by Bill Mesce
“Without getting into the merits of the Defense’s motion,” Courie said with a rather condescending dismissiveness, “the motion is academic. The Court has no power to order a nolle prosequi on any charge or specification without first conferring with the convening authority. I’d be hard put to see General Cota agreeing to – ”
“Excuse me, Captain,” Harry interrupted, “but, um, that’s not quite accurate. Once you master the complexities of criminal law, I know it must be a headache coming into the service and having to learn a whole new set of laws and precedents. But you really ought to make it your business to study these Judge Advocate General’s digests.” Harry once more turned to the book handed him by Ricks. “Again, the 1912 edition, page 509, the Court can quash a charge of specification on its own authority in response to a plea before the bar on the grounds of sufficiency.”
Courie – and Alth along with him – shook his head as if he’d not heard properly. “You’re claiming…insufficiency?”
Before Harry could respond, Ryan tiredly held up his hand. “Take a break, gentlemen. Colonel Voss, do you anticipate this being another one of your dogfights with the Trial Judge Advocate?”
“Probably, Sir.”
At which point Ryan ordered the panel to retire to prevent the argument from prejudicing their judgment. Once the chapel doors closed behind the last departing panel member, and Ryan felt they had proceeded sufficiently out of earshot down the corridor, he turned to Harry with a look that warned, “This had better be good friend.” “Ok, Colonel. Let’s hear it.”
Harry made a gesture with his hands indicating, “It’s simple. Lieutenant Sisto had no obligation to obey the order to withdraw,” Harry stated. “The standard for disobedience – ”
And now finally Courie flamed. “I know the standard, Colonel!” Alth was pushing a book at Courie, but Courie – finally on ground he felt sure of – pushed it away. “The order must be lawful; it must have been received; it must have been understood.
“Throughout this entire trial, the Defense has tried to make an issue of both Major Joyce’s and Colonel Porter’s judgment, but the fact is that while Major Joyce’s order may have been a bad call, that does not – by Army doctrine – justify disobedience. The order to hold was in keeping with the battalion’s assignment. By Army standards, there was nothing unlawful about it. We know the order was received and understood by the defendant because the defendant took issue with it! I don’t see where the Defense sees Lieutenant Sisto’s obligation to obey obviated! Where’s the insufficiency?”
Harry stood quietly – one might even describe him as oblivious – in the face of Courie’s blast. When the prosecutor fell silent, Harry reached behind him without looking – a wonderfully calculated effect, I must say – and Ricks placed yet another volume in his hand. “Captain Courie is correct in what he says about the standard measure of disobedience. However, the standard presupposes that the officer giving the order had the authority to do so. According to paragraph 134b of the Manual for Courts–Martial, the accused in a prosecution for willful disobedience must know – I repeat, must know – that the subject order has been given by an officer with the authority to give it.” Harry placed the book open to the marked page on Courie’s table, then took another proferred by Ricks: “According to page 18 of the 1942 edition of the Judge Advocate General’s Digests of Opinions, that element is a prerequisite to sustain a conviction.” Harry placed this second volume atop the first in front of Courie. “Regarding the second charge of the indictment, according to the Trial Judge Advocate’s own pre–trial argument, the act which forms the basis for the second charge was a – ” now reading a quotation from one of his note cards “ – ‘a compounding transaction arising directly from the first.’ Consequently, the second charge should be quashed along with the first.”
Courie pushed the books toward Alth to do the swot work while he angrily addressed Harry: “Major Joyce was the executive officer of the battalion, am I right?”
“He was,” Harry agreed.
“And as such, Joyce had the right – the responsibility – to assume command if and when his commanding officer was incapacitated or otherwise unable to fulfill the duties of his office, correct?”
“He did.”
“Then where in the hell do you come up with claiming Joyce didn’t have – ”
“If Major Joyce had assumed command at the time he gave his order to hold the hill, I wouldn’t be bringing this up! But that’s not how it was. At that time, he believed Colonel Porter was still in command! Or, at the very least, that Porter was probably still in – ”
“And the basis for that is what? You have some – what do you call it? Clairvoyance? You know what was in the major’s head at the time?”
