Black Power in the Courtroom

Introduction

Black Power in the Courtroom is the last of the three stories in Against the Army, all of them dealing with different kinds of civilian/soldier cooperation resisting military infringement of soldiers’ rights, or helping out deserters from the Army at the time of and shortly after the Vietnam War. All the stories take place in Europe, the first one in Paris, the last two in Germany. The Parisian story, Max’s Anti-Vietnam Network, describes how deserters from the U.S. Army got de facto asylum in France; Soul Vienna shows soldiers interacting off base with American civilians; Black Power in the Courtroom, now starting on the blog, tells how a mess hall fight between black and white soldiers of the 92^nd Signal Battalion in Darmstadt, Germany ended in the courtroom.

The mess hall fight ended with the military police arriving and arresting one black soldier. The white soldiers had all left the premises. The black soldiers, about fifty-three in all, went down to on-base headquarters to ask why one of their mates had been taken off. The commander, a lieutenant colonel, sent out one of his lower ranking officers to order everyone to disperse. When they did not, they were herded into trucks by the MP’s and penned up in a makeshift outside corral all night. During the day it served as a parking lot for military vehicles, but there was plenty of barbed wire around to turn it into a temporary holding area. The white soldiers from the mess hall were positioned around it as guards. The next morning the Darmstadt brothers were all charged with disobeying a direct order because they had not dispersed in front of HQ the previous day. The majority decided to go to court and contest the charge. The story ends with their trial.

The case became known as The Darmstadt 53 because thirty-five had spent the night outside in the Crypto Compound, as the parking area was called. However, the Army brass had succeeded in winnowing out half the number by offering Article 15’s. An Article 15 is an extra-judicial punishment available for minor offenses where both soldiers and officers can sidestep the real issue. By accepting an Article 15, the soldier recognizes his guilt and submits to whatever punishment he is meted out, anything from a reduction in rank to extra duty or transfer, or all three. It is a way of keeping out of trouble for the soldier, and, in this case, for the military to break up any group resistance.

But the other half chose to confront the Army. They did not want to be fobbed off with a “mox nix” excuse like failing to obey a direct order. So the first point went to them: the army had to deal with a group acting together. They would not be put on trial together. Twenty soldiers in a courtroom! Such a thing had never been heard of, was cumbersome, and would attract publicity. But with so many involved in this case, the military was not going to spend the time and money for individual trials and so the soldiers were to come before the law in groups of four. This story is about the first four and the various civilians and groups that helped them.

A soldier going on trial is automatically assigned a military lawyer by the court, but can request a specific lawyer if he happens to know one, or if one has a good reputation: that is, is devoted to his client rather than to the upper echelons who are his bosses. The soldier also has the right to hire, and pay for, a civilian lawyer of his choice. Both lawyers will be in court, plus the lawyer assigned by the military. So the accused has three lawyers. This may sound very democratic, but the three lawyers may not even meet until they find themselves sitting at the same table in court. Usually, none of them has met the accused before either. The requested military lawyer must first get permission and leave of absence from his own commanding officer before he can even take the case. He has no time to fly over to another base and map out a strategy with his client and the other lawyers. And the court lawyer may be assigned only a day or two before the trial takes place.

As for the civilian lawyer, first the soldier has to know one, ready, willing, and able to plead in a military court. Here a civilian support group can be indispensable, first in finding an appropriate lawyer, then making the contact and taking care of all the arrangements to get the lawyer from wherever he is to wherever the trial is taking place. Fortunately, the Darmstadt soldiers had several civilian groups interested in helping them, and they were able to get civilian lawyers from places as far away as Paris and Philadelphia.

Finally, the story wishes to pay tribute to any soldiers who take on the task of fighting the military on its own terrain; that is, inside a judicial system which is made to order for the officers. The jury is selected by commissioned officers, and the lawyers, civilian and military, must accept the jury as is. There is no provision for examining each individual, like in courtroom movies. There is a codicil that an enlisted man will be included in the jury if the accused requests it. For “enlisted man” read “non-commissioned officer.” An NCO can be anywhere from an E-6 to an E-9 in rank. The accused may be an E-2 or E-3. I give the pay grades here to make clear that a Private is not the peer of a Sergeant or Master Sergeant. He is under his command. The highest ranking soldier in the Darmstadt group, one of the first four to be up for trial, was an E-5 or Corporal. Maybe there was an E-4 somewhere in the group, but most were privates first class. This jury composition is one of the many differences between a military and a civilian court. If in a democracy everyone is equal but some are more equal than others, in the military hierarchy, equality is not an option.

