"I see no reason to bring in a sworn statement about Huey Dan. Even if he was an enemy agent or soldier-and I am not admitting he is-members of the armed forces of the United States are not permitted to summarily kill, execute, or murder members of an opposing force when said members are unarmed in a nonhostile, nonthreatening environment. You don"t just gun them down on the streets.
Secondly, I do not stipulate to any sworn statements from anybody. I do not know anything about the writer or his testimony. He must be presented for deposition and cross examination." A stipulation is an agreement by both sides that what is in a sworn statement is what the writer would present in person were he to be physically present in front of the court.
Gant looked at Rafalko with exaggerated contempt. "All right, then, I won"t ask you to stipulate. I ask you to produce the man to be a witness for the defense in this court."
"No way," Colonel Rafalko snapped. "You should have provided his name earlier."
"We didn"t have his name earlier."
"Where is he?"
"He is in the U.S. He"s critical to our case, and the government has to find him and pay for his transportation and room and board here in Saigon. And the government is you."
"What? Are you out of your mind?" Rafalko"s face grew dark. "Look, Gant, we don"t have the funds for that sort of thing."
Gant scrunched his face into the kind of smile that borders on a leer.
"According to paragraph II 5d of the 1951 Manual for Courts-Martial, the trial counsel that"s you is authorized to subpoena a witness at government expense.
Wouldn"t the public like to know that the United States Army, while spending twenty million a day to kill VC, won"t spend two grand to help one of its great heroes who killed a VC in self-defense?"
"How do I know his testimony is material and necessary?"
Rafalko said in a voice increasing in volume.
"Put it in writing, Mister Gant," the law officer interrupted in a weary voice. "Give me a synopsis of his testimony, full reasons why he must appear in person, and any other matter showing how his testimony is necessary to the ends of justice."
Gant dug into his briefcase. "I have something right here that fills requirements one and three. And I must state the full reason he must appear is because the trial counsel wants him to appear."
"I do not, " Rafalko roared.
"You said you wouldn"t stipulate to his sworn statement.
Therefore you must want him physically present."
Rafalko ground his teeth and turned to the law officer. "I request a one-day recess to, ah, check the availability of funds." The law officer agreed and the court was adjourned until nine the next morning.
"Who is it? Who is this on the phone?" Pinky Pulmer sat straight up in bed. He wore two-piece pajamas. Due to the thirteen-hour time difference, it was four in the morning Washington time, compared to five that afternoon in Vietnam. "Oh yes, General Farquell. Is the trial over? Is that why you called?" Pulmer fumbled and snapped on the small lamp next to the telephone.
"The trial is not over. It is in recess for a day." Farquell"s voice was tinny and distant in Pulmer"s ear. "I need to report something to you. And I need a decision."
"Yes, yes. Go ahead." Pulmer slipped on his gla.s.ses and took a sip from the water gla.s.s on the bed table.
"The defense apparently has a sworn statement from the very fellow that is supposed to be helping us gain public support against this murderer--"
"Who is it? Who is it?" Pulmer interrupted.
"Shawn Bannister," Farquell replied.
"Oh my G.o.d." Pulmer removed his gla.s.ses and pinched his nose. "The defense has it, you say? Does it hurt the prosecution?"
"From what I understand, the evidence is more than sufficient for the members of the court to vote for acquittal."
"What do you mean, vote for acquittal? You signed the investigation Article 32, you called it and said you recommended a court-martial.
Furthermore, you told me the judge and the prosecutor worked for you. So what is the problem?"
"The judge, as you call him, Mister Secretary, is a law officer who oversees the proceedings for proper content and procedures. The prosecutor is called the trial counsel, and yes, both work for me."
"To remind you, General, this is the Office of the Secretary of Defense you are talking to." Pulmer"s voice elevated a note each time he spoke.
Oscar Nebals of California was his sponsor, and Oscar Nebals wanted this little job taken care of, for G.o.d knows what reason. If Nebals wasn"t happy, then he would most likely be out of a job and back to being a clerk or administrative aide somewhere on Capitol Hill.
