USCMA 419, 22 CMR 209

No. 6388

Decided December 7, 1956

Un mandatory review. CM 373479, original decision

not reported below; decision on reconsideration reported

below in 21 CMR 343. Affirmed.

William C. Duvalle, Esq., argued the cause for Appel-

lant, Accused. With him on the brief were Harlow M.

Huckabee, Esq., and Lieutenant Colonel James M. Scott.

Captain Thomas J. Nichols argued the cause for Ap-

pellee, United States. With him on the brief were Lieu-

tenant Colonel Thomas J. Newton, Major Merle C. Ride-

out and Captain M. Douglas Hodges.

OPINION OF THE COURT

HOMER FERGUSON, Judge:

The accused was convicted by general court-martial of

the premeditated murder of eight-year-old Susan Roths-

child at Tokyo, Japan, in violation of Article 118, Uni-

form Code of Military Justice, 50 USC § 712. He was

sentenced to death. On May 10, 1954, tne sentence was

approved by the convening authority. The board of re-

view, by decision dated November 30, 1954, affirmed and

approved the death sentencr, A mandatory appeal, under

Article 67(b) (1), of the Uniform Code of Military Jus-

tice, 50 USC § 654, was taken to this Court. After the

appeal, and prior to argument on the merits, appellate

defense counsel moved to remand the case to the board

of review, or, in the alternative, for a continuance for

the purpose of obtaining a civilian psychiatric examina-

tion of the accused. This Court granted the continuance

and directed that additional findings of the psychiatrist

be filed with the Court. The accused was examined by

psychiatrists and psychologists of the Menninger Clinic,

who submitted their findings by a well-written and com-

prehensive report dated August 19, 1955. Arguments

were heard by counsel on October 6, 1955, and the case

was submitted to the Court. By an opinion decided on

November 18, 1955 (6 USCMA 493, 20 CMR 209), the

Court remanded the case to The Judge Advocate General

of the Army for reference to the board of review for

additional review with respect to a reconsideration of

the accused’s sanity. The case was returned to the board

of review and oral arguments by the defense and Gov-

ernment counsel were heard on the question of sanity.

By decision, dated February 20, 1956, the board of re-

view again affirmed the findings and sentence. Follow-

ing the final board of review decision the accused filed

a supplemental brief listing additional assignments of

error. The case was then reargued before the full Court.

The pertinent issues now before the Court are:

1. Whether the law officer erred in refusing to

grant further time for additional psychiatric study.

2. Whether the use of the Army Technical Man-

ual (Tech Manual) TM 8-240, Psychiatry in Mili-

tary Law, by the court-martial and the board of

review precluded its exercise of independent judg-

ment.

3. Whether the law officer’s refusal to instruct as

requested on the effect of partial mental deficiency

upon the ability of the accused to premeditate was

prejudicial, and therefore requires a rehearing.

4. Whether the board of review applied the rule

cited by it in its opinion that “To justify a reversa

circumstances must be such that the verdict shocks

the conscience of the court,” and therefore committed

reversible error.

The record discloses the following facts: During the

early evening hours of November 21, 1953, the lifeless

body of eight-year-old Susan Rothschild was found by

her father. It was lying face down in a moat at Camp

Zama, Japan. A medical examination revealed that death

had been caused by strangulation or drowning less than

an hour earlier. Six days later, to agents of the Criminal

Investigation Division of the Army, the accused confessed

that he had met Susan, talked with her about ten min-

utes, and then, as she turned to leave “I grabbed her and

choked her.” After choking her, he gagged her with her

“panties” and dragged her into a ditch. He then put

his foot on her head and held her face under the water.

The accused had been drinking since about noon that

day. The reason for the homicide was “just that she was

there.” After the deed was done, he experienced a sexual

release. |

The accused was charged with premeditated murder

and the only issue raised before and during the trial

was that of sanity. Upon each occasion counsel for the

accused attempted to obtain psychiatric examination of

the accused by nonmilitary American doctors. Although

his efforts with respect to American doctors were unsuc-

cessful, he did succeed in obtaining the services of two

Japanese psychiatrists. They were Dr. Takeo Doi, De-

partment of Neuro-psychiatry, Tokyo University Medical

School, and Dr. Susumu Hayashi, Superintendent of the

Tokyo Metropolitan Matsuzawa Mental Hospital. Both

testified at the trial that they had examined the accused,

along with all pertinent records relating to his mental

responsibility, and, in their opinion, at the time of the

offense he was suffering from schizophrenia, and he could

— distinguish right from wrong nor adhere to the

right.

Four Army psychiatrists testified for the prosecution.

All had examined the accused and had studied the rec-

ords regarding his mental capacity. Each testified that

the accused was, in his opinion, suffering from a non-

psychotic behavior disorder and accordingly was able at

the time of the offense to distinguish right from wrong,

to adhere to the right, and at the time of the trial was

able to understand the nature V = 2 against

him and cooperate intelligently in his defense.

The additional evidence on the accused’s sanity con-

sidered by the board of review and now before us is (1)

A psychiatrie and psychological report from the Men-

ninger Clinic, which classified the accused as suffering

from:

“ . . [A] definite mental illness characterized by

periodic episodes of uncontrolled violence and excite-

ment, interspersed with periods in which he appears

either normal or rebellious and anti-social to casual

observers. Even in these non-violent periods, there

is evidence of the underlying mental illness. In the

American Psychiatric Association Standard Nomen-

elature currently in use, this illness would be classi-

fied as, Schizophrenic Reaction, chronic, undifferen-

tiated type, manifested by episodes of transitory

dereistic excitement, inappropriate emotional re-

sponses, extensive inner fantasy life, perplexity and

concern over mental illness, blurring of boundaries

between fantasy and reality, impulsive aggressive

behavior, with egocentricity and fantasies of omni-

potence.

„C. On the basis of our examination of the pa-

tient, a review of his history, and a study of his pre-

vious medical records, it seems clear he has a mental

disease which deprived him completely of the power

of choice and volition so that he was unable, con-

cerning the particular act charged, to adhere to the

right.”

The report concluded,

“Yet, regardless of any disagreement about how

sick he is between excited episodes, it seems clear

that the offense arose during, and was a manifesta-

tion of, an acute psychotic episode. There is a defi-

nite history of similar episodes prior to the offense,

and the examination reveals, in minature [sic], the

kind of pathology that can be easily and sometimes

unpredictably precipitated into violent episodes. In

our opinion, these episodes will recur in the future.

Unfortunately, present day psychiatric treatment

techniques offer nothing for this man, and we would

have to consider him, at this time, permanently and

incurably ill. As psychiatrists, we simply have to

say that this man is dangerous to society, and will

remain so for many years, probably all of his life.

He should not be released to society unless there is

clear cut evidence of major change for the better in

those pathological psychological processes demon-

strated to be present.”

(2) A statement, based upon the trial record and medi-

cal reports, from Dr. Winfred Overholser, Superintend-

ent, St. Elizabeth’s Hospital, Washington, D. C., wherein

he announces the opinion that it is doubtful whether the

accused could distinguish right from wrong at the time

of the offense; however, he has no doubt but what the

accused was unable to adhere to the right and could not

have premeditated with regard to the offense charged.

But the accused could understand the nature of the trial

and appellate proceedings against him; cowd cooperate

intelligently in his defense; (3) A statement from Dr.

Manfred S. Guttmacher, Chief Medical Officer of the

Supreme Bench of Baltimore, Maryland, in which he

notes that the accused’s conscious controls are profoundly

affected by alcohol. Dr. Guttmacher did not, however,

designate the accused as being a paranoid schizophrenic,

but rather as suffering from “profound character neu-

rosis, with periods of psychotic-like behavior, particu-

larly when imbibing alcohol.” He “inclined” toward the

view that the accused was able to distinguish right from

wrong but was unable to adhere to the right. He points

out that in this area judgments are extremely difficult

to make and if present military medical criteria were

applied, the accused should “probably be considered re-

sponsible”; (4) A report from The Surgeon General of

the Army, dated January 9, 1956, in which he reviews

the Menninger Report and previous material relating to

the sanity of the accused. In the opinion of The Surgeon

General, the accused could distinguish right from wrong,

could adhere to the right, and possesses sufficient mental

capacity to understand the nature of the proceedings

against him.

After reviewing the additional ‘nformation as to the

accused’s sanity, the board of review again found the

accused mentally responsible for his acts. The conviction

was affirmed. There was substantial evidence to support

the board’s finding, and, therefore, this Court cannot

find that as a matter of law the board erred. United

States v. Bunting, 6 USCMA 170, 19 CMR 296.

The accused argues that his rights were prejudiced by

the refusal of the law officer, to allow him time for addi-

tional psychiatric study. Perhaps it would have been

more appropriate to have granted the accused additiona!

time for examination by the Japanese psychiatrists, but

we cannot say that under the circumstances of this case

the accused did not have sufficient time to prepare his

defense. From December 1, 1953, to February 6, 1954, a

board of medical officers examined the accused, and their

report was sent to the defense counsel on February 9,

1954. On the same date the defense counsel requested

the commanding officer to send the accused to Topeka,

Kansas, to be examined by the Menninger Clinic. Febru-

ary 16, 1954, the defense was informed that its request

would not be complied with. However, Government fa-

cilities, records on the accused, and Government psychia-

trists were available to the accused and counsel. On

March 16, 1954, counsel for the accused asked for a

month’s continuance in order to obtain a deposition from

Dr. Menninger. This motion was denied. Counsel then

moved for an indefinite continuance for time to bring—

if possible—Drs. Menninger, Kozal, or Overholser to

Japan. This motion was also denied but a continuance

was granted for one week to secure Japanese psychia-

trists. The defense moved again on March 22, 1954, for

a continuance in order to obtain the presence of Dr.

Overholser as a material witness; however, the defense

could furnish nothing definite with respect to whether,

if ever, Dr. Overholser would be available in Japan. An

additional continuance for two days was granted. We

note that the Japanese psychiatrists stated that in their

opinion the accused was not responsible for his acts. That

being so, and from all the facts we cannot find the rul-

ings of the law officer to be as a matter of law reversible

error. In any event, the determination as to whether

the request for a continuance should or should not have

been granted rested within the sound discretion of the

law officer. Under the circumstances of this case we can-

not say that he abused that discretion. See United States

v. Knudson, 4 USCMA 587, 16 CMR 161.