So now we start with a description of the incident which sparked the resistance of the Darmstadt 53, the mess hall riot as described by some of the participating soldiers.

BLACK POWER IN THE COURTROOM

PRESS RELEASE

1.  The Incident

Interviews with four of the group known as the Darmstadt 53, taken down at Cambrai-Fritsch Caserne in Darmstadt, West Germany

Sgt. James F. Swinton:

On 18 June 1971 about 25 to 30 whites gathered in the parking lot of A company, 93rd Signal Battalion with sticks, knives, tree limbs, and iron bars, drinking beer from a cooler they had. They were accompanied by Corporal McGrew of A Co, 93rd Sig. Bn. who also had a beer with them and talked with them about a half to one hour. About 15 to 20 minutes after Cpl. McGrew walked away, the group of whites went to the mess hall (15 h 30), carrying their sticks, knives, tree limbs, bars and beer, and private tape player. They were permitted to enter the mess hall with these items. The whites got their meals and sat at six tables pulled together. Sp/4 MacDonald went to the mess hall`s juke box (which requires money to operate) and deposited his money and played a record (which was a Soul record) and returned to his table. At this time while Sp/4 MacDonald’s record was playing, the whites turned their privately own tape player to the maximum which drowned Sp/4 MacDonald’s record which was playing on the juke box. Sp/4 MacDonald then went over to where the whites were sitting and asked them to turn their privately own tape player down.

Sgt. Charles C. Tyler (known as Red):

The white boys turn up their C/W music loud and we could not hear the Soul music. Sp/4 MacDonald ask them to turn it down and they refuse. So there was only ten Black Brothers in there, and we could not start anything, so Specialist King went to get some reinforcements.

Sgt. James Swinton:

On the way back to his seat after he ask the white boys to turn down their country western music and they didn’t, Sp/4 MacDonald heard someone from the group of whites say something that Sp/4 MacDonald could not clearly understand. But he just continue on to his seat. After the record Sp/4 MacDonald played was off, the whites turn their tape player off, and the mess hall got quiet. At this time Sp/4 Dickon entered the mess hall and before going through the chow line walked over to the table and gave the Brothers eating in the mess hall some power (which is Black courtesy). While passing the table where the whites were sitting, someone from the group of whites said something to Sp/4 King that Sp/4 Dickon couldn’t understand.

Sgt. Charles C. Tyler:

Sp/4 Dickon ask the white boy what’s goin’ on; suddenly some white boy pop him in the head. Sp/4 Dickon gonna pop him back but two of the white boys grab his arm, so we don’t wait no more for reinforcements and we start over there, but the MP’s be waitin’ outside the mess hall because as soon as they come in the white boys all go out, and the MP’s take Specialist Dickon with them.

Sgt. James F. Swinton:

I got back with the reinforcements of about ten brothers and the mess hall look pretty bad because a lot was done before the MP’s quiet things down. We decide to go over to Co. B 93rd Sig. Bn. where we hear Specialist Dickon was to leave for jail. They send me over to Head quarters to ask why.

By now there was a group of brothers together, maybe forty or so, and more coming all the time, so we try to find out why they taken po’Dick to jail but no one tells us nothin’ in Company B Headquarters, so we all just sit down on the grass there and wait

.

Sp/4 Joseph H. King:

I go over to Headquarters but no one talkin’ to me, and at this time the LTC gets a call that a riot is starting in front of B. Company. So I tell him with all due respect that the guys are not out there to riot or to start trouble but only waitin’ for an explanation. The LTC ignores me and calls out the Battalion riot squad, which consists of enlisted personnel armed with weapons and bayonets. After the riot squad formed, the LTC come out to the scene with the CID. The LTC--he called Poteet--and he told the brothers, I’m giving you a direct order to fall out and go back to your companies, and you have two minutes to be where you supposed to be.

The brothers told him they only want to know why Sp/4 Dickon was being taken to Mannheim and no one else was. LTC Poteet ignore the brothers and told the Company commanders to move their squads in.

