by Howard Fast
“No, I don’t believe it.”
Sunday 10.00 A.M.
Barney Adams was eating his breakfast in the dining room of the Makra Palace, a room of blue and white and yellow tile that reminded him of Sanborn’s in Mexico City, when two young men approached his table. He invited them to sit down and join him for coffee, and they introduced themselves as Lieutenants Harvey Bender and Oscar Moscow. They would be delighted to have coffee with him, they said, because it was common knowledge that the coffee here was the only coffee in the city that was fit to drink—except of course for the Turkish coffee which they prepared in the Hotel Imperial.
But they said this with diffidence, and they obviously regarded Captain Adams with some awe. They were intelligent-looking young men, both of them in their early twenties, Bender towheaded and tall and thin, Moscow nearsighted, quietly intent behind his glasses.
“It’s my fault that we’re meeting only now,” Barney Adams said as he shook hands with them. “I should have seen you Friday at the latest, but nothing in this case is ordinary. I had to use every moment.”
“Please don’t apologize, sir,” Lieutenant Bender protested. “We understand the circumstances.”
“I don’t want you to feel that I am deprecating my assistants. I knew that you two men were to assist me. I value such assistance beyond measure.”
“Thank you,” Lieutenant Bender said.
“Perhaps I’m talking out of turn,” Lieutenant Moscow put in, “but I have never heard of a refusal to grant a continuance in a capital case. Not where defense counsel has been arbitrarily changed. I suppose you know, sir, that it was not Winston who demanded new counsel.”
“I know that.”
“Then how on earth can they deny a continuance?” Bender demanded.
“Now wait a moment,” Adams told them. “They haven’t denied any delay because I haven’t asked for any. I haven’t asked for a continuance because I was plainly given to understand that I should not ask for one—that this case must be delayed no longer.”
“Why, that’s outrageous!”
“It’s not outrageous,” Adams said quietly. “A court-martial must sublimate itself to military necessity—which, like it or not, is the prime necessity of a nation at war.”
“Then what happens to the whole concept of trial justice?” Moscow wanted to know.
“It exists—not as it does in civilian courts, but within a certain frame of reference. And, let me assure you, our frame of reference is the most just of any on earth. You were both civilian lawyers?”
They nodded.
“Then you must lay aside certain things that you accepted unconditionally. I don’t think we want a continuance. I go before officers whom I must convince. I think I can convince them better at this moment than at a later moment.”
“This is good coffee,” Bender said. “I guess I haven’t had such good coffee since I’m here. Do you mind if I have a roll with it, Captain?”
“Go right ahead.”
“It’s funny, the only day I have an appetite for breakfast is Sunday. You don’t raise much of an appetite in this heat.” He buttered a roll and heaped marmalade on it.
Moscow’s brow was creased. “Sir?”
“Yes, Lieutenant?”
“I can’t say that I follow that. Why do you feel that you can convince them better now?”
“Because they have no doubts at this moment—no doubts at all. They know that Winston murdered Quinn. They will go through the formality of a court-martial because it is required of them, but they don’t know of any reason why Winston should not hang.”
“I must say that I don’t know any reason,” Bender said, his mouth full of roll.
“There you are.”
“Sir?”
“You see,” Adams explained, “where there is no doubt, there is no defense against doubt. There was a young fellow from the Georgia hills in my company. He was a fundamentalist, and never in his life had he questioned or doubted his convictions. Then one day he got into a discussion with a couple of freethinkers in the company and they tore his fundamentalism to shreds. He went to pieces. He had no defense against doubt, no experience with doubt.”
“But is that a fair comparison?” Moscow wondered.
“No, of course not. But it does deal with the question of doubt. If I force a delay, doubts will appear, because this case is full of doubt. Arguments will create counter-arguments, and my own case will be weakened. Anyway, I am not sure that time will gain us anything.”
“You mean the case can’t be won under any circumstances?”
“I don’t mean that at all,” Adams said. “But suppose we finish our breakfast.”
Sunday 10.40 A.M.