The accused also argues that he was prejudiced be-

cause use of the Department of Army Technical Manual,

TM 8-240, Psychiatry in Military Law, by the court-

martial and board of review, precluded their exercise of

independent judgment. In this connection we announce

that at most the “Tech Manual” occupies the position of

a text book or treatise on the subject of insanity. (See

opinion of Chief Judge Quinn, United States v. Kunak,

5 USCMA 346, 17 CMR 346.) It is not competent evi-

dence of either the facts or opinions advanced by the

authorities. It may be used to a limited extent in con-

nection with the testimony of an expert witness, but it

does not have any independent probative value. A study

of the record in this case now before us makes it abun-

dantly clear that all the psychiatrists who testified at

the trial arrived at their respective conclusions from an

independent evaluation of many factors taken from nu-

merous sources and the witnesses appeared to be com-

pletely unfettered by the “Tech Manual.” As a matter

of fact, there is no mention of this Manual throughout

the trial. All of the psychiatric testimony for the Gov-

ernment was to the effect—without equivocation—that

the accused knew what he was doing at all times, could

distinguish right from wrong and adhere to the right as

to the offense charged. And at no place in the law offi-

cer’s instruction did he advert to the “Tech Manual” or

call the court’s attention tnereto.

During an out-of-court conference the accused request-

ed the following instruction: “There is other evidence

in this case which you may properly weigh with the evi-

dence of voluntary intoxication in determining the ac-

cused’s reasoning ability, such as the history of impulsive

aggressive outbursts described by various witnesses be-

fore this court and the mental status of the accused as

described by the expert witnesses.” The accused assigns

as error the refusal of the law officer to give this in-

struction on partial insanity as affecting premeditation.

Although the law officer refused the requested instruction

he gave instead, “In the light of all the evidence, if you

have a reasonable doubt that the accused was mentally

capable of entertaining the premeditated design to kill

involved in the offense of premeditated murder you must

find him not guilty of that offense.” The law officer felt

that this instruction adequately covered the effect of

partial insanity on premeditation. During the out-of-

court conference, he stated, “I am not going to give your

proposed instruction . . . I believe my instruction is suf-

ficient to cover all that without enumerating the evi-

dence.” In United States v. Smith, 5 USCMA 314, 17

CMR 314, the trial court was given an almost identical

instruction. This Court held, “This instruction adequate-

ly informed the court of the possibility of partial respon-

sibility—and a consequent finding of unpremeditated

murder. Thus, no error inheres in the finding of pre-

meditated murder. Cf. United States v. Kunak, supra.”

Also see United States v. Higgins, 4 USCMA 143, 15

CMR 143. Moreover, the requested instruction in the

instant case was somewhat similar to the instruction

requested by the defense in United States v. Dunnahoe,

6 USCMA 745, 21 CMR 67. As set out in that case, the

pertinent portions of the requested instruction read:

„There is other evidence in this case which you

may properly weigh with or against the evidence of

voluntary drunkenness in determining the accused’s

reasoning ability, such as the evidence of the ac-

cused’s muscular coordination immediately before

and immediately after the alleged offense, the ac-

cused’s ability to speak coherently shortly after the

offense, the accused’s apparent lack of concern for

himself shortly after the alleged offense, the accused’s

failure to conceal the body of the alleged victim, the

accused’s failure to obtain or conceal certain real

evidence which tended to connect him with the al-

leged offense, the accused’s statements to fellow sol-

diers made shortly after the alleged offense, and the

accused’s ability later to remember certain of the

details surrounding the alleged offense.

“Tf, in the light of all the evidence, you have a

reasonable doubt that the accused was mentally capa-

ble of entertaining the premeditated design to kill

involved in the offense of premedidated murder, you

must find him not guilty of that offense.’ ”

This Court stated, after inspection of the quoted poi .ions

of the instruction (exclusive of the second paragraph,

which was considered sufficient to meet the standards of

= insanity in Smith, supra, and Kunak, supra),

at:

„ . . The vice of the requested instruction is that

it singles out bits of evidence and emphasizes them

to the exclusion of others. An accused may not iso-

late particular facts of the case favorable to him and

demand that the law officer give undue prominence

to them. Neither may he, by suggesting some facts,

require the law officer to summarize every fact for

or against every issue. United States v. Harris, 6

USCMA 736, 21 CMR 58.”

It was precisely for this reason that the requested in-

struction was refused in the case now before the Court.

When the requested instruction was proffered by the de-

fense, the trial counsel objected as follows:

“. . . I should like to suggest in reference to what

counsel has offered that if there is to be any refer-

ence to specific evidence then all of the specific evi-

dence which might be considered upon the issue

should also be referred to and that in any event it

should always be said in any instruction that this

and all other evidence in the case touching upen

these issues are what you should consider in arri vi ig

at your findings.”

Likewise, here, the law officer—in line with the Court’s

reasoning, later reflected in Dunnahoe, supra—appar-

ently concluded that the defense counsel was asking him

to “single out bits of evidence and emphasize them to the

exclusion of others,” and feeling that he was going to

give an instruction which would be sufficient as to the

effect on premeditation of mental deficiency short of in-

sanity, refused the instruction with the remark that, “I

believe my instruction is sufficient to cover all that with-

out enumerating the evidence.” The better practice

would have been for the law officer to have specified the

circumstances bearing upon the problem here. But we

are of the opinion that his failure so to do did not preju-

dice the accused. The law officer’s instructions, taken

as a whole, were adequate. In passing, we note that

appellate defense counsel complains of the definition of

“irresistible impulse” given by the law officer at the

trial. Portions of this instruction were discussed in an

out-of-court hearing and certain modifications were made

at the defense counsel’s request. After the modifications,

counsel for the accused voiced no additions vbjections

to this part of the law officer’s instruction. As given,

the instructions on irresistible impulse follow the Manual.

The accused maintains that his rights have been preju-

diced by the board of review by applying an appellate

rule that “to justify a reversal circumstances must be

such that the verdict shocks the conscience of the court.”

This, of course, is not the proper test which should be

applied by a fact-finding tribunal and if the board in

fact applied such a test, it would be error. However

the foregoing language was tacked on to another quota-

tion by the board which had to do with conflicting psy-

chiatric testimony. The entire quotation was taken from

Holloway v. United States, 148 F2d 665 (CA DC Cir)

(1945), cert den 334 US 852 (1948), 92 L ed 1774, 68

S Ct 1507. The quoted portion applies to the Federal

courts which have no fact-finding powers. But, the board

of review here had fact-finding powers and therefore

this language has no application to it. Article 66, Uni-

form Code of Military Justice, 50 USC § 653. Following

the quotation from the Holloway case, supra, the board

concluded its opinion, with the following terminal para-

graph:

“Consequently, pursuant to our power under the

Uniform Code of Military Justice, Article 66(c),

and in accordance with the order of the United

States Court of Military Appeals, the board has con-

sidered reports of Doctors Menninger and Overhol-

ser concerning the accused’s sanity and evaluated

them in conjunction with the evidence of record, to-

gether with the latest opinion of The Surgeon Gen-

eral of the Army and has independently arrived at

the same conclusion as the members of the court-

martial, and finds that the accused was at the time

of the offense and at the time of trial and is pres-

ently beyond a reasonable doubt mentally responsible

for his acts.”

Clearly the board of review did not apply the quoted

language to its finding for it is apparent from the board’s

own language that it concluded, after studying all the

evidence, that the guilt of the accused had been estab-

lished beyond a reasonable doubt.

We have reviewed the record of trial with care. The

accused was represented by two attorneys, then in uni-

form, now in the civilian practice of law, who were com-

petent trial lawyers, and they guarded the rights of their

client with commendable force and vigor. The court-

martial under proper instructions on the law decided the

issue of fact against the accused. The board of review

with its fact-finding powers has also decided the issue

against the accused. We find no errors of law which

prejudiced the substantial rights of the accused.

The decision of the board of review is affirmed.

Chief Judge QUINN concurs.

LATIMER, Judge (dissenting) :

I dissent.

This is a most difficult case to decide objectively be-

cause we are faced with a beastly and senseless crime

committed against a child of tender years. Nonetheless,

the accused is one whose mental processes have, by any

medical yardstick, been impaired. There is practically

no dispute in the facts, for the killing is admitted, the

accused’s medical history is not controverted, and the

evidence upon which the experts base their opinions is

settled. The real dispute concerns the conclusion to be

drawn from the medical evidence, for the expert witnesses

are divided sharply on accused’s mental condition and

the issue of his responsibility for the offense. However,

there are certain matters upon which they agree. Some

five or more civilian psychiatrists and six or more mili-

tary psychiatrists have participated in this case and they

are unanimous in the conclusion that, regardless of the

nature of accused’s illness, he is dangerous to society,

will remain so for many years, and should not be released

from confinement unless there is clear and positive evi-

dence of a major change for the better in his pathological

and psychological processes. In addition, they agree that

the accused suffers from some illness which may at times

affect his mental processes. The military psychiatrists

diagnose his condition as a character disorder, while most

of the civilian experts arrive at the conclusion that he

has psychotic episodes and that the killing probably oc-

curred during one of those periods, Lastly, the experts

agree that, regardless of how the illness is catalogued

or characterized, it has existed for some time and it is a

part of accused’s lifelong pattern of behavior.

It would serve no real purpose were I to set out the

facts underlying the various conclusions reached by the

experts. It is enough to say that those experts from the

civilian community who testified or otherwise submitted

their opinion are recognized as some of the outstanding

psychiatrists in America, and they presented powerful

reasons to justify their opinions that accused was insane

at the time of the offense and not mentally responsible

for the crime. On the other hand, m litary medical ex-

perts gave good reasons to support their unanimous con-

clusion that the accused, while suffering from a chronic,

severe anti-social personality, with aggressive and sadistic

trends, was sane at the time of the offense and legally

responsible for its commission.

Our task would not be difficult if we were faced only

with a dispute in the evidence or the inferences to be

drawn therefrom, for if that were the gist of the con-

troversy, we could solve the problem by merely saying

that we do not have fact-finding powers, that two fact-

finding agencies have resolved the issues against the ac-

cused, and that we are powerless to interfere. But we

are faced with an instructional infirmity, and, in the

light of the evidential posture of this case, I believe that

deficiency is sufficient to undermine the findings of pre-

meditated murder.

I agree that the law officer instructed the court-martial

members that if, in the light of all evidence, they had a

reasonable doubt the accused was mentally capable of

entertaining the premeditated design to kill involved in

the offense of premeditated murder, they must find him

not guilty of that offense. Such language may be found

within this cold record, but that is not the full story,

for it was preceded by other instructions which must

have had a tendency to becloud the issue and confuse

the court members. Certainly, if that statement was

fully and fairly understood by the court members to

mean that accused’s mental state, regardless of the diag-

nostic label, could be considered in determining his men-

tal capacity to premeditate, then I would concur with

my associates. However, my perusal of the record forces

me to conclude that the members of the court-martial

were not told informatively how to consider a condition

which, if the Government’s witnesses were to be believed,

might lave prevented the accused from premeditating,

but which would not, under their view, relieve the ac-

cused of criminal responsibility for the homicide. Very

briefly, I will mention my reasons for that conclusion.

