Captain Richard J. Thomson, Jr., of the 67th Military Police Company, whom Weiss remembered as “a captain who never heard a shot fired in anger,” placed him under arrest. Thomson, after throwing Weiss into a stockade dug into the wet earth, made a written report: “The soldier was dressed in uniform at the time of surrender. Soldier made the following voluntary statement: Soldier admitted being A.W.O.L. from his unit since 27 October 1944.” The MPs gave the prisoner a cup of coffee and a cigarette. If they shot him then and there, Weiss thought, “It would be a relief, not a tragedy.”
TWENTY-SIX
There are strains which no man, however tough-minded, can endure.
Psychology for the Fighting Man, p. 353
ON 2 NOVEMBER, STEVE WEISS reported to the division psychiatrist, Major Walter L. Ford, in one of a group of hospital tents where medical staff treated the physically and mentally wounded. The Judge Advocate General’s Office relied on Ford to determine whether accused soldiers were psychologically fit to stand trial or should be discharged from the army under Section VIII of Army Regulation 615-360 for “inaptness or undesirable habits or traits of character.” (The traits included insanity and homosexuality.)
When Weiss arrived at the hospital tent to see Ford, physicians and nurses were treating hundreds of wounded Japanese-Americans from the Nisei 442nd Regiment. There was neither silence nor a private place to conduct the interview, because the Nisei had suffered more than eight hundred killed and wounded in the previous week. Forty-eight hours earlier, the regiment had rescued a trapped section of the 141st Regiment that the press had dubbed the “lost battalion.” The section, smaller than a battalion with only 211 men, had advanced so far beyond American lines that it was cut off. For a week, German forces on all sides besieged the men. Dug into slit trenches in a thick forest above Biffontaine, they ran out of food, water and ammunition. The division dropped supplies by air, most of which fell into German hands. For a week, the Nisei advanced up steep “Banzai Hill” through mud, forest and thick brush against superior German forces to win the day. However, they lost more than eight hundred men killed and wounded. (The 442nd did not achieve sufficient strength to return to combat until March 1945 in Italy. It was probably the only American combat regiment in Europe that did not record a single desertion.) The survivors of the rescue party lay all around Weiss, while Major Ford quizzed him about his state of mind.
Weiss responded desultorily to the physician’s questions, more aware of the suffering Japanese-Americans around him than of the psychiatrist. Ford questioned Weiss for a half hour, but he did not ask him about his reasons for deserting, his lack of trust in his commanding officer or his belief that the military machine treated ordinary soldiers unfairly. Ford declared that Weiss, despite having “psychoneurosis, anxiety, mild,” was competent to face a court-martial.
• • •
While Weiss discussed his sanity with the division psychiatrist, Private First Class Frank Turek left the line again. “On 2 November,” military police lieutenant Herman Tepp wrote, “Turek reported to me at S-1 [Personnel] Section, 143rd Infantry in the vicinity of Decimont, France, and he stated that he refused to go to his company. I again ordered him to his company and he stated that he refused to go.” The army had no alternative but to prosecute him.
Like Weiss, Turek had to meet Major Ford for psychological assessment. After a similar half-hour discussion, Ford reported that the twenty-two-year-old Polish-American private “was suffering from psychoneurosis, mixed, chronic, mild and that this is a long standing emotional disorder which makes it difficult for the soldier to adjust during periods of stress.” Although Ford concluded that Turek’s mental health was more damaged than Weiss’s, the authorities deemed he should stand trial for desertion. The maximum penalty for his offense was death.
Turek’s court-martial convened in Bruyères on 6 November 1944, three days after his psychiatric appraisal. An old, unheated chapel, part of the complex where General Dahlquist had established divisional headquarters on 31 October, served as the courtroom. The town bore the scars of the three-week battle that the Americans had won at high cost, and there was no mood of forgiveness for those who had shirked their duty. The specification was clear: “In that Private First Class Frank J. Turek, Company C, 143rd Infantry, at or near Brechitosse [sic], France, on or about 28 October 1944, ran away from his company, which was then engaged with the enemy.”
