by Bill Mesce
I suddenly felt ashamed at my bridling at having been shut out of the meetings. Harry’d been right: keeping me at arm’s length had been best for me. And, as Harry’s recitation would continue, I felt a pride in my association with him. He’d expected it all along, and in his shambling, undramatic way, had been ready to slap it fully down.
“He’s still a newspaperman,” Courie parried. “What’s to say something won’t arise during the course of the trial that professionally compels him to file a story?”
“Nothing,” Harry said flatly. “That’s what he does. However, in the matter of security, Lieutenant Sisto’s unit has been out of the Huertgen for over a month. I don’t foresee any testimony that will deal with the current disposition of any other unit in the Huertgen, or even with the current disposition of any element of the 28th Division. And I’m pretty sure the Germans are well–aware of the bloody nose they gave the 28th. However, if we reach a point in the trial where testimony is presented that might be considered a breach of security, the court can always be cleared at that time.
“I would also like to point out that Mr. Owen has a long history of cooperation with Allied press offices. No complaint has ever been made against him, and he has even, on occasion – I think the word is ‘spiked’ – a story the military has found problematic. Just last year, Mr. Owen received a letter of commendation from Supreme Headquarters for his assistance in uncovering a smuggling operation involving American and British military personnel, and, just as importantly, for the discrete manner in which he reported the story for his paper.
“Mr. Owen has assured me that should he feel some professional obligation to file a story on some aspect of this trial, he will abide by the rules of the press pool and have the story vetted by the military censor before sending it on. He has even promised to go one step further and have the story vetted by the Judge Advocate’s office even before submitting it to the censor.” Harry turned to me at that last, looking at me over the tops of his half–moon glasses. “I’m correct in my understanding, Mr. Owen?”
I pushed myself upright on my one good leg and held up my right hand. “I do so swear!” I proclaimed, a little too grandly for Captain Courie’s taste I gathered.
Ryan beckoned me back down into my seat. “Captain,” he said, turning to Courie, “Colonel Voss seems to have thrown a pretty heavy blanket over your call for a closed court. Unless you can find some holes in it…”
Courie rose slowly. I had a better angle on his face than Harry’s and I could see the initial unhappiness, replaced by a poor sham of good–natured resignation.
“Good,” Ryan said, ending the round. “Captain, as long as you’re up, I believe that, according to the manual, you have a question for me at this time?”
“Yes, Sir. Are you aware of any matter which may be a ground for challenge against you to sit as the legal member of this court?”
“Can’t think of one, Captain, thank you for asking.”
“The government has no challenge for cause against the legal member,” Courie said, clearly uncomfortable with Ryan’s flippancy.
“Defense has no challenge for cause,” Harry declared.
Ryan next turned to Sisto. “For the record, I would like to remind the accused of what I’m sure his counsel has already told him regarding his rights. Along with whatever protections normally afforded in a civilian criminal court, you have the right to make an unsworn statement before this court without subjecting yourself to cross–examination; you will be provided with a typed record of these proceedings; in the event of a conviction, your case will automatically be appealed. Do you understand these rights?”
“Yessir,” Sisto acknowledged.
“Captain Courie, would you be so kind as to arraign the accused?”
When Courie had concluded reviewing the charges, Ryan turned back to Sisto. This time the flighty attitude was gone. “All right, Lieutenant. How do you plead? Before you make your plea, I advise you and your counsel that any motions to dismiss or for some kind of relief should be made at this time. And I see from those neat blue–bound papers your counsel is waving at me that Colonel Voss is ready to do just that. Give it a whack, Colonel.”
Harry rose and handed copies of the documents in their blue wrap–round covers to Ryan and Courie. “I ask the Court to pardon the appearance of these documents. As the Court knows, we’ve been a little short on logistics and we’ve had to make do.”
“I think you should’ve taken typing as an elective instead of woodshop,” Ryan said, squinting at the pages spurtled with erasures and typeovers.
Courie was less offended by the bad typing then the content. “Motion to dismiss?”
