the peers inquiry had not established either premeditated murder or a conspiracy to suppress evidence. Yet it had compiled massive amounts of circumstantial evidence, strongly suggesting that several officers and enlisted men were responsible for hundreds of murders and that others in the command chain up to and including the division level had hidden or destroyed evidence of reports and meetings discussed by many contemporaries but not found in the files. Perpetrators of the murders and cover-ups doubtless counted on others involved in either crime or both to realize that participants as well as witnesses had everything to lose by speaking out and remained silent for their own good.
It was now the army’s duty to determine whether these criminal charges applied to its own people.
The army decided early on to hold individual trials of officers and soldiers. Both the Pentagon and the Nixon administration strongly opposed a mass trial, in part because of their claim that My Lai was an aberration. But there was another reason. Images of the Nuremberg and Tokyo war crimes trials must have flashed through their minds as they worried about the indelible stain it would leave on the army and the country.1
To avert such a spectacle, each indicted officer or enlisted man would undergo a separate court martial in military bases spread across the country. Major General Orwin Talbott at Fort Benning would make the final decision as to whether the inquiry justified a court martial of Lieutenant William Calley; Sergeant David Mitchell would undergo the same scrutiny at Fort Hood, Texas, as would Captain Ernest Medina, Captain Eugene Kotouc, and the bulk of the enlisted men at Fort McPherson, Georgia. All higher officers fell under the authority of Lieutenant General Jonathan Seaman at Fort Meade, Maryland.2
The army soon realized it lacked sufficient evidence to convict all principals involved and dropped charges against most of them. Thomas Willingham, now a captain, was the first to receive the news in early June 1970 and, in a step that further diminished the chances of exposing the murders at My Khe 4, he promptly resigned from the service. The major problem, asserted William Eckhardt, the lead prosecutor in the My Lai legal proceedings, was the virtual impossibility of presenting a convincing argument—a prima facie case—because of unavailable or non-cooperative witnesses. In August, the army dismissed charges against Sergeant Kenneth Hodges and over the next few months did the same with PFC William Doherty, Private Max Hutson, Corporal Kenneth Schiel, Private Gerald A. Smith, SP4 Robert W. T’Souvas, and Sergeant Esequiel Torres. In the words of Lieutenant Albert O. Connor, the Third Army commander, the army had “acted ‘in the interests of justice.3
The initial court-martial proceeding began in Fort Hood on October 6, 1970—that of David Mitchell, the sergeant from Louisiana accused of assault with intent to murder. His exoneration became certain in the opening moments when the judge, Colonel George Robinson, expressed displeasure with the government’s efforts to deny defense attorneys all documents needed to cross-examine witnesses. In an allusion to the Jencks Act—which required a government agency questioning principals in a criminal investigation to make their testimonies available to the federal courts on request—he ruled that since the Hébert subcommittee had refused to provide a transcript of its hearings, no one who had appeared before that body could testify before this court. Robinson’s action disallowed the testimonies of Hugh Thompson and many others who were critical to the government’s case. Consequently, the army’s prosecutor, Captain Michael Swann, questioned only three soldiers—PFC Dennis Conti, who saw Mitchell at the ditch; SP4 Greg Olsen, who saw Mitchell fire into the ditch; and SP4 Charles Sledge, the only one who claimed he had seen Mitchell shoot a number of Vietnamese civilians. Mitchell’s civilian attorney, Ossie Brown, undercut Sledge’s testimony by revealing that he had previously told CID investigators, “I believe” it was Mitchell.4
The jury deliberated for less than seven hours and on November 20, 1970, found Mitchell not guilty. Mitchell intended to stay in the army but soon discovered it had “flagged” his file, effectively locking him in his present position while the My Lai investigations went on, forcing him to recognize his best course was to leave the service.5
National interest, however, remained riveted on the imminent Calley trial. Partly this was attributable to the journalist John Sack, whose writings helped to develop the young lieutenant into a cult figure among his supporters at a time when many Americans appeared to be looking for one. What was the mood of the country, and how would the media treat Calley?
In the spring of 1970, Sack accepted an invitation from Harold Hayes, the editor of Esquire, to write a story on Calley. Hayes had offered the job to better-known writers, such as John Hersey, William Styron, and Garry Wills, and they had turned him down. Rejecting the advice of New York Times journalist and bestselling author David Halberstam, Sack agreed to take on the Calley story and in November, on the eve of Calley’s trial, published the first segment of Calley’s “confessions” in Esquire, which that year had a circulation of 1.2 million. Sack’s final two pieces—in February and September 1971—joined the initial article in becoming the bulk of the book published by Viking Press in 1971 and titled Lieutenant Calley: His Own Story.6
On the cover of the November issue of Esquire was a picture of Calley, in uniform and broadly smiling while surrounded by four Vietnamese children. Renowned designer George Lois had convinced Hayes to approve the idea. “We’ll show him with a bunch of Vietnamese kids,” Lois said. “Those who think he’s innocent will say that proves it. Those who think he’s guilty will say that proves it.” To Calley, however, Lois told a different story. “What you’re saying is that you love these kids,” he assured Calley. After a few photographs, he declared, “Lieutenant, this is terrific. Give me a grin.” Lois admitted years later that he “bullshitted” Calley. “I showed him like a jackal … a monster.” According to Frank DiGiacomo, a contributing editor for Vanity Fair, the cover was a “Molotov cocktail” and a “masterpiece.” Calley was “the nation’s Frankenstein monster … smiling.”7
The cover caused such a national and international sensation that its publisher, Arnold Gingrich, responded to irate readers whom he thought had prematurely judged Calley guilty. “People wrote in likening the portrayal of Lieutenant Calley, surrounded by Vietnamese children, to a depiction of [Adolf] Hitler, kissing Jewish babies on their way to the gas chambers, and to [Heinrich] Himmler, fondling little Poles and Czechs, before handing them over to waiting S.S. officers.” Yet readers, Gingrich declared, should ask themselves “what you would have done, if you had been there, and in this man’s shoes.”8
Thus it was in a highly charged atmosphere that the Calley trial began, on November 17, 1970, in a Fort Benning courtroom that seated only fifty-nine people. Half were reporters, the rest either military figures on the base or residents of Columbus or nearby Phenix City, Alabama. Sack occupied one of the five first-row seats allotted to Calley, who allowed him to dispense the other four seats to people of his choosing each day—including favored reporters; one girlfriend, then another, of Calley’s; a TV artist; editors from Esquire and Viking, the latter ready to release Calley’s autobiography after the trial; and Hollywood director and producer Stanley Kramer. All the while, Sack kept a protective shield around Calley to fend off reporters seeking interviews—including Richard Hammer of the New York Times, who personally covered the trial. Sack had in effect become Calley’s defender and protector. “If you knew Rusty,” Sack told Hammer, “you’d know he just isn’t like that at all. He’s a bright, sensitive guy.”9
The lead army prosecutor on a team of four was twenty-eight-year-old Captain Aubrey Daniel, senior trial counsel from JAG at Fort Benning and about to complete a four-year stint. Born in South Carolina but raised in the Upper South, Daniel was from a wealthy agricultural family who graduated from the University of Virginia and studied law at the University of Richmond, graduating in 1966. On his wall were his diplomas, along with a framed badge indicating his Eagle Scout certification. Drafted soon after graduation, he chose to enlist and applied for JAG. Eckhardt had been impressed by Daniel’s work ethic and supported him for this assignment. Daniel appeared younger than his years and was largely inexperienced in the courtroom, but he was an unbending advocate of law and order who had voted for Nixon in 1968 and now, just months away from returning to civilian life, was keen to battle Calley’s defense team, which consisted of Major Kenneth Raby, a career officer in JAG who had represented Calley during the Peers proceedings, and the well-known veteran civilian lawyer George Latimer.10
The chief antagonists in the court martial were, as it turned out, Daniel and Calley. According to Hammer, Daniel personified the Old South, with its strong sense of moral obligation, hard work, and right and wrong. Judge Reid Kennedy presided over the proceedings and exclaimed afterward of Daniel, “My God, he really is a Puritan, isn’t he?” Calley, again according to Hammer, was the mirror opposite of Daniel. Raised in Miami, Calley reflected the moral laxness of the New South, pursuing ends regardless of means and seeming, at least according to Daniel, unable to discern “that some things could be inherently evil and wrong and others inherently good and right.” Calley had at best a weak scholastic record. He admitted to failing seventh grade for cheating but insisted that all he had done was write out the answers for the final exam and share them with someone else. (When he related this story in court, someone quipped, “Can you image the guy who had to get his answers from Calley?”)11
Latimer was the senior statesman, a sixty-nine-year-old attorney from Salt Lake City who had achieved national notoriety by successfully defending one of the eight Green Berets accused of murdering a Viet Cong spy. Hearing of the Calley case, Latimer had sent a supportive letter to the young lieutenant, expressing sympathy for what he was going through. Calley was already acquainted with Latimer’s reputation, having heard friends on the base extol his ability in the courtroom. When he received this letter, he called Latimer to thank him and ask if he would defend him in court. Latimer asked only one question: “Do you believe your own self that what you did was right?” “Yes,” Calley firmly responded, and Latimer agreed to represent him—pro bono.12
