Ordinary Heroes (3 page)

DAVID: REGARDING THE CHARGES AGAINST ME
CONFIDENTIAL

ATTORNEY-CLIENT COMMUNICATION

TO: Lieutenant Colonel Barrington Leach, Deputy Associate Judge Advocate, Headquarters, European Theater of Operations, U
. S
. Army (ETOUSA)

FROM: Captain David Dubin

RE: The Charges Against Me

DATE: May 5, 1945

I
have decided to follow your suggestion to set down the major details I recall regarding my investigation of Major Robert Martin of OSS an
d t
he ensuing events which will shortly bring me before this court-martial. Since I have no desire to discuss this with another soul, including you as my lawyer, I find writing a more palatable alternative, even while I admit that my present inclination is not to show you a word of this. I know my silence frustrates you, making you think I lack a full appreciation for my circumstances, but rest assured that the prospect of a firing squad has caught my attention. Yet as a member of the JAG Department who has both prosecuted and defended hundreds of general courts-martial in the year or so I have been overseas, I am fully convinced that I have nothing to say for myself. General Teedle charges that last month in Hechingen I willfully suffered Major Martin to escape from my lawful custody. And that is true. I did. I let Martin go. I intend to plead guilty because I am guilty. The reasons I freed Martin are irrelevant in the eyes of the law and, candidly, my own business. Let me assure you, however, that telling the whole story would not improve my situation one whit.

I may as well start by expanding on some of the information I routinely request of my own clients. I am a Midwesterner, born in 1915 in the city of DuSable in Kindle County. Both my parents were immigrants, each hailing from small towns in western Russia. Neither was educated beyond grade school. My father has worked since age fourteen as
a c
obbler, and owns a small shop a block from the three-flat where they raised my older sister, my younger brother, and me.

I was a good student in high school, and also won the Kindle County championship in the hundred-yard backstroke. This combination led me to receive a full scholarship to Easton College. Easton is only about twenty miles from my parents' apartment, but a world apart, the longtime training ground of the genteel elite of the Tri-Cities. As a man whose parents' greatest dream was for their children to become `real Americans,' I embraced Easton in every aspect, right down to the raccoon coat, ukulele, and briar pipe. I graduated Phi Beta Kappa, and then entered Easton's esteemed law school. Afterward, I was lucky enough to find work in the legal department of Moreland Insurance. My parents pointed out that I appeared to be the first Jew Moreland had hired outside the mail room, but I'd always endeavored not to look at things that way.

For two years, I tried small personal-injury lawsuits in the Municipal Court, but in September 1942, I enlisted. No one who cared about me approved. Both my parents and my sweetheart, Grace Morton, wanted me to wait out the draft, hoping against hope that I'd be missed, or at least limit my time in the path of danger. But I was no longer willing to put off doing my part.

I had met Grace three years earlier, when I fit her for a pair of pumps in the shoe section of Morton's Department Store, where I'd earned pocket money throughout college and law school. In her round-collared sweaters and tiny pearls and pleated skirts, Grace was the image of the all-American girl. But what most attracted me was not her blonde bob or her demure manner so much as her high-mindedness. She is the best-intentioned soul I have ever met. Grace worked as a schoolteacher in the tough North End and waited several months before letting on that her family owned the department store where I'd first encountered her. When I decided to enter the service, I proposed, so that we could remain together, at least while I was posted Stateside. She instantly agreed, but our marriage plans set off a storm in both families that could be calmed only by postponing the wedding.

After basic training at Fort Riley, I entered Officers Candidate School in the infantry at Fort Benning in Georgia. I was commissioned a Second Lieutenant on April 6, 1943. Two days later, I was transferred forthwith to the Judge Advocate General's Department. I had just turned twenty-eight, making me eligible for JAGD, and some thoughtful superior had put me in for reassignment. In essential Army style, no one asked what I preferred, and I probably don't know the answer to this day. Still ambivalent, I was sent to the stately quadrangle of the University of Michigan Law School to learn about the Articles of War. My graduation in the upper half of my class made my promotion to First Lieutenant automatic.

