Tyson looked again at the prosecution table. Pierce, Weinroth, and Longo sat talking in low whispers, and for the first time since Tyson had seen them at the hearing, they looked quite human. In fact, he even credited them with human attributes, such as love, money problems, and family cares. He noticed, too, that Major Judith Weinroth was very much taken with Colonel Graham Pierce, and he fantasized for them an affair.
Tyson looked at Colonel Sproule, shuffling papers behind the pulpit. The man was a product of another era. He had sat there, day after day, literally and figuratively looking down on the court. And clearly he had been shocked in an old-fashioned sense of the word by what he’d heard.
Tyson looked now across the open space at the board table, which was empty. Beyond the table, in the wing of the altar area, stood two armed MPs at parade rest. Tyson spoke to Corva while still looking at the two MPs. “The armed and the unarmed.”
Corva nodded.
“That’s another way to divide the world.”
Again Corva nodded. “That’s the way it’s always been.”
“I have a small sense of how the Viet peasants felt when they had to deal with us. How do you deal with a man carrying an M-16 rifle if you’re carrying a basket of vegetables?”
“Very carefully.”
“Right. The Aussie doctor didn’t understand that.”
“Apparently not,” replied Corva as he looked through some papers on the table. “Are you ready for your courtroom debut?”
“I ought to be.”
“True.”
Corva noted, “A jury often knows how they’re going to vote on a verdict. There are only two choices. But sentencing is much more complex. What you say may make a difference.”
“In other words, don’t blow it.”
Corva didn’t respond.
Colonel Sproule caught Colonel Pierce’s eye and indicated he was ready.
Colonel Pierce stood and said, “All the parties to the trial who were present when the court closed are now present except the members of the board.” Pierce sat.
Colonel Sproule turned to the defense table. “Will the accused please rise?”
Tyson stood.
Sproule said, “Lieutenant Benjamin Tyson, you are advised that you may now present testimony in extenuation or mitigation of the offense of which you stand convicted. You may, if you wish, testify under oath as to these matters, or you may remain silent, in which case the court will not draw any inferences from your silence. In addition, you may, if you wish, make an unsworn statement in mitigation or extenuation of the offense of which you stand convicted. This unsworn statement is not evidence, and you cannot be cross-examined upon it, but the prosecution may offer evidence to rebut anything contained in the statement. The statement may be oral or in writing or both. You may make it yourself, or it may be made by your counsel or by both of you. Consult with your counsel if you need to, and advise this court what you wish to do.”
Tyson replied, “I wish to make a sworn statement, your honor.”
Sproule nodded as though in approval. He turned toward the sergeant at arms and said, “Sergeant, call the board to court.”
Tyson felt his heart beating heavily for the first time since this began. He wanted a drink of water but didn’t take the cup in front of him.
Corva leaned toward him. “I am not going to ask you questions or elicit anything from you. You are on your own, Lieutenant.”
“That’s fine. I’ve heard enough out of you to last me a lifetime.”
Corva grunted.
The members of the court-martial board arrived in their usual single file and went to their chairs in order of rank, but this time, the court already having been called to order, they sat immediately.
Colonel Sproule wasted no time either. “Lieutenant Tyson, will you take the stand, please?”
Tyson walked unhesitatingly toward the witness chair and reached it at the same time Pierce did. The two men stood less than three feet apart, and at this distance Tyson was able to see freckles on Pierce’s remarkable scarlet skin.
Pierce said, “Raise your right hand.”
Tyson raised his hand.
Pierce and Tyson looked directly at each other as Pierce recited, “Do you swear that the evidence you shall give shall be the truth, the whole truth, and nothing but the truth, so help you God?”
“I do.”
“Please be seated.”
Tyson sat.
Corva, still at the defense table but standing now, said, “Your honor, members of the board; Lieutenant Tyson will make a statement.” Corva sat.
Tyson found himself looking at his surroundings from a different perspective. He could no longer see Sproule, whose fidgeting with his hearing aid was distracting. But he could see Pierce, sitting at the table ten feet away directly in front of him. Pierce was leaning forward over his crossed arms as though very eager to hear him. Tyson suspected this was meant to unnerve him, but realizing that, he found it somewhat ludicrous. Weinroth and Longo were sitting straight, which looked more appropriate to the military surroundings. The board was to his left, and he could see them by turning his head slightly in that direction.
