New Scholarly Critique of Habeas Standard of Review

3/23/2021

A new student note in the Texas Law Review critiques the standard of review for the collateral review of court-martial convictions.

Clara Crenshaw, Habeas Review of Courts-Martial: Revisiting the Burns Standard, 99 Tex. L. Rev.

Abstract:

"The 1953 Supreme Court decision Burns v. Wilson, which articulated the standard of review for military habeas corpus petitions, has left the legal community unashamedly confused. While there was no majority opinion, the standard of review advanced by the plurality has largely been taken as the rule emanating from the Court. Accordingly, the test for determining if habeas review is appropriate is whether the military court has given “full and fair consideration” to the claims. Circuit courts of appeal have struggled ever since this decision to configure exactly what “full and fair consideration” means, resulting in many different approaches.

This Note argues that, based on historical analyses and legal developments, a modified version of the Fifth Circuit’s four-prong inquiry in Calley v. Callaway would be a satisfactory solution to the current confusion. This new standard would open the door to many more successful military habeas petitions, while at the same time protecting the distinctive nature of military law. It would do this by properly differentiating between military factual and legal determinations. Factual determinations would be brought in line with civilian habeas, while the military’s special policy needs would be considered in legal determinations. More importantly, however, it would provide a cohesive standard across jurisdictions. The strength of a military prisoner’s habeas petition should not be based upon where he or she is incarcerated."

1 Comment

Donald G Rehkopf

3/24/2021 03:22:34 pm

Burns, like the Japanese Internment cases, was not the Supreme's "finest hour." I've only skimmed this article, but since Steve Vladeck was involved, will at least preliminarily assume that the scholarship is his usual thorough analysis.

That said, I've studied Burns extensively over the past few years and can say with confidence that the decision has caused more issues than it ever resolved. Justice Frankfurter's initial separate "statement" points out that only one copy of the RoT was submitted to the Court and not all of the Justices [himself included] had had an opportunity to study it in detail. His second opinion, issued months later in conjunction with the Court's denial of the Petitioner's Motion for Reconsideration, is much more enlightening and enlightening jurisprudentially.

Many of the facts lie at or below the surface - the case was tried under the Articles of War, not the UCMJ, and as Frankfurter astutely pointed out, Congress had indeed spoken and spoken clearly when it enacted Art. 36, UCMJ, which expanded upon a similar provision in the AW, by mandating that military procedures and evidence be considered to the extent practicable, as in U.S. District Courts.

Race, albeit unspoken, played a significant role - the victim was white, the two Petitioner's were Black, and Black men killing and raping a white woman, stood little chance at the time of the court-martial of getting a fair trial in just about any US court, civilian or military.

Justice Frankfurter's second opinion, 346 U.S. 844 (1953), sets forth in details the many issues the case raised, but his caveat about "jurisdiction" has been ignored by Courts, counsel, and scholars:

"the assertion that ‘in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases' . . . is, I respectfully submit, demonstrably incorrect."

The great judge Bazelon, of the DC Circuit, sat on the Panel that heard Burns at the DC Circuit. Two things are important from that Court's decision: first, the Court gave plenary consideration (allegedly) to the numerous issues raised by the Petitioners-it didn't limit its review to solely that of jurisdiction, Second, Judge Bazelon's dissent is cogent and powerful, something that no doubt troubled Justice Frankfurter.

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New Scholarly Critique of Habeas Standard of Review

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