Sgt. Charles C. Tyler:

Then all of a sudden we was surrounded by the same white boys that started the shit, and this time they had M-16’s and bayonets and MP badge on their arms. Then a deuce and a half come and we all just jump on it. We all volunteering to go to jail with po’ Dick. Instead they took us over to the Crypto compound and they put barbed wire around us.

Sgt. James F. Swinton:

The Crypto Compound is where the trucks are, sort of like the motor pool but the trucks have all this secret equipment on them, and they were taken out and then inside a roll of barbed wire was placed around a 50 square yard area, and we were put inside it. They were about fifty brothers and we remained there from 17:30 p.m. until 6 a.m. the next morning.

Sp/ 4 Joseph H. King:

At about ten it began to get cold, so we asked for some coats and some blankets, and no one did anything but the Colonel let the guards, still the same ones that started the shit, go and get field jackets and coffee and go into the building and get warm. At about six they started taking us out and put handcuffs on us and take us up to the MP station two at a time.

Sgt. James F. Swinton:

The LTC told the brothers they would be booked and then released to their companies. But instead they were taken out two at a time, handcuffed, booked at the MP station and then locked up in each Company Supply room to sleep in dirty roach-filled sleeping bags that had not been cleaned from a field problem the week before. The brothers were then released from five to ten p.m. on the evening 19 June 1971 by companies starting from C to A, and they were read Article 15’s by a Colonel and then asked if they accept the Article 15’s by a Colonel or demand a trial by court martial. On the date 22 June 1971, twenty-six brothers from the 92nd Signal Battalion have demanded trial by court martial.

Pfc. Dwight MacDonald:

The head count Staff Sergeant let those white boys come into the mess hall with those homemade clubs and pipes and didn’t say nothin’ about it. While in the Crypto Compound we was refused water, warm clothing and food, plus they refuse to let us go to the latrine.

Sgt. Charles C. Tyler (known as Red):

Yeah, we had to piss in front of those pigs--right in their faces.

2. The First Trial

The Case of the Darmstadt 53 began with the incident described by Swinton, Tyler, King, and, briefly, MacDonald. The trial was scheduled for July 21st in the Mannheim Trial Center.

The charge was not because of the fight in the mess hall. In the 60’s and 70’s, racial incidents were not infrequent in the US Army in Europe, acronym USAREUR, and although Sp/4 Dickon would not have been arrested if there had been no fight in the mess hall, the fight in the mess hall was not given as a reason for his arrest. In fact, whatever reason Lt. Col. Poteet had for arresting Dickon was plowed under by the subsequent weight of the publicity accorded to The Case of the Darmstadt 53. In fact, we do not know if the original plan for taking Dickon to the stockade for pre-trial confinement was ever carried out, or even if he was shut up in the Crypto Compound with the other 52. Having served as a catalyst, he was among the thirty who took an Article 15 and disappeared from the scene. An Article 15 is a non-judicial punishment whereby the soldier admits guilt and agrees to accept whatever punishment his superior sees fit to give him. Obviously it is designed to cover the myriad minor offenses endemic to army membership like drunken driving, insulting a superior, stealing, with appropriately light punishments. No one, for example, could receive a death sentence for an Article 15 type offense.

