Tyson looked into the spectator section. He wasn’t imagining it; he had never seen so many enraptured expressions.
Pierce continued, “The following persons named in the convening orders are present.” Pierce read the seven names of the court-martial board, the military judge, the three trial counsels including himself, and the defense counsel. Pierce addressed Colonel Sproule. “The prosecution is ready to proceed with the trial of the case of the United States against Benjamin James Tyson, First Lieutenant, United States Army, Fort Hamilton, New York, who is present in court.” Pierce took his seat.
Colonel Sproule surveyed the court, his hands on the sides of the pulpit, and said, “It is my duty at this time to give the court preliminary instructions regarding your duties concerning the proper conduct of this trial.”
Tyson looked closely at Sproule. He was a crochety-looking old man with a powder-pale face, a few strands of gray hair combed neatly over his bald pate, and eyes that seemed unfocused. Tyson suspected he was nearsighted, but he wore no glasses. Tyson did see a hearing aid behind his right ear. Here was a man, Tyson suspected, who had seen about forty years of courts-martial and had little patience left for posturing lawyers, inarticulate witnesses, and guilty men. Tyson didn’t think that even this trial impressed Colonel Sproule much.
Sproule glanced briefly toward Corva and said, “It is the duty of the defense counsel to represent the accused in a manner consistent with the special requirements of military justice. It is the defense counsel’s right and obligation to insure that the rights of the accused are maintained throughout these proceedings. It is not the duty or right or obligation of the defense counsel to willfully obfuscate the facts of this case or to engage in any courtroom tactics which may compromise the dignity of this court or to delay or obstruct justice.”
Colonel Sproule surveyed the prosecution team opposite him and said, “It is the duty of the trial counsel to prove to the members of the board, beyond a reasonable doubt, the truth of the charge and the specifications that you have forwarded to this court as stated in the charge sheet. The government has had ample time to investigate this charge and to put it into proper form. I will assume that the case you are presenting here has close relevance to the charges you have sworn to. I want to remind you that in trial by court-martial, the trial counsel’s primary duty is not to convict; it is to see that justice is done. I have no wish to quell the natural desire of counsel to win a case. However, this zeal must be tempered with the realization of your responsibility for insuring a fair and impartial trial, conducted in accordance with not only proper legal procedures, but also in accordance with the needs, customs, and traditions of the United States Army.”
Colonel Sproule turned toward the seven-member board. “It is your duty to hear the evidence that is presented.” He paused. “To hear only the evidence that is presented in this courtroom. You must remove from your minds, as much as is humanly possible, anything you have read or heard about the case now before you. Your ultimate purpose here is to decide whether the accused has violated the Code as charged and, if so, to adjudge an appropriate punishment, if any, for the offense.” Sproule looked at Colonel Moore. “Colonel, you have served as president of the court on previous occasions, and I trust you will offer guidance and knowledge to those members who may not have had experience in sitting on the board.”
Colonel Sproule faced the front and said, “It is the wish of this court that the spectators to this trial will conduct themselves in the quiet and dignified manner which is consistent with the seriousness of the matters being decided here.”
Tyson thought about Sproule’s preliminary statements to Corva and Pierce. What Sproule had done in effect was to tell the rabbits not to run.
Colonel Sproule turned to Colonel Moore. “President and members of the board, I will now introduce to you the other participants to this trial.” Sproule formally introduced Sergeant Reynolds, the court reporter, then Corva, then the prosecution: Pierce, Weinroth, and Longo.
Colonel Sproule addressed Colonel Pierce. “The members of the court will now be sworn.”
Colonel Pierce stood and announced, “The members will now be sworn. All persons please rise.”
Everyone stood, including the spectators, though Tyson noticed many of the press corps did not stand, but continued to sit, taking notes. Apparently Colonel Sproule noticed as well. He said, “When the instruction is given by any member of the court to all rise, that instruction should be interpreted to include everyone who is not crippled.”
