I. Introduction
If you will go back and serve in your company honorably until this war is over, you’ll get an honorable discharge and not the death sentence.
-General Dwight D. Eisenhower[1]
It was 7:30 in the morning when they arrived at No. 86.[2] The weather was cold and miserable, and the fifteen inches of snow made the morning’s journey from Paris, through the Vosges Mountains of Alsace, to the small town of St. Marie-aux-Mines rather difficult.[3] Nevertheless, the officers were friendly toward the Private who, perhaps half joking and half serious, propositioned them to let him get a running start.[4] Sergeant McKendrick later commented: “I guess most of us would rather get it running than standing at a post.”[5]
No. 86 was a former French civilian home enclosed by a high stone wall.[6] Upon entering the premises, the officers allowed the Private to spend several hours with Father Cummings. Then it was time. Sergeant McKendrick tied the Private’s hands with nylon rope.[7] In another room, twelve rifles sat on a large table.[8] Major Fellman and Lieutenant Koziak worked together away from the riflemen to load the rifles with life ammunition, all except for one.[9] After the riflemen claimed their weapons, Fellman apologetically informed the Private that he would have to read the order one last time while the Private stood at the post.[10] “That’s all right, Major,” the Private replied. “I’ve heard it so many times, one more time won’t do any harm. But read fast, will you?”[11] Nobody, including the Private, cared to be out in the cold any longer than necessary. The Major put a blanket around the Private’s shoulders.[12
At 9:56 a.m., a procession moved out into the garden and toward the designated post.[13] The Major and Father Cummings led, then the Private, then Sergeants Hess and McKendrick, followed by Private White.[14] Once the Private reached the post, Fellman quickly read the order.[15] When he finished reading, the Major asked, “Private Slovik, do you have a statement to make before the order directing your execution is carried out?”[16] The Private answered in the negative.[17] Father Cummings asked, “Private Slovik, do you have a last statement to make to me, as a chaplain, before your death?”[18] Again, the Private answered in the negative.[19] The Private was then bound to the post with more nylon rope.[20] As McKendrick pulled the hood over his head, Father Cummings said, “Eddie, when you get Up There, say a little prayer for me.”[21] The Private replied, “Okay, Father. I’ll pray that you don’t follow me too soon.”[22] At 10:05 a.m.,[23] as the Private stood straight, tall, and void of emotion, the Major gave the order to “Fire.”[24]
On November 11, 1944, the United States Army convicted by general court-martial Private Eddie Slovik of desertion and subsequently sentenced him to death.[25] Of the 21,049 soldiers sentenced for desertion during the World War II (“WWII”), fifty-seven soldiers, including Slovik, received a death sentence.[26] Dwight D. Eisenhower, Commanding General of the European Theater of Operations (“ETO”), initially confirmed two.[27] Slovik’s was the only one carried out.[28] Slovik remains the only American serviceman executed for desertion since 1864,[29] and the Slovik case has become a “cause célèbre,” and several books and movies have portrayed the story in various capacities[30]. Paving the way was William Bradford Huie’s book, The Execution of Private Slovik.[31] In it, Huie questions the fairness of Slovik’s draft classification, the fairness of the replacement system, the United States’ prosecution of WWII, the singling out of Slovik for execution[32] and whether Slovik’s case was even the most flagrant case of desertion,[33] whether the execution served to make an example of Slovik,[34] and whether Slovik’s treatment by the United States Army was just.[35] Although each of these issues is worthy of further discussion, this article will generally focus on the last of these issues insofar as it relates to the legal issues in military criminal justice and procedure.[36] Specifically, this article will address (1) whether Private Slovik was appropriately charged[37] and (2) whether Slovik received a fair trial under the rules for courts-martial in effect at the time.
II. Background to Slovik and His Court-Martial
They’re shooting me for bread I stole when I was twelve years old . . . .