Beyond the prosecution table but partly blocked by it was pew after pew of heads and shoulders, all eyes on him. Tyson said in a normal conversational tone of voice, “I realize that any statement I make here in extenuation and mitigation could only be construed as a self-serving one. But the military system of justice is unique in that it allows a convicted man to present certain facts that may diminish his sentence. But I’m not certain that it would be appropriate for me to go into personal details of my life, as you know them as well as anyone, due to the public attention that has surrounded not only this trial, but also my personal life. And I’m not certain it’s necessary to attempt to convey to you any more of the horrors of war than you’ve already had conveyed to you. I understand that the Code specifically recognizes combat fatigue and all that this term implies as an extenuating factor in cases of murder such as these. But I know, and you know, that the crime for which I stand convicted was not the crime that occurred in that hospital, but the crime that occurred some days later in base camp, when I walked past battalion headquarters and failed to enter there and do my duty. That crime did not occur under conditions of battle fatigue. I cannot sit here in good conscience and tell you that if I had it to do over again, I would do my duty as I clearly understood it. On the contrary, if I had it to do over again, I would do the same thing. And though my life and freedom depend on it, I cannot tell you why I would again willfully commit the same crime. I know that I briefly considered reporting this crime of mass murder. But only briefly; and that was a result of my officer training and my other moral training such as it may have been. I did not wrestle long with my conscience before deciding that I would not do my duty. And after I had made the decision not to speak of this crime ever again, I felt that I had made the right decision. If I said otherwise to you, you would wonder, and properly so, why I did not rectify my original decision, which I know full well was both an immoral and illegal one. So I stand here convicted of a crime I did commit, and we should let the matter rest there.”
Tyson surveyed the silent court, then continued, “As for my men, you may have the charitable thought that I was protecting them out of a sense of loyalty, comradeship, and that special paternalism that exists between officers and men. There would be some truth to that thought, but you know and I know that loyalty, comradeship, and paternalism should not extend that far. I do feel some natural regret for the lives that have been perhaps ruined or altered by the public testimony we have all heard here. But balanced against the lives that were ended at that hospital, there cannot and should not be too many tears shed for any of the men of the first platoon of Alpha Company. I do feel some sympathy for the families who have discovered things about their sons and husbands that were best left undiscovered. A day or so after I killed Larry Cane, I wrote his family a letter of condolence in wh
ich I said he died bravely. He was a brave man in many ways, but he did not die bravely, and I again offer my condolences to his family.”
Tyson looked at the board and addressed them directly. “When my attorney, Mr. Corva, asked me if I would like to make a sworn statement in extenuation or mitigation on my own behalf, I told him I could think of no extenuating or mitigating circumstances that I could swear to.” He paused and looked directly at the board, meeting each member’s eyes. “Sitting here now, I still can’t.”
Colonel Sproule waited some time, expecting more. Finally realizing that Tyson had no intention of offering anything further, he addressed Colonel Pierce. “Does the prosecution wish to offer anything in rebuttal to the statement of the accused?”
Pierce stood and began to reply, but Corva had come across the floor and was standing in front of the pulpit. Corva said, “The accused has not finished, your honor.”
Sproule’s eyebrows rose. “It appeared he was, Mr. Corva.”
“No, your honor.” Corva turned to Tyson, who gave him a sharp look. Corva said to Tyson, “Would you characterize your state of mind after the incident as remorseful?”
Tyson sat back in the chair and crossed his legs. He stared at Corva awhile, then replied, “Yes.”
“And do you feel remorse now?”
Tyson replied tersely, “I suppose.”
“And would you also describe yourself as haunted by this incident?”
Tyson looked at his lawyer. Clearly Corva did not intend to let his statement stand as it was. He studied the man’s face and saw he was very distraught.
“Are you haunted by what happened at that hospital?”
Tyson snapped, “Wouldn’t you be?”
“Did you seek psychiatric help after you returned from Vietnam?”
Tyson could see the board out of the corner of his eye, and he noticed that some of them looked uncomfortable. He kept silent.
“You did seek psychiatric help, didn’t you?” he went on without waiting for an answer. “By shooting Larry Cane did you believe you did everything humanly possible to stop the mutiny and massacre?”
“Hard to say.”
Corva’s voice rose. “Can’t you give me more complete answers?”
There was a stirring in the spectator pews. Tyson looked past Corva at Pierce, who was no longer staring at him, but at Corva. Weinroth and Longo were glancing at each other.
“Don’t you think,” asked Corva, his voice becoming louder, “that combat fatigue mitigates what happened at that hospital? That if the UCMJ recognizes that, then maybe you should too?”
Tyson uncrossed his legs and leaned forward. His voice was taut. “I don’t think I want to retry this case now.”
“Were you or were you not suffering from combat fatigue? Answer the question.”
Tyson stood. “I told the court what I had to say! There is no extenuation or mitigation.”
Corva began to speak, but Sproule cleared his throat. “Mr. Corva, does your client wish to conclude his statement?”
“No.”
“Yes,” said Tyson, and stepped away from the chair. Corva blocked him. There was open talking in the court now. Sproule called for quiet and said to Corva, “This is most unusual.”
Tyson looked into Corva’s eyes. It suddenly occurred to him that Corva had been under tremendous strain, had hidden it well, and was now about to snap. Tyson took his seat and said in a calm voice, “I suppose battle fatigue could explain almost all of what happened.”
Corva seemed to be getting himself under control and nodded quickly.
Sproule spoke. “Mr. Corva, do you want a recess?”
Corva rubbed his cheek. “No, your honor.”
Tyson said, “Your honor, I’ve concluded my statement.”
Corva stood silently, as though in a daze.