Lieutenant Bender was still drinking coffee and eating rolls when Lieutenant Moscow brought out the diagram of the court-martial. Lieutenant Bender was a natural eater; He ate quickly, competently and professionally, without lingering to savor taste or quality. While Bender ate, Lieutenant Moscow explained that Colonel Thompson, the Judge Advocate General, had sent his apologies along with the diagram.
“Strictly off the record, sir,” said Moscow, “his apologies don’t mean a thing. You should have had the diagram yesterday at the latest, and if I weren’t discussing my CO, I would—”
“But you are discussing your CO,” Adams pointed out. “I think we must get one thing straight and hold to it. There is no conspiracy here. No one is out to get defense counsel. We recognize that the theater command wishes to hang Winston and get it over with. They feel that there is reason to hang him, and that with his death they will accomplish certain things. I think they are wrong, and I am going to prove that they are wrong. There is the virtue of our way of life—if you care to think of such a thing as a virtue—that I can confront them, challenge them, and stop them. Petty annoyances are meaningless. The only meaningful thing is the verdict.”
THE PROSECUTION
Trial Judge Advocate: Major Frederick Smith (A)
Assistants to the Trial Judge Advocate:
Lieutenant Mortimer Coombs (B)
Lieutenant Harold Wells (C)
THE DEFENSE
Defendant: Charles Winston, Lieutenant (D)
Counsel for the Defense: Captain Barney Adams (E)
Assistants to the Counsel for the Defense:
Lieutenant Harvey Bender (F)
Lieutenant Oscar Moscow (G)
“He’s right,” Bender said.
“Yes, sir,” Moscow agreed, catching some of the other’s enthusiasm. Pointing to the diagram, he added, “Whatever the verdict is—it’s in their hands.”
“Good. Now let us get down to cases, gentlemen. We’ll start with the prosecution. First of all, Major Smith.”
Bender chewed his contempt with the food. “He’s nothing. Nothing, sir.”
“For God’s sake,” Moscow said, “stop eating, Harvey. All you’ve done is eat since we met the captain. What kind of an impression does it make?”
“I’m sorry really sorry, sir.”
“I’d love to see you fill up.” Adams told him. “I give you my word, Bender, we’ll do it again. About Major Smith?”
“Well,” Moscow said, “it’s easy to underestimate him. You understand, Captain Adams, we will have to talk frankly. Could we say in effect that this conversation is privileged?”
“Of course it’s privileged,” Adams agreed.
“In that case, we can start by saying that Major Smith is a boob. You agree, Harvey?”
“Right.”
“But you can underestimate him just because he is a boob. He’s a partner in a big Wall Street firm—corporation law, and that impresses people. He has a good memory and he knows a lot of law, but unless I’m mistaken, he has no criminal trial experience at all. Is that so, Harvey?”
“None,” said Bender. “I checked that point because I knew you’d be asking me, Captain. He’s been after Colonel Thompson to give him a big trial job because he wants to get his name in the pape
rs and impress his partners. And because of his position at home, sir, Colonel Thompson will brown-nose him right down the line, if you’ll forgive the expression.”
“I’ll forgive it, but find another one.”
“Harvey,” Moscow said patiently, “Captain Adams is in a peculiar position here. Try to remember.”
“Just say what you want to say,” Adams told them. “Don’t worry about me. The important thing is to fill in the holes. Now about Smith—can he think on his feet?”
“He doesn’t have to,” Bender said. “He’s got Morty Coombs sitting behind him.”
“Lieutenant. Coombs,” Adams repeated, staring at the diagram. “What about him?”
“Twenty-two years old, summa cum laude, City College of New York, first five, NYU Law School, stinking little genius, total retention, knows more military law at this point than anyone in the world—”
“Look up the captain’s record, Harvey, before you go overboard. Sure, Morty Coombs is smart. But he’s no diplomat. You’ve got to be more than a genius to infuse Major Smith with intelligence. If Smith had humility, he’d use Coombs, but Smith doesn’t know how. Do you think he’s going to take tactics from a snotty twenty-two-year-old lieutenant? Do you think Coombs can communicate with Smith? Maybe if he had doubts, but like the captain said, he doesn’t have doubts.”
