Galley as Joshua

Even before the court-martial was convened at Fort Benning in 1971, fairness loomed as the major problem. The My Lai massacre had been the most widely publicized military atrocity in U.S. history. Lieut. William Calley was the only defendant convicted, though 25 of his superiors and subordinates had been implicated in varying degrees. Had it been fair to single him out? With all the publicity, could he possibly have had a fair trial? Could he have had equitable treatment from a military system eager to purify itself of My Lai?

As his case went up the line of military justice, the reviewing authorities answered yes to those questions again and again, though the original life sentence was reduced to ten years. Galley's lawyers then turned to civilian courts. Last week in Columbus, Ga., Federal District Court Judge J. Robert Elliott ruled that Calley had indeed been convicted unjustly.

In a long (132 pages), complex and somewhat eccentric opinion, Elliott concluded: "His country not only denied him a fair trial--it even denied him a fair chance for a fair trial." He held that Galley had been deprived of due process on four counts. The charges against him had been improperly drawn because "the prosecution did not identify any individual as being one that the petitioner killed or ordered to be killed."

Further, the defense should have been permitted to call such higher-ups as then Defense Secretary Melvin Laird to bolster the argument that undue command influence had affected the trial. And the defense should have been given access to a confidential House Armed Services Committee report on My Lai. Judge Elliott cited Watergate and ruled that "the Supreme Court in deciding the Nixon [tapes] case also decided the Calley case."

Elliott reserved his most withering prose, however, for what he apparently considered the largest issue--publicity.

Wrote he: "If there has ever been a case in which a conviction should be set aside because of prejudicial publicity, this is it." With press references to Calley as "everything from a mass murderer to a ghoul," it seemed as if "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.' " Then, hyping up his own hyperbole, the judge launched into the opinion's alliterative climax: "He was pummeled and pilloried by the press. He was taunted and tainted by television. He was reproached and ridiculed by radio. He was criticized and condemned by commentators."

Vulnerable Opinion. Many legal experts were initially skeptical of much of Elliott's reasoning, and agreed with a Justice Department official's assessment that "the opinion appears vulnerable on most of its points." Elliott's conclusions about publicity were the most controversial. For one thing, members of the court-martial panel were not likely to read or hear anything substantive outside the courtroom that was not presented in exceptionally grim detail by prosecution witnesses.

For another, the panel--made up of a captain, four majors and a colonel --scarcely seemed to have been stampeded. "I wanted to believe [that the massacre] didn't happen, that it was a hoax," said one member after the verdict. "We looked for anything that would prove Lieut. Calley innocent," said another. Lawyer-Author Alfred Avins, a military-law specialist, notes that officers "are required by virtue of their training to maintain a degree of detachment" and thus are not so prone to "mob psychology" as other jurors.

Specific proof that the jurors had actually been improperly influenced would seem necessary to reverse a conviction. With the recent history of publicity and justice for such defendants as Angela Davis, Charles Manson and Jack Ruby, Avins says, "there is no reason to believe that extensive press coverage should paralyze judicial procedure, whether it's civil or criminal or military, if you have the right kind of triers of fact."

Judge Elliott, a Kennedy appointee and son of a Methodist minister, is a well-respected, generally conservative jurist, but from the first day of hearing the Calley appeal, when he noted that "command influence can be a subtle thing," he has made his feelings about the case apparent. After announcing his opinion last week, he added from the bench: "Joshua did not have charges brought against him for the slaughter of the civilian population of Jericho. But then the Lord was with Joshua, we are told." The judge had already been reversed once in the case by the Fifth Circuit Court of Appeals, when he released Calley on bail pending his decision. Last week the Fifth Circuit again blocked Galley's release, at least temporarily, to give the Army time to appeal through the Justice Department, which represents the military in federal court proceedings. It will do so formally this week.

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