Petition for a Writ of Certiorari — Suttles v. Davis

OCT 28 1954

No. 2/2 MISS. HAROLD B. WILLEY, Cle

IN THE

SUPREME COURT OF THE UNITED STATES

1954 Term

Louis M. Sutties, Petirionsr,

vs.

CotoneL James W. Davis, ComMMANDANT

U. S. Discretanary Barracks,

Forr LzavenwortH, Kansas, ResponDENT.

CuastingE Bevery, PEeriTionEs,

vs.

CotoneL James W. Davis, ComMMANDANT

U. S. Discrptrnary Barracks,

Forr Leavenworth, Kansas, ResponDENt.

James L. Rigerns, PETITIONER,

vs.

Cotonet James W. Davis, ComMANDANT

U. S. Discretanary Barracks,

Fort LeavenwortH, Kansas, ResponDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT.

THOMAS HOMER DAVIS,

Manufacturers Bank Bldg.,

Leavenworth, Kansas;

ELISHA SCOTT,

410 Kansas Avenue,

Topeka, Kansas ;

Attorneys for Petitioners.

TABLE OF CONTENTS.

‘ Page

Opinions ........ ccc ececcccccscccsccessseseeeeens 2

De gin occkvcdctdaeensbens wane peceeanes 2

Summary of Matter Involved..........-.++++s+eee: 3

Questions Presented..........-.seeeeeteereeeeceees 3

Reasons for Granting Writ...........++-eeeeeeeees 7

Brief and Argument.............seeeeeeeeeseeeees 5

Comelusion ......ccccccevccccccscvcccccscsscccerces 7

Cases and Statutes:

Section 237 (B).....cc.-cceccccccecscccccccccces 2

Section 240 (A).......csecccceccecces sss eeceeens 2

a | rn reer ri 2

, me 3) | eee rr rere vhueass 2

OB TIGA SIGE... ccc cesses cc cccceeece sr esecess 2

QB USCA B10. .......-ccccccecer er ececcccececes

were rere ee ae Ce CORY ON 2 Be Ae ed

Rule 38 of the Supreme Court.......-----+++eeeee:

Burns vs. Wilson, 346 U. S. 187.........-+0+eee:: 4, 5,6

Chambers vs. Florida, 309 U. S. 227........----++: 4,6

Easley vs. Huxter, 10 Cir., 209 F. (2d) 483......... 4

Holey vs. Ohio, 3832 U. S. 596......--.+eeees seers 4

Johnson vs. Zerbst, 304 U. S. 458.......--e eee eens 6

Lisenba vs. California, 314 U. 8S. 219..........-+-++- 4

Stein vs. New York, 21 U. S. L. Week, 4467, 4477.... 6

Ward vs. Texas, 316 U. S. 547......--- eee e ee eeeee 4

White vs. Texas, 310 U. S. 570.......-- eee eeeeeeees 4

SUPREME COURT OF THE UNITED STATES

1954 Tuna

Oeics bese

Louis M. Sutties, Peririonsr,

v8,

CoLoneL JaMEs W. Davis, COMMANDANT

U. S. Discorptanary Barracks,

Forr LeavenwortH, Kansas, ResponDENT,

CuastTine Bevesty, Peririones,

vs.

Cotone, James W. Davis, ComMMaNnDANT

U. S. Drscretinany Barracks,

Forr LeavenwortH, Kansas, Responpent.

James L. Rigarns, Petrrioner,

‘ v8.

CotoneL. James W. Davis, CoMMANDANT

U. S. Discretanary Barracks,

Fort LeavenwortH, Kansas, ResponpDEenNt.

eee

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT. |

Petitioners Louis M, Suttles, Chastine Beverly and

James L. Riggins, respectfully pray for a Writ of Cer-

tiorari and review: of the judgment of the Court of Ap-

peals, Tenth Circuit, affirming the judgment of the United

States District Court for the District of Kansas, denying

petitioners’ Writs of Habeas Corpus. Said cases being

consolidated and numbered in the Circuit Court of Ap-

2

peals Numbers 4908, 4909 and 4910,: decided September

10th, 1954, in said Circuit Court of Appeals.