By this point, Latimer was nearing the end of a distinguished career. He had already served five years on the Utah Supreme Court when President Harry Truman appointed him to the Court of Military Appeals, where he made his mark in military law as protector of the soldier. Latimer had earlier fought with the infantry in World War II, taking part in four invasion operations in the South Pacific and amassing a number of medals for bravery. He identified with Calley, a fellow infantryman in combat who needed his help. It was clear to all that Latimer was not at his sharpest, repeatedly mispronouncing his client’s name as “Collie,” saying “heel-i-o-copter” throughout the trial, and continually fumbling through his papers in court. Nattily dressed, gentle and homespun in manner, sensitive about his age, and wearing a small hearing aid he tried to hide in his ear, he confidently remarked to a friend that he had “one more good case left in him.”13
Judge Kennedy was a fifty-eight-year-old lieutenant colonel who had been promoted to full colonel at the beginning of the trial so he would outrank everyone involved in the judicial proceedings. Hammer called him “the most human figure” in the courtroom. Kennedy had enlisted in 1943 and saw military service in Europe during the Second World War. When war broke out in Korea, he joined the army again and decided to make the military his career. From 1954 to 1958, he served in the 101st Airborne Division as staff judge advocate, which was the highest legal position in a military unit, and then became part of the First Cavalry Division in Korea. When that tour came to a close, he joined the Command and General Staff College at Fort Leavenworth and sometime later moved to the Armed Forces Staff College. He had been at Fort Benning since July 1967, holding the coveted position of military judge of the army’s Fifth Judicial District. Hammer wrote that Kennedy had long admired Latimer and looked forward to dealing with him in court, but that he would equally refuse to allow personal considerations to interfere with the proceedings.14
It became clear from the beginning that the Calley case would shape the course of other My Lai trials. If he went free, the army would recognize the futility of going forward with further prosecutions, given that the evidence against him was stronger than that against the others accused, and My Lai would go down in history as an aberration. If he were found guilty, however, a much bigger issue could emerge—that the army might have to prosecute those who had put other soldiers in the position that they had. In some ways, the future of the entire war in Vietnam was at stake.15
Latimer experienced an early setback in the trial when he tried to follow the pattern of the Mitchell trial by blocking the testimonies of those numerous servicemen who had appeared before the Hébert subcommittee. Kennedy, however, ruled that the Jencks Act did not apply to “statements or testimony given to a congressional subcommittee in executive session,” as the New York Times reported. Besides, the defense had access to the information provided by most of the witnesses Daniel intended to call; they had already told their stories to the inspector general, CID, and the Peers Inquiry.16
Daniel knew that if he sought to prosecute anyone above Calley’s rank, he would probably fail to win a guilty verdict. The jurors were six in number, five of them Vietnam veterans: Colonel Clifford Ford (a recipient of three Bronze Stars in World War II and Korea), Major Charles McIntosh, Major Carl Bierbaum, Major Walter Kinard, Major Gene Brown, and Captain Ronald Salem. Daniel realized that it was Calley on trial, not the army or the nation’s political leaders. Daniel would let defense decide whether to save its client by spreading culpability to those above him.17
Judge Kennedy opened the proceedings by addressing Calley, who had risen from his seat at the defense table. “Lieutenant Calley, you are charged with violations of Article 118 of the Uniform Code of Military Justice. How do you plead?”
“I plead not guilty, sir.”18
After Calley had sat down, Daniel turned to the jurors and summarized the four specifications of premeditated murder making up the army’s case: at least thirty civilians on the trail just below My Lai 4; at least seventy civilians at an irrigation ditch on the eastern edge of the village; and two others at that ditch, a man wearing white apparel and possibly a monk, and a child about two years old. “He murdered them,” Daniel declared, “with premeditation and with intent to kill.”19
Daniel knew he faced a difficult task. On several occasions, a prosecution witness stopped by Calley’s table on leaving the stand to pat him on the shoulder or arm and wish him good luck. Haeberle had taken pictures of the dead but did not implicate Calley and appeared to sympathize with him. Gene Oliver was another—a rifleman who drew unwanted attention as the only one of the more than one hundred GIs in Charlie Company to claim he heard enemy fire from Russian-made AK-47 assault rifles while in My Lai 4. But Daniel faced a much bigger problem than the witnesses who openly commiserated with Calley. He had to win conviction from a jury of career officers—all highly devoted to the army and doubtless believing (or wanting to believe) Calley innocent. Daniel devoted more than a week to meticulously building his case in the packed and hushed courtroom.20
A pivotal moment came early in the process. After the initial assault on the morning of March 16, 1968, Daniel explained, Calley was with his radio operator, Charles Sledge, when he ordered his men to round up the villagers and take them to the intersection of the two trails along the southern perimeter of the village. Once there, Calley placed them under the guard of two privates, Paul Meadlo and Dennis Conti, accompanied by a few other soldiers. Calley and Sledge left with Meadlo standing guard while Conti also walked away and soon returned with several more civilians. As he gave his testimony Daniel gazed at Calley, whose eyes were fixed on his notepad on the table, and asserted that he had ordered Meadlo to join him in killing these “unarmed and unresisting old men, women, and children.” When some of them tried to run, Calley and Meadlo shot them in “cold blood” on the trail. “Meadlo was crying,” Daniel declared. “It was so repulsive … what he had to do at the direction of Lieutenant Calley.”21
Calley suddenly looked up and, according to Hammer, “smiled broadly” at Daniel before looking back down.22
At the beginning of the second week, Hugh Thompson and the helicopter pilots who had hovered over the ditch gave testimonies that bolstered Daniel’s descriptions of the dead. “There were a lot of bodies in there,” according to Thompson. “Women, kids, babies, old men. Some were dead, some were alive,” he asserted in a voice Hammer described as “muffled and choked with emotion as though he were seeing it all again.” Confirmation of Thompson’s story came from co-pilot Jerry Culverhouse, who was flying so low over the scene that he saw more than a hundred bodies in the ditch, many of them babies, and heard gunfire coming from alongside the culvert where there stood a black sergeant shooting survivors with his M-16. Gunship pilot Dan Millians also saw a black sergeant firing into the ditch and could hear the shots.23
The witnesses not allowed to testify at Mitchell’s trial gave their testimony. By Thanksgiving recess, Daniel had established that U.S. forces had encountered no resistance at My Lai 4 and yet had killed two large groups of civilians on the trail and in the ditch. But on the second day back in court, he took his first major step toward clinching a conviction when he called Robert Maples to the stand. A machine gunner in Calley’s platoon, Maples had been with James Bergthold when they approached Calley and other soldiers standing at a ditch. “They were firing into the hole,” Maples repeatedly declared. “I saw Lieutenant Calley and Meadlo shooting into the hole. The muzzles were down and I heard the firing.” Calley ordered Maples to machine-gun the Vietnamese, but he refused. As Maples admitted to the court, he had disobeyed a direct order and nothing came of it—which raised questions about Calley’s defense claim that he had no choice but to follow orders. “I saw people go into that hole and no one come out,” Maples asserted. “That’s all I know.”24
In testimony confirmed by Greg Olsen, Charles Hall claimed he saw Calley talking to Mitchell at the edge of the ditch before hearing “slow, semi-automatic fire from the ditch.” Olsen attested that Mitchell “raised his weapon to firing position and fired into the ditch. I heard the shots.” But as he had said in his testimony at Mitchell’s trial, Olsen did not see Calley shoot anyone. Hall declared that while crossing over the ditch with Olsen and others, “I looked back and saw people in the ditch. They were dead.” “How did you know they were dead?” Daniel asked. “They weren’t moving. There was a lot of blood coming from all over them. They were in piles and scattered. There were very old people, very young people and mothers. Blood was coming from everywhere. Everything was all blood.”25
Then came a barrage of allegations against Calley that further strengthened Daniel’s case. Conti provided a devastating, detailed description of Calley, Meadlo, and Mitchell killing Vietnamese in the ditch. Sledge repeated the story, asserting that Calley and Mitchell stood over the ditch less than five feet from the captives below, their rifles set on automatic as they riddled the “screaming and falling” people. When a helicopter pilot—Thompson—came and left, Calley bragged about telling him something he had said on more than one occasion: “I’m the boss here.”26
As damning as the testimonies of Conti and Sledge were, that of another soldier in Calley’s platoon, Thomas Turner, was unsettling for its content but even more so for catching the defense by surprise: Turner had never spoken to CID, any investigatory committee or journalist, or the defense.27
