Word of Honor (83 page)

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 timeand not solely on account of their being eyewitnesses 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

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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 order 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

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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 special trust and confidence, from the obligations that he freely undertook when he took his oath of office?"

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 WORD OF HONOR e 647

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 inall 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 conspir-acy 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 re-648 0 NELSON DEMILLE

ports 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

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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 NIPS.

Corva said, "Well."

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Tyson said, "The defense rests."

"Yes. I I

"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.

At 10 A.M. Colonel

Waller Sproule called

IUDthe court to order.

CHAPTE.JN 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

4 9 waited until the court

was assembled and the

spectators had settled down. 'Men, 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 651

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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 he certain beyond a reasonable doubt that the testimony of mass murder which you have heard was truthful."