Part 45 (1/2)
”I see no reason to bring in a sworn statement about Huey Dan. Even if he was an enemy agent or soldier-and I am not admitting he is-members of the armed forces of the United States are not permitted to summarily kill, execute, or murder members of an opposing force when said members are unarmed in a nonhostile, nonthreatening environment. You don't just gun them down on the streets.
Secondly, I do not stipulate to any sworn statements from anybody. I do not know anything about the writer or his testimony. He must be presented for deposition and cross examination.” A stipulation is an agreement by both sides that what is in a sworn statement is what the writer would present in person were he to be physically present in front of the court.
Gant looked at Rafalko with exaggerated contempt. ”All right, then, I won't ask you to stipulate. I ask you to produce the man to be a witness for the defense in this court.”
”No way,” Colonel Rafalko snapped. ”You should have provided his name earlier.”
”We didn't have his name earlier.”
”Where is he?”
”He is in the U.S. He's critical to our case, and the government has to find him and pay for his transportation and room and board here in Saigon. And the government is you.”
”What? Are you out of your mind?” Rafalko's face grew dark. ”Look, Gant, we don't have the funds for that sort of thing.”
Gant scrunched his face into the kind of smile that borders on a leer.
”According to paragraph II 5d of the 1951 Manual for Courts-Martial, the trial counsel that's you is authorized to subpoena a witness at government expense.
Wouldn't the public like to know that the United States Army, while spending twenty million a day to kill VC, won't spend two grand to help one of its great heroes who killed a VC in self-defense?”
”How do I know his testimony is material and necessary?”
Rafalko said in a voice increasing in volume.
”Put it in writing, Mister Gant,” the law officer interrupted in a weary voice. ”Give me a synopsis of his testimony, full reasons why he must appear in person, and any other matter showing how his testimony is necessary to the ends of justice.”
Gant dug into his briefcase. ”I have something right here that fills requirements one and three. And I must state the full reason he must appear is because the trial counsel wants him to appear.”
”I do not, ” Rafalko roared.
”You said you wouldn't stipulate to his sworn statement.
Therefore you must want him physically present.”
Rafalko ground his teeth and turned to the law officer. ”I request a one-day recess to, ah, check the availability of funds.” The law officer agreed and the court was adjourned until nine the next morning.
”Who is it? Who is this on the phone?” Pinky Pulmer sat straight up in bed. He wore two-piece pajamas. Due to the thirteen-hour time difference, it was four in the morning Was.h.i.+ngton time, compared to five that afternoon in Vietnam. ”Oh yes, General Farquell. Is the trial over? Is that why you called?” Pulmer fumbled and snapped on the small lamp next to the telephone.
”The trial is not over. It is in recess for a day.” Farquell's voice was tinny and distant in Pulmer's ear. ”I need to report something to you. And I need a decision.”
”Yes, yes. Go ahead.” Pulmer slipped on his gla.s.ses and took a sip from the water gla.s.s on the bed table.
”The defense apparently has a sworn statement from the very fellow that is supposed to be helping us gain public support against this murderer--”
”Who is it? Who is it?” Pulmer interrupted.
”Shawn Bannister,” Farquell replied.
”Oh my G.o.d.” Pulmer removed his gla.s.ses and pinched his nose. ”The defense has it, you say? Does it hurt the prosecution?”
”From what I understand, the evidence is more than sufficient for the members of the court to vote for acquittal.”
”What do you mean, vote for acquittal? You signed the investigation Article 32, you called it and said you recommended a court-martial.
Furthermore, you told me the judge and the prosecutor worked for you. So what is the problem?”
”The judge, as you call him, Mister Secretary, is a law officer who oversees the proceedings for proper content and procedures. The prosecutor is called the trial counsel, and yes, both work for me.”
”To remind you, General, this is the Office of the Secretary of Defense you are talking to.” Pulmer's voice elevated a note each time he spoke.
Oscar Nebals of California was his sponsor, and Oscar Nebals wanted this little job taken care of, for G.o.d knows what reason. If Nebals wasn't happy, then he would most likely be out of a job and back to being a clerk or administrative aide somewhere on Capitol Hill.
Even over the flawed telephone circuitry, Farquell's exasperation was evident. ”Mister Secretary, while it is true those two men work under my jurisdiction, and perhaps even share my dislike for the actions of the accused, the fact remains that at least four of the seven officers who make up the court will most likely vote to acquit Lochert because they will feel the government cannot prove its case.”
”But-but you're the government!”
”I may be the boss but I have to play by the rules.”
”Can't you make, ah, arrangements with the seven members?”
”If you mean what I think you mean, I wouldn't even think about it, much less try it. To try to influence a combatline officer to go against one of his own is like trying to get your boss McNamara to admit he is a nincomp.o.o.p. I'm sorry. There is nothing more I can do.”
Pulmer slumped. ”You said you needed a decision.”
”I can prevent Bannister from being subpoenaed by refusing to fund his trip. As Commander, USARV, I can do that.
I want to know if you think I should?”
”Ah ... do, do what you think is best,” Pulmer said. He was not about to give a definite agreement that might someday tie him too closely to the Lochert trial. ”Ah, what do you think is best?” Pulmer asked.
”Whatever the prosecutor wants,” Lieutenant General Elmer Farquell responded.
The next day, having received the decision from Lieutenant General Farquell, Colonel Bruno Rafalko stood in front of the law officer. ”All right, all right. I so stipulate.” The problem was solved. He would not bring Shawn Bannister into this courtroom. It was Rafalko's studied opinion that there was no amount of cross-examination he could perform that would erase the idea from the court's collective, liberal hating mind that if a proven antiestablishment person like Shawn Bannister appeared to defend Wolf Lochert, then Wolf Lochert must definitely be not guilty.
The law officer stood up. ”Gentlemen, can we get back to the court?”
Archie Gant was greatly relieved. He knew from what LaNew told him that Shawn Bannister would never have agreed to appear in court, because even if it was closed, the press would have seen him coming and going. Even though a subpoena would compel Shawn to attend, he could change or recant his testimony just enough to cast doubt that he had actually seen Huey Dan in the tunnel. As it stood now, Shawn's written word, properly sworn to, was more powerful than his actual appearance in front of the board.
Once back in the courtroom, Colonel Bruno Rafalko got on with his case.
He established through a death certificate that one Vietnamese male identified as Huey Dan died on the date in question as the result of a knife wound. Rafalko entered into evidence the certificate and Wolf Lochert's stiletto. Archie Gant stipulated to each.
Bruno Rafalko then produced Mal Hemms as a witness for the prosecution.
Hemms, dressed in a tan safari suit splendidly cut to minimize his portly frame, introduced his TV film of Lochert and Huey Dan and testified to its authenticity. Rafalko played it again and again in both slow motion and stop motion until, he hoped, the sight of Wolf Lochert's plunging a knife into Huey Dan's body, then flinging the dead man into a tree, was deeply imprinted into each court member's mind. Archie Gant cross-examined after Colonel Rafalko finished his presentation.
”Mister Herrans,” Gant asked, ”at what point did you see Colonel Lochert and the communist terrorist fighting?”
”Objection!” Rafalko said. ” 'Communist' and 'terrorist'