Word of Honor (73 page)

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 WORD OF HONOR 0 567

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. "

Pierce did not acknowledge the admonition. He stood, and Tyson noticed that Pierce's bright red hair was now military length, perhaps to make points with the board.

Pierce moved around the table and stood in the center of the floor where the altar had been. He faced the board, so that his profile was to Sproule and to the spectator section. He began, "President and members, the accused is charged with two specifications of murder under clause thrWof Article 118 of the Code. We are not charging premeditated murder, but we are charging that the accused, by his actions, engaged in, or allowed others to engage in, acts which showed a wanton disregard for human life leading to and causing mass murder."

Pierce spoke in even, measured tones. "These murders took place nearly eighteen years ago. The victims in Specification One are unnamed, and I cannot give you their names. I cannot give you their ages, nor can I tell you how many there were of either sex. I can produce for you no bodies, no death certificates, no pictures, no graves. I can, however, produce two witnesses who can attest to these deaths." Pierce paused in thought.

Tyson looked out at the pews. He realized that without a microphone, Pierce's voice was not carrying well, but the

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effect was to make everyone strain to hear every word, and there was not even the sound of breathing from the hundreds of men and women out there.

Pierce continued, "In Specification Two we have names and ages and sexes.

We have this information from the Catholic Relief Agency for whom these people worked at Misdricorde Hospital. These people, fourteen of them, according to that agency, simply disappeared one day during the Tet Offensive in the month of February, in the year 1968. They were never heard from again. Now we think we know what happened to them."

Pierce paused again and turned his head toward Colonel Sproule, then glanced briefly over his shoulder and looked at Tyson. Pierce faced the board again. "In order for the government to prove a charge of murder against the accused, we must establish several connecting points: We must first establish that Lieutenant Tyson was in command of the platoon involved in this incident. We must establish that Lieutenant Tyson's platoon was at Mis6ricorde Hospital on 15 February 1968. We do not have to establish that Lieutenant Tyson was physically present at the scene of the alleged murders, but we will do so. We will also establish that willful and wanton murder took place there. And we will establish that Lieutenant Tyson ordered those murders, or did nothing to prevent those murders, or conspired to conceal the facts of those murders from his superiors. It is not necessary to establish that Tyson himself committed any of those murders with his own hands; and in fact, the government will not try to establish that."

Pierce looked at each member of the board. "As officers, you understand and appreciate the fact that Lieutenant Tyson, as the officer in charge of the body of men at Misdricorde Hospital, had the lawful responsibility to either anticipate, prevent, stop, or report the unlawful actions of his men. If the government can prove that he failed to carry out any one of his lawful responsibilities, then the law and Army traditions and customs clearly indicate that Lieutenant Tyson is guilty of willful and wanton murder. "

Colonel Pierce drew a thoughtful breath and went on, "I would like to draw to the attention of this court the Department of the Army's own Law of Land Warfare. Spe-WORD OF HONOR 9 569

cifically, Article 501, a copy of which will be submitted to the court.

The article is headed 'Responsibility for Acts of Subordinates' and reads as follows. " Pierce quoted without reference notes, " 'In some cases, military commanders may be responsible for war crimes committed by subordinate members of the Armed Forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander.' "

Pierce, still facing the board, half turned and pointed behind him to Tyson. "Lieutenant Tyson, as an officer, had direct knowledge of the Law of Land Warfare and in fact was required to instruct his troops in the provisions of this law. He carried with him at all times, as per MAC-V

orders, a plastic card on which was printed a condensation of the Law of Land Warfare. " His voice rising, Pierce said, "This should have been a constant reminder to him, if indeed one was needed, that the massacre of unarmed, unresisting, and, in this case, sick and wounded nonbelligerents was a violation of the Law of Land Warfare, not to mention a violation of the Uniform Code of Military Justice and of the Geneva Convention. And it was also in direct contradiction to his training and to what he learned and was required to teach his men on the subject of the rules of engagement in Vietnam. In point of fact, as an officer and a troop commander, who had served ten months in Vietnam, the accused knew full well what his lawful responsibilities were in regard to command and control of his troops."

Pierce moved a step closer to the board and said, "You members of the board, as officers, are fully aware that an officer with command responsibilities may commit a violation of the Code through the actions of his men, that an Army officer may commit murder without having personally murdered. That indeed, many of the most infamous and brutal acts of murder perpetrated by soldiers against civilians have been committed in the manner set forth in the charge and specifications."

Pierce added, "The testimony you will hear should leave no doubt that the accused did in fact commit acts of murder

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as defined by the total body of military law, rules, regulations, customs, and the traditions of the officer corps. Thank you." Pierce walked back to the prosecution table, glancing briefly at the spectators for the first time.

Colonel Sproule turned to Corva. "Does the defense have a preliminary statement?"

Corva stood behind his table. "Yes, your honor. And the defense will keep in mind the court's instructions regarding such statements. "

"Proceed," said Sproule.

