Pierce walked a few steps back toward the defense table, then turned and concluded, “The government has presented the facts which prove, beyond a reasonable doubt, that a violation of the Uniform Code of Military Justice occurred and that the violation was murder and that the specifications, as written, accurately reflect the nature of the violation; that the accused engaged in acts which were inherently dangerous to others and which evinced a wanton disregard of human life.”
Colonel Pierce took his chair.
Colonel Sproule turned to Corva. “Does the defense wish to make a final argument?”
Corva stood. “It does, your honor.”
“Proceed.”
Corva came out to the center of the court and began, “May it please the military judge, members of the board. You have heard the case of the United States against Benjamin Tyson. You have heard two witnesses, Richard Farley and Steven Brandt, who constituted the whole of the prosecution’s case against the accused—whose testimony constituted the whole of the evidence which is necessary to prove the serious charge of murder. If we are to believe that the witnesses are unbiased and unprejudiced toward the accused, then we have failed to understand the true nature and underlying meaning of the testimony. Even if we are to believe that Messrs. Brandt and Farley witnessed a massacre—and the defense does not contend anything to the contrary—then we must focus on two words: ‘Shoot them,’ the words that Brandt contends were used by the accused in giving an unlawful order. Farley’s testimony as to that direct order was somewhat different. So, we are to ignore the fact that two prosecution witnesses cannot recall, after eighteen years, names, places, or words of their comrades. But we are to believe Steven Brandt when he says he can recall Lieutenant Tyson saying, ‘Shoot them.’ And we are to believe Steven Brandt when he states that Lieutenant Tyson did nothing to stop the troops under his command from committing murder. Yet Steven Brandt cannot even remember who committed the acts of murder which he says he saw or which he says he thinks he saw. Steven Brandt has a very selective memory.”
Corva paused and glanced at the empty witness chair, then at Pierce. He turned again to the board and continued, “The prosecution has called to your attention the fact that the testimonies of the two prosecution witnesses do not agree in all respects. But when the witnesses made reference to Lieutenant Tyson, there seemed to be little inconsistency in their statements. If we are to believe that the variations in the testimony were due to the fact of the witnesses perceiving the event from different perspectives or that their different perceptions were a result of different personalities or sensibilities, then why are they in such agreement on the facts which tend to incriminate the accused?”
Corva paused, pulled at his lip awhile, then said, “Brandt. Brandt has told you that he feared for his life. That he was approached by members of the platoon after the incident and threatened. If we believe that, why not believe that Lieutenant Tyson, too, feared for his life? The prosecution has stated that the accused engaged in a conspiracy to cover the facts of this alleged crime. If we believe Brandt that a conspiracy was hatched in that bunker and that Brandt went along with it only to save his own life, then why not believe that of the accused? For surely, if there were two outsiders among the men of that platoon, they were Benjamin Tyson and Steven Brandt. The testimony of the witnesses has in fact painted a picture of not only a massacre but a mutiny. And though the defense has stipulated to certain facts, the defense does not accept as fact that Lieutenant Tyson made no oral or written report regarding the incident in question. The prosecution asks you to infer from the lack of physical evidence that no report was made. But no such inference can or should be drawn. In deciding on whether or not Lieutenant Tyson properly reported to his superiors the events in question, the board should consider that no reasonable man would attempt to make such a report while his life was in imminent danger. If Lieutenant Tyson radioed false reports to his company commander while in the physical presence of at least a dozen men who had just committed mass murder, I think you can conclude that he acted reasonably. And in the days that followed, while still in the field, at a time of intense enemy activity, you can conclude why he made no report to his superiors. But sometime between 15 February and 29 February, the day Lieutenant Tyson was wounded and evacuated, can the prosecution, can the two witnesses, can anyone say that no oral or written report was made? Would it be beyond the realm of possibility for you to believe that an oral report was made to Alpha Company’s commander, Captain Browder, and that Captain Browder had no time to alert his superiors before he was killed on 21 February? Would any amount of searching in the Army archives come up with a scrap of documentary evidence to show that the accused fulfilled his obligation to report a violation of law? Probably not. But that does not constitute proof that the accused made no such written report. And if the accused made such a report, oral, written, or both, and he observed that no action was taken on that report, what is he to do? Make a second report? Yes. And what if he did? And what if still no word comes to him acknowledging his report? What is he to conclude? That it was lost? That it was purposely lost? Would that be the first time such a thing happened? And when Lieutenant Tyson was wounded and medically evacuated and eventually left the Southeast Asian theater of operations, what was his responsibility regarding this incident? Should he have pursued it? Undoubtedly. Did he? Perhaps. Did the prosecution prove anything to the contrary? It did not. Is it the responsibility of the prosecution to prove the charges it has alleged, or is it the responsibility of the defense to disprove the charges?”
