Humphrey v. Smith/Dissent Murphy
Mr. Justice MURPHY, with whom Mr. Justice DOUGLAS and Mr. Justice RUTTLEDGE concur, dissenting.

Pretrial investigation under the seventieth Article of War performs a dual function. It saves the Army's time by eliminating frivolous cases; it protects an accused from the ignominy of a general court martial when the charges against him are groundless. These policies, of course, mean more than the protection of the respondent in this case. Their primary service appears when the defendant is clearly innocent. If the Article is ignored, and the court martial finds the defendant innocent, the error can never be corrected-the officers' time has been wasted and the defendant's record is forever besmirched by the words 'general court martial.' Yet if the prisoner is found guilty, there is still no sanction. For military authorities will not set aside a conviction unless the very accused asking reversal has been prejudiced. And if the trial has been fair, and resulted in conviction, who will say that the defendant has been prejudiced because preliminary investigation was wanting?

Unless a civilian court is able to enforce the requirement, then, it is not a requirement at all, but only a suggestion which should be observed. Today the Court adopts the latter alternative. It holds that the error of noncompliance with A.W. 70 is not jurisdictional. It makes A.W. 70 a virtual dead letter.

I cannot impute so bland a rule to the Congress. And no evidence of such sterility has been brought to our attention. What the Eightieth Congress thought about the problem is irrelevant, of course, for A.W. 70 was the product of the Sixty-Sixth Congress, in 1920, and respondent was tried in 1944, long before the Eightieth Congress convened. Had respondent's trial taken place in 1948, the result might be entirely different. The available evidence indicates clearly that the Sixty-Sixth Congress considered preliminary investigation vital before trial. The language of the Article is that of command-'no charge will be referred' without investigation. The report accompanying the 1920 statute, after referring to an investigation of unfairness in administering military justice, and concluding that 'the personal element entered too largely into these cases,' listed twenty-three changes in the law. The second change mentioned was this: 'Speedy but thorough and impartial preliminary investigation will be had in all cases.' H.R. Rep. No. 940, 66th Cong., 2d Sess. (1920), p. 2.

In 1924, just four years after A.W. 70 became the law, the Board of Review construed the language directly opposite to the Court's present interpretation. It held that the error was jurisdictional. Cm 161728, Clark. Two later holdings, both in 1928, confirmed this view. CM 182225, Keller; Cm 183183, Claybaugh. In Keller, the investigation took place, but was not 'thorough.' The Board held that a thorough investigation was 'an absolute right given to the accused by statute.' And in 1937 Congress reenacted the same language we are construing now, the same language the Board of Review expounded in 1924 and 1928. 50 Stat. 724. It seems extraordinary to say that reversals of the prior rulings in 1943, CM 229477, Floyd, 17 B.R. 149, should govern when Congress has apparently acquiesced in the first, and contemporary, interpretations.

Congressional belief in the importance of preliminary investigation should not now be frustrated by a holding that noncompliance cannot be attacked by habeas corpus. I agree with the court below that the preliminary investigation in this case did not meet the proper standard, and would affirm the judgment. 

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