Tuesday, August 17, 1971
PROSECUTION SAYS THAT MEDINA 'CHOSE NOT TO INTERVENE' AT MYLAI
By HOMER BIGART
Special to The New York Times
FORT McPHERSON, Ga., Aug. 16
Capt. Ernest L. Medina did not order the mass killings at Mylai but he "calculatingly chose not to intervene" while his troops were killing unarmed civilians, the military prosecutor said today in opening the Government's case against the 34-year-old Mexican-American officer.
The prosecutor, Maj. William G. Eckhardt, made it clear that the Government's strategy in seeking Captain Medina's conviction on a charge of premeditated murder would rely heavily for precedence on the World War II trial of Gen. Tomayuki Yamashita.
General Yamashita, who commanded Japanese troops in the Philippines, was hanged because he failed to prevent atrocities against prisoners of war and civilians although there was no evidence that he ordered the atrocities or even knew of them.
Major Eckhardt said the Government would prove that Captain Medina knew that noncombatants were being rounded up and killed and did nothing to halt the "carnage." By failing to intervene, Captain Medina intended to give "protection and encouragement to his men in the perpetration of murder," the prosecutor charged.
The long-delayed start of evidence in the trial of Captain Medina, the second officer to face court-martial in the Mylai killings, was lacking in tension and drama. Major Eckhardt devoted only 11 minutes to his opening statement; F. Lee Bailey, the chief defense counsel, used 16 minutes to reply, and the testimony of the first three witnesses called by the Government failed even to place Captain Medina at the scene of the shootings.
Spectators in the tiny courtroom on this dark and humid day fought off drowsiness as the interrogation dragged on with barely a mention of the defendant. As court recessed, Mr. Bailey remarked with glee that today's witnesses might just as well have been called by the defense.
"This is the first criminal case I've seen where the defense witnesses go on first," he said.
Besides being charged with responsibility for the slayings of "not less than 100" civilians in the South Vietnamese of Mylai on March 16, 1968, Captain Medina is also charged with the premeditated murder of a woman and a small boy, and with assault upon a prisoner.
Replying to the Government, Mr. Bailey told the five-man military court that the captain issued a cease-fire order as soon as he heard that civilians were being shot and that the order was issued :in language that will turn this courtroom blue."
He defended the shooting of the woman. Captain Medina had stern orders from his brigade commander to round up enemy weapons, Mr. Bailey said, so when a helicopter dropped a smoke signal to indicate the location of an armed suspect, the captain hurried to the scene. He saw a Vietnamese in black pajamas, the lawyer said, and it turned out to be a woman. There was no weapon he said. Captain Medina was turning back when he saw "what he believed to be movement" by the woman, so he "instinctively turned and shot," Mr. Bailey went on.
Captain Medina immediately notified the brigade commander, Col. Oran K. Henderson, of the incident Mr. Bailey said, and Colonel Henderson radioed back: "I understand; these things happen."
Captain Medina was also acting on instinct, Mr. Bailey said, when he ordered his men to shoot at a Vietnamese figure moving in the grass. He countermanded the order and lowered his rifle when he saw that the target was a child, Mr. Bailey said. But it was too late and someone else shot the boy.
As for assaulting the prisoner, Captain Medina merely fired twice over the head of the man to frighten him and extract intelligence, Mr. Bailey asserted. He said the captain had been told by a Vietnamese interpreter that the prisoner was "a ranking member of the Vietcong" who might know the whereabouts of the 48th Vietcong battalion, which had eluded Captain Medina's men at Mylai.
The captain never intended actual harm, according to Mr. Bailey, and as an expert rifleman he "placed the shots exactly where he wanted." Then he put his rifle on safety and "set it on the ground so that the suspect was looking straight into the snout of it," a trick that inspired the prisoner to talk, Mr. Bailey said.
The first Government witness was Ronald Haeberle, the former combat photographer whose pictures of the Mylai victims shocked the nation. He said that he had witnessed some of the shootings but could not place Captain Medina on the scenes when the killings occurred.
