The Charlotte News

Wednesday, August 5, 1942

FOUR EDITORIALS

Site Ed. Note: The front page details more of the circus fire in Cleveland, near the present-day site of the Rock 'n' Roll Hall of Fame. The caption of the picture leaves much to be desired in its wording. One does not shoot a giraffe to "ease" its pain. One, we assume, shoots the giraffe to kill the giraffe to end its pain.

The reports did not say on the front pages during the previous five years of war in one part of the world or another that, for instance, the Japanese soldier shot a Chinese infrantryman to ease his pain.

So, any suggestion that they were softening the reportage for the feelings of the children probably ought result in whoever wrote that silly caption being taken out and shot to ease their pain.

Whether Ringling Brothers then went on from Cleveland to Acapulco, we don't know. We weren't there.

But in the sixties, we were there. Not in Cleveland, though once in Cincinnati. We have been to Cleveland though. We saw Bob Dylan there in 1999. And, as we have said before, based on prior unplanned spacing, we shall probably catch him again about mid-2011. Gee, that's only two years away. Better get our tickets.

We hope there's a giraffe there.

We've been to Acapulco, too; almost drowned there in the ocean. That was awhile ago, 1973.

Further report from India indicates that Gandhi and the All-India National Congress were clinging to the position that India must be given its present freedom from the British Empire in order to give its pledge for full support of the Allies in the war effort. Gandhi had called for civil disobedience to British authority, were the demand not granted.

Another resolution pledged armed resistance against Japanese aggression to India, but it was unclear whether this resolution was presented by the full Congress or merely a part of it in opposition to the proposal for support of the Allies in exchange for freedom.

Candidly, the whole affair smacks of a bit of blackmail on the part of the All-India Congress even if at stake was the freedom of India from the economic yoke of the British Empire. After all, at stake was the entire fate of the world and to risk it on the fate of India was more than a little self-centered and provincial. The struggle for India's sovereignty and freedom from all empire interests was laudable and ultimately successful after the war. But the timing of the demands, in this instance, in the midst of this pervasive war between the forces of democracy and the forces of plain tyranny, was wrong.

Nevertheless, the ensuing jailing of Gandhi for his leading civil disobedience was an even greater wrong by the British.

Yet, it is certainly easy enough to judge the whole matter from the perspective of 67 years when one did not have to live in India during the reign of the British Empire. So, we only offer our two cents for thought, not for judgment.

Burke Davis offers a by-lined piece on the editorial page criticizing Charlotte's recalcitrance in the scrap steel collection effort, as men died in the Pacific daily for want of tanks and guns and ships to be made from that steel, something in increasing shortage as Raymond Clapper details in his first piece after returning from vacation, something Mr. Clapper relates as quite crucial in light of the perilous and determinative set of circumstances then facing Russia, as the breath of the world, he suggests, ought have been held in restless anticipation of the verdict of that year-old battle for Caucasus oil.

At issue in Charlotte were the old street car tracks buried beneath the streets of the city. Other towns and cities in the state had willingly assented to the government's offer to dig them up; Charlotte had balked, demanding a nine-foot wide strip down the street be dug for the purpose, and that the effort only encompass first one-third, then two-thirds of the tracks. The government refused, demanding an all or nothing proposition.

The matter had thus stalled as men died for want of the 108 tanks or an equivalent portion of other armament Charlotte's old tracks might provide.

Charlotte was being quite as self-centered as India in time of war, even more so, as at stake was only a minor inconvenience to the city for a few weeks, not its very sovereignty.

Meanwhile, the 6th Avenue El Train from New York City was about to be fired again by the Japanese to whom it was sold, aimed at American soldiers and sailors preparing the first concentrated Allied offensive of the Pacific war, set to begin Friday on Tulagi and Guadalcanal.

Paul Mallon discusses the criticism of Colonel Kenneth Royall of Raleigh and his spurious defense of the eight saboteurs founded on the claim that they were fleeing Nazi Germany when landing by U-boat in Florida and on Long Island, bringing with them detonators, timers and explosives, leaving their uniforms behind and donning civilian clothes to enable them to blend successfully with the civilian populace. Mr. Mallon focuses on criticism of Colonel Royall's bringing the case before the Supreme Court on the issue of whether the eight could be tried in the civilian courts. He comments that Attorney General Biddle, however, appeared pleased to be able to make the argument before the Supreme Court, perhaps had even encouraged defense counsel to seek certiorari, so that he could argue that the long-standing precedent of Ex Parte Milligan, a Civil War case arising in 1863, ought be overruled to permit even other behavior besides spying and sabotage to be tried during wartime in the military courts.

In its formal opinion issued in October, the unanimous Court did not reach that latter argument, expressly bypassing it, ruling only that Milligan was inapposite for its not involving violations of "the laws of war", not involving an unlawful belligerent, a soldier not in uniform caught intending to spy and commit sabotage, as did the case at issue. Milligan involved a "non-belligerent" resident of Indiana, a civilian, not a soldier of either the Union or Confederate armies, planning to enable the escape of Confederates and then aid them in attacking Federal arsenals, in the nature of treason, requiring constitutionally that it be tried in civilian courts.

Relative to the issue, the Court stated:

"We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform--an offense against the law of war."

Incidentally, the front page informs of the probable reason that Justice Murphy took no part in that case. He was on military maneuvers in North Carolina when the extraordinary session was called the previous week to hear the two days of oral argument on Wednesday and Thursday, and decide it on Friday.

