Casualties of War: The Advocate Trilgy

by Bill Mesce

  *

  On the afternoon of Wednesday, 6 December, two deuce–and–a–halves and several jeeps and staff cars arrived in convoy at the chateau to deposit the jury pool and witnesses scheduled to appear during the trial. To insure that there would be no untoward contact with the new guests, Harry called Peter Ricks and myself to what would be our last pre–trial briefing session in Dominick Sisto’s room as the column of vehicles drew up to the front gate. Through the guarded oak door of Sisto’s quarters we could hear the ado in the halls as the MPs led the potential jurors this way, the witnesses that way, hear them all marveling or joking over their new surroundings.

  For once, Sisto was keenly attentive. He sat in our circle, leaning sharply forward as if – finally – he was attuned to every word; each consideration, each bit of strategy, each estimation.

  Harry and Peter Ricks were poring over the list of veniremen Courie had provided.

  “What are we going for?” Ricks asked.

  Harry squinted at the typed list as if he hoped to perceive some not readily apparent clue as to the perfect choices and a means of executing them. “I want to stay away from officers with too much staff time. My preference is to get as many men with combat command experience on the panel as possible. Hopefully they’ll identify more with Dominick than somebody who’s spent the war at a desk. I also want to avoid somebody on Cota’s staff who might think giving the general Dominick’s head is the kind of thing that’ll move him up the ladder. I see here where the general has been magnanimous enough to include a few possibilities from Dominick’s regiment. If we could get some of them on the panel, there might be some sympathy there. Maybe. I hope.” Harry turned to Sisto. “Do you know anything about Cota? I remember hearing the name, I keep thinking it was something to do with D–Day.”

  “I remember the story,” I said. “I saw it come in on the wires. Quite inspiring, actually. The kind of thing you’d think people would make up for the pulp novels. At the time, he was the deputy something or another for one of the divisions that landed on Omaha Beach. You remember the bloody chaos that lot was! So here the general stands up, walking about the beach, completely oblivious to jerry’s bullets whizzing all about his head, and he tells his joes, ‘There are two kinds of people on this beach: the dead and those who are going to die…Now let’s get off this beach!’ Or something equally inimitable. And off the beach they go! Huzzah!”

  Sisto was nodding in concurrence. “When we were still back in England and we got the word we were going to be attached to his division, I heard another story. It was the 29th Division he was with in Normandy; he was the deputy commander. This was when the 29th was crawling through all those goddamn hedgerows. The story is that there was this company trying to figure out how to dig these krauts out of a farmhouse. Cota was always moving around up on the front lines and he showed up, had that big cigar of his stuck in his face like always. So what happened is he got out in front himself, took these guys in a charge on the farmhouse. They say he kicked the front door in himself, tossed in some grenades, they took the house and then he went back to the company commander and said something like, “Ok, that’s how you take a farmhouse. Do you know how to do it now? ‘Cause I’m not always gonna be here to show you.’” Sisto turned to Harry. “Any of that help you?”

  “I’m wondering if any of that helps you,” Harry replied.

  “I picked up a word here and there about him in Wiltz,” Ricks contributed. “Tough…but fair. Fair…but tough. Which side of the scale getting the weight depends on who you talk to. He’s a fighting general; maybe that gets the lieutenant something.” There was an unspoken caveat.

  “But?” Harry pushed.

  “By the same token… I heard about this Polish kid in Cota’s outfit, they got him for desertion. They court–martialed him last month. Sentenced to the firing squad. Cota signed off on the sentence. If they go through with it he’ll be the first GI shot for desertion since the Civil War.”

  “With all respect, Captain,” Sisto said, “if you’ve got any more gems of information like that, I wouldn’t mind you keeping them to yourself.” Sisto turned to Harry. “How much help do you think we can expect from the Irishman?”

  “Ryan?” Harry shook his head, unsure, and Ricks and I smiled sympathetically. “I wish I could tell you,” Harry said.

  “Your hometown chum isn’t all that easy to get a read on,” Ricks seconded.

  “I know this much,” Harry said, “He won’t do anything overt unless he’s got good legal cover.”