The other witnesses, James J. Dursi of Brooklyn and Gregory T. Olsen of Portland, Ore., were also unable to recall the captain's presence at the mass shootings.
None had heard Captain Medina give any order to shoot women and children. First Lieut. William L. Calley, a platoon leader under the captain who was convicted in March of the murder of 22 persons at Mylai, said he had acted on orders from Captain Medina.
All the witnesses were hazy over the exact timing of the mass killings and of Captain Medina's cease-fire order. This was important to the defense, for Col. Kenneth A. Howard, said the captain could not be held liable for killings that were committed by his men before he was aware of what was going on.
Thursday, August 19, 1971
MEDINA IS PLACED AT SLAYING SCENE
By HOMER BIGART
Special to The New York Times
FORT McPHERSON, Ga., Aug. 18
The alleged slaying of several Vietnamese children, one of them in the presence of Capt. Ernest L. Medina, was described today at the 34-year-old officer's court-martial.
But Captain Medina was talking on the radio when a member of his command group shot a badly wounded boy who was making no attempt to escape, John M Smail, an assistant machine gunner at Mylai, testified.
"Captain Medina was talking with his head down and I don't even know whether he saw the incident," Mr. Smail said.
Other witnesses sid that elsewhere in Mylai, two terror stricken boys were shot down along a trail, as were three children who emerged from a hedgerow and approached some soldiers with hands held out pleadingly, as though asking for food.
Captain Medina was not present when these children were slain, the witnesses said.
After three days of testimony, Mr. Smail was the only one of 50 witnesses called by the Government who could place Captain Medina at the scene of a killing.
F. Lee Bailey, the chief defense counsel, protested that the Government prosecutors were employing "overkill" in redundant testimony about slayings at Mylai with no direct attempt to implicate Captain Medina.
The defense contends that Captain Medina was unaware of the killing of innocent civilians until late in the assault on Mylai 4, a hamlet in Sonmy, South Vietnam, on March 16, 1968, and that he gave a cease-fire order as soon as he saw that some civilians had been slain.
The Government, accusing Captain Medina of responsibility for "not less than 100" murders of South Vietnamese civilians and with personally killing a woman and a child, contends that he was aware of his soldiers' wanton conduct but decided not to intervene.
'Did It on His Own'
Six prosecution witnesses left the impression today that civilians were being killed throughout Mylai and that Captain Medina must have been remarkably preoccupied and unobservant not to have been aware of the killings.
All the witnesses testified that the assault on Mylai was uncontested, yet the soldiers maintained a heavy volume of fire as they moved through Mylai, killing people and animals.
Mr. Smail, a native of Kent, Wash., who said he was unemployed, described the killing of a boy by Captain Medina's command group.
"The boy was 5 or 6 years old, bleeding from face and hands," Mr. Smail said. "Captain Medina passed by, followed by his command group. The last member of that command group shot the boy."
Under cross-examination by Mr. Bailey, Mr. Smail said the boy was shot by Captain Medina's radio man, Frederick Widmer.
"Had he received an order to shoot?" Mr. Bailey asked.
"No, sir, he did it on his own."
Larry Polston, an Omaha shipping clerk, testified that the two small boys found on the trail just outside the village were shot by the leader of his machine gun team, Specialist 4 Robert W. T'Souvas of San Jose, Calif. The Army dismissed murder charges against Specialist T'Souvas last Jan. 22.
Leonard R. Gonzales of Richmond, Calif., described the shooting in the village of a group of civilians, including a young mother who was holding a baby.
Mr. Gonzales said he also observed troops throwing grenades into a bunker filled with people who were "screaming, crying and yelling."
Frank D. Beardslee, a former jeep driver for Lieut. Col. Frank A. Barker Jr., commander of the Mylai task force who was later killed, testified that Captain Medina extracted information from a prisoner by firing two shots over the prisoner's head.
