Your rights are on trial; Civilian court trial

The following tape recorded program is distributed by the National Association of educational broadcasters. The facts cited stand and I don't think a child could ever be convicted of murder or any crime more serious than perhaps a simple assault. However my primary concern was not with the guilt or innocence but rather with the constitutional issue that was the actual voice of attorney William a keyhole Jr. who argued for the defendant in the case of the Korean killing the program in this series of authoritative discussions and authentic dramatizations of High Court cases in which your rights are on trial. Your rights are on trial as produced by the University of Minnesota radio station KUVO in under a grant from the Educational Television and Radio Center in Whopper aeration with the National Association of educational broadcasters. And the University of Minnesota

Law School. On today's program you will hear the actual voices and views of the attorneys who presented the case to the Supreme Court. But first to set the stage through authenticated case of the Korean killing. Here is one of the consultant commentators. All your rights are on trial associate professor of law at the University of Texas Mr. Charles Island right. The differences between military and a civilian court are very real. What are these differences. Do you have the right to trial in a civil court. Again the best way to answer general legal questions is through a specific test case. Our case today is called Toth versus quarrels. In it a young lady brings legal proceedings against the secretary of the Air Force. The case involves a charge of murder according to the official documents on this case. The crime occurred on or about September 27 1952 on a United States Air Force Base in Korea a noncommissioned officer and an airman were patrolling the

base in a jeep. Small object. It's not slow. Over there by the fence. Yeah. OK you're over here. Oh look you're on military property. No speak what's your name. Name no speak must be taken to the lieutenant let him decide on come on you. Come on come on aren't you. Lift him up on the gi oh yeah yeah. Come on come on out he's reaching for your gun. No you don't know me. It's so cold. You went for my gun did ya but alright alright that's it. Put him on the jeep. Well take him into the lieutenant. It never has been absolutely established probably never will be. As to what happened after the native Korean was picked up by the guard patrol that September night

1952 the Korean was taken to the officer in charge. A short while later the crème was found dead. He had been beaten and shot. This happened on or about September twenty seven thousand nine hundred fifty two. There was no immediate investigation. On December 8th one thousand fifty two Robert to be a tough one of the men who took part in the incident you have just heard dramatised was honorably discharged from the United States Air Force exactly four months later on April 8th 1953. An officer of the United States air forest Far East would just explores and oversees command saw in court martial charges under oath charging Robert W. Toth with the premeditated murder in Korea of a Korean national. And with conspiracy to commit murder all in violation of the Uniform Code of Military Justice. I was taught guilty of such charges or had the airman and the lieutenant involved placed all blame on TA since he was no longer there. The air force intended to find out and they felt they had the legal right to find out. On the

13th of May one thousand fifty three military personnel of the United States Air Force called at the home of Audrey M. Toth in Pittsburgh Pennsylvania is Robert Thomas here. We'd like to see him. Official business Bob just got home from work. You must be a sister Audrey. Am right. What do you want with Bob. Official business. Well he's not in the air force anymore. We'd appreciate it if you'd just call them in Miss toss. Well he's very tired when he gets home from work. He works in a steel plant. It's very hard. He always likes to wrestle What is it. We want to tell you from the first time that under Article 31 the Uniform Code of Military Justice you don't have to make any statement concerning the offenses being investigated. But if you do these statements can be used as evidence against you in a trial by court martial heart martial What's this all about. You've been charged with murder and conspiracy to murder and a death of a Korean national.

All right now you know you are very easy but this is so not you know what. I know what they're talking about. But that's all I intend to say. But something happened a few months before I was discharged. But it happened to me as a soldier. I'm a civilian now I have no wish to revive the incident. I'm not so sure you have any choice in the matter Toth. A few years ago Congress passed a Uniform Code of Military Justice. Article 3 A reads. Any person charged with having committed while in a status in which he was subject to this code an offense against this code punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof shall not be relieved from an ability to trial by courts martial by reason of the terminations of said status. That means we can take Utah take him take him where. Why. To stand trial in Korea. Cool.

Cool. Yes this happened on May 13 thousand nine hundred fifty three. That same day tof was taken to the air provost marshal's office at the Greater Pittsburgh airport. Again he was advised of his rights and told that he could call a civilian lawyer. Tom stated then that he did not desire to contact the lawyer but would wait and have defense counsel appointed for him in Korea. On that same day May 13th. Robert W. Toth was flown to the Andrews Air Force Base in Maryland two days later he was flown to the Travis Air Force Base in California. One more flight and Toth was in Korea on the 18th of Maddy. Within less than a week a civilian in Pittsburgh Pennsylvania was facing a court martial at an air base in Korea. Mr. McGrath you've got to get him back in this sort of thing can't happen. You're a lawyer. Yeah. Got to get him back. I wish Bob had called me while he was still in this country. It all happened so fast.