The prosecution made a peremptory challenge to remove Captain Eldon R. McRobert from the panel, and the defense challenged Captain Lowell E. Sitton. Both officers were excused. That left ten officers on the court-martial panel, who effectively served as judge and jury. Major Benjamin F. Wilson, Jr., and an assistant, Captain Robert W. Plunkett, defended Turek. The trial judge advocate, or prosecutor, was Captain John Stafford, assisted by Captain Jess W. Jones. The prosecution established that the 143rd Regiment was “tactically before the enemy” near Brechifosse on 28 October, the morning that Turek deserted. It called only one witness, Lieutenant Raymond E. Bernberg, who confirmed that Turek’s regiment was facing the enemy that day. The defense did not contest his testimony. Captain Stafford declared, “The United States rests.”
Major Wilson introduced Major Ford’s psychiatric report as Defense Exhibit A and called Private First Class Turek to testify under oath. Turek admitted leaving his company on 28 October. Wilson asked him about his first patrol. The court reporter, Corporal Maxwell Resnick, recorded Turek’s reply with numerous spelling and punctuation errors:
Well Sir, we were just going into combat, the first time for any of us. We arrived at the front to relieve this outfit about noon of that day I don’t recall the time. During the daytime it was alright. About dusk my squad leader came and said that I and other men go out and contact B Company on patrol. On the way over to B Company about five hundred yards away from our position I saw a man laying on the side of the road and I was in the rear with two fellows in front of me. I nudged one of the fellows and said “Do you see that fellow” and he said “Yes” and he said he was a “Jerry.” I took the safety off my rifle and pumped a couple of shells into it and I went to the front of the men and we moved on. . . . I was jumpy and I just couldn’t stand looking at the trees fearing that there was a jerry behind them and every move out there in front affected me.
Defense counsel Wilson asked him about the effect that shell fire had on him, and Turek replied that the night after his first patrol “every leaf I heard falling on the ground had me jumping.” On guard duty in a foxhole, he went to find someone to relieve him so he could sleep. His testimony continued:
It was so dark that if anyone took my place, I don’t believe that he would be able to find his own hole and come back. I fell into a couple of foxholes and got out, but I couldn’t see anything, do nothing. I went back to the hole and heard these shells coming over. I thought they were our own shells. I asked my buddy who was doing the shelling and he said, “Those are the Jerries.” And he said he thought it was two hundred yards in front of us, and I did not know what to do. I started beating my head and felt like a caged animal and since then I was on edge all the time.
The trial judge advocate’s cross-examination rehearsed the same events, and Turek had little to add. Turek’s replies to Captain Stafford’s final questions, however, determined the outcome of the trial.
Stafford. Would you go back and fight if you had the opportunity?
Turek. I don’t know that is hard to say.
Stafford. Would you or would you not go back and fight if given the opportunity?
Turek. No, Sir.
Major Wilson’s redirect examination allowed Turek to tell the court about his childhood traumas, the amputation of his father’s leg, his loss of a job due to psychosomatic skin rashes and problems at home that continued to worry him. An officer on the court-martial panel asked him whether he deserted alone, and Turek answered that another soldier had gone with him. The
court retired to consider its verdict. It found Turek guilty. After a second deliberation, it sentenced him to “be dishonorably discharged from the service, to forfeit all pay and allowances due or to become due, and to be confined at hard labor at such place as the reviewing authority may direct for twenty-five (25) years.” At 3:00 in the afternoon, the court-martial was completed.
• • •
The next morning, 7 November 1944, at 9:30, in the same chapel in Bruyères where Frank Turek had been convicted, another general court-martial convened to try Private First Class Stephen J. Weiss. The presiding officer, Major James T. Clarke of the 155th Field Artillery Battalion, sat in the sanctuary at a long table with fourteen other officers, seven on either side. Many of them had judged Private First Class Turek the day before. The senior officer on the court-martial panel was Lieutenant Colonel David P. Faulkner of the 36th Division headquarters staff. In common with other courts-martial at the time, the court judging Private Weiss included no enlisted men. Only one member of the court, Second Lieutenant Bertram M. Lebeis, was a qualified lawyer. Most of the officers, from Lieutenant Colonel Faulkner down to Second Lieutenant William Steger, were not combat veterans. Behind the panel loomed a cross from which defendant Steve Weiss thought the crucified Christ was judging the judges.
