The Cases of the Murdering Wives

(This is research for a law school paper – not my family line)

Clarice Covert and Dorothy Krueger were both tried and convicted by courts-martial of murdering their military husbands on foreign soil.  Clarice’s court-martial was in England; Dorothy’s was in Japan.  They were both sentenced to life at hard labor at Alderson Federal Reformatory for Women in West Virginia.  Dorothy’s court-martial was in late 1952 and Clarice’s was in early 1953.  Previous blog posts have covered the details of these trials.  Much of what follows comes directly from my daughter’s paper, leaving out the details she does not want revealed until her paper is published, and in an abbreviated form.

The events that occurred after the convictions are of primary interest in these cases.   Robert W. Toth, along with an accomplice, Thomas L. Kinder, brutally murdered a Korean man while serving as a security guard in Korea.  Kinder was tried and convicted by court martial, but by the time the crime was discovered, Toth had taken an honorable discharge and was back in the United States.  Toth was apprehended and returned to Korea, where he was tried by court martial under Article 3(a), which granted military jurisdiction over former service members who had committed crimes before their discharge.  After his conviction, Toth’s sister filed a habeas petition on his behalf. The D.C. Circuit upheld the constitutionality of Article 3(a) on the grounds that a person is generally subject to trial in the jurisdiction where the offense was committed, but when Toth’s sister appealed to the Supreme Court, they reversed 6-3. Justice Black wrote the opinion for the Court, holding that Congress’s Article I, section 8 power to “Make Rules for the Government and Regulation of the land and naval Forces” only allowed for court martial jurisdiction over individuals who were actually in the land and naval forces at the time of trial. Civilians were not in the land and naval forces, thus, Article 3(a)’s grant of jurisdiction over former service members was invalid.

Just ten days after the Toth decision, Clarice filed a habeas petition in the federal district court for the District of Columbia. Judge Edward Tamm granted her petition.  Feeling encouraged by this ruling, General Krueger, Dorothy Smith’s father, filed an identical petition in the federal district court for the Southern District of West Virginia.   Chief Judge Ben Moore rejected the habeas petition.

Both cases were appealed to the Supreme Court—the government filed a direct appeal of Judge Tamm’s ruling, while General Krueger appealed Judge Moore’s denial of habeas relief to the Fourth Circuit.  Nina Kinsella, Alderson’s warden, brought the case to the Supreme Court before the Fourth Circuit could weigh in.   Frederick Bernays Wiener was by this point representing both women and cooperated with the government in expediting the cases so that they could be heard together at the Court’s upcoming October term.

The Court’s conference notes from May 4, 1956 indicate that the judges tentatively intended to come out for the wives.  Chief Justice Warren, Black, Reid, Frankfurter, and Douglas all registered tentative votes for the wives; Burton, Minton, and Harlan intended to vote for the Government; Clark passed. However, in the days following the conference, opinion on the Court began to shift.  On May 14, Justice Reed circulated a memorandum explaining that he had become convinced that his tentative votes in favor of the wives had been in error.  He had concluded that the “long history of the jurisdiction of consular courts” over United States citizens abroad demonstrated that, while citizens were entitled due process, what process was due—what manner of trial, in other words—was not controlled by the Constitution.  With Justice Reed’s switch, the outcome of the case was then settled—the Court voted against the wives 5-4, upholding the military’s exercise of jurisdiction over Clarice and Dorothy.

Chief Justice Warren, joined by Black and Douglas, worried that “[t]he military is given new powers not hitherto thought consistent with our scheme of government,” but stated that they needed more time to prepare their dissents and would submit them at the next term. Instead of joining in the dissent, Justice Frankfurter published a sharply worded reservation, noting that the majority’s refusal to examine the scope of Congress’s power under Article I to make rules regulating the armed forces—“ The plain inference from this is that the Court is not prepared to support the constitutional basis upon which the Covert and Smith courts-martial were instituted and the convictions were secured.” Explaining that “[w]isdom, like good wine, needs maturing”—in other words, that more time was needed for adequate reflection—he reserved his vote.

The Grant of Petition for Rehearing

Rule 58 of the Court requires that rehearing petitions only be granted if a justice who voted with the majority changes his mind or begins to doubt his original vote, accepts the petition, and convinces a majority of the Court to rehear the case.  Wiener focused his argument for rehearing on four issues: (1) military considerations clearly underlay all of the decisions to uphold the court martial proceedings, so the scope of Congress’s rule-making authority for the armed forces was by necessity at issue; (2) the legislative history indicates that Congress never considered the constitutionality of Article 2(a)(11) at the time it was adopted and never considered Ross during any of the legislative hearings;  (3) that there had been no mention of any source of constitutional power by which Congress could strip two citizens of their protections under the Bill of Rights; and finally, (4) Article 2(a)(11) asserted a jurisdiction limited to instances ‘without the continental limits of the United States,’ whereas Clarice was now back within those limits, so Article 2(a)(11) was inapplicable.  The last part of the petition, however, might have carried the most weight with the Justices—he raised the issue of the Court’s adjudicatory procedure in the two cases: the oral argument took place on an accelerated schedule which “cut nearly in half” the time for briefs under the rules; the argument was the last of the day on the last day of the term and stretched well past the time for adjournment; and the opinions were announced before the three dissenters had time to articulate their views, or Justice Frankfurter to make a decision at all.