  “You hear anything from Andy?” Sisto asked.

  Harry nodded. “He sent word in with one of the people who came in today. He’s still coming up dry. He wanted to know if I wanted him back for the trial.”

  “You should bring that poor kid home, Signor. He’ll run himself ragged talking to everybody in the ETO for you if you let him.”

  “He comes home when there’s no place left to look.”

  “What about a plea?” Ricks asked. “Alth buttonholed me coming out of the can this morning – which I thought was damned rude – and said Courie told him to remind us the clock’s ticking down on a plea.”

  “And?”

  “Well, Harry…tick, tick, tick.”

  Harry shook his head noncommittally. “Dominick, a note on wardrobe. Do you have a set of Class As?”

  “I lost half my gear up in the Huertgen. All I’ve got is my field dress.”

  “Good. Do you have a tie? I’ve got a spare one, but other than that, you wear what you have. Spruce it up a bit but go in there looking like a GI. I don’t ever want them to forget who you are.” Harry tiredly tossed the jury pool roster on the floor along with his notepad, slipped his reading spectacles off and rubbed his eyes, then turned to me with a look of, It’s time for your castor oil, Mr. Owen. “One last thing, and this is for you, Eddie. When we go in there, I don’t want you sitting at the defense table.”

  “Oh?” I tried not to sound offended, and took some solace that, from what I saw on the faces of Peter Ricks and Dominick Sisto, I was not the only one taken aback.

  “I know everybody knows you’ve been working for us, but tomorrow I need for you to be off in the bleachers. Strictly a spectator. It’ll be better for you.”

  I did a fairly good job of appearing to resume my usual aplomb. I smiled jauntily, cocked my head in a natty little bow. “As you wish, m’luhd.”

  At that, Harry scooped up his materials, pulled himself out of his chair with a grunt. “That’s it, then. I’ve got some stuff to noodle through, but I want the rest of you to get some rest. I want you sharp for tomorrow.” He hesitated a moment, mulling to make sure that there was, indeed, nothing else to cover, then with a nod of approval to himself exited.

  Sisto and Ricks were looking at me with apologetic – and puzzled – faces. For the sake of morale, I lifted one arm and mockingly pointed my nose in the direction of the exposed armpit. “Banished! Goodness gracious! Do I of–fend?”

  “Tell you what, Mr. O,” Sisto said. “If you want to sit at that table so bad, you can have my seat! I don’t mind giving it up!”

  *

  The chateau’s chapel, being a place to worship the crucifixion of a young chap who sought to follow his conscience, seemed an appropriate space to stage the pillorying of another luckless young sod accused – in essence – of the same sort of offense. It was one of the smaller chambers of the chateau, yet with its bare stone walls and floor, and high, steeply–peaked roof, hardly intimate. Making it more uninviting was the same denuding our Teutonic predecessors had inflicted throughout the castle. The woodcarvings of the stations of the cross were missing leaving empty niches along the walls; the dozen pews that had flanked the single aisle and the angel–winged pulpit had gone up the chateau’s chimneys as heating fuel. All that was left was the austere, marble–topped altar sitting under the dome of the apse, its brass candlesticks and tabernacle long since absconded. Three lead–lined stained glass windows set in the do
me above the altar offered three views of a beneficent Christ extending his arms as it seems the Christ is always wont to do despite his rude treatment by his earthly constituency.

  Under the dome, on the raised altar dais, had been set three mismatched tables, end to end, to serve as the jury panel’s station. At a small table to the left of the jury, on the main floor of the chapel, would sit the legal member of the court – in effect, the judge. To the right of the jury, opposite the legal member, a single chair: the witness stand. Not far off the witness stand, a seat for the court stenographer.

  Across from the jury dais on the main floor sat two other tables. On the left was the table for the Defense; on the right, that of the Trial Judge Advocate.

  A row of chairs scrounged from every corner of the chateau were arranged along the rear wall of the chapel. There were two Military Policemen posted outside the double doors of the chapel, two more stationed inside, one standing by the law officer’s chair to act as bailiff and evidence custodian, and two more standing by the broad fireplace along one wall. The role of these latter was to periodically stoke the high blaze from a nearby stack of firewood providing the only heat to mitigate the bone–aching damp chill of the chamber.

