The Workings of Military Justice
To the Editor:
I found Joseph W. Bishop, Jr.’s review of Robert Sherrill’s Military Justice Is to Justice as Military Music Is to Music [Books in Review, June] extremely interesting, especially since I am the psychiatrist he mentions, the one who had the exchange with Captain Carlotti. Mr. Bishop presents an alternate version to the one in Mr. Sherrill’s book of how I came to call a defendant’s mother a prostitute in open court, in the presence of the accused. Mr. Bishop has it that I volunteered this characterization on questioning by Terence Hallinan, counsel for the accused, while Mr. Sherrill states that I was forced to say what was apparent from the evidence and didn’t require restatement and that the accused was unnecessarily dehumanized and publicly degraded.
Here is my recollection of my testimony:
In order to explain the inability of the accused to cope with the vicissitudes of military life I testified on the instability of his background; that he had lived in ten to twelve different places in the first fifteen years of his life; that he had never attended any school for a full term; that he had been “farmed out” without explanation to him for a full year; that he suffered from near murderous rage attacks and had been a chronic runaway since adolescence, and that his mother had married twelve different men in these first fifteen years.
In cross-examining me Captain Carlotti kept pressing the matter of the defendant’s mother. I tried to put him off by referring to what I had said about instability, nomadism, etc., which I thought clarified the matter. I also made it clear that I was not trying to hide or distort anything but that I did not want to get more explicit about his mother in front of the defendant. Captain Carlotti insisted on pressing the point and I tried to answer euphemistically, saying the mother’s marital pattern indicated a randomness or instability of choices. Captain Carlotti still would not be put off and insisted that I answer directly. The account in the San Francisco Examiner, May 22, 1969, under George McEvoy’s by-line, confirms this sequence. . . . I have also checked my own memory with that of another observer who verified my account as well as that of Mr. McEvoy. It is conceivable to me that Mr. Carlotti has given Mr. Bishop an Army shorthand transcript of these events which garbles the history of what actually occurred.
The version in Mr. Bishop’s review makes me out to be a rather insensitive psychiatrist, while my own memory, plus that of others, plus the rendering of the reporter, George McEvoy, places the onus for insensitivity squarely on the shoulders of the Army prosecutor, Captain Carlotti.
(Dr.) Kurt O. Schlesinger
San Francisco, California
To the Editor:
Some may have noticed that Joseph W. Bishop, Jr.’s review of my book overflowed with unnatural passion. I had not written a book with which he merely disagreed; I had written a “bucket of bilge,” a book of “indiscriminate and brainless” anti-militarism. Because Senator George McGovern said something favorable about the book, Mr. Bishop cuffed him as one “whose command of the duck-speak of the New Politics is hardly inferior to Mr. Sherrill’s.” And all the attorneys I quoted favorably were lumped together by Mr. Bishop as “neither very learned in law nor very careful of fact.” Because I championed free speech for a lieutenant who carried a picket sign denouncing “facist agression,” Mr. Bishop went out of his way to ridicule the officer as “semi-literate” and to brand me as a cheat simply because I corrected the spelling. That wasn’t the end of it, but it was probably enough to make those who read the review wonder how my rather plain dissertation on military justice could bring so much froth to the lips of such a distinguished fellow as the “Richard Ely Professor of Law at Yale University Law School,” as Mr. Bishop was identified.
Too bad . . . other portions of Mr. Bishop’s career weren’t mentioned: say, the 1940-42 period when he was Special Assistant to the Undersecretary of War, or the 1952-53 period when he was Deputy General Counsel and Acting General Counsel of the Department of the Army. Readers might also have enjoyed the irony of Mr. Bishop’s cursing me as McCarthyistic if they had been informed that he served in the office of the Solicitor General of the Department of Justice from 1947 to 1950, when that department fed the government’s “loyalty-security mania and the xenophobia of the day” (to use Yale professor Alexander Bickel’s fine phrase) and helped open the way for the coming of McCarthy.
