Sunday, January 28, 2007


Mr. Toth of Toth v. Quarles fame, since we've been on the subject of meaningful relief from the Supreme Court.


John O'Connor said...

Has anyone ever seen reporting on the merits of the murder charge against Toth? I haven't, and wondered whether he had a bona fide defense on the merits. My assumption is that he probably didn't have much of a defense on the merits to the charge, if for no other reason than I suspect I would have seen mention of a substantial merits defense soemwhere in the literature if one existed. There is also no hint of a merits defense in the Toth decision itself and, while not required for the Court's analysis, I would have expected reference to a substantial defense as atmospherics if one existed.

The reason I ask is that, if Toth really had no merits defense, it strikes me as not a happy day when a murderer gets away with it because he falls into a jurisdictional crack, regardless of whether the Court's decision was right or not. It would give a whole new perspective to the grin on Toth's face in the picture.

Marcus Fulton said...

I ripped the following from what appears to be an archived online Time Magazine article:

"The case began at an Air Force bomb dump in Taegu in September 1952. One night. Toth was on duty as sergeant of the guard. As he told the story later: "A gook who was drunk came into the area. The guard was on duty with a dog, and he hollered twice to the gook to halt, and when the gook didn't stop, he tried to get the dog to stop him, [but] the dog wouldn't attack. Then the guard fired two shots. These shots woke me, and I went to the area in a Government jeep ... I tried to get the dog to attack the gook, and the dog wouldn't attack. The guard and I, together, put the gook in the jeep. After we got the gook in the jeep, the gook, who was in the back, went for my pistol. I knocked hell out of him with the back of my hand, hit him behind the ear. I took the gook to the office and reported to the officer of the guard. I told the officer what had happened, and he said take him out and shoot him."

The unfortunate "gook." a South Korean civilian named Bang Soon Kil, was taken to a secluded revetment, where the guard killed him with a single shot. "I didn't want anything to do with it," Toth claimed, "so I got the hell out of there. When I was back at the guardhouse. I heard a shot, got into the jeep and went back to the bomb dump. When I got there, I saw the gook lying on the ground."

Last week an Air Force court-martial in Korea sentenced the officer of the guard, Lieut. George Schreiber, 25, to life imprisonment. At the same time, the life sentence of Airman Thomas L. Kinder, 21, the guard who fired the fatal shot, was reduced to two years. No one questioned the sentences, or the military's right to try Kinder and Schreiber. who are still in the Air Force. But the case of Bob Toth, a civilian, is a different matter."

John O'Connor said...

Thanks. I had never seen anything about the facts of the case. If that rendition is true (which is another issue all to itself) there would seem to be a possible defense that Toth never conspired to kill anybody. I wonder if the government agreed that these were the facts.

Nancy Truax said...

Actually, the facts are laid out in the cases of the others involved. See, United States v. Kinder, 14 C.M.R. 742 (A.F.B.R. 1954); United States v. Schrieber, 16 C.M.R. 639 (A.F.B.R. 1954) and United States v. Schreiber, 18 C.M.R. 226 (C.M.A. 1955). It appears that Schreiber ordered the killing, Kinder was the trigger man, and Toth may or may not have been present at the actual shooting (depending on whose story you believe).