“All right,” Adams said. “Now what about Lieutenant Wells?”
“Just don’t write Morty Coombs off,” Bender insisted.
“I’m not writing him off. I’m simply trying to give the captain a balanced picture. You see, sir? Harold Wells, on the other hand, is a horse of another color entirely. Wells was an assistant D.A. in Boston. Thirty-three years old, Harvey?”
“Thirty-four, Harvard Law School, Beacon Hill, lots of money in the family, Late George Apley type.”
“To answer your question, sir,” Moscow said, “Smith can’t think on his feet—Harold Wells can. He knows how to try a case, good presence, fine Boston accent. Smith is a plodder; Wells is a jabbing fighter—you know, with the left all the time. But Major Smith knows that, and he’d die before he’d let Wells in.”
“It would be a hell of a team without Smith,” Bender commented, grinning.
“We’ll come back to them,” Adams suggested. “Let’s talk about the court. Start with the president. I met Colonel Thompson. Are my impressions of him correct?”
Bender waited while Moscow searched Barney Adams’ placid face shrewdly. “You try a case that way, Captain?” Moscow asked.
“When it’s called for.”
“Your impressions are correct,” Moscow admitted.
“Now, off the record and privileged, gentlemen—I am somewhat surprised to see the Judge Advocate General as the president of the court. It’s done, but poorly done, I think, and bad practice. Why?”
“He couldn’t resist,” Bender shrugged. “How could he resist?”
“If I may say so, sir,” Moscow added, “no infantry officer understands the fine points of publicity.”
“Leave it at that,” Adams agreed.
“If I may say so, sir,” Moscow put in, “there is one man Colonel Thompson is afraid of. No, that isn’t the word. Not fear, but respect. I mean, no nonsense. And that’s our one real break on this diagram—Colonel Mayburt, the law officer. If Colonel Mayburt says it’s law, it is law, depend on that, Captain.”
“Tell me about him.”
“Late forties,” Bender said, “I think, forty-nine. Tall, handsome man. Lewis Stone type—you remember the Andy Hardy pictures?”
Adams nodded.
“Judge Hardy, in the flesh. But not corny—he was a judge in Elizabeth, New Jersey, criminal court. Eleven years. District Attorney, six years. Beautiful wife, seven children, Board of Directors, First National Bank of Middle Jersey. When he was D.A. he broke the Owney Gleason mob, right through Essex and Hudson counties. Incorruptible. He had it out, showdown stuff, with Hague, and he walked back to his own corner. I tell you, Captain, a man with a record like that ought to be President or at least a senator. Instead, he enlists in the army and lets himself be sent out here to this ass-hole of creation.”
“How do you know all this?” Adams asked in amazement.
“I keep myself posted,” Bender replied modestly. “Oscar and I have some talent. Not what you deserve, but some.”
“About Colonel Mayburt,” Moscow said, “he will deal law, sir, good, solid law. You can be sure of your ground. He’ll never pull the rug from under you.”
“That’s good to know.”
“I imagined you’d like that, sir.”
“I do. Now let’s go to the court itself. We’ll move across the diagram. Major Clement first.”
“Maybe a year or two older than you, Captain. Regular Army man—very quiet. He listens. Very serious, and so far as we can find out, no expression of opinion on the Winston case.”
“Major Hennessy?”
“Ah!” Bender nodded. “He used to be a cop on the New York City force. Studied law. Self-made. He would be for guilty, hands down, but he hates the British.”
“He doesn’t just hate them,” Moscow added; “his father was an Irishman who was killed in this Black and Tan business. It makes for an opening.”
“Colonel Burnside?”
“No brains, none at all. He’s a southern gentleman with fine manners and very agreeable. How can you measure such a man? He will agree with you. He will agree with Smith. He will also agree with Thompson.”