“I have a pretty good idea.”
“Oh, please enlighten us!” Courie propped himself on the edge of his table and held his head in his hands like an avid youngster at the cine. “Mind reading! My favorite!”
Harry responded with a cool firmness: “Major Joyce didn’t have the authority and he knew it. If he didn’t know it on his own, Lieutenant Tully reminded him.”
Courie’s face brightened as he began to fit the pieces together. “That’s what you were getting at with Kasabian? Just because some GI one–striper says Tully said – ”
“Joyce had threatened to relieve Tully, Tully called him on it, and Joyce backed down. We know this. You know this. Joyce didn’t press the withdrawal issue when he heard the company COs on the radio trying to organize the displacement from the hill.”
“Because he believed they were under Porter’s orders?” Now, it was Ryan fitting the pieces together.
“Joyce testified on all this!” rebutted Courie.
“Yes,” Harry assented, and began flipping through his note cards. “He says he suspected Porter might’ve been dead and Lieutenant Sisto – an officer who, for all his kicking and moaning, never disobeyed a combat order – was trying to pull a fast one. But even Joyce agreed with me when I said that didn’t make sense; the lieutenant could’ve just not contacted Joyce at all and pulled his men out. And even if he wants to stick with that story, the onus is on the prosecution to prove it.” Another card: “He says he didn’t try to intercede with the company COs organizing the withdrawal from the hill because, ‘By then, there didn’t seem to be any point.’ There was a hell of a big point, and here’s where all of Joyce’s explanations become bunk, Captain:
“It was only after Lieutenant Sisto reported to him and informed him definitively that Porter had been lost on the hill – only then – did Major Joyce announce that he was assuming command and placing Lieutenant Sisto under arrest. If he’d been so damned sure Colonel Porter was no longer in command while Sisto was still on top of that hill – if you’re so damned sure! – maybe somebody can tell me why, right then and there, Joyce didn’t get on the battalion frequency and say, “Hey, Colonel Porter’s dead! I’m in command! Listen to me!’
“I’ll go you one better! I’ll call every officer and enlisted man to the stand who could hear the communications between Major Joyce and Lieutenant Sisto and ask them when they thought command passed to Joyce! Because, Captain, if none of them believed Joyce was in command, how do you make the case the lieutenant should have known?”
One could see Courie wavering, but he was far from willing to surrender: “We could clear this all up with a couple of questions to Major Joyce.”
Harry tossed his cards and spectacles tiredly down on his table. “We could.” He sighed and rubbed his eyes. He turned to Ryan. “Off the record?”
With a wave of Ryan’s finger toward Barham, the recorder set his hands in his lap.
Harry turned back to Courie. “He’ll get up on the stand and, under oath, in front of the panel, maybe come up with some pretty good explanations for why we should accept him as having been in command early on and why nobody else in the battalion knew it. But you saw the way that boy’s testimony played in front of that jury.
And you know they’re going to be thinking that a month after the fact, he’s just looking to alibi his own conduct. It’s enough he’s going to come out of this looking like a screw–up as a combat commander. I’m not looking to serve him up as a liar to boot. And if you put him up, that’s how he’s going to come across.”
“Trying to bluff your way to the pot, Colonel?” Courie sneered.
Harry shrugged. “Fine. It’s your case; he’s your witness. I have no objection to you calling him in rebuttal.”
Courie turned away to huddle with Alth. He turned to the referenced pages Harry had left for him. As the discussion proceeded, I could see Courie’s shoulders sag, his head begin to drop. He may have been an ambitious and combative blighter, but he was neither dull nor incompetent. When he next rose from his chair, it was with a sense of resignation. “Sir,” he addressed Ryan, and the colonel signaled Barham to re–start his recording, “I’d like some time to discuss these particulars with Major Joyce.”
