“Are they?”
“I told you, Ben, that before this is over, everyone will betray you in one way or another.”
Tyson drank his beer silently for a while. “You’re saying they won’t testify on my behalf?”
“We’re still talking about it. You see, there are questions of immunity, of perjury, and Fifth Amendment rights. But the bottom line, Ben, is that those men do not want to get up on the stand and have Pierce ask them if they killed babies and pregnant women. Or did they only shoot doctors and nursing nuns? Who killed the babies, by the way?”
“Scorello. With a phosphorus hand grenade.”
Corva shook his head.
Tyson tapped his fingers on the table.
Corva said, “What did Brandt actually do?”
“Pretty much what he said. Nothing. He was petrified. He thought they were going to kill him, too.”
Corva picked at some fried rice. “Medics are always suspect, aren’t they? They are never fully initiated into the psychotic circle. Medics, Army scout dog handlers, chaplains and chaplains’ assistants, artillery forward observers . . . all those people who joined up with us from time to time . . . they looked at us funny, didn’t they? Like they were visiting a traveling psycho ward where all the patients were armed to the teeth. They couldn’t wait to get the hell back to camp. And when they left, we’d all laugh at them. But you know what? We were crazy.”
Tyson finished his beer. “The platoon’s instincts were correct about Brandt, as it turns out. They should have made a clean sweep of it.”
Corva said, “They made a clean sweep of the hospital. They knew that they couldn’t shoot a few people there like they did in the villages and get away with it.”
“No. That was civilization. So they destroyed it.”
Neither Corva nor Tyson spoke for some time. The phone rang, and Corva got up to answer it. He listened for a minute, then said, “All right. Keep me informed.” He hung up and turned to Tyson. “That was my office. They’re still negotiating with our reluctant witnesses’ attorneys.”
“And?”
“I don’t know. They have very valid reasons for not exposing their clients to sworn testimony and cross-examination. If you were in their position and I was your attorney, I would not let you testify.”
“How about comrades in arms and blood oaths by the light of a flickering candle and all that?”
“I’d say my client doesn’t recall any of that. I’d say that in the latter part of the twentieth century in a country run by lawyers, you can forget all of that. I’d also say, to save face, that my client’s oaths, if any were in fact made, had to do with relating the story of a fierce firefight. Not a massacre.” Corva added, “But we’re still negotiating with them.”
Tyson said nothing.
Corva drew a deep breath. “Sometimes, Ben, I think the less said, the better. Sometimes it is the defense and not the prosecution who winds up removing the reasonable doubt from the minds of the jury who had reasonable doubt until the defense witnesses start getting cross-examined. Capice?”
“I guess. But we’re not offering much of a defense.”
“The prosecution didn’t offer much of a case either. I’d like to throw it to the jury as soon as possible.”
“Do you want me to take the stand?”
“I’ll let you know. And if you think of a good reason why you chose to ignore a mass murder, let me know.”
The phone rang again, and Corva picked it up. He listened. “Okay, Sergeant. Tell them to start without us.” He hung up and said to Tyson, “They’re not going to start without us.”
* * *
“The court will come to order,” said Colonel Sproule.
Pierce made his announcement regarding all the parties being present.
Colonel Sproule addressed Colonel Moore. “You informed me during the recess that the board has questions for the witness, Steven Brandt.”
Moore replied, “Yes, your honor.”
Sproule said to Colonel Pierce, “Recall the witness.”
Pierce motioned to the sergeant at arms. Brandt did not immediately appear, and after some minutes two MPs were sent to look for the sergeant at arms and for Brandt. Finally, after five full minutes, Brandt appeared and walked across the floor to the witness stand. Colonel Pierce said to him, “The witness is reminded that he is still under oath.”
Brandt sat.
Colonel Sproule addressed the court. “I have had an opportunity to see and hear the questions the board intends to pose to the witness and have ruled on their admissibility.” Sproule looked at Pierce, then at Corva, then back to Colonel Moore. “You may begin.”