The instruction referred to in the Court’s opinion is

quoted as it appears in the record. It there appears on

the page as a separate paragraph, but it wae given im-

mediately following an instruction on intoxication. The

instruction on that subject deals with its effect on pre-

meditation, but any reference to the effect which a mental

condition less than insanity, such as a character or be-

havior disorder, as those conditions are defined in mili-

tary publications, might have on that element are singu-

larly missing. More to the point, the instructions on in-

sanity, without some sort of additional explanation, would

lead a court member to believe that the accused’s mental

condition could only be considered if it amounted to legal

insanity, and then solely for the purpose of determining

whether the accused was to be relieved of criminal re-

sponsibility for the principal offense and all included

offenses.

In dealing with the issue of insanity, the law officer

gave the usually accepted instructions previously found

in military cases. He used the right and wrong test in

conjunction with the irresistible impulse theory. In deal-

ing with the ability to adhere to the right, he specifically

informed the members of the court that before that hy-

pothesis could be used, it was necessary that there be a

total impairment of the ability to adhere to the right

and that something less than that did not suffice to meet

the standards of military law. in addition, he informed

the court-martial members that an irresistible impulse

must be an insane, irresistible impulse, that is, an ir-

resistible impulse resulting from a disease of the mind

as distinguished from moral insanity, for he said that

moral insanity, strictly speaking, is not insanity at all.

Furthermore, he continued on to say that, for practical

purposes, inability to adhere to the right occurs only in

psychotics and that a mere defect of character, willpower,

or behavior, as manifested by ungovernable passion or

otherwise, does not necessarily indicate a lack of mental

responsibility, even though it may demonstrate a diminu-

tion or impairment of the ability to adhere to the right.

This is all very well when discussing the question of

whether the accused is to be absolved of all criminal

responsibility, but the thrust of those instructions is away

from any theory that something less than psychosis can

be considered by the court for any purpose. If the court-

martial members understood the instruction in the man-

ner in which I have interpreted it, then they would have

to conclude that if the accused was psychotic he could

be found not guilty, but that any impairment of the men-

tal processes which did not reach that level of severity

could not be considered at all. If such was the case,

then the accused was prejudiced for, while the record

would support a finding that he was legally sane, the

medical evidence is also clearly sufficient to support a

finding that his mental condition prevented him from

premeditating the commission of this senseless crime.

Surely this man was placed by the evidence in a category

such that his illness must be considered in its relation-

ship to both criminal responsibility and to the element of

premeditation. The first was covered adequately by the

instructions, the second not really at all.

In the recent case of United States v. Dunnahoe, 6

USCMA 745, 21 CMR 67, I set out the reasons why I

believed that well-recognized conditions which are char-

acterized by some psychiatrists as character disorders

and others as mental defects or derangements could be

considered by court-martial members for the purpose of

determining whether they affected the mental processes

of an accused to such an extent that he could not pre-

meditate. In that case I was not prepared to say—nor do

I at this time believe—that these disorders should be

permitted to exculpate a person for the commission of

a crime, but I have reached the conclusion that so long

as the record shows a fair poe that the condition

of an accused’s mind is affected by some illness, even

though he is not psychotic, the court-martial members

should be instructed that they may consider it in ascer-

taining whether he actually could or did premeditate.

It may well be that my views on this particular issue

will not become part of military law, but if a fair trial

is to be assured when the life of an accused is at stake,

it is necessary that law officers inform court members in

clear and unmistakabie language that they may consider

any evidence in the record which casts light on the issue

of premeditation, and that that evidence should not be

excluded from consideration merely because medical ex-

perts disagree over its diagnostic label.

I would return the record to The Judge Advocate

General of the Army for reference to a board of review,

either to affirm a finding of guilty of unpremeditated

murder and an appropriate sentence, or to grant a re-

hearing.

ACTION BY THE PRESIDENT

OF THE UNITED STATES

In the general court-martial case of Master Sergeant

Maurice L. Schick, RA 88 688 857, United States Army,

Detachment Army Medical Service, United States Army

Hospital, 8169th Army Unit, APO 50, pursuant to the

authority vested in me as President of the United States

by Article II, Section 2, Clause I, of the. Constitution,

the sentence to be put to death is hereby commuted to

dishonorable discharge, forfeiture of all pay and allow-

ances becoming due on and after the date of this action,

and confinement at hard labor for the term of his natural

life. This commutation of the sentence is expressly made

on the condition that the said Maurice L. Schick shall

never have any rights, privileges, claims, or benefits aris-

ing under the parole and suspension ur remission of sen-

tence laws of the United States and the regulations

promulgated thereunder governing Federal prisoners con-

fined in any civilian or military penal institution (18

USC 4201 et seg., 10 USC 3662 et seq., 10 USC 871,

874), or any acts amendatory or supplementary thereof.

As thus commuted, the sentence will be carried into exe-

cution. The prisoner shall be committed to the custody

of the Attorney General.

/s/ Dwight Eisenhower

THE WHITE HOUSE

March 25, 1960

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. CA-779-71

| Filed April 19, 1971, James F. Davey, Clerk

MAURICE SCHICK, United States Penitentiary,

Lewisburg, Pennsylvania 17887, PLAINTIFF

GFoR J. REED, Chairman and WILLIAM E. Auos, Cun-

TIs C. CRAWFORD, WALTER DUNBAR, GERALD E. Munch,

Members, United States Board of Parole, DEFENDANTS

COMPLAINT FOR DECLARATORY RELIEF AND FOR INJUNC-

TION OR RELIEF IN THE NATURE OF MANDAMUS

Plaintiff Maurice Schick, by his attorney, for his com-

plaint alleges:

1, This is an action for a declaratory judgment that

plaintiff is eligible for consideration for parole pursuant

to 18 U.S.C. § 4202, and to compel the United States

Board of Parole promptly to consider plaintiff for parole.

2. This court has jurisdiction by reason of the provi-

sions of 11 D.C, Code § 521 and 28 U.S.C. §§ 1831, 1361

and 2201-02. There exists between the parties an actual

controversy, justiciable in character, and in respect of

which plaintiff requires a declaration of his rights by

this Court and an order directing defendants to take ac-

tion in accordance with such declaration, The value of

these rights to plaintiff exceeds 810,000.

8. Defendants are the Chairman and members of the

United States Board of Parole, with offices located in

the HOLC Building, lst and D Streets, N. W., Wash-

ington, D.C, 20001.

4. Plaintiff, a federal prisoner serving a life sentence

in the United States Penitentiary, Lewisburg, Pennsyl-

vania, is entitled to be considered for parole under 18

U.S.C. § 4202.

5. Defendants have repeatedly refused to consider

plaintiff for parole, despite the provisions of 18 U.S.C.

§ 4202, on the nd that President Eisenhower, in com-

muting plaintiff’s death sentence to life imprisonment in

1960, purportedly made perpetual ineligibility for parole

a condition of the commutation. (See attachment.)

6. Such a condition cannot lawfully bar plaintiff from

consideration for parole.

7. Continued denial to plaintiff of the right to be

considered for e subjects plaintiff to substantial

and irreparable injury.

WHEREFORE plaintiff demands judgment against

defendants, as Chairman and members of the United

States Board of Parole, in the form of

(1) a declaration that plaintiff is eligible for consid-

eration for parole pursuant to 18 U.S.C. § 4202;

(2) an order directing defendants promptly to con-

sider plaintiff for parole; and

(3) such other and further relief as the Court may

deem just and proper.

Dated: Washington, D.C.

April 19, 1971

/s/ Herbert M. Silverberg

888 - 16th Street, N.W.

Washington, D.C. 20006

(202) 293-3300 X363

Attorney for Plaintiff

Of Counsel:

Curtis R. REITZ

3400 Chestnut Street

Philadelphia, Pennsylvania 19104

COVINGTON & RURLING

888 - 16th Street, N. W.

Washington, D.C. 20006

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 779-71

MAURICE SCHICK, United States Penitentiary,

Lewisburg, Pennsylvania 17837, PLAINTIFF

GEORGE J. REED, Chairman and WILLIAM E. AMos, CuR-

TIs C. CRAWFORD, WALTER DUNBAR, GERALD E. MURCH,

Members, United States Board of Parole, DEFENDANTS

MOTION TO DISMISS OR IN THE ALTERNATIVE

FOR SUMMARY JUDGMENT

Come now the defendants by their undersigned at-

torneys and respectfully move this Court to dismiss the

complaint for lack of subject matter jurisdiction and for

failure to state a claim upon which relief may be granted,

or in the alternative for summary judgment. This mo-

tion is made pursuant to Rules 12 (b)(1) and (6) and

56 of the Federal Rules of Civil Procedure and is based

upon this notice and motion, the certified records of the

Department of the Army filed herein as Defendants’ Ex-

hibits A through E and prayed to be read as a part of

this motion, and the pleadings of the parties, which dis-

close that there exists no genuine issue of any material

fact and defendants are entitled to judgment as a matter

of law.

——

In support of the foregoing, defendants submit a state-

ment of material facts and a memorandum of points and

authorities.

THOMAS A. FLANNERY

United States Attorney

JOSEPH M. HANNON

Assistant United States

Attorney

MICHAEL A. KATZ

Assistant United States

Attorney

Of Counsel:

ARNOLD I. MELNICK

Lieutenant Colonel, JAGC

Office of The Judge Advocate General

Department of the Army

Royce C. LAMBERTH

Captain, JAGC

Office of The Judge Advocate General

Department of the Army

(Certificate of Service Omitted in Printing

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. CA-779-71

MAURICE SCHICK, PLAINTIFF

GEORGE J. REED, Chairman, United States

Board of Parole, et al., DEFENDANTS

PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION ro Dis-

MISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT,

AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff hereby opposes defendants’ motion to dismiss

or in the alternative for summary judgment, and pur-

suant to Rule 56, Federal Rules of Civil Procedure, moves

for summary judgment in his favor. The basis of the

opposition and motion, more fully set out in the attach-

ments and memorandum of points and authorities sub-

mitted herewith, is that there is no genuine issue as to

any material fact, that the Court has jurisdiction over

this action, and that plaintiff is entitled to judgment

as a matter of law.

Respectfully submitted,

/s/ Herbert M. Silverberg

HERBERT M. SILVERBERG

888 - 16th Street, N.W.

Washington, D.C. 20006

(202) 293-3300 Ext. 363

Attorney for Plaintiff

Of Counsel:

COVINGTON & BURLING

888 - 16th Street, N.W.

Washington, D.C. 20006

(Certificate of Service Omitted in Printing]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 779-71

[Filed Nov. 9, 1971, James F. Davey, Clerk

MAURICE SCHICK, PLAINTIFF

GORE J. REED, et al., DEFENDANTS

ORDER

This cause having come before the Court on defendants’

motion to dismiss, or in the alternative, for summary

judgment, and on plaintiff’s motion for summary judg-

ment, and, upon consideration of the complaint, the said

motions, and of the memoranda and exhibits filed herein,

and of arguments of counsel held in open Court, it is

by the Court this 9th day of November, 1971,

ORDERED that defendants’ motion to dismiss be, and

the same hereby is, granted, for the reason of lack of

jurisdiction over the subject matter of this action; and

t is further

ORDERED that plaintiff’s and defendants’ motions for

summary judgment be, and the same hereby are, denied;

and it is further

ORDERED that the complaint be, and the same here-

by is, dismissed.