“Lieutenant Sisto has been improperly charged,” Harry said. He rose to his feet this time fumbling through his index cards.
“It would be an understatement to say you have our rapt attention,” Ryan said to Harry. “Aren’t you rapt, Captain Courie? Go ahead, Colonel Voss. My eyes aren’t what they used to be,” he was still scowling at the motion papers, “and this isn’t going to help them any. Would you mind giving me the Reader’s Digest condensed version of this?”
“Sir, I grant Captain Courie has a whole lot more experience in civilian criminal court than I do. I don’t know what the statutes in his particular jurisdiction back home may be regarding duplicative charges and multiplicity – ”
“Colonel,” Ryan said with a nudging impatience, “would you mind skipping on down to the good stuff?”
“Sorry, Sir. The Manual of Courts–Martial specifically prohibits using one transaction as the basis for multiple charges. A given specification cannot allege more than one offense, nor can multiple specifications be used to justify a multiplication of charges when there is only one transaction at issue. Nor can a lesser component of a charge be broken out for a separate charge. For example, if you charge someone with disobeying an order, the offense of disrespect for a superior officer, or conduct unbecoming, would be considered a lesser included offense and not a separate transaction. You either charge a man with disobedience, or you charge him with disrespect. It’s not a menu; it’s either/or. The Judge Advocate’s charge sheet is just a half–dozen different ways of re–arranging the same specifications to say the same thing. On certain charges presented by the Trial Judge Advocate, the specification doesn’t even meet the standard for supporting the charge.”
“Dare I guess you have something specific in mind?” Ryan queried.
Harry produced another set of motion papers. “Pending your decision on my motion to dismiss, I submit a motion to dismiss the first charge of the indictment: desertion in the face of the enemy.”
Courie made no pretext of being anything but being irked as he rose. “Sir, can I get in a word? My door has been open all week to hear a negotiated plea from the Defense – ”
“I’m not negotiating anything, Captain,” Harry said, his understatement as cutting as a blaring declaration. “You don’t even have a prima facie case to be made for desertion. I know you haven’t been in uniform very long so let me help you out:
“The standard for Article 58 defines desertion as – “ Harry fumbled his way to a given index card “ – as, ‘an officer or enlisted man who absents himself, without authority, from the military service with intent not to return thereto.’ I’d also like to call your attention to – ”, another card, “ – Article 28 – ‘Certain Acts to Constitute Desertion’ – which also defines desertion as quitting of one’s post or proper duties without leave and with, ‘intent to absent himself permanently therefrom.’
“Being new to the war, the Trial Judge Advocate may not be aware that to lose a position to the enemy does not constitute desertion of a post.” No acidic tongue could have twisted the blade of irony as deftly as Harry’s flat dissertation punctuated with a look over the top of his spectacles as if asking Courie, as a teacher might of a laggard student, “Do you understand now?”
“In no way did Lieutenant Sisto abandon his proper
duty which was responsibility for his men; not even temporarily. The withdrawal from the hilltop was as organized as circumstances allowed, and the lieutenant was among the last to leave. Once he returned to the trenchline, he organized the battalion’s withdrawal from the hill. I emphasize, again, the word ‘organized.’ It was a fighting withdrawal which, by definition, means the lieutenant and his men remained engaged with the enemy until contact was broken. The few officers and non–coms left – including Lieutenant Sisto – not only helped shepherd the men off the hill, but led trailing details to search for wounded so none would be left behind. Lieutenant Sisto even stopped to personally assist a wounded man across the firebreak.
“The Defense concedes that what is at issue is whether or not the lieutenant had the authority to order the withdrawals, but there is not one element of the act that can justify a charge of desertion.”
“How about it, Captain?” Ryan asked Courie.
The captain was frustrated. He was puzzled. He was curious. And he was respectfully appreciative. I took that confluence of sentiments to indicate he was just now realizing how seriously he’d underestimated this “good old–fashioned general practice” barrister. Yet, he was not one to simply step back and cede a fight. “The Trial Judge Advocate would prefer to err on the side of caution on such a serious charge, and let a jury decide the merits.”