“No objection,” Harry said.
Ryan had sat through all the back–and–forth between Harry and Courie with a strangely detached air, not so much one of disinterest as the mien of a shrewd card player; one the Yanks call a “poker face.” He maintained that same air now as he nodded in concurrence. “We’re into an area of chain–of–command protocol that, I must admit, is beyond me. I’m going to need some time to consider Colonel Voss’ plea. If nobody has an objection, I’ll call a ten–minute recess so I can do what I have to do, and you, Captain Courie, can do what you have to do.”
“Sir,” Courie said, stepping forward, “if I might? Depending on the Court’s inclination when we resume, if it comes to it, the Judge Advocate would find a directed verdict of not guilty acceptable.”
“Acceptable?” The poker face devolved into a frighteningly cold anger. Ryan, again, signaled Barham to lay his fingers down. He had spent days – weeks, actually – presenting some semblance of objectivity, but now Ryan no longer saw the need. All his pent up feelings regarding Leonard Courie – and it bears remembering they pre–dated the affair with Dominick Sisto – came up in a scathing seethe. “‘Acceptable’? This isn’t about what you consider ‘acceptable,’ Captain! A directed verdict implies you had reason to make the charge; you just couldn’t make the case. But you’re not getting off the hook that easy! If, on consideration, the Defense plea holds up, you never had a case! This shouldn’t have come to court; there shouldn’t’ve been an indictment! You’ve got egg on your face, Lenny, and it’s not my job, or the job of the Judge Advocate’s office to help you clean it off!” A signal to Barham to resume: “We’re adjourned for ten minutes,” and Ryan’s gavel angrily slammed down.
*
Courie and Alth had left the chapel on Ryan’s heels to confer with Whitcomb Joyce, but the rest of us had kept our seats expecting only a short wait until the resumption of the proceeding. But the ten minutes Ryan had declared passed, then twenty, and the trial had yet to reconvene.
Harry, Ricks, and Dominick Sisto had remained at the Defense table throughout that interim. Sisto seemed quite upbeat; I’d almost say exuberant, and even the extended passage of time did nothing to dim his optimism.
But it had a different effect on Harry. As the posted resumption time passed, Harry began to pace the length of the chapel. I patted la comtesse’s knee as a way of asking a by–your–leave, she nodded, and I intercepted Harry on one of his rounds with an offered cigarette. I lit one for each of us. I suggested the plea seemed to have gone quite well.
“I thought so.” He looked at his watch. “But I don’t like this.”
“I must say, Monsieur Ryan never stuck me as the deeply contemplative type.”
“What?”
“I’m surprised it’s taking him this long.”
“He’s not the deeply contemplative type. That’s why I don’t like this. I figure he would’ve went to Pietrowski because Pietrowski’s the highest–ranking–honest–to–God GI we’ve got around here, talked it over with him. And then, knowing Joe, if he could get any kind of read on which way Pietrowski is leaning, that’s the way he’ll go.”
“Leftenant Colonel Pietrowski does not come across as a fellow who takes that long to make decisions, either.”
Harry nodded. “Either way he went – thumbs up or thumbs down – I took him to be the kind of guy that would decide about two seconds after Ryan pitched it out to him.” Harry looked at his watch, again. Twenty–five minutes had now passed. “Something’s wrong.”
“Speak of the devil.” I pointed Harry to the MP bailiff signaling us the members of the court were returning. “Or should I say devils.”
Harry resumed his seat at the defense table, and Courie and Alth hurried in just before the jury panel, followed by Joe Ryan, filed through the door to take their respective places. But before the doors closed, there was an addition to the cast.
We all – prosecution, defense, and spectators – were surprised to see Whitcomb Joyce enter and take a place at the rear of the chapel. He stood in a rather formal “at ease” stance, his eyes careful not to meet those of any other soul in the room.
Ryan called the court to order. “Captain Courie.”
“Yes, Sir.”
“Regarding the Defense’s special plea; do you have anything further to add to the discussion?”
