Tears in the Darkness (58 page)

Now, after four years of total war, a war in which belligerents killed innocents in far greater numbers than they had killed one another, the victors were determined to expand the idea of “command responsibility,” at least as it applied to the men they had defeated, men, by the by, who had once defeated them.

It was new law applied retroactively, ex post facto law, the kind of law prohibited by the U.S. Constitution. And Tomoyuki Yamashita and Masaharu Homma were to be its first defendants.

Each man was charged with failing “to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes.”
¹⁶

“Permitting them . . .” What did that mean? The victors had taken a doctrine of English common law,
respondeat superior
(the principal must answer for the actions of his agents), and applied it to war, this against all precedent and tradition.

 

IN THE NEWSPAPERS
Homma was reading, and in press accounts worldwide, editors were portraying Japan's accused war criminals as atavistic butchers. One of Yamashita's lawyers was convinced that Americans “believed firmly that all Japanese army officers were ‘Samurai fanatics' . . . whose hands dripped with the blood of helpless and innocent women and children.” Sensibilities were particularly raw in Manila, which ranked as one of the most ruined cities of the war, a checkerboard of rubbled blocks and razed buildings. Even the structure where the trials were taking place (the former residence of the United States high commissioner to the Philippines) had been badly damaged, its façade still pockmarked with bullet and shrapnel holes. No trial could have taken place in a more charged atmosphere or in more inimical surroundings.
¹⁷

The defense team for each man was understaffed and overworked. Yamashita's six lawyers had only a small staff of clerks to help them prepare the case. The six prosecutors, meanwhile, had all the investigative and legal machinery of the War Crimes Office in Washington, the War Crimes Branch of MacArthur's staff in Tokyo, and the Army War Crimes Investigation Detachment in Manila—scores of lawyers and investigators working six days a week to turn up volumes of evidence and churn out hundreds of charges and the legal precedents to support them.

The prosecution's strategy in both trials was the same: introduce into evidence, through long bills of particulars (123 separate allegations against
Yamashita, 47 against Homma), as many atrocities as they could get on the record, then use the weight and scope of that record—the evidence detailing acts of torture, rape, and murder by various means, among them beheading, bayoneting, bludgeoning, hanging, and incineration—as proof that the atrocities were planned and so widespread that the commanders must have known they were taking place but did nothing to stop them.
¹⁸

Yamashita's lawyers put up a good fight. In a series of motions and objections, they challenged every aspect of the case—the validity of the charges, the loose rules of evidence, even the legitimacy of the court itself. All the arguing made MacArthur, monitoring events from his headquarters in Tokyo, impatient, and he pressured the Yamashita commission to speed up its work. The five judges on the commission in turn warned Yamashita's lawyers that henceforth all they wanted to hear were the “essential facts without a mass of non-essentials and immaterial details.” Trial tactics such as “extended cross-examinations” were little more than “fishing expeditions” that served “no useful purpose . . . wasting valuable time,” they said. Such tactics, they warned, “verged on contempt” and “insubordination” and were “grounds for [a] court-martial,” an admonition that left Yamashita's lawyers feeling that they were fighting “the demands of the mob for vengeance,” the private agendas of the judges, and the judges' superiors in Tokyo and Washington as well.
¹⁹

[
Homma, Prison Diary, December 8
] (Saturday, cloudy) A man in full military gear brought an American newspaper and showed it to me. Yamashita was given the death sentence. This is the worst possible result. Now I have to finally prepare myself. The cold pierces my body through the concrete. I go to bed at 8:30.

 

[
December 9
] (Sunday, sunny) I lay awake thinking about Yamashita's death sentence . . . If Yamashita, who was a test case for me, was sentenced to death, I shall receive the same sentence. The cruel acts that were committed by Yamashita's subordinates were unspeakable . . . I'm not sure what else they will charge me with . . . From the point of view of “responsibility as a commanding officer” we are the same.