Despite the fact or, more exactly, because of the fact that racial incidents were current in those years, a commander had to take some action if a racial incident occurred on his base. Speculating on Poteet’s actions, post-factum, we may assume he simply applied fishnet justice. That is, one thing that Poteet was not going to do was to put the Army to the expense of a trial in order to find out which group, the whites or the blacks, was responsible for the riot: both had contributed to the destruction of the premises. Second, to have a trial, someone has to accuse someone else of something. The whites saw they could count on their colonel to back them up since he had had Dickon arrested and had rounded up the 53 Black soldiers into an improvised corral for the night. As for the Black soldiers, they equated Poteet with the Army, and since they considered he had been unfair to them, they certainly did not expect a trial presided over by the Army to be any fairer. As for fishnet justice, when there is no clear definition of guilt, the innocents, so to speak, are arrested. By congregating in front of Headquarters, the black soldiers had offered themselves as candidates to take the blame for the riot. Many institutions--armies, factories, and governments, to give three examples--are afraid of groups acting in unison, and the Black soldiers of Cambrai-Fritsch Caserne in Darmstadt had acted in unison twice within a period of forty-eight hours. From a career officer’s point of view, and particularly a southern career officer, fixing the blame on the Blacks was natural. And Poteet was a career officer and a southerner; the name itself was an Americanization of the Frenchpetit, possibly from some aristocratic ancestor or from some poor white offspring of same. But what had started as an insult escalated to injury; the molehill of the mess hall riot rose to become the mountain of the Case of the Darmstadt 53. Although many of the soldiers had been in some sort of riot before this one, and normally would have been willing to let it die, Poteet made a big mistake in assigning the white soldiers of the mess hall riot to the MP (military police) squad which stood guard at the barbed wire compound where the Black soldiers were rounded up for the night. Maybe he had thought it would be a punishment for the whites to have to stay outside all night too, but they were, after all, on the free side of the barbed wire and, as Sgt. Swinton remarked, were given field jackets and coffee. Or maybe Poteet had just forgotten they were the same ones who had brought the sticks and bars into the mess hall. Maybe he simply did not care, but once he chose to arrest Dickon, a Black, rather than a white, he indicated to both groups of soldiers that he was backing white all the way. Therefore, the Black soldiers went on trial. As we have just explained, once Poteet decided to back white, the whites were no longer to be considered participants; the only ones left to go on trial were the Blacks. In addition--and now the logic of this scenario runs backwards a short way--the Blacks had, without benefit of trial, already been punished by having been locked up all night in the Crypto Compound; therefore, they had to be convicted of something to justify the punishment. After the conviction, they would again be punished and then the entire incident would be closed.

Theoretically, they could be put on trial and not be convicted, be judged innocent on all counts, but by the time the Army decides to go to the expense of disruption of a trial, it is pretty sure of a conviction, and with fifty-three Black soldiers (or, to be more precise, the twenty-three who had not taken Article 15’s), the law of averages was on the Army’s side. That is, even with twenty-three defendants, there were enough of them to furnish a good number of Declared To Be Guilty. All twenty-six were booked on the charge of refusing to obey a direct order to disperse from in front of B Company Headquarters on the morning of June 18th when they had gone down to find out why Specialist Dickon was being sent to jail.

Back to our statement that the Army was eager to avoid bringing soldiers to trial if possible. After being released from the Crypto Compound in two’s and three’s, all of them had been offered, separately, Article 15’s. That twenty-six soldiers refused is in itself surprising. Although soldiers might be expected to act in unison in the heat of a mess hall battle or inspired by feelings of solidarity against injustice to one of their buddies, they become subject to individual pressure once the heat of the moment cools. The exposure of the twenty-three who elected to go on trial was so great and so atypical, that their aura extended to the whole group, and the case became known as the Darmstadt 53, which is how I will refer to them in the future.

From the beginning of the legal proceedings, the Army tried to break down the group into smaller, more manipulative units. Although 53 soldiers had been locked up in the Crypto Compound, the disintegrating military mechanism started up the next morning by releasing them in twos and threes, and then splitting these up into single integers by presenting each individual with a choice whether or not to take an Article 15. The twenty-three who refused were all charged, respectively, as follows: 18 June in that having received a lawful command from Lt. Col. David F. Poteet, his superior commissioned officer, to disperse and fall into a specified formation at Cambrai-Fritsch Caserne, Darmstadt, in the Federal Republic of Germany, on or about 1971, did willfully disobey the same.

Judging each man individually for the refusal to obey a collective order was a military way of handing the situation. Each man for himself against the judge, jury, trial counsel and hostile witnesses. But although charged in the singular, each soldier would not be put on trial alone nor would all twenty-three be tried together. Twenty-three individual trials would have been too expensive, and twenty-three soldiers on trial together would indicate that the Darmstadt brothers had indeed acted as a group. The reason for this group action would then have to be considered, or at least mentioned. And above all, the Army wanted to avoid any investigation into why the direct order was disobeyed. It wanted simply to accuse each individual soldier of disloyalty as if, in a one-to-one encounter with Colonel Poteet, on the parade ground, for example, each had disobeyed the Colonel’s direct order.