Turner not only affirmed the murder charges against Calley and Meadlo but added another brutal killing by Calley—that of a young woman. Turner had witnessed the shootings at the ditch while sitting on a nearby dike for an hour and a half, his distance from the spot ranging from seventy-five yards to less than twenty yards for a brief time. With him were Conti and Daniel Simone, but while they looked out for the enemy Turner never took his eyes off the ditch as Calley ordered the execution of about a hundred Vietnamese civilians brought there in group after group by fellow soldiers. When the shooting finally stopped, Turner explained, Calley began walking toward him and the other two soldiers still sitting on the dike just as a young Vietnamese girl approached from the side with her hands raised. “Lieutenant Calley,” Turner asserted, “raised his rifle and shot her several times and she fell over into the rice paddy.” While the girl lay there with several shots in her chest, Calley abruptly turned around and headed back toward the ditch while shouting at his men to line up and move out.28
Latimer moved to strike Turner’s testimony because it introduced “into evidence a separate and distinct count of murder”; Daniel countered that the testimony was “admissible because it goes to the state of mind of the accused and to the intent to kill.” Judge Kennedy later ruled that the testimony about the woman was inadmissible but that the rest of it was not. After Turner’s second appearance in court in March, Kennedy explained that the new evidence would help the jury decide on Calley’s guilt by ascertaining whether he had the “mental capacity to premeditate and form the specific intent to kill,” “a plan or design” to kill, and “a specific intent to kill.”29
Evidence kept mounting against Calley. James Dursi delivered a calm and exhaustive summation of the mass killings he witnessed on the trail and at the ditch. Dursi added a twist to his story that further undercut Calley’s defense. He declared that the sight of the carnage had sickened him, and Calley ordered him back to the village. “He told me in a sympathetic tone,” Dursi explained, “as though he actually felt what I felt.” Dursi’s remarks, Hammer wrote, should not be taken to suggest that Calley had redeeming qualities. They instead revealed “a killer so inured to his killing that he could stop in the middle, express concern for the stomach of one of his men, and then go back to the slaughter.”30
Paul Meadlo surprised everyone by agreeing to testify, after earlier refusing to do so on the grounds of the Fifth Amendment. Judge Kennedy was not pleased with this refusal. “Is this the man who granted the interview on TV? I didn’t notice any great reticence to tell everything he knew about My Lai in great and nauseous detail on television.” Kennedy warned Meadlo that if he did not change his position, he would stand in contempt of court. “Don’t look at your lawyer, Mr. Meadlo. He’s not going to help you. If anyone goes to jail, Mr. Meadlo, it’s going to be you and not your lawyer.” Meadlo soon reconsidered. Sitting close by were an assistant U.S. attorney, a representative of the Justice Department, and two U.S. marshals, ready to place him in custody if he again refused to testify. Kennedy assured him he had a grant of immunity protecting him from prosecution for anything he said in court.31
Meadlo’s crippling injury outside My Lai 4 became evident as he limped to the stand, watched warily—according to Hammer—by Calley. Daniel stood between his witness and Calley, blocking him from glaring at Meadlo when he first entered the courtroom. Meadlo again described the murderous scenes he recounted so graphically over television and in Hersh’s newspaper articles.32
Meadlo added that he and his men suspected the captives of being Viet Cong and continued, “As far as I’m concerned, they’re still Viet Cong.” He had acted under orders, which the army had taught him to obey without question. “I was scared and really expected a big fight, really expected all hell to break out.” Calley, Meadlo emphasized, “was doing his duty and doing his job.” Asked if either Calley or Medina had ordered him to kill the Vietnamese, Meadlo firmly stated, “I took my orders from Lieutenant Calley.”33
Meadlo responded to another question by explaining that he had held his M-16 on the captives because “they might attack.” “Children and babies?” Daniel asked in astonishment. “They might have had a fully loaded grenade on them,” Meadlo replied. “The mothers might have throwed them at us.” Even though the women, children, and babies were sitting down, Meadlo said, “I thought they had some sort of chain or a little string they had to give a little pull and they blow us up, things like that… . I just watched them. I was scared all the time.” They never searched the Vietnamese out of fear that “they would have had a booby trap rigged up or something.” When Daniel inquired whether the babies held by their mothers had ever “moved to attack,” Meadlo asserted, “I expected at any moment they were about to make a counterbalance.”34
Meadlo remarked at the end of his testimony, “Captain Medina was there before the ditch and I assumed everything was okay because if it wasn’t I assumed he would put a stop to it. And he didn’t so I assumed it was all right. With all the bodies lying around, why didn’t he put a stop to all the killings?”35
On this note, Daniel concluded his case against Calley.
Meanwhile, outside these proceedings, The U.S. Army’s Criminal Investigation Division had quietly completed its criminal investigations into what it called the “My Lai/Son My Incident” in late September 1970 and in early December terminated its inquiry into the existence of the Barker report of May 1968, the one that had found no atrocities committed in My Lai 4.36
CID concluded that a massacre had in fact occurred in Son My Village and that a cover-up had followed. American soldiers had “systematically killed most of the inhabitants whom they encountered. An undetermined number of Vietnamese noncombatants, 343 of whom were identified, were killed in My Lai (4) during that segment of the operation.” American forces had also killed about twenty more Vietnamese civilians in the subhamlet of My Hoi (My Khe 4) on that same day.37
CID had investigated seventy-six complaints of criminal acts, half of them becoming the subject of twenty-five formal reports. It accused forty-six American soldiers of “murder, rape, assault with intent to commit murder, aggravated assault, maiming, and indecent assault, and wrongful disposition of an official document.” Sixteen of the soldiers were still in the army; the remaining thirty had been discharged.38
Despite an exhaustive search of the army’s files, CID, like the Peers Inquiry, had not been able to locate a copy of the Barker report. Instead, both teams of investigators discovered a trail of evasive explanations, mixed messages, lies revealed on polygraph tests, conflicting accounts of whether anyone had seen the report, and multiple lapses of memory. Based on 205 interviews, CID concluded that the Barker report “was improperly disposed of; evidence of this is the failure to locate the report of investigation at all appropriate repositories.” Further inquiry failed to identify those responsible for its disappearance. CID recorded the offense in its final report on December 3, 1970: “Wrongful Disposition of an Official Document.”39
Most likely, CID declared, Major General Koster, with or without the assistance of either Brigadier General Young or Colonel Parson (and perhaps both), had disposed of Barker’s report and blamed artillery fire for the deaths of almost one hundred civilians that day. Koster at first confirmed the existence of a report but later conceded he never received a written version.40 He had long been concerned about upholding the figure of twenty civilian casualties in the midst of reports of many more noncombatant deaths—and not by accident. He had also found it impossible to reconcile how American troops could kill 128 Viet Cong in battle and yet capture only three weapons. The Barker report attempted to take care of these problems by finding no war crimes.
The American public, of course, was not privy to either the CID report or the court transcript, but it was aware of Sergeant Charles Hutto’s court martial, which opened in January 1971 at Fort McPherson, while Calley’s trial was underway. In an earlier signed statement to CID (also unknown to the American public), Hutto admitted to machine-gunning a number of unarmed villagers. “It was murder,” he now declared in court. “I didn’t agree with all the killings, but we were doing it because we had been told.” His defense attorney, Edward Magill, emphasized that Hutto had not considered disobeying the order “because he had never heard of an illegal order.”41
After less than two hours of deliberation, the six army officers making up the jury acquitted Hutto on January 14, at least in part because he had been obeying illegal orders—the major argument used by the defense attorneys in the Nuremberg trials, which failed to win an acquittal of the accused Nazi war criminals. Less than a week later, Hutto resigned from the army and returned to his home in Louisiana.42
The decisions in the Mitchell and Hutto cases seemed to set a precedent for releasing Calley and the rest of the accused officers and enlisted men—regardless of evidence, army regulations, international law, and the Nuremberg decisions. Despite the dismissal of obedience to orders as a defense in the post–World War II trials, the military juries in the My Lai cases seemed inclined to accept it as a valid argument. The U.S. Army soon dropped all charges against the soldiers, including Private William Doherty, which happened a week after Hutto’s acquittal.43
General Seaman recognized the message sent by these earlier trials and announced in late January that “in the interest of justice” he had dismissed all charges against Koster. He had done this on the basis of Koster’s “long and honorable career,” despite knowing that “some evidence” showed he had been aware of a large number of civilian casualties at My Lai 4 but failed to launch an investigation. Nonetheless, Seaman did not consider Koster guilty of “intentional abrogation of responsibilities.”44
Seaman’s decision drew a bitter reaction. Attorney Robert MacCrate from the Peers Inquiry termed it “a serious disservice to the Army” and to the American public. Several charges against Koster’s men were pending, and this action “effectively cut off the orderly progress of the inquiry up the chain of command.” Peers agreed and pointed out that the Kansas City Star had denounced the act as a “whitewash of the top man.” House Democrat Samuel Stratton of the Hébert subcommittee agreed, blasting it as “a military whitewash” and “a grave miscarriage of military justice” and calling for an independent tribunal to handle the cases. The National Committee for a Citizens’ Commission of Inquiry accused Seaman of commanding soldiers who committed atrocities in two major operations and now protected “a fellow general who is likewise deeply implicated.”45