OPINIONS.

The District Court consolidated the cases of the three

petitioners and heard their Petitions as a consolidated

case. The Circuit Court of Appeals handled and treated

the cases on the same basis. The judgment of the Dis-

trict Court denying the Petitions for Habeas Corpus was

not reported. The judgment of the Court of Appeals

affirming the judgment of the District Court was handed

down September 10, 1954, and is not yet reported in

the reporter system. A certified type transcript of the

record on file in said appeal cases 4908, 4909 and 4910,

together with typewritten copy of petitioners Brief on

Appeal and respondent’s printed Brief on Appeal, are

before this court.

JURISDICTION.

Judgment of the Court of Appeals affirming the Judg-

ment of the District Court was entered September 10,

1954. Jurisdiction of the Supreme Court is invoked

under Sections 237 (b) and 240 (a) of the Judicial Code

as amended by the Act of February 13, 1925, (28 USCA

1257, 2103, 2106 and 1254). Rule 38 of the Supreme

Court.

SUMMARY OF MATTER INVOLVED.

All three petitioners were privates serving in the

United States Army at Fort Leonard Wood, Missouri.

They were found guilty after a joint trial by General

Court Martial of Premeditated Murder and two Rob-

beries and each was given a death sentence. They have

been confined at the United States Disciplinary Barracks

at Fort Leavenworth, Kansas, pending execution of the

sentences.

These sentences were upheld by Army reviewing au-

thorities, affirmed by the United States Court of Military

Appeals and confirmed by the President. They filed

Petitions for Writs of Habeas Corpus in the District

Court of the United States for the District of Kansas.

After full hearing, Petitions were dismissed and appeal

taken to the United States Cireuit Court of Appeals for

the Tenth Cirenit which affirmed the judgment of the

District Court. The petitioners are colored. The Peti-

tion for Rehearing was denied by the Cireuit Court of

Appeals on the .... day of ......--+-. , 1954.

QUESTIONS PRESENTED.

1. That petitioners were denied effective assistance

of counsel.

2. Petitioners were not advised of their rights to

file a Motion for a New Trial and therefore, did

not receive fair consideration by the military

courts.

3. Petitioners’ confessions were obtained by coersion

and were therefore inadmissable in evidence.

(a)

4

REASONS FOR GRANTING WRIT.

Petitioners were not advised of their rights to

file Motion for New Trial, 50 USCA (660) by

anyone and consequently their claims were not

' given fair consideration, in accordance with the

(b)

(c)

decision of this court in Burns vs. Wilson, 346

U. 8. 137.

The Court of Appeals placed too narrow an

interpretation .on the decision of this court

(Burns vs. Wilson, 346 U. S. 137) as applied

to the facts of this case. See Easley vs. Hunter,

10 C. I. R. 209 F. 2nd 483.

Full consideration as to the age of the three

accused, intelligence and education and also other

factors which threw a light on the question

whether the confessions were likely the result

of psychological coercion which overpower their

mental resistence, was not had in these cases.

Holey vs. Ohio, 332 U. S. 596; Ward vs. Texas,

316 U. S. 547; Lisenba vs. California, 314 U. S.

219; White vs. Texas, 310 U. S. 570; Chambers

vs. Florida, 309 U. S. 227.

BRIEF AND ARGUMENT.

