Calley v. Callaway (382 F. Supp. 650, 1974)

OPINION

ELLIOTT, Chief Judge.

Background and Present Status of the Case

On March 31, 1971 Petitioner was found guilty by Army general court-martial of premeditated murder and assault with intent to commit murder in violation of Articles 118 and 134 of the Uniform Code of Military Justice. On February 16, 1973 the Court of Military Review affirmed the conviction. The Court of Military Appeals granted a limited review and on December 21, 1973 affirmed the Petitioner’s conviction by a split decision. Having exhausted the appeal procedures provided in the military system, the Petitioner on February 11, 1974 filed a petition for writ of habeas corpus in this court praying that he be discharged from custody on the ground that his conviction is constitutionally invalid.

At the time of the alleged offenses which are the basis of the Petitioner’s conviction Petitioner was 25 years of age and held the rank of Second Lieutenant. At that time he had been an enlisted man for approximately 14 months and had been a Second Lieutenant for about 6 months. He had completed his first tour of duty in Vietnam, but when a shortage of junior officers developed he voluntarily extended his Vietnam tour by an additional 6 months.

When he enlisted in the Army he was given the usual basic training and he later asked for and received a recommendation for Officer Candidate School and was accepted for a class starting in March, 1967. After he finished OCS he was assigned to the 11th Infantry Brigade in Hawaii where he was taught the usual infantry subjects and was specifically informed that he was required to give strict obedience to orders.

The Petitioner’s first assignment in Vietnam was at Due Pho. He had a short series of classes there and most of the instruction was given by ARVN instructors. This was his first indoctrination about the character of the potential enemy. He was told that women were as dangerous as men and that children were even more dangerous because they were unsuspected. He was also informed that the women were frequently better shots than the men and that the children were used to plant mines and booby traps. The first military operations in Vietnam in which he was engaged were those in which his unit was used for reconnaissance along trails and in seeking out and seizing enemy materials. During these missions the unit was continually subject to fire from unknown and unseen individuals. A number of men in the company had been killed or wounded and prior to the operation at My Lai Four they had never seen the persons responsible for the death or injury of their buddies. Consequently, they formed the opinion that civilians were in part responsible. Also prior to the operation at My Lai the unit had been used on some ambush missions and about the time of the TET offensive in 1968 the unit had suffered heavy casualties, 95% of which were caused by mines. During the course of an earlier operation one of the platoons of the company walked into a mine field with disastrous results. Without reciting details it can be said that the record shows a resentment by members of the command at the means and methods used by the Viet Cong and their sympathizers to decimate the American units and kill American soldiers.

On March 15, 1968 the company was part of a task force identified as “Task Force Barker”. This force was made up of three line companies selected from different units and placed under command of the task force headquarters manned by temporarily assigned officers. In the afternoon of that day there was a memorial service to pay respects to the men of the company who had been killed in battle. Immediately following the service the company captain, Captain Medina, assembled the company and briefed them on the operations of the following day. Generally speaking, he informed them that their mission was to attack and destroy My Lai Four and move on to other villages. They were to take extra ammunition and be prepared to fight aggressively and they were to be opposed by one of the best trained units in the Viet Cong Army. It was estimated that the enemy force would outnumber them by about two to one. Captain Medina further informed them that the reason the American troops had been driven out of My Lai on prior occasions was because the troops were not aggressive enough and enemy troops infiltrated to the rear of the units. Further orders by the Captain were to the effect that the troops would destroy the wells, burn the village and kill all living things. Captain Medina was asked by several of the enlisted men whether when he used the phrase “kill every living thing” he intended to include women and children. According to some of the witnesses his answer was “Yes, it means men, women and children” and that he did not want to see anything living when he came through the village. The record shows that Captain Medina admits having been questioned by enlisted men concerning the meaning of the phrase “kill every living thing” and he testified that he replied “I said, no, you must use common sense. If they have a weapon and are trying to engage you, then you can shoot back.” As can be seen, these instructions were subject to some misinterpretation, but it is beyond doubt that the majority of those testifying believed that Captain Medina’s orders were to kill every living thing in the village and this included men, women and children. The fact that Medina gave such an order is even more believable when it is considered that he participated at least to some extent in the shootings which followed. The military judge who presided over the trial of Petitioner certainly believed, and the record established, that the orders were given. Exactly what the order was is a matter that was hotly contested at the time of Petitioner’s trial.

The plan of operation was that the unit would move to the village by helicopters in either two or three lifts. The Petitioner’s platoon was to be flown in the first lift. The tactics decided upon were that when the troops exited from the helicopters they would “hit the ground” because the landing zone would be “hot”. As soon as possible two platoons would form a line and reconnoiter forward by fire. The first and second platoons were assigned to be the assault units and the third platoon was to be in reserve. The troops were to be aggressive and this would be an opportunity to “get even” with the enemy and to take revenge for recent heavy casualties.

On the following morning, March 16, 1968, the troops approached the village as planned. This was their first assault and a number of the men were replacements brought in just prior to combat, never having had any combat experience and not having participated in any rehearsals of assault under controlled fire. When the two platoons started forward the men commenced firing and they went through the village killing all animals, burning the hootches, and destroying food and water. During the ensuing operation there were civilians being killed by the members of all three platoons and confusion was everywhere apparent. This could be expected for Captain Medina claims to have occupied his command post on the perimeter of the village and remained there approximately two hours, believing that the firing was coming from the enemy. The village was described as about the size of a baseball field and there were some 100 American troops operating through its area. The company was under strength and Lt. Calley’s platoon had many of its technicians missing, and this required substituted assignments. It was,, therefore, necessary just before battle for him to assign a number of his enlisted men to new positions and arm them with weapons new to them and they were not proficient in the use of the new weapons.