/s/ George L. Hart, Jr.

GrorGE L. HART, JR.

United States District Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1994

[Received Dec. 8, 1971, Clerk of the United States

Court of Appeals

MAURICE SCHICK, United States Penitentiary,

Lewisburg, Pennsylvania 17837,

APPELLANT (Plaintiff Below)

GEORGE J. REED, and WILLIAM E. Amos, Curtis C. CRAW-

FORD, WALTER DUNBAR, GERALD E. MURCH, Members,

United States Board of Parole, APPELLEES (Defendants

Below )

APPELLANT’S MOTION FOR SUMMARY REVERSAL

This is a Motion for Summary Reversal of Judge Hart’s

dismissal of appellant’s complaint below. We summarize

herein the facts and history of the case and show that

the Motion for Summary Reversal should be granted

forthwith.

Summary of the Case

In late 1953 appellant was accused of the murder of

an eight-year-old girl, the daughter of a senior officer

of the Army base on which appellant was stationed as an

enlisted man. He was convicted of premediated murder

on March 27, 1954 by General Court Martial, and was

sentenced to death.

Appellant spent six years on death row, during which

time there were numerous intercessions for clemency on

his behalf as well as extensive psychiatric evaluations.

In 1960 these culminated in President Eisenhower’s com-

mutation of appellant’s death sentence to life imprison-

ment, with the condition that appellant be forever in-

eligible for consideration for parole.

— — — —— ——— »—à•—

Under the applicable statute and regulations the

United States Board of Parole would by now have con-

sidered appellant for parole; he would have been eligible

for such consinderation as early as March, 1969. How-

ever, the Board of Parole has refused to consider ap-

pellant for parole on the grouna that it is barred from

doing so by the no-parole condition.

On April 19, 1971 plaintiff filed his Complaint For

Declaratory Relief and for Injunction or Relief in the

Nature of Mandamus. The defendants were the Chair-

man and members of the United States Board of Parole.

The theory of plaintiff's case was that the Board’s re-

fusal to consider him for parole is illegal because it is

contrary to the Board’s organic statute, and because it is

based upon an illegal Presidential action—one in flat

conflict not only with the organic Parole statute, but with

Congressional correctional policy and several constitu-

tional principles as well.

After some procedural skirmishing, on September 20,

1971 defendants moved to dismiss the complaint, or in

the alternative for summary judginent. Defendants’ mo-

tion to dismiss had several bascs:

(1) sovereign immunity;

(2) availability of relief by way of habeas corpus;

(3) the asserted inherent unreviewability of a Presi-

dential action such as the one at issue.

A hearing on defendants’ motion to dismiss and on

the parties’ cross-motions for summary judgment was

heard on November 5, 1971 by U. S. District Judge Hart.

At the conclusion of the hearing Judge Hart stated that

*“18 U.S.C. § 4202: Prisoners Eligible

A federal prisoner, other than a juvenile delinquent or a com-

mitted youth offender, wherever confined and serving a definite

term or terms of over one hundred and eighty days, whose record

shows that he has observed the rules of the institution in which

he is confined, may be released on parole after serving one-third

of such term or terms or after serving fifteen years of a life

sentence or of a sentence of over forty-five years.”

* Rules of the United States Board of Parole effective * 1.

1965, at 8-11. Copy attached at Tab A.

he would grant the government’s motion to dismiss for

lack of subject matter jurisdiction, and that if the court

had had jurisdiction over the subject matter of the ac-

tion, he would have granted the government’s motion for

summary judgment and would have denied plaintiff's mo-

tion for summary judgment. See Transcript, at 2 (re-

produced at Tab B).

Without detailing the basis for his decision (and hav-

ing stated from the bench only that “the Court lacks

jurisdiction for the type of action brought here” (Tr.

at 2)), Judge Hart entered an order which simply

granted defendants’ motion “for the reason of lack of

jurisdiction over the subject matter of this action.” The

same order denied both parties’ Motions for Summary

Judgment. A copy of the order is attached at Tab C.

Basis of this Motion for

Summary Reversal

Appellant is aware that summary reversal is an extra-

ordinary form of relief; he realizes that he has the

burden of “demonstrating both that his remedy is proper

and that the needs of his claim so clearly warrant relief

as to justify expedited action.” United States v. Allen,

133 U.S. App. D.C. 84, 85, 408 F.2d 1287, 1288 (1969).

Appellant respectfully submits that both criteria are met

in the present case.

Appellant contends that under no fair reading of the

applicable law could dismissal of this action have been

sound, Appellant is satisfied that the pleadings below

demonstrate the soundness of this contention beyond

doubt, and is content to rest the merits of his case for

summary reversal on those pleadings. The bulk of de-

fendants’ arguments in support of dismissal for lack of

subject matter jurisdiction appear at pages 3-6 of their

Memorandum of Points and Authorities In Support of

Motion to Dismiss or In the Alternative for Summary

Judgment. These pages are reproduced and attached here-

to at Tab D. Appellant’s response to these arguments

appears at pages 2-6 of his Memorandum of Points and

Authorities in Support of Plaintiff's Opposition to De-

fendants’ Motion to Dismiss or In the Alternative for

Summary Judgment, and Plaintiff's Motion for Summary

Judgment. These pages are reproduced at Tab E.

It is possible to conjecture that the judgment below

reflects the court’s conclusion that a presidential action

such as the one complained of is simply not reviewable

by a court. Such a conclusion flies in the face of a re-

sponsible reading of all of the available authority on this

issue, as is shown at pages 7-10 of appellant’s Memo-

randum, which also summarizes the government’s conten-

tions on this issue. These pages are reproduced and at-

tached hereto at Tab F.

In view of this authority, appellant submits, it is clear

beyond question that, at the very least, the district court

should have addressed itself to the issues raised below,

rather than dismiss the action. The dismissal warrants

summary reversal.

Further, appellant contends that there is no reason

why this Court cannot proceed to dispose of this case on

the merits and summarily reverse the district court’s an-

nouncement in open court that defendants would have

been entitled to prevail on the merits if matters had gone

that far. There is no likelihood whatever that this deci-

sion would be reversed by Judge Hart upon remand. A

remand for further proceedings would thus require ap-

pellant to “shuttle back and forth between courts as his

case is disposed of in piecemeal fashion.” Dixon v. Jacobs,

188 U.S. App. D.C. 319, 324, 427 F.2d 589, 594 (1970).

Such a requirement is peculiarly inappropriate in a pro-

ceeding such as this, wh'ch even defendants recognize as

seeking relief akin to that sought on habeas corpus (De-

fendants’ Memorandum at 3 (Tab D)). As to the need

to minimize delays in such a context, see, ¢.g., Cross v.

Harris, 135 U.S. App. D.C. 259, 269 n.64, 418 F.2d 1095,

1105 n.64 (1969). Pia

Appellant’s basic contention on the merits is that the

no-parole condition is literally illegal (contrary to the

parole laws), and as such cannot be enforced for reasons

summarized at page 10 of his Memorandum (Tab G).

Plaintiff based additional arguments on the Congressional

policy of rehabilitation through virtually universal eli-

gibility for parole, on the concept of separation of powers,

and on equal protection and cruel and unusual punish-

ment grounds. While plaintiff recognizes that a decision

on some of these grounds, especially the constitutional

ones, might preferably be rendered in a context other

than that of summary reversal, plaintiff submits that

where, as here, there are no factual issues whatever, and

where the court below has made its views on the merits

plain beyond doubt, as did Judge Hart in this case, this

Court is justified in proceeding to resolve the matter on

the merits in the summary reversal context. (In Wil-

liams v. Robinson, 139 U.S. App. D.C. 204, 482 F.2d

671 (1970) this Court resolved constitutional (due proc-

ess) issues on a motion for summary reversal.)

Appellant closes this motion with a prayer for expedi-

tion. Unlike that of virtually every other federal pris-

oner, appellant’s path to parole is permanently barred,

no matter the extent of his progress toward rehabilitation.

He is confined under a system that punishes misbehavior

and encourages rehabilitation, but he is presently denied

any fruits of even exemplary behavior or of even uni-

versally-conceded total rehabilitation. His life is a daily

mockery—a cruel hoax in which the better the person

appellant becomes, the more severe, unfitting and unrealis-

tic he must perceive his punishment without parole eligi-

bility to be.

Appellant therefore respectfully urges early considera-

tion of the merits of his case, so that with eligibility

for parole—which is all that he asks—he can pursue his

— in the hope that the pursuit will not be in

vain.

— — ———

WHEREFORE, this Court should vacate the judgment

of the court below, render summary judgment for appel-

lant on the merits, and grant such other and further relief

as to it may appear just and proper.

Respectfully submitted,

/s/ Herbert M. Silverberg

Counsel for Appellant

888 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 293-3300

Of Counsel:

COVINGTON & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

(Certificate of Service Omitted in Printing

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1994 (C. A. No. 779-71)

MAURICE SCHICK, APPELLANT

GEORGE J. REED,

Chairman, U.S. Board of Parole, et al., APPELLEES

MOTION FOR SUMMARY AFFIRMANCE

On March 27, 1954, appellant was sentenced to be put

to death, having been found guilty of the premeditated

murder of eight-year-old Susan Rothschild, in violation

of Article 118 of the Uniform Code of Military Justice,

10 U.S.C. § 918. Appellant had been a master sergeant

in the United States Army, stationed at Camp Zama in

Honshu, Japan. The evidence developed at appellant’s

court-martial showed that young Susan, the daughter of

Colonel and Mrs. Jacquard H. Rothschild, had been in-

tercepted while riding her bicycle home in the late after-

noon of November 21, 1953. Her father found her lying

face downward, under water, in a moat that paralleled

the bicycle path. Her panties had been used to gag her,

and the lower part of her body was nude. A subsequent

medical examination and autopsy revealed bruised and

abrasions around Susan’s neck and established the cause

of her death as asphyxia due to strangulation or possibly

drowning. Six days afterward appellant admitted having

grabbed Susan and choked her. He explained that he

then dragged her to a ditch and placed his foot on her

head, holding her face under water, after which he ex-

perienced a sexual release.

After exhaustive appellate review, appellant’s death

sentence was commuted on March 25, 1960, by President

Eisenhower to

Re ee —ů—ð. —— — —

confinement at hard labor for the rest of his natural

life. This commutation of the sentence is express!

made on the condition that the said Maurice L. Schi

shall never have any rights, privileges, claims, or

benefits arising under the parole and suspension or

remission of sentence laws of the United States and

the regulations promulgated thereunder governing

Federal prisoners confined in any civilian or military

penal institution (18 USC 4201 et seqg., 10 USC

3662 et seq., 10 USC 871, 874), or any acts amend-

atory or supplementary thereof.