Lieutenant Davis, the junior member of the board, began. “Dr. Brandt, did you discuss the hospital incident with your own commanding officer? That is, the commander of the Fifteenth Medical Battalion?”
“No.”
“Could you tell us why not?”
Brandt shifted in his chair and crossed his legs. “As I stated, I was frightened.”
“Would your commanding officer, a medical doctor, have been unsympathetic to your story?”
Brandt replied, “I don’t know.”
Corva leaned toward Tyson. “Dr. Steve is going to like this format even less.”
The questioning from the six-member board went on for nearly an hour. Tyson could tell by the questioning that the board did not find Steven Brandt to their liking. Their questions focused on Brandt’s reasons for not reporting the crime and his reasons for coming forward after all these years. They questioned him on his relationship with Tyson and with the other men of the platoon. Tyson didn’t doubt that they believed Brandt’s story of a massacre in broad outline. But, just as with Farley, they couldn’t seem to focus on the details. Finally, Colonel Moore asked the last questions. “You stated earlier that you and Lieutenant Tyson had an altercation sometime previous to this incident.”
“Yes.”
“You mentioned pushing.”
“Yes.”
“Who pushed whom?”
“Lieutenant Tyson pushed me.”
“Did you fall to the ground?”
“Yes.”
“Did you make a formal complaint against him?”
“No.”
“Could you tell us what the altercation was about?”
“I don’t recall.”
“Did you bear him any ill will?”
“None.”
“Did you discuss the hospital incident with Lieutenant Tyson afterward?”
“No.”
“Why not?”
“He was part of the cover-up.”
“Did you discuss this incident with anyone? Anyone in the military or in civilian life?”
“No. Not until I discussed it with Andrew Picard.”
“Did you, after you discussed it with Andrew Picard, attempt any communication with any government agency regarding this matter?”
“No.”
“Did the Army, then, contact you regarding this matter?”
“Yes.”
Colonel Moore looked to either side, and each member of the board shook his head to indicate that there were no further questions. But from where Tyson was sitting, the five heads turned toward the center, all shaking in unison, gave the appearance of five disgusted people.
Colonel Sproule said to Steven Brandt, “Thank you for testifying. You are excused, subject to recall.” Sproule repeated the warning against discussing his testimony.
Tyson looked at Pierce, Weinroth, and Longo. They didn’t look quite as smug as they had after Pierce’s direct examination of Brandt. But neither did they look worried. In fact, they looked to Tyson like people who realize that the worst is over. That the end is near and that they are ahead and running downhill, while the opposition is only beginning the uphill portion.
Colonel Sproule finished with Brandt and said, “The witness is excused, subject to recall.”
Brandt stood and walked, not too fast, toward the
side door.
Colonel Sproule addressed Colonel Pierce. “Does the prosecution wish to call a witness?”
Pierce replied, “No, it does not, your honor.”
“Does the prosecution have anything further to offer at this time?”
“No, it does not, your honor.”
Colonel Sproule pronounced, “The court is adjourned until ten hundred hours tomorrow.”
* * *
Tyson and Corva walked on the path leading to the BOQ. Tyson said, “When will we know if we have any defense witnesses?”
“Tonight, I hope. I may have to ask for a continuance.”
“That’s legal mumbo jumbo for a postponement.”
“Right.”
“I don’t want a postponement.”
“Well, Ben, neither do I. But we need some time.”
“No. I want to be in court tomorrow.”
“We’ll discuss it later.”
They came to a cross path on the lawn. The sun was behind the redbrick housing structures, and long shadows lay over the lawns. Corva said, “It gets cold here at night.” He looked at Tyson. “Going home?”
“Yes. To see David awhile. Marcy is still trying to accomplish some work, and she has dinner with a client tonight. You know how it is. Trying to juggle being a homemaker, mother, career lady, and still put in six to twelve hours in court.”