About 18 months later, just one day before Petitioner was due to be discharged from the Army at Fort Benning, Georgia, charges were preferred against him. He later went to trial on four specifications which charged him with the murder of more than 100 occupants of the village of My Lai, the alleged victims not being identified by name, age or sex. By the time charges were brought against Calley most of the members of the company who participated in the assault at My Lai were no longer in the Army and, therefore, not subject to court-martial. The Army subsequently brought charges against some additional individuals who still remained in the Army, but all of these other cases were either later dismissed or the defendants were promptly acquitted. Of all those present at My Lai on March 16, 1968, only the Petitioner was convicted.

The Petitioner contests the validity of his conviction on a number of grounds, but the Court considers only three of these contentions to be of constitutional dimension and, therefore, appropriate for consideration by this Court on review. These contentions, which will be considered in the order listed, are as follows:

(1) The contention that the Petitioner was denied a fair and impartial trial because of massive adverse pre-trial publicity.

(2) The contention that the Petitioner was denied his right of confrontation with witnesses and was denied compulsory process for obtaining witnesses in his favor.

(3) The contention that the Petitioner was denied due process by being convicted on charges and specifications which were improperly drawn and illegally used by the prosecution.

The Court has had the benefit of counsel’s extensive briefs and oral arguments, and has made a complete review of the transcript of the record in the case, which consists of more than 5,000 pages, and has made a detailed examination of the mass of trial and appellate exhibits, which in themselves comprise 50 volumes containing more than 15,000 pages, and has viewed numerous television tapes, and now files this opinion as contemplated by the requirements of the Federal Rules of Civil Procedure.

I.

The Pre-trial Publicity Issue

The Petitioner was accused of participating in a “massacre” and the charge was levied as being one of murder. It was referred to trial as a capital case. It is in this context, therefore, that the determination whether the Petitioner received a fair trial in light of the pretrial publicity must be viewed.

Our nation’s courts have long acted to protect the individual accused from the harmful effect of unrestrained and uncontrolled news coverage. In 1892 the Supreme Court stated:

“It is vital in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate unbiased judgment. Nor can any ground of suspicion that the administration of justice has been interfered with be tolerated.”

Mattox v. United States, 146 U.S. 140 at 149, 13 S.Ct. 50 at 53, 36 L.Ed. 917 (1892).

The individual’s right to a fair trial, whether it be in a civilian court or in a military court, must in the constitutional sense imply at the very least that the “ ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel”. Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965). It matters little whether the unfairness that inures to the detriment of the hapless defendant results from the inability of the court which tries him to protect him from the prejudicial effect of the publicity or from the non-exercise of whatever power the court may have; the result is the same. It matters not whether the fallible venire men, be they military or civilian, are bombarded by press, radio, and television reports detailing the evidence and establishing the guilt of the accused as a result of the lack of power vested in the judicial body trying the accused oías a result of the non-exercise of the power held by the judicial officer. A conviction secured, in whole or in part, by use of information so secured “obviously constitutes a denial of due process of law in its most rudimentary conception”. Irvin v. Dowd, 366 U.S. 717 at 729-730, 81 S.Ct. 1639 at 1646, 6 L. Ed.2d 751 (1961), concurring opinion of Frankfurter, J.

Never in the history of the military justice system, and perhaps in the history of American courts, has any accused ever encountered such intense and continuous prejudicial publicity as did the Petitioner herein. Virtually every newspaper, periodical, magazine, television station, radio station, and every other news medium carried continuous and extensive interviews, reports, pictures, articles, statements, quotes, and editorial comments concerning the Petitioner’s role in the so-called My Lai incident.

An examination of the publicity itself, the actions taken (and not taken) to protect the Petitioner’s individual right to a fair trial, the lack of power inherent in the military judge and in the military system itself to protect that right, the lack of cooperation on the part of the United States Department of Justice in enforcing the judge’s orders, the inherently prejudicial nature of the publicity itself, and the ineffective nature of the protective restraints placed on witnesses and jurors prior to the court-martial lead me to the inescapable conclusion that the Petitioner was denied a fair trial as required by our nation’s Constitution. Stated otherwise, I find that the Petitioner was denied a fair hearing at his court-martial, not only because of the inherently prejudicial nature of the publicity to which the triers of fact were exposed, but because certain inherent defects in the military system which tried him existed, making it impotent to protect the Petitioner from the prejudicial publications.

On September 5, 1969 the Petitioner was charged with the murder of civilians as a result of the My Lai incident. There was a short initial period during which there was little or no media coverage of the charges against the Petitioner. However, on November 13, 1969 an article by Seymour Hersh triggered an avalanche of publicity concerning the incident and the Petitioner’s role therein. Within a period of a few days virtually every form of news service in the country, and indeed in the world, had deluged its hearers, viewers and readers with extensive and intensive coverage of the Petitioner’s plight. Not only was this publicity so inherently prejudicial as to require reversal, but the court-martial system itself had no means by which it could protect the Petitioner’s right to a fair trial.

In the military justice system there is no continuously sitting judicial officer who may act to protect the rights of the individual accused. Unlike the civilian system, in the military system there is no judge with the judicial powers to protect the individual until the case is referred to trial by court-martial. Under the Uniform Code of Military Justice there is no court until a convening authority convenes the court-martial and details a military judge. Before an accused’s case is referred to trial there must be a preferral of charges and an investigation. The investigating officer makes a recommendation as to the disposition of the case. Only after this recommendation and review by the convening authority’s legal officer does the convening authority refer the case to a general court-martial and only then is a court of special jurisdiction created. The convening authority refers the case to a court-martial convened by a “court-martial convening order” in which he has selected the court members, the triers of fact, the prosecutor, the detailed defense counsel, and the military judge. Thus a situation is created where an individual stands accused of a crime but there exists no judicial officer to whom he may turn for protection of his right to a fair trial until a later time when the charges are referred to trial by court-martial. In Petitioner’s case, during this period of time between preferral of the charges against him and the referral of the case with the concomitant appointment of a military judge, much of the highly prejudicial matters were first broadcast and published by the media. During this time Petitioner was without the means to protect himself, through no fault of his own, but because the military system did not provide a judicial officer to protect him. The impact of the publicity released during this period when there was no military judge cannot be doubted.