MacCrate’s criticisms and the outcry in Congress prodded the Pentagon into taking punitive action against Koster and Young. In a move that Stratton cynically noted would remain unpublicized and hence would not reflect badly on the command, the army quietly gave Koster a letter of censure. But Secretary of the Army Resor demoted him to brigadier general and Young to colonel before dropping Koster another grade and taking away both officers’ Distinguished Service Medals.46
The two acquittals along with the dismissed charges against the remainder of the enlisted men meant that of the twenty-five officers and soldiers accused of wrongdoing, only four officers would stand trial: Calley (whose trial was already underway), Medina, and Kotouc for war crimes, and Henderson for hiding these crimes. The outcome in these cases also suggested the possibility that no one would be held responsible for what happened at My Lai.47
Calley’s defense attorney Latimer had meanwhile assigned a young attorney on his team to read a draft of Sack’s story to appear in the February issue of Esquire and make any necessary revisions. One passage that remained after the lawyer’s review was particularly gratifying to the defense—Calley’s critique of America’s actions in Vietnam. “I never met a Vietnamese man, woman, or child that we really helped there. We went there to save those people, but God! We didn’t give the scraps from the dinner table to them. We didn’t have the common courtesy to talk their language or learn of their customs: We scorned them. And killed them. A real disgrace.”48
Another passage, however, did not survive this revision. “I lay there and I asked myself, My god. Did you really hack up all those damned people? Did you really pull a machete out and—kkk! Chop into all those people and do all those horrors? Did you, and I got the answer back, Yes. I hacked up those people, I hacked up millions of people—not millions. But yes, I killed plenty of people, I killed lots of NVA, I killed lots of VC with weapons on, I killed lots of people.” The magazine had intended to run this cover-line: “Did you really pull a machete out and—kkk! Chop into all those people and do all those horrors?”49
In its place were these words: “I’m sorry, I’m not myself today. I didn’t think that I’d be uptight about it, talking about it. I thought, I’ve gone to Vietnam and I’ve come back. I shouldn’t have any hang-up about it. But after talking about it yesterday, I don’t know. I thought about it. I couldn’t sleep. My country accuses me of slaughtering innocent people. Even the President calls it a massacre. I lay there and I ask myself, My god, who are they talking about?” In an effort to shift the blame to those who brought on the war, he declared, “I only know, I went to Vietnam and I did my job there the best I could. I even asked myself why did I do it? Why didn’t I stand on a corner like everyone else and say, ‘I won’t go. It’s wrong.’ ”50
Back at Calley’s trial, Latimer realized the proceedings were not going well and informed the court in mid-January that he intended to call three psychiatrists to the stand in an effort to show that Calley’s mental capacity had been “impaired” on the day of the assault, perhaps by “marijuana fumes.” The Defense Department’s Manual for Courts-Martial recognized mitigating circumstances that might help Calley’s case: no one in the army was criminally liable for an act resulting from a “mental defect, disease, or derangement” that interfered with his capacity “to distinguish right from wrong and to adhere to the right.” Calley had rejected an insanity plea, and Latimer had informed Judge Kennedy that he would not use that approach. But it now appeared—about two months into the trial—that he had changed course. Kennedy was not pleased, warning Latimer that if his questions raised issues about Calley’s mental state, he would adjourn the court and have the defendant examined by the Sanity Board at Walter Reed Army Hospital. Kennedy first wanted to hear the psychiatrists without the jury in the room. He did not have to go beyond the first witness.51
On January 18, 1971, Dr. Albert LaVerne of the Bellevue Medical Center at New York University appeared before Kennedy and the two teams of attorneys. LaVerne had examined Calley over the Christmas holidays and concluded that he could have accidentally inhaled marijuana fumes in a closed room while checking on his men the night before the assault. “There are not many closed rooms in Vietnam,” Kennedy interjected with undisguised sarcasm.52
Neither Latimer nor LaVerne proved convincing. Latimer declared it possible that Calley “unconsciously” inhaled second-hand marijuana smoke and had a “marijuana hangover” the following morning that, along with stress, “affected his brain.” LaVerne admitted to having no evidence that Calley had inhaled marijuana smoke and insisted that on March 16, 1968, he was sane and knew the difference between right and wrong.53
Kennedy had heard enough to rule that Laverne and Latimer had introduced the question of insanity by expressing doubt about whether Calley could rise above his machinelike obedience to orders and, in the words of the Manual, “adhere to the right.” If he as judge failed to instruct the jury on the insanity issue, it would constitute an error subject to reversal on appeal. He recessed the court after approving Daniel’s motion to have Calley undergo psychiatric tests at Walter Reed Hospital. Latimer objected because of potential damaging revelations, but Kennedy eased his concern by ruling that the prosecution would not be privy to anything said in the examination. Within three weeks the Sanity Board found Calley “normal in every aspect” and fully capable of distinguishing between right and wrong.54
In mid-February 1971, Latimer tried another approach: he brought LaVerne and two other psychiatrists to the stand in an effort to show that Calley, though sane, lacked the mental capacity to premeditate murder. No longer was the defense denying that Calley had killed civilians; Latimer and his team had recognized the futility of undermining the testimonies of numerous witnesses attesting to Calley’s guilt. Latimer now argued that Calley was incapable of premeditation and thus had no specific intent to kill. He hoped to establish “reasonable doubt” about whether Calley lacked what the Manual called “mental responsibility” for his actions. If successful in this argument, Latimer could enter a plea for mitigation based on Calley’s inability to formulate “a premeditated design to kill.”55
Latimer first questioned Dr. David Crane from the Indiana University School of Medicine in Indianapolis, who considered Calley incapable of premeditation and of making a “complex decision.” Crane seemed impressive, having served as captain in the U.S. Army Medical Corps from 1966 to 1968 before becoming division psychiatrist for the 25th Infantry Division in Cu Chi, South Vietnam. Furthermore, he had been a witness in court-martial cases involving questions of mental disease or derangement affecting combat personnel and had evaluated up to eight hundred cases of mental deterioration.56
But, as Daniel pointed out in a lengthy cross-examination, Crane demonstrated no expertise in psychiatry and, most important, had not interviewed Calley, despite having had the opportunity to do so. How could Calley fail to realize that deaths would result “when he gave orders for people to be killed and when he killed himself?” When Crane admitted that Calley knew that “pulling the trigger” would “bring about a loss of life,” Daniel pushed harder. “He knew the people would die? He meant for the people to die?” “Yes,” Crane finally replied, supporting the prosecution’s claim that Calley had committed premeditated murder.57
The following day, February 17, LaVerne testified that his four interviews with Calley showed that he “could not plan, contrive and think on that day” because of severe “combat stress” and “psychological stress” that made him behave “in an automatic fashion as a robot.” Calley was unable to question orders and “could not possibly premeditate or intend to kill on March 16, 1968.”58
Trouble developed during Daniel’s cross-examination when LaVerne requested permission to consult his notes. Both Daniel and Latimer asked to see a paper referred to by LaVerne and found it to be a copy of a lengthy preface to the question Latimer had read to him in court. More damaging, the contents of the paper came from the Sanity Board that examined Calley at Walter Reed Hospital. LaVerne maintained that he had secured this material from his interview with Calley earlier in the week but could not remember what Calley told him in their meetings. Where was the evidence gathered during the interviews? LaVerne had nothing to show and apparently could recall nothing either. He did not write the details in his notes, he explained, because he was too busy preparing for the cross-examination.59
Furthermore, LaVerne contended, he did not ask Calley for details. “I couldn’t get him to sit down. He was jumping up and down like a jumping bean and I wasn’t going to, say, pull out a pencil and paper—you don’t do that with Lieutenant Calley.” LaVerne explained that he had “to approach him gently and talk to him because he is under pressure, great pressure.” He finally declared he could not remember what Calley said about My Lai. “I’m under stress and I am fatigued.”60
“So am I,” declared Kennedy as he abruptly ended that day’s proceedings. Early the next morning, February 19, he held a conference in his chambers—without the press—where he remarked that “most of the difficulties concerned the psychiatrist.” He told Calley and both legal teams that he did not want to accuse LaVerne of lying, but “if he wasn’t lying, it was the next thing to it.” In a face-saving effort on behalf of LaVerne, Latimer asked the court to excuse the witness on the basis of a disagreement over strategy and strike that part of his cross-examination.61
Kennedy agreed to do both.
The third psychiatrist, Dr. Wilbur Hamman from St. Elizabeths Hospital in Washington, D.C., testified that after five interviews he did not believe Calley mentally capable of specific intent or premeditated murder. But, Hamman emphasized, training, experience, and the stress of battle had conditioned Calley to regard all Vietnamese as possible enemies and to follow the orders he got at the briefing to “kill all the enemy, not to leave anything alive.”62
According to Hamman, Calley admitted ordering Meadlo to “waste” the Vietnamese but argued that he did not mean to kill them. Even when telling Meadlo “I want them dead,” Calley claimed this did not mean he wanted them killed.