-Private Eddie Slovik[38]
Eddie Slovik was born in Detroit on the 18th of February, 1920.[39] His parents were immigrants.[40] His father, a native of Poland, was originally named Slowikowski and was a punch press operator at an auto plant.[41]
Slovik’s police record began at age twelve.[42] At age fifteen he dropped out of school.[43] He spent much of his youth in the Michigan Reformatory School for stealing candy, gum, and cigarettes.[44] Just short of age eighteen, Slovik was sentenced to prison for embezzling $59.60 over a six-month period.[45] Within four months of his release, Slovik boosted a car and was sent back to prison.[46]
In April of 1942, Slovik was released from prison on parole. A free man but an ex-convict, he was classified by the selective service as IV-F (unfit for duty).[47] He got a job at Montella Plumbing Company in Dearborn.[48] There he met Antionette Wisniewski,[49] and the two married on November 7th of that year, and they moved in with Antoinette’s parents.[50] Slovik then got a job at a plant in DeSoto, and the two moved into their own duplex.[51] One year after his marriage, the Army reclassified Slovik I-A (fit for duty).[52] Slovik had been drafted.[53]
On January 24, 1944, Slovik was sent to Camp Wolters in Texas for basic training and then on to Fort George G. Meade.[54] Sometime after July 25, 1944, Slovik left Fort Meade as part of a group of replacements headed for the ETO.[55] En route, while cleaning his rifle, Slovik told his friend Private John Tankey, “I never intend to fire it.”[56] Upon arriving at Omaha Beach, the group proceeded toward the Third Replacement Depot in France where Slovik and fourteen others were assigned to the 28th Infantry Division.[57] The group was then assigned to Company G, 109th Infantry.[58]
On August 25, 1944, Slovik and the group of replacements were put in a truck set for Elbeuf to meet up with their new unit.[59] They rode through “countryside that looked like remnants of Hell itself. Everywhere were endless piles of bodies, charred horseflesh, and tangled, twisted wreckage.”[60] George W. Thompson, one of the replacements, testified for the prosecution regarding the events that followed:
Q: Tell just what happened after you entrucked to go to Company G.
A: Well, we got on the trucks at Division and sometime after that, I don’t know how long, probably two or three hours, we stopped at some place which seemed to be more or less of a rest camp or something. We dropped out packs off there and got on the trucks again and went to Elbeuf where we again detrucked.
Q: When was the last time you saw Private Slovik?
A: We detrucked and moved along the edge of the city a way and then we dug in about 11:00 o’clock that night in an open lot. About 11:30 we moved into the city to join our company.
Q: Was Slovik with the group when you dug in at this place?
A: Yes sir.
Q: You saw him there?
A: Yes sir.
. . . .
Q: Did you see him any time after that?
A: We moved into the city about 11:00 o’clock to join our company. It took quite a while because there was a lot of confusion. We moved around some but stayed close together so none of us would get lost. That’s the last time I saw him.
Q: Was there any action at that place?
A: There was a lot of troop movement and shelling.
. . . .
Q: Up until the present time, has your company been generally fighting and campaigning in this invasion?
A: Yes sir.
Q: During any of that time since August 25th until the present time, to your knowledge has Private Slovik been present with his company for duty?
A: Not that I know of.[61]
On cross examination, Slovik’s defense counsel attempted to clarify the last time Private Thompson knew with any certainty whether Slovik was with the group:
Q: You say that you last saw him at approximately 2300?
A: It might have been a little bit later.
Q: You saw him at Elbeuf?
A: Yes sir.
Q: Was that after 2300?
A: It was probably a couple of hours after that.
Q: It was dark. How do you know that he was actually there?
A: I know his voice.
Q: You did recognize his voice at Elbeuf?
A: Yes sir.[62]
Though not presented at trial, Slovik and Tankey had both remained behind in Elbeuf,[63] and the two eventually ended up with a Canadian outfit.[64] While with the Canadians, Slovik did various jobs from cooking to the extremely hazardous work of clearing minefields.[65] It was during this time that Slovik stopped carrying ammunition and replaced it with stationary he had collected.[66] On October 8th, forty-four days after the incident in Elbeuf, Slovik and Tankey rejoined their unit somewhere in Belgium.[67] Captain Ralph O. Grotte testified about Slovik’s return to Company G as follows:
Q: What was your company doing at that time?
A: It was reorganizing.
Q: Were you in contact with the enemy?
A: Not at that time.
Q: Tell the court how you first made your acquaintance with this soldier.
