Legal Summary of Appeals
The details of the appeal process are presented to illustrate the persistence of Warren and his mother as well as the time and energy provided by the justice system to ensure Warren's legal rights were protected.
Following approval of the sentence by the convening authorities in April 1966, letters began accumulating - first from Warren, regarding an appeal to the court of military appeals (CMA). The two legal issues were: (1) whether the testimony given by a nurse concerning the victim's words when she regained consciousness was hearsay, and (2) whether bloodstained clothing belonging to Warren had been seized illegally, and therefore had been erroneously admitted at trial.
Both of these issues were resolved against Warren, and the CMA affirmed the conviction in June 1967. The hearsay issue was dismissed because the victim had given the same testimony as the nurse. Therefore, the court held, whether the nurse's testimony was hearsay was immaterial, since it merely repeated the victim's testimony. The seizure of the clothing was held to be legal, since it was the result of a search incident to arrest, one of the major exceptions to the rule that a warrant is required before a search can take place.
A July 18 letter informing Warren of the decision of the CMA was received on July 25. He then wrote on October 9 to the director of military justice, Office of the Judge Advocate General, to request a new trial. On October 16, the judge advocate general replied that Warren was no longer eligible to petition for a new trial since the one year period had expired (the convening authority had approved the conviction and sentencing on 28 April 1967).
In a November 1967 letter to a senator, Warren's mother protested the denial of a new trial, pointing out that Warren did not get the final opinion of the CMA until after the one-year period had expired, and that no one had advised him of the necessary petition for a new trial during that period.She also expressed concern about irregularities in the first trial and about her son's mental condition.
The senator referred the matter to the Air Force Office of Legislative Liaison, Congressional Enquiry Division. That office informed him that all procedures had been followed correctly, and that psychiatric testing at the time of the trial had shown Warren to be competent and sane, although suffering from a character and behavior disorder. Thus, Warren had exhausted all his appellate remedies and was not entitled to petition for a new trial after the one-year period had expired. The only avenue left open to Warren, according to this office, was for him to apply to the Air Force Board for Correction of Military Records.
Correction of military records takes place only in extraordinary circumstances. To qualify for this remedy, Warren would have to prove that he had been a victim of injustice, in which event the board would review his case and make recommendations to the Secretary of the Air Force.
Warren's mother also wrote to another senator and congressman because the same information regarding the reason for not granting a new trial was sent to them.
In November 1967, Warren's request for clemency and restoration to duty was rejected.
In December 1967, Warren wrote to a second congressman, the chairman of the House Committee on Armed Services and to the Constitutional Rights Subcommittee of the Senate Committee on the judiciary. In both of these letters he explained that he had delayed his petition for a new trial until he received the decision of the CMA, and that at no time had anyone told him about the one-year restriction. Again, these letters were referred to the Office of Legislative Liaison.
In replying to these letters, the Office of Legislative Liaison discussed the then-pending legislation that would extend the period for request for a new trial from one to two years after appeal of sentencing by the convening body. That legislation, if enacted, would make the extension retroactive for two years from the date of enactment. Thus,
if the legislation were enacted on or before 27 April 1968, Warren would be able to petition for a new trial.
The office again suggested that Warren apply for a correction of military records, or that he apply for a writ of error coram nobis. That is, Warren would petition the original court-martial and would bring to the court's attention errors of fact in the original trial.
The new legislation was not enacted until October 1968. Therefore, Warren did not qualify to petition for a new trial, and he did not petition for coram nobis. However, in May 1968 he petitioned the CMA for relief. The basis of that petition was that even though the statute only allowed for the one-year period, the judge advocate general has
discretionary power to ignore the statute, make a decision to set aside the original conviction, and grant a new trial after considering the substance of a particular case. This, according to the petition, was particularly important in light of the fact that the one-year period was so short as to amount to an unconstitutional denial of due process.
On 14 June 1968, this petition was denied. Warren tried again in January 1971, writing the staff judge advocate and designating his letter a notice of appeal. This letter resulted in a reply informing Warren that he had exhausted all appellate remedies and that his only recourse was to apply to the Air Force Board for Correction of Military Records.
This application was made in September 1971 and claimed that error and/or injustice has occurred in his case because (1) he was not given his Miranda warnings when he was arrested, and (2) evidence admitted at trial was insufficient to support the guilty verdict, and certain evidence that had been admitted at trial had prejudiced his case
(presumably the bloodstained clothes).
Both issues were resolved against Warren and the request for correction of military records was denied. Miranda warnings are only required for arrests taking place after 13 June 1966, and Warren's arrest was March 1966, and the evidence questions had already been fully addressed and resolved by the board of review and the CMA.