Daniel professed to be mystified by this argument. “What’s the difference between intending someone to die and intending to kill them?” Hamman told the court he had once asked Calley about this matter. “Well, you keep using the word ‘waste,’ ” Hamman remembered saying, and “I never hear you use the word kill, why not?” “We never use kill,” Calley replied. “We don’t use that word. Kill refers to our teachings that we are brought up with ever since childhood—Thou shalt not kill. If you use the word kill with the troops, it causes a very negative emotional reaction, so you use the word waste, to get rid of, to destroy.”63
Hamman explained that Calley attempted to clarify his position by denying he killed anyone in My Lai 4; his mission was “a job” in which he viewed deaths as “enemy dying” and not “humans dying.” Vietnamese prisoners were not “humans” but “potential killers of himself and his men.” Calley claimed he “was not killing human beings” but “destroying enemies” in accordance with “an order.” In his “state of mind,” Hamman asserted, Calley “did not conceive of these acts as killing but as destroying, and I am using killing in the sense of killing a human being as opposed to destroying an enemy.” Calley “lacked the capacity to have will, to consciously conceive that act.”64
Whether or not he had a capacity to have will, a few minutes after two in the afternoon of February 23, following nearly three months of court proceedings, Calley took the stand. He was dressed in his Class A green uniform, and he wore no decorations other than the Combat Infantryman’s Badge and shoulder patches signifying the Americal Division and the Student Brigade. His feet dangled from a heavily cushioned chair too large for his small frame.65
To many Americans by mid-February 1971, Calley had become well-known, most notably to a sizable segment of Vietnam veterans who considered him a victim of unfair charges, but to others, according to Time magazine, he was “a celebrity, almost a hero.” Two weeks earlier, the Vietnam Veterans Against the War had gathered in Detroit to hear more than a hundred former soldiers—including a future presidential candidate and secretary of state, John Kerry—attest to many atrocities in Vietnam. Called “The Winter Soldier Investigation: An Inquiry into American War Crimes,” the gathering featured an opening speaker who insisted that My Lai was not an isolated incident and that Calley had become a scapegoat for the high-ranking civilian and military officials who drew up the policies responsible for the atrocities. Among ten thousand letters offering Calley support, twenty-five came from the highly popular conservative news commentator Paul Harvey, who declared in one of them, “I have every confidence that you are a fine military officer that we can all be proud of.”66
Inside the courtroom, Latimer spent the first day of Calley’s testimony leading him through a detailed account of his personal background before asking for a description of the battle plan for March 16, 1968. At the briefing of company commanders the day before, Calley explained, Medina emphasized that their objective in Pinkville was to destroy the enemy’s headquarters at My Lai 1 near the coast and not let anyone get behind them or leave anything standing. The enemy consisted of the 48th Viet Cong Battalion and the 35th Viet Cong Heavy Weapons Battalion, which together constituted a formidable force of regulars and local cadres. Their base camp in Pinkville was a virtual fortress protected by a minefield, a ditch line, and a number of .50-caliber machine guns along the bunker line, but their main defense lay in the small surrounding villages. Once Charlie Company invaded My Lai 4, it had to destroy all opposition or else it would follow the deadly path of previous expeditions—taking fire from the rear and finding itself pinned down by mortars and heavy weapons fire as it moved toward My Lai 1. The key was to maintain rapid mobility.67
The subhamlets provided early warning to the Viet Cong of an assault and were ready to break it up. Once the attack force got into the targeted area, the villages would go on the offensive. “When they got you in the pocket, they would cut you to ribbons and you couldn’t get back out.” The 1st and 2nd Platoons would enter the village, soon followed by the 3rd Platoon, which would dust off American casualties and allow the two lead platoons to maintain the momentum of their attack.68
Charlie Company, Calley summarized, would begin the “high-speed combat assault” on Pinkville by quickly neutralizing My Lai 4 and then clearing My Lai 5 and My Lai 6. At that point they would band together to launch the “final assault on Pinkville” and destroy the 48th Viet Cong Battalion “once and for all.”69
Calley explained that they were told all civilians would have left My Lai 4 a short time before the assault, meaning that the only Vietnamese there would be the enemy. When someone at the briefing asked whether the term civilians included men, women, and children, Medina declared it “meant everything.” Charlie’s mission was to destroy the “infrastructure,” which according to “common knowledge” meant the civilian government that controlled the Viet Cong villages.70
The “order of the day” came from Medina, Calley testified: “Waste them.” Asked when Medina had given the order, Calley replied, “The night before in the company briefing, the platoon leaders’ briefing, the following morning before we lifted off, and twice there in the village, sir.”71
Calley maintained that early in the assault Medina radioed an order to “get rid of the people” slowing his platoon’s move through the village. Calley rogered him but came upon Meadlo watching over a large group of Vietnamese civilians on the southeastern trail. Calley asked if he knew what to do with these people. When told yes, Calley ordered him to get them moving to the ditch along the eastern edge of the village. At this point he saw Conti “molesting a female” off the trail and ordered him to pull up his pants and get back to his assignment. Medina called again, this time asking why Calley was disobeying his orders. Calley explained that the civilians were slowing him down, which drew Medina’s hot response: “Waste the Vietnamese and get my people out in line, out in the position they were supposed to be.”72
On returning to the trail, Calley continued, he found Meadlo still standing there with the Vietnamese and yelled at him to move those people or “get rid of them.” He then left once more to check on Mitchell’s position but soon heard a lot of shooting to the north—probably the 3rd Platoon entering the village. After moving up along the edge of a ditch, he came to a clearing and saw four or five soldiers firing at a group of Vietnamese in the ditch. He only knew two of the men, Dursi and Meadlo, but, he testified, “I fired into the ditch, also, sir.”73
Calley’s admission must have startled everyone in the courtroom. He had repeatedly denied involvement in the killings on the trail but now admitted to firing perhaps eight shots into the ditch without, he claimed, knowing whether he had hit anyone. In one moment, Latimer had lost his client’s first line of defense. Daniel immediately tied the shootings to the charges of murder. What did you see in the ditch? “Dead people, sir.”74
Daniel then explored the possibility of Calley’s admitting to more shootings. Asked if he fired at anyone else in the area, Calley told of firing at a head moving through the rice paddy that turned out to be a small boy. The only other time he fired his weapon came near the landing zone, when a man fleeing the village jumped off the trail and into the rice paddy. Calley thought he hit him but was not certain. As for the charge that he shot a monk, he admitted that he interrogated a man but not a monk. “I butt-stroked him in the mouth, sir.” The man fell to the ground, but Calley claimed he did not shoot him and that someone drop-kicked him into the ditch. Calley also denied both shooting a child running from the ditch and throwing Vietnamese into the ditch and firing at them for more than an hour.75
Calley explained that by the time his forces reached the eastern edge of My Lai 4, their formation had broken down and the battle plan ground to a halt. He told his squad leaders to pull the platoon together in preparation for moving out. But his troops hesitated to get back into line before hitting the next village. “I mean the fear even doubles and triples for the next one, because you know you are getting that much closer. We got through the first village all right. We are all right so far. We know sooner or later we are going to get it. That’s like playing Russian roulette, but only spinning the chamber one time.”76
Calley testified that Medina soon called him and the other two platoon leaders to meet him for lunch at the eastern terminal point of the assault—their first time together in My Lai 4. After discussing the operation and making plans for their next movements, Medina and his three platoon leaders walked up to My Lai 5 and then to My Lai 6 only to find both villages deserted except for elderly people. They then gathered their men and entered a large graveyard just west of My Lai 1, where they met up with Bravo Company for the night.77
In short, Calley blamed Medina for the killings. Asked if he ever intended “to waste any Vietnamese man, woman or child,” Calley replied, “No, sir, I didn’t.” His only objective was to “waste or destroy the enemy,” he said. “I never sat down to analyze if they were men, women, and children. They were enemy and just people.” Medina had declared that “everybody in that area would be the enemy and everyone there would be destroyed, all enemies would be destroyed. We had been taught that from the time we got there that men, women, and children were enemy soldiers.” Calley denied any responsibility for what happened. “I felt then and I still do that I acted as I was directed, and I carried out the orders that I was given, and I do not feel wrong in doing so, sir.”78
Calley insisted that at their luncheon meeting he told Medina about the shooting in the ditch and that the captain had said nothing. Asked if he told Medina who did the shooting, Calley replied that all he told him was that “people” had been shot in the ditch and in the village. “It wasn’t any big deal,” remarked Calley. “You didn’t tell him the circumstances under which they were shot?” “No, sir. Why should I? He knew what circumstances they were shot under.” “How did he know?” “Because he had told me to shoot them, sir.” “When?” Both that day and the day before.79
Daniel now moved to counter the defense claim that Calley lacked the mental capacity to premeditate by bringing in the three members of the Sanity Board from Walter Reed Hospital. Major Henry Edwards had examined Calley six times, half of them jointly with other members of the board, and concluded that on March 16, 1968, Calley had been “free from any mental disease, defect, or derangement” and “had the capacity to form the specific intent to kill.” Lieutenant Colonel Franklin Jones likewise found no evidence of a mental illness or disorder that would have undermined Calley’s ability to distinguish right from wrong. And Colonel Arnold Johnson, chief of the Department of Psychiatry and Neurology, interviewed Calley for about eleven hours and found nothing suggesting a mental defect that would have prevented him from premeditating or having a specific intent to kill.80
But the key question remained: Who ordered the killing? The defense had not disproved the allegations of murder against Calley—indeed, that was now impossible, following his admission to shooting Vietnamese in the ditch. Nor had it presented a convincing case for mental incapacity when it clumsily toyed with an insanity plea that Calley had opposed from the beginning.81 The only avenue Latimer had left was to prove Medina was responsible for Calley’s actions.