Calley was originally painted as a “mass murderer” involved in the unlawful killing of some 567 Orientals which number included men, women and children. The newspaper articles and television interviews quoted prospective witnesses and stated factual and legal conclusions. Some of the more common phrases used by the news media in describing the My Lai incident included the following: “massacre”, “atrocity”, “slaughter of non-combatants”, “dozens of women and children shot down in cold blood”, “wanton killing”, “an act of brutality that cannot have been exceeded in Hitler’s time”, “unjustified killing of innocent civilians”, “a barbaric act”. Calley himself was described as everything from a “mass murderer” to a “ghoul”. Set out below are some newspaper headlines which were typical of the treatment given the matter in its early stages:

VIETNAMESE SAY GI’s SLEW 567 IN TOWN

U. S. OFFICER IS ACCUSED OF MASS VIET MURDERS

LIEUTENANT A MYSTERY-CHARGED WITH MURDER

ARMY PROBING CHARGE GI KILLED 109 IN VIETNAM

POST LIEUTENANT CHARGED WITH MURDERING VIETNAMESE

GI MURDER REPORT IS PREPARED

VILLAGERS SLAIN. HOW MANY? BY WHOM?

LIEUTENANT’S PRAISE TURNS INTO PROBE

EX-GI’s LETTER ACCUSES OFFICER

CONGRESSMEN URGE PROBE INTO VIETNAMESE MASSACRE

LIEUTENANT FACES MASSACRE TRIAL

SHOCK IS EXPRESSED AT MASSACRE REPORT

THE MY LAI SLAUGHTER

WHAT ARE MASSACRE FACTS ?

MY LAI DEAD — 400 NAMES

LETTER PUTS MY LAI TOLL AT NEAR 600

The national television networks demonstrated an eagerness to interview prospective witnesses in the Calley case on their news broadcasts and elicit from them all types of statements, much of which was pure hearsay, but all of which was devastating to Calley.

The NBC Huntley-Brinkley Report of November 21, 1969 included an interview with former GI Michael Terry. The following exchange was an integral part of the interview:

“Q. Did you see any of the civilians lined up or stood up against a building or anything like that and shot?

TERRY: No, I didn’t see this. I had a friend that — that told me about this one incident with this Lt.- Calley. And he ordered one man — I believe his name was Torres — to shoot these — he gave him a machine gun and he ordered him to shoot these people and he shot about half of them, and he wouldn’t do it any more, so Calley grabbed the machine gun and shot the rest of them.”

This is clearly hearsay and would not be admissible in any court.

Another example of this type of hearsay was broadcast during the NBC Huntley-Brinkley Report of November 17, 1969, which featured an interview with former soldier Ronald Weigner, who related stores told to him by alleged participants at My Lai:

“WEIGNER: They told me that they had moved out from their base camp one morning early late in March, and that they had moved to this village that the GI’s referred to as Pinkville, and that they had gone through and massacred the villagers, wiped out everybody.

Q. Specifically, what kind of thing were you told about?

WEIGNER: Specifically, they told me that they had seen individuals, individual soldiers, and some of the officers, going through the village and as they swept through the village if there were people standing by the side by the trail through the village, they just gunned them down.”

On November 17, 1969 the Columbia Broadcasting System TV evening news interviewed ex-GI Ronald Ridenhour, the individual ■ whose letters containing hearsay allegations led to the Army investigation into the My Lai incident, and in response to the news correspondent’s question concerning what he had charged in his letters to members of the Government, Ridenhour responded:

“As specifically as I can tell you, the charges were that an American line company had swept through this village and that there were a great, great number of inhabitants of the village who were murdered, who were slaughtered or massacred or killed, whatever, without provocation.”

Of course, the daily newspapers also interviewed Ridenhour and in the newspaper interviews Ridenhour actually named Lt. Calley as being one who was involved in the incident which Mr. Ridenhour ■ characterized in the same breath as being “murder”, “slaughter” and “massacre”.

The desire of news representatives to publish statements of prospective witnesses took them to Viet Nam, where they interviewed “survivors of the assault on My Lai Four”. On November 18, 1969, the American Broadcasting Company TV evening news reported that inhabitants of the hamlet near My Lai had been interviewed by their representative and that they had stated that 567 civilians were killed without provocation, and the newscaster stated that statements from these survivors had been taken live from the inhabitants on the scene. These interviews, in which Calley’s name was freely bandied about, were conducted by the TV anchorman in front of a large map of Vietnam on which blotches of blood appeared, obviously for the purpose of accentuating the horror of the story.

The CBS news broadcast of the same date reported similar stories including live interviews with the Vietnamese “witnesses” who claimed to be survivors. Since the Vietnamese who were interviewed spoke no English, the news correspondent told his audience “what the witnesses had said”. He told his audience that one of these survivors was a man 48 years of age and that the man “had said” that the Americans came to his village three times:

“Two times they gave candy to the children and the villagers gave the soldiers water. But the third time, he explained, the Americans moved everybody out of their homes, lined them up in groups and opened fire on them. He said he survived because he was under a pile of bodies and was taken for dead.”

The interviewer then went on to say that this “witness” said he knew of no reason for the shooting and the villagers were unarmed and had not provoked the Americans.

The National Broadcasting Company TV news of the same date carried similar stories and similar interviews of those who allegedly had survived the My Lai incident and who, the correspondents said, gave details about “what they knew” about the incident which the correspondents in turn related to the TV audience.