There were a few chuckles in the pews as the press rose.
Colonel Pierce, still standing behind his desk, turned and faced the board. “As I state your name, please raise your right hand.” Without referring to notes, Pierce began, “Do you, Colonel Amos Moore . . . Lieutenant Colonel Stanley Laski . . . Lieutenant Colonel Eugene McGregor . . . Major Donald Bauer . . . Major Virginia Sindel . . . Captain Herbert Morelli . . . Lieutenant James Davis . . . swear that you will faithfully perform all the duties incumbent upon you as a member of this court; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws applicable to trial by court-martial, the case of the accused, Benjamin James Tyson, Lieutenant, United States Army; and that you will not disclose or discover the vote or opinion of any particular member of the court unless required to do so in due course of law, so help you God?”
The seven members of the board replied in unison, “I do.” They lowered their hands but remained standing as Pierce turned to Colonel Sproule, who raised his right hand. Pierce said, “You, Colonel Walter Sproule, do swear that you will faithfully and impartially perform, according to your conscience and the laws applicable to trial by court-martial, all the duties incumbent upon you as military judge of this court, so help you God?”
Sproule replied, “I do,” and lowered his hand. Sproule then addressed the prosecution bench, who now raised their hands. Sproule said, “You, Colonel Graham Pierce, Major Judith Weinroth, Captain Salvatore Longo, do swear that you will faithfully perform the duties of trial counsel in the case now in hearing, so help you God?”
The prosecution team replied in the affirmative and lowered their hands.
Sproule next turned to Corva, who raised his right hand, and Sproule swore him in.
Colonel Pierce said into his microphone, “All be seated.”
Colonel Sproule announced, “The Court is assembled.”
Tyson said to Corva, “I see what you mean about the trial counsel. I’ve never heard of a DA swearing in a judge.”
Corva nodded. “It’s a subtle way for the Army to put the judge in his place. The Army instinctively mistrusts an independent judiciary, especially since no one in the chain of command can write efficiency reports on them.”
Colonel Sproule looked out over the pews and announced, “Unless they are required to be present for other reasons, all persons expecting to be called as witnesses in the case of Benjamin Tyson will withdraw from the courtroom.”
Tyson noticed that the spectators were looking around to see if there was a witness among them. Tyson spotted an MP walking up the aisle. The MP stopped and pointed to Andrew Picard. Picard pointed to himself in that idiotic way people do. Who, me? Picard rose reluctantly, said something to Phillip Sloan, and made his way clumsily out of the pew, all eyes on him.
Tyson leaned toward Corva. “Is Pierce going to call him?”
Corva covered his microphone. “No. I subpoenaed him. I may or may not call him. Let Pierce think about it.” Corva added, “I have a subpoena waiting for Picard when he’s brought to the head chaplain’s office. He can cool his fucking heels there for a few days. Why should he see the trial?” Corva smiled.
After Picard was led out the main doors by the MP, Colonel Sproule said to Pierce, “Will the trial counsel distribute copies of the charge sheets to the members of the board, and will the members please take time to read these now?”
Captain Longo stood and approac
hed the jury table, carrying a stack of papers. Beginning with Colonel Moore, and moving left to right like a shuttlecock, in descending order of rank, Longo set down before each member, not only the charge sheet, but a yellow pad and several pencils. Pierce remained standing as the board read the charge sheets.
Corva said to Tyson, “In a few minutes we’ll be asked if we have any challenges against any of the board. Do you recognize any of them?”
“I recognize the type.”
Corva smiled. “Not sufficient grounds for a challenge. We also have one peremptory challenge, and if we use it, I’d like to use it wisely.”
“Wisely meaning what?”
“Meaning whose face don’t you like?”
Tyson looked at the board reading the charge sheet. “I don’t like any of their faces. Can we challenge the president of the court—Colonel Moore?”
“Yes. But the judge has already indicated to me and Pierce that he would not look favorably on that.” Corva explained, “Before, in his preliminary statement, that reference to Moore’s experience was for me and Pierce.”