Even over the flawed telephone circuitry, Farquell"s exasperation was evident. "Mister Secretary, while it is true those two men work under my jurisdiction, and perhaps even share my dislike for the actions of the accused, the fact remains that at least four of the seven officers who make up the court will most likely vote to acquit Lochert because they will feel the government cannot prove its case."
"But-but you"re the government!"
"I may be the boss but I have to play by the rules."
"Can"t you make, ah, arrangements with the seven members?"
"If you mean what I think you mean, I wouldn"t even think about it, much less try it. To try to influence a combatline officer to go against one of his own is like trying to get your boss McNamara to admit he is a nincomp.o.o.p. I"m sorry. There is nothing more I can do."
Pulmer slumped. "You said you needed a decision."
"I can prevent Bannister from being subpoenaed by refusing to fund his trip. As Commander, USARV, I can do that.
I want to know if you think I should?"
"Ah ... do, do what you think is best," Pulmer said. He was not about to give a definite agreement that might someday tie him too closely to the Lochert trial. "Ah, what do you think is best?" Pulmer asked.
"Whatever the prosecutor wants," Lieutenant General Elmer Farquell responded.
The next day, having received the decision from Lieutenant General Farquell, Colonel Bruno Rafalko stood in front of the law officer. "All right, all right. I so stipulate." The problem was solved. He would not bring Shawn Bannister into this courtroom. It was Rafalko"s studied opinion that there was no amount of cross-examination he could perform that would erase the idea from the court"s collective, liberal hating mind that if a proven antiestablishment person like Shawn Bannister appeared to defend Wolf Lochert, then Wolf Lochert must definitely be not guilty.
The law officer stood up. "Gentlemen, can we get back to the court?"
Archie Gant was greatly relieved. He knew from what LaNew told him that Shawn Bannister would never have agreed to appear in court, because even if it was closed, the press would have seen him coming and going. Even though a subpoena would compel Shawn to attend, he could change or recant his testimony just enough to cast doubt that he had actually seen Huey Dan in the tunnel. As it stood now, Shawn"s written word, properly sworn to, was more powerful than his actual appearance in front of the board.
Once back in the courtroom, Colonel Bruno Rafalko got on with his case.
He established through a death certificate that one Vietnamese male identified as Huey Dan died on the date in question as the result of a knife wound. Rafalko entered into evidence the certificate and Wolf Lochert"s stiletto. Archie Gant stipulated to each.
Bruno Rafalko then produced Mal Hemms as a witness for the prosecution.
Hemms, dressed in a tan safari suit splendidly cut to minimize his portly frame, introduced his TV film of Lochert and Huey Dan and testified to its authenticity. Rafalko played it again and again in both slow motion and stop motion until, he hoped, the sight of Wolf Lochert"s plunging a knife into Huey Dan"s body, then flinging the dead man into a tree, was deeply imprinted into each court member"s mind. Archie Gant cross-examined after Colonel Rafalko finished his presentation.
"Mister Herrans," Gant asked, "at what point did you see Colonel Lochert and the communist terrorist fighting?"
"Objection!" Rafalko said. " "Communist" and "terrorist"
are inflammatory words inappropriate and inadmissible in this court."
"Sustained," the law officer said. "The court is advised to dismiss those words." He looked at the seven officers who made up the court-martial board. It was obvious they weren"t dismissing anything of the sort. The law officer ad dressed Archie Gant.
"Mister Gant, you will refrain from using such words to describe the deceased. Rephrase your question, please."
"When did you first see the defendant and the deceased?"
Archie asked Mal Hemms.
"When I directed the cameraman to roll the film. When the colonel stuck the knife into the man." Herrims spoke with the enunciation and studied earnestness of the practiced TV reporter. His small eyes looked concerned, his bushy brows were furled with concentration.
"You must have seen some earlier activity in front of the church that day or you would not have told the cameraman to begin filming. What did you see?" Gant asked in a friendly voice.
"Activity. Just activity."
"I see. Would you describe the activity as two men talking?"
"No."
"Two men arguing?"
"No."
"Were they in contact?"
"Yes."
"Dancing, perhaps?"
"Of course not."
"Well, just what were they doing?" Gant moved closer to Hemms.
"They were moving around."
"You said they were in contact. Were they scuffling?"
"You could say that."
"Could I say they were fighting?"