The defense counsel was Major Benjamin F. Wilson, Jr., who had defended Turek and, a few weeks before that, Lieutenant Albert C. Homcy, on the same charges of “Misbehavior before the enemy.” Although Weiss would later complain that Wilson was not a lawyer, the major had more legal experience than most other officers on courts-martial. As the Court of Appeals for the District of Columbia judge George E. MacKinnon later noted, “Major Wilson had very considerable training in and experience with the law. He had completed two years of law school prior to entering the service, completed a service course in Military Justice, and continued his study of military justice at the Artillery School, the Advance Infantry Course, and at the Inspector General’s School.” Wilson’s court-martial experience included more than three hundred cases in which he had served as a member of the court, a trial judge advocate (prosecutor) or defense counsel. Judge MacKinnon observed that Wilson was “much better qualified to defend an accused in a court martial proceeding than many fully licensed lawyers.” However, Wilson’s heavy caseload deprived him of time to speak with his clients and to prepare a thorough defense.
Wilson was not the only officer present who had taken part in Lieutenant Homcy’s court-martial. Major Harry B. Kelton, Captain Lowell E. Sitton, Captain Isidore Charkatz and First Lieutenant Charles Hickox had all served on the panel that, under pressure from General Dahlquist, found Lieutenant Homcy guilty on 19 October. Another judge on the Weiss panel, Lieutenant Raymond E. Bernberg, had originally been named as a witness for the prosecution against Weiss. His sworn statement that Weiss had been before the enemy when he deserted formed part of the prosecution’s case. Normal procedure should have allowed him to recuse himself or the defense to challenge him for cause, but he remained a judge. The prosecutor, or trial judge advocate, was the same as in the Homcy and Turek cases, Captain John M. Stafford. In the nearly three weeks since Homcy’s trial, General Dahlquist had not withdrawn his demand that officers produce guilty verdicts and harsh sentences “for the good of the service.”
• • •
The defense and prosecution tables were in the nave, between the congregants’ pews and the chancel rail. The trial judge advocate, Captain Stafford, and his assistant prosecutor, Captain Jess W. Jones, faced the court from one side of the aisle. On the other were defending counsel Wilson and his assistant, Captain Robert W. Plunkett, as well as Weiss himself. Looking up at the court, the altar and the cross, the nineteen-year-old Weiss felt insignificant before the full weight of the judiciary, the military and the Almighty. The ritual commenced with the swearing in of the court. The court reporter, Corporal Russell C. Trunkfield, recorded the trial in a shorthand notebook.
Trunkfield’s official transcript noted that neither the prosecution nor the defense, when asked, raised a challenge to remove any member of the court. It was not clear why Major Wilson, who had challenged Lieutenant Colonel Faulkner in the Homcy trial, did not challenge him in Weiss’s case. Faulkner, whom Wilson knew to be the conduit of Dahlquist’s insistence on more convictions and harsher sentences, remained on the panel judging Weiss. The record stated, “The members of the court and the personnel of the prosecution were sworn.” The trial transcript continued:
The accused was then arraigned upon the following charges and specifications:
Charge: Violation of the 75th Article of War.
Specification 1: In that, Private Stephen J. Weiss, Company C, 143rd Infantry, being present with his company while it was engaged with the enemy, did, in the vicinity of Laval, France, on or about 16 October 1944, shamefully abandon the said company and seek safety in the rear.
Specification 2: In that, Private Stephen J. Weiss, Company C, 143rd Infantry, being present with his company while it was engaged with the enemy, did, in the vicinity of Brechitosse [sic], France, on or about 28 October 1944, shamefully abandon the said company and seek safety in the rear.
The penalty for violating Article 75, “Misbehavior before the enemy,” was “death or such other punishment as a court-martial may direct.”