When I entered the JAG Department, I had requested service in the Pacific, thinking I was more likely to get within the vicinity of active combat, but in August 1943, I was sent to Fort Barkley, Texas, for a period of apprenticeship, so-called applicatory training as the Assistant Judge Advocate at the camp. I spent most of my time explaining legal options to soldiers who'd received Dear Johns from their wives and, as an odd counterpoint, sorting out the many conflicting Dependency Benefit Claims the Army had received from the five women a soldier named Joe Hark had married at his five prior postings, each without benefit of any intervening divorce.

In March 1944, I was at last reassigned overseas, but to the Central Base Station in London, rather than the Pacific. I was fortunate, however, to come under the command of Colonel Halley Maples. He was in his late fifties, and the picture of a lawyer, more than six feet tall, lean, with graying hair and a broad mustache. He seemed to hold a high opinion of me, probably because I, like him, was a graduate of Easton University Law School. Sometime in July, only a few weeks after D-Day, the Colonel was designated as the Staff Judge Advocate for the newly forming Third Army, and I was delighted when h
e a
sked me to serve as his acting assistant. I crossed the Channel on August i6, 1944, aboard the USS Holland, finally coming within the proximity of war.

The staff judge advocates were part of Patton's rear-echelon headquarters, and we traveled in the General's wake as the Third Army flashed across Europe. It was an advantageous assignment. We did none of the fighting, but time and again entered the French villages and towns jubilantly celebrating their liberation after years of Nazi occupation. From atop the beds of half-ton trucks and armored troop carriers, the infantrymen tossed cigarettes and chocolates to the crowds while the French uncorked bottles of wine hidden from the Germans for years and lavished kisses on us, more, alas, from whiskery old men than willing girls.

In the liberated towns, there was seldom any clear authority, while dozens of French political parties squabbled for power. Locals clustered about the police station and our military headquarters, seeking travel passes or trying to find the sons and fathers who'd been carried off by the Germans. The windows of stores purveying Nazi goods and propaganda were smashed with paving stones, while the cross of Lorraine, symbol of the French resistance, was painted over every swastika that could not be removed. Collaborators were routed out by mobs. In Brou, I saw a barmaid set upon by six or seve
n y
ouths in resistance armbands who cut off all her hair as punishment for sleeping with Nazis. She endured her shearing with a pliancy that might not have been much different from the way she'd accepted her German suitors. She said nothing, merely wept and sat absolutely still, except for one arm that moved entirely on its own, bucking against her side like the wing of some domesticated fowl engaged in a futile attempt at flight.

Patton was concerned that the chaotic atmosphere would affect our troops and looked to Colonel Maples and his staff to reinforce discipline. I and my counterpart, Anthony Eisley, a squat young captain from Dayton who had practiced law in his father's firm for several years, were assigned to try the large number of general courts-martial which were arising for fairly serious offenses--murder, rape, assault, major thefts, and insubordination--many of these crimes committed against French civilians. In other commands, these cases, especially the defense of the accused, were handled by line officers as an auxiliary duty, but Colonel Maples wanted lawyers trained in the Articles of Wai dealing with matters that could end in stiff prison sentences or, even, hanging.

The principal impediment in carrying out our assignment was that we had barely set up court when we were on the move again, as Patton's Army rampaged at an unprecedented pace across France.

Columns raced through territory even before navigators could post the maps at headquarters. We tried men for their lives in squad tents, with the testimony often inaudible as bombers buzzed overhead and howitzers thundered.

I felt grateful to be at the forefront of history, or at least close to it, and appreciated Colonel Maples as a commander. In the Army officers corps, being built on the double, it was not uncommon, even in the upper ranks, to find commanders who had never so much as fired a rifle in combat, but Maples was not merely a distinguished lawyer who'd risen to the pinnacle of a famous St. Louis firm, but also a veteran of the Great War, which had taken him through many of these towns.

In early September, headquarters moved again to Marson, from La Chaume, bringing us across the Marne. The Colonel asked me to drive with him in search of the field where he had survived the most intense battle he'd fought in. It was a pasture now, but Maples recognized a long stone fence that separated this ground from the neighbor's. He had been a twenty-five-year-old second lieutenant dug into one of the slit trenches that ran across this green land, no more than one hundred yards from the Germans.