It is admitted throughout proceedings that immediately

upon the conviction of the petitioners by the Court Mar-

tial, they were transported the following day to the

United States Disciplinary Barracks, Fort Leavenworth,

Kansas, placed in solitary confinement under death watch,

where they have since been and still are. That no

defense counsel appointed by the Army to represent

petitioners at the Court Martial Trial ever again inter-

viewed them or saw them after petitioners reached the

Disciplinary Barracks at Fort Leavenworth, Kansas; the

District Court on Habeas Corpus found that the peti-

tioners were not advised cf their rights to file a Motion

for a New Trial. (Article 73 of the Uniform Code of

Military Justice 50 USC 660.) Petitioners in their

Writ of Habeas Corpus and in their argument on appeal

contended that Article 73 supra was unconstitutional in

that it limited the time for filing such a Motion for a

New Trial to a period of one year. In this connection

the record shows that petitioner Riggins through counsel,

filed a Motion for a New Trial. The same was filed

more than a year after the Court Martial trial and was

not acted upon officially by the Army officials. That

neither petitioner Suttles or Beverly filed a Motion for

a New Trial at all. It is the contention of the petition-

ers that petitioners not being advised of their rights

to file a Motion for a New Trial can claim they did not

receive fair consideration by the military authorities

in light of the decision of Burns vs. Wilson, 346 U.S, 187.

6

That the standards of this court as to admissibility

of confessions where allegations are made that such con-

fessions were obtained by holding the prisoner incom-

municado while he is subjected to questioning by officials;

while he is deprived of services of counsel and in this

case, where he is a colored person and where mob vio-

lence or mob hysteria is present, were not applied but

were in effect disregarded. Chambers vs. Florida, 309

U. 8S. 227; Stein vs. New York, .. U. S. .., 21 USL

Week 4467, 4477 (June 15, 1953).

The combined facts that these petitioners were not

advised by Army counsel appointed to defend them in

the Court Martial trials of their rights to file a Motion

for a New Trial; the additional facts that the Army

counse] appointed to represent petitioners on their ap-

peals to military channels did not personally contact

petitioners, coupled with the fact that petitioners were

colored, of limited intelligence, without funds, and being

held in solitary confinement under death watch, all

taken together amount to a denial of assistance to coun-

sel. Johnson vs. Zerbst, 304 U. S. 458.

This instant case is on all fours with the Burns vs.

Wilson case, supra; however, in the opinion of Mr. Jus-

tice Frankfurter on rehearing clearly distinguishes this

ease from the Wilson ease in one particular. In the

Wilson case it was assumed throughout that fair con-

sideration had been given the petitioners’ claims by the

Military authorities, including petitioners’ right to file

a Motion for a New Trial. In this case it is petitioners’

contenton that since they were not advised of their

right to file a Motion for a New Trial, they were in effect

7

denied ‘‘fair consideration’’ of their claims under the

Wilson case.

CONCLUSION.

Petitioners respectfully pray the Honorable Court to

cause the Writ to issue herein.

Respectfully submitted,

THOMAS HOMER DAVIS,

Manufacturers Bank Building,

Leavenworth, Kansas;

ELISHA SCOTT,

410 Kansas Avenue,

Topeka, Kansas;

Attorneys for Petitioners.

INDEX

Page

Opinion below ......cccccccsccccccccccncvcsesscons 1

OD: csr dk ccuwieuséstensas el ieeerreeneeene 2

Questions presented ...........cccccccccccccccccees 2

DN OEE og ec ccccesicccsevanseeeeeabenne 2

Dc ciocccban oe bewsenadvosiedeeananee reas 4

PUP CIPIE TTT te 5

SEL co nnccscncs>vencweabseee ct areneannenel 16

CITATIONS

Cases:

Burns v. Wilson, 346 U.S. 187.......... ee eeee 6,10, 15

Collins v. McDonald, 258 U.S. 416.............. 15

Hiatt v. Brown, 339 US. 108............ccccces 6

Whelchel v. McDonald, 340 U.S. 122............ 6

Statutes and rule involved:

A. W. 53, 10 U.S.C. 1525, 1950 Supp. III.......... 10

malty GE, 7. Te. CO. Biv cvccccsccinectaveuees 10

Uniform Code of Military Justice:

Article 31 (50 U.S.C. 602, 64 Stat. 118)...... 3,11

Articles 60-67 (50 U.S.C. 647-654).......... 7

Article 67(b)(1) (50 U.S.C. 654)............ 4

Article 71(a) (50 U.S.C. 658).............. 5

Article 73 (50 U.S.C. 660, 64 Stat. 132)....... 2,6,8

Article 118 (50 U.S.C. 712)................. 4

Article 122 (50 US.C. 716)............ce00. 4

(1)

——

Guthe Supreme Court of the United States

OcToBER TERM, 1954

No. 273 Mise.