A: Private Slovik reported to me. A Sergeant Major from the battalion brought Slovik to my C.P. and I assigned Slovik to the Fourth Platoon and turned him over to Lieutenant Owens who was the Platoon Leader. Lieutenant Owens took him over to his platoon and introduced him to the Squad Leader. I had forbade him to leave the company area unless he had permission from me.
Q: What were the circumstances?
A: He had been absent without leave and had been returned to me through the battalion.
Q: As long as you were commanding officer of the company, had any permission been given Slovik to be absent?
A: No sir.
. . . .
Q: What happened then?
A: He came to me and asked me if he could be tried for being absent without leave. I told him I would find out and had him placed in arrest and had him returned to the platoon area, and told him to stay in that area.
Q: Did he return there?
A: No sir. He left me and was not seen in the company after that.
Q: What did he do?
A: About an hour later he asked me “If I leave now will it be desertion?”.
Q: When he asked “If I leave now will it be desertion?”, what did you tell him?
A: I said that it would be.
Q: Has he been present with your company for duty since that time? Since 8 October 1944?
A: No sir.
. . . .
Q: Would you say [your company] has been campaigning generally since that time?
A: Yes sir.
Q: On occasions before and since 8 October 1944 has it been in close contact and fighting with the enemy?
A: Yes sir.[68]
Upon learning that if he left it would be considered “desertion,” Slovik set down his rifle and quickly walked away from Grotte. Grotte then instructed Private Tankey, who was nearby, “Soldier, you better stop your buddy. He is getting himself into serious trouble.” When Tankey caught up to Slovik, Slovik jerked away and said, “I know what I’m doing.”[69] This incident was not presented at trial.
On the morning of October 9, 1944, Slovik turned himself in at a nearby field kitchen.[70] Private William C. Schmidt testified on direct for the prosecution:
I was detailed as a cook that day when about 8:30 this fellow came to the front door and handed me a green slip of paper with writing on it and said he had made a confession. I then asked him to come in and he came and I went on with my work. He came to the kitchen and asked for something to eat and so I gave him some and he helped wash the dishes. I told the commanding officer about him and he came to the commanding officer and gave him the green slip of paper with the confession on it.[71]
Second Lieutenant Thomas F. Griffin also testified for the prosecution:
Private Schmidt who was cook that day told me that this Private Slovik had came in earlier that morning and said that he told him he thought we were MP’s and wanted to surrender to us. I called the S-1 of the 109th Infantry and told him that we had one of his men who was absent without leave and would they send someone to get him. About 12:30 or a quarter until One the Sergeant came over and took him back with him.[72]
During the testimony of First Lieutenant Wayne L. Hurd, the court admitted into evidence Slovik’s confession, which read:
I Pvt. Eddie D. Slovik #36896415 confess to the Desertion of the United States Army. At the time of my Desertion we were in Albuff [sic] in France. I came to Albuff [sic] as a Replacement. They were shelling the town and we were told to dig in for the night. The following morning they were shelling us again. I was so scared nerves and trembling that at the time the other Replacements moved out I couldn’t move. I stayed their [sic] in my foxhole till it was quite [sic] and I was able to move. I then walked in town. Not seeing any of our troops so I stayed over night at the French hospital. The next morning I turned myself over to the Canadian Provost Corp. After being with them six weeks I was turned over to American M. P. They turned me lose. I told my commanding officer my story. I said that if I had to go out their [sic] again I’d run away. He said their [sic] was nothing he could do for me so I ran away again AND I’LL RUN AWAY AGAIN IF I HAVE TO GO OUT THEIR [sic].
Signed Pvt. Eddie D. Slovik
A. S. N. 36896415[73]
Lieutenant Hurd testified regarding the written confession:
I was standing in front of the orderly room at Rocherath, Belgium when Staff Sergeant Promberg brought Slovik in. He had evidently been over to 112th Military Government Detachment and Lieutenant Griffin had told the Sergeant to bring him over when he drove over to the orderly room. . . . Slovik handed me a green slip of paper. I read the green slip of paper and told the Sergeant to take Slovik to the MP’s and I would call for him later. I took the green slip of paper which Slovik had handed me and gave it to the Adjutant and then turned it over to Colonel Henbest. Later on Colonel Henbest called me down and in Slovik’s presence Slovik signed the slip and then Colonel Henbest signed and also me.[74]
Slovik was then confined to the stockade.[75] Lieutenant Colonel Henry Sommer, Division Judge Advocate, offered to suspend action on Slovik’s court-martial if he would return to the front line, but Slovik refused.[76] Slovik was warned that desertion in a time of war carried a capital offense, but Slovik remained adamant: “I’ve made up my mind. I’ll take my court martial.”[77] Following a brief investigation, Slovik was charged with desertion under Article 58 of the Articles of War.[78]
III. Slovik’s Court-Martial and Review
[I don’t think] a single member of that court actually believed that Slovik would ever be shot. I know I didn’t believe it.