The newspaper correspondents were, of course, not being outdone by television, and they found their own “witnesses” and quoted what their “testimony” would be if called to testify. Some typical newspaper headlines at this stage having to do with this feature are set out below:

SAW GI’s GUN DOWN 100 — VILLAGE SERGEANT SAYS

SERGEANT SAYS HE SAW CIVILIANS SLAIN

PEASANT FARMER RECALLS DAY OF THE MASSACRE

SURVIVORS CLAIM US TROOPS KILLED OVER 300 VIET VILLAGERS

THREE VETERANS TELL OF HAMLET SLAYINGS

PEASANT TELLS HIS VERSION OF SLAYINGS

VILLAGE SHOT UP BAD

ONLY CHICKENS LEFT ALIVE

VIET SOLON SAYS WOMAN SAW MASSACRE

THE PINKVILLE CURE

GI’s NEEDLESSLY KILLED 450, SAIGON REPRESENTATIVES SAY

VIET VILLAGERS CHARGE GI’S “MOWED US DOWN”

MY LAI SURVIVORS RECOUNT THEIR STORIES OF GI SWEEP

GIRL DESCRIBES FINDING KIN DEAD AT MY LAI

By mid-November, 1969 Ronald Haeberle, a former Army photographer, had copyrighted and sold for $19,500 some pictures to Life Magazine which were alleged to represent views of the “dead bodies” at My Lai. Mr. Haeberle made an additional $35,000 by sales of his pictures to Time Magazine and certain newspapers and overseas publications. These horrifying full-page color pictures were published in gruesome detail by Life and later by many newspapers and other periodicals both in this country and throughout the world, and Calley’s name and the fact that he was facing court-martial was frequently mentioned in connection with them. On November 20, 1969 these pictures were displayed by CBS-TV news along with comments by newscaster Harry Reasoner. Each photograph was displayed in close-up detail, and to increase the shock effect of the display there was absolute silence while the pictures were on the TV screen. On that same date NBC-TV likewise dealt with the Haeberle photographs. Some of these pictures were the very exhibits which were later used by the prosecution in the Calley trial and constituted some of the most damaging ¡evidence presented by the prosecution.

Thus, we have a situation where the prosecution’s evidence is being broadcast, published and displayed to the world (including all prospective jurors) before there is even a court constituted for the trial.

As might be expected, following the publication of the Haeberle photographs there was an outpouring of expressions of indignation ' by news commentators, editors and public figures. Some typical newspaper headlines of the date are set out below:

LIFE BUYS PICTURES OF SLAYING

MASSACRE COMPARED TO NAZI ■ MURDERS

MOB BURNS US FLAG IN LONDON

PINKVILLE SYMBOLIZES BRUTALISM

CAN’T CONDONE MURDER

BRITAIN MAY CONDEMN US IN MASSACRE

“SHOCKED AND SICK” OVER MY LAI

GRIMLY, THE EVIDENCE MOUNTS

“ABHORRENT” TO THE US

WHAT KIND OF PEOPLE ARE WE ANYWAY?

MASSACRE ATTACKED BY CLERGY

RIVERS CALLS CHARGES “ONE OF DARKEST DAYS IN MILITARY HISTORY”

THE COURT-MARTIAL ISN’T ENOUGH

JUST SPEED THAT TRIAL!

On November 24, 1969 the Columbia Broadcasting System presented a TV and radio “in person” interview with Paul Meadlo who said that he was one of the troops present during the My Lai incident. Meadlo later appeared as a prosecution witness at Calley’s trial and was probably the most damaging witness to appear against him. On this TV and radio appearance he rehearsed for the viewers and listeners (including all prospective jurors) what his testimony would be. The following is a portion of what he said during the interview:

“So we moved on into the village and we started searching out the village and gathering up the people and running them to the center of the village.

Q. How many people did you run up?

A. About thirty-five or forty-five people gathered in like I say, the center of the village, and we placed them in there and it was like a little island in the center of the village, I say.

Q. What kind of people ? Men, women, and children ?

A. Men, women, children,—

Q. Babies ?

A. Babies.

And, we all huddled them up and made them squat down and Lieutenant Calley came over and said you know what to do with them, don’t you? And I said yes. So 1 took it for granted that he just wanted us to watch them and, he left and came back about ten or fifteen minutes later and said how come you ain’t killed them yet, and I told him that I didn’t think he wanted us to kill them that he just wanted us to guard them. He said no, I want them dead.

Q. He told this to all of you or you in particular?

A. Well, I was facing him but the other three or four guys heard it. So, he stepped back about ten or fifteen feet and started shooting and he told me to start shooting and so I started shooting and I fired about four clips into this group.

Q. Four clips from your—

A. M-16.

Q. And, there is about—

A. I carried seventeen rounds to each clip.

Q. So, you fired something like sixty or seventy shots? And you kill how many?

A. Well, I just sprayed the area with my automatic. You don’t know how many you kill because it come out so doggone fast. I might have killed ten or fifteen of them.

Q. Men, women and children ?

A. Men, women and children.

Q. And babies?

A. And babies.”

(Emphasis added.)

The Meadlo interview became hot property among the news media and similar interviews of Meadlo were broadcast on other networks. Some of the newspaper headlines following the Meadlo interview were as follows:

FORMER GI TELLS OF KILLING VILLAGERS

FORMER PRIVATE: HE SAID KILL, NOT GUARD

UNIT TOLD TO DESTROY, EX-GI SAYS

ANOTHER EX-GI REPORTS SHOOTING V

THEY WERE THERE — SAW FURY IN VIET NAM

A few days after the Meadlo interview CBS TV news presented a live interview with another prospective prosecution witness, a Sgt. Bernhardt, who described everything that he said happened at My Lai, and here again the Haeberle color photographs were displayed during the interview and specific reference was made to Calley, calling him by name. Sgt. Bernhardt’s “testimony” was also widely reported by the press.

Other persons who claimed to be “eye witnesses” were also shown on television and quoted in the press, some of whom did not later appear at the court-martial of Petitioner. For example, Charles Gruver, One of the witnesses Calley sought to subpoena as a defense witness for his trial, gave an interview to the press and he was the man who was named by Ridenhour as being the source of some of his hearsay information, yet Calley’s attorneys were unable to secure Gruver’s testimony at the trial because of the Army’s alleged “inability” to secure his presence.