“Very well,” said Sproule with a note of relief in his voice. Sproule looked at Pierce and asked for the second time, “Does the prosecution wish to offer anything in rebuttal to the statement of the accused?”
Pierce stood and made an exaggerated shrug. “It appears that defense counsel has already done that.”
There were a few tentative laughs, which quickly died away.
Sproule looked at Colonel Moore. “Does the board have any questions for the witness?”
Colonel Moore, apparently without consulting the board, replied tonelessly, “We have no questions, your honor.”
Sproule said to Tyson, “You are excused, Lieutenant.”
“Yes, sir.” Tyson rose and nudged Corva back toward the defense table. They both sat.
Colonel Sproule said, “We will take a five-minute break in place.” Sproule made a show of concentrating on some paperwork as did the prosecution team and the board.
Tyson leaned toward Corva. “Are you all right?”
Corva sipped some water. “Better.”
“Are you well enough for me to beat the shit out of you?”
Corva smiled wanly. “I just slipped a little.”
“Don’t get personally involved with your clients,” advised Tyson.
Corva didn’t reply. The minutes ticked by in silence. Sproule looked up from his papers and cleared his throat. He addressed Pierce. “Does the prosecution wish to present an argument for an appropriate sentence?”
Pierce let a few seconds pass, then replied, “The board has the facts and will reach a decision on an appropriate sentence.”
Sproule turned to Corva. Sproule asked, “Does the defense wish to present an argument for an appropriate sentence?”
Corva, without standing, replied, “The defense, too, believes the board has the facts it needs to reach an appropriate sentence.”
“So,” said Sproule with uncharacteristic informality, “that’s it.” Sproule turned to the board and said, “It is my duty now to instruct the board on matters of punishment.” He cleared his throat and began. “It is your sole responsibility to select an appropriate sentence, and you may consider all matters in extenuation and mitigation in arriving at that sentence. You may take into account the background and character of the accused, his reputation and service record, including awards, medals, conduct, efficiency, fidelity, courage, bravery, and other traits of good character.
“You must also consider that the desired effect of a sentence is not primarily punishment, deterrence, rehabilitation, or the protection of society. The end product of a conviction in a trial by military court-martial and the sentence arrived at is to reflect military goals, which include the maintenance of good order and discipline, the continued ability of the service to carry out its mission, and the preservation of the service concepts of duty and honor. In the case where the accused is a commissioned officer, he should, by custom and often by law, be held accountable to a higher degree for the preservation of these goals, concepts, and ideals than an enlisted man would be. However, he should not be held accountable to such a degree as would impose unrealistic or unattainable standards on the officer corps.”
Sproule went on, “In considering your verdict, you should also take into consideration the prevailing conditions at the time of the offense. You should not take into consideration any outside influences, real or perceived, and you should not be subject in any way to command influence.”
Sproule glanced around the room, then concluded, “Though there is not and should not be a statute of limitations for the crime of murder, you may consider in arriving at an appropriate sentence that the offense for which the accused stands convicted occurred over eighteen years ago. Also, due to the special circumstances of the accused having been a civilian for nearly eighteen years, you may take into account his civilian accomplishments, his community standing, his marital status, and his age in arriving at your sentence.” Colonel Sproule looked at Colonel Moore. “Do you have any questions?”
Moore looked toward either side of the table, then said, “We have no questions.”
Colonel Sproule instructed the board, “You may deliberate
the sentence in the room set aside for that purpose. If you have not reached a sentence by fourteen-thirty hours, you may continue deliberating in the deliberation room until you do reach a sentence. Please keep the court informed of your progress. The court will be closed.”
* * *
Tyson and Corva found themselves back in Rabbi Weitz’s office. The rabbi, too, was present. He said to Tyson, “I came. I was there today for the first time. Whose side were you on?”
Corva said, “That’s what I’d like to know. That was the absolute worst statement I ever heard from an accused.”
Tyson saw that Corva was nearly himself again, though he seemed somewhat sulky.
Corva added, “It would serve you right if they took you at your word.”
Rabbi Weitz joined in. “If that was supposed to be reverse psychology, my friend, I hope the board responds.”
Tyson said irritably, “I said what I had to say.”
Corva responded, “Your ego will be your downfall one of these days . . . maybe today.”
“You said I could say what I wanted.”
“You were supposed to say that the murderers were walking free. That before they imposed a prison sentence on you, they should consider that. I thought you understood what we have been driving at . . . oh, the hell with it.”
Rabbi Weitz took his attaché case, headed for the door, and opened it. “While they are considering an appropriate sentence, maybe they will consider an appropriate place to hold courts-martial next time. God bless you both.” He left.
Corva sat at the rabbi’s desk, drinking ice water.
Tyson stood at the window and looked out into the rain. On the lawn, not ten feet away, stood two MPs in rain gear, M-16 rifles slung on their shoulders. “There’s no place to run.”
“What’s that?”
“They have MPs with rifles out there.”
“What did you expect?”
Tyson shrugged. He turned from the window. “Why did you do that?”
Word of Honor Page 74