Appellant’s sentence having been thus commuted, he was

committed to the custody of the Attorney General. He is

now confined in the United States Penitentiary at Lewis-

burg, Pennsylvania. The United States Board of Parole

has declined to consider appellant for parole in light of

the condition contained in the President’s commutation

of his sentence.

Appellant initiated proceedings in the United States

District Court for the District of Columbia, seeking a

declaration of his eligibility of consideration for parole

pursuant to 18 U.S.C. § 4202 and an order directing

appellees promptly to consider him for parole. The

matter came on for hearing before the Honorable George

L. Hart, Jr. and in due course resulted in an order,

dated November 9, 1971, dismissing the suit “for the

reason of lack of jurisdiction over the subject matter of

this action.” Appellant now seeks summary reversal of

the District Court’s dismissal and, further, resolution of

“the matter on the merits in the summary reversal con-

text” (Appellant’s Motion for Summary Reversal, at 7),

in order to minimize delay, the District Court having

already indicated its unfavorable view of appellant’s claim

on the merits.

ARGUMENT

Recognizing that summary reversal is an extraordinary

form of relief, appellant acknowledges that he has the

burden of “demonstrating both that his remedy is proper

and that the merits of his claim so clearly warrant relief

as to justify expedited action.”' (Appellant’s Motion

for Summary Reversal, at 4-5.) Not only has appellant

failed to meet his burden, but, rather, the facts and the

law warrant summary affirmance of the decision of the

District Court that it lacked jurisdiction to entertain ap-

pellant’s claim.

Because appellant has brought suit against officers of

the United States Government, seeking to alter the per-

formance of their official duties, his action is in reality

against the United States“ and is barred by sovereign

immunity unless founded upon a specific, statutory con-

sent to be sued.“ Such want of consent is a fundamental

defect. In the District Court appellant relied upon 28

U.S.C. §§ 1331, 1361, and 2201-02 as conferring jurisdie-

tion over this suit on the District Court; appellees sub-

mit that none of these statutes does 80.

The immunity of the sovereign is not waived under

28 U.S.C. § 1331, the federal question statute. Cotter

Corp. v. Seaborg, 370 F.2d 686 (10th Cir, 1966) ; Ander-

son V. United States, 229 F.2d 675 (5th Cir. (1956).

Neither has such a waiver been wrought by the Declara-

tory Judgment Act, 28 U.S.C. § 2201. Anderson v. United

States, supra. Relief under the Declaratory Judgment

Act is available only when jurisdiction is already present;

it does not operate to enlarge the jurisdiction of a court.

Goldstein v. Johnson, 87 U.S. App. D.C. 159, 160, 184

F.2d 342, 343 (1950).

Similarly, 28 U.S.C. § 1861 did not create any new

right against the United States nor waive its sovereign

* United States v. Allen, 133 U.S. App. D.C. £4, 85, 408 F.2d

1287, 1288 (1969).

* Hawaii v. Gordon, 373 U.S. 57 (1963); Dugan v. Rank, 372 U.S.

(1962); Larson v. Domestic & Foreign Commerce Corp., 387 U.S.

682 (1949).

*E.g., 28 U.S.C, 8 1346 (a)(1); 46 U.S.C. §§ 741 et seq.; 28

U.S.C, § 1347, 2409; 42 US.C. § 405 (e) (%%% see 1 BARRON &

HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE §54, at 301-302

(Wright rev. 1960),

Minnesota v. United States, 305 U.S. 382 (1939); Melos v.

Brownell, 102 U.S. App. D.C. 67, 250 F.2d 36 (1957),

immunity. Smith v. United States, 224 F. Supp. 402 (D.

Wyo. 1963), aff'd, 333 F.2d 70 (10th Cir. 1964); Sce-

bach v. Cullen, 224 F. Supp. 15 (N.D. Cal. 1963), aff'd,

338 F.2d 663 (9th Cir.), cert. denied, 380 US. 972

(1963). Rather, it permits actions to be brought in local

United States District Courts to compel the performance

by an officer of the United States Government of a

ministerial duty owed to the plaintiff. Prairie Ban of

Pottawatomie Tribe v. Udall, 335 F.2d 364 (10th Cir.),

cert. denied, 385 U.S. 631 (1966); Switzerland Co. V.

Udall, 225 F. Supp. 812 (W.D.N.C. 1964), aff'd, 337

F.2d 56 (4th Cir.), cert. denied, 380 U.S. 914 (1964).

It is, of course, well Ss 2 os

an extraordinary remedy “reserved for really extraordi-

nary causes.” Ex parte Fahey, 332 U.S. 258, 260 (1947).

In order for mandamus to lie, the duty alleged to be owed

to the plaintiff must be ministerial in nature, and a posi-

tive command must be so plainly prescribed as to be

free from doubt. United States v. Walker, 409 F.2d 477

(9th Cir.), cert. denied, 396 U.S. 965 (1969). As applied

to the case at bar, the “ministerial duty,” the performance

of which appellant has sought to compel, would necessi-

tate a direct breach by the Parole Board, an executive

agency, of an unambiguous condition attached to ap.

lant’s commutation by the President of the United

tates.

Relief in the nature of mandamus will not be granted

when another adequate remedy is available. Carter v.

Seamans, 411 F.2d 767 (5th Cir. 1969). In Gregory v.

United States Board of Parole,’ the court dismissed a

suit for declaratory judgment, noting that a petition for

habeas corpus is the proper, adequate and preferred

by which to challenge the legality and constitu-

tionality of the conditions of the Government’s exercise

of control over one’s person. Moreover, mandamus pro-

ceedings have been dismissed where jurisdiction in one

district is invoked under 28 U.S.C. § 1361, but habeas

corpus jurisdiction would exist in another jurisdiction.

Schmidt v. Laird, 328 F. Supp. 1009 E. D. N. C., 1971);

308 F. Supp. 258 (W. D. Mo. 1969).

Sumpter v. Laird, —— F. Supp. ——, (D. Minn., No.

4-70 Civ. 143, May 22, 1970). Appellant’s claims are

properly cognizable, if at all, only by means of a petition

for a writ of habeas corpus under 28 U.S.C. § 2241 et seg.

Article 76 of the Uniform Code of Military Justice,

10 U.S.C. § 876, provides that military review of

court-martial convictions shall be “final and con-

clusive” and “binding upon all. . courts. . . of

the United States.” The legislative history of the

provision makes clear that relief by way of habeas

corpus was an implied exception to the finality clause

(S. Rep. No. 486, Sist Cong., Ist Sess. 32; H.R.

Rep. No. 491, 81st Cong., Ist Sess. 35). United

States v. Augenblick, 393 U.S. 348, 349-50 (1969)

(emphasis added).

Presidential review being the final step in the military

judicial process, the actions of the President with respect

to the sentence of a military prisoner are judicial in

character. Runkle v. United States, 122 U.S. 548 (1887).

Inasmuch as appeliant is now incarcerated in the United

States Penitentiary in Lewisburg, Pennsylvania, his sole

remedy is to seek habeas corpus in the Middle District of

Pennsylvania.

With respect to appellant’s claim that the condition

attached to the commutation of his death sentence by

President Eisenhower is “literally illegal” (Appellant’s

Motion for Summary Reversal at 7), it must be noted

that Article 71(a) of the Uniform Code of Military

Justice, 10 U.S.C. § 871(a), provides:

No court martial sentence extending to death or in-

volving a general or flag officer shall be executed

until approved by the President. He shall approve

the sentence or such part, amount, or commuted form

of the sentence as he sees fit, and may suspend the

execution of the sentence or any part of the sentence,

as approved by him, except the death sentence. Em-

phasis added. |

Article 76 of the Uniform Code of Military Justice, 10

U.S.C. § 876, provides:

The appellate review of records of trial provided

by this code, the proceedings, findings, and sentence

of courts-martial as approved, reviewed, or affirmed

as required by this code . . . shall be final and con-

clusive, and orders publishing the proceedings of

courts-martial and all action taken pursuant to such

proceedings shall be binding upon all departments,

courts, agencies, and officers of the United States,

subject only to action upon a petition for a new

trie! as provided in Article 73 1 115 4. —

Secretary of a Department as in

74, and the authority of the President.

Such statutory language compels the conclusion that the

action taken * the President was authorized and is

now binding upon the Board of Parole. Such action was

clearly within the Presidential discretion, a discretion

founded upon the President’s role as commander-in-chief

of the armed forces, and is binding upon “all depart-

ments, courts, agencies, and officers of the United States,”

subject only to such further clemency as a future Presi-

dent may choose to bestow upon appellant. The words

“as he sees fit“ in article 71(a) were intended by Con-

gress “to give the President absolute discretion in de-

termining the amount of the sentence to be approved by

him.” ?

The President’s pardoning powers, inherently under

the Constitution and expressly by statutory affirmation,

have not been diminished by any of the federal parole

statutes, including 18 U.S.C. § 4202, the basic federal

parole law under which appellant claims eligibility. The

very first federal parole law, Public Law 269, 36 Stat.

819, effective June 25, 1910, provided:

That nothing herein contained shall be construed to

impair the power of the President of the United

States to grant a pardon or commutation in any

* See 41 Or. Att'y GEN. 251 (1955).

See S. Rep. No. 486, 81st Cong., Ist Sess. 30 (1949); H.R. Rep.

No. 491, sist Cong., Ist Sess. 33 (1949). ;

The “Historical and Revision Notes” to 18 U.S.C.A. § 3570

indicate that such language does not appear in the present

codification because it had been deleted as unnecessary

in view of the pardoning power of the President under

the Constitution. The Note further informs that the

pardoning power of the President is not subject to legis-

lative control.“

In Ex parte Wells, the Supreme Court upheld Presi-

dent Fillmore’s pardon of a convicted murderer with

the condition that he remain in prison for the term of his

natural life. The Court observed that historically a

pardon was frequently conditional, since the sovereign

could extend his mercy upon such terms as pleased him.

In Ex parte Grossman’ the Court suggested that even

a grave abuse of the Presidential pardoning power would

be properly remedied by impeachment, rather than by a

strained construction of that power. Again in 1927 the

Court had occasion to review a pardon commuting a

death sentence to life imprisonment, expressly holding

that such commutation was a proper exercise of the

President’s power, life imprisonment being a sentence

less than death. Cleariy, the President's grant of clem-

ency is not a matter for judicial review and must be

free from judicial control. Bishop v. United States, 96

U.S. App. D.C. 117, 223 F.2d 582 (1955), rev'd on

other grounds, 350 U.S. 961 (1956); Yelvington v. Presi-

dential Pardon and Parole Attorneys, 94 U.S. App. D.C.

2, 211 F.2d 642 (1954); Bozel v. United States, 139 F.2d

153 (6th Cir. 1943), cert. denied, 321 U.S. 800 (1944).