There was mounting criticism of the news media for interviewing prospective prosecution witnesses and broadcasting their testimony and in response to this criticism the Columbia Broadcasting System, on November 25, 1969, stated that the “free press — fair trial issue [raised by its critics] does not apply because Lt. Calley will be tried, not by civilian jury but by a military court”. This naive assertion presupposes that simply because a man wears an Army uniform he is not subject to being influenced by pre-trial publicity as would a civilian. Indeed, in the circumstances of this case where it appears (as will be later shown) that some of the most damaging of the pre-trial publicity consisted of statements and pre-judgments being made by persons occupying high positions in the military command, including the Commander in Chief himself, it could be more reasonably supposed that members of the Army who would later constitute the trial jury would be more susceptible to prejudicial publicity than would their civilian counterparts.

While the television networks were almost daily presenting a new prosecution face who pointed the finger at Calley the newspapers were giving generous coverage to their statements and were digging up witnesses of their own.

On November 17, 1969 the New York Times News Service interviewed an alleged survivor of the My Lai incident and distributed to newspapers throughout the country the man’s story of what he said happened at My Lai in great detail. The name of Calley was prominently mentioned during the course of the interview and the newspaper account concluded by stating that when this witness was informed that the United States Army was prosecuting Calley for murder the witness said that he “stood ready to go to the United States to testify at a court-martial”. The clear implication of this was that the witness was to testify against the Petitioner and was willing to do so and that the statement published was what his testimony would be. The fact is that the witness did not appear at the court-martial and we suppose this was hardly necessary since all prospective jurors had already had the benefit of his testimony.

Of course, the news magazines did not overlook the opportunity to add to the hue and cry. As each week passed these publications repotted, reviewed, rehashed, resummarized, recapsulated and repeated everything that had come out the previous week by way of television, newspapers, or simple street corner gossip, and always the name Calley was the center of attention. For instance, Newsweek Magazine in its issue of November 24, 1969 published a story about what had been developed about the My Lai incident and the title of the article was “The Calley Case”, and underneath that main heading there was a subheading which read “War crimes are as old as human combat”.

Prominent Members of Congress were eager to publicly associate themselves with the prosecution and give hearsay evidence which was repeated in the press. On November 25, 1969 representative Lionel Van Deerlin stated that:

“According to my informant, that the next village they reached they would get some target practice.”

He termed the assault at My Lai “a case of unprovoked attack”. In a speech in the United States Senate Senator Young called the acts at My Lai “murders”. Also in the Senate, Senator Schweiker described the incident as “a simplistic, deliberate act of inhumanity — one of the darkest days in American history”. Since Calley was the one who had been charged it was not difficult for the public to relate these remarks to the Calley case.

On November 26, 1969 Secretary of the Army Resor appeared before a Congressional committee and it is interesting to observe that in his remarks to them he started out by saying:

“As you know, it is not normally the policy of the Executive Branch to disclose information pertaining to ongoing criminal investigations especially when, as in the case here, new and perhaps conflicting evidence may come to light as the investigation continues. In addition, there has already been far too much comment in the press on matters of an evidentiary nature, and we are very concerned that prejudicial pre-trial publicity may make it difficult to accord the accused in any prosecution a fair trial.” (Emphasis added.)

But having so said, the Secretary then proceeded to tell the committee all about the details of the alleged incident and even exhibited picture slides, etc., for the edification of the committee and told the committee that the Army intended to prosecute. This was on the day after the Army court-martial was first convened for the consideration of the Calley case and, of course, his recital received wide publicity at the same time the first convening of the court was being publicized. In reporting Secretary Resor’s comments a typical newspaper headline the following day was as follows:

VIET DEATH SLIDES STUN COMMITTEES

On that same date, November 26, 1969, in a news conference at the White House Press Secretary Ziegler in a press interview, specifically stating that he was speaking for the President of the United States, made the following pronouncement :

“An incident such as that alleged in this case is in direct violation, not only of U. S. military policy, but is also abhorrent to the conscience of all the American people. . . . Appropriate action is and will be taken to assure that illegal and immoral conduct as alleged be dealt with in accordance with the strict rules of military justice.”

Also on that date Mr. William P. Rogers, Secretary of State, was interviewed on a national television network and when asked about “the alleged massacre of Vietnamese civilians” made this comment:

“I think that if the allegations are true it is a shocking, shocking incident and all we can do is to court-martial any responsible persons and to show the world that we don’t condone this. Obviously, if anything of this kind happened, it is in direct contradiction of the orders . . . It is a tragic event, if it is true. And certainly there is indication of some truth at least. So we are highly concerned; it is a shocking thing.”

Obviously, since Calley was already being court-martialed Rogers was saying that he considered Calley a person responsible. And then he accentuates that by expressing his opinion that there is truth in the allegations made against Calley.

The first date on which the military judge had authority to sit and take any action in the Calley case was November 25, 1969, and although it is fundamental in our American system of justice that a defendant is to be presumed innocent until proven guilty by competent evidence in a valid court proceeding, there were many representatives of the news media who were by that time telling the American public (including all prospective jurors) that the “facts” as developed by the news media and published by them had overcome that presumption, and indeed, that they would be justified in presuming that Calley was guilty, some even insinuating that to give the man a trial would be sort of a superfluous act.

The Chicago Tribune commented editorially on November 29, 1969:

“The My Lai atrocity charges have not been proved, altho the presumption of guilt is great.” (Emphasis added.)

In his nationally syndicated column published in many newspapers throughout the country on December 4, 1969, James J. Kilpatrick said:

“The damning facts are now unfolding one by one. It is tempting to say that “we don’t know” what happened at My Lai that day in March, 1968. True; but true only in a lawyer’s eye.”

Newsweek Magazine had this to say in its edition of December 15,1969:

“Deliberate massacre of scores of women, children and old men by American soliders in a South Viet Nam hamlet? Impossible. Unbelievable. But the grisly photographs, the many interviews with eye witnesses, the memoirs of participants command belief. There is no place to hide from evidence that it happened.” (Emphasis added.)