-Colonel Guy Williams[79]
Slovik’s trial by court-martial took place in the “grimmest surroundings and during the worst time the division had endured, a stalemate in the Hürtgen Forest.”[80] The Battle of the Bulge yielded high casualty rates in the 109th Infantry, and desertion became a serious problem.[81] In order to discourage desertion, Eisenhower and Division Commander General Norman D. Cota, unbeknownst to Slovik, were looking to make an example out of someone.[82]
The trial was held in a two-story building in the village of Rötgen, Germany on a cold, gray, and snowy day.[83] Colonel Guy Williams presided as president over the court-martial.[84] The members of the court were all staff officers, none of whom had been close to actual combat.[85] Edward Partrick Woods, Slovik’s defense counsel, had served on previous courts-martial, but he was not an attorney.[86]
The prosecution presented its case in the form of uncontradicted evidence consisting of direct testimony and Slovik’s confession as set out above.[87] The defense presented no evidence of any kind. In fact, the defense did very little apart from lodging a few objections to certain questions, all of which were overruled, and cross-examining one witness. At one point a member of the court suggested that Slovik withdraw his statement on refusing to return to the battlefield, essentially removing the death penalty from the table. Captain Benedict B. Kimmelman, an officer-judge on Slovik’s court-martial, recalled Slovik’s reaction: “[He turned] silently to his defense counsel, who declared, ‘Let it stand,’ which seemed to satisfy Slovik.”[88]
After the prosecution presented its evidence, the members of the court deliberated. “None of us in closed court had voiced any doubts about his guilt. There was brief disagreement about the nature of the death penalty to be imposed, whether it should be by hanging or firing squad, but consensus was quickly reached on the firing squad, as the less dishonorable means.”[89]
The trial was over in one hour and forty minutes.[90] Colonel Williams pronounced the sentence: “To be dishonourably discharged [from] the service, to forfeit all pay and allowances due or to become due and to be shot to death with musketry.”[91]
After the trial came the appeals process which began with confirmation of the sentence under Article 48.[92] First, on November 27, Cota approved the death sentence upon recommendation from Staff Judge Advocate Henry J. Sommer.[93] Cota later commented on the approval: “Given the situation as I knew it in November 1944, I thought it was my duty to this country to approve that sentence. If I hadn’t approved it—if I had let Slovik accomplish his purpose—then I don’t know how I could have gone up to the line and looked a good solder in the face.”[94]
The confirmation went next to a board of review and the office of the Theater Judge Advocate E. C. Betts.[95] In the interim, Slovik wrote a plea for clemency to Eisenhower, which the Judge Advocate had before him.[96] In it, Slovik wrote that he would “like to continue to be a good soldier,” but he made no offer to return to infantry duty.[97] Assistant Judge Advocate Frederick J. Bertolet, writing on behalf of the board of review, expressed his opinion clearly:
[Slovik’s] prior offenses . . . indicate a persistent refusal to conform to the rules of society in civilian life, an imperviousness to penal correction and a total lack of appreciation of clemency . . . .There can be no doubt that he deliberately sought the safety and comfort of the guardhouse. To him and to those soldiers who may follow his example, if he achieves his end, confinement is neither deterrent nor punishment. He has directly challenged the authority of the government, and future discipline depends upon a resolute reply to this challenge. If the death penalty is ever to be imposed for desertion it should be imposed in this case, not as a punitive measure nor as retribution, but to maintain that discipline upon which alone an army can succeed against the enemy.[98]
On December 23, 1944, during some of the fiercest fighting of the Battle of the Bulge, Eisenhower confirmed the death sentence.[99] This completed the Article 48 confirmation.[100]
Next came a review of the record of the trial under Article 50½.[101] First, a board of review found the record legally sufficient to uphold the conviction.[102] Then, on January 6, Assistant Judge Advocate General E. C. McNeil followed suit:
This is the first death sentence for desertion which has reached me for examination. . . . In this case, the extreme penalty of death appears warranted. This soldier had performed no front line duty. He did not intend to. He deserted from his group of fifteen when about to join the infantry company to which he had been assigned. His subsequent conduct shows a deliberate plan to secure trial and incarceration in a safe place. The sentence adjudged was more severe than he had anticipated, but the imposition of a less severe sentence would only have accomplished the accused’s purpose of securing his incarceration and consequent freedom from the dangers which so many of our armed forces are required to face daily. His unfavorable civilian record indicates that he is not a worthy subject of clemency.[103]
There were no more appeals to be had. Under the Articles of War, Eisenhower was then in position to order the execution.[104] On January 23, 1945, he did exactly that.[105]