Defense Counsel was bound to insist on the unlikelihood, improbability, and probably inability of all fifty-three soldiers that had been milling around in front of B Company to have heard Poteet’s order. Trial Counsel (military terminology for Prosecuting Attorney) could counter that, according to the same law of probability, some of the fifty-three must have heard it, and that whoever happened to be on trial at the time was one of the ones who did hear it. Trial Counsel and Defense Counsel--both were JAG (Judge Advocate General), i.e. military, lawyers--might eventually make a deal where a minority of the Darmstadt group might be let off on evidence that they had not heard the order: they were too far away, they were distracted by environmental noise; and the other fifteen or seventeen would be convicted. But the real battle would take place before this phase of the trial and would center around whether or not Defense would be able to get in any mention at all of why the fifty-three soldiers (I still use that number although fifty-two would be more accurate, since at this time Dickon was already under arrest) had been milling around in front of HQ in the first place. Since milling around was not the charge, Trial Counsel could get all reference to it thrown out of the proceedings. It did not matter why fifty-three soldiers had been motivated to mill around, although this might have been a stronger charge from the prosecution point of view, than refusing to obey a direct order. Surely it was illegal for fifty-three soldiers to be assembled anywhere except in formation. Even if they had all been miraculously off work at the same time, they constituted a crowd outside the jail house, so to speak, and untold series of cowboy pictures have conditioned Americans to the belief that crowds outside the jail house are up to no good. Even if the prisoner is the local bad man and not Gary Cooper, Burt Lancaster, or Charles Bronson, the sheriff always announces that he is going to see law and order respected in his town. The Darmstadt soldiers, of course, had not been inside but outside the jail, except for po’ Dick as Specialist Tyler called him, and their intention had not been to free him but to join him in his punishment. But often a reversal of the usual circumstances is not taken into account, and Trial Counsel would almost surely not be careless enough to let Defense Counsel pose the problem exactly this way because once Trial Counsel allowed the Darmstadt Brothers to be considered as a group, he left the door open for Defense Counsel to refer to their group punishment in the Crypto Compound. The Army was bound to back Colonel Poteet; although Poteet had made a mistake in giving out this punishment, it was in all their interest to keep any reference to it out of the protocol.

On July 21st, the Army opened the first trial in the Mannheim Trial Center. Outside in the parking lot, a CBS television crew and sound truck was filming anything filmable: the soldiers, the spectators, young Germans giving out leaflets explaining the situation to the masses, and the masses consisting of the soldiers and spectators. The four defendants whose statements we have read and whose trial was the first of the approximately six trials scheduled arrived handsome and resplendent in their Class A uniforms and under heavy guard that marched them right past the CBS newscaster and into the Trial Center. The newscaster, an Irish-American called Jack McGuire, had to content himself with interviewing one of the soldier spectators.

McGuire: Twenty-five Black American soldiers are to be court-martialled here in Mannheim, West Germany, for inquiring persistently why a fellow GI, also Black, was being sent to the stockade. After a violent fist fight between black and white soldiers at their dining hall at Cambrai-Fritsch Caserne on a Sunday afternoon last June, only one arrest was made--a black soldier called Larry Dickon was arrested. About thirty soldiers, white and black, are alleged to have taken part in the battle. After Dickon’s arrest, fifty-two black soldiers gathered in front of Company B of the 93rd Signal Battalion to ask their commanding officer why their friend, Larry Dickon, had been singled out to be sent to the stockade. The Army charge is that these soldiers disobeyed a direct order to disperse. The defendants claim they never heard the order. Battalion Commander, Lt. Col. David Poteet, had the group surrounded by armed soldiers. He then allegedly confined them overnight in a barbed wire enclosure without food, water, or sanitary facilities. Some, including the first soldier arrested, have accepted administrative punishment. Twenty-three have elected to be tried before a military court. As you just saw, we have not been allowed to talk to the four defendants who are on trial today, but we have here a soldier also stationed in West Germany, a white soldier here to show his support for the Darmstadt 53. Could you tell us how all this started?

Soldier: This whole thing, I think (background noise)...communications with our senior officers.

McGuire: No communication with your officers?