What Newsweek was saying here is that the photographs and the interviews of prosecution witnesses and the memories of participants, all of which had been published by the news media, prove the prosecution’s case, because “deliberate massacre” is what was charged.

On December 2, 1969 the Atlanta Constitution said editorially:

“But the main facts of the incident, based on actual photographs and reports from individual soldiers on the scene, are not really in dispute.”

On November 26, 1969 the New York Times News Service distributed the daily column of James Reston, in which he said:

“The main facts of this tragedy are not in dispute ... so there is a question which is now going to the military courts. Is Paul Meadlo, of Terre Haute, Ind., this tragic and limited human being to blame? Or William L. Calley, Jr., the hard-faced lieutenant, who gave the orders ?”

Since Meadlo never had charges brought against him we are not left with much choice.

Finally, we believe that the Montgomery Advertiser in its issue of December 4, 1969 made an honest appraisal of the situation when it said:

“We are inclined to the view that Lt. Calley has been tried and found guilty in news accounts.”

In summary, the American public (including all prospective jurors), and indeed the entire world, had by that time been so impregnated with the thought of Calley’s guilt that it could well have been assumed that all that would be necessary would be for the court-martial to convene and for the Judge to announce: “Bring the guilty rascal in and we will give him a fair trial.”

The avalanche of prejudicial pre-trial publicity in this case and the dangers inherent therein were recognized by the military judge on the first day on which the court was empowered to sit, November 25, 1969, and he made a finding on that date that the news media had so widely publicized the alleged events and the statements of witnesses that there was a “clear and present danger” to the constitutional right of the Petitioner to a fair trial and due process of law, and on that date, in an unusual motion, both the prosecution and the defense joined in asking for the issuance of a show cause order to segments of the news media prohibiting further disclosure of statements made by any individual allegedly connected with the My Lai incident. This joint motion recited that:

“This motion is based upon the repeated and unprecedented newspaper, television, radio and periodical accounts and pictures purporting to represent evidentiary accounts of alleged witnesses to the case now pending before this court and representing a clear and present danger to the constitutional and inherent rights of 1st Lt. William Calley, Jr. to a fair trial under the Fifth and Sixth Amendments to the United States Constitution, and to his right to restrict prejudicial news reporting under the Ninth Amendment of the United States Constitution, to the rights of the United States Government to a fair trial and to the rights of both parties to enjoy military due process of law.”

Numerous newspaper clippings, summaries of television broadcasts, and other evidentiary items, were submitted in support of the motion. The military judge denied the motion and stated:

“I frankly believe that the responsible news media are capable of policing their own activities.”

During this hearing on November 25 the military judge in a futile attempt to protect the Petitioner from prejudicial publicity did order all prospective witnesses not to discuss their testimony or to disclose any other evidence to anyone except counsel in the case or in related proceedings. However, he did this fully realizing that he did not have the power to enforce those orders. In fact, his orders were repeatedly violated. He also issued an order to the prospective court members (jurors) instructing them to avoid contact with media reports of the My Lai incident and to refrain from discussing the case. Unfortunately, only one of the six members who eventually sat on the court as jurors was subject to this order since the other five members were detailed one year later by the convening authority.

Three days later in another pre-trial hearing the military judge took note of the fact that he had evidence before him of wilful violations of the order which the court had issued to witnesses not to allow themselves to be interviewed and of the fact that representatives of the news media were enticing witnesses to do so, but he then proceeded to say that:

“1. The possibility of prejudice to this defendant’s constitutional rights to a fair trial is real and apparent.

“2. It is recognized . . . that the courts-martial system is a federal jurisdiction, but it is not a part of the federal judiciary system.

“3. Thus as a matter of law this court does not possess the pre-trial .power of contempt or any other judicial remedy to enforce the mandates of the United States Supreme Court as that court provided in Sheppard v. Maxwell, 384 U.S. 333. [86 S.Ct. 1507, 16 L.Ed.2d 600]”

He then observed that he thought he had done everything within his power to safeguard the rights of the defendant and he concluded his findings by saying that in view of the alarming situation:

“ . . . counsel are directed to seek appropriate relief from a court within the federal judicial system or elsewhere as deemed necessary.”

A joint petition was filed by the prosecution and defense counsel with the United States Court of Military Appeals, but the relief prayed for was denied by that court on the basis that the trial judge “could protect the petitioner”.

On December 8, 1969 the military judge, over defense counsel’s objection, ruled that the publicity surrounding the Petitioner’s case had subsided and he thought the danger to a fair trial was past. This determination was made in spite of the fact that defense counsel presented evidence showing further interviews with witnesses on television, on radio and in the newspapers. It will clearly appear hereafter in this opinion that there was in fact no relaxation of the news coverage or of the danger and prejudice it brought to bear on the Petitioner’s case. When defense counsel introduced exhibits showing recent public statements made by the President and other members of the Defense Department the military judge stated “But I couldn’t stop that”. It is made obvious by the military judge’s own admission and by everything else in the record that his efforts to control witnesses and media between the dates of November 25, 1969 and December 8, 1969 availed nothing and is a perfect demonstration of the impotence of a military judge in the military system when civilian outsiders and authorities senior to the military judge within the military system decide to publicize matters which are prejudicial to an accused.

On December 16, 1969 the military judge again determined that some potential prosecution witnesses were violating his orders by granting interviews, and again he proclaimed that he was helpless to protect the Petitioner as could be done by courts in the federal judicial system under the Sheppard mandate. But he did direct trial counsel to notify the Justice Department of the violations and ask the assistance of the Justice Department in enforcing his orders to prospective witnesses. Trial counsel did, on December 17, 1969, follow the direction of the military judge and wrote to then Attorney General Mitchell, calling the Attorney General’s attention to the orders which had been issued by the trial judge concerning disclosure of evidence and calling his attention to the fact that it was clear that the judge’s orders were being violated by certain witnesses and by certain segments of the news media, and enclosing with the letter matters in support of the allegation that the violations were occurring. The letter stated that these matters were being called to the Attorney General’s attention because of the military judge’s lack of authority over civilians and with the request that the Attorney General initiate possible prosecutions by the Department of Justice in order that Calley’s rights to a fair trial would not be jeopardized, etc.