There is nothing wrong in using a reviewer with that background, but it is natural for such a person to take violent exception to the opinions expressed in my book. So why shouldn’t COMMENTARY readers know the real reason for his attack?
That, however, isn’t why I write. I do so only because Mr. Bishop has excused his malice with a richly irresponsible disregard for accuracy. . . . I only have half as much space as I need to clean up Mr. Bishop’s temper tantrum, so I’ll just touch the low points.
Mr. Bishop elaborately challenges my account of how Captain Stephen J. Carlotti, an Army prosecutor in one of the Presidio trials, “forced a psychiatrist to say on the witness stand, in front of the accused, what was quite apparent from the evidence and did not need to be said—that the boy’s mother was a prostitute.” By great good luck, writes Mr. Bishop, he happens to know Carlotti, one of his former students. He says Carlotti denies hounding the testimony out of the psychiatrist, and that the dirty work was actually done by the boy’s own defense attorney, Terence Hallinan; he says “the statement seems to have been volunteered by the witness and not ‘forced’ by the questioner,” and claims to have an Army trial transcript to prove it. So, concludes Mr. Bishop victoriously, although “like greater practitioners of his art, Mr. Sherrill is generally careful not to cite checkable sources for his assertions and accusations,” nevertheless he, Mr. Bishop, has been clever enough to catch me.
Well, let’s see. I will leave to Mr. Bishop the Army’s transcript (not available to the public until after my book was published) and go instead to a more neutral source. Among the able and objective reporters covering the Presidio trials was George McEvoy. His account appeared on May 22, 1969, in the San Francisco Examiner, a conservative paper which hardly would slant the facts for rebellious GI’s. It was, in part:
The rest of the afternoon was enlivened by the testimony of Dr. Kurt Schlesinger, assistant chief psychiatrist at Mt. Zion Hospital in San Francisco. He testified on behalf of [the accused]. . . .
Capt. Stephen Carlotti, assistant prosecutor, kept pressing the matter of [the accused’s] mother. The psychiatrist said he did not like to testify in front of the defendant, but Carlotti persisted. “Well,” said Schlesinger, “for want of a better word I’ll use a euphemism—her conduct denotes randomness.”
Still Carlotti persisted, and finally Schlesinger said wearily: “All right, Captain. He may take a swing at me for this, but his mother, in my opinion, is a prostitute.”
The young soldier became visibly upset, began trembling and was on the verge of tears. Hallinan asked for a five-minute recess to calm his client, but Carlotti responded with: “I see no reason for a recess.” The recess was granted.
After court adjourned, Dr. Schlesinger was standing in the rear of the courtroom, talking to newsmen, when Carlotti came up and raged: “Doctor, if what you say is true, we shouldn’t have courts. I don’t think you psychiatrists should be allowed to testify.”
“Now, Captain,” the small, slight psychiatrist replied softly, “you are a graduate of Yale. You know better than that.” Carlotti glared and then stomped away.
Dr. Schlesinger, as indicated in his letter [see above], supports the accuracy of the Examiner article, and so does Hallinan, who is no more biased than Carlotti. A number of other regular observers at the trials with whom I double-checked have also verified the McEvoy account, and even the most cautious of them holds back no further than George Murphy of the San Francisco Chronicle, who said, “I wouldn’t want to swear to anything without checking my notes, which were put away months ago. But it stands to reason that Hallinan would not have been browbeating his own witness. That Carlotti was a mean fellow. As for the Army transcript, there was a great deal of shouting in the courtroom and there’s a good chance that the stenographer messed it up.”
If the reader accepts the accuracy of the Examiner account, then he will simply have to conclude, as I have, that the Yale law faculty contains at least one dangerously tricky windbag and that there is at least one bully among Yale’s alumni.