“Colonel Winovich?”
“Guilty. He’s a corporation lawyer from Pittsburgh. He won’t even listen very much.”
“Colonel Kelly?”
“He’s a nice fellow—doesn’t hate anyone. But he feels that hanging’s too good for Winston.”
“Major McCabe?”
“He thinks Winston ought to be shot and hanged both. An infantry officer, like yourself. Hard as nails, but the boys who served under him in Burma worship the ground he walks on.”
“Major Cummings?”
“Air Force. He’s only twenty-six years old, and he has a wonderful record. Shot down over the jungle twice, and walked out each time. They say he’s not afraid of anything on earth, including General Kempton. As far as we can find out, he knows very little about the case. The trouble is, he’s been dating a British girl.”
“So our spies tell us,” Moscow said. “But who knows on what basis a man dates a girl? The fact is that Cummings has an independent mind—nothing frozen. He will listen to reason.”
“And Captain Brown?”
“I think they wanted company rank on the court,” Moscow said. “My guess is that they deliberately omitted anyone of general rank for the same reason that they brought you to the defense, Captain—because the cards are stacked against Winston and because this has become a sort of general headache in Washington and London and everywhere else. They want to have a sort of jury of peers, so as to speak. Captain Brown is from supply, just as Winston was. He’s a sort of white-collar officer, like Bender here and myself, and he certainly won’t fight city hall.”
“He’s a man of no distinction.” Bender nodded agreement.
“At least,” Adams said, “I have background knowledge now. Suppose we go into the lounge and find a quiet corner and get to work.”
“But what about your challenges, sir?” Bender wanted to know. “We have a replacement list of seventeen officers. Don’t you want to go through them?”
“No. I’m not going to use any challenges.”
Bender was shocked. He appeared to feel that he and all his vast statistical and investigatory knowledge had been summarily rejected. “I’m afraid I don’t follow you, Captain,” he said with great dignity.
“Come, Lieutenant,” Barney Adams said kindly, “let’s see just what a challenge is. The civilian lawyer sets great stock by them, because he has a set of rules for externalizing a person’s character. I don’t believe in such rules. I don’t know very much about any person—not e
ven myself—and when I make a judgment, as often as not it turns out to be wrong.
“Now, I have one peremptory challenge. If I exercise it, I risk the hostility of the entire court. I am a soldier first—I can’t forget that. Now, as to challenge for cause—do you know what it means to specify cause when dealing with superior officers?”
Bender shook his head. Moscow said slowly, “Do you know, I think he’s right, Harvey.”
Monday 8.30 A.M.
The building which housed the Judge Advocate General was a former governmental residence. Strangely enough, in that subtropical land, it was built in the late Georgian style, and surrounded by a brick wall with wrought-iron gates. It was said that all the bricks for its construction had been brought by sailing ship from England at great cost, which Adams could believe, there being so few brick buildings in the city. The building had fine proportions, and it was the one building in the city that filled Adams and many other Americans with nostalgia, for it was not unlike many buildings at home.
When the building was first turned over to the U.S. Command, it was in poor shape and had not been in use for several years. By now, it had been repaired and the rotting wood had been replaced or painted; and as Barney Adams saw it at half-past eight this Monday morning, the sunlight falling upon its tiled roof and old red walls, the palm trees bending over it, the hibiscus against its brick walls, it made a pleasant sight. It seemed incongruous that a murder trial would take place here.
“Well, sir,” said Corporal Baxter as the jeep went through the gates, “this is it, isn’t it? Zero hour.”
A certain affection had overlaid Baxter’s initial dislike, and he was protective toward Adams. “Anything I can do, just name it, Captain,” he said as he parked the jeep.
“I’m afraid all you can do is sit around and wait, Baxter. I wish I could give you the day off, but I can’t take a chance on needing the jeep and not having it here.”
“Don’t give it a second thought, Captain. I like to sit. And I want to wish you good luck. It’s a hell of a note that they got to go to such lengths because someone knocked over a limey.”