Not only did the Attorney General fail to take any action whatever, he even neglected to acknowledge receipt of the communication from the military court

So, the media continued on their merry way.

On November 28, 1969 Ronald Haeberle appeared as a guest on the “Today Show”, which is a daily early morning television network presentation. Haeberle was interviewed by Hugh Downs and during the course of the interview Downs displayed all of Haeberle’s pictures in color with comment, these being the same pictures which were concurrently appearing in that week’s issue of Life Magazine. Here is part of the interview which the public had with breakfast on that date:

DOWNS: Now, the pictures that you took here, these are women and children?

HAEBERLE: Yes.

DOWNS: You said they were shot?

HAEBERLE: They were shot immediately after I took that picture.

DOWNS: Here is a picture now of a row of bodies. You said you saw more than one instance of this ?

HAEBERLE: Yes.

DOWNS: Did you take any pictures of American G.I.’s shooting?

HAEBERLE: I believe I did but that would have been on the black and white film which I turned in to the Public Information Office when I returned back from this operation.

DOWNS: The caption here describes a boy falling on a smaller boy to protect him. They both wound up dead?

HAEBERLE: Yes.

DOWNS: These and the old man?

DOWNS: This is another page of pictures. This is certainly not breakfast material.

DOWNS: And, here again, what would be the feeling that someone this age could be a Viet Cong? (pointing to a picture of a small boy)

HAEBERLE: Well, there was an older man with these two small children. When the G. I. opened up and fired the bullets naturally cut down the small children also. There was no attempt made to just hold them and interrogate them. They were just automatically shot.

DOWNS: You are telling me that you saw this happen but did you — did you photograph any G. I.’s actually shooting — do you think any of that is on the black and white roll, where actual — the actual act was—

HAEBERLE: I believe I did shoot a few shots from behind the G. I.’s shooting straight ahead.

DOWNS: Do you think, Ron, that this is an isolated incident or do you think it is representative of something that has been going on in Vietnam?

HAEBERLE: I have heard instances where things have happened like this before but not on the scale like this.

DOWNS: What do you think would be the outcome — do you care to conjecture on what the net result will be, if there is a trial? The specter has already loomed whether or not the publicity on it would affect the rights of the accused. Is this going to inhibit your talking about it in any way?

HAEBERLE: No, I don’t think it will unless the Government asks me to keep quiet about this.

DOWNS: The Government has not done so yet?

HAEBERLE: Not yet, no.

DOWNS: Thank you for being with us this morning.

Ron Haeberle is the photographer whose color pictures now appear in this week’s Life Magazine, the December 5th issue.

Thank you for appearing with us.

It will be noted that the military judge’s order had been issued three days before this interview, yet it was obviously having no effect.

On December 1, 1969 the American Broadcasting Company continued its intensified coverage by reporting on its network the allegations of another alleged survivor-witness of the incident. The correspondent, Don Baker, who was pictured as reporting from Vietnam stated:

The man who first told me about the incident at My Lai is not here today. For some reason he was called back to province headquarters. No one knows why. But Ha HeQui (phonetic spelling) was also there at My Lai that day nearly two years ago. Ha HeQui is forty-four. She looks sixty-four. Ha HeQui’s twenty-four year old daughter died there and her son had a part of his hand shot away. Ha HeQui was shot in the head. She said it was the American soldiers that shot them.

Then an interpreter said:

She doesn’t know why. They just called them to come and sit down and they sat down, including a monk, there was a monk there and they began to shoot them all.

The correspondent goes on to interview other people who allegedly say that they saw the “massacre” occur, including one boy who says he saw all of the members of his family dead. The correspondent sums up the story this way:

All the people of My Lai tell the same story, that their hamlet was destroyed deliberately by Americans. This, they say, is one of the graves of one of the victims of the alleged My Lai incident. There are five graves here. Scattered all around there are many more. But it has been two long years and nature has reclaimed, as you can see. Two years is a long time in South Vietnam.

On this same date the Columbia Broadcasting System carried a series of interviews with the then present members of C Company (Calley’s old company) and compared their actions with those allegedly involved in the “atrocity” in March of 1968. The interviewer refers to the incident as “the mass slaughter of innocent civilians”. The gist of the interviews was that the present members of the company were ashamed of the history of the company and were simply doing their job as soldiers, following orders, and emphasis was placed on the statement that those orders did not include the “mass slaughter of innocent civilians”.

In its issue of November 28, 1969 Time Magazine devoted considerable space to recounting all of the “testimony” from the various “witnesses” who had been interviewed, the caption of its article being “The My Lai Massacre”, and Calley’s picture was displayed immediately under the heading, and in its issue of that week Newsweek Magazine did much the same thing.

In the issue of Life Magazine for December 1, 1969 there was published the “full” story of the My Lai incident complete with all of the alleged eye witness accounts and the full-page color photographs purchased from Haeberle, and at the conclusion the magazine made a judgment with regard to the matter. Instead of abating after the order of November 25, the coverage intensified.

While the many articles and broadcasts dealing with the My Lai incident sometimes made mention of the fact that an entire company of men was involved in whatever happened, the focus was nevertheless always on Calley and he was inevitably singled out as the one to be saddled with responsibility. On December 16, 1969 Walter Cronkite, on the CBS evening news broadcast, said:

“The principal figure in the My Lai massacre is Lt. Calley, charged with the murder of more than one hundred South Vietnamese civilians.”

And segments of the press not only recognized that Calley was being isolated and prosecuted by the press to the extent that it might be impossible for Calley to have a fair trial, but they actually indulged in self-praise of their prosecution of the man. Typical of this attitude is an editorial in the Washington Post of December 4, 1969, in which the writer admits that the massive publicity might make it impossible for Calley to obtain a fair trial, but then quotes in obvious self-glorification from an editorial which had appeared in an Italian newspaper dealing with the Calley case and the coverage being given it by the American press, which read as follows:

“The civilization of a people is judged above all by the courage and the severity with which it isolates certain individuals and denounces their crimes. The American press has done and is doing its duty.”

