"bloodstained" in emotional sex-murder case); Flanagan v. Henderson, 5 Cir., 1974, 496 F. 2d 1274 (withholding of rape prosecutrix's original affidavit charging another man, her employer, and private investigator's report); Davis v. Heyd, 5 Cir., 1973, 479 F.2d 466 (suppression of affidavit which might have corroborated a self-defense claim; Ashley v. Texas, 5 Cir., 1963, 319 F. 2d 80, cert. denied, 375 U.S. 931. (suppression of psychiatric opinion that defendants were legally incompetent); Powell v. Wilman, 5 Cir., 1961, 287 F. 2d 275 vacated per curiam, 361 U.S. 34 (nondisclosure of phychological background of key witness). In all of these cases, the suppressed material bore directly upon the defendant's actual guilt in fact, or the credibility of the key witness to the crime.

By contrast, the need for the material sought in the instant case is not pressing. Admittedly, the unavailability of this material even at this late date precludes an absolute determination that it was not critically exculpatory, but a reading of the Herbert Report itself gives some indication. In his testimony before the court-martial Calley admitted the killings for which he was charged. His defense was based upon his contention that he was acting upon the direct orders of his immediate superior, Captain Ernest M. Medina. To establish that those orders were given, Petitioner presented testimony concerning a company briefing the night before the operation. Several witnesses testified that Captain Medina had ordered the men to kill "everything that moves" in the village. But the Hebert Report recounts the briefing. solely on the basis of Medina's testimony," in a somewhat different light:

"Capt. Medina testified that, on the evening of March 15, he told the troops that intelligence reports reflected the 48th VC Battalion was located in My Lai 4, and that the Viet Cong would probably outnumber them about two to one. He told them they could expect to find a well-fortified enemy. He also told the troops the assault had been scheduled at 0730 hours rather than the normal daybreak time in order to allow the women and children time to depart the hamlet for their morning marketing. He then told the troops that the hamlet was to be destroyed. He said they had been authorized to burn buildings, destroy food, kill livestock, and close the wells. He told the assembled troops they would have an opportunity to get even with the 48th VC Battalion for the casualties they had suffered from mines, booby traps and sniper fire. He did not give the troops any instruction on the handling of noncombatants who might be found in the hamlet." Hebert Report at 13 (App. Ex. 165, Incl 3).

Similarly, Petitioner contends that the statements would have been useful to impeach other government witnesses. But there is no assurance-indeed, there is nothing more than the bare allegation-that the Report contained any useful impeachment material. All of the witnesses who testified before Subcommittee and were subsequently called by the prosecution had other sworn statements available to the Petitioner; all but one had two or more such statements. R. 428 The defense had the full cooperation of the government in developing these other possible sources of impeachment information. As the military judge noted in his formal order denying Petitioner's discovery motion for the Hebert transcripts:

[t]he discovery processes are not designed to permit an accused to fish blindly for evidence with only hope for tackle and prayer for bait.

34 Medina testified at Petitioner's court-martial, but he was called by the court, not the government. His testimony there was in substantial accord with the Hebert Report. The fact that he was called by the court, see Manual for Courts-Martial, 54(b) (Rev. Ed. 1969), raises an interesting argument concerning the requirements of the Jencks Act, but it is unnecessary for this Court to explore that argument, see Part B, supra.

The Report strongly indicated the Subcommittee's favorable impression as to Medina's credibility. The Subcommittee departed from its avowed purpose to avoid comments regarding individual criminal culpability in its description of an incident concerning the shooting of a Vietnamese woman:

"Capt. Medina, both in testimony before this subcommittee and in public statements, has admitted that he was the officer who shot the woman in the scene observed by Lt. Thompson. His explanation of the circumstances surrounding that shooting suggests that it was not a wanton act, but rather a reflexive, self-defensive action by a soldier under the pressures of a combat situation." Hebert Report at 14 n. 3 (App. Ex. 165, Incl 3). Captain Medina was subsequently tried and acquitted for the murder of this woman. Even assuming that the Petitioner could have impeached Medina, there is no assurance that he would have been acquitted. Based upon the evidence presented in the courtmartial and the charges by the military judge, Calley's conviction could rest on either of two factual findings by the jury: (1) that no order was given, or (2) that Medina ordered the killings but Petitioner knew or should have known that such an order was illegal and should not be obeyed.