Weiss, through Major Wilson, lodged his plea to the charge and both specifications: “Not guilty.” The facts were not in dispute. Weiss had already admitted deserting. Before anyone advised him of his right to remain silent, he had confessed his desertion to the military police, division officers, his defense counsel and the division psychiatrist, Major Walter L. Ford. Weiss’s admission weakened his case, leaving the prosecution nothing to prove. While preparing for trial, Major Wilson did not ask what lay behind Weiss’s desertion. Nor did he probe his client about his state of mind. Neither Major Wilson nor psychiatrist Ford asked him why he was afraid to return to the line but not to die by firing squad.
The trial judge advocate, Captain Stafford, “made no opening statement to the court” and called the prosecution’s first witness, Major Robert L. O’Brien, to the witness stand. O’Brien, the 143rd Regiment’s adjutant, testified as an expert. Assistant trial judge advocate Captain Jess W. Jones conducted the direct examination. O’Brien told the court that he spent part of each day in the field with the regiment and confirmed that it had been engaged with the enemy on 16 and 28 October, the days that Weiss left the line. Major Wilson, in cross-examination, asked O’Brien how he knew that Company C of the 143rd Regiment had been “before the enemy” on the relevant dates. O’Brien replied, “Because, in addition to being Adjutant of the Regiment I am Historian of the Regiment and spend four hours in the evening with officers of the Regiment getting the records in shape. I know they were [before the enemy].” Having established the unchallenged fact that Weiss’s company had been “before the enemy” on 16 and 28 October, O’Brien was excused. The prosecution did not produce any eyewitnesses to Weiss’s desertion. It did not have to, because of Weiss’s pretrial statements. The trial judge advocate had no further witnesses.
Captain Stafford introduced Government Exhibits One and Two, copies of two extracts “of the morning report of Company C, 143rd Infantry dated 3 November 1944.” These extracts stated Charlie Company’s dispositions on the dates in question. The prosecution rested.
The defense requested a recess to give time for one of its witnesses to reach Bruyères, and the court adjourned until 1:00 P.M.
When the trial resumed after lunch, the defense called its first witness. Private Stephen J. Weiss stood, and Major Wilson addressed the court, “The accused had his rights explained to him in connection with making a statement—sworn or unsworn—or remaining silent and desires to take the stand and make a sworn statement.” Weiss swore to tell the truth and took his place beside the altar. He stated his name, rank, company and regiment to the prosecutor, who asked, “A
re you the accused in this case?”
Major Wilson proceeded for the defense. “Weiss,” he asked, “how old are you?”
“Nineteen, sir.”
Wilson’s direct examination elicited from the defendant that he had completed high school at the age of sixteen, taken college courses in psychology, pathology and chemistry at night and worked for the Office of War Information before he enlisted in the army. In a rapid exchange of questions and answers, Weiss provided a précis of his military career: training for seventeen weeks at Fort Blanding; rifle instruction at Fort Meade; waiting at replacement depots in Oran, Algeria, and Caserta, Italy; joining the 36th Division north of Civitavecchia on 12 June 1944; and serving as a first scout in Company C, 143rd Regiment, 36th Infantry Division, from that time until late August 1944 on the outskirts of Valence. As 36th Division officers, the trial judges did not require additional background on the campaigns that Weiss had fought in Italy and France. Major Wilson asked, “Have you ever shot at a German?”
“Yes, sir.”
Wilson asked Weiss to tell the court about the Valence battle and “the circumstances under which this separation occurred.” Weiss’s account was the briefest of summaries, a few hundred words to relate a tale that a veteran could spend hours telling his grandchildren. Weiss’s testimony was preserved, with the court reporter’s misspellings, in the official transcript:
It was night and we ran into enemy opposition. I was first scout and we were proceeding on a mission to destroy a machine gune [sic] next [sic] which was parallel to the road. On either side of the road it was open terrain. The Germans shot at us. They fired two shots and I fired one back at them. They threw two grenades at me and I got down into a ditch on the side of the road. The company commander had instructed us that my squad was to flank this position and wipe it out. The tank destroyers couldn’t come up; they couldn’t see the target. We went out and started to flank the gun when the tank destroyers moved up and opened fire on us. We decided to go back to our outfit and started out but we were unable as we ran into German machine guns. We came to an irrigation ditch and stayed there until next morning.
The Deserters: A Hidden History of World War II Page 26