“Oh. I’m glad you understand the language spoken here.”
Corva pulled a piece of paper toward him and said rapid-fire, “Colonel Moore commanded a company of the Fourth Infantry Division. You can see he was highly decorated. Next, Lieutenant Colonel Laski was an infantry platoon leader, like us, Ben. He served with the American Division, Calley’s former unit. His tour of duty coincided with the Tet Offensive and with My Lai. Next is Lieutenant Colonel McGregor, also a former infantry platoon leader. He was with the Cav, and if you look, you’ll see why he wears the Purple Heart.”
Tyson looked at McGregor and noticed now that a good piece of the man’s left ear was missing, and there was a scar that ran down the side of his neck and disappeared under his collar. “I see it.”
“Okay, then we have Major Bauer, who is old enough to have caught the tail end of the war. He was a MAC-V adviser and saw action with a Vietnamese Ranger Battalion. So those are the four who have tasted blood. Next, Major Sindel is a public information officer at Fort Dix. She was a newspaper reporter before joining the Army. She will probably listen closely and ask too many questions for clarification. Captain Morelli is in the Adjutant General’s Corps, and is stationed at Dix also. He is about thirty years old, so he was about twelve at the time of the incident we’re here to discuss. Who knows how he’ll react when the witnesses start getting into blood and gore.”
Tyson said, “I’m not sure how anyone is going to react. This has got to be painful for those old troopers.”
Corva glanced at Tyson, then concluded, “Lieutenant Davis is a West Pointer, who is awaiting orders for Germany. He is a product of the new Army, and has had more courses in ethics and morality than he’s had in calling in artillery fire. He has no idea where you’re coming from. He was about three or four years old at the time of the incident, and the date on the charge sheet looks to him like D-Day, June 6, 1944, looks to us.”
Tyson nodded. The composition of the board was supposedly random. But with four Vietnam infantry veterans it was obvious to Tyson that the majority of the board had some expertise in evaluating the sort of testimony to be presented.
Colonel Moore looked at the board members to either side and saw they were finished reading. He announced, “The board has read the charges and specifications.”
Colonel Pierce nodded and addressed the open court. “The general nature of the charge before this court is violation of the Uniform Code of Military Justice, Article 118, clause three, murder, in which the accused is alleged to have engaged in an act which was inherently dangerous to others and evinced a wanton disregard of human life.” Pierce paused shortly for effect before adding the mandatory statement, “The charges were prepared by General George Peters, post commander, Fort Dix; forwarded with recommendations as to disposition by Colonel Farnley Gilmer and investigated by Colonel Gilmer under Article 32; and investigated by Major Karen Harper under Article 31 of the Code.” Pierce added, “Neither the military judge nor any member of the court will be a witness for the prosecution.”
Tyson said to Corva, “I hope not.”
Corva smiled. “There was a time when that was possible. But everything is fair now.”
“Right.”
Pierce gave the defense table a look of impatience. He waited a moment longer as if to see if Corva and Tyson were quite through talking, then said, “The records of this case disclose no grounds for challenge to the military judge or to any member of the board.”
Sproule and Pierce began a series of procedural questions and statements, and Tyson thought they harmonized well. Tyson looked at Colonel Sproule. “Do you know him?”
“I know of him. He’s a bit stuffy but not above a little sarcasm, like most judges. He doesn’t put up with courtroom antics as you heard him suggest. Basically he’s fair. If he jumps on Pierce, he’ll look for an opportunity to jump on me and vice versa. Someone told me he keeps a little score sheet in front of him for that purpose. But none of that really concerns you. He does not have the power of a civilian judge. The real power, as it has always been in courts-martial, lies there.” He nodded toward the board of officers.
Tyson said, “I remember a bit of this. I told you I sat on a general court-martial board once. Right where Lieutenant Davis is sitting. I had to sharpen pencils, count ballots, and arrange for coffee.”