Soldier: They have no communication with the troops. You can’t communicate. Poteet don’t want to talk to no more than one at a time. A guy like that is supposed to be in charge of a whole battalion and he can’t see fit to talk to more than one at a time. Well, what is he going to do in battle? When he is confronted with a whole...nation? He’s gonna say, I’m gonna deal with you one at a time, I’m gonna shoot one at a time?

McGuire: Chief Defense Counsel is civilian lawyer, Edward Yellin.

Yellin: I’ve never had so many accused at one trial. I’ve never had so many people hang so closely together as this group. I’m very much impressed. I’m also impressed with the levelheadedness of these people.

McGuire: And we talked with the army prosecuting attorney, Captain David O’Neil. Captain O’Neil, why are these people on trial?

O’Neil: Well, the trial is proceeding on charges of disobedience of a lawful order of the superior commanding officer.

McGuire: Would you mind telling us what the order was?

O’Neil: The order was to fall into formation.

O’Neil: Well, they had been gathered in groups outside the company area. At least, that’s what the evidence states at this time.

McGuire: Here is another white soldier attending the trial in support of the Black defendants.

Soldier: A lot of us feel the Army is really getting over on the Black man, and it’s not like the people themselves are causing the situation. It’s the people that are higher up. I guess they are afraid that once people get together they will not be able to control them. We are trying to get together among ourselves as it is, and we are doing a pretty good job too, but they keep throwing things in our way. Like any time any incident breaks out, right away it’s called a racial riot, and it might just be between two people. So he’s white, one is white, and the other is black. Big deal.

On the spot television interviews such as this one are invariably impressionistic, particularly when the interviewee is a simple soldier. However, the impressionistic, or even improvisatory nature of a television interview does not really injure the purpose, and perhaps even contributes to it, of conveying to the spectator a feeling of being there too and catching bits and snatches from various points of view, as well as a feeling of movement and importance: both the importance of the people who are making the event happen and the observer’s importance as privileged spectator in his or her living room.

Of course, the Army could have put the whole area surrounding the Trial Center off limits to television, wandering soldiers, and German youth groups with leaflets, but such a decision would have caused much unfavorable comment from the press, and perhaps more trouble from civilian support committees than weathering the, after all momentary, inconvenience of all this undesired outside interest. Military trials of the United States Army are legally open to the public and to the press. For the Army to suspend this legality in the Darmstadt 53 Case might have backfired unpleasantly, giving the Defense ammunition to ask if a closed trial had been set up to hide the illegality of the Crypto Compound incarceration. But no spectators had been discouraged; foreign nationals--the Army euphemism for Germans--had not been admitted and had had to distribute their leaflets outside the gates. American soldiers like Hampton, the first interviewee, had been let into the parking lot but not into the Trial Center. A valid American passport or a valid press card were the only credentials accepted at the door, and even their acceptance was conditioned by the number of places to be made available to spectators. The first ten people to get there got in. The remaining places were for the defendants, who were placed with the spectators rather than at the table with their lawyers, and two unidentified men in civilian clothes who were assumed to be part of the CID, the Army version of the CIA. As an extra deterrent for those who did manage to find places, the radiators in the spectator section of the court were turned on full blast, clanking and burbling and considerably augmenting the July heat.