IV. Was Slovik Appropriately Charged?
There was no evidence to show that Eddie Slovik ever formed an intention to desert.
-Geoffrey Perret[106]
Slovik was charged with straight desertion under Article 58.[107] The charge contained two specifications correlating to two alleged incidents of desertion.[108] The first specification (“Specification One,” correlating to “Incident One”) read:
In that Private Eddie D. Slovik, Company G, 109th Infantry did, at or near Elbeuf, France, on or about 25 August 1944, desert the service of the United States by absenting himself without proper leave from his organization, with intent to avoid hazardous duty and to shirk important service, to wit: action against the enemy, and did remain absent in desertion until he was delivered to United States military authorities at or near Brussels, Belgium, on or about 4 October 1944.[109]
The second specification (“Specification Two,” correlating to “Incident Two”) read:
In that * * * did, at or near Rocherath, Belgium, on or about 8 October 1944, desert the service of the United States by absenting himself without proper leave form his organization, with intent to avoid hazardous duty and to shirk important service, to wit: action against the enemy, and did remain absent in desertion until he surrendered himself at or near Rocherath, Belgium, on or about 9 October 1944.[110]
Article 58 states, in pertinent part, that “[a]ny person subject to military law who deserts or attempts to desert the service of the United States shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct . . . .”[111] Acts of desertion are defined under Article 28, which states that “[a]ny person subject to military law who quits his organization or place of duty with the intent to avoid hazardous duty or to shirk important service shall be deemed a deserter.”[112] A charge under Article 58, thus, requires proof of intent to either avoid hazardous duty or shirk important service, and case law at the time held that Article 28 required intent “to exist at the time the accused quit his organization or place of duty.”[113]
Prosecutors should have been hesitant to rely strictly on Slovik’s confession alone to show his intent under an Article 58 prosecution. The confession was factually insufficient to show intent,[114] and proving intent under Article 28, especially without a sufficient confession, was no easy task.[115] In practice, prosecutors sometimes relied on a prolonged absence by the accused of more than two months.[116] However, many times the period of absence fell below two months and “the problem of proving intent became more acute.”[117] In such instances, prosecutors used a number of relevant factors to show intent on the part of the accused: (1) escape from confinement, (2) breach of arrest pending other charges, (3) the commission of crimes such as larceny, robbery, or burglary, (4) participation in black-market operations, (5) civilian employment, (6) absence with knowledge of imminent embarkation or in the shadow of approaching combat, (7) concealment of identity during absence, (8) travelling great distances, (9) possession of forged passes and travel orders, (10) living with civilians, (11) leaving or attempting to leave the ETO, or (12) resisting arrest.[118] In sum, prosecutors bringing charges under Article 58 had to use circumstantial evidence in order to prove intent under Article 28.
