William O. Douglas

“ It is rather a situation where at the time of the convictions the definitive ruling on the question of law had not crystallized. Of course, if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile.
We are dealing here with a problem which has radiations far beyond the present cases. The courts which tried the defendants had jurisdiction over their persons and over the offense. ”

“ For one convicted of violating an illegal order of a selective service board, like one convicted of violating an unconstitutional statute, should be afforded an opportunity at some stage to establish the fact. And where no other opportunity existed, habeas corpus would be the appropriate remedy. [14] But that was an additional reason for allowing the defense in the criminal trial, not a statement that defendants prosecuted under § 11 had an alternative of defending at the trial on the basis of an illegal classification or resorting to habeas corpus after conviction. ”

“ If the existence of a remedy by appeal at some stage of the criminal proceedings is to be taken for the criterion, then in very few instances, far less than the number comprehended by our decisions, will the writ be available. Taken literally, the formula so often repeated, that the writ is not a substitute for appeal, is thus in conflict with every case where the ground upon which the writ has been allowed either was or might have been asserted on appeal. ”

“ An endeavor is made to magnify the error in these trials to constitutional proportions by asserting that the refusal of the proffered evidence robbed the trial of vitality by depriving defendants of their only real defense. But as much might be said of many rulings during a criminal trial. Defendants received throughout an opportunity to be heard and enjoyed all procedural guaranties granted by the Constitution. Error in ruling on the question of law did not infect the trial with lack of procedural due process. ”

“ And I agree with Judge Learned Hand, in the view stated for the Circuit Court of Appeals in Kulick's case, that upon the sum of our decisions, [15] regardless of the variety of statement in the opinions, no more definite rule is to be drawn out than that 'the writ is available, not only to determine points of jurisdiction, stricti juris, and constitutional questions; but whenever else resort to it is necessary to prevent a complete miscarriage of justice.' 2 Cir., 157 F.2d 811, 813. ”

“ They committed an error of law in excluding the defense which was tendered. That error did not go to the jurisdiction of the trial court. Congress, moreover, has provided a regular, orderly method for correction of all such errors by granting an appeal to the Circuit Courts of Appeals and by vesting us with certiorari jurisdiction. It is not uncommon after a trial is ended and the time for appeal has passed to discover that a shift in the law or the impact of a new decision has given increased relevance to a point made at the trial but not pursued on appeal. ”

“ But what is 'form' and what is the 'tissue of the structure,' and when is a writ sought in fact as a substitute for an appeal in a practical view of the administration of justice, are questions to which our decisions give dubious and confused answers. ”

“ That is to say, the writ has at times been entertained either without consideration of the adequacy of relief by the appellate route or where an appeal would have afforded an adequate remedy. Illustrative are those instances where the conviction was under a federal statute alleged to be unconstitutional, [6] where there was a conviction by a federal court whose jurisdiction over the person or the offense was challenged, [7] where the trial or sentence by a federal court violated specific constitutional guaranties. ”

“ It is plain, therefore, that the trial courts erred in denying Sunal and Kulick the defense which they tendered. Shortly after the Estep and Smith cases were decided, petitions for writs of habeas corpus were filed on behalf of Sunal and Kulick. In each case it was held that habeas corpus was an available remedy. In Sunal's case the Circuit Court of Appeals for the Fourth Circuit held that there was a basis in fact for the classification and affirmed a judgment discharging the writ. ”

“ And so limitation in assertion gives way to the necess ity for achieving the writ's historic purpose when the two collide. Admirable as may be the effort toward system, this last resort for human liberty cannot yield when the choice is between tolerating its wrongful deprivation and maintaining the systematist's art.
The writ should be available whenever there clearly has been a fundamental miscarriage of justice for which no other adequate remedy is presently available. ”

“ Yet the latter rule is not an absolute one; and the situations in which habeas corpus has done service for an appeal re the exc eptions. Thus where the jurisdiction of the federal court which tried the case is challenged or where the constitutionality of the federal statute under which conviction was had is attacked habeas corpus is increasingly denied in case an appellate procedure was available for correction of the error. [12] Yet, on the other hand, where the error was flagrant and there was no other remedy available for its correction, relief by habeas corpus has sometimes been granted. ”

“ Beside executing its great object, which is the preservation of personal liberty and assurance against its wrongful deprivation, considerations of economy of judicial time and procedures, important as they undoubtedly are, become comparatively insignificant. ”

“ Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 966, 86 L.Ed. 1302, although a prior refusal to discharge the prisoner on a like application may be given weight. Salinger v. Loisel, 265 U.S. 224, 231, 44 S.Ct. 519, 521, 68 L.Ed. 989, for obvious reasons of judicial administration.↑ In the following cases the Court either passed upon the substance of the contentions presented in the petition for writ of habeas corpus or held that the petitioner was entitled to a hearing, although, so far as appears, at the time the petition was filed the time to appeal had expired, e.g., Bowen v. ”

“ United States, supra, was one where the administrative remedies had not been exhausted, there being an additional examination which the registrant had not taken. See Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301.↑ See note 2, supra.↑ Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; In re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274; Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848. Matter of Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 84; Baender v. ”