The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial

• Author: Brittany Warren
• Position: Captain, U.S. Army. J.D., 2012, The George Washington University Law School; B.S., 2004, Duke University
• Pages: 133-193

2012] CIVILIANS AND COURTS-MARTIAL 133

THE CASE OF THE MURDERING WIVES:

REID V. COVERT AND THE COMPLICATED QUESTION OF

CIVILIANS AND COURTS-MARTIAL

CAPTAIN BRITTANY WARREN*

I. Introduction

In 1957, in a case known colloquially around chambers as “The Case

of the Murdering Wives,” the Supreme Court reversed itself. In Reid v.

Covert (Reid II), it withdrew its barely one-year-old decision upholding

the courts-martial of two military spouses, and instead held that for

capital offenses in times of peace, the provisions of the Uniform Code of

Military Justice (UCMJ) granting court-martial jurisdiction over persons

accompanying the force could not be constitutionally applied to civilian

dependents of overseas armed forces servicemembers.1 For the first and

only time, after already publishing its opinion, the Supreme Court

reached a different result in identical litigation, following published

opinions, and without a controlling change in the composition of the

Court.2

Reid II is traditionally known for two things. To military lawyers,

the case stands for the proposition that dependents may not be subject to

trial by court-martial, because the Fifth Amendment’s loophole for

military jurisdiction (“except in cases arising in the land and naval

forces”) cannot override the rights to a jury trial embodied in the Fifth

and Sixth Amendments.3 To international law aficionados, Reid II is the

* Captain, U.S. Army. J.D., 2012, The George Washington University Law School; B.S.,

2004, Duke University. The opinions and conclusions represented in this article are

solely those of the author and do not necessarily represent the views of the Department of

Defense, the Department of the Army, the Judge Advocate General’s Corps, or any

governmental agency. I am profoundly grateful to Professor Gregory Maggs, Dean Lisa

Schenck, and Colonel Denise Lind for helpful guidance in writing this article, as well as

the staff of the Military Law Review for outstanding editing. No one is an island, least of

all a lawyer, so my deepest appreciation goes to my husband, Lloyd, and to my children,

Sophia and Sam, for their unwavering love and support. Material from the papers of

Justice John Marshall Harlan II is quoted with the permission of the Seeley G. Mudd

Manuscript Library, 20th Century Public Policy Papers. Material from the papers of

Justice Hugo Black is quoted with the permission of Hugo L. Black, Jr.

1 Reid v. Covert, 354 U.S. 1 (1957).

2 Frederick Bernays Wiener, Persuading the Court to Reverse Itself, 14 LITIG. 6, 10

(1989). Wiener’s excellent account of the case and its rehearing is referenced liberally in

this article.

3 See infra notes 308–309 and accompanying text.

134 MILITARY LAW REVIEW [Vol. 212

landmark case wherein the Supreme Court ruled that the Constitution

supersedes international treaties ratified by the United States.4 From a

vantage point nearly sixty years later, neither of those propositions

strikes a modern reader as extreme. At the time, however, Reid II was

incredibly controversial—before the Court,5 among the Justices

themselves,6 and in the public’s reaction to the Court’s seemingly abrupt

about-face.7

The story of Reid II is the story of the “murdering wives” at the

center of the controversy, Clarice B. Covert and Dorothy Krueger Smith.

They are in many ways unsympathetic figures. There is no doubt that

these women, in exceptionally violent ways, murdered their husbands,

but what is missing from that narrative is the fact that they were also two

mothers who were let down by the very military health system from

which they sought help.8 The story of Reid II is also the story of

Frederick Bernays Weiner, the retired Army lawyer who argued the case

at all levels of the appeal, and his legal strategy that illustrated his

vociferous belief that the civilian and military justice system must remain

separate from one another.9 Finally, the story of Reid II is the story of

the Court itself: Justice Hugo Black, who distrusted what he saw as the

encroachment of military power into civilian justice; Justice John

Marshall Harlan II, who cast his vote one way, and then another; and

Justice Felix Frankfurter, who initially refused to decide, and then finally

did.10

This case, and its two decisions, sits at the intersection between

Constitutional law, military law, and international law, and impacts

fundamental questions about the scope of the Constitution, executive and

legislative powers, and U.S. sovereignty. Can civilians be tried in

military courts? After Reid II, many people would say that the answer is

no, but like the women themselves, that answer is ultimately far more

complicated.

4 See infra notes 304–307 and accompanying text.

5 See infra Parts IV.–VI.

6 See infra Part VII.A.

7 See infra Part VIII.A.

8 See infra Part III.

9 See infra Part IV.A.

10 See infra Parts IV.–VI.

2012] CIVILIANS AND COURTS-MARTIAL 135

II. Civilians Under Military Justice

For all its complexities, the issue of civilians in military courts was

not a novel one at the time of Reid II. Neither was it new to the Founders

when they were confronted with this issue back in 1787. Whether

civilians are ever amenable to court-martial jurisdiction is a question

almost as old as the concept of the court-martial itself—thus,

understanding the contours of the problem requires a brief detour into

legal and constitutional history.

A. The British Practice Before the Revolution

Tracing the origins of military jurisdiction over civilians begins with

an analysis of British practice following the passing of the first Mutiny

Act of 1689, which both legalized a standing army and brought it under

the control of Parliament.11 As tempting as it might be to think of the

rise of the civilian contractor as a uniquely twenty-first century

phenomenon, civilians were a common feature on the battlefield even

then. At that time, three classes of civilians typically accompanied a

British army during times of war: retainers, which included servants,

volunteers, and women and children; sutlers, who sold provisions like

tobacco and coffee to armies in the field;12 and civil officers and civilian

employees of the military.13 Each of these groups was subjected to

court-martial at various times,14 though the power of the British Crown

to court-martial these various groups tended to be construed narrowly,

both under the provisions of the Mutiny Act and the later Articles of

War.15

11 Courts-martial had existed before 1689, but they had traditionally been conducted by

clergymen and members of the Doctors’ Commons. It was not until the passage of the

first Mutiny Act in 1689 that the peacetime courts-martial of soldiers was allowed.

FREDERICK WIENER, CIVILIANS UNDER MILITARY JUSTICE 6, 165–66 (1967).

12 DAVID MICHAEL DELO, PEDDLERS AND POST TRADERS: THE ARMY SUTLER ON THE

FRONTIER 75 (1998).

13 WIENER, supra note 11, at 7.

14 Records from the 1691 Irish campaign, for example, indicate that a sutler was

condemned for buying stolen goods, and a woman was condemned for inciting soldiers to

desert. Id. at 12 n.37.

15 The first Articles of War, for example, only granted court-martial jurisdiction for a

narrow class of offenses; Articles of War 16 required that military personnel accused of

crimes punishable “by the known laws of the land” be tried before a civilian magistrate.

Id. at 13–14.