Can Calley Get a Fair Trial?

The lawyers who will be defending him and the military judge who will preside at his court-martial seem to agree on one vital issue: Army Lieut. William Galley Jr., who is charged with the murder of 109 Vietnamese civilians, may be unable to get a fair trial. According to the judge, Lieut. Colonel Reid Kennedy, potential witnesses have been violating his orders against talking to the press. Powerless to enforce the ban, Kennedy called on the Attorney General of the U.S. last week to look into ways of prosecuting five news organizations* and certain individuals--though just what the charges might be was unclear.

The defense joined in protesting the news reports, but it also offered another argument. By holding Calley in the military beyond his discharge date, said his lawyers, the Army is keeping him in "involuntary servitude." Arguing that a court-martial does not adequately protect a defendant's rights, they made a motion to dismiss the charges. Even Calley's career-Army lawyer, Major Kenneth Raby, concurred, quoting a recent Supreme Court decision that criticizes military trials as "marked by the age-old manifest destiny of retributive justice."

Minimum Constraints. Many observers go even further. They question whether Calley can get a fair trial in any court of law--military or civilian. Where, they ask, is the potential juror who has not heard or read some account of events in My Lai on March 16, 1968, that would affect his verdict? President Nixon himself may have influenced the trial when he asserted at his press conference this month that civilians were killed in the village. "There is not anybody in this country," insists Calley's civilian attorney, George Latimer, "who does not think that the My Lai incident is abhorrent, because the President said it was."

Others raise doubts whether the autocratic military structure can ever permit a fair trial for Calley or anyone else who may be charged in the case. They suspect that the Army may well try to blame low-echelon officers in order to absolve the top brass--and to avoid an indictment of its conduct of the war in general.

Conversely, a number of lawyers contend that a military court may be biased in favor of Calley. The ten members of the court-martial, five or more of whom will ultimately decide Calley's fate, have already been chosen by Major General Orwin C. Talbott, commanding general at Fort Benning, Ga. All career officers at Fort Benning, they range in rank from captain to lieutenant colonel; five are in the infantry, two in the Signal Corps and three in other branches of the Army.

A career officer who has seen combat is in fact much more likely than a civilian juror to understand the strain on the G.I.s at My Lai. Professor Paul Liacos of Boston University Law School believes that Galley's fellow officers may well resist pressures from above to make him a scapegoat. Moreover, says Lia-cos, such men are "usually sophisticated compared with most juries, and it is harder to sway them by emotionalism."

Citing the Press. In Washington, Pentagon spokesmen insist that they are determined to see that Calley gets a fair trial. They point to recent changes in the Uniform Code of Military Justice that assure fair procedures by requiring, for example, that the military judiciary be independent of base commanding officers. But the main flaw in military justice remains "command influence." Members of a court-martial are doubtless sensitive to the wishes of their superiors. Basically, says Professor Alan Dershowitz of Harvard Law School, "I don't think any court-martial can be fair with the kind of control the military has over its men."

Whatever its hold on men in uniform, the Army lacks control over the press. In its free press-fair trial rules, the American Bar Association recommended that judges cite for contempt anyone who publishes material "willfully designed" to influence the outcome of a trial. It has not yet been suggested that any news organization has gone to that extreme in Galley's case. And even for civilian trials, the Supreme Court has not decided if a judge may cite a news organization for contempt without violating the First Amendment guarantee of a free press.

If Calley is convicted, the Supreme Court could ultimately decide that the rule against "prejudicial publicity" handed down in the Sam Sheppard case (1966) also entitles Calley to another trial. But the two cases are quite different. Sheppard was the victim of a newspaper campaign in one city that seemed a deliberate attempt to convict him. Nevertheless, no one ever demonstrated a direct connection between the jurors' verdict in that case and what they heard or read. In Galley's case, despite enormous publicity, both the facts and issues remain in dispute. No matter how many news reports he may have read, a juror will have to hear the courtroom testimony before he can truly decide Galley's guilt or innocence.

The real conflict is between an individual's rights and the public's insistence upon knowing the true story of an event that is of major moral and political importance. Convinced that in this case at least private right and public demand are irreconcilable, the American Civil Liberties Union has urged the Army to drop the charges against Calley. Instead, the A.C.L.U. recommends a broad investigation of the massacre by a presidential commission. Such an inquiry would presumably provide a far more objective forum for reaching the truth than a military court--though publication of its report might prejudice any later trials growing out of the My Lai affair. At any rate, with a hearing set for Jan. 20 on the defense argument that Calley cannot get a fair trial, his court-martial may not start until spring, if it is held at all.

* Including TIME and LIFE, the National Broadcasting Co., The Houston Chronicle and the Associated Press.

This file is automatically generated by a robot program, so reader's discretion is required.