"In this case, Chairman Hebert has provided counsel with the names of all witnesses appearing before the Subcommittee. Most of these witnesses have testified at other investigations. The defense has been provided with all testimony and statements obtained by investigators working under the direction of The Inspector General, the Criminal Investigation Division, and the 'Peers Inquiry. All criminal investigative case progress notes were furnished the defense to permit counsel to contact any witness interviewed by the criminal investigators, including those from whom statements were not taken. In addition, the defense has been provided with blanket travel orders so that counsel may travel to and interrogate any potential witness at Government expense." (App. Ex. 202).

Given this availability of other prior statements, the possibility that something of a "crucial, critical, highly significant nature" would have turned up in the Subcommittee's transcripts is ephemeral. A federal court should not, in a collateral proceeding, reverse a conviction on the basis that the excluded material "might" have provided some further inconsistency. See United States v. Smaldone, 10 Cir., 1973, 484 F.2d 311, 318; note 33, supra.

In addition to the dubious possibility that the House transcripts would have very much impeachment value, the Court should also consider the strength of the government's non-tainted evidence in determining whether disclosure would have changed the verdict. See Milton v. Wainwright, 1972, 407 U.S. 371, 377-78, 92 S. Ct. 2174, 2178, 33 L.Ed. 2d 1, 6. The Court of Military review found that it would not.

The Court of Military Review is authorized by statute to review not only questions of law, but also the court-martial's findings of fact. Art. 66(c), UCMJ, 10 U.S.C. § 866 (c) (1970). In its discussion of the putative JencksBrady issue, the court said:

35

"Those witnesses who testified before the investigating subcommittee and at trial did not present the heart of the Government's case. They key Government's case. The key Government witnesses were Sledge, Meadlow, Conti, Dursi, and Turner. None of their testimony is affected by the Jencks Act or the related issues. With the case in this posture, no issue of Constitutional dimension is reached." United States v. Calley, 46 C.M.R. 1131, 1195 (Tr. Vol I, p. 719).

Furthermore the Petitioner established the operative facts of the government's case by his own testimony. Perhaps this case would present a "mistake" of constitutional dimensions if this testimony had been elicited or impelled in some manner by the purported Brady material, see Kauffman v. Secretary of the Air Force, D.C. Cir., 1969, 415 F. 2d, 991, 998, cert. denied, 396 U.S. 1013; but two factors negate such a contention. First, Petitioner's counsel indicated in his opening statement to the court-martial that the defendant would testify in his own behalf because that was "the only way you can determine his guilt or innocence." (R. 2222). Second, the Court of Military Review made a specific finding, which is binding on this Court in the context of a habeas case:

"Under any realistic evaluation of the case, appellant's decision to testify could not have been different even had testimony affected by the Jencks Act not been presented at trial." 46 C.M.R. at 1194 (Tr. Vol I, p. 178).30

Moore v. Illinois, 1972, 408 U.S. 786, 92 S. Ct. 2562, 22 L.Ed.2d 706, established the constitutional standard for the analysis of a nondisclosure issue. In United States v. Miller, 10 Cir., 1974, 499 F. 2d 736, the Tenth Circuit succinctly stated the rule:

"[T]he test for reversal on appeal is not whether the trial was imperfect but rather "unacceptably unfair." And where the evidence allegedly suppressed is not material to the question of the guilt or innocence of the accused but admissible only for the purpose of attacking the credibility of a Government witness, the prosecution's failure to produce must be inherently significant and favor

25 "In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses."