Louis M. SurtLes, CHASTINE BEVERLY AND JAMES

L. RiIGGINs, PETITIONERS

Vs

CoLONEL JAMES W. Davis, COMMANDANT, UNITED

States DiscrpLinarRy Barracks, Fort LEAVEN-

WORTH, KANSAS

| ON MOTION FOR LEAVE TO PROCEED IN FORMA PAU-

PERIS AND ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION TO

THE GRANTING OF THE PETITION FOR A WRIT OF

CERTIORARI

OPINION BELOW

The opinion of the Court of Appeals (R. 95-

101)' is not yet reported.

1“R ” refers to the transcript of the record in the Court of

Appeals. It is in two volumes containing 106 pages. “H.C.”

refers to the transcript of the habeas corpus hearing containing

383 pink pages. “C.R.” refers to the 707 page transcript of

the court-martial record, which was Respondent’s Exhibit D

at the habeas corpus hearing.

(1)

2

JURISDICTION

The judgment of the Court of Appeals was en-

tered on September 10, 1954 (R. 102) and a peti-

tion for rehearing was denied on September 29,

1954 (R. 103-105). The petition for a writ of cer-

tiorari was filed on October 25, 1954. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether petitioners, upon whom death sen-

tences for murder were imposed by army court-

martial, were denied effective assistance of coun-

sel by reason of the alleged absence of personal

contact with appellate counsel and counsel’s fail-

ure to advise them of their right to petition for a

new trial within one year under Article 73 of the

Uniform Code of Military Justice.

2. Whether petitioners were denied due process

by the admission of their written confessions as

voluntary.

STATUTES INVOLVED

Article 73 of the Uniform Code of Military Jus-

tice, 50 U.S.C. (1952 ed.) 660, 64 Stat. 132, pro-

vides :

At any time within one year after approval

by the convening authority of a court-martial

sentence which extends to death, dismissal,

dishonorable or bad-conduct discharge, or con-

finement for one year or more, the accused

may petition The Judge Advocate General for

a new trial on grounds of newly discovered

3

evidence or fraud on the court. If the ac-

cused’s case is pending before the board of

review or before the Court of Military Ap-

peals, The Judge Advocate General shall refer

the petition to the board or court, respectively,

for action. Otherwise The Judge Advocate

General shall act upon the petition.

Article 31 of the Uniform Code of Military Jus-

tice, 50 U.S.C. (1952 ed.) 602, 64 Stat. 118, pro-

vides:

(a) No person subject to this chapter shall

compel any person to incriminate himself or

to answer any question the answer to which

may tend to incriminate him.

(b) No person subject to this chapter shall

interrogate, or request any statement from, an

accused or a person suspected of an offense

without first informing him of the nature of

the accusation and advising him that he does

not have to make any statement regarding the

offense of which he is accused or suspected and

that any statement made by him may be used

as evidence against him in a trial by court-

martial.

(c) No person subject to this chapter shall

compel any. person to make a statement or

produce evidence before any military tribunal

if the statement or evidence is not material to

the issue and may tend to degrade him.

(d) No statement obtained from any person

in violation of this section, or through the use

4

of coercion, unlawful influence, or unlawful

inducement shall be received in evidence

against him in a trial by court-martial.