- Mr. Bishop says that “‘command influence,’ which Mr. Sherrill flogs for most of Chapter 3, is beginning to look like a moribund, if not dead, horse.” It is not a dead horse Mr. Bishop smells but the manure being dropped from a very live and kicking one. The commanding officer decides whether to prosecute; he picks the jury; he picks the defense as well as the prosecuting attorneys; he approves the search warrants; he reviews the court-martial decision. The commanding officer is a one-man inquisition, as Henry B. Rothblatt, for example, discovered when he was hired to defend some of the Green Beret murder suspects. (See his account in the July-August 1970 issue of Case and Comment.)
- Mr. Bishop says I was in error when I wrote that Marines Harvey and Daniels were imprisoned for “asking to talk with their commanding officer about the justice of black men being sent to Vietnam.” For lack of space, I will skip longer corroborating articles and simply cite the Wall Street Journal, December 8, 1969, which records that Harvey and Daniels were charged with disloyalty for calling the Vietnam conflict “a white man’s war” in a bull session and urging other blacks “to join them in asking for a special meeting with their commander to discuss the war.”
- Among Mr. Bishop’s other tricks, he neglects to tell COMMENTARY’s readers that regarding one important interpretation of constitutional history, I cited by way of paraphrasing the opinion of Justice Hugo Black—an authority whom Mr. Bishop is apparently reluctant to challenge openly.
- Mr. Bishop writes, “Mr. Sherrill predictably compares the Dreyfus case with the trial of Captain Howard Levy, but about the only similarity is that in each case the accused was a Jew.” Details of the Levy case, he said, “have no more in common with the Dreyfus case than Robert Sherrill has with Émile Zola.” It is interesting to see how grotesquely a Richard Ely Professor of Law will distort a situation just to make a wisecrack. 1 opened the Levy chapter by warning that “one must be cautious in likening the affair Levy to the Dreyfus case. There are points of similarity, though not always exact ones,” and I dispensed with the comparison in three brief paragraphs, pointing out that the most fascinating material similarity between the cases was that “Dreyfus would surely have been exonerated if a secret dossier had not been produced against him; against Levy, too, a secret dossier was produced, this one making the difference between whether or not he was to be court-martialed.” On the whole it was a rather restrained comparison, I think, and certainly justified considering that Levy’s own lawyer likened the two cases as did a number of the best reporters at the trial.
- Mr. Bishop denies that the military often will not allow defense attorneys to call the witnesses they want. To see how wrong he is, please read, for example, “Justice and Captain Levy” by Ira Glasser, associate director of the New York Civil Liberties Union, in the Columbia Forum, Spring 1969.
- Mr. Bishop denies that the Army deliberately thwarted enforcement of the Supreme Court’s 1969 decision in O’Callahan v. Parker, which limited the jurisdiction of courts-martial to “service-connected” offenses. See the American Bar Association Journal, June 1970, pp. 595-97: “. . . By hook or crook every judge advocate is doing his best to establish that every crime is ‘service-connected.’”
- Reluctantly passing up other military law and constitutional history disagreements, I must spend this last space for one of the choicest pieces of black humor to come my way in some time. Mr. Bishop ridiculed me for stating that the Law of Land Warfare was being violated by U.S. forces which raze villages and arbitrarily move the population of whole regions of South Vietnam into what amount to concentration camps. Of course, as is his way, he does not tell you that it was not I who argued this, but rather it was Charles Morgan, Jr., Levy’s attorney; the judge had given Morgan a chance to plead Nuremberg law, and he was doing it. But that’s not the point. The black humor I was saving is this: Mr. Bishop says, apparently with a straight face, that our soldiers aren’t shifting the population, and “there is nothing in international law which forbids the government of South Vietnam to move its own nationals into refugee camps.” Lenny Bruce couldn’t have thought up a better line. I understand that our humanitarian Mr. Bishop is now preparing a book for Atheneum on the law of land warfare. It should be worth waiting for.