The lawyers were sitting at their respective tables inside the railings: three defense lawyers and one prosecution lawyer of trial counsel. The UCMJ (Uniform Code of Military Justice) provides the accused with a military lawyer of his choice paid for by the army; in addition, he has the right to a civilian lawyer which he must pay for himself. a lawyer of his choice means that the accused can request any lawyer on the Army list of defense lawyers, although getting him depends on his availability. That is, the Army is not going to send a lawyer from Munich to Mannheim because a Spec/4 requests him. Actually, this right of choice is pretty hypothetical because few soldiers know any of the lawyers on the list and therefore accept whichever one is assigned. The Darmstadt Brothers request for Captain Chip Henderson was accepted, however. Henderson had had great success as a defense lawyer during his first two years in the Army--great success means that he had won his cases and gotten his clients off--and, consequently, he had been kicked upstairs to Munich where he worked in the JAG (Judge Advocate General) office, and was not assigned any more trial work. The soldier, after all, is going to court against the Army, and the Army, after all, is supposed to win. But Sergeant King had asked around and heard that Henderson was the best, and the request, at first denied, had gone through at the last moment. Henderson was personally contacted by the Command and, two days before the Trial opened, told to get up to Frankfurt and start interviewing his clients. However undemocratic the Crypto Compound incident had been, the Army wanted no reproaches made that it was railroading its soldiers through a kangaroo court. The Brothers had also availed themselves of the opportunity to hire a civilian lawyer. In fact, this had been their first act after being released from the Crypto Compound. The four assigned to be on trial first had gone up to Frankfurt to see Jack Yellin, the best known and most successful American lawyer in West Germany. Although the proportion of three defense lawyers to one prosecuting attorney (or Trial Counsel as we will refer to him from now on) may seem to weigh heavily on the side of the defense, it did not disturb the Army’s built-in bureaucratic superiority with not only Trial Counsel but Judge and Jury as well. From a purely economic point of view, it would follow that the only lawyer a soldier could trust would be his civilian lawyer, that is, the one he was paying out of his own pocket. Imagine a civilian court where the Judge and Jury and both lawyers were appointed and paid by the prosecution. In civilian life, the Judge is also a servant of the state and might be thought to be prejudiced against the accused insofar as he, the Judge, is paid by the other side: the accused against the State of Alabama, for example. The defense lawyer is also paid by the state in cases where he is assigned by the court to defend an impecunious client. Impecunious clients get lawyers assigned to them, whether in civilian life or in the military, and such lawyers are paid a minimum wage. Jury members are not paid for being members of the jury, and both defense and prosecution have the right to reject a certain number of jury candidates who appear, on questioning, to be prejudiced in the issue to be tried. Jury members are supposed to be as impartial as the inadequate mechanism of the law can make them.

In a military court, jury members are, on the whole, officers, with at least one non-commissioned officer thrown in to stand for the enlisted personnel. Unlike civilian trials, they are not screened by the lawyers and must be accepted as they are. The non-commissioned officer or NCO is not representative of the enlisted men and women since he ranks two to three grades above the E-2, E-3, and specialists 4, 5, or 6 who come before him. A high ranking NCO is in another echelon than the troops he commands; he also has every interest in agreeing with the highest ranking members of the jury. At the time of the Darmstadt 53 trial, no one with a rank lower than E-7 was ever included on a jury.

As for the accused, the charge sheets lying on the counsel table gave their names, their military and home addresses, and the charge against them: refusal to obey a direct order.

The Judge was announced and all spectators were told to rise as he entered the courtroom. His name was Judge Snow, a man in his middle thirties, thin, with his dark hair cut short and white walls over his ears.

The trial opened with a motion, introduced by Chip Henderson, the defense lawyer from Munich, to move to a larger courtroom.

--We are all aware, said Henderson, of the interest the press has shown in this case; the CBS sound truck outside attests to that, and I myself have never seen so many people at a military trial. The space available here is extremely limited.

He stopped speaking for an instant and gestured to the full row of chairs where we were all clustered together.--No, said Judge Snow. This trial has been assigned to this room, and it will take place here.

He had a southern accent.

Yellin got to his feet, also from the defense table.

--Defense is now requesting a postponement, he said, in order to prepare this case correctly.

Judge Snow said he would like to hear why Defense Counsel thought a postponement should be granted.

Yellin said that two additional civilian lawyers had been engaged by the defendants, M. Leclerc from Paris, France, and Bill Heckert from Philadelphia. Neither had been able to free himself from his obligations in time to come to Germany today, but both would be free at the beginning of October which was the date when Defense wanted the trial to begin.

Captain O’Neil, Trial Counsel, then got to his feet and said he saw no reason why Defense Counsel could not open the trial with the three lawyers--he looked across at Yellin, Henderson, and Bonson, the assigned JAG lawyer--now present. He then glanced down at his own corpulent person as if to call the court’s attention to the fact that he was all alone against the three of them but willing to start immediately.

--Leclerc, the French lawyer, said Yellin, going on as if O’Neil had not spoken, Leclerc has indicated. his willingness to make himself available in a letter

--I would like to see that letter, said O’Neil.

Henderson, who was at the next table, handed it over.

--But it’s in French! said O’Neil.

Laughter in the courtroom.

--If there is not complete silence, said Judge Snow, rapping with his gavel, I will have the courtroom cleared. Give me the letter. And get a translator.