Dennis M. Bunning, a chicken farmer from Raymond, Calif., told of the shooting of three children who emerged unarmed from a hedgerow.
"They all seemed to be 9 years old," he said. "They were coming toward us and they seemed to be asking for food. They were shot at. They fell down."
Thursday, September 9, 1971
CALLEY TO APPEAR AT MEDINA'S TRIAL
By HOMER BIGART
Special to The New York Times
FORT McPHERSON, Ga., Sept. 8
First Lieut. William L. Calley Jr. Has been called as a defense witness in the court-martial of Capt. Ernest L. Medina. He will be brought here Friday or next week from Fort Benning, Ga., where he has been confined to his bachelor apartment pending final appeal of his conviction for murdering civilians at Mylai.
The defense, in a surprise move, named Lieutenant Calley and Col. Oran K. Henderson among witnesses whose testimony could be helpful to Captain Medina, who is on trial here charged with the responsibility in the murder of at least 102 unarmed civilians in the South Vietnamese hamlet of Mylai 4 on March 16, 1968.
The Army agreed to produce Lieutenant Calley who was convicted last March of the murder of 22 civilians at Mylai. After his conviction, the White House ordered him removed rom confinement in the stockade pending an ultimate decision by Mr. Nikon.
Henderson on Trial
THe Army said it would also produce Colonel Henderson if the colonel could be made available. He is facing a court-martial at Fort Meade, Md., for allegedly covering up the details of what took place at Mylai.
The request for Lieutenant Calley to appear as a witness startled the prosecution. In his trial at Fort Benning, Lieutenant Calley had tried to shift the blame for the killings at Mylai onto his company commander. He testified that the civilians had been shot under orders from Captain Medina.
Captain Medina, appearing as a witness for that court, contradicted Lieutenant Calley. The captain said he had never wanted indiscriminate killing and that he ordered a cease-fire as soon as he became aware that "innocent civilians" were being slain. F. Lee Bailey, the Medina defense counsel, said he wanted to put Lieutenant Calley on the stand because he had learned "through fortunate happenstance" that Lieutenant Calley had "changed his story."
Perjury Charge Possible
These "contradictions," he added, might cause Lieutenant Calley to refuse to testify by pleading the Fifth Amendment guarantee against self-incrimination. "If Calley contradicts himself he could be tried for perjury in his own case," Mr. Bailey said.
Since Captain Medina is no longer charged with giving orders that resulted in the killings of Mylai, Mr. Bailey apparently hoped to secure from Lieutenant Calley testimony that would support the defense's contention that Captain Medina was unaware of the killings until it was too late.
"I wouldn't be calling him [Calley] if [the contradictions] weren't more favorable than the story he published." Mr. Bailey said. The lawyer was referring to Lieutenant Calley's "confessions" in Esquire magazine, a series of articles that, Mr. Bailey noted, were "pretty consistent with what he testified to."
Mr. Bailey did not say how he learned of the alleged changes in Lieutenant Calley's story. Mr. Calley's lawyer, George W. Latimer, said in Salt Lake City that he was unaware of any contradictions.
"This is the first I ever heard of it," Mr. Latimer said. "It may be that Mr. Bailey thinks he has something."
Other Subpoenas Requested
Mr. Bailey also asked the Government to subpoena Maj. Gen. Kenneth J. Hudson, former Judge Advocate General of the Army who is chief Judge of the United States Army Court of Military Review; Lieut. Gen. Albert O'Connor, commanding general of the Third Army, who convened the Medina court-martial, and Col. Wilson Freeman, who recently retired as staff judge advocate of the Third Army.
These three presumably would be asked to testify in connection with a lie detector test administered to Captain Medina last November by Robert A. Brisenstine Jr., a polygraph expert of the Army's Criminal Investigation Division.
Mr. Bailey's efforts to put the results of the test in evidence have been frustrated by the Courts-Martial Manual, which says that conclusions based on lie detector tests are inadmissible.