There had been more fighting here again lately. In the adjoining woods, artillery rounds had brought down many of the trees, and tank tracks had rippe
d i
nto the earth. The dead personnel and spent materiel had been cleared away, but there were still several animals, cows and military horses, bloated and reeking and swarming with flies. Yet it was the battles of a quarter century ago which appeared to hold the Colonel. As we walked along the devastated field, he recalled a friend who had popped out to relieve himself and been shot through the head.

"Died like that, with his drawers around his knees, and fell back into the latrine. It was terrible. It was all terrible," he said and looked at me.

Beyond the fence on the neighbor's side, in a narrow culvert, we found a dead German soldier facedown in the water. One hand was on the bank, now withered with a bare leathery husk over what would soon be a skeleton. He was the first dead man I'd seen on a battlefield, and the Colonel studied the corpse for quite some time while I contended with my thumping heart.

"Thank God," he said then.

"Sir?"

"I thank the Lord, David, I shall be too old to come to this place again in war."

Back in the jeep, I asked, "Do you think we might have to fight another World War soon, sir?" Eisley, my courtroom colleague, believed that war with the Soviets was all but inevitable and might begin even before we'd mustered out. The Colonel greeted the idea with exceptional gravity.

"It must not happen, Dubin," he said, as if imparting the most consequential order. "It must not."

By the end of September, Patton's sprint across Europe had come to a virtual stop. Our armored divisions had outraced their supply lines, and the dusty tanks and half-tracks sat immobile awaiting fuel, while the weather turned from bright to gloomy, soon giving way to the wettest fall on record. The front stretched on a static line about ten miles south of the Vosges Mountains. In the interval, infantry replaced the armor and dug themselves into foxholes which, in an echo of the Great War, were only a couple hundred yards from those of the enemy. The Krauts reportedly hurled nighttime taunts. "Babe Ruth is Schwarz-black. Black niggers is at home fucking with your wife." We had plenty of German speakers in our ranks, kids from New York and Cincinnati and Milwaukee, who shouted out their own observations about the puniness of Hitler's balls, hidden under his dress.

The stall allowed the administrative staff, including the judge advocates, to make our first durable headquarters in Nancy early in October. Asa student of French in high school, I seemed to have acquired the impression that there was only one city to speak of in that country. But Nancy's center had been erected in the eighteenth century by a kin
g w
ithout a country, Stanislas Leszczynski, later to become Duke of Lorraine, with a grandeur and panache equal to my images of Paris. Patton's forward headquarters was in the Palais du Gouverneur, a royal residence at the end of a tree-lined arcade that resembled pictures I'd seen of the Tuileries. Our offices, along with other rear elements, were about a fifteen-minute walk across town, in the Lycee Henri Poincare, the oldest school in Nancy.

To process the backlog of cases that had collected as we were trying to keep up with Patton, Colonel Maples asked the personnel nabobs in G-1 to appoint two standing courts-martial. They ultimately assigned nine officers to each, allowing the members to attend to other duties on alternate days. Eisley and I, however, were in court seven days a week, ten hours a day. To break the routine we agreed to rotate roles as the prosecuting trial judge advocate, and as counsel for the accused.

The military tribunal was set up in the former party room of the school, where three dormitory dining tables had been pushed together. At the center was the most senior officer serving as president of the court-martial, flanked by four junior officers on either side. At the far left, Eisley or I would sit with our client, and on the opposite end whoever that day was the TJA. In the center of the room, a table of stenographers worked, taking down the testimony, while a single straight-backed chair was reserved for the witness. The president of one panel was Lieutenant Colonel Harry Klike, a bluff little prewar noncom who'd risen through the Quartermaster Corps and was determined to exhibit the cultivation he believed appropriate for an officer and gentleman. Each day's session ended with Klike officiously announcing, "The court-martial stands adjourned until zero eight hundred tomorrow, when we will reconvene to dispense with justice." No one, as I recall, had the heart to correct him.