“By that reasoning, Captain, you could charge the lieutenant with contributing to the delinquency of a minor and wait for the jury to figure it out, but that’s not how it works,” Ryan said. “I’m going to err on the side of caution, too, unless you have a more substantive point to make. Ah, I see that Colonel Voss isn’t quite done with us. Another motion, Colonel? I can’t wait to see what’s in this one!”
“Again,” Harry began, “pending your decision on my first motion, this is a motion to dismiss the fourth charge of the indictment: Making a mutiny.”
“Same grounds?” Ryan asked. “Doesn’t make the standard?”
I watched Ryan’s face. He’s enjoying himself. It was more than simply glorying in his central role.
Then I understood.
You cunning old bastard. You cunning cunning old bastard!
Harry held out a hand to Peter Ricks who handed him a thick–set volume from the Defense table. Harry flipped the book open to a marked page. “If I might quote from the annotation from the most recent revision of the Articles of War – ‘Mutiny may be defined as concerted insubordination, or concerted opposition, defiance of, or resistance to, lawful military authority by two or more persons subject to such authority, with the intent to usurp, subvert, or override such authority or neutralize it for the time being – ’”
“He took over the battalion!” Courie declared, rising to his feet.
Harry held up a finger for patience, his eyes never leaving his text as he continued reading: “‘Concerted refusal to obey an unlawful order is not mutiny.’” Harry closed the book and returned it to his table. “The lieutenant did not usurp Major Joyce’s command. As the officer in tactical command – ”
“He wasn’t even senior on the hill!” Courie jumped in.
“True. But the only officer on the hill at that time senior to Lieutenant Sisto was Lieutenant DeCrane commanding Item Company on the southern slope of the hill. Lieutenant DeCrane recognized that it was on Lieutenant Sisto’s side of the hill where the main assault was taking place, and where the bulk of the battalion’s combat personnel were committed. Consequently, he willingly ceded tactical command to the lieutenant. There’s a statement from Lieutenant DeCrane to that effect attached to the motion papers. My understanding is that, under Army doctrine, this represented an acceptable exercise of initiative under the demands of a battlefield situation.
“Lieutenant Sisto issued no orders or statements indicating he had assumed command of the battalion from Major Joyce. His orders only dealt with the immediate tactical situation of the battalion. When Lieutenant Sisto returned to the woods where Major Joyce had moved his CP, the lieutenant was already on his way to report to the major when he was informed he was to be brought to the major. The lieutenant obeyed that instruction, reported to Major Joyce, and though he initially argued with the major’s placing him under arrest, subordinated himself to the major’s command.
“It is the Defense’s contention that the lieutenant’s actions concerning the withdrawal of the battalion from the hill constituted a momentary exercise of the on–scene field commander’s discretion. The Trial Judge Advocate is certainly free to contest that judgment, but the alleged disobedience therein does not constitute an act of mutiny.”
“Think, perhaps, you were a bit overzealous applying the article?” Ryan asked Courie.
The captain turned a wry face toward Harry. “Is there any charge in the indictment the Defense Counsel thinks is justified?”
There came, again, the look over the top of Harry’s spectacles. “Well, Captain, as the Defense Counsel, I’d be obligated to respond to that with a big Hell No! But that’s my job. Colonel Ryan, I request a ruling on my motion to dismiss.”
Ryan was sitting slumped atop his judge’s table, Harry’s motions rolled up in one hand, his head bent forward. I have to admit to being impressed. Joe Ryan was not one to whom I usually ascribed the sense of judicious contemplation, but he was still for a judiciously long moment, clearly in contemplative thought. Finally, he drew himself erect. “Taken on an individual basis, there’s a prima facie case to support one or another of the charges of the indictment, so the motion to dismiss is denied, but the charges of desertion and mutiny are quashed on the basis of insufficiency.”
“At least he’s got the gallows out of the game,” I whispered to la comtesse.