Certainly the American press had isolated Calley, certainly it was dealing with him with severity, certainly it was denouncing him in practically every issue, and certainly it was making it impossible for Calley to obtain a fair trial. We have never conceived this to be the duty of the press, but if it is the duty of the American press, it then becomes the duty of the judicial system to see to it that any conviction so obtained is set aside.

A prime example of the manner in which Calley was isolated and dealt with severely is the December 5, 1969 issue of Time Magazine. In this issue Time devoted its front cover to a full-page col- or picture of Calley with the question

“THE MASSACRE

Where Does the Guilt Lie?”

transposed across the upper left portion of the page and the identification

“Lieut. William Calley, Jr.” appearing at the bottom of the page beneath his picture. In other words, Time asks the question — who is guilty? And then answers its own question on the same page for the benefit of its millions of readers (including all prospective jurors).

Only an imbecile could fail to get the message.

Because this is a good example of the point being made, a somewhat inadequate reproduction of this magazine cover is here set forth, the reproduction not being in color.

Inside the cover of this issue of Time there is page after page of summarization of interviews with “witnesses”, quotations from prominent persons condemning the action, reproduction of gory and inflammatory pictures, and a long biographical sketch of Calley. While purporting to be a factual summarization, the article contained strong editorial comment. For instance, it is stated:

The central platoon (apparently about thirty men), commanded by Lieut. Calley, headed into the village. It met no resistance on the outskirts. But despite the lack of enemy fire, Calley’s men in less than twenty minutes ignited “hootches” and chased all the villagers — whether fleeing, standing or begging for mercy — into groups, and shot everyone. All were either elderly men, women or children. Estimates of the dead ranged from a hundred nine to five hundred sixty-seven.

Did any soldier try to stop the slaying? One saw what was happening, then shot himself in the foot so he could get out of it — and he was the only U. S. casualty of the day’s action. At one point a Private stopped firing his M-60 machinegun into a group of twenty people, refused to resume on Calley’s orders — so Calley took the gun over and blasted away.

The magazine drew the conclusion that all the persons killed were “defenseless civilians” and sought to glorify some of the witnesses who were to later appear against Calley and to sustain the testimony of some witnesses who were later to deny that Captain Medina had given the order to carry out the operation.

What Time does here is ask the question — who is guilty? Then presents all of the “evidence” adverse to Calley and makes a judgment that Calley is the one, and, so that no one may misunderstand, says so in words and in pictures.

In the issue of Newsweek Magazine three days later, December 8, 1969, the same technique is used as was used in the issue of Time of December 5. Newsweek devoted its front cover to a full-page picture of Calley, identifying him by name, and interposed over the upper righthand corner the caption

“THE KILLINGS AT SONG MY”. Then there followed much of the same matter that appeared in the Time columns previously referred to.

On December 6, 1969 Life Magazine, resorting to what can only be described as surrealistic sensationalism, published a multi-page article which was headed

“THE MASSACRE AT MY LAI” with sub-headings in large lettering at the top of the first page of the article reading “The Exclusive Pictures, Eyewitness Accounts”, then there were reproduced in large detail the pictures allegedly taken by Haeberle, together with a recount of all of the statements of the alleged “eye witnesses”. The article carried statements alleged to have been made by Calley at the time of the incident. Taking note of the fact that the South Vietnamese Government had issued a statement in defense of the American troops, the South Vietnamese Government regarding the incident as being “an act of war” instead of a war crime, Life stated:

“This is not true. The pictures shown here by Ronald Haeberle, an Army photographer, who covered the massacre, and the interviews on the following pages confirms a story of indisputable horror — the deliberate slaughter of old men, women, children and babies.” (Emphasis added.)

The total effect of these pictures and the accompanying accounts given by those interviewed, and the editorial comment throughout the article, can be fully comprehended only by an actual examination of this issue of this magazine. It is all in the record. There can be no question, however, that Life Magazine had concluded and intended for its readers (including all prospective jurors) to conclude that innocent civilians had died at My Lai and that Calley was in large part responsible for it. The article was capped off with interviews of alleged survivors of the alleged “massacre”. The devastating effect of this article and those similar to it on Calley’s de: fense cannqt be denied. No person, however honest minded he might try to be, could avoid the lasting emotional impact of this article and the accompanying photographs.

During the weeks following the date when charges were brought against him Calley, either by personal choice or on the advice of counsel, had declined to be interviewed by the press or to make any statements to the press, which was his constitutional privilege, and so long as he remained on the military reservation at Fort Benning he was protected from press intrusion.

On December 5, 1969 he was required to appear before the Army Investigating Committee looking into the My Lai incident, and this appearance had to be made at the Pentagon in Washington. So, this meant that the press and television representatives were going to have their chance to “get at him”. As he entered the Pentagon on that date photographers, reporters and curiosity seekers in large numbers were lying in wait for him, much as might be expected of a pack of wolves stalking an injured animal. As he entered the building questions were shouted at him, such as,

“Hey, Calley, did you really kill all those people?”

“How does it feel to shoot babies?”

“Why won’t you talk ?”

And some of the crowd jeered him in much the same fashion as history tells us was done by the spectators at the Roman Circus when slaves and captives were tossed to the lions for their entertainment. When Calley maintained his silence the commentators on television and in the press made mention of that fact, commenting that he was “one of the few men in any way involved in the case who has not publicly talked about it”. They drew the contrast between him and those who were talking freely and all insinuated that he had “something to hide”. On the CBS evening news of that date Calley was shown entering the Pentagon and the news commentator stated that Calley was obviously “showing the pressure” and that Calley’s attorney had advised him not to make any statement, but instead to claim his right under the Fifth Amendment and remain silent because his statements “might b