Rory is halfway around the world but there must be something you can do. Yeah there is. Are you willing to go after the secretary of the Air Force. What do you mean you have to file a petition in the district court against the head of the Air Force. We call it a writ of habeas corpus as a petitioner you will demand your brother's release on the grounds that his arrest and removal were in violation of the rules of criminal procedure and his constitutional rights of course. Hi do you want to know nothing. I just may have to fly to Korea. That's all the Air Force assist the departure of the graph. The Pittsburgh attorney or Korea. Same time legal proceedings were going on in the United States. I had District Court in the District of Columbia ordered Toth to be discharged from military custody on the ground that no provision had been made in the Uniform Code of Military Justice for the removal of the civilian for trial by court martial to a point distant from the place where he was arrested.

One appeal this judgment of the district court was reversed. The Court of Appeals held both the language and the legislative history of Article 3 of the uniform code revealed a congressional purpose to make persons discharged from military service amenable to trial by court martial for serious crimes committed while in service which could not be tried by a court of the United States. In effect that the statute is no more than a provision by Congress that an honorable discharge from military service shall not be an absolution for crimes therefore committed. The case then was twice heard by the Supreme Court of the United States. But before we discuss the decision of not court I would like to have our story told by a man who played an active part in the case of tough versus quarrels. He was a young lawyer by the name of William and a key her junior and he argued on behalf of Toth before the United States Supreme Court as recorded in his law office in Washington D.C. Mr. Tito we were brought into the case initially. As local counsel in the District of Columbia courts. The case had arisen

in Pittsburgh and top initially was represented by Pittsburgh counsel. After the. Attention of the Court of Appeals was rendered adverse to top favor of the government. We then took over the case for all the proceedings that ensued in the Supreme Court of the United States. Time had been charged by the F-4s with the commission of the. Time of murder. That was the allegation it was made against him. I think that if that was examined very carefully from the facts cited stand and I don't think could ever be convicted of murder or any crime more serious than perhaps a simple assault. However our primary concern was not with the guilt or innocence of top but rather with the constitutional issue which was involved which we felt was more than the guilt or innocence of one person. A top case involves basically

the right of Congress to enact a statute which would permit the military to court martial a civilian. In our view the purpose of a court martial is to maintain discipline in the ranks and Punishment should only be meted out by a court martial as an adjunct to the military necessity of maintaining discipline in the ranks. We have the basic constitutional guarantees that's guaranteed to everyone accused of the commission of a crime guaranteed to every citizen of this country. Those basic constitutional guarantees do not and nor to people who are being tried or prosecuted by court martial. For instance we have the right to trial by jury in the civil courts which we do not have in a court martial proceedings in a civil court you also have the right to a presentment or indictment by a

grand jury. This is not one of the guarantees of the Uniform Code of Military Justice in the civil courts you have the right to subpoena witnesses to assist you in your defense. Why that is not a guarantee of the Uniform Code of Military Justice in civilian courts you have the right to the selection of counsel of your own choosing and competent counsel. And there's a question about whether you have that guarantee under the Uniform Code. But the principal difference as I see it in my own opinion is the right to a jury trial. Again I must repeat it's sort of a phobia with me that I feel that the military tribunals are not tribunals for dispensing justice and not set up that way. And they can never ensure justice as we understand it in this country. If they're

used to maintain discipline in their ranks and kept within their own confines they serve a very useful purpose. Before we give you the final decision in this case it's only fair to hear from the other side. The case for the government in the first Toth hearing before the Supreme Court was presented by Marvin E. Frankel. Mr. Frankel is an assistant to the solicitor general of the United States as recorded in his office in the Department of Justice building in Washington D.C. by the producer of the series Philip Gellman. Here is the assistant to the solicitor general Mr. Marvin. He Frankl the investigation and indicated that he might have committed a murder while he was in the Air Force in Korea under Article 3 of the Uniform Code of Military Justice persons like toss. Congress had determined could be brought to trial by court martial. After his arrival in Korea his sister brought this action to contest the validity