38 The Court made this finding in connection with its holding that, even if the Jencks Act did apply, the technical violation of the Act was not prejudicial. See Rosenberg v. United States, 1959, 360 U.S. 367, 79 S. Ct. 1231, 3 L.Ed. 2d 1304. In the statutory framework of the Jencks Act, these considerations are relevant to a determination of whether a Jencks error is prejudicial. In a constitutional matrix, however, see Part B, supra, the factors are relevant, not to determine whether the nondisclosure is harmless error, but to determine whether it is constitutional error at all.

able to the defense in order to be "unacceptably unfair." The salient inquiry is whether production of the requested information might have lead the jury to entertain a reasonable doubt about the defendant's guilt. The nondisclosure must itself be prejudicial to the defense."

Id. at 744 (Citations omitted; emphasis added). Accord United States v. Augenblick, 1969, 393 U.S. 348, 356, 89 S. Ct. 528, 522, 21 L.Ed. 2d 537, 545; Shuler v. Wainwright, 5 Cir., 1974, 491 F. 2d 1213, 1220-24; Luna v. Beto, 5 Cir., 1968, 395 F. 2d 35, 41 (En Banc) (Brown, C. J. Concurring). See Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 265-66, 93 S.Ct. 2041, 36 L. Ed. 2d 854, 885 (Powell, J. concurring).

Respondents submit that the production of transcripts of testimony taken before the Hebert Subcommittee would not "have lead the jury to entertain a reasonable doubt about the defendant's guilt." Therefore, the Subcommittee's refusal to release did not operate to deprive the Petitioner of due process.

In a recent case, directly on point, a United States District Court adopted the arguments which Respondents have developed in this Section. The case, United States v. Ehrlichman, et al., Crim. No. 74-116 (D.D.C. July 3, 1974), presented the United States District Court for the District of Columbia with a situation on all fours with the case at bar. The Defendant Liddy, accused of conspiracy to commit burglary in the highly-publicized "Ellsberg break-in" moved to strike the testimony against him by his coconspirator E. Howard Hunt "on the ground that prior testimony of Hunt given under oath in executive session before the Subcommittee on Intelligence of the House Armed Services Committee last year has not been produced, in alleged violation of Liddy's rights under the Jencks Act, 18 U.S.C. § 350, Brady v. Maryland, 1963, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, and the Fifth and Sixth Amendments to the Constitution of the United States". Like Petitioner in the case at bar, Liddy had caused to be served upon the House a subpoena duces tecum. Like the case at bar, the House had not acted.

The court denied Liddy's motion to strike the testimony. In his memorandum and order, Judge Gesell based this ruling on the following factors:

the Jencks Act does not apply to legislative proceedings held in executive session

Brady does not apply when the custodian of the subject matter is question is "neither an investigative or a prosecutorial arm of the Executive branch nor an agency of the Government in any way involved in the offense or related transactions"

no Sixth Amendment showing of need was made in view of the fact that numerous other prior sworn statements of the witness were available to the defense (and even if need was demonstrated the Sixth Amendment requires only that the court make a good faith effort to obtain the material) A copy of this memorandum and order is attached as Annex B to this brief. In ruling on Petitioner's case, the Court should be mindful of the possible ramifications of its holding. The rule enunciated by the district court presents an unnecessary confrontation between two cherished values of our society. If this be the law, then something must yield. If legislative privilege prevails, the Congress would possess the means to manipulate threatened prosecutions by calling key witnesses to testify before executive sessions and withholding their testimony from prosecution and defense alike. If the discovery rights asserted here prevail, the fulfillment of those right would necessitate judicial encroachment into legislative prerogatives. Either course would represent a marked deviation from the principles of checks and balances on which our government is founded.