Ironically, both the prosecution and the defense wanted Medina to testify, but they first had to overcome the army’s opposition. For a week, defense witnesses had asserted that Calley had acted under Medina’s orders. Latimer hoped to establish this claim by questioning Medina. Daniel wanted him on the stand for the opposite reason—to show that Calley had acted on his own. The army, according to William Eckhardt, was not willing to have the government call Medina to the stand because under the rules of evidence it would have had to “vouch” for the accuracy of his testimony and thus “bless” his statement about the orders he gave. But Medina wanted to clear his name, and his attorney, the nationally known F. Lee Bailey, had filed an appeal for him to testify based on the accusation that the army had ordered Daniel not to call him to the stand. The matter was resolved, Eckhardt continued, when the members of the Calley jury exercised their right to call witnesses that neither party had presented. Kennedy thus summoned Medina as a witness for the court and the government did not have to vouch for his credibility.82
Medina took the stand the next day, on March 10, wearing a full dress uniform replete with the Silver Star and other combat decorations and at ease with himself. He first focused on the hard realities of the Vietnam War by describing in bloody detail the high number of American soldiers mangled and killed in the minefields in Vietnam. His men had not been prepared for this horror. Largely inexperienced in combat and perhaps looking for some sense of identity, they “affectionately called themselves ‘Barker’s Bastards.’ We were illegitimate.” In a comment that drew a smile from Calley, Medina declared, “Nobody wanted us.”83
Daniel shifted the direction of the testimony, making Medina aware of the need to defend himself against claims that he had ordered his men to kill civilians. Medina faced two counts of premeditated murder—a male and a female, both unidentified. As the commanding officer of Charlie Company, he also faced charges for the deaths of at least one hundred South Vietnamese by rifles and machine guns.84
Turning to look directly at Calley, Medina denied ordering the killing of women and children. Nor did he make a radio call to Calley complaining about his alleged failure to follow orders. He admitted radioing Calley to speed up his progress toward the defensive position on the eastern side of the village, but he denied having any communication with him pertaining to the large number of civilians he had collected. Medina also vehemently denied telling his men to “kill everything that moves” or that any women and children there were Viet Cong. “I did not expect to find any noncombatants in the village of My Lai 4,” he said. Although he was surprised to see women and children, he said nothing to either his lower or higher commanders.85
Medina then explained the problems he had in determining the number of Vietnamese killed in the assault. At Major Charles Calhoun’s instruction that afternoon, he asked his platoon leaders for a body count. Calley said more than fifty, Brooks gave him the same number, and LaCross reported six. “Oh, my God,” thought Medina. “What happened?” He knew that noncombatants had died, but not that many. He told the platoon leaders that he had seen about twenty to twenty-eight noncombatants dead and would give that body count to Calhoun.86
Medina insisted that it was not until the evening of March 16, at the night defensive position, that he became aware of the great number of people killed in My Lai 4. He had heard sporadic firing, but he knew that burning hooches caused the bamboo to explode with sounds like rifle shots. He denied telling anyone to get rid of the civilians, either over the radio or in person. Yet he realized that as company commander he was ultimately responsible. It might have been that night that he declared, “I will go to jail for this.”87
In Latimer’s cross-examination, Medina changed direction and surprisingly admitted to covering up the heavy number of civilian deaths. “I realized that instead of going in and doing combat with an armed enemy, the intelligence was faulty, and we found nothing but women and children in the village of My Lai 4 and seeing what had happened, I realized exactly the disgrace that was being brought upon the Army uniform that I am very proud to wear.” But, he added, “I also realized the repercussions that it would have against the United States of America,” as well as “my family” and “myself.”88
Medina had perhaps also realized the statute of limitations had run out on the crime of a cover-up.89
“Well,” Latimer indignantly asked, “what’s happened now because you didn’t report it? What has happened now, sir? Yes. It’s worse, isn’t it?” Did Calley know then, he asked, that “you were disobeying what an officer should do?” Medina insisted that he did not realize he was guilty of a felony and yet admitted, “I knew that as an officer I was responsible to report that particular action.” “And you still didn’t report it, knowing that you should have done it?” “Yes, sir.”90
Medina insisted that before 10:25 a.m. he radioed his platoon leaders to stop the indiscriminate killing of civilians. Asked if his junior commanders were also surprised by the civilian presence, Medina declared that he had received no reports from them and did not become aware of the mass killings until he saw bodies on the north-south trail.91
Was My Lai 4 “an intermediate objective throughout this operation with the final objective somewhere else”? “No, sir,” Medina declared in a response that contradicted Calley’s testimony and must have surprised him and Latimer as well as others in the courtroom. The “overall mission, sir, was to close with the 48th VC Battalion which was at the village of My Lai 4, sir, and to engage it in combat and destroy it, sir.” Was he planning to go to My Lai 1? Medina explained that they were supposed to join Bravo Company in a night defensive position to the west of that village. Latimer pushed for clarification. “And go to My Lai 1 the following day, is that right, or Pinkville or however you might want to classify that?” Medina replied, “No, sir, I don’t recall that at all.”92
Why would Medina assert that the combat plan did not include a final assault on the Viet Cong’s headquarters at My Lai 1, as he had said at the March 15 briefing? Calley’s testimony confirmed this objective, as did that of Watke, Calhoun, and Kotouc. When had anyone argued that the Viet Cong battalion was in My Lai 4 rather than in My Lai 1? My Lai 4 was the first village Charlie Company sought to neutralize before clearing others en route to My Lai 1. Had Medina attempted to declare the mission complete before news of the mass killings leaked out?93
Medina’s story had other flaws, some of which we have seen before. He testified that he did not enter the village until somewhere between nine and ten in the morning, choosing to remain outside its southern edge but receiving no reports that the men had encountered only civilians. Latimer seemed confused. Medina said it was before 10:25 a.m. that he ordered his troops to cease fire and save ammunition. And yet he also claimed he did not realize until about 10:30 a.m. that the Viet Cong battalion was not in the village. Why, Latimer asked Medina, did you order your men to save ammunition before that time if you thought they were shooting at the enemy? Medina replied that he assumed they were shooting livestock and did not want them wasting their ammunition. “Well, how did you know they were not shooting at the enemy?” When Medina replied that he did not know this, Latimer asked, “How did you know they were shooting at livestock?” Medina replied that he had given them that instruction. “Did you see them shooting at the livestock in the village?” Told no, Latimer asked, “So, nevertheless without any information you just told them to stop shooting to save ammunition?” “I gave them instructions to conserve ammunition, yes, sir.” Latimer remarked, “That’s all.”94
Daniel began his closing argument on March 15, following nearly four months of court proceedings that included testimonies from about one hundred witnesses, many of whom provided either direct or circumstantial evidence of Calley’s ordering and participating in the killing of a large number of defenseless Vietnamese victims, male and female, young and old. Daniel, however, realized that he only had to prove Calley guilty of one murder to win a conviction.95
Daniel told the court that several witnesses saw Calley order Meadlo to shoot a large number of Vietnamese in My Lai 4 and then join in the killing on the trail and at the ditch. Conti, Meadlo, and Sledge were among those who saw him order and take part in the shootings on the trail. Conti saw Calley, Meadlo, and Mitchell firing into the ditch. Maples saw Calley fire into about fifteen Vietnamese in the ditch. Turner watched Calley, Meadlo, and others fire into about a hundred people in the ditch. Sledge witnessed Calley using his rifle butt to hit an elderly Vietnamese man in the head before shooting a child attempting to escape the ditch. The defense, Daniel emphasized, had not disputed these facts.96
Daniel insisted he could prove his case by a combination of direct evidence stemming from eyewitness accounts and circumstantial evidence connecting Calley to the bodies in his area of operation. Calley had admitted telling Meadlo to “waste” a group of Vietnamese people, and the defense never denied that he killed people in the ditch. If Calley was responsible for killing at least one human being without justification, it followed that he had the “specific intent to kill” based on “a premeditated design.” Conti, Dursi, Meadlo, and Sledge had provided direct evidence; circumstantial evidence came from Allen Boyce, Rennard Doines, Ronald Grzesik, Charles Hall, Sydney Kye, Lenny Lagunoy, Robert Maples, Greg Olsen, and Roy Wood.97
Daniel’s summation of Dursi’s testimony best exemplifies the effectiveness of this approach. Dursi testified that Meadlo was on his left when Calley ordered them to force the Vietnamese into the ditch. They began screaming as Calley said, “Start firing!” Meadlo was crying but followed Calley’s order and with him began firing. Dursi refused to follow the order, and Meadlo yelled at him, “Shoot! Shoot! Why don’t you shoot?” “I can’t. I won’t. I will not.” Dursi was stunned at the sight of mothers protecting their children and people screaming and crying while being shot and falling onto each other. Calley shouted at him, “Get on the other side of the ditch before you get sick!” As Dursi made his way across the makeshift footbridge, he saw the victims below and heard the soldiers still firing as he walked away. He also glanced at a bubble helicopter flying “in the area.”98
How many did they kill? Turning to the jury, Daniel declared that the number was not decisive for the charges. “We only have to prove that he killed at least one to satisfy that element of the offense of the fact of death, the fact of the killing just one. If you can find that he killed more than thirty, it would be satisfied, or if you can all agree that he killed twenty-five, it would be satisfied, but if you can only agree that he killed one, he can still be found guilty.”99