STATEMENT

After a joint trial by a general court-martial,

the petitioners were found guilty of premeditated

murder in violation of Article 118, Uniform Code

of Military Justice, 50 U.S.C. 712, and two rob-

beries in violation of Article 122 of the Code, 50

U.S.C. 716. The evidence, succinctly summarized

in the opinion of the United States Court of Mili-

tary Appeals, showed the murder on September 20,

1951, of a taxicab driver whose cab was stolen by

petitioners, who then robbed him, beat him, and

threw large rocks at his head, causing multiple

skull fractures and his death at a hospital the next

day (Ex. B-5, pp. 3-5).” All three petitioners

were sentenced to death (Ex. C-1, C-2, C-3). On

appeal to the Board of Review in the office of the

Judge Advocate General, the convictions were af-

firmed (Ex. B-4). Pursuant to Article 67(b) (1),

Uniform Code of Military Justice, 50 U.S.C. 654,

requiring review by the United States Court of

Military Appeals of all cases in which the sentence,

as affirmed by a Board of Review, extends to death,

the case was appealed to that Court, which unani-

mously affirmed the decision of the Board of Re-

view (Ex. B-5, No. 1641, 2 U.S.C.M.A. 451, 9

C.M.R. 81). Pursuant to Article 71(a) of the Uni-

2 “Rx.” refers to respondent’s exhibits at the habeas corpus

hearing.

4)

form Code of Military Justice (50 U.S.C. 658),

the President, with respect to each of the peti-

tioners, personally took action approving the death

sentences (Ex. B-6, B-7, B-10).

Thereafter, petitioners filed petitions for writs

of habeas corpus in the United States District

Court for the District of Kansas (R. 1-8, 33-35,

01-53). They alleged that their detention was un-

lawful since (1) they had been denied effective

assistance of counsel; (2) they had not received

fair consideration by the military courts because

they were not advised of their rights to file a mo-

tion for a new trial; and (3) .their confessions had

been obtained by coercion, making them inadmis-

sible. The respondent filed answers to the peti-

tions (R. 10-16, 43-50), the petitions were ordered

consolidated (R. 9), and a full hearing was held

at which all three petitioners and witnesses for pe-

titioners and the respondent testified (H.C. 1-382).

The entire court-martial record was introduced in

evidence as Exhibit D (H.C. 59, 61). Subsequent

to this hearing the District Court entered findings

of fact and conclusions of law adverse to the three

petitioners and dismissed the habeas corpus peti-

tions (R. 71-80).

On appeals by all three petitioners (R. 80-81),

the judgment was unanimously affirmed by the

Court of Appeals (R. 102).

ARGUMENT

Petitioners do not challenge the jurisdiction of

the court-martial over their persons, or of the of-

6

fenses charged, or as to the sentences imposed,

these being the traditional reasons for granting

habeas corpus in court-martial cases. As to the

confessions, they seek a redetermination of mat-

ters which were presented to and considered by

the court-martial and the military reviewing au-

thorities. The alleged denial of the right to coun-

sel is controverted by the record and the testi-

mony at the habeas corpus hearing. Hence, the

district court properly dismissed the petitions for

habeas corpus. Cf. Burns v. Wilson, 346 U.S. 137;

Whelchel v. McDonald, 340 U.S. 122; Hiatt v.

Brown, 339 U.S. 103.

1. Petitioners assert that they were denied effec-

tive assistance of counsel in that (a) after their

court-martial convictions, army counsel appointed

to represent them on their appeals through mili-

tary channels did not personally contact them ; and

(b) they were not advised of their right to file a

motion for a new trial within the one-year period

fixed by Article 73 of the Uniform Code of Mili-

tary Justice, 50 U.S.C. 660 (supra, pp. 2-3). (Pet.

3, 5, 6.) As the opinion below makes clear, these

contentions are without merit.

a. At the habeas corpus hearing, it was shown

that after the court-martial trial was concluded,

the chief defense counsel, Captain Loyd, advised

petitioner Suttles of his appellate rights. The

other two petitioners were so advised by Lieuten-

ant Casey and Lieutenant Cracraft, the counsel

Riggins had requested. (H. C. 343-344.) Captain

7

Snyder, the Legal Officer at the United States Dis-

ciplinary Barracks at Fort Leavenworth, Kansas,

testified that he advised the three petitioners of

their right to mandatory appeal in their death

cases from the ruling of the Board of Review to

the United States Court of Military Appeals (H.

C. 252-253). In their own testimony, they ac-

knowledged that they had received this informa-

tion (H.C. 82, 115, 188).

It is true that there was no showing that mili-

tary defense or appellate counsel (with the ex-

ception of civilian attorney Adams who spoke to

his client, Riggins, upon entry into the case after

the decision by the Board of Review (H.C, 210-

211) ) visited petitioners to consult with them after

their transfer to the Disciplinary Barracks (H.C.