  I entered the chapel just before 9 am on the morning of 7 December. The jury tables stood empty. Harry and Peter Ricks, in their Class A dress uniforms, sat on either side of Dominick Sisto at the Defense table. Sisto was garbed plainly, field trousers tucked into leggings and combat boots, his windcheater drawn over his field blouse, the only token of formality being the olive drab tie Harry had loaned him. There were a few books sitting in front of them, a foolscap pad in front of each of them, and before Harry those annoying little index cards of his whose positions he restlessly shifted about on the tabletop. Courie and Alth, also in their Class As, sat at the other table behind their own ranks of books and notepads. I looked about for a place to sit, saw only the row of chairs along the rear of the chapel. La comtesse was sitting at the far end of the row. I made to sit in the aisle seat, but she turned to me, cocked her head in a way that invited me to take the chair at her side. I nodded a thanks.

  It took me a second to arrange the connections of my leg so I could sit. Evidently, she had always assumed my odd gait an organic failing for she seemed surprised at the mechanical devising necessary to lower myself into a chair. As I sat, I felt her gloved, slender–fingered hand on my forearm. Her face said, I’m sorry; I didn’t know.

  I had just settled in the chair when the double doors swung open and one of the Military Policemen barked: “‘Ten–hut!”

  The uniformed men at both tables rose as Joe Ryan entered, followed by a staff sergeant toting his stenographer’s recorder and its flimsy little stand.

  “Have a seat, everybody,” Ryan called out as he breezed to his station. He tossed his briefcase on the chair before parking himself rather informally atop the table serving as his judge’s bench. I must say this about the bloke: he knew how to wear a uniform, though it no doubt helped that Ryan’s dress clothes were not strictly Government Issue, but the product of a deft Saville Row tailor. But also, in part, it was his air; Ryan was a showman, and here he was in his element, delighting in a featured role.

  To the stenographer: “Sergeant, you let me know when you’re ready.” Then to the men at the tables: “As soon as Sergeant Barham has his magic box set up, we’ll get started, but before we do, I want to set a few ground rules for today. Once the jury pool is brought in, and particularly during the body of the trial, everything is by the book. You gents all know the protocols, and that’s when you’ll have the opportunity to beat your drums. But for this morning, I want to expedite through this pre–trial stuff so let’s leave the Clarence Darrow songs and dances at the door for now. I’ll live with a certain amount of informality to keep things moving as long as you keep all the punches above the waist and don’t waste too much of the Court’s time with a lot of hot air. Are we all together on this? Fine. Jesus…” He turned to the MPs at the fireplace. “Does it get any warmer than this? Why don’t you guys throw another stump in the furnace before we all freeze to death.” Once again, addressing the members of the court: “Considering we’re a little short on creature comforts here, I’ll tell you what I’m going to tell the jury: If you feel the need to alter the proper wardrobe for the sake of preventing frostbite, feel free. I see that Lieutenant Sisto already has a head start on the rest of us in that regard, so bully for him. How’re you doing, Sarge? All set?” Ryan leaned back, reached into his briefcase and produced a trial gavel – the only bit of equipment in the room that seemed to have a legitimate judicial pedigree. When he brought it down on the table it produced a sharp, high–court–sounding crack! “Captain Courie, want to start the ball rolling?”

  The captain rose and in a loud, declarative voice announced: “This general court–martial is convened by order of Major General Norman Cota, commanding general, 28th Division, on this date, 7 December, 1944, to hear evidence in the matter of the U.S. Army vs. Second Lieutenant Dominick V. Sisto, 3rd Battalion, 103rd Regiment, temporarily attached to the 28th Division. A copy of the convening order has been furnished to the legal member, both counsel, the accused, and the court reporter for inclusion in the trial record. The charges have been properly referred to this court–martial for trial and were served on the accused 15 November, 1944.

