Tyson leaned toward Corva. “We’re playing the B team today.”
Corva said, “They are all the B team every day.”
Longo continued to read the standard data from the charge sheet, but when he came to “term of current service,” he paused and said in a snide tone, “Indefinite.”
Corva was on his feet. “Objection, your honor.”
Sproule didn’t bother to ask what the objection was. He said to Captain Longo sharply, “Captain, this is not an audition. Just read.”
Longo seemed crushed and bowed his head. “Yes, sir.”
Tyson noticed that Pierce and Weinroth exchanged looks as if to say, “I knew we shouldn’t have let that schmuck open his mouth.”
Longo completed the reading in a monotone, then sank low into his chair, as Major Weinroth stood. She began reading data from Tyson’s old personnel file, though little of it seemed relevant any longer. Tyson realized he’d never heard her speak more than a word or two before, and he was surprised to find she had a deep, husky voice, which he found sexy. Then he discovered that he was thinking about sex, then his mind drew him to Kansas and a place where there was no sex of the type he favored. He had a sudden urge to bolt, to dash into the pews, into the arms of his supporters, who would carry him to safety. He whispered to Corva, “I’m making a break for it.”
“Pay your bill first. Calm down.”
“I’m getting restless.”
“I see that. You want a recess?”
“No. I’ll be all right.”
Corva poured them both some water. Tyson lit a cigarette and blew the smoke toward Weinroth, who glanced up at him as she read. She finished reading the data and said to Corva, “Does the accused have any objections to the data as read?”
Corva replied, “Not the way you read it.”
A few people laughed, and Corva said, “Give me a moment.” He leaned toward Tyson. “All right?”
Tyson shrugged. “I wasn’t paying attention.”
Corva whispered, “The medals and citations and letters of commendation from your first term of service sound good to the board. And Levin’s letter was a bit of a surprise. The board knows you did your job the first time around, and they know you’ve been a good soldier under Levin’s command, too.” He added half jokingly, “That’s an automatic ten years off the sentence.”
“That brings us down to sixty years. What if I can recite the Infantryman’s Prayer by heart?”
Colonel Sproule cleared his throat pointedly.
Corva remained in his seat and said, “The accused has no objection to the data as read.”
Tyson said to Corva, “Why am I still the accused?”
“I don’t know. Never thought about that.”
Colonel Sproule announced, “These documents will be marked as exhibits and made a part of the court record. Copies of all documents and records that are relevant to the imposition of an appropriate sentence will be presented to the members of the board preceding deliberations on sentence.”
As the exhibits were marked, Tyson studied the board closely. Two people there had voted for acquittal, but for the life of him, he couldn’t guess which two.
Corva saw where he was looking and said, “Major Sindel. That was who my wife said.”
“Possible. Who else?”
“Beats me. The rest of them look like they spent the weekend building a scaffold.”
Tyson said, “Maybe McGregor . . . no, Morelli . . . he liked your style . . . you remind him of his Uncle Vito’s mouthpiece.”
“Are you all right today?”
“I didn’t sleep well.”
“I’m not surprised.” Corva looked at his client with some concern.
Colonel Sproule addressed Colonel Pierce. “Does the prosecution have evidence in aggravation?”
Pierce replied, “It does not.”
Sproule turned to Corva. “Does the defense have evidence in extenuation and mitigation?”
“It does, your honor.”
“Does the defense have evidence to be submitted and marked as exhibits?”
“It does not, your honor.”
“Does the defense, then, intend to call witnesses in extenuation or mitigation?”
“It does, your honor.”
“Then call your first witness, Mr. Corva.”
Corva turned to the sergeant at arms and said, “The defense calls as a witness Mr. Daniel Kelly.”
The door opened, and Daniel Kelly strode into the court. Tyson saw at once that the slight twenty-one-year-old he remembered was now a powerfully built forty-year-old man who walked with the movements of an athlete. Kelly’s fair skin was bronze, and his long straw-colored hair fell across his forehead. Tyson noticed that his eyes darted everywhere at once, taking in the whole scene, noticing possible ambush sites, registering places of cover and concealment, heeding signs of booby traps, and discerning good fields of fire. Kelly wore black flannel slacks, a white turtleneck sweater, and a beige-colored suede sport jacket. Kelly stopped at the witness chair, looked at Tyson, and gave a thumbs-up. Tyson returned the greeting.
Corva said to Sproule, “Your honor, we intend that this be sworn testimony.”
Sproule nodded to Pierce, who approached the witness chair with the impatient movements of a man who thinks he should be somewhere else by now. “Raise your right hand.”
Kelly, still standing, raised his hand.
Pierce recited quickly, the words running together, “Do you swear that the evidence you shall give on the case now in hearing shall be the truth, the whole truth, and nothing but the truth, so help you God?”
“I do.” Kelly sat without Pierce inviting him to do so.
Pierce said, “Please state your name, residence, and occupation.”
“Daniel Kelly, Edgerton, Ohio, importing and exporting.”
Pierce, who had been given some general information by Corva regarding expected testimony, had apparently learned a few other things about Daniel Kelly and didn’t intend to let his first statement go unquestioned. “You are a current resident of Edgerton, Ohio?”