“Now, now.” Corva glanced at his watch. “I’ll be in the BOQ very late. Come over around ten, and we’ll have a drink.”
Tyson asked, “Where have all the soldiers gone, Vince?”
Corva replied, “They all have lawyers now.”
CHAPTER
48
Ben Tyson and Vincent Corva sat at the defense table. Tyson looked at his watch and noted that it was ten minutes to ten. The spectators were in place, and the prosecution was in place. The board began filing in.
Corva said to Tyson, “I know how you must feel.”
Tyson lit a cigarette and replied, “I don’t feel betrayed. I don’t feel bad. I don’t know what those five men would have said that would make a difference.”
“They did all offer to make unsworn statements in extenuation and mitigation if a guilty verdict is returned. I think the presentencing presentation of extenuating circumstances is ultimately more important than the verdict in a case like this.”
“From the standpoint of how long I would have to spend in jail, I agree.”
Corva nodded. He added, “It’s possible that they will return a verdict of not guilty.”
Tyson said nothing.
Corva said, “Seeing as we don’t seem to have any defense witnesses in the witness room at the moment, would you like a postponement?”
Tyson replied, “No. You have a defense witness sitting next to you.”
Corva stayed silent a few seconds. He looked at the board, who were sitting at their table, talking quietly to one another. Corva said, “It is very rare for the accused in a case like this to take the stand in his own defense.”
“You said last night I could make a statement.”
“Did I say that?”
“Yes.”
Corva put his hand on Tyson’s arm. “Listen, Ben. If you go on that stand and make even a two-minute statement, you open a deep can of worms.”
Tyson didn’t reply.
Corva went on. “I thought about it. Last night, after you left. I stayed awake and thought about it. You have to understand that if you are sworn in, and make a statement, Pierce will cross-examine you on that for a week. I mean that literally, Ben. And when he’s through with you, Sproule has the right to question you. And when Sproule is through, the six members of that board will go at it. You are the celebrity. And if you decide to step out in public, they will own you for as long as they can get away with it. I’ll try to limit the questions as superfluous and such, but it would be several days before I could make a case for that. Understand?”
Tyson nodded.
“The choice is yours. You may remain silent. That is your right, and if you do so, no inference will be drawn from it, and it will not count against you in any way. Nor can it be commented on in any way.”
Tyson said nothing for several minutes. The sergeant at arms strode toward the middle of the floor. Tyson said to Corva, “But I will make a statement, later, in extenuation and mitigation.”
“Yes. If you are found guilty, you will have that opportunity. I hope you don’t have to take advantage of that opportunity. I know this goes against your grain. But trust me.”
“Sure.”
“All rise!”
Colonel Sproule walked to the pulpit and stood behind it. “The court will come to order.”
Pierce confirmed that all the parties were present.
Colonel Sproule addressed Colonel Pierce. “Does the prosecution have any further evidence to present?”
Pierce, still standing, said, “The prosecution rests.”
Sproule turned to Corva. “Has the defense any evidence to present?”
Corva stood. “The defense has no evidence to present.”
There was a stir in the court, and Sproule did not wait patiently for it to die down. He looked toward the pews and the spectators fell silent. Sproule turned back to Corva. “Does the defense, then, rest?”
“The defense rests.”
Colonel Sproule nodded perfunctorily and turned to Colonel Pierce. “Does the prosecution have anything further to offer?”
Pierce answered, “It does not.” Pierce said to Sproule, “Does the court wish to have any witnesses called or recalled?”
“It does not,” replied Colonel Sproule. He, in turn, readdressed Pierce. “Does the prosecution wish to present a final argument?”
“It does,” answered Pierce.
Colonel Sproule responded, “Colonel Pierce”—he turned to Corva—“and Mr. Corva. I wish to remind both of you that in trial by court-martial final arguments are not required. If they are made they can be written or oral. In either case, they are customarily short. They are made generally in order to call to the attention of the court reasonably pertinent facts of the case and how they relate to the law. They may include elements of a summation, but they are not to be lengthy recapitulations of the trial.” He looked at Pierce. “You may begin.”