Corva continued, “You know that unlike a civilian trial they don’t have to be unanimous for a verdict. They only need two-thirds for a conviction. With seven members, they need four-point-six members to convict you. Call it five. If we exercise our one peremptory challenge, then they need four. Or, the other way to look at it, with seven members, we need three to vote not guilty. So, from the standpoint of a numbers game, our number is three. And we don’t want to bump anyone who might be one of those three.” Corva looked at Tyson. “So now that you’ve seen their faces, do we want to bump one of them? And if so, which one?”
“What do you think?”
Corva studied his yellow pad of handwritten notes. He said, “Morelli is a paesano, Sindel is a woman, Moore is the designated president. They’re already accustomed to Davis running their errands. So that leaves the lieutenant colonels, Laski and McGregor, and Major Bauer. The Veterans of Foreign Wars. My vote would be for one of them to go. They know too much. They feel qualified to judge you.”
Tyson nodded.
Corva said, “Let’s see if Pierce exercises a peremptory challenge first.”
Colonel Sproule said to Colonel Pierce, who was now sitting, “Does the prosecution have a peremptory challenge?”
Pierce answered from his chair, “The prosecution has no peremptory challenge.”
Sproule looked at Corva. “Does the defense have a peremptory challenge?”
Corva stared across the twenty feet of open space that separated the defense table from the facing jury table. He looked at each member in the eye, and each met his stare and held it. He wrote something on a scrap of paper, folded it, and said to Tyson, “Write a name.”
Tyson, too, looked at each member of the board. He wrote a name and slid the paper toward Corva. Corva opened his folded paper, and they both looked at the names they had written, which were the same name: Laski.
Corva stood and addressed Colonel Sproule. “The defense challenges Colonel Laski peremptorily.”
Colonel Pierce stood. “If it pleases the court, let the record show that Mr. Corva responded as required that it was the accused, not defense counsel, who exercised the peremptory challenge.”
Colonel Sproule looked at Pierce for some time, then said, “That will be noted by the reporter.” Sproule turned and addressed Lieutenant Colonel Laski. “The challenged member may be excused.”
Lieutenant Colonel Laski stood, almost reluctantly, thought Tyson. He turned and left through the side door.
Captain Longo approached the board table and assisted in reseating everyone according to
rank.
Corva stood and addressed Colonel Sproule. “If it please the court, I would like to suggest that any errors I may make in the future be brought to the court’s attention by your honor. I only suggest this in the interest of freeing Colonel Pierce’s mind so he may concentrate on presenting the government’s case.”
A few spectators tittered, and Colonel Sproule looked out over the pews, which fell silent. He said to Corva, “It is the proper function of Colonel Pierce to raise procedural points.” He looked at Pierce. “However, I would appreciate being given the opportunity to make these points myself.”
Pierce bowed his head but said nothing.
Colonel Sproule added, “One of these points being that the prosecution should now remove the empty chair from the board table.”
Captain Longo sprang to his feet, went back to the board table, and moved the chair into the wing, out of view.
Colonel Sproule now turned to Tyson. “Will the accused please rise?”
Tyson stood.
Colonel Sproule said in a voice louder than he’d used previously, “Lieutenant Benjamin Tyson, you are charged with violations of Article 118 of the Uniform Code of Military Justice. How do you plead to the charge and to the two specifications?”
Benjamin Tyson replied in a clear voice free of any emotion, “To the charge, and to both specifications, I plead not guilty, sir.”
There was the expected murmur from the spectator pews. Sproule ignored it and turned to the board. “President and members, your task then is to hear evidence and return findings.” Sproule looked at Pierce and said, “Does the prosecution have an opening statement?”
Pierce replied, “Yes, your honor, I do.”
Sproule said, “I remind the prosecution that in trial by court-martial, opening statements are not required and not customary. But when they are made, they are brief, and they should serve to clarify how you propose to present this case.”