If the occasion of such a holding was an obvious instance of clear injustice, then perhaps the end result would justify the fundamental realignment of our system of government. But where the need which underpins the rule is merely a conjectural speculation that something useful "might" be found, reason demands a contrary result. In this regard, Justice Cardozo's remarks, frequently cited by this Court, are apropos:

"There is a danger that the criminal law will be brought into contemptthat discredit will even tough the great immunities assured by the Fourteenth Amendment-if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free." Snyder v. Massachusetts, 1934, 291 U.S. 97, 122, 54 S. Ct. 330, 338, 78 L.Ed. 674, 687, quoted in Hoover v. Beto, 5 Cir., 1972, 467 F. 2d 516, 542 (en banc).

Because the material in question was beyond the control of the prosecution, and furthermore, because there is no evidence to indicate that anything contained in the Hebert Report would have altred the fact of Petitioner's conviction, Respondents respectfully request this Court to reverse the judgment of the district court.

Annex B

UNITED STATES OF AMERICA v. JOHN D. EHRLICHMAN, ET AL.

(Criminal No. 74-116)

MEMORANDUM AND ORDER

Defendant Liddy, by his counsel, has orally moved to strike the testimony of E. Howard Hunt, a Government witness, at the conclusion of his direct testimony on the ground that prior testimony of Hunt given under oath in executive session before the Subcommittee on Intelligence of the House Armed Services Committee last year has not been produced, in alleged violation of Liddy's rights under the Jencks Act, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83 (1963), and the Fifth and Sixth Amendments to the Constitution of the United States. Earlier, defendant Liddy had caused a subpoena duces tecum covering the transcript of that testimony to be served on counsel for the Subcommittee and, following a negative response by the Chairman, see attached letter, defendant caused a second subpoena to be served on the Honorable Carl Albert, Speaker of the House. Although the Court and the Special Prosecutor also requested that the testimony be produced, at least for the Court's in camera inspection, the Chairman of the Subcommittee has rejected these requests. Instead, in accordance with House Resolution 12, 93d Cong., 1st Sess., 119 Cong. Rec. H 19-20 (daily ed. Jan. 3, 1973),1 both subpoenas are being held by the Speaker pending action by the House, which apaprently is not contemplated in the foreseeable future. See 116 Cong. Rec. 37652-54 (1970), for an example of similar action with regards to subpoenas issued during the military trials of Lieutenant William Calley and Staff Sergeant David Mitchell. access to the subpoenaed testimony, and no specific showing has been made as to its contents. However, it appears to have dealt, in part and long after the events, with the intelligence community's role in the Fielding break-in, which bears upon the issues in this case, and it is apparently being sought solely because it may contain statements by Hunt of possible value on crossexamination.

The Court concludes that the Jencks Act does not apply to the requested material. While the Act probably contemplates disclosure by all Executive investigatory agencies, Augenblick v. United States, 377 F. 2d 586, 597-98 (Ct. Cl. 1967), rev'd on other grounds, 393 U.S. 348 (1969), there is no indication that Congress intended it to encompass its own legislative proceedings held in executive session, and its previous and continued resistance to subpoena duces tecum argues strongly to the contrary. See authorities cited in Nixon v. Sirica, 487 F. 2d 700, 715 n. 70, 738-40, 772-73 (D.C. Cir. 1973).

Nor does Brady apply. The subpoenaed testimony is not in the possession of the Government within the meaning of that decision, since the Subcommittee is neither an investigative or a prosecutorial arm of the Executive branch nor an agency of the Government in any way involved in the offense or related transactions. See United States v. Deutsch, 475 F. 2d 55, 57 (5th Cir. 1973); United States v. Bryant, 439 F. 2d 642, 650 (D.C. Cir. 1971).