Numerous witnesses saw bodies on the trail and in the ditch. Daniel briefly summarized the testimonies of each of twenty members of Charlie Company by name who saw bodies on the north-south trail pictured in Haeberle’s photograph. He did the same with six defense witnesses who saw the bodies on that trail, including two pilots of Lieutenant Colonel Barker’s helicopter that landed on the south side of the village, and with thirteen government witnesses who identified the victims in a photograph. Finally, Daniel slowly and methodically reviewed the testimonies of ten soldiers one by one, pointing out where they independently agreed on a string of facts. Dursi, Meadlo, Sledge, Conti, Boyce, Maples, Lagunoy, Olsen, Hall, and Grzesik—all saw the bodies in the ditch and declared that Calley had ordered and participated in the mass killings.100
Such a great number of witnesses, Daniel argued, could not have made up their stories. They were not questioned until after leaving the service, and they came forward years later and from different areas of the country. “Did they have an opportunity to fabricate this? There’s no way, gentlemen. It has to be the truth.” And, he argues, the conflicts between their accounts only made them more credible. “What would you have thought if all of these individuals came into this courtroom and told you the same story? If everybody was precise in their detail? Would that be credible to you after this length of time?”101
But of all those who came forth, Daniel asserted, only one told the full story and resolved the conflicts in the testimonies—Thomas Turner. Discrepancies involving the number of deaths in the ditch appeared in the witnesses’ testimonies because groups of Vietnamese “were put in at a different location over a period of time, and they were seen by different people there at different times, and different people were in fact there at different times.” Turner approached the ditch and remained nearby for more than an hour, watching Calley, Meadlo, and others shooting the villagers. He saw bodies in the ditch and another group kneeling along its edge as they were shot, and he saw Calley change clips while Meadlo fired into the ditch. Turner wanted nothing to do with the killings and moved a few yards north of the ditch. But when he got there, he turned around and resumed watching. More civilians continued to appear, totaling nearly one hundred people in the ditch. Turner’s testimony, Daniel asserted, was consistent with all other accounts—including Calley’s.102
Furthermore, Daniel emphasized, twelve members of the 1st Platoon placed Calley at the ditch, a fact confirmed by Calley himself when he admitted firing into those people but could give no estimates of how many men, women, and children were there. This was not important to Calley. “They were just enemy.”103
Daniel declared that the evidence showed at least seventy people and perhaps as many as a hundred killed in the ditch. Turner and Meadlo provided this range of numbers and Thompson, Colburn, and Culverhouse confirmed them. Daniel again reminded the court that the numbers were not necessary for a conviction; he only had to prove that Calley killed at least one civilian in the ditch.104
Calley committed two murders witnessed by his RTO. What would Sledge have to gain by lying about the killing of an elderly man and a child?105
Daniel now turned to the question of premeditated murder. For this charge to apply, the shooter must intend for the person to die as a result of a decision made as little as a “split-second” before pulling the trigger. There were two ways to prove premeditated murder—by direct evidence, in which the killer tells you what he is going to do, and circumstantial evidence, which means “you just know by what he does what he intended.”106
Both Crane and Hamman claimed that Calley lacked the mental capacity to premeditate, but under the law, Daniel pointed out, Calley could be sane and still suffer from a mental incapacity to premeditate. Without interviewing Calley or hearing his testimony, Crane offered only the opinion of a psychiatrist. And yet he admitted that Calley had the mental ability to premeditate that day even though he was incapable of making a complex decision. Hamman agreed with this assessment. “You don’t have to be a genius, gentlemen, to commit the offense of premeditated murder,” Daniel declared for emphasis.107
Daniel argued that Calley had the mental capacity to make decisions and was not delusional. He performed all the actions expected of an officer and did not seem confused. The three psychiatrists brought to the stand by the prosecution—Major Henry Edwards, Lieutenant Colonel Franklin Jones, and Colonel Arnold Johnson from Walter Reed Army Hospital—were all in the military and familiar with combat psychiatry. They unanimously agreed that Calley had the mental ability to premeditate.108
And yet, Daniel declared, the strongest testimony came from those who were with Calley that day, including Conti, Dursi, Meadlo, Sledge, and Turner, who all thought Calley acted in a normal fashion. Conti confirmed Meadlo’s testimony that Calley ordered him to kill the Vietnamese. Dursi heard the same assertions, as did Sledge. Turner likewise showed that Calley intended to kill. The defendant, Daniel concluded, had to have known he would kill his two targets when he pulled the trigger with his rifle barrel pressed against the man’s head and then shot the child at close range.109
The next morning, March 16, 1971, three years to the day after My Lai, Latimer tried to counter Daniel’s argument by insisting that more soldiers besides Calley were involved in the killings. In the face of so much evidence, he no longer could claim his client’s innocence. He also recognized the futility of establishing impaired judgment based on mitigating circumstances. Consequently, Latimer tried a new approach: he warned that convicting Calley would tarnish the army’s image “beyond recognition.” To widen the blame, he reminded the court that more than a hundred soldiers took part in this assault, which meant this was not “a one-man carnage.” Many witnesses had testified in an effort to throw guilt elsewhere. Such “partners in crime” often try to escape punishment by accusing others of the offense, making this “a classic example” of avoiding the charge of accomplice.110
Latimer argued that in the midst of the chaos inside the village, it was amazing that these soldiers did not shoot each other, crowded as they were in the dense foliage and unable to see the enemy while hearing every shot fired and knowing they could die at any moment. “This is the type of warfare that fends hatred against any enemy and anyone who can aid the enemy.” Latimer asserted that had he been there, “I might have suspected when I didn’t find two battalions or two companies and a headquarters right in the My Lai area itself, that somewhere along the line, when I got out in the open, they might be going to mow me down.”111
Latimer questioned the credibility of some of the key witnesses for the prosecution: Conti often strayed away from his men and “seemed to be doing something besides fighting wars”; Meadlo’s “emotional state” made him “one of the most unreliable witnesses”; and Turner raised doubts about his own innocence by seeking immunity. In all the confusion of combat inside a village, an army unit cannot have some soldiers “hurting civilians, others going around looking for women.”112
Latimer pointed out that several soldiers’ testimonies supported that of Corporal Kenneth Schiel, who claimed that at the briefing “Medina stressed we were to kill everything.” Schiel had no reason to lie, because he had a grant of immunity. Salvatore Lamartina remembered that Medina told them, “Go into the village and kill everything that breathed.” He and others “sprayed the village.” Latimer quoted from eighteen other soldiers who made the same allegation against Medina.113
Medina, Latimer asserted, offered “very hollow” reasons for not returning to My Lai for a body count. Going back, he knew, would expose the mass killings. Medina had to have heard every shot from the M-16s and machine guns and must have known what was going on. If he did not, “the man was not fit to be a commander.” “He’d seen what happened.” He “knew how his orders had been interpreted.” Medina was trying to “escape responsibility.” Later that evening, he expressed fear of going to prison for twenty years.114
Latimer declared, “For the life of me, I cannot understand why we could take a group of twenty or thirty men out of the United States Army, all good men, all good citizens, at the time they were picked up, put them over there, and have an incident like this happen unless it had been suggested, ordered, or commanded by somebody upstairs and I needn’t go no further in this case than Captain Medina.” Latimer could not understand why a lieutenant, “the lowest man on the totem pole, would be issuing orders like that without having some directive or orders from on high.”115
That evening Daniel insisted in his closing argument that Calley could not avoid punishment by claiming he followed orders. His only order was to engage the enemy in My Lai 4—which meant “there was no order to round up all those men, women, and children and summarily execute them.” Calley testified that they were to launch “a high-speed combat assault” aimed at clearing My Lai 4, 5, and 6 before neutralizing My Lai 1. “Does that indicate summary execution of men, women, and children?”116
Daniel argued that the evidence did not show that Medina ordered Calley to kill the detained Vietnamese. Medina testified that he did not give that order. Neither of the two RTOs in the command group heard such an order, nor did Calley’s RTO, Charles Sledge; the 3rd Platoon’s RTO, Stephen Glimpse; and its leader, Jeffrey LaCross. Only Calley claimed he received that order. “Do you think that the accused would have called Captain Medina and told him that, ‘I have fifty, a hundred Vietnamese—men, women, and children—none of whom have any weapons.’ And then would have received an order from his company commander to waste that many people under those circumstances? Do you believe that?” Calley never claimed to have called Medina to tell him about the people he had under control and what the circumstances were. “That was because he did not do it.”117
Perhaps the best indication of Calley’s attitude was his comment to Sledge after Thompson left: “He don’t like the way I’m running the show here, but I’m the boss.” Calley, Daniel asserted, “was running that show, gentlemen, on his own initiative, at his own direction.”118