81, 115-116). On appeal before the Board of Re-

view, however, petitioners were represented by

qualified military counsel who presented a brief and

argument in their behalf (Ex. B-4, pp. 11, 16, 17,

18; Ex. E-1); and the same military counsel and

attorney Adams represented petitioners before the

United States Court of Military Appeals (Ex.

B-5; H.C. 42). No attack appears against the

competency of these counsel. Since a court-mar-

tial appeal is based entirely upon the verbatim

record of the trial and the allied papers accom-

panying it, there was no requirement that counsel

consult personally with petitioners at the Disci-

plinary Barracks regarding their appeals. See

Articles 60-67, Uniform Code of Military Justice,

8

50 U.S.C. 647-654. Petitioners, moreover, make

no showing that if there had been personal con-

sultations they would have been able to give any

information to their counsel which would have

caused a different result in the ruling on their

appeals.

The army authorities cooperated fully with peti-

tioners in the presentation of their appeals. Com-

petent legal officers were available at the Disci-

plinary Barracks to advise inmates on legal prob-

lems and to transmit to them correspondence re-

ceived from their appellate defense counsel; and

inmates had the opportunity for private interviews

with counsel (H.C. 252, 271, 297-299). At the re-

quest of the three petitioners, the adjutant of the

Disciplinary Barracks wrote a letter to attorney

Shenker in St. Louis, Missouri, asking that he

represent them in their military appeals, but

Shenker replied that his docket was too crowded

to permit him to represent petitioners (H.C. 303-

305; Ex. L, M).

b. The evidence was undisputed that petitioners

were not advised by their defense or appellate

counsel of their right to file a petition for a new

trial within the one-year period prescribed by Ar-

ticle 73, and the lower court so found (H.C. 81,

115, 187, 208-209, 296, 299, 367-368; R. 76). Peti-

tioners Suttles and Beverly never did file petitions

for a new trial. Attorney Adams, counsel for Rig-

gins, filed such a petition on the ground of newly

discovered evidence on June 6, 1953, which was

beyond the statutory one-year period after the con-

9

vening authority had approved the sentences, so

that the Judge Advocate General was without legal

authority to act on the petition. The alleged newly

discovered evidence consisted principally of a

statement by Suttles that he had not told the truth

when the cases were tried, that Beverly had beaten

the deceased, and that Riggins had had nothing to

do with the beating. (H.C. 211-212, 219; Plain-

tiff’s Ex. 1; Respondent’s Ex. B-9.) Although the

motion was not timely under Article 73, an officer

of the Judge Advocate General’s Corps conducted

a thorough examination and found the allegations

in the petition for a new trial to be without merit

(Ex. G).

Petitioners Suttles and Beverly have never

shown, and do not now show, any ‘‘newly disecov-

ered evidence or fraud on the court’’ within the

purview of Article 73. As to petitioner Riggins,

even if his petition had been timely filed, it would

have been unavailing. Riggins was convicted upon

the circumstantial evidence of his guilt and upon

his own pre-trial statement. If the statements of

Suttles and Beverly implicating Riggins were

false, they could have had no bearing upon Rig-

gins’ guilt or innocence, since the court-martial

had been properly instructed to consider the state-

ment of each accused only as evidence against the

accused who made it (C. R. 332, 482, 493, 547, 641).

Accordingly, it cannot be said (see Pet. 5) that the

absence of advice to petitioners as to the possibility

of filing a petition for a new trial deprived them of

a right or established that they had not received

10

fair consideration by the military authorities. Cf.

Burns v. Wilson, supra.’

2. Petitioners contend that their confessions

were inadmissible in the court-martial trial be-

cause they were obtained as a result of coercion and

mob hysteria against them as colored people (Pet.