Mine was a one-sided book in the pamphleteering tradition. Much can be said sympathetically for the problem of military commanders who must try to maintain discipline while being confronted with the demands of an increasingly libertarian generation. (In fact, I took ample note of this dilemma in the book.) But it is clear that Mr. Bishop was not the man to give COMMENTARY’S readers the other side.
Joseph W. Bishop, Jr. writes:
Disposing first of Dr. Schlesinger, the account in my review is based on the official record of trial in the case in question, which must by law include a verbatim transcript of all the testimony, and is a public document, available to me, Mr. Sherrill, or Dr. Schlesinger. I gather from Dr. Schlesinger’s letter that he has not looked at it. Although I believe Stephen Carlotti to be an honest and truthful young man, I was well aware that the participants in a controversial episode do not always recall it accurately. Accordingly, I communicated with the Department of the Army and asked for photocopies of that part of the transcript in which Dr. Schlesinger described the accused’s mother as “some kind of a prostitute.” Pages 2562-64 of the transcript confirm Captain Carlotti’s account. In pertinent part, they read as follows:
Questions by Mr. Hallinan:
* * *
Q . But when you’re talking to a person, Doctor, do you have any means by which you are able to judge whether a person is trying to deceive you or not?
A. I think so. I think there’s—if I may say it this way—[the accused] tries very hard to appear normal. If anything, he kind of resented, if I may say this, he kind of resented my talking to him. He thought that I—that there was some kind of, I don’t know, embarrassment about it for one thing. The other thing is that there is an internal consistency here historically. And in terms, as I tried to say before and I got a little impassioned, and I apologize for that—that there is no fixed point in his life. I think that if anything he glosses over the facts. He gave me the statistics about his mother and his father almost casually, incidentally, about half an hour or forty minutes of appearing very “normal.” But I kept hearing these events and looking for some stable point in his life, what was a base line, had he had some peer relationships, had he had some school experiences, and I found nothing. It was like trying to grab cotton candy or something. There was nothing to hold onto, and I became convinced. I didn’t go into this with a preconceived notion. I was impressed despite—if the court will understand this—despite [the accused’s] rather casual way of presenting these things. [The accused’s] mother, whatever the legalisms are, and he may want to take a swing at me for this, but as far as I’m concerned, she is some kind of a prostitute, and this is a hard thing to say in front of a man and to go into all the dynamic implications of that. And yet he didn’t push these things on me. This lad was elucidating while I was sitting on my duff there for two hours listening to him sort of very casually present himself as just another kid. And I heard a history that was quite different from that. And this is the basis for my arriving at my position, sir.
Mr. Hallinan: Could we take a brief recess, Your Honor, and I will finish up my examination.
Cpt. Carlotti: I’d like, Your Honor, if we could finish up counsel’s examination because I don’t anticipate I am going to have many questions on recross when we come back.
Cpt. Yeary: Just out of common decency and courtesy we request a short recess.
Lo1: For what?
Mr. Hallinan: [The accused] is having a little problem. We would like to take a recess while he gets himself together, if we can.
Lo: The court will recess for five minutes.
(Whereupon at 1517 hours, 21 May, 1969, the court was recessed; and at 1525 hours, 21 May 1969, the court was reconvened.)
Pres: The court will come to order.
Cpt. Carlotti: Let the record reflect that all parties present when the court recessed are again present in court and that Dr. Schlesinger was on the stand.
Court reporters do, of course, occasionally make errors in transcribing the testimony, but I have never known one to “garble” the transcription to the extent which Dr. Schlesinger suggests. It is almost as unlikely that, if such a nearly inconceivable series of mistakes were made by the reporter, counsel would not have insisted upon their correction. If the account in the San Francisco Examiner and Dr. Schlesinger’s recollection are inconsistent with the transcript, I regard the latter as by far the better and stronger evidence. I believe any court would do so.