Such were the extraordinary times. Imagine a Supreme Court justice on military maneuvers; imagine Senators and Congressmen fighting in a war. So pervasive was this war that it affected everyone in all walks life and in every age group, whether they were directly participating in the military or not. It was a true national effort carried forth patriotically by virtually the whole country, with only a few notable exceptions indicted for acts of sedition, the likes of William Dudley Pelley or Father Coughlin, Elizabeth Dilling or Rev. Winrod, for instance.

While there was no national unity, as there never truly has been, even on this war in this treacherous hour, in terms of how the war was being fought, there was by this point in time virtual national unity on the fact that it had to fought for the preservation of democracy and freedom anywhere. Even the formerly most bitter isolationists, both in Congress and the public at large, were now supportive of that fact.

The times were extraordinary.

We comment a little further on our own opinion with regard to Colonel Royall's wayward defense strategy. We do not mean to suggest that Colonel Royall should have entered a plea for his clients against their will; that would have been unethical and unconstitutional, as pleas of guilty must be entered only knowingly and voluntarily by the client. Indeed, no civilian court would accept a plea simply based on the representations of defense counsel, at least not since 1969 when Boykin v. Alabama, 395 US 238, was decided, holding that a plea of guilty or nolo contendere must be entered knowingly, intelligently, and voluntarily. That determination is normally made on the record by the court conducting a brief voir dire of the accused at time of entry of the plea and then asking whether the trial counsel concurs in the plea. It is rarely done of course except when a prior plea bargain has been assured by the prosecutor, failure of any material portion of which, such as a withdrawal of part of the plea bargain after a probation report uncovered a previously unknown fact, would allow the withdrawal of the plea by the accused.

What we do suggest, however, is that part of the duty of effective representation of defendants is to educate insofar as practicable the accused to the law governing their case and to the reasonable likelihood of success of a given defense. After discussing the various possibilities of defense, defense counsel should at least make a recommendation to the accused as to what strategy to follow, whether to waive a given right, whether it is in the client's best interest to do so. This should never be a pronouncement from on high by defense counsel but only after a reasonable and thoughtful explanation to the accused of his rights, the law, and how the known facts or competing explanations of those facts fit with the law in the particular case. Defense counsel, not the accused, decides issues of strategy; the defendant decides ultimately whether to invoke or waive his or her rights. But the latter should only be made after such a full explanation and recommendation by the defense counsel.

Properly apprised of the odds against them on such a silly defense as offering that they were seeking to escape Nazi Germany, given the obvious contra indications from the circumstances surrounding their arrival in America and at time of arrest in this case, no one but a complete idiot or irrational individual would have prejudiced a military tribunal with such a ludicrous claim, forsaking thereby any argument on sentencing, for all intents and purposes, by having prejudiced the court in the first instance with such an obviously contemnacious lie.

Perhaps Colonel Royall did set forth his personal opinion thusly and the eight rejected it and opted to pursue instead the charted course of the Big Lie. Yet, Colonel Royall was not stuck. Indeed, he would have served his clients far better to have permitted them simply to provide a narrative of their explanation without either examining them on it or arguing their proffered defense. That is the recommended course of bar ethics when a client is known to be lying in a case; it is rarely used, for it is difficult in most cases to know that a client is lying, unless on the off chance that they convey such to the defense counsel--not likely. (Gee, boss man, I'm telling you that I done the deed, you know what I mean? But I intend to tell them that some man stepped off Venus and gave the knife to me and said if I don't, he'd get me when we both arrived on Jupiter in the night bus, you know what I mean?")

Moreover, it inevitably leaves the defendant obviously hanging by his own petard, prejudicing him in the eyes of the judge or jury. Yet, it is a better strategy in the rare instance as presented by the facts in the saboteur case than that which was chosen. It is difficult to imagine how much more prejudicial any strategy would have been in the eyes of the public or the tribunal than telling such an obviously dissembling tale as the "escape" from Germany theory.

Perhaps, we should dub this case, for easy reference, "The Great Escape--to the Gallows." All that is missing is Tom, Dick , and Harry among the saboteurs. Let us recheck those names in a few days, after the President has finished with his review of the case, when the eight hit the front page again--in the worst sort of way.

A modern trial in a capital case in a civilian court, incidentally, where there is bifurcation between punishment and guilt, would of course present different issues from those we have discussed.

Amy Bassett relates in "The Younger Set", probably somewhere out of Kansas City, of some correspondence received by the government. We find number five to be the most humorous of the list of thirteen entries. That one was probably placed in the bastard file, for want of a finer way to cross its grain. Or, perhaps, more to the less coarse point, catalogued under the classification, "Son of a Malaproprianating Eructator Person". That is, S.O.M.E. People.

The column tells of Ellis Arnall finding Captain Roper of the Highway Department hiding behind a tree at a Georgia campaign rally for governor, the Captain having been hired by Gene Talmadge as part of the Gestapo tactics he regularly employed in his election campaigns. The piece opined that it read like something out of a fairy tale. Maybe, therefore, it was sung by the nightingale.

And, somewhere between that piece, the opening piece on the slums of Charlotte, and the piece on the sweaty conditions of patriot games in the Carolinas for the Maryland men of the Army, about to be sent to far worse climes, suggests the piece, and accurately so, suggests the anecdotes of the soldiers who served in the Guadalcanal Campaign, we find a collision of events which perhaps is best summed this way: "Gee, Officer Krupke: KRUP YOU."

The missing quote of the day was: "He that dies pays all debts." --Shakespeare

Query: Was Shakespeare uttering a threat?

If so, did it apply to the giraffe?

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