Colonel Pierce came from behind the table and stood in the center of the floor as he had done when he made his opening statement.
Tyson watched him, then focused on the board. The six members sat ramrod straight, very military, Tyson thought. Pierce carried himself reasonably well for a JAG lawyer. Tyson looked at the spectators. On this Thursday morning, in the fourth day of the trial, the pews were again full. Marcy had come in late. David had gotten excused from school again. Tyson’s mother, staying with friends in Garden City and taking a limousine in every morning, looked weary. As Tyson scanned the sea of mostly white faces, he saw a big moon-shaped black face smiling, trying to catch his eye. Mason nodded at him from the fifth or sixth row. Tyson smiled and nodded back.
Colonel Pierce began with the traditional “May it please the military judge, members of the court. You have heard the case of the United States against Lieutenant Benjamin Tyson. You have heard the testimony of two witnesses, Richard Farley and Steven Brandt, who related to the court the story of a cold-blooded massacre of civilians and enemy soldiers, of patients and staff, of infants and children. No, their testimony did not always agree in detail, their testimony was often contradictory, and their recall of names, events, and other specifics, which we have come to expect in trial testimony, was at times vague. But we did hear, did we not, the story of a massacre. And if the details were vague after some eighteen years, the broad outlines were still clear.”
Pierce rubbed his upper lip and hung his head a moment, then continued. “Steven Brandt and Richard Farley were eyewitnesses to the events they described. These are events which are indelibly burned into their memories for all time—and not solely on account of their being eyewitnes
ses to the events, but on account of their having been participants in those events. But their participation is not the issue here. What is the issue is the involvement of the accused in those events. If you remove from your mind the extraneous details of the testimony and the cross-examination and consider only the facts which relate to the accused and to the charges brought against him, then what remains is this: The first platoon of Alpha Company entered a building which two eyewitnesses describe as a hospital. By their testimony, we learned that there were upwards of one hundred—possibly two hundred—living human beings in that hospital. Their platoon leader, Lieutenant Benjamin Tyson, gave a verbal order to shoot sick and wounded enemy soldiers. Members of the board, if we stop right there, and if we are to believe the sworn testimony of two independent and unbiased witnesses, then the government can rest its case. But if we are to right a terrible wrong, if we are to redeem the honor and integrity of the American Army, then we cannot rest there. No, we must consider the remainder of the corpses that the witnesses saw with their own eyes, piled in the wards, strewn in the hallways, lying in the operating room, and sprawled about the grounds of the hospital. We must consider that these unarmed and defenseless people were shot and killed by troops under the command of the accused. We must consider that the testimony of two eyewitnesses agrees that the accused did not do or say anything to halt the actions of his rampaging troops. That, in fact, the accused, by his inaction, aided and abetted the massacre you have heard described. That, indeed, the accused, by his inflammatory orders to shoot unarmed and convalescent soldiers, precipitated the general massacre which followed.”
Pierce turned and looked at Tyson, then looked out over the spectator pews for the first time, then again addressed the board. “You could, I could, anyone with an ounce of human compassion and understanding could make or find reasons and excuses for everything the accused did or failed to do in that twenty or forty minutes. But who can excuse what happened afterward? Who can excuse or understand an officer of the United States Army willfully entering into a conspiracy with men under his command to obstruct justice, to fabricate a series of events that were intended not only to obscure the facts of a heinous crime but also to turn that crime into an honorable engagement with enemy forces? Who can excuse or understand that ? Who can excuse an ongoing cover-up of a capital and infamous crime that has continued up until this moment? Who can excuse an officer who, by his dereliction of duty, has perhaps and most probably insured that no one else will be brought to justice for this mass crime? Who can excuse a commissioned officer of the United States Army, in whom was placed a special trust and confidence, from the obligations that he freely undertook when he took his oath of office?”