of holding him and trying him by court martial. Where is the solicitor general and the Supreme Court under the picture. Well the solicitor general is an officer appointed by the president and friend by the Senate who under the attorney general is responsible for the federal government's business in the Supreme Court. He has other functions but this is his main and best known one. It was at the Supreme Court stage that the solicitor general and his staff as in all other cases and that it came into the picture he was responsible for the briefs presented to the and for the argument presented to the Koori he actually in that case presented oral argument on the real argument of the case. I had argued it originally it was heard twice by the coup it before the court reached its decision. The only

question before the Supreme Court were it was whether Congress had power to write a provision like Article 3 of the uniform code. Well of course the critical issue was the issue as to the power of Congress. A Congress has power under Article 1 Section 8 of the Constitution to make rules for the government the land and naval forces. It is that power basically which supplies the foundation for our system of courts martial and the basic question in the case. There are lots of issues which Boron it was whether that provision of the Constitution Article 1 Section 8 the provision allowing Congress to make rules for the government of the land and naval forces. The question was whether that provision was broad enough. To authorize the kind of provision for a trial by court martial that Congress had written into Article

3 of the Uniform Code of Military Justice. You've heard the views of both sides in this case as presented by Marvin E. Frankel and William a Quixote junior. The attorneys who argued the case before the United States Supreme Court. You have heard a dramatization of the case itself. You have heard several statements as to the fundamental issues involved. Does Congress have the right to pass a law that will make it possible for a civilian to be tried in a military court. Or do you as a civilian citizen have a basic right to be tried in civil court with all the constitutional rights guaranteed to you for such trial. Here is the final Supreme Court decision in the hearing of Audrey M. Toth petitioner versus Donald a quantiles secretary of the United States Air Force has decided on November 7th one thousand fifty five. Mr Justice Hugo Black wrote the majority Supreme Court opinion in this case given its natural meaning and the power granted Congress to make rules to regulate the land and naval forces would seem to restrict

court martial jurisdiction to persons who are actually members are part of the armed forces. There is a compelling reason for construing the clause this way and the expansion of court martial jurisdiction like that of the 1050 act necessarily encroaches on the jurisdiction of federal courts set up under Article 3 of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals. The Constitution and the amendments in the Bill of Rights show that the founders were not satisfied with leaving determination of guilt or innocence to judges even though wholly independent. They further provided that no person would be held to answer in those courts for capital or other infamous crimes unless on the presentment or indictment of a grand jury drawn from the body of the people. Other safeguards designed to protect defendants against oppressive governmental practices were included. One of these was considered so important to liberty of the

individual that it appears in two parts of the Constitution Article 3 Section 2 commands that the trial of all crimes except in cases of impeachment shall be by jury and the Sixth Amendment provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. This right of trial by jury ranks a very high in our catalogue of constitutional safeguards and there is a great difference between trial by jury and trial by selected members of the military forces. The 1950 act here considered deprives of jury trial and sweeps under military jurisdiction over three million persons who have become veterans since the act became effective. That number is bound to grow from year to year. And there are now more than three million men and women in

uniform. These figures point up what would be the enormous scope of the holding that Congress could subject every ex servicemen and women in the land to trial by court martial for any alleged offense committed while he or she had been a member of the armed forces. Every veteran discharged since passage of the 1050 act is subject to military trial for any offense punishable by as much as five years imprisonment unless the offense is not punishable in a civilian court. Hen One need only glance at the military code to see what a vast number and variety of offenses are that's brought under military jurisdiction. Included within these are crimes such as murder conspiracy. Absence without leave contempt toward officials disrespect towards a period or officers willful long neglect the loss damage or destruction of government property making false official statements doing breach of the peace forgery fraud to Sault many others. There can be no valid argument that civilian ex-servicemen must be tried by court martial or not tried at

all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts. None of the other reasons suggested by the government are sufficient to justify a broad construction of the constitutional grant of power to Congress to regulate the armed forces. It is impossible to think that the discipline of the army is going to be disrupted its morale impaired or its orderly process is disturbed by getting ex-servicemen the benefit of a civilian court trial when they are actually said valiant. And we are not impressed by the fact that some other countries which do not have our Bill of Rights indulge in the practice of subjecting civilians who were once soldiers to trials by courts martial instead of trial by civilian courts. There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article 3 of our Constitution. Clark Marshall jurisdictions sprang from