Whether Dr. Schlesinger’s statement was “forced” by Mr. Hallinan’s question is a matter of judgment, which the readers of COMMENTARY are as competent to make as Dr. Schlesinger or I. At any rate, it was not forced by Captain Carlotti, who had concluded his cross-examination. I did not say that Dr. Schlesinger was “insensitive”; I do not myself believe that he was or that he was in any way derelict in the performance of his duty to the accused.
Robert Sherrill’s statements are interesting, but not conclusive. I really believe that his letter (leaving aside the parts which consist merely of vigorous, but not, in my judgment, really first-rate, personal abuse) contains more inaccuracies and irrelevancies per page than his book. I shall deal with them in the order in which they appear.
- I too defended Lieutenant Howe’s right to carry his picket sign. I believe, and have written, that Article 88 is probably unconstitutional, certainly when it is applied in such circumstances as those of the Howe case. But I did not think that my support of Howe’s First Amendment rights obligated me to stand up for his orthography. I did not on this account brand Mr. Sherrill as a “cheat”; I did think it was an interesting, if minor, example of his approach to the reporting of facts.
- Mr. Sherrill’s account of my nefarious connections with the government is actually almost correct, but irrelevant—except, I suppose, on a guilt-by-association theory. (He failed to say that I served in the Army for several years in World War II, part of the time as a Judge Advocate. Only Mr. Sherrill could have conducted a background investigation of a suspect without uncovering this damning fact.) None of the cases I briefed and argued for the Solicitor General’s Office in those long-ago days of the Truman administration had anything to do with the loyalty-security program or any of Senator McCarthy’s other crusades. Mr. Sherrill’s description of my career as a McCarthyite omits to mention that in 1953, as Acting General Counsel of the Army, I advised that the Senator should not be given access to the loyalty-security files of various civilian employees, for which I was duly denounced by him and Roy Cohn (see New York Times, April 21, 1954) in rather abusive terms. This inoculation helps preserve my equanimity in the present circumstances.
- As stated in my comment on Dr. Schlesinger’s letter (and in my review), I did not rely on Captain Carlotti’s statement alone. I regard the official transcript of testimony as the best (indeed, virtually conclusive) evidence of what was said by whom at any trial. It would be just about impossible for a court reporter not to know when cross-examination by the prosecutor ended and redirect examination by defense counsel began. The court reporter is sworn. The record must be authenticated by the military judge. Counsel can demand the correction of errors. The transcript was immediately available to Mr. Hallinan (the accused is, of course, entitled to a free copy) and therefore, I presume, to Mr. Sherrill. Mr. Sherrill does not claim that Mr. Hallinan ever objected to this part of the record (which does not, of course, depict him as “browbeating” his own witness); to the best of my knowledge Mr. Hallinan has never made such an objection. Mr. Sherrill’s description of a newspaper story as a “more neutral source” than the record seems to suggest that the judge, the prosecutor, and the court reporter were engaged in a conspiracy to falsify the record and that they carried out their plot without objection by Mr. Hallinan. I can only say that I don’t believe it; I find it difficult to believe that Mr. Sherrill does, although I admit that he is capable of such beliefs.
- Mr. Sherrill’s comments on command influence, though phrased with his usual cogency and elegance, are inaccurate and do not meet the point which I made. In non-capital cases the convening authority can no longer “pick the jury” if the accused requests, as most do, that he be tried by a military judge sitting alone. The convening authority’s power to review cannot prejudice an accused, for it does not include power to reverse an acquittal or increase the severity of a sentence. If he sustains a conviction and sentence, they are still subject to review by authorities entirely independent of him, including the Judge Advocate General, a Court of Military Review, and Court of Military Appeals—not to mention the civilian courts, through petitions for writs of habeas corpus and other types of collateral attack on the verdict. The accused is, of course, entitled to retain his own civilian counsel, as did most of those in the cases discussed by Mr. Sherrill; when he does not, I agree that it would be better if military defense counsel were appointed by some independent authority—although in my experience appointed counsel rarely display any lack of zeal or diligence.