Corva came closer to the board table so that he was within a foot of it and looked up and down the table at the six members. “The prosecution has proved to me beyond a reasonable doubt that a massacre of innocent and defenseless people occurred at the time and place stated in the charge sheet. I am convinced. But the enormity of this crime ought not to cloud anyone’s judgment regarding the culpability of the accused in those events. The fact of a crime does not constitute the presumption of guilt of everyone at the scene of that crime. If it did, then the defense table ought to have at least two more people sitting at it: Brandt and Farley.”
Corva nodded, turned, and walked back to the table.
Colonel Sproule stood behind the pulpit, nearly motionless for close to a full minute.
Corva began straightening and stacking the papers on his desk.
Colonel Sproule said finally to Colonel Pierce, “Does the prosecution have a rebuttal argument?”
“Yes, your honor.” Pierce stood and snapped at Corva, “The suggestion that the government witnesses are indictable is obscene. If the accused had done his duty as an officer none of us would now be sitting here.”
Corva got to his feet and glared at Pierce. “If the witnesses engaged in lies and cover-ups eighteen years ago, there is no reason to believe they are telling the whole truth now.”
Colonel Sproule said tersely, “That will be all, gentlemen.” He asked Pierce, “Does the prosecution have anything further to offer?”
“It has not.”
Sproule addressed Corva. “Does the defense have anything further to offer?”
Corva stood. “It does not.”
Sproule said to the board, “The prosecution and the defense have rested. It only remains for you members to consider the evidence. This court will adjourn for the purpose of completing administrative matters and securing transcribed testimony that you may require in your deliberations. You are advised not to deliberate this case or discuss it in any way among yourselves until I have instructed you in your duties. The court will adjourn until ten hundred hours tomorrow.”
Tyson stood.
Corva put his papers into his briefcase.
Tyson lit a cigarette.
Corva snapped his briefcase shut.
Tyson watched the pews emptying and saw Marcy and David walking down the aisle, their way being cleared by MPs.
Corva said, “Well.”
Tyson said, “Th
e defense rests.”
“Yes.”
“But the defense never played the game.”
“Nevertheless, the defense rests.”
Tyson shrugged. He looked at his watch. “Lunch?”
“Why not?”
Tyson followed Corva toward the side door.
The last MP in the place, Sergeant Larson, stood at parade rest near the door. He said, “Very nice, Mr. Corva.”
“Thank you.”
“See you both tomorrow.”
Tyson nodded as he entered the corridor. It occurred to him that tomorrow there would be armed MPs as was customary on the day of the verdict. And that Sergeant Larson would be in charge of the escort that took him away in cuffs.
He suddenly remembered his dream and the man in the dream telling him he had five more years to serve. And the dream seemed now to be a presentiment of his sentence.
CHAPTER
49
At 10 A.M. Colonel Walter Sproule called the court to order.
Sproule looked tired, Tyson thought, and he was sitting more on the high stool than he was standing. His face seemed whiter, and his eyes had a sunken appearance. Sproule waited until the court was assembled and the spectators had settled down. Then, as if someone had pumped air into him from behind the pulpit, he straightened up, rested his hands on the side of the pulpit, leaning slightly forward like a preacher about to deliver a message of hellfire and brimstone. Sproule’s voice even sounded stronger as he spoke into the microphone. “President and members of the board, you have heard the testimony in the case of the United States against Lieutenant Benjamin J. Tyson.”
Sproule began his charge to the jury, reading from typed sheets, behind the pulpit wall. He spoke in a steady voice with no inflections that would give color or weight to any point he was making.
Within ten minutes of Sproule’s opening sentence, Tyson knew that Sproule, who had been almost taciturn up to now, was going to give a detailed and lengthy charge to the six members who had, Tyson suspected, already made up their minds.
Sproule went on. He made the point that Pierce had made in his preliminary remarks, the point about technical murder.
“In assessing the witnesses,” Colonel Sproule said, “you may consider the witnesses’ relationship to the accused, their apparent intelligence, and general appearance of candor. In considering the extent of culpability of the officer charged, you may consider his rank, background, education, Army schooling, and his experience in the field during prior operations involving contact with hostile and with friendly Vietnamese. You may consider his age at the time of the alleged incident and any other evidence which might help you in determining if the accused willfully aided, abetted, ordered, or concealed a mass murder. But first you must be certain beyond a reasonable doubt that the testimony of mass murder which you have heard was truthful.”
Sproule went on in a somewhat convoluted manner, explaining the merits of the government’s case, then the merits of the defense. He pointed out weaknesses in both cases and said, “You must be satisfied from the evidence, which consists solely of testimony, that the accused acted unlawfully, and further that any unlawful acts that the accused may have committed constitute murder. You must have an abiding belief, amounting to a moral certainty, that Lieutenant Benjamin Tyson is guilty as charged. I must remind you that because of the statute of limitations, there is no lesser included offense of which you may find him guilty. You may not return a verdict of manslaughter. You may not return a verdict of dereliction of duty, conspiracy, or any other lesser offense. You may only return a verdict of guilty or not guilty to the charge and to one or both of the specifications.”