Max Watts, the correspondent from DPA, the German Press Agency, stood up in the front row of spectators and said he was ready to translate if it would help things along.

--And the next time anyone not directly connected with this case, continued Snow, interrupts the course of the trial--and I am certainly referring to the spectators--I will have the courtroom cleared at once. At once.

He glowered down at the spectators. The DPA correspondent sat down. After about five minutes, an officer entered and read Leclerc’s letter aloud in English.

--He doesn’t say anything about his qualifications, said Judge Snow.

--All our lawyers are members of the bar in good standing in the United States, said Yellin. Mr. Leclerc has similar professional qualifications in his own country. Therefore we have asked for a continuance. The four men accused here are part of at least twenty-six to be tried. Over a hundred witnesses must be called; the two staffs of Capt. Henderson and myself are insufficient to interview them all. Many of the facts to be assembled are outside of the legal issue, and this presents another mammoth job. Then too, the CID agent who was present and took photographs is now on leave and must be summoned.

Judge Snow asked the name of the CID agent.

--Oliver Leonard, said Captain O’Neil.

--This is the largest number of people I have ever handled in one case, said Yellin. It involves hundreds of people and witnesses.

Judge Snow said that the credentials of Heckert and Leclerc would have to be checked. This statement seemed to indicate to Capt. O’Neil that the Judge was planning to grant the continuance.

--In our opinion, said O’Neil getting to his feet again, in our opinion, the counsel retained at present in court is enough to represent the defendants, also in court. Counsel has had ample time to prepare their case and get their witnesses. It is thirty-three days since the event took place. The government has been informed that the accused retained Mr.Yellin before the third of July, and two continuances have already been granted. Oliver Leonard from the CID can be gotten hold of through his TDY address. Plus we have been holding a witness here from the States, and it will be very inconvenient to keep him here for another month, or bring him back.

--Who is this witness from the States? asked the Judge.

--Captain Sweeney, sir, said O’Neil.

--Who is Captain Sweeney?

--He is the captain that was on duty that day.

--Then why do you say he is a witness from the States?

--He has been reassigned to Fort Bragg.

--I myself was in Vietnam, put in Yellin, where I had a heavy trial schedule in that area. At present I would like to remind the court that, since the actual accusation is whether or not the defendants disobeyed Lt. Col. Poteet’s direct order, two hundred people, apparently all present at the time the order was given, must be interviewed. It stands to reason that it is physically impossible to interview that number of people in such a short time. Now if it were not the defense, but the prosecution that wanted a continuance--

Yellin paused for emphasis but not long enough to give Snow or O’Neil a chance to interrupt him.

--The Army, he repeated, would talk about how complicated it was to deal with, say, four witnesses, and would get another four months. With all our defendants and with witnesses, forty-one days in USAREUR is not enough to prepare this case, and we can’t be ready before the fourth of October.

Yellin sat down and Chip Henderson got up. The Defense was coming on strong.

--Speaking for myself, said Henderson. I have not been retained by any of the Defense and am here at the request of General Eiffler. I came to Darmstadt from Nuremberg last Thursday and have only been able to see three witnesses. In my opinion, the accused will suffer prejudice if we must come to trial today. I am not personally prepared and must withdraw from the case if the decision is to proceed today.

This statement served to remind Judge Snow of the importance of the case. It was not usual for a lawyer to be sent from Nuremberg to Mannheim on a General’s recommendation. As personal envoy of a General, Henderson had much more clout than the assigned JAG’s like O’Neil and Bonson; as for Yellin, he already had a shady reputation as a civilian shyster whom Snow would have barred from his court if he could have.

--I am granting a continuance until August 21st, said Judge Snow suddenly. You are all to be prepared with your cases by that date.

--What am I supposed to do about Capt. Sweeney? asked O’Neil petulantly.

--You can arrange with Capt. Henderson and Capt. Bronson to take his deposition before he goes back to the States.

--I will have to take his deposition--

--You can arrange that among you, said Judge Snow and told the Court it was adjourned.

The spectators all filed out into the sunshine, where Jack McGuire from CBS asked the defendant, Sgt. Joseph King, how he felt with another six weeks ahead of him. The Sergeant said he felt good.