  “Sitting as legal member for this proceeding is Colonel Joseph P. Ryan, Judge Advocate General’s Bureau, Liege. Acting as Trial Judge Advocate is Captain Leonard T. Courie, Judge Advocate’s etc. Sitting as Assistant Trial Judge Advocate is First Lieutenant Wilson R. Alth etc. For the Defense, Lieutenant Colonel Harold J. Voss, and Assistant Counsel Captain Peter T. Ricks.”

  “Let us not forget Staff Sergeant Lyle Barham, court recorder,” Ryan said with a gracious nod in the stenographer’s direction. “Captain, would you mind swearing the good sergeant in?”

  Barham rose at his station as Courie approached him with a Bible. Knowing the program, Barham placed his right hand on the Bible and raised his left without any instruction from Courie.

  “Sergeant, do you swear that you will faithfully perform the duties of reporter to this court? So help you God?”

  “I do.”

  “Nicely done!” Ryan said broadly as Courie hurried back to his station. “Captain, I can’t help but notice you’re in a rush to get to something. Is there some grave, serious, and absolutely necessary reason you want to interrupt the nice, smooth flow of these proceedings so soon?”

  Courie cleared his throat as he rose. “Sir, the Trial Judge Advocate notes there are spectators in the room.” As always with Courie, there was a staginess, like an untempered actor.

  “And it is that keen eye for detail that makes for an effective Trial Judge Advocate,” Ryan quipped. “I presume that’s a lead–up to asking for a closed court?”

  “Yes, Sir.”

  La comtesse leaned in to me. “Pourquoi?”

  “He only wants people to know he’s won,” I whispered back, “not how.”

  “To which I’m sure Colonel Voss is about to raise some objection,” Ryan said.

  Harry slipped on his reading spectacles, scooped up his notepad and rose. Then – as on succeeding days – he cut a very unimpressive figure in the well of the court. He only occasionally looked up from his notes, whether they were on his pad or in the deck of cards he shuffled through in an almost confused fashion. His stubby form moved about the well in an idle, aimless way, as if not quite sure where he wanted to stand. When he spoke, it was plainly, without the theatrics I’d seen so many exercise before the bar over my time on the job. But it all made sense to those who knew him. Harry’s confidence was not in his ability to sway a jury, to appeal to them viscerally with as much performance as evidence; but in the law.

  So, he stood by his table, shifting from one foot to the other, looking about as if, for the moment, he’d lost track of where the various parties were sitting. I could not see much of his
face, sitting behind him as I was, but I caught a glimpse of lips pursed in thought, saw one of his stubby fingers moving down the foolscap page in search of a particular item. “I’d be curious as to the captain’s offered grounds,” he said in that quiet, banal way of his, “The accused has a right to a public trial under the Sixth Amendment, and the public has a right to access under the First Amendment.”

  He seemed to sense – without turning from his page – Courie’s rising to his feet to declare his grounds, but Harry held up his free hand to beg a moment.

  “Acceptable reasons for exclusion include overcrowding or unruliness among the spectators.” Harry flicked his eyes away from his notes to scan the near–empty vault of the chapel. “I don’t anticipate that as a problem.”

  “Spectators may be excluded for security reasons,” Courie countered. “Testimony will involve descriptions of military operations in the Huertgen including losses. Besides the intelligence value of such information, a public revelation of high casualty counts could provide aid and comfort to the enemy and maybe even propaganda fodder. In case Colonel Voss has forgotten, one of his own defense team – Mr. Owen back there – is a professional journalist which virtually guarantees just such a public revelation.”

  Ryan nodded with a gravity bordering on parody before turning to Harry to await his response.

  “Mr. Owen is not here in a professional capacity,” Harry replied. “He was generous enough to help out the Defense on some routine interrogatories. As the Trial Judge Advocate knows, there was a time problem in preparing for this case and the only reason the Defense is ready to proceed at this time is because of Mr. Owen’s assistance. That said, it should also be pointed out that Mr. Owen is not part of the defense team. He has never participated in – or even sat in on – any session involving confidential communication between attorney and client. Captain Ricks and Lieutenant Sisto can attest to this. Mr. Owen’s knowledge of the case is, to date, not much more than a layman could pick up from the public record.”