In light of the foregoing principles and of appellant’s

considerable burden under United States v. Allen, supra

“See Ex parte Garland, 71 U.S. 333, 380 (1866), where the

Court said that It his power of the President is not subject to

legislative control. Congress can neither limit the effect of his

pardon, nor exclude from its exercise any class of offenders. The

benign prerogative of mercy reposed in him cannot be fettered by

any legislative restrictions.”

59 U.S. 307 (1855).

267 U.S. 37, 121 (1925).

" Biddle v. Perovich, 274 U.S. 480 (1927).

note 1, appellees respectfully submit that appellant has

failed to afford this Court adequate predicate for sum-

mary reversal.

CONCLUSION

WHEREFORE, appellees respectfully request this Court

to grant summary affirmance of the judgment of the

District Court.

/s/ Harold H. Titus, Jr.

HAROLD H. Titus, JR.

United States Attorney

/s/ John A. Terry

JOHN A. TERRY

Assistant United States Attorney

s/ Michael A. Katz

MICHAEL A. KATZ

Assistant United States Attorney

s, James F. MeMullin

JAurs F. MCMULLIN

Assistant United States Attorney

Certificate of Service omitted in printing.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

SEPTEMBER TERM, 1971

Civil Action 779-71

No. 71-1994

[Filed Feb. 1, 1972. Nathan J. Paulson, Clerk]

MAURICE SCHICK, APPELLANT

GEORGE J. REED, Chairman of U. S. Board of Parole, et al.

Before: Robinson and MacKinnon, Circuit Judges

ORDER 0

On consideration of appellant's motion for summary

reversal, of appellee's motion for summary affirmance,

and it appearing to the Court that the Distriet Court had

jurisdiction to consider an action for declaratory judg-

ment against the Board of Parole, it is

ORDERED by the Court that the order of the District

Court appealed from herein be, and is hereby, summarily

reversed and this case is remanded to the District Court

with directions that the action be reinstated.

Per Curiam

See Young v. Director, U. S. Bureaus of Prisons, et al., 367 F.2d

— 1 Cir., 1966); Hurley v. Reed, 288 F.2d 844 (D.C. Cir.,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No, 779-71

MAURICE SCHICK, PLAINTIFF

—vs—

GEORGE J. REED, et al., DEFENDANTS

Filed Mar. 29, 1972. James F. Davey, Clerk]

ORDER

This cause having come before the Court on remand

on defendants’ motion for summary judgment, and on

plaintiff's cross-motion for summary judgment, and, upon

consideration of the complaint, the said motions, and of

the memoranda and exhibits filed herein, and of argu-

ments of counsel held in open Court, and it appearing

to the Court that the conditional commutation of plain-

tiff's sentence was the result of the exercise by the

President of his powers under Article II of the Con-

stitution to grant reprieves and pardons for offenses

against the United States, and of his authority as Com-

mander in Chief of the Armed Forces and under the

provisions of the Uniform Code of Military Justice; and

that there exists herein no genuine issue as to any ma-

terial fact, and defendants are entitled to judgment as

a matter of law, it is by the Court this 29th day of

March, 1972

ORDERED that defendants’ motion for summary judg-

ment be, and the same hereby is, granted; and it is

further

ORDERED that plaintiff's motion for summary judgment

be, and the same hereby is, denied; and it is further

ORDERED that the complaint be, and th

is, dismissed. N . „

s/ George L. Hart, Jr.

Georce L. Hart, JR.

United States District Judge

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

No. 72-1508

MAURICE SCHICK, APPELLANT

GEORGE J. REED, Chairman of the United States

Board of Parole, ET AL.

Argued June 18, 1973

Decided July 23, 1973

Rehearing denied Oct. 1, 1973

Caryl S. Cole, Washington, D. C., with whom Robert

N. Sayler, Washington, D. C., was on the brief, for

appellant.

James W. Diehm, Asst. U. S. Atty., with whom Harold

H. Titus, Jr., U. S. Atty., John A. Terry, and Michael

A. Katz, Asst. U. S. Attys., were on the brief, for ap-

pellees.

Before WILBUR K. MILLER, Senior Circuit Judge,

and WRIGHT and ROBB, Circuit Judges.

ROBB, Circuit Judge:

In 1954 the appellant Schick, a master sergeant in the

United States Army, was convicted by a court-martial

of the premeditated murder of an 8-year old girl, in vio-

lation of Article 118 of the Uniform Code of Military

Justice. 10 U.S.C. 8918 (1970).' The court-iartial sen-

' Article 118 (now, 10 U.S.C. § 918) reads:

Any person subject to this code who, without justification or

excuse, unlawfully kills a human being, when he—

(1) has a premeditated design to kill;

* * *

shall suffer death or imprisonment for life as a court-martial

may direct. May 5, 1950, ch. 169 § 1 (Art. 118), 64 Stat. 140.

tenced Schick to death. In 1960 President Eisenhower

commuted the sentence to a dishonorable discharge and

imprisonment for life upon the express condition that

Schick should “never have any rights, privileges, claims,

or benefits arising under the parole and suspension or

remission of sentence laws of the United States and the

regulations promulgated thereunder governing Federal

prisoners confined in any civilian or military penal in-

stitution (18 USC § 4201 et seg., 10 U.S.C. 3662 et seq.,

sie] 10 USC 871, 874), or any acts amendatory or sup-

plementary thereof.” Schick was thereafter committed

to the custody of the Attorney General and is now con-

fined in the United States Penitentiary at Lewisburg,

Pennsylvania. The United States Board of Parole has

declined to consider him for parole although in the ab-

sence of the condition attached to the President’s com-

mutation he would be eligible for such consideration.

See 18 U.S.C. § 4202; 10 U.S.C. § 858 (1970).

Schick filed this action in the District Court, seeking

a declaration of his eligibility for consideration for parole

pursuant to 18 U.S.C. § 4202, and an order directing the

members of the Board promptly to consider him for

parole. The District Court granted the defendant’s mo-

tion for summary judgment upon the ground “that the

conditional commutation of plaintiff's sentence was the

result of the exercise by the President of his powers

under Article II of the Constitution to grant reprieves

and pardons for offenses against the United States, and

of his authority as Commander in Chief of the Armed

Forces and under the provisions of the Uniform Code

of Military Justice”. Schick appeals. We affirm.

In commuting Schick’s sentence the President exercised

the authority conferred upon him by Article II. section

2, clause 1 of the Constitution, providing that the Presi-

dent “shall have Power to grant Reprieves and Pardons

for Offenses against the United States, except in Cases

of Impeachment.” That power includes the authority to

commute a sentence of death to imprisonment for life.

Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed.

1161 (1927). Moreover, it is settled that a pardon or a

commutation of a sentence may be granted on condition.

Ex parte Grossman, 267 U.S. 87, 120, 45 S.Ct. 332, 69

LEA. 527 (1925); Semmes v. United States, 91 U.S. 21,

27, 28 L.Ed. 193 (1875); United States v. Klein, 13

Wall. (80 U.S.) 128, 142, 20 L.Ed. 519 (1871); Ex

parte Wells, 18 How. (59 U.S.) 307, 15 L.Ed. 421

(1855); Stroud v. Johnston, 139 F.2d 171, 172 (9th Cir.

1943), cert. denied, 321 U.S. 796, 64 S.Ct. 846, 88 L.Ed.

1085 (1944). The appellant contends, nevertheless, that

the condition imposed in thie case is illegal and invalid,

since it contravenes the statute providing that a prisoner

shall be eligible for parole after serving fifteen years of

a life sentence. 18 U.S.C, § 4202 (1970).

The courts have stated many times that Congress can-

not control or regulate the action of the President in

granting pardons or commutations. See Ex parte Gross-

man, supra; The Laura, 114 U.S. 411, 5 S.Ct. 881, 29

L.Ed. 147 (1885); Ex parte Garland, 4 Wall. (71 U.S.)

333, 380, 18 L.Ed. 366 (1866); Yelvington v. Presiden-

tial Pardon & Parole Attorneys, 94 U.S.App.D.C. 2, 4,

211 F.2d 642, 644 (1954); Thompson v. Duehay, 217 F.

484, 487 (D.C.W.D.Wash.1914), aff’d, 223 F. 305 (9th

Cir. 1915). Had Congress attempted to fetter the Presi-

dential power by the parole statute a constitutional ques-

tion might be presented. We think it clear however that

Congress had no intention of interfering with the Presi-

dent’s authority, and has not done so. This appears from

the history of the parole statute itself, noted by the At-

torney General in his opinion, Pardoning Power of the

President, 41 Op. Att’y Gen. 251, 255 (1955). The At-

torney General said:

As enacted in 1910, section 10 [of the parole stat-

ute] provided that nothing in the act “shall be con-

strued to impair the power of the President of the

United States to grant a pardon or commutation in

any case.” 36 Stat. 821, 18 U.S.C. (1946 ed.) 723.

This provision does not appear in the 1948 revision

of title 18 of the U.S.Code, and the Reviser’s Note

to section 3570 of that title, dealing with Presiden-

tial remission of a sentence, states that the word

“pardon” was omitted “as unnecessary in view of

the pardoning power of the President under Const.

Art. 2, § 2, el. I. This power of the President is not

subject to legislative control.’ Ex parte Garland,

1866, 4 Wall. 380.” [18 L.Ed. 366]

Turning to the Uniform Code of Military Justice, Art.

71(a), 10 U.S.C. § 871(a), in force at the time of Schick’s

sentence, we find this provision:

No court-martial sentence extending to death or in-

volving a general or flag officer shall be executed

until approved by the President. He shall approve

the sentence or such part, amount, or commuted

form of the sentence as he sees fit, and may suspend

the execution of the sentence or any part of the sen-

tence, as approved by him, except a death sentence.

(Emphasis added). 64 Stat. 131.

The Uniform Code of Military Justice further provided,

Art. 76, (now 10 U.S.C. § 876):

The appellate review of records of trial provided by

this code, the proceedings, findings, and sentences

of courts-martial as approved, reviewed, or affirmed

as required by this code .. shall be final and con-

clusive, and orders publishing the proceedings of

courts-martial and all action taken pursuant to such

proceedings shall be binding upon all departments,

courts, agencies, and officers of the United States,

subject only to action upon a petition for a new trial

as provided in article 73 and to action by the Secre-

tary of a Department as provided in article 74, and

the authority of the President. (Emphasis added).

64 Stat. 132-333.

From the unambiguous language of these statutes it is

apparent that Congress intended to, and did, preserve

fully the commutation powers of the President by per-

mitting him to “approve * * * such * * * commuted

form of [a] sentence as he sees fit.” It is also apparent

that Congress intended that the action of the President,

in the exercise of those powers, should be final, conclu-

sive and binding upon all departments, courts, agencies

and officers of the United States. In short, the President’s

action in this case was not inconsistent with the wishes

of Congress as expressed in the parole statute.