FIRST LIEUTENANT ROBERT L. PELZ
was marking time, waiting for orders the army was done with him. He'd been overseas three years now, first in Europe, then since late summer here, at a dusty base near Lingayen
Gulf doing his job as an adjutant, an administrative officer for a battalion that handled the logistics of the port. Not a bad billet for a twenty-seven-year-old New Yorker with a law degree from Columbia University who had done his duty and was eager to get home and start his career with some tony Manhattan law firm.
²⁰

The work was easy. Twice a day, midmorning and midafternoon, the lieutenant had to make sure the daily shipments of supplies, mail, and newspapers were distributed to the various commands in the islands. The rest of the time was his, and he spent it reading books, thinking about women, and counting the days till he could shed his uniform and take a ship home.

One day in late November, sitting at his desk and going through the day's mail and circulars, he noticed a directive from headquarters: “Every battalion shall report to this command the names of all officers who are lawyers.”

What an odd request, he thought. What the hell did the army want with lawyers? And against all common sense and conventional army wisdom (a smart soldier kept his head down off the battlefield as well as on it), he picked up the telephone and called the adjutant at headquarters, a man he knew and who knew him.

“What do you want lawyers for?” Bob Pelz asked.

“Well, there's a high-level order we got here—” The man stopped midsentence. “Wait a minute!” he said. “Aren't you a lawyer?”

Bob Pelz knew instantly he'd screwed up.

“Well,” he stammered, “no, not exactly.”

“What do you mean, not exactly?”

His acquaintance sounded annoyed. “Did you pass the bar exam or not?”

“Well, yes,” Bob Pelz said, “but I never practiced.”

There was a pause, as if the man was scribbling something.

“I've got your name down,” he said. “I'm not fooling around with this order. This came from Big Shot himself.”

[
Pelz, Journal, December 4, 1945
] Major English and I have moved heaven and earth to get the [new] orders [to report to the judge advocate general's office] revoked . . . This setup [here in Lingayen] is too magnificent to leave . . . Manila doesn't sound attractive, and I'm too close to
going home to want Japan. Besides, I have absolutely no spirit of adventure, I like my cozy comforts too much.

 

IN DECEMBER
1945, when Bob Pelz reported for duty, the judge advocate general's office at army headquarters on Quezon Boulevard in Manila was a busy place. Dozens of officers with law degrees had been reassigned to the office to prosecute and defend 215 Japanese accused of war crimes in the Philippines. The trials were run two or three a day, the defendants representing all ranks and echelons. Each accused was given an attorney or two, depending on the complexity of the case, drawn from the pool of lawyers summoned to Manila.
²¹

It was interesting work for a smart New York lawyer, but Bob Pelz was still grumbling about his lot. “What the hell do I have to defend a Jap for?” he asked himself. “I mean, I hate the Japs. You read
The New York Times
and you can't help but hate the Japs. These son of a bitch defendants are keeping me from getting home.”

Officially the defense attorneys were told to “fight” each case “on its merits” and keep their defendants from being “railroaded” by the military commissions. Unofficially they were reminded of the purpose of the trials—to make sure war criminals got what they deserved. “It was obvious that we are not expected to put up a gigantic defense,” Bob Pelz wrote in his diary. “We are supposed to be good soldiers and go along.”

He spent his first days on the job boning up on military law. (“Note: bill of particulars is a detailed informal statement of a plaintiff's case of action,” he wrote.) Nights he explored what was left of exotic Manila, the “luscious tenderloin steaks” flown in from the States, the “bewilderingly attractive Filipino girls” at the new dance halls.

Then, one afternoon, waiting for his first client to show up, he learned that he was being assigned to a new case. A prominent Japanese lieutenant general, Masaharu Homma, had just been flown in from Tokyo under great security to stand trial for his life. This was more like it. “His trial will be well-publicized,” Pelz wrote, “and probably exciting.”

 

THERE WERE SIX OF THEM
on the defense team. Major John Skeen, lead counsel, was a twenty-seven-year-old admiralty lawyer from Baltimore who had never argued a case in court. Captain George Ott was a corporate
lawyer, and Captain Frank Coder was a field artilleryman. First Lieutenant Leonard Nataupsky, like Bob Pelz a newly minted attorney, had been working in the Quartermaster Corps. And Captain George Furness, a New Englander, was a real estate lawyer.