- I did not base my account of the charges against Harvey and Daniels on a newspaper story, but on the charges and specifications as set out in the opinions of the Court of Military Appeals, reported at 19 USCMA, pages 529 and 539. I suppose that Mr. Sherrill would reply that the judges are biased and untrustworthy sources. Again, I don’t believe it. They may err on the law, but they state the charges correctly.
- Mr. Sherrill doesn’t say where he paraphrased Justice Black, so I can’t comment on that one, although I suspect that the Justice wouldn’t recognize his own words in one of Mr. Sherrill’s “paraphrases.” If Mr. Sherrill thinks that law professors are reluctant to disagree with the Supreme Court, he has something yet to learn about law in general as well as military law in particular. I regard Justice Black as a very great lawyer, but I have on occasion differed with him “openly.” (See my articles at 61 Columbia Law Review 40 and 112 University of Pennsylvania Law Review 317.)
- As for the similarity, if any, between the cases of Captain Levy and Captain Dreyfus, I suggest that readers familiar with the latter read the various decisions of the civilian and military courts in the former. As stated in my review, I will furnish the citations on request.
- Mr. Sherrill, deliberately or out of sheer inability to get anything straight, fudges the issue of the defense’s right to call witnesses. I said that “the defense is free to put on the stand any expert witness who is willing to testify,” which is true and which dealt with the particular assertion made by Mr. Sherrill. There may, of course, be difficult questions about when the defense can compel the government to subpoena a reluctant witness, or pay the fees and expenses of one who requires such compensation, or produce a military witness who is stationed far away, but neither Mr. Sherrill nor I was talking about these problems.
- The next paragraph is similar fudge. No doubt judge advocates have since the O’Callahan decision tried to persuade the courts that offenses were “service-connected” in many doubtful cases. But I had faulted him for saying that that decision was “retroactive”—i.e., that it applied to prior convictions for offenses which were not service-connected.
- Mr. Sherrill’s next and, thank God, last paragraph is more fudge, and very highly flavored. What I said was that the provision of international law which Mr. Sherrill misread (if, indeed, he read it at all) applies only to enemy aliens in the territory of a belligerent and has no relevance to the relocation of South Vietnamese nationals in South Vietnam, whether by the South Vietnamese government or American forces acting with its authority. It was intended to regulate, and is clearly limited to, such situations as the internment by the British government in World War II of German and Italian nationals resident in the United Kingdom, or the United States’s similar internment of German and Japanese nationals (as distinct from American citizens of German or Japanese descent) resident in the United States. Strong arguments can, of course, be made against the relocation of civilians in South Vietnam; but it cannot be argued that it violates international law.
I may be a “windbag” (I try not to be “tricky”), although it hardly lies in Mr. Sherrill’s mouth to make such charges against anyone. But I was not “pamphleteering” for “the other side” of Mr. Sherrill’s controversy. I am no spokesman for the Pentagon, as Mr. Sherrill would know if he had read any of my publications on military law. What I tried to speak for was the public interest in having the facts and the law stated with some attempt at accuracy and fairness. This is, I believe, the first time that Mr. Sherrill has described his book as “a one-sided book in the pamphleteering tradition.” I think somewhat better of him for the admission, but I doubt that he would have made it but for my review. My reaction to Military Justice Is to Justice etc., far from being “unnatural,” seems to me quite normal for a reviewer who, having some knowledge of the subject, reads such a book as Mr. Sherrill’s.
I must say for Mr. Sherrill that he has performed one feat of investigative journalism by discovering, and reporting almost correctly, that I am writing a book on military law for Atheneum. This had been one of the most widely unknown facts in the publishing industry.
1 Law Officer—i.e., the Military Judge.