Vincent Corva surveyed the court, then said, "The defense, in the interests of justice and keeping in mind that a trial by court-martial ought not to be a vehicle for obfuscating self-evident truths, has made several pretrial stipulations. The first stipulation was that Lieutenant Tyson was in fact the platoon leader of the first platoon of Alpha Company, Fifth Battalion of the Seventh Cavalry. The second stipulation we made was that his platoon was in fact engaged in operations in or about the area in question. We further stipulated that these operations led to an engagement in the vicinity of a building that was discovered to be a hospital or infirmary. We even went so far as to stipulate that, though

,no one at the time knew the name of this facility, we would be willing to assign it the name of Mis6ricorde Hospital for the purposes of this case. The fourth stipulation was that Lieutenant Tyson was present when the alleged events occurred. Therefore, the prosecution's contention that it must establish those connecting points is in error. The defense has stipulated to those points, and any questioning of the witnesses that makes it appear to the court that the prosecution is uncovering new and incriminating truths would be . . . misleading to the court."

Corva looked at Pierce for a moment, then continued, addressing the board directly, "At some length, the prosecution has appealed to you as officers to understand what you undoubtedly already knew: that an officer is responsible for his men." Corva paused as though reluctant to pursue the point, then said, "I do not mean this in a pejorative way, but it is the sort of thing that an officer of the Judge Advocate General's Corps might think it necessary for you

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to be reminded of, though you, as career officers in the mainstream of Army life, live that fact every day."

Tyson glanced at the prosecution table and saw that Pierce's face was quite red, though it wasn't embarrassment that caused the interesting color, but anger. Tyson looked at the board, but again he saw nothing beyond the impassive expressions that are peculiar to juries.

Corva cleared his throat and said, "I had the honor of serving my country as a combat infantry officer in Vietnam. And during that time, I had no difficulty remembering my duties or responsibilities or the rules of engagement or the Law of Land Warfare or that I was ultimately responsible for the actions of my men. I assure you that Benjamin Tyson as a combat leader knew his duties and responsibilities as well. Yet, the prosecution has asked you to keep all these things in mind as though they were the central issues for you to consider as you hear this case. However, the issue is not whether or not Benjamin Tyson was responsible for the actions of his men. He was. The issue is what did his men do." Corva stroked the bridge of his nose in thought. "And," he added, "what did Lieutenant Tyson do."

Tyson suddenly realized that Corva had prepared no preliminary remarks; that Corva was extemporaneously rebutting what Pierce had said and was doing a fine job of it.

Corva again met the eyes of each member of the board. He said, "The prosecution has appealed to you as officers to understand the unique circumstances of command culpability and command responsibility. I appeal to you as soldiers-soldiers who have seen combat or have heard of combat from your fellow officers and from your men. I appeal to you to keep in mind that whatever you hear in this case, including the testimony of the defense's own witnesses, is the testimony of an event that took place eighteen years ago. But more importantly, it is the testimony of an event that was seen through the eyes of men who had already seen too much of war.

Through the eyes of men who were themselves confused and frightened.

Through the eyes of men who were, at the time of the alleged crime, caught up in the heat of battle. It is the intention of the defense to show that whatever deaths took place-at Misdr-572 * NELSON DEMILLE

icorde Hospital, including the deaths of two American soldiers, took place as a result of hostile action and hostile action only. But if the accounts of that action seem to differ, I ask you to remember your own war stories or those you have heard. I ask you to consider that when the soldier comes home, what he remembers is a fraction of what he forgets, and what he forgets is what he chooses not to remember. Ultimately, all war stories, all the war stories you will hear in sworn testimony, are as true as they are false. The details are as clearly remembered as they are fabricated.

And the motive for all testimony is as noble as it is self-serving. Thank you." Corva lowered himself slowly into his chair.

Colonel Sproule stared fixedly over the heads of the silent spectators.

There was no movement in the chapel for some time, then Sproule looked at Pierce. "The prosecution may call its first witness. "

Pierce stood and turned to the sergeant at arms standing at the side altar door. "The prosecution calls its first witness, Mr. Richard Farley."

Richard Farley came through the door in a

battery-powered wheel-

CHAPTER chair, guided by Ser-

geant Larson. Pierce

himself moved aside

the witness chair and

indicated to Larson

where to position Far

ley's chair. The MP

turned Farley. toward

44the pews. Pierce said

solicitously, "Is that

all right, Mr. Farley?"

4, Yes, sir," replied Farley in a weak voice.

Corva grumbled, "Next comes 'Are you comfortableT

Pierce asked Farley, "Are you comfortable?"

"Yes, sir. "

Tyson stared at Richard Farley, dressed in an ill-fitting blue suit, his hair long, and his complexion unhealthy. His trousers hung loosely over his wasted legs.

Colonel Pierce seemed to be trying to think of another 573

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solicitous question when Colonel Sproule said, "The witness will be sworn in."

Pierce adjusted the floor microphone so it was closer to Farley, then said, "Please raise your right hand."

Farley raised his right hand, and Pierce recited, "You swear that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth, so help you God."

"I do.-

Pierce said, "Please state your full name, occupation, and residence."