Our conclusion on this branch of the case is in accord

with the opinion of the Attorney General expressed in

Pardoning Power of the President, supra, and with the

decisions of the Supreme Court of California in Green

v. Gordon, 39 Cal.2d 230, 246 P.2d 38, cert. denied, 344

U.S. 886, 73 S.Ct. 187, 97 L.Ed. 686 (1952); and Ex

parte Collie, 38 Cal.2d 396, 240 P.2d 275 (1952); cert.

denied, Collie v. Heinze, 345 U.S. 1000, 73 S.Ct. 1145,

97 L.Ed. 1406 (1953). A like result was reached by the

Circuit Court of Appeals for the Tenth Circuit in Hurt

v. Moseley, No. 71-1307, decided in an unreported opin-

ion September 13, 1971.

The appellant argues that confinement without the pos-

sibility of parole is cruel and unusual punishment. We

think there is nothing to this contention. “By common

understanding imprisonment for life is a less penalty

than death.” Biddle v. Perovich, 274 U.S. 480, 486, 47

S.Ct. 664, 665, 71 L.Ed. 1161 (1927), (Holmes, J.). In

light of the atrocious nature of Schick’s offense the com-

muted sentence is not out of proportion to his crime.

We note further that the federal narcotics statute which

precluded the possibility of parole in certain cases, 26

U.S.C. § 7237, was repeatedly upheld against attack on

Eighth Amendment grounds. See for example, United

States v. Williams, 143 U.S.App.D.C. 16, 442 F.2d 738

(1970); United States v. Lozaw, 427 F.2d 911 (2d Cir.

1970). This statute applied even in the cases of prisoners

sentenced to serve as much as forty years. We also re-

ject the contention that the commuted sentence denies

the appellant the equal protection of the laws. schick is

in no worse position than others of his class who were

convicted by a court-martial of premeditated murder

and sentenced to death during a period when the death

penalty was being enforced.

A contention not made in the appellant’s brief, but

advanced at oral argument, is based upon the decision

of the Supreme Court in Furman v. Georgia, 408 U.S.

238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The argu-

ment runs as follows: Furman v. Georgia means that

the provision for the death penalty in Article 118, UCMJ,

10 U.S.C. § 918 is invalid. Had this been the law at the

time Schick was sentenced, he could have been sentenced

only to imprisonment for life. 10 U.S.C. § 918. He then

would have been committed to a United States Dis-

ciplinary Barracks or to a Federal Penitentiary. 10

U.S.C. §§ 858, 3661. In either event he would now be

eligible to be considered for parole. 10 U.S.C. § 3663;

18 U.S.C. § 4202.

Had Schick been under a death sentence when Furman

v. Georgia was decided that ruling would have required

the excision of the constitutionally invalid sentence. Rob-

inson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29

(1973). The flaw in Schick’s argument is that when the

Furman case was decided he was not under a death

sentence, and there was therefore nothing to excise. In-

deed, as a matter of law, a final and effective sentence

of death was never imposd upon Schick. Unlike the

judgment and sentence of a court, the sentence im

by the court-martial was not effective until approved by

the President, whose action was by statute made a part

of the sentencing process. See Article 71(a) UCMJ, 10

U.S.C. §871(a). The President did not approve the

sentence,

Finally, we are mindful that a pardon or commutation

“is a part of the Constitutional scheme. When granted,

it is the determination of the ultimate authority that the

public welfare will be better served by inflicting less than

what the judgment fixed.” Biddle v. Perovich, 274 U.S.

480, 486, 47 S.Ct. 664, 665, 71 L.Ed. 1161 (1927). Such

an action of the President, explicitly authorized by the

Constitution and exercised in a lawful and proper man-

ner, may not be reviewed by a court, and is not to be

undone twelve years later upon the basis of ex post facto

hypothesis and rationalization. See Ex parte Grossman,

267 U.S. 87, 121-122, 45 S.Ct. 332, 69 L.Ed. 527 (1924).

The judgment of the District Court is affirmed.

J. SKELLY WRIGHT, Circuit Judge, dissenting:

The United States Board of Parole has refused to con-

sider appellant for parole because the commuted sentence

imposed by President Eisenhower includes a “no parole“

condition. The sole issue presented is whether this con-

dition is lawful. We are not asked to release appellant,

but simply to order the Board to consider his parole

application under the same standards as those governing

all other federal prisoners.

Appellant brought this action and the District Court

considered and decided the case prior to the Supreme

Court’s decision in Furman v. Georgia, 408 U.S. 238,

92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The case there-

fore proceeded under the assumption that the death penalty

initially imposed by the court-martial was valid. Although

the President has unquestioned power under the Con-

stitution to commute a death sentence, appellant argued

that he lacked power to impose a “no parole” condition.

As the majority opinion here indicates, the District Court,

with good reason, rejected this argument.

But the matter does not end there. While this case

was pending on appeal, the Supreme Court issued its

decision in Furman, holding that “the imposition and

carrying out of the death penalty” constitutes cruel and

unusual punishment in violation of the Eighth Amend-

ment. The Supreme Co rt, to paraphrase its own words,

“has not hesitated” to apply Furman retrospectively,

without regard to the criteria normally considered in

deciding whether to give retrospective effect to a new

constitutional rule. Robinson v. Neil, 409 U.S. 505, 508,

93 S.Ct. 876, 35 L.Ed.2d 29 (1973). See, e.g., Stewart

v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d

744 (1972); Marks v. Louisiana, 408 U.S. 933, 92 S.Ct.

2849, 33 L.Ed.2d 746 (1972). In my view, retrospective

application of Furman to appellant’s case requires us to

vacate the death sentence imposed by the court-martial

and substitute the only other sentence which lawfully

could have been imposed—life imprisonment with the

possibility of parole.

Although the Furman decision itself simply remanded

the death penalty cases for further proceedings without

spelling out the nature of those proceedings, all courts

considering the issue have recognized that retroactive

application of Furman to any given prisoner requires

that the death sentence be vacated and the judgment

modified to provide for the appropriate alternative punish-

ment specified by statute for the crime for which the

prisoner was sentenced to death. See Anderson v. State,

Fla., 267 So.2d 8, 9 (1972); In re Baker, Fla. 267

So.2d 331, 332 (1972); Huggins v. Commonwealth, 213

Va. 327, 191 S.E.2d 734 (1972); Sullivan v. State, 229

Ga. 731, 194 S.E.2d 410 (1972). See also People v.

Anderson, 6 Cal.3d 628, 657 n.45, 100 Cal.Rptr. 152,

171 n.45, 493 P.2d 880, 899-900 n.45 (1972). Where

there is but one statutory alternative—for example, life

imprisonment—that alternative must be imposed. See

People v. Anderson, supra. Where the alternative sen-

tence is discretionary—for example, rape statutes where

the alternative to the death sentence is imprisonment for

life or for any term of years within the discretion of

the court—the case must be remanded to the sentencing

court for resentencing. See Anderson v. State, supra, 267

So.2d at 10; Huggins v. Commonwealth, supra. Cf.

Sullivan v. State, supra. In other words, the court’s role

after Furman is to ensure that the prisoner be treated

as if the death sentence was not an available sentence

at the time of the original sentencing.'

Se also Sullivan v. State, 229 Ga. 731, ———, 194 S.E.2d 410,

412 (1972) (Jordan, J., concurring specially) : [The life sentence

now to be imposed * * * shall be subject to all laws and reg: lations

applicable to such sentence as if it had been rendered on the date

of the original sentence.” It has been assumed that prisoners whose

sentences were changed from death to life imprisonment pursuant

to Furman would become eligible for parole. Thus the legislature

of the State of Florida enacted special legislation after Furman

purporting to require substitution of a life sentence without parole

for those sentenced to death prior to Furman. See Anderson v.

State, Fla.. 267 So.2d 8, 9 (1972). As the Supreme Court of

Florida recognized, this statute raised constitutional

which the court avoided by resentencing prisoners to life im-

Application of this rule to appellant’s case is quite

simple. Article 118 of the Uniform Code of Military

Justice, 10 U.S.C. 8918 (1970), under which appellant

was convicted of premeditated murder, provides that one

so convicted “shall suffer death or imprisonment for life

as a court-martial may direct.” A sentence of death was

imposed by the court-martial, and its decision was affirmed

by both the Board of Review and the United States Court

of Military Appeals. Under Furman the death sentence

so imposed was unconstitutional and therefore null and

void. The only lawful alternative ac the time of the

original sentencing was a sentence of “imprisonment for

life.” That sentence must now be substituted for the

original death sentence, and appellant must be treated as

if he were sentenced to life imprisonment on the date of

his original sentence.

Pursuant to statute, all persons sentenced to imprison-

ment for life by a court-martial eventually become eligible

to be considered for parole, there being no statutory au-

thority for a life sentence without parole. If the prisoner

is confined in the United States Disciplinary Barracks,

his parole opportunities are governed by the parole au-

thority granted the Secretary of the Army, see 10 U.S.C.

$§ 952, 953 (1970), and the regulations promulgated pur-

suant thereto, and he becomes eligible to be considered for

parole after serving 10 years of his sentence. See Head-

quarters, Department of the Army, Army Regulation

190-26, ch. 1, 9 4-1(a)(2) (March 20, 1972). If the

prisoner is transferred to a federal penitentiary, his

parole opportunities are governed by the same statutes

and regulations as are applicable to all other federal

prisoners, see 10 U.S.C. § 858 (1970), and he becomes

eligible to be considered for parole after serving 15

years of his sentence. See 18 U.S.C. $$ 4202, 4203 (1970).

Since appellant has been imprisoned since 1954, he would

now be eligible to be considered for parole under either

the effective date of the new statute. See In re

2d 331, 334-335 (1972).

Applying Furman retroactively in this manner, the

commutation and condition imposed by President Eisen-

hower are a nullity, as they were based on an illegal

premise. When appellant was sentenced, the options avail-

able to the sentencing court were death or life imprison-

ment with the possibility of parole. Since Furman retro-

actively strikes the death option, the life option with

parole possibilities is retroactively imposed as of the date

of sentencing. Any subsequent imposition of a sentence

of life imprisonment without parole would, of course,

increase appellant’s sentence and thus would be beyond

the President’s constitutional authority to grant reprieves

and pardons. See Biddle v. Perovich, 274 U.S. 480, 486,

47 S.Ct. 664, 71 L.Ed. 1161 (1927); Ex parte Wells,

59 U.S. (18 How.) 307, 15 L.Ed. 421 (1855).

The majority seeks to avoid this logic by noting that

appellant was not under a death sentence at the time

Furman was decided. But this misconstrues both the

Furman decision itself and the doctrine of retroactivity.

Furman did more than stop executions, though of course

that was its most dramatic effect. Not only did the

Court say that the carrying out“ of the death penalty

is unconstitutional, but it also expressly held, in language

we must assume was carefully chosen, that “the im-

position * * * of the death penalty * * * constitutes

cruel and unusual punishment * * *.” 408 U.S. at 239-

240, 92 S.Ct. at 2727. (Emphasis added.) Because Fur-

man is totally retroactive, a death sentence imposed

before Furman is an illegal sentence. And those who

were sentenced to death prior to Furman not only can-

not have their sentences executed; they must be resen-

tenced with a lawful sentence.