Maj. Charles C. Calhoun, who was operating officer of Task Force Barker, the Americal Division unit involved in the Mylai assault, said that sometime between 11:50 A.M. and 12:15 P.M. on the day of the incident he transmitted an order to Captain Medina asking him to insure that no civilians were hurt unnecessarily.
What was Captain Medina's response, Major Calhoun was asked.
"He rogered my message."
When the trial resumed this morning after an 11 day recess, the five-man military court heard the depositions of two South Vietnamese interpreters. These witnesses testified that Captain Medina, when one of them asked why so many civilians were being killed, replied, "Orders."
Friday, September 10, 1971
ARMY RESTS CASE AGAINST MEDINA
Last Witness Is an Expert in Lie-Detector Examination
By HOMER BIGART
Special To New York Times
FORT McPHERSON, Ga., Sept. 9
The Government rested its case against Capt. Ernest Medina today after 11 days of trial in which 31 witnesses tried to recall the slaying of civilians in the South Vietnamese hamlet of Mylai 3-1/2 years ago.
The Government has tried to prove that Captain Medina became aware early in the action that his men were killing civilians, that he did nothing to halt it and, by failing to intervene, condoned or encouraged the killings.
Besides being charged with over-all responsibility for the deaths of "no less than 100" civilians, the captain is charged with the premeditated murder of a woman and a small boy and with assault upon a prisoner by shooting at him with a rifle.
But the Government's last witness, an Army polygraph expert who administered lie detector test to the accused officer, said under cross-examination that in 999 minutes of testing last November, Captain Medina repeatedly said that he had never intended to kill "innocent civilians" and that he ordered his men to stop firing as soon as he became aware that large numbers of noncombatants had been slain.
How the polygraph charts rated Captain Medina's truthfulness was ruled inadmissible but the witness, Robert A. Brisenstine, Jr., was allowed to recall his interview with the captain before submitting him to the polygraph machine.
What Captain Medina told Mr. Brisenstine seemed to differ in only one material respect with the defense's contention that the captain was not aware of any large scale killings until 10:25 A.M. on the morning of the assault, By that time the action was over.
According to Mr. Brisenstine, Captain Medina said that his first awareness that "something had gone wrong" could have come s early s 9:30 A.M. The captain "felt he had lost control of his men" between 9:30 and 10:30 A.M. because he had seen some dead civilians, Mr. Brisenstine said.
However, Captain Medina has said that it was not until 10:25 A.M. that he first saw a group of 20 to 28 corpses on a path, an encounter that caused him to give a cease-fire order. He was able to place the time, he said, because at that moment, 10:25, an American soldier who had shot himself in the foot was being evacuated by helicopter from a spot near the corpses.
Saturday, September 10, 1998
JUDGE REFUSES TO DISMISS CASE AGAINST MEDINA IN MYLAI DEATHS
By HOMER BIGART
Special To New York Times
FORT McPHERSON, Ga., Sept. 10
The military judge in the trial of Capt. Ernest Medina denied today defense motions to dismiss the case. He said that the Government had produced "some substantial evidence" in support of all the charges against the captain in the Mylai killings.
The judge, Col. Kenneth A. Howard, also refused to direct the five-man court-martial to return a verdict of not guilty.
F. Lee Bailey, representing Captain Medina, said he was ready to open the defense case on Monday. He has asked the Government to produce as defense witnesses First Lieut. William L. Calley Jr., one of Captain Medina's platoon leaders, who was convicted last March of the premeditated murder of 22 South Vietnamese civilians at Mylai, and Col, Oran K. Henderson, former commander of the 11th Brigade, American Division, no on trial at Fort Meade, Md., for attempting to cover up the mass slaying of March 16, 1968.
Lieutenant Calley, whose sentence has been reduced to 20 years, will be brought here Monday morning from Fort Benning, Ga., where he is confined pending appeals.
