Civil Trials for Civilians

In Sept. 1952, Robert W. Toth, while serving as sergeant of the guard at a U.S. Air Force bomb dump in Taegu, Korea, was involved in the killing of a South Korean civilian named Bang Soon Kil. But before murder charges were brought against him, Toth was honorably discharged from the Air Force and went to work in a Pittsburgh steel mill. Five months later Civilian Toth was taken into custody by air police to stand court-martial for the murder. Toth's arrest brought on an important and far-reaching struggle between the civil and military systems of justice. Last week the U.S.

Supreme Court firmly decided against the military.

The legal fight centered on Article 3 (a) of the 1950 Uniform Code of Military Justice, which says that former service men who committed major crimes while in the armed forces "shall not be relieved from amenability to trial by courts-martial" by reason of their civilian status.

In its 6-to-3 (Justices Reed, Burton and Minton dissenting) decision last week, the Supreme Court held Article 3 (a) unconstitutional.

Enormous Scope. The majority opinion, written by Justice Hugo Black, noted that the authors of the U.S. Constitution had set up a number of "safeguards designed to protect defendants against oppressive governmental practices." One of these, the right to trial by jury, was considered so important that it was required both by the U.S. Constitution, as originally adopted, and repeated in the Bill of Rights. On the other hand, said the Supreme Court, military jurisdiction grew out of the belief that "within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order." Conceding to "military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such a way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts . . . From the very na ture of things, courts have more inde pendence in passing on the life and liberty of people than do military tribunals." Article 3 (a), the court continued, "deprives of jury trial and sweeps under military jurisdiction over 3,000,000 persons who have become veterans since the act became effective. That number is bound to grow from year to year; there are now more than 3,000,000 men and women in uniform. These figures point up what would be the enormous scope of a holding that Congress could subject every ex-serviceman and woman in the land to trial by court-martial."

Suggested Remedy. Recognizing that Robert Toth will probably never have to stand trial for the Korean murder, the Supreme Court suggested that future repetitions of such cases could be avoided if Congress were to confer upon the federal courts the right to try ex-servicemen for violations of the military code. Said the court: "There can be no valid argument, therefore, 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 . . . Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades . . . We hold that Congress cannot subject civilians like Toth to trial by court-martial."

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