Nor is it significant that appellant is not now subject

to a death sentence, since he is clearly suffering adverse

consequences from the prior imposition of an illegal

death sentence. Where a new constitutional rule is fully

retroactive, the courts must do more than amend the

direct consequences of prior violations of the rule. In

addition, they must root out as much as possible the

adverse, albeit indirect, legal consequences of such prior

violations.

A good example of this process may be seen in the

Supreme Court’s decisions concerning the right to counsel

in state felony trials. That right, recognized in Gideon

v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed. 2d

799 (1963), was held wholly retroactive in Pickelsimer

v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41

(1963) (direct appeal), and Kitchens v. Smith, 401 U.S.

847, 91 S.Ct. 1089, 28 L. Ed.2d 519 (1971) (habeas

corpus). These cases remedied the direct consequences

of prior violations of the right to counsel by overruling

felony convictions obtained without counsel. But the

retroactivity doctrine extended much further to embrace

indirect adverse consequences stemming from prior viola-

tions of the right to counsel. In Burgett v. Texas, 389

U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), for ex-

ample, the Court held that an uncounselled felony con-

viction obtained prior to Gideon could not be used to

“enhance punishment” for a subsequent offense through

operation of a recidivist statute. Under any other rule,

the Court noted, “the accused in effect suffers anew”

from the pre-Gideon deprivation of his right to counsel.

389 U.S. at 115, 88 S.Ct. 258. Similarly, only recently

the Court held in Loper v. Beto, 405 U.S. 473, 92 S.Ct.

1014, 31 L.Ed.2d 374 (1972), that an uncounselled con-

viction obtained prior to Gideon could not be used to

impeach a defendant's credibility, again noting that the

defendant had “suffered anew” from the pre-Gideon

violation, 405 U.S. at 484, 92 S.Ct. 1014.

The present case thus falls squarely within normal

concepts of retroactivity. Although appellant is not now

under a death sentence, he has suffered and continues to

suffer enhanced punishment—the loss of his statutory

right to be considered for parole—as a result of an

illegally imposed death sentence.

Further guidance may be found in Jones v. Cunning-

ham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963),

which held that a petitioner could maintain a habeas

corpus action challenging his conviction even though his

punishment had been alleviated by his being placed on

parole. The rationale of that decision was that the pe-

titioner still suffered certain restraints from the under-

lying conviction, albeit fewer restraints than incarcera-

tion. So here, appellant should be permitted to attack his

death sentence, even though it has been ameliorated by

presidential pardon, because he is still suffering restraints

from the underlying illegal sentence.

It is also important to note that appellant’s commuted

sentence shares many of the evils of the original death

sentence. Like the death sentence, imprisonment for life

without the possibility of parole is inconsistent with the

principle that the “rehabilitation of the convict [is] a

basic purpose of criminal justice.” Furman v. Georgia,

supra, 408 U.S. at 306, 92 S.Ct. at 2760 (Mr. Justice

Stewart, concurring). See also id. at 343, 92 S.Ct. 2726

‘Mr. Justice Marshall, concurring); Weems v. United

States, 217 U.S. 349, 381, 30 S.Ct. 544, 54 L.Ed. 793

(1910). While I agree that the non-rehabilitative nature

of life imprisonment without parole is not sufficient to

declare that penalty itself cruel and unusual, the re-

lationship it bears to the death penalty certainly has

significance for the retroactive application of Furman

to this case. For in delimiting its retroactive scope, one

must keep in mind the evil sought to be remedied by a

new constitutional rule. Compare Tehan v. Shott, 382

U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), with

Burgett v. Texas, supra.

As indicated earlier, there is no provision in federal

law—civilian or military—for a sentence of life imprison-

ment without parole. Neither a court-martial nor a judge

can impose such a sentence. Congress has ensured that

the primary focus of the federal penal system is rehabili-

tative, looking toward the day when the prisoner can re-

turn to society. The death penalty was a glaring ex-

Indeed. the principle of parole was recognized in the military

long before parole became available for civilian prisoners. The

Act of March 3, 1873, ch. 249, §6, 17 Stat. 583, a direct predeces-

sor of the current military parole statute, provided: [The com-

mandant of the military prison] shall take note and make record

of the good conduct of the convicts, and shall shorten the daily

ception, and it has now been held illegal. But the same

nonrehabilitative exception lives on in muted form in the

sentence appellant is now serving.

III

I confess a certain difficulty in comprehending the

majority’s argument that a sentence of death was never

really imposed on appellant because, under the governing

statute, the sentence could not be executed until approved

by the President. As the majority properly notes else-

where, the President’s power to grant commutations is a

constitutional, not a statutory, power. The President

can pardon any conviction for an offense against the

United States, whether or not authority to do so is

granted by statute. Article 7l(a), 10 U.S.C. § 871(a)

(1970), which provides that no sentence of death can

be executed before approved by the President, simply

changes the procedure whereby pardons are granted; it

does not affect the substance of the President’s pardoning

power. In a civilian death penalty case, the prisoner

bears the burden of bringing his case to the President's

attention for purposes of a commutation. In military

death penalty cases, however, the Government was as-

signed the burden of having a death penalty affirmatively

approved. The power of the President in both cases is

the same, the only difference being the allocation be-

tween the prisoner and the Government of the burden

of going forward to invoke that power. A sentence of

death by a court-martial is every bit as final and effec-

tive a sentence of death as one imposed by a civilian

court.

Rather than support the majority, Article 71(a) demon-

strates that the commuted sentence is integrally related

to the original death sentence imposed by the court-

time of hard labor for those who, by their obedience, honesty,

industry, or general good conduct, earn such favors; and the Sec-

retary of War is authorized and directed to remit, in part, the

sentences of such convic.s, and to give them an honorable restora-

tion to duty in case the same is merited * * *.” The first parole

statute for civilian prisoners was the Act of June 25, 1910, ch.

387, 36 Stat. 819.

martial. As the language of Article 71(a) suggests, the

sentence approved by the President is not a new sentence,

but is simply a “commuted form of the sentence” im-

posed by the court-martial. It has no basis in law except

as such, and is therefore no more lawful than the illegal

sentence itself.

It is argued that we should not apply Furman retro-

actively in the manner suggested because to do so amounts

to review by a court of the President’s exercise of his

constitutional power to grant pardons and reprieves. But

to apply Furman retroactively to appellant in no way

indicates any disapproval by this court of the manner in

which President Eisenhower exercised his powers of clem-

ency. It was concededly reasonable for both the court-

martial and the President not to have foreseen the Fur-

man decision. They quite properly assumed that the

death penalty was a lawful sentence. But as Mr. Justice

Stewart indicated in Loper v. Beto, supra, 405 U.S.

at 484, 92 S.Ct. at 1020:

“* * * Tt would surely be unreasonable * * * to

expect the judge at Loper’s trial to have anticipated

Gideon, just as it would have been unreasonable to

have expected the judge at Gideon’s trial to have

foreseen our later decision in that case. But a neces-

sary result of applying any decision retroactively

is to invalidate rulings made by trial judges that

were correct under the law prevailing at the time

the judges made them. * * *”

(Footnote omitted.) So here, our substitution of life

imprisonment with the possibiiity of parole for the death

sentence as commuted by the President does not disparage

in any way the President’s exercise of his pardoning

power. Rather it simply reflects the fact that a retroactive

change in the law has been made.

With all due respect, the majority’s refusal to follow

the Supreme Court's dictate and treat Furman as totally

retroactive seems to represent disagreement with the con-

cept of retroactivity itself. It is suggested that decisions

made on the basis of rules then assumed valid are “not

to be undone twelve years later upon the basis of ex

—— —— ee ee OEE Oe Le — Eee

———— — —y„—-b— ͤ —

post facto hypothesis and rationalization.“ But the pre-

cedents will not tolerate this disparaging view of retro-

active application of new constitutional rules. Was it “ex

post facto hypothesis and rationalization” when the Su-

preme Court ruled that the petitioner in Kitchens v.

Smith, supra, who had been convicted without counsel

some 19 years before Gideon v. Wainwright, was en-

titled to release as a result of that decision?

There are all too many for whom the Supreme Court’s

opinion in Furman came too late. For them what is done

is done. Even for appellant, retroactive application of

Furman cannot erase the mental anguish he no doubt

experienced during the six years he waited on death

row from the time he was initially sentenced to die to

the time of the President’s commutation. But I can see

no reason for not alleviating those effects of the illegal

death sentence imposed on appellant which can stili be

cured. The crime for which appellant was convicted was

atrocious, as the majority notes, though the strong evi-

dence of mental illness as a cause of the crime must

temper that observation.’ Under the law, however, even

»The facts of the case were that after a chance encounter and

a 10-minute conversation appellant simply grabbed his 8-year-old

victim and choked her. There was no evidence of a sexual assault.

In his confession to the authorities appellant stated he “just had

an uncontrollable urge to kill her” and had done so “just because

she was there.”

The sole defense raised at the court-martial related to the sanity

issue. Four Army psychiatrists who had examined appellant in

Japan found him legally responsible, but the two Japanese psychia-

trists who were appointed to examine him disagreed. On appeal

the Court of Military Appeals directed that appellant be transferred

to the Menninger Clinic for further examination. All the psychia-

trists who examined him there, including Dr. Menninger himself,

concluded that mental illness was a cause of the killing. Evidently

appellant had a lifelong history of mental illness manifested by

periodic episodes of uncontrolled violence and psychotic behavior,

and had been admitted for in-patient psychiatric hospitalization

on 13 occasions during World War II. Indeed, during a temporary

separation from the Army after 1946, he received disability bene-

fits based in part on his psychiatric difficulties.

Although the reviewing authorities persisted in their affirmance

of the court-martial’s finding of responsibility, the record clearly

shows that the strong evidence of mental illness played a crucial

role in obtaining a presidential commutation.

murderers sentenced to life imprisonment are eligible for

parole if they can satisfy the Board of Parole that “there

is a reasonable probability that such prisoner will Jive

and remain at liberty without violating the laws, and

* * * [that] such release is not incompatible with the

welfare of society.” 18 U.S.C. $4203 (1970). In my

judgment, Furman requires that appellant be given that

chance.

I respectfully dissent.

SUPREME COURT OF THE UNITED STATES

No. 73-5677

MAURICE SCHICK, PETITIONER

GEORGE J. REED, Chairman of the United States

Board of Parole, ET AL.

ON PETITION FOR WRIT OF CERTIORARI to the United

States Court of Appeals for the District of Columbia

Circuit.

ON CONSIDERATION of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted.

April 22, 1974

W ov. „ Covaanwant rewmrime orrice, 1974 548479 267

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