If Medina had given such an order, Daniel declared, Calley was as guilty as Medina in obeying that order. Such an order was illegal, making both men guilty of criminal intent. Any “reasonable man” would have realized the illegality of an order to gather more than thirty people on a trail, some of them children and babies, and “summarily execute” them. Any “reasonable man” would know it was unlawful to put more than seventy people in a ditch, “like a bunch of cattle—men, women, children, and babies.” Any “reasonable man not only would know it, he should know it, and he could not rely upon any order to commit that, to absolve himself of criminal responsibility for that conduct.”119
Daniel held Calley responsible for what happened at My Lai 4, regardless of an alleged order from Medina. If there was an order, Calley “joined in and he is as much to blame as anyone else who would’ve given that order.” The law says that a reasonable man would not have obeyed that order. “What can justify, gentlemen, the shooting in cold blood of an infant or a child or any human being who’s unresisting and is offering you no resistance?”120
Under American law, the Uniform Code of Military Justice, and the laws of warfare, Daniel declared, “all human beings are entitled to be treated humanely.” And yet the defense would throw away these rules and “legalize murder.” These victims were human beings, whether or not they were Viet Cong supporters or sympathizers. “They may have been Vietnamese people who just happened to have been in the wrong place at the wrong time. They may have been people who were under the control of the Viet Cong, because they had no choice, because they themselves were captives of this country’s own enemy. But I ask you gentlemen, who stopped to ask them?” Did Calley ever try to determine who they were? The children? The infants? Would any court in the world have found the children or the infants guilty of an offense and sentence them to die? Yet Calley “appointed himself judge, jury, and executioner, and he convicted his prisoners without a trial.” For him to assert that he fulfilled his duty and acted in the name of the United States was “to prostitute all of the humanitarian principles for which this nation stands.”121
Daniel had concluded his remarks, and Kennedy instructed the jury that it must decide whether Calley had acted under orders. Medina denied ordering his men to kill everyone; Calley insisted that Medina ordered them to destroy anything helpful to the enemy. Twice Calley claimed that Medina ordered him to “hurry and get rid of the people and get into position” and to stop searching the bunkers and “waste the people.” If the jury found that Medina had issued such an order and that Calley knew the order was illegal, “the fact that the order was given operates as no defense.” The question becomes: Would a person of “ordinary sense and understanding” have realized the order was unlawful?122
Calley, meanwhile, waited in his apartment for the verdict, often in the company of friends while watching his large color TV. On the wall was a poster saying “No More War,” and in the room was a U.S. flag flown over the Battle of the Bulge in World War II. In whiling away the time, he and his buddies kept a “body count” of roaches killed in the kitchen. Did he shoot the reindeer whose pelt was on the wall? “God no,” exclaimed Calley, according to journalist Warren Rogers for the Los Angeles Times. “I couldn’t kill a reindeer.”123
In the late afternoon of March 29, more than four months after the opening session and thirteen days after receiving instructions from the judge, the jury had deliberated nearly eighty hours and was now ready to present its verdict in the longest war-crimes trial in American military history. Latimer complained during the wait about the money he lost every day in attorney’s fees for cases back home. “Finally they’re ready,” Calley remarked when summoned back to court.124
Kennedy asked Calley and his attorneys to approach the president of the jury, Colonel Ford. After an exchange of salutes, Ford began reading the decision in a soft voice. The court by a secret written ballot and by a two-thirds vote of the members present at the time found him guilty of the premeditated murders of at least twenty-two Vietnamese civilians: Specification 1—“an unknown number, not less than 1” on the trail; Specification 2—“an unknown number, not less than twenty” at the ditch; Specification 2 of the Additional Charge—“with intent to commit murder, commit an assault upon” the child.
Calley’s face flushed, his eyes widening as he stared at Ford. Calley awkwardly saluted him again before returning to the table with his defense team.
Kennedy announced that the court would hear the jury’s sentence the following morning. Daniel had not called for the death penalty but for whatever punishment the jury thought “appropriate.” Its choices in cases of premeditated murder were execution or life imprisonment.125
Calley rose to speak and, after moving from behind a high lectern to a lowered microphone, he spoke to the jury in a taut yet trembling voice. “I’m not going to stand here and plead for my life or my freedom.” Short of breath, his eyes moist and his body shaking, he declared:
I’ve never known a soldier, nor did I ever myself ever wantonly kill a human being in my entire life. If I have committed a crime, the only crime that I’ve committed is in judgment of my values. Apparently I valued my troops’ lives more than I did that of the enemy. When my troops were getting massacred and mauled by an enemy I couldn’t see, I couldn’t feel, that I couldn’t touch—that nobody in the military system ever described them as anything other than Communism. They [the army] didn’t give it a race, they didn’t give it a sex, they didn’t give it an age. They never let me believe it was just a philosophy in a man’s mind. That was my enemy out there. And when it became between me and that enemy, I had to value the lives of my troops—and I feel that was the only crime I have committed.
Drawing a deep breath, Calley concluded in barely a whisper. “Yesterday, you stripped me of all my honor. Please, by your actions that you take here today don’t strip future soldiers of their honor. I beg of you.”126
For almost two and a half minutes, Warren Rogers recalled, the only sounds in the room had been Calley’s quavering voice and the drone of the air conditioner.127
As soon as Calley had finished his statement, Daniel rose to defend the jury’s verdict. “You did not strip him of his honor,” he told them. “What he did stripped him of his honor.”128
Latimer’s multifaceted strategy had failed. His gentle approach and demeanor had not swayed the jury, nor had his various tactics. Daniel and his team of prosecutors had been better prepared and proved more effective in the courtroom. In one of the most telling examples, Major Raby had spent more than a hundred hours reading and summarizing the testimonies that potential witnesses gave to CID, the Peers commission, and the Hébert subcommittee, only to have Latimer and his other associate, Richard Kay, choose not to read them. Instead, they had summaries made of the summaries. One journalist compared Latimer’s defense to the bumbling performance of attorney William Jennings Bryan in the Scopes trial of 1925 in Tennessee.129
Latimer could never prove that Medina ordered Calley to kill; but this did not matter. As Daniel made clear, Calley as a “reasonable man” should not have obeyed such an illegal order, and Calley, of course, would have been guilty if he had acted on his own. In the end, Latimer could not overcome the massive collection of both direct and circumstantial evidence that Daniel wove together to prove his case. According to Warren Rogers, Latimer could not counter Daniel’s hammering away in a “moralistic, puritanical tone” repeating the list of victims—“women, children, old men … and babies.” The common belief was that Calley might get involuntary manslaughter and five years in prison. Instead, multiple eyewitness accounts of events meshed with the large number of supportive testimonies to win a murder conviction from at least four of six career army officers and veterans of war.130
That evening on ABC Evening News, however, news anchor Harry Reasoner told a nationwide TV audience that the decision was wrong. It was “ludicrous” to refer to the “laws of warfare” in the “heat of battle.” He found it “too hard” to “come down to one simple and unprepared man out of the morass of all the confused and casual killing.” His conclusion: “I could not have voted guilty in this trial.”131
The strongly negative reaction to the verdict in the United States appalled Major General Kenneth Hodson, the judge advocate general of the U.S. Army. A massacre had occurred, he insisted. “It was a violation of all the rules of land warfare that I’ve ever known in my life. Because it was just cold-blooded killing of people who appeared to be defenseless civilians.”132
The outspoken opposition to the conviction by uniformed Americans in Saigon must have been especially disconcerting to Hodson. Several remarks rested on the bits and pieces of news they had heard. Calley was a scapegoat—“just another victim of a war nobody wanted to fight.” “I didn’t want to come over here either—you don’t really know who you are fighting. Women and children can shoot or frag you as easily as a man can.” Calley’s “platoon was being hit daily. It impaired his judgment.” “I think it’s wrong what he did, but they’re not punishing anyone else—that’s not right.” From an officer: “They’re getting Calley because the newspapers got hold of it and outraged so many people. The Army has to do something.”133
Perhaps Hodson was equally puzzled by the mixed reaction in Saigon. Few Vietnamese were fully aware of My Lai, because President Nguyen Van Thieu had denied the massacre charges and barred any discussion of them on radio or television. In the meantime, those political and intellectual leaders who had learned of the killings privately criticized him for keeping the massacre and the trials from his people. One Buddhist leader spoke for many of his people in declaring that if Calley received a death sentence, he would send a cable to the military court pleading for leniency. “What is the use of another dead?”134
the lieutenant governor of Georgia, Lester Maddox, responded to Calley’s conviction in a manner that threatened to become a consistent theme of nationwide protest. In a letter to President Nixon, Maddox admitted to not knowing “all that transpired” in My Lai but nonetheless urged him to use the power of his executive office to free Calley from “one of the most outrageous miscarriages of justice in the history of our nation.” It was wrong to make Calley the “sacrificial lamb” for the poor decisions made by our leaders in helping a government in Vietnam, which lacked the support of its own people. If the U.S. government executed Calley, Maddox wrote, “it will also be killing thousands upon thousands of other American soldiers, who, at a critical moment, will pause to wonder, ‘Is this person I am about to shoot absolutely and without a doubt an enemy, or will I suffer Calley’s fate if I pulled the trigger?’ ”135
Nixon needed no persuasion: at the “Western White House” in San Clemente, California, in a mid-afternoon meeting on March 30, he told John Ehrlichman and H. R. Haldeman reassuringly, “I’ll commute Calley.”136