The only other constitutional principle that might justify production of the subpoenaed testimony is the defendant's Sixth Amendment right in this criminal proceeding "to have compulsory process for obtaining witnesses in his favor." Under this provision, the Court must enforce a defendant's subpoena for testimony or documents "essential to the defense." United States v. Schneiderman, 106 F. 2d 731 (S.D. Cal. 1952). See also Washington v. State of Texas, 388 U.S. 14 (1967); United States v. F. 2d 71-150 (7th Cir. 1973), and such process may even run to the Members of Congress. United States v. Cooper, 4 U.S. (4 Dall.) 341 (1800). However, no such showing of need has been made in this case. Hunt has testified numerous times on the same subjects under oath, and defendant has had full access to this other testimony. More

1 This resolution applies only to the present, Ninety-third Congress, but an identical resolution has been passed at the beginning of each Congress in recent years.

over, unlike the Brady rule which requires dismissal if the requested material is not produced, or the Jencks Act which requires mistrial or the striking of the witness' testimony, the right to compulsory process requires only that the Court use its best efforts to procure the subpoenaed documents. If that material is rendered unavailable by loss or by the valid exercise of a privilege, the defendant has no constitutional right to a remedial order unless such unavailability also raises Brady or Jencks Act problems. Smith v. United States, 385 F.2d 34, 38 n. 12 (5th Cir. 1967); Johnson v. Walker, 199 F. Supp. 86, 95 (E.D. La. 1961), aff'd, 317 F 2d 418 (5th Cir. 1963); United States v. Di Gregorio, 148 F. Supp. 526, 528 (S.D.N.Y. 1957)

In the instant case, defendant Liddy seeks a transcript of secret, executive session proceedings before a House subcommittee That transcript has been placed in the possession of the Speaker and can only be released upon a vote of the whole House. Congress' right to invoke such a privilege with regard to verbatim transcripts of its executive proceedings would appear to be established by the Secrecy Clause in Article I, Section 5, Clause 3 of the Constitution. United States v. Calley, 8. Crim. L. Rep. 2055 (Army GCM, 5th Jud. Cir. Oct. 13, 1970). Moreover, since the requested transcript would reveal "the deliberative and communicative processes by which Members [of Congress] participate in committee and House proceedings . . . ." judicial efforts to compel production of that document would, under the present circumstances, also violate the Speech and Debate Clause, U.S. Const. art. I, § 6, cl. 1. That provision clearly prohibits the Court from forcing the Chairman of the Subcommittee or the Speaker to answer questions concerning the testimony at issue, Cravel v. United States, 408 U.S. 606, 616 (1972), and it would appear to follow that they cannot be required to produce at trial the official record of that testimony or to put the issue to a vote of the full House. See also United States v. Brewster, 408 U.S. 501 (1972); United States v. Johnson, 383 U.S. 169 (1966). Under the circumstances, further proceedings to enforce the subpoenas would be futile and the motion is accordingly denied. However, the Court most respectfully reiterates its request that the House of Representatives, in accordance with its rules and procedures, produce the subpoenaed testimony for in camera inspection by the Court on the assurance that only those questions and answers, if any, which prove significant and material to the defense would be disclosed.

So Ordered.

GERHARD A. GESELL, United States District Judge.

JULY 3, 1974.

Exhibit 7

LETTER TO JUDGE GESELL FROM WATERGATE COMMITTEE, RE SENATE SELECT COMMITTEE V. NIXON, JANUARY 9, 1974

Hon. GERHARD A. GESELL,

U.S. District Judge,

JANUARY 9, 1974.

U.S. Court House,

Washington, D.C.

DEAR JUDGE GESELL: The Court has requested that we supply it with the relevant legislative history of Public Law 93-190. This history is attached along with that of Senate Resolution 194, 93d Cong., 1st Sess., (November 7, 1973). In order to assist the Court in understanding the progression of the bill and resolution through Congress, we present below a brief guide to the legislative history of both provisions.

Both S. Res. 194 and the original version of P.L. 93-190 were introduced in the Senate on November 2, 1973 (see Tab A). The initial jurisdictional bill, which was designated S. 2641 and is attached at Tab B, was far broader than the bill that eventually became law. The first bill would have provided jurisdiction for suits to enforce congressional subpenas issued to the President or other officers and employees of the executive branch by either House of Congress, any committee or subcommittee of either House or any joint committee of Congress. The bill also would have provided standing for the appropriate plaintiffs and allow them to prosecute their actions by the attorneys of their choice (as does the present statute respecting the Select Committee).