“Yes.”
Pierce seemed skeptical. “Could you be more specific concerning your occupation?”
“Yes. I import and export things.”
Someone laughed.
“From Edgerton, Ohio?” asked Pierce dubiously.
“Yes.”
Corva said, “Your honor—”
Sproule put out his hand toward Corva and said to Pierce, “Perhaps you’d like to hold the cross-examination until after the defense has examined its witness, Colonel Pierce.”
Again, a few people snickered.
Colonel Sproule said, “Mr. Corva, you may begin.”
Pierce returned to the prosecution table, as Corva stood under the pulpit facing Kelly. Corva began, “Mr. Kelly, could you state your former grade, organization, and duties while serving in the Republic of Vietnam.”
Kelly replied in a well-modulated voice, “I was a Specialist Four, serving with the first platoon of Alpha Company, Fifth Battalion of the Seventh Cavalry, First Air Cavalry Division. I was the platoon leader’s radiotelephone operator, known as an RTO.”
Tyson noticed, too, that Kelly’s diction and choice of words had improved since Vietnam.
Corva said, “You were Lieutenant Tyson’s personal radio operator, were you not?”
“For most of the time I was there, yes.”
“And as an RTO, you had close and frequent contact with your platoon leader.”
“Every day. We slept in the same foxhole. I had to provide him with radio contact at a second’s notice, so we stayed fairly close.”
Corva asked a series of questions to establish Kelly’s past and present relationship to Tyson, then asked, “Are you generally aware of the circumstances of this trial?”
“Yes, I am.”
“You are aware that Lieutenant Tyson has been convicted of murder.”
“Yes, I am.”
“And you
have offered to appear in his behalf to offer testimony that may establish extenuating circumstances for the crime of which he stands convicted.”
“Yes, I have.”
“Mr. Kelly, could you tell the court what happened on the morning of 15 February 1968? The incident of the burial mound. Begin, please, at first light.”
Kelly replied, “At first light, nineteen of us moved out of our night defensive positions.” Kelly continued his narrative in the short concise sentences favored by the military, using military terminology of the period and using it accurately. Tyson had the impression that Kelly was relating last week’s events, and he thought others shared that impression.
Tyson watched the board. He could see that Moore, McGregor, and Bauer were favorably impressed with Daniel Kelly. But he didn’t know if that was going to do Benjamin Tyson any good. He glanced at Brandt, who seemed to be getting a little uneasy.
Kelly concluded, “We resumed the patrol, in a southeast direction, toward Hue.”
Corva asked, “So, the only men who were with you on that burial mound were Lieutenant Tyson, Richard Farley, and Harold Simcox.”
“Yes.”
Colonel Pierce stood. “Your honor, if it please the court. I have been exceedingly patient, listening intently for anything that sounds like it might be extenuation or mitigation for the offense of which Lieutenant Tyson has been convicted.”
Sproule looked down at Corva. “Mr. Corva?”
Corva replied, “Your honor, the nature of testimony offered in extenuation or mitigation is often such that it does no more than to establish the accused’s state of mind or his intentions or the general conditions that prevailed at the time. I intend, your honor, for Mr. Kelly to be up here for some time. Now, the prosecution can object to this and that, but I assure the court that I will get this story told one way or the other, even if it means Mr. Kelly sitting here for the next week while I reply to objections. Your honor, do not take offense. Lieutenant Tyson stands here convicted of murder. And I am standing here to do everything in my power to see that the board has every pertinent detail that surrounds this incident, so that they may arrive at an appropriate sentence. I want the members of the board to discover as much as I know and Mr. Kelly knows about Lieutenant Tyson and about Miséricorde Hospital before they vote on a sentence. Though it may not all appear to be pertinent as it unfolds, I assure the court that this evidence is pertinent and that the court will recognize it as such by the time the witness steps down. That is my intention, your honor.”
Sproule thought about that for a moment, then said, “Colonel Pierce, Mr. Corva, would you approach the bench?”
Pierce and Corva stepped up to the higher level of the pulpit on the side away from the witness chair. Colonel Sproule faced them and addressed Pierce in a low voice. “Colonel, if I am to believe Mr. Corva, he is attempting to establish what he believes are extenuating and mitigating circumstances for the crime which you have proven. I suggest you let him do that. Unless you have good and substantive objections to the testimony, I will overrule you. If this testimony takes you somewhat by surprise because of the sudden appearance of this witness, I will give you ample time to prepare a cross-examination during which you may address these objections within that format. I remind you that the defense has the benefit of the doubt in these matters. The charges having been proven, I intend to give the defense even more leeway in presenting facts which might lessen the sentence. I believe the board is looking for those facts.”
Pierce stayed silent for a moment, then responded, “Yes, your honor.”
Sproule turned to Corva. “I’ll let the man talk, Mr. Corva, but I strongly suggest you do not attempt to retry this case in this session.” Sproule looked from one to the other and said tersely, “Understood?”
They both answered in the affirmative.
Sproule faced forward on the pulpit and said, “Proceed with the examination.”