3,6). The record shows, however, that this claim

was properly considered and rejected in the court-

martial proceedings.

a. Petitioner Suttles—This petitioner made

three written statements, the first and second on

September 21, 1951, at the sheriff’s office at

Waynesville, Missouri (Prosecution Ex. 39, 42)

and the third on September 28, 1951 before C.1.D.

agents (Prosecution Ex. 37). On the earlier date,

Suttles stated that he ‘“‘picked up two (2) rocks

about the size of a baseball and threw at the cab

driver [victim of the murder], both of them hit-

* There is no substance in the suggestion (which was made

below and is mentioned by petitioners here, Pet. 5, but does

not appear to be presented for review) that Article 73 is un-

constitutional by reason of the one-year limitation for filing

a petition for a new trial. The new-trial provision for court-

martial proceedings was first enacted in the 1948 amendments

(A. W. 53, 10 U.S.C. 1525, 1950 Supp. III). The period is

shorter than, but not essentially different from, the two-year

limitation fixed by this Court on its own motion in the final

draft of Rule 33, F. R. Crim. P.

As the court below correctly observed, “The due process

clause assures the accused of one fair trial, but does not give

him the right to petition for a new or second trial” (R. 100).

Moreover, since petitioners have shown no basis for a new

trial, they have no standing to challenge the validity of the

limitation. The rights of petitioners to executive clemency or

pardon upon a proper showing continue to exist irrespective of

limitations of time.

11

ting him.’’ These statements were introduced in

evidence (C. R. 332, 479, 493).

There was ample prosecution evidence at the

court-martial trial, including testimony by Suttles

himself, that he was advised on September 21 of

his right under Article 31 (supra, p. 3) either to

make or not make a statement as he saw fit, that

the statements were voluntary, and that no prom-

ises, threats, or coercion were employed (C.R.

336-337, 390-392, 402-404, 437, 444-446). The same

was true of the September 28 statement (C.R. 311-

314, 321-324).

Suttles testified at the court-martial that at the

sheriff’s office on September 21 there were about

10 people in the room and 30 or more on the out-

side. One intoxicated woman was making ges-

tures indicating a cutting of his throat. (C.R.

386-387.) Suttles stated that Agent Kresse ‘‘asked

me how would I like for about half of those men

to get hold of me’’ and ‘‘how would I like to be put

back in the cell with Riggins’? (C.R. 387). Sut-

tles testified he was afraid and uncomfortable with

all those people around him and that he made his

statement to the agents relying on their promise

to return him to the stockade (C.R. 388, 390).

There was contrary evidence for the prosecution

that there was no mob but only about 10 or 15

curious onlookers outside the sheriff’s office, that

there were no loud noises, and no threats (C.R. 415-

416, 427-430, 434-439, 451, 464-465). Agent Kresse

denied saying anything to Suttles about letting the

people outside ‘‘get hold of him”’ or about putting

him in a cell with Riggins (C.R. 423).

At the habeas corpus hearing Suttles, repeating

the story about the noises made by the crowd on

September 21, the woman’s menacing gestures,

and agent Kresse’s threats, stated that he made his

statement because he was afraid of being lynched

and was promised that he would be returned to

Fort Leonard Wood (H.C. 70-72, 74-77, 95). On

eross-examination Suttles was confronted with his

admitted court-martial testimony that on the occa-

sion in question Article 31 had been read to him

and he understood it; that the woman who made

the threatening motion was not around when he

made the statement; and that his statement to the

C.I.D. agents was voluntary (H.C. 86-90). Testi-

mony by state trooper Smith disclosed there was no

mob making loud noises or threats, but that the by-

standers were merely curious onlookers (H.C. 242-

243, 247-249).

b. Petitioner Beverly—This petitioner executed

a written statement (Prosecution Ex. 36) before

C.1.D. officers at Fort Leonard Wood on Septem-

ber 21, 1951, and a supplementary statement

(Prosecution Ex. 41) on September 22. In the

statement of September 22 Beverly admitted that

he stole the eab driver’s wallet and saw Suttles and

Riggins attack the driver with rocks. These state-

ments were introduced in evidence (C.R. 547).