Courie hesitated momentarily, a reluctance to make an inevitable admission: “No, Sir.”
“No witness you want to call?”
Another hesitation. I glanced over to Joyce. His head was bowed, a small, self–conscious cant of the head, before he forced a resumption of a stoic air.
“No, Sir.”
“In that case…” Ryan cleared his throat, carefully intertwined his fingers and affected a pose of mature statesmanship. “I have studied the judicial citations submitted by the Defense, along with the particular elements of the plea before the bar. The Court considers the arguments by the Defense valid, and grants the plea. All charges and specifications are herewith stricken. Lieutenant Sisto.”
Sisto rose to attention. “Yessir.”
“You are hereby returned to duty and ordered to rejoin your unit forthwith. The 103rd Regiment is still attached to the 28th Division which, as I’m sure you know, is headquartered in Wiltz. You will affect transport to Wiltz at the earliest possible time, and you will be directed to your unit therefrom.”
“Yessir.”
“The business of this proceeding is now concluded. The panel is dismissed with the thanks of the Court, and this tribunal is now dissolved,” and another rap of the gavel. Then, in a less stentorian tone, “But don’t anybody go anywhere.”
Ryan nodded toward Barham, and the stenographer began disassembling his recording device.
Ryan cleared his throat again. “Colonel Pietrowski has requested this opportunity to address Lieutenant Sisto, Major Joyce, and Captain Courie on behalf of the officers on the panel. Would you gentlemen please present yourselves front and center.”
There were curious looks exchanged all about the room, but nothing resembling an answer. Sisto, Joyce, and Courie stood abreast at attention in the well before Pietrowski. The leftenant colonel’s intimidating visage folded into a threatening image of fierce thought and glaring study.
“Gentlemen,” Pietrowski growled, “now that the proceedings are over, we – this panel – we have no special authority or responsibility other than what’d normally go with our respective ranks. But, as Army officers, we do have a duty to the men under our commands, and to those who command us. We’ve discussed the matter among ourselves, and even though there’s some difference in the level to which we agree on the particulars, we do all feel obliged to make certain recommendations to our superiors based on what we’ve heard in this courtroom over the last few days. We think you men have the right to know in advance what those recommendations are going to be so you can make whatever preparations or take whatever actions you will need to as a result.
“Lieutenant
Sisto.”
“Sir.”
Pietrowski’s lips curled into what I can only call a snarl. “You’ve caused us all an awful lot of trouble, son.”
“I’m sorry about that, Sir.”
“The hell you are, Lieutenant. I think the only thing you’re sorry about is you’ve had to sweat out these last couple of weeks wondering what was going to happen to you. One of the things all of us agree on is that you could do with some instruction on the proper way of dealing with your superiors.”
“Yessir.”
“That said…” Pietrowski’s face then grew notably – and unexpectedly – softer. “Lieutenant, when you return to your battalion, I hope – all of us hope – you’ll pass a message on to them for us. That they didn’t take Hill 399 was no failure on their part. The failure was with the people who ordered the operation. From what we’ve heard here, the dedication, the valor, and the sacrifice of your battalion in action against the enemy on that hill represented the best traditions of the American Army.”
I regretted I could not see Sisto’s face from my seat at the rear of the chapel, but he seemed to waver on his feet, as if the air had suddenly grown thin about him and he’d gone dizzy.
Pietrowski continued: “We intend to recommend to General Terry and General Cota that the actions of your battalion be looked into with an eye toward properly recognizing the battalion for unit conduct which clearly went above and beyond the call of duty. We will also recommend that particular attention be paid to the actions of those men who participated in – or were instrumental in – the reaching of the top of the hill on November 7, the final day of the operations. Lieutenant, your outfit may only be with the 28th for a short time, but we’re always going to be proud we shared time with you.
“And, from me, personally, if Colonel Bright or anybody else at the 103rd still has a problem with how you handled yourself up in the Huertgen, you put in your transfer and come see us; we’ll always have a place for you.”