Pierce went back to the prosecution table, and Corva to the witness chair. Corva addressed Kelly. “During the burial mound incident, did you hear Lieutenant Tyson give an order to shoot the peasants who were burying the dead?”
“Yes.”
“Now . . . I’m going to ask for an opinion, Mr. Kelly. . . .” He glanced sharply at Pierce. “. . . And the court knows it is only your opinion. But as a man who had served with Lieutenant Tyson in the field for approximately eight months before that incident, what was your opinion of that order?”
Kelly replied, “On the face of it, it was an illegal order. But it is my opinion that it was not given in earnest. It was meant to shame.”
“To shame whom?”
“Me, for one. Farley, Simcox, and I were making threatening gestures toward the peasants, generally being abusive. The strip search, for instance, could have been handled with more tact. I could see that Lieutenant Tyson was becoming annoyed with us. So, in a manner of speaking, he called our bluff. And we were bluffing. We had no intention—at least I didn’t—of shooting those people. It was a bluff that we used too freely with the Vietnamese. After Lieutenant Tyson gave the order, no one moved for some time. He did not repeat the order or attempt to enforce it in any way. He then said, ‘Okay, heroes, let’s get moving.’ Or words to that effect. He said it with sarcasm.”
Corva asked, “Did you discuss this with him afterward?”
“No. There was nothing to discuss. If I had thought he was serious about the order, I would certainly have discussed it with him. But the order was too out of character to take it as anything but what I said it was.”
“Did you discuss it with Farley?”
“No.”
“Do you think Farley understood that the order was a bluff? Meant to shame?”
Pierce got to his feet, thought better of it, and sat.
Tyson could see that the board and Sproule were intent on hearing the story. And Pierce, as Corva had suggested some time ago, knew when to withdraw. Pierce had to weigh the effects of letting Kelly tell the story against the effects of not letting him tell it.
Corva repeated the question to Kelly.
Kelly replied, “Farley was not a man who understood subtleties. Yet, on this occasion, I believe he understood that Lieutenant Tyson did not mean for us to shoot those people. Simcox understood it. He commented to me as we left the burial mound that Lieutenant Tyson was too soft on the gooks. I don’t think he would have said that if he believed that Lieutenant Tyson’s order to shoot them was meant in earnest. Farley was in earshot and responded, ‘Yeah.’”
Corva nodded, then said, “Thank you. We can move on or rather, move back, to an incident of some months previous to this incident which occurred in either late November or early December. I’m referring to an operation that was known as a cordon. Alpha Company was working with the Vietnamese National Police at a village south of Quang Tri. Do you recall this operation?”
“Yes. We’d done four or five of them before. Regarding this particular one, everything went as planned. The village was surrounded two hours before dawn. At dawn, we sent a few squads in to be sure the village was not infested with armed enemy soldiers. Then the squads withdrew. Sometime later, within the hour, a large Chinook helicopter landed, and about forty or fifty National Policemen got out. Their officers exchanged some words with our officers, who assured them the village did not harbor any large enemy force. The National Police then entered the village with the objective of finding VC who might be hiding in holes or tunnels, VC sympathizers, VC political cadres, arms caches, documents, and that sort of thing.”
“What was your personal opinion of this sort of operation? I ask that, because I was an infantry officer and know my opinion of it.”
Kelly replied, “These operations were distasteful to me personally and to many other men in the company. The National Police usually—no, always—behaved very badly toward the local population. After we’d swept through the village, we were normally not allowed to go back to see what they were doing, but you could hear th
e screams.”
“Screams.”
“Yes. They would vigorously interrogate the villagers.”
“How vigorously?”
“Usually with the aid of electric shock treatments to the genitals. They brought their own hand-cranked generators. They would also suspend people by rope or wire upside down into the wells until they nearly drowned. They used other means of interrogation which were peculiar to the Orient and which probably should not be discussed here.”
“Of course. Now, you said Americans were not allowed in the village during this period of interrogation.”
“Correct. However, the officers in the American unit involved sometimes entered the village for purposes of discussing tactical matters with the National Police commanders. As Lieutenant Tyson’s RTO, I, of course, would go with him. On those occasions, I personally observed what I stated earlier.”
“How did Lieutenant Tyson feel about these operations?”
“He had negative feelings toward using American troops as accomplices to this sort of thing. He wrote a memo once to the battalion commander protesting what he said amounted to condoning these brutalities. He made the point that it was demoralizing for his troops to see the results of it, as we always went through the village after the police had gone. After his letter to the battalion commander, Alpha Company never again participated in these joint operations with the National Police.”
Corva asked, “What happened on that particular operation? The one that led to the altercation.”
“Lieutenant Tyson’s platoon was stretched out along a dike, forming a side of the cordon. From here we could see into a part of the village. The National Police had a dozen people, all naked, of all ages and sexes, lined up at a well. We could see them lower the first person down the well.”
“What was the purpose of this sort of thing?”
“It was supposed to encourage the villagers to point out the VC spider holes, tunnels, arms caches, and to turn in any VC among them. But, to my mind it was—or became—nothing more than a thinly disguised sado-sexual orgy. They often got a VC or two and a weapon or two, but the price was too high.”