“Captain Courie,” Ryan went on, “the case goes on but not with this indictment. You’re going to have to decide what exactly you think the accused has done and say it once. Understand? Captain?”
Courie and Alth had their heads together, were flipping through their own notes.
“Oh, Captain Courie!” Ryan hailed. “Did you get my message?”
Courie stood. “Two charges, Sir.”
“Two?” This from an unhappy Harry.
It was now Courie’s turn to show his muscle. “The withdrawal from the top of the hill, and withdrawing the battalion from the hill are two separate transactions. The Judge Advocate will amend the indictment to a charge of disobeying a direct order as indicated in the third charge of the current indictment, and a charge of threatening the good order and discipline of his unit as stated in the seventh charge.”
“Move to sever,” Harry declared. “Separate transactions, Sir. A rendering on either could prejudice judgement of the accompanying charge.”
“Sir,” Courie began, “the proximity issue alone justifies joinder: two criminal transactions by the same individual separated by only minutes. Beyond that, the second act is a compounding transaction arising directly from the first. Lieutenant Sisto had been ordered to hold the top of the hill. He disobeyed, and removed himself and the assault detail. The lieutenant made no attempt to contact Major Joyce once he’d returned to the trenches supposing from his last communication at the top of the hill that the major’s intent was for the battalion to remain engaged. As even the Defense points out, these are two separate actions justifying separate charges, but they are both transactions of disobedience to the same order.”
Again, Ryan bowed his head in thought.
La comtesse looked to me puzzled.
“Harry wants a separate trial for each charge,” I explained. “But it won’t happen. The judge chap wants this over and done. Watch.”
As predicted, Ryan raised his head and declared, “Move to sever is denied.” He glanced at his watch and nodded, impressed. “Guys, I’m proud of you. We got through this in record time. Here’s the drill. I’m going to declare a recess until eleven hundred hours. That should give the Trial Judge Advocate ample time to apply our limited secretarial support to amending the indictm
ent which I’m hoping he will provide to the Court and to opposing counsel before we reconvene. If the Defense has any problem with the amended indictment, objection can be raised at that time. Otherwise, we’ll go straight into jury selection. Colonel Voss, pending that amended indictment, can I get a plea from your client to the charges of disobeying a direct order from a superior officer, and threatening the good order and discipline etc.?”
“Sir, I’d like to request a continuance at this time. Defense has not been given adequate time – ”
“Denied.”
The request was strictly pro forma. No one – including, as far as I could tell, Harry –expected anything but the summary dismissal.
“Now,” said Ryan, “how about a plea?”
Harry and Ricks stood with Dominick Sisto. “Not guilty, Sir,” Sisto announced.
“Very little suspense there,” Ryan observed. “Before we wrap this up, is there anything else?” There seemed a rising eagerness in Ryan to be done with the proceeding.
“Approach, Sir,” Courie requested. Ryan waved Harry and Courie to the judge’s bench, the court stenographer lugging his recorder along to join them.
At Ryan’s table the three officers bowed their heads together, there were some low mumbles which quickly grew louder and more heated. The three heads unconsciously flicked toward the Defense table. Sitting at the back of the chapel, subject to the atrocious acoustics of the bare, stone walls, the mumblings remained indistinct to me, but I could see Peter Ricks and Dominick Sisto twitch, then Ricks’ head vehemently swinging in the negative. He removed his hook from the table, self–consciously laying it in his lap and covering it with his good hand. Sisto set a hand on Ricks’ shoulder: in support, in comfort.
Ryan was forced to raise his voice to quiet the overlapping arguing going on before him and at last I heard something clearly: “Hold on a second; both of you! Colonel Voss, I take it you’re making an objection?”
“To hell with an objection!” Harry said, now making no attempt at all to mute his voice. “That’s the most offensive thing I’ve ever heard! Would it be acceptable to the Trial Judge Advocate if the captain hid it under the table? Maybe we should have him strip off his decorations, because maybe that’ll ‘elicit unfair sympathy,’ too!”