Colonel Sproule explained the procedures under which the board had to operate, and it was apparent that he was explaining it not only to the board, who most probably knew the procedures, but to the civilian spectators and the press. He said, “There is no possibility in a trial by court-martial of a hung jury. The first vote on the charge will be decisive. To convict, four or more of you must have voted guilty. To acquit, three of you or more must have voted not guilty. So I urge you to deliberate for as long as you feel necessary before you cast your first and only ballot. If you vote to convict on the charge of murder, then you must vote on the specifications. You may vote to approve one or both of the specifications. If you cannot in good conscience vote for either specification as written, but you have voted to convict on the overall charge, then it is within your power and your duty to change the wording of one or both specifications so that it comports with your reasoning behind your guilty verdict. I warn you, however, that a rewording of the specifications may change their meaning to the extent that they define manslaughter. In such a case, the accused would be not guilty of any chargeable offense under the Code.”
Colonel Sproule said, “If you have reached a verdict by sixteen-thirty hours, you will return to this court to announce that verdict. If you have not reached a verdict by that time, you will be housed in the post bachelor officers’ quarters and will not deliberate there. If you wish to deliberate this evening, you must arrange to be taken back to the deliberation room that has been set aside for you in the adjoining office wing.”
Colonel Sproule continued, “I must remind you that you have sworn not to disclose or discover the vote or opinion of any particular member of the board. That is to say your vote and your reasoning for it are to remain secret after this court is adjourned and for all time.”
Colonel Sproule leaned farther to the side of the pulpit toward the board and concluded, “The final determination as to the weight of the evidence and the credibility of the witnesses in this case rests solely upon you members of the court. You must disregard any comment or statement made by me during the course of the trial which may seem to indicate an opinion as to the guilt or innocence of the accused, for you alone have the independent responsibility of deciding this issue. Each of you must impartially resolve the ultimate issue as to the guilt or innocence of the accused in accordance with the law, the evidence admitted in court, and your own conscience.” Colonel Sproule straightened up and announced, “The court will be closed.”
Tyson looked at his watch. The charge to the jury had taken a full forty-five minutes, and now all the words that could possibly influence them had been spoken.
* * *
Benjamin Tyson stared silently out the window of Rabbi Weitz’s office. It appeared that all the spectators had left the chapel and were now milling about over the lawns in the cool autumn sunshine. There were, in addition, several hundred people across the road behind MP barricades.
Corva poured himself a cup of coffee. “Do you want to go outside?”
“No.”
“Don’t you want to see your family?”
Tyson continued to stare out the window. “No.”
Corva came up beside him and glanced out the window. “They look properly subdued. Respectful. It wasn’t such a circus.”
“Yes.” The scene actually reminded him of a cigarette break outside a funeral home; people are introduced, there is the occasional brief smile. Everyone has their back to the place, not wanting to be reminded of why they are there. The final sermon is about to begin, so no one strays too far.
Corva turned from the window and stood beside the desk. He put cream in his coffee. “Are you satisfied with how the trial went?”
Tyson said with a touch of sarcasm, “I suppose if one has to be tried for murder, that was as good a trial as one can expect.”
“I mean,” said Corva, a bit impatiently, “are you satisfied with how I represented you?”
“I’ll let you know after the verdict.” Tyson noted that Corva’s manner was somewhat cool. He supposed that was a defensive response. He felt badly for Corva having to wait here with him. Tyson said, “Why don’t you take a walk?”
“You mean I’m fired?”
“No. A walk. In the fresh air.”
“I wouldn’t get fifteen steps before the media surrounded
and annihilated me. I’ll stay here until we’re called. Or until four-thirty.” Corva added, “But if you’re going to smoke, open the window.”
Tyson opened the window and felt the rush of cool, crisp autumn air. “How long do you think this will take?” He turned from the window.
Corva shrugged. “The trial was relatively short. There isn’t much to consider except testimony. They may ask for transcripts of that.”
Tyson waited, then asked again, “How long? Days? Hours? Minutes? Do I have time to finish a cigarette?”
“Court-martial deliberations are usually short. There is only one vote, and it is binding.” He paused. “I suspect that everyone’s mind was made up as they rose from their seats.”
Tyson nodded distractedly.
Corva said, “There is no reason for them to pretend they agonized for days. In fact, there is subtle pressure on them to make up their minds. They are officers. They have heard the case. They have duties awaiting them. They would rather be back with their units than here. So, to give you a precise answer, I expect a verdict before four-thirty.”
Tyson looked at the wall clock. “Six hours.”
“Yes. More than ample time.”
Tyson contrived a smile. “Nervous?”
“Anxious.”
“You going to break your streak?”
Corva smiled wanly but didn’t reply.