Colonel Henderson will not be available until late next week.
Arguments for Dismissal
In has arguments for dismissal, Mr. Bailey contended that the Government had failed to support its charge that Captain Medina had committed premeditated murder when he shot a Vietnamese woman lying in a rice paddy outside Mylai. There was a difference, he said, between a "battlefield homicide" and "murder in the street."
There was no dispute, he said, that Captain Medina shot the woman. But the Government failed to prove that the shooting was without justification, he said. Captain Medina fired instinctively, Mr. Bailey went on, when he saw the woman move after he had been ordered to check the "Vietcong suspect" for arms.
Captain Medina felt bad after shooting the woman and reported the incident by telephone to Colonel Henderson, who told him not to worry, according to Mr. Bailey.
As for the charge that Captain Medina shot a small boy, no witness contended that Captain Medina discharged his rifle, Mr. Bailey said. I was conceded that the captain, reacting to a "sudden movement," had shouted something and that a member of his command group had shot the child, but there was "only the rankest speculation" that Captain Medina intended that the boy be shot, Mr. Bailey said.
Over-All Responsibility
Similarly, the Government failed to prove Captain Medina had over-all responsibility for the mass slaying. Mr. Bailey said. There was no proof, he said, that the captain was aware of excessive killings until he saw a large number of bodies on a trail sometime between 10 A.M. and 10:30 A.M. and he then ordered a cease-fire.
For the Government, Maj. William G. Eckhardt argued that the evidence submitted by 31 witnesses "Clearly showed Captain Medina had knowledge of the killings and calculatingly chose to ignore what was happening." By his inaction, Captain Medina "aided and abetted" in the slayings, Major Eckhardt said.
Frederick J. Widmer, a 23 year old welder of Lower Burrell, Pa., will continue his refusal to testify as a Government witness in the Medina case despite a contempt citation, his Army attorney, Capt. Gary Myers, said today.
Mr. Widmer was cited for contempt Aug. 25 when, despite a grant of immunity, he invoked the Constitutional privilege against self-incrimination. He obtained a temporary order restraining the Government from prosecuting him on the contempt charge. The order was dissolved this morning by a Federal judge. Mr. Widmer was a member of Captain Medina's company at Mylai. A witness testified two weeks ago that Mr. Widmer shot a small boy during the attack.
Thursday, September 23, 1971
MEDINA FOUND NOT GUILTY OF ALL CHARGES ON MYLAI
By HOMER BIGART
Special To New York Times
FORT McPHERSON, Ga., Sept. 22
Capt. Ernest L. Medina was acquitted today of all charges of involvement in the killing of civilians at Mylai.
The jury of five combat officers deliberated only 60 minutes before reaching a verdict of not guilty.
Captain Medina was acquitted of premeditated murder in the killing of a Vietnamese woman, of involuntary manslaughter in the killing of "no less than 100" Vietnamese civilians, and of two counts of assault against a prisoner.
A stifled cheer and some handclapping, quickly suppressed by the military judge, erupted in the small courtroom when the president of the court, Col. William D. Proctor, announced the verdict.
Captain Medina saluted the court, strode back to his seat at the defense table, blinked rapidly and swallowed a glass of water. But for a moment, struggling to maintain his composure, he kept his eyes away from his German-born wife, Barbara, who had collapsed weeping on the shoulder of a friend.
They embraced happily in the witness room a moment later, then Captain Medina went outside and told a crowd of newsmen that although he had always maintained "complete faith in military justice" he had not changed his determination to leave the Army.
The case of Captain Medina, who was charged with overall responsibility for the killings at the Vietnamese hamlet of Mylai 4 on March 16, 1968, went to the jury at 2:53 P.M.
Captain Medina, the last man to face a murder charge arising from the deaths of Vietnamese civilians three and a half years ago, heard himself described in the defense summation as "no filthy felon" but "a disciplined commander who honored and loved the uniform he wore and the company it represented."