As a group they had only scant trial experience and no background at all in complexities of criminal law or the tactics of defending a client in a capital case. The six prosecution lawyers, meanwhile, were experienced and well prepared. They were part of a large legal machine and had been working together well in advance of the case coming to trial.

Looking at the two lineups made Bob Pelz smile. Seemed to him “they took all the good ones and made them prosecutors, and the amateurs, the dumb ones, they put on the defense.”

First thing the dumb ones did was meet with their famous client.

[
Pelz, Journal, December 16
] He was obviously nervous and eager; he looked like a tired-out grandfather who has girded his loins for a last battle. Bowing graciously to each of us, he sat down and read a little speech he had written in English . . . Very intelligent, he has prepared much of his defense to those charges he had heard about . . . Basically, [he says] he knew nothing of these atrocities. As he put it, only an Oriental can understand that a Jap General does not question the actions of his subordinates.

An arraignment was scheduled for Wednesday, December 19, and the day before, the five general officers of commission took the attorneys through a dry run. Their putative purpose was to make sure all the parties understood the procedures for the trial, but Major General Leo Donovan, who had served on the Yamashita court and who was president and law member (chief judge) of the Homma court, had another agenda. He was not going to let this particular team of defense attorneys use the same trial tactics employed by Yamashita's defense team, tactics that had annoyed MacArthur.

“I'm not trying to hamstring anybody,” Donovan said. “I'm perfectly willing to hear your side of it.” But everything, he went on, everything was going to be done with dispatch. Any lawyers' tricks, he went on, would be considered a “perverse opposition to lawful authority.” In other words, the military lawyers would be in contempt of court, or worse.

Donovan's fulminating aside, Bob Pelz thought “the arraignment
went smoothly.” There were a number of reporters and photographers there, and the defense team, aware of the part public opinion would play in the trial, tried hard to court them. The next day a picture of Homma surrounded by his American attorneys appeared in the
Manila Times
. “General Homma, I thought, made an excellent appearance in a quiet business suit,” Bob Pelz wrote.

On December 21, the defense got some good news. Yamashita's lawyers had applied to the U.S. Supreme Court to overturn his conviction and, after a lot of wrangling behind closed doors, the Court finally agreed to hear the case. The legal questions in
In re Yamashita
would be the same for
In re Homma
.
²²

 

THE TRIAL
began on Thursday, January 3, 1946 at 8:30 a.m. in the former high commissioner's residence, an imposing edifice that faced Manila Bay. Army engineers had worked night and day to repair and renovate the battle-damaged building, in particular the large ground-floor reception hall where Yamashita had stood trial and where Homma now sat with his defense team. To A. Frank Reel, who had been one of Yamashita's lawyers, the large room was less a court than a theater where America could stage its postwar dramas of recompense and revenge.

“Loudspeakers were suspended from the ceiling and were placed at strategic points along the walls. On either side, in the ‘wings,' were spotlights, and overhead were strung six powerful klieg lights . . . In the balconies were moving-picture cameramen and radio commentators . . . On the floor were seats for three hundred spectators . . . The front of the large room was semicircular, with seven French doors that looked out onto Manila Bay. This part of the room was the stage. Before the middle window, on a slightly raised platform, was the judges' bench,” and below it, to the right and left, tables for prosecution and defense and, of course, the witness box.
²³

Some of the drama took place in pretrial motions, one in particular, the matter of the trial's convening authority, Douglas A. MacArthur. As supreme commander of Allied powers in Japan, MacArthur in his headquarters in Tokyo was the provenance for everything that was taking place in the courtroom in Manila. He was empowered to pick the judges, prosecutors, defense attorneys. He had the authority to decide which defendants would be tried before military commissions and which would enjoy the more protective legalities of an international tribunal
run by experienced civilian judges. He had set the rules of evidence, the court procedures, the timetables for the trials. And it was MacArthur who would certify the verdicts, which made his office alone the place of last appeal. He could set aside a sentence, save a man's life, or establish the time, place, and manner of his execution.