"Unh, yes. I guess so."
"But according to the film and the charges of this trial, Colonel Lochert murdered without provocation a Vietnamese civilian. Yet you say they were fighting - "
"Objection," Rafalko said. "Witness did not say that they were fighting. The defense counselor did."
"Sustained," the law officer said, and told Archie to continue.
Archie moved closer to Mal Hemms. "You agreed to my use of the word "fighting," so I ask you this: If they were fighting before you had the camera on them, is it not possible the deceased Huey Dan could have thrust a knife at the e ndant uring t at time. T e very t me you did not see them?"
"Unh, yes, I guess so."
"So Huey Dan could have thrust at Colonel Lochert the same stiletto he took from Colonel Lochert so long ago?"
"I just said yes," Hemms replied with asperity.
"No further questions," Archie Gant said and turned away.
Archie then introduced Shawn"s sworn testimony as evidence.that Bucy Dan was in the army of the enemy in some capacity, either soldier or spy.
There was a quickly suppressed stir as they recognized the name of the famous writer and his article about the Viet Cong tunnels of Cholon.
Gant put Wolf Lochert on the stand. Wolf told of the actions and att.i.tudes of Huey Dan in the past and his attack with the missing stiletto in front of the Catholic church. The members of the court exchanged frosty glances when he told of the missing C-130 after a night HALO into Laos. The plane just disappeared from radar control without any radio transmissions over territory that had no antiaircraft weapons to bring it down. Huey Dan could easily have left a bomb on board, Wolf said.
After a recess the court was bused to the site in front of the church to watch Wolf walk through the events of that morning. He said the stiletto Huey Dan had pulled was the one he had lost during a VC attack on his patrol on 13 December 1966.
Back in the courtroom, USAF Captain Toby Parker was called by Major Denroe as a defense witness. Denroe felt evidence as far back as two years about Huey Dan maybe setting up Wolf Lochert would be a big plus for the case.
Toby was sworn in. He said on 13 December 1966, during the helicopter rescue mission of Wolfs learn, he had seen Huey Dan pick up a knife near the unconscious body of Wolf Lochert.
"A knife, not a stiletto?" Bruno Rafalko asked.
"it could have been either," Toby said. "I was too far away to see the blade width."
"So you cannot positively state the stiletto present in this courtroom, the stiletto that was used by the defendant to kill Huey Dan, was the weapon allegedly stolen from the unconscious body of Colonel Lochert by Huey Dan?"
"No, I cannot," Toby said with great reluctance.
When the time came, Gant summed up the defense by saying that Wolf Lochert had committed an act of war, one for which he should be decorated. It a.s.suredly was not murder, any more than you would try an MP for shooting a terrorist who had tried to attack him. It wasn"t criminal to kill an enemy in time of war, he maintained.
Colonel Rafalko wrapped up his case as the prosecutor by playing three times in slow motion the film portion showing Wolf pulling Huey Dan onto the knife.
With the closing arguments concluded, the law officer addressed the members of the court.
"The court is advised: First that the accused, Lieutenant Colonel Wolfgang Xavier Lochert, must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt.
Second, that if there is a reasonable doubt as to the guilt of the accused, the doubt should be resolved in the favor of the accused and he should be acquitted. Third, that if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt. Fourth, that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the Government." The law officer drew a breath and continued. "You must disregard any comment or statement made by me during the course of this trial which may have seemed 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-whether or not Colonel Lochert did murder the Vietnamese Huey Dan-in accordance with the law, the evidence admitted in court, and your own conscience. I will now close the court and you may vote on your findings."
The makeshift courtroom cleared, the seven members went for coffee and returned to their table. "Any problems or questions?" the president asked. The two other colonels and four lieutenant colonels said no.
Each man then wrote either "guilty" or "not guilty" on a square of paper and folded it in half. The junior member, the newest lieutenant colonel, collected the papers, tallied the votes, and wrote the results on a piece of paper which he handed the president. The colonel glanced at the result.
"That"s it," he said. "Let"s call them back."
Wolf Lochert, flanked by Archie Gant and Major Jay Denroe, sat stiff as a statue. The two lawyers were astounded at the speed at which the verdict had been rendered. They exchanged apprehensive glances.