the belief that within the military ranks there is need for a prompt ready at hand means of compelling opinions in order. But army discipline will not be improved by court martialing rather than trying by jury. Some civilian ex soldier who has been home early is separated from the service for months years or perhaps decades. Consequently considerations of discipline provide no excuse for a new expansion of court martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury. We hold that Congress cannot subject civilians like path to trial by court martial. They like other civilians are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article 3 of the Constitution. This was the final decision by the United States Supreme Court in the tough case. Here are

some interesting sidelights producer Phil Galba choir and transcribing are guest attorneys and today's case both William Keogh and Marvin Frankel are comparatively young attorneys. They were asked what it is like to appear before the United States Supreme Court. Mr. Frankel replied It's a very challenging and exciting experience to present a case to the Supreme Court that it's a severe test that one never feels one has completely passed. There are nine. And inquisitive justices who are interested not in the prettiness or the aesthetic values of your performance but interested in maintaining your legs and doing your appearance before them. My questions are sharp frequently unkind always probing always challenging. It's as I

say exciting and rewarding to have the privilege of appearing before them. What is it like to win a case before the Supreme Court. Mr. William Jr. was not a lot of satisfaction in winning any lawsuit by this in the Supreme Court or any other type of court. However I felt it to be an honor to argue this type of proposition a constitutional case in the Supreme Court. And I must say that for a young attorney that I can only compliment thank the court for the manner in which they treated me when I was there. And now once again for a summary of today's case here is your commentator Charles Allen right. Robert Taaffe will never be tried on this charge of murder of a Korean civilian. Although just Black said in the opinion that we've heard that Congress could set up a federal district court a civilian court here in the United States to try crimes committed by servicemen while

they were in service overseas. In fact Congress had not set up such a court at the time that this Korean was killed. And it's too late now to do it. One of the principles of our law is that you can't set up a new device for punishing crime after the crime has been committed. The military can't try Toth that was the holding case we've heard. And Korea can't try Toth because he was a serviceman of our country at the time that the crime was supposed to have happened. Dustoff goes for it. But the important question in this case is what happens to people in the future. The case that we've had differs from most of the cases we're covering in this series. And I think all of the other cases our question has been what the particular words of the Constitution mean with regard to some particular person who has been tried for a crime. Is the amount of bail that was asked of an excessive. Has a confession been coerced from him. Questions of this are nice questions of

degree but here Toth wasn't claiming that his trial was unfair. In fact he was never tried at all and his contention was that he could never be tried at all. In order to win as he did. Toth had to persuade the court to hold that the act of Congress itself which provided for him to be tried by a court martial is contrary to the Constitution. In the summer of 1955 a few months before the Toft case was decided Professor Frederick Dahl of the L Law School wrote a history of the Supreme Court. Very interesting book entitled nine men in which he said that only three times in the whole history of this country has the Supreme Court held an act of Congress unconstitutional on civil liberties grounds. The tough case is the fourth such case. And yet even though this important path making decision didn't hold the act of Congress unconstitutional and establish a broad principle that we are entitled to

be tried in civilian courts where this is possible. It didn't answer every question nor did it mean that this area of the law is not a question of degree as are other problems have been. This is very dramatically illustrated in May of one thousand fifty six when Marvin Frankel the young attorney who lost the Toth case won two other cases before the Supreme Court which involved a quite similar question in each case a woman who had been overseas married to a member of the armed forces was accused of having murdered her husband while overseas. In each case the woman had been tried by a court martial and found guilty after the Toth case. These two women contended that it was unconstitutional to have tried them before a court martial. They too had the right to be tried by a civilian court but the Supreme Court by a vote which seems to be five to four rejected this argument. It said that it is one thing to say that civilian toff who has severed all connection with the armed forces has a right to a civil trial but that a person who is a

part of the military establishment a dependent of a soldier overseas has no such right. Even this doesn't solve all the questions that could arise. Suppose that the wife of a serviceman returns to the United States and after she comes back she's accused of having committed a crime when she was overseas does she have a right to a civil trial or can she be taken back and tried by a court martial. No one knows until this particular problem is passed on by the courts here as in all areas of civil liberty. Your rights are decided on a case to case basis by the courts of the land as they interpret the Constitution. You have just heard the case of the Korean killing. The aid program in this series. Your right to run trial produced by station KUNM in cooperation with the University of Minnesota Law School under a grant

from the Educational Television and Radio Center. The program is distributed by the National Association of educational broadcasters. Do you have the right to face your accusers. This question will be answered next week in the case of Dr. Peters loyalty another authoritative discussion on authentic traumatization of a Supreme Court case in which your life's on trial. This is the end E.B. Radio Network.