At the court-martial trial it appeared that Ar-

ticle 31 had been read and explained to Beverly in

ruminal

13

terms which he understood (C.R. 499-501). Pros-

ecution evidence was to the effect that no threats,

promises, or coercion were employed to induce

Beverly to sign his statements (C.R. 505-506, 518-

521, 544). No evidence was introduced to show

that Beverly’s statements were involuntary, and

he elected not to testify as to the circumstances re-

garding the taking of his statements (C.R. 536-

537).

At the habeas corpus hearing Beverly testified

that he made his statement on September 21 be-

cause a state trooper ‘‘threatened to take me to

Waynesville and he had a guy down there that

could make me talk a plenty, and the C.1.D. told

me if I go and make a statement I would probably

come off with a light sentence and that would leave

Riggins out in the boat with the monkey on his

back by himself’? (H.C. 179, 183). He stated that

he made his statement at Fort Leonard Wood be-

fore he was taken to the sheriff’s office at Waynes-

ville, where he did not make any statement (H.C.

192-193, 203). Consequently his testimony that

mob violence at Waynesville made him fear lynch-

ing (H.C. 182) had no bearing on the voluntary

nature of his written statement.

ce. Petitioner Riggins—This petitioner on Sep-

tember 23, 1951, executed a written statement be-

fore C.I.D. agents at Fort Leonard Wood (Prose-

eution Ex. 40), which was introduced in evidence

(C.R. 641). He admitted his presence at the scene

of the crime with the other two petitioners and

~

14

said that he washed the blood off his clothes after

being brought back to the stockade.

Prosecution evidence at the court-martial trial

disclosed that prior to the execution of Riggins’

statement, Article 31 had been explained to him,

so that he understood his rights (C.R. 550-551,

581). Riggins testified that he understood he did

not have to make a statement unless he wanted to,

and that a statement could be used against him in

a court-martial (C.R. 595). Prosecution evidence

showed that, although Riggins was informed that

Suttles and Beverly had made statements, no prom-

ises, threats, or violence were employed to obtain

his statement (C.R. 553-554, 566).

At the habeas corpus hearing, Riggins testified

that prior to giving his statement he was placed

at the army stockade in a segregated ‘‘black box’’

cell * covered with water and that his shoes were

taken from him. His testimony was that he made

the statement in order to take the ‘‘monkey off his

back,’’ which Suttles and Beverly had placed there

by making statements, and to be released from the

‘*black box,’’ as the agents had promised him he

would be. (H.C. 102-106.) At the court-martial

trial Riggins had given substantially similar testi-

mony (C.R. 573-580). However, he also admitted

that the wet condition of the cell floor on Septem-

ber 21, 1951, was caused by a previous scrubbing,

4 At the court-martial trial Suttles, in testifying as to volun-

tariness, did not mention the “black box” as affecting his con-

fession, and Beverly did not testify concerning voluntariness

(C.R. 536-537).

15

that this water dried over night, and that the floor

was not wet after that (C.R. 578, 586-587). Before

he made his statement, he had been furnished with

a mattress and blankets to use on his army cot in

the cell (C.R. 623-625). Riggins testified that no

one threatened or used violence against him in

order to obtain his statement (C.R. 594).

From the evidence detailed, it was clear that, al-

though there was some conflict, the court-martial

had the right to resolve the conflict in favor of the

prosecution and to rule that the confessions were

voluntary and admissible. This question was also

decided adversely to petitioners in the Staff Judge

Advocate’s review, and in the decisions of the

Board of Review and the United States Court of

Military Appeals (Ex. B-1, pp. 42-49; Ex. B-4,

p. 10; Ex. B-5, pp. 5, 6). As the court below held,

in view of this careful consideration at every stage

of the appellate procedure, the ‘‘district court was

without power to try the issue de novo”’ (R. 101).

Cf. Burns v. Wilson, supra, 346 U.S. at 146; Col-

lins v. McDonald, 258 U.S. 416, 420-421.

16

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

Simon E. SoBeELorr,

Solicitor Ceneral.

Warren Oxtney III,

Assistant Attorney General.

BEATRICE ROSENBERG,

Rosert G. Maysack,

Attorneys.

NOvEMBER, 1954,

WW u. S. GOVERNMENT PRINTING OFFICE: 1984 322412 ces