He decided to aim his argument at Justice John Marshall Harlan II.   Justice Harlan was, very plainly, the swing-man.  In targeting Justice Harlan, Wiener focused on the fact that the accelerated argument schedule hurt the consideration of his case.   Wiener’s decision to target Justice Harlan was a productive one.  Justice Frankfurter appeared to also believe that Justice Harlan was the key to a rehearing—just after the petition came in, he determined that the judges had never considered Wiener’s point (4), and solicited the views of one of Justice Harlan’s clerks.  The clerk, Wayne G. Barnett, wrote in a memorandum to Justice Harlan that he had a “distinctly dissatisfied” feeling about the action taken, and believed that the issues were “deserving of a more deliberate consideration than could be given them at the close of the term.”  Another clerk, Paul M. Bator, wrote a lengthy memo analyzing the petition for rehearing, concluding that, contrary to Justice Clark’s majority opinion, the case had to rest on some specific power given to Congress, not on a “mere combination” of “no prohibition” plus “reasonableness.”  He also thought that there should be a rehearing, that in difficult cases “account ought to be taken” of the view of every member of the Court, “especially one so prominent in Constitutional law as Justice Frankfurter.”

On September 5th, Justice Harlan circulated a memorandum to Justices Reed, Burton, Clark, and Minton, where he explained that he intended, “as presently advised” to vote for rehearing.

In October, the Court granted the petition—in its grant, the Court focused the parties on four issues: (1) the specific practical necessities justifying court martial of civilians, and any practical alternatives; (2) historical evidence bearing on the scope of the Article I, section 8, clause 14 rule-making power and whether that power was understood to be narrow or broad; (3) any relevant differences between court martial of dependents and that of employees; and (4) the relevance of distinctions between petty crimes and major offenses.

This time, both sides had plenty of time to submit briefs and prepare for argument, which was set for February 1957.  The Government submitted a supplemental brief that focused on four arguments in turn—that court-martial jurisdiction over civilians accompanying the armed forces abroad was of practical necessity as a matter of international relations and to accomplish the military mission; that there were no practical alternatives; that the scope of the rule-making power, when read in conjunction with the Necessary and Proper clause, was broad and susceptible to expansion under changing circumstances; and that the constitutional distinction between major crimes and petty offenses was not a relevant distinction for purposes of court-martial jurisdiction over civilians abroad.

The oral argument took place on February 27, 1957.  At this point, several personnel changes had occurred—Justices Reed and Minton had retired, replaced by Justices Brennan and Whittaker.  As Justice Whittaker had not yet taken his seat, the argument occurred before eight Justices.

The Justices’ conference notes showed a solid majority in favor of the wives—Chief Justice Warren, Black, Brennan, Frankfurter, and Douglas all voted to reverse both convictions, while Justices Burton, Clark, and Harlan voted to affirm—and in time, Justice Harlan was prevailed upon to change his vote.  What was up in the air, however, was the scope of the majority opinion, which Chief Justice Warren assigned to Justice Black.

Justice Black’s plurality opinion, joined by Chief Justice Warren, and Justices Douglas and Brennan, opened by acknowledging that “[t]hese cases raise basic constitutional issues of the utmost concern,” and rejected from the outset the idea that the U.S. government could act against its own citizens abroad in a manner “free of the Bill of Rights.” This point was made in the most definitive terms possible—“The United States,” Black wrote, “is entirely a creature of the Constitution.” The rights and liberties of U.S. citizens were “jealously preserved from encroachments” by the express terms of the Constitution itself—because the right to a jury trial was a fundamental right, it could not be rendered “inoperative” when it became inconvenient. This, Black wrote, would destroy the benefit of a written Constitution and undermine the basis of our government.

Black then swept aside the two key pillars of the Government’s argument—that Ross should control, and that Article 2(a)(11) could be upheld as legislation necessary and proper to carry out the United States’ international obligations.  First, Black rejected the rationale underpinning Ross, calling it a “relic from a different era,” and then turned to whether an international agreement could give the U.S. government power, which was not constrained by the Constitution. In emphatic language, Black held that it could not—quoting from the Article VI Supremacy Clause, Black wrote that nothing in the text of the Constitution or in its legislative history suggested that treaties and other international agreements did not have to comply with the Constitution. He wrote, “We have always held that the Constitution supersedes treaties.”

All of this was prologue to the meat of the opinion—having concluded that the Constitution “in its entirety” applied to the wives’ trials, Black then turned to the question of whether anything within the Constitution gave the government the power to authorize courts-martial of dependents overseas.  The answer, unsurprisingly, was no—the rule-making power granted to Congress under Article 1, section 8, clause 14 only gave Congress power over members of the “land and naval forces.”  The wives were not such members, so clause 14 was inapplicable.  As to the Government’s argument that the Necessary and Proper clause combined with clause 14 to constitute “a broad grant of power,” Black scathingly dismissed it.

He further wrote, “We should not break faith with this nation’s tradition of keep military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution…. And under our Constitution courts of law alone are given power to try civilians for their offenses against the United States.”

The second hearing of Reid v. Covert and Kinsella v. Kreuger found 6-2 for the wives.  Clarice Covert’s and Dorothy K. Smith’s convictions were overturned and both were free women.  The angry dissent of Justice Clark is interesting to read and the public view of this decision was mixed.  Clark’s dissent, like Frankfurter’s concurrence, foreshadowed the “sequels” to Reid which would come before the Court in 1960, and in many ways also foreshadowed the current and continuing controversy over whether civilians may be subjected to military justice not in times of peace, but in times of not-quite-war.

Reid v. Covert, (combined with Kinsella V. Krueger) is a landmark case in which the United States Supreme Court ruled that the Constitution supersedes international treaties ratified by the United States Senate. According to the decision, “this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,” although the case itself was with regard to an executive agreement, not a “treaty” in the U.S. legal sense, and the agreement itself has never been ruled unconstitutional.

The major precedents set by these combined cases, generally referred to as Reid, underline the fact that the Constitution follows American citizens where-ever they are and that the right to a trial made up of a jury of the citizen’s peers is a basic and undeniable tenet of our Constitution.


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