The 35-year-old officer, normally swarthy but now pallid and puffy eyed, was denounced in the Government's summation as an officer who had abrogated his responsibility, and who "like Pontius Pilate cannot wash the blood from his hands."
Captain Medina had been charged originally with the premeditated murder of at least 100 civilians during the sweep through Mylai. He was charged also with the murders of a woman and a small boy and with two counts of assault against a prisoner.
The charge of murdering 100 civilians was reduced to involuntary manslaughter by the military judge, Col. Kenneth A. Howard on Friday. At that time, Colonel Howard also threw out the charge that Captain Medina had murdered a child. The jury was not informed of these decisions until late today.
The jury of five combat officers had to consider whether Captain Medina was guilty or not guilty of the murder of the woman, an incident described by his counsel, F. Lee Bailey, as a "justifiable battlefield homicide"; whether he was guilty of assault by shooting twice over the head of a prisoner, and whether he had been aware that his men were "improperly killing noncombatants" and had declined to exercise his command responsibility by attempting to halt the killings.
In his final argument, Maj. William G. Eckhardt ridiculed the defense's contention that Captain Medina had remained unaware of any large scale killings at Mylai until it was too late.
It was incredible, the prosecutor said, that Captain Medina who maintained continuous radio contact with his platoons during the action, had not known what his troops were doing one, two, three and even four hours after the assault had been launched.
Colonel Howard, in his instructions to the jury, cast doubts on the testimony of some of the prosecution witnesses. He referred to Gerald Heming as a "frequent user of wine, drinking as much as four quarts a day and (who) had experimented with LSD."
The judge also recalled that two other Government witnesses had been impeached. They were Thomas B. Kinch, who was said to have had a court-martial conviction and who may or may not have withheld this information from his employer, and Lous Martin, a San Jose, Calif., policeman who told a lie detector expert that a group of civilians he saw shot down near Medina "may have been an illusion or a hallucination."
Mr. Bailey said his only concern had been that the jury might convict Captain Medina on the assault charge. Mr. Bailey had maintained that Captain Medina was merely trying to frighten the prisoner when he fired two bullets over the prisoner's head this was permissible, Mr. Bailey said, under the Army field manual, which said that "threats of violence" could be used against prisoners who refused to talk.
Standing beside Mr. Bailey was a man in a peacock blue suit who wore a diamond and gold American flag on his lapel. Mr. Bailey introduced him as a major contributor to the Medina defense fund, an Orlando, Fla., millionaire named Glenn W. Turner.
Mr. Turner said that he had made his money in cosmetics, had already "donated" $20,000 to $25,000 and was prepared to give much more because he believed Captain Medina was "sincere."
Only Calley Convicted
The only American military man convicted for the murdering of civilians at Mylai is First Lieut. William L. Calley, Jr. He was found guilty last March of the murder of 22 civilians at the South Vietnamese hamlet.
After Lieutenant Calley's conviction and sentencing to life imprisonment, the White House ordered him removed from confinement in the stockade and confined to his bachelor's quarters at Fort Benning, Ga., pending an ultimate decision. Last Aug. 20, Lieut. Gen. Albert O. Connor, the commanding general of the Third Army ordered Lieutenant Calley's life sentence reduced to 20 years. That decision meant that Lieutenant Calley would be eligible for parole in six to seven years.
The case is to be reviewed by the United States Court of Military Review, then by the Court of Military Appeals and, finally, by President Nixon.
With the acquittal of Captain Medina, the only officer now standing trial is Col. Oran K. Henderson. He is accused of attempting to cover up the mass killings and of later lying about them before an official board of inquiry.
Of 13 officers and enlisted men who were originally charged with the killings in Mylai, eight cases were dismissed and there were four acquittals before the Medina verdict.
The Pentagon said yesterday that no further action was pending but that the Mylai investigation was not officially closed. Further legal action would be initiated, a spokesman said, if evidence warranting it were developed.