In contrast to Article 58, Article 75, “Misbehavior Before the Enemy,” carries the same maximum penalty but requires no showing of any intent:
Any officer or soldier who, before the enemy, misbehaves himself, runs away, or shamefully abandons or delivers up or by any misconduct, disobedience, or neglect endangers the safety of any fort, post, camp, guard, or other command which it is his duty to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, . . . shall suffer death or such other punishment as a court-martial may direct.[119]
If, under the facts of Incident One, Slovik’s failure to move out under order[120] with the other replacements constituted “misconduct, disobedience, or neglect” that endangered “the safety of any fort, post, camp, guard, or other command” while “before the enemy,”[121] an Article 75 charge would have been a much easier case to prove because the prosecution could avoid intent.[122] Although the facts of Incident One are problematic from the prosecution’s standpoint under either charge because they could so easily be construed in so many ways—for instance, as two soldiers merely getting lost[123]—the Article 75 charge is less problematic. That should have appealed to Slovik’s prosecutors. The facts of Incident Two, however, reach a different result under Article 75 because Slovik was not “before the enemy” during that incident.[124] Under those facts, prosecutors should have settled for Article 61 charges.[125]
In contrast to Article 75, Article 58 charges should have been much more difficult for the prosecution to prove. An insufficient written confession to show intent notwithstanding, the problem of proving intent under Article 28 in either incident should have been a major concern since, during both incidents, Slovik was gone less than two months and he did not attempt to escape, commit a crime, participate in black-market operations, obtain civilian employment, conceal his identity, possess forged documents, live with civilians, leave the ETO, or resist arrest. Some of the other factors, although not emphasized during trial, might have helped the prosecution: (1) absence with knowledge of imminent embarkation or in the shadow of approaching combat; (2) travelling a great distance; or (3) breach of arrest pending other charges. However, it was at least arguable that Slovik did not absent himself with knowledge of imminent embarkation or in the shadow of approaching combat. During Incident One it could have been argued that (1) Slovik never heard the order to move out, (2) the replacements left without Slovik and he merely failed to keep up, (3) there was no shadow of approaching combat at the time the replacements moved out, or (4) he simply got lost. During Incident Two, there was no imminent embarkation or a shadow of approaching combat: Captain Grotte testified the company was “reorganizing” and that it were not in contact with the enemy at that time. As to the second factor, while Slovik did travel a great distance between August 25 and October 8, he did so only after turning himself over to the Canadian outfit. Perhaps the most damaging piece of evidence against Slovik was with regard to the third factor. Grotte had placed Slovik under arrest after Incident One and ordered him not to leave the platoon area. Thus, leaving the area was a breach of his arrest. However, Slovik’s exact location during that brief time period was never ascertained.[126] Theoretically, he could have been hiding somewhere within the platoon area and, thus, not have violated Grotte’s order.
With the arguably troublesome issue of proving intent under both incidents and the relatively non-problematic case against Slovik under Article 75, why did prosecutors charge Slovik under the former and not the latter? The answer, in part, is wartime strategy and politics. Eisenhower wanted to centralize the determination of punishment policies in his office as opposed to permitting referrals to President Roosevelt.[127] The theater judge advocate’s office had conducted an examination of trials under Article 58 and trials under Article 75, and it found “no real line of demarcation . . . between the two offenses.”[128] Eisenhower’s plan was to take advantage of Article 48, “Confirmation—When Required.”[129] That Article required confirmation by the President in certain instances before a court-martial sentence is carried out.[130] For example:
Any sentence of death, except in the cases of persons convicted in time of war of murder, rape, mutiny, desertion, or as spies; and in such excepted cases a sentence of death may be carried into execution . . . upon confirmation by the commanding general of the Army in the field or by the commanding general of the territorial department or division.[131]
When a soldier was sentenced to death under Article 75, the rule required confirmation of that sentence by the President of the United States. However, in cases of desertion under Article 58, confirmation by the commanding General of the Army in the field, Eisenhower, was sufficient. Aware of this, Eisenhower directed the following letter be sent from the theater judge advocate’s office to all officers entitled to convene general courts-martial:
The Theater Commander directs that I acquaint you with his desire that, where the expected evidence in any case establishes prima facie guilt by any member of the forces under his command of such misbehavior before the enemy as constitutes desertion, consideration be given to charging the offense as a violation of AW 58.[132]
The letter had a pronounced effect, and “[s]oon after its issuance cases reached the Theater Judge Advocate’s office in which charges of misbehavior before the enemy had been changed to short desertion.”[133] In sum, Eisenhower’s desire to centralize punishment policies and his authority to do so was likely the influential factor on prosecutors who opted to bring charges against Slovik under Article 58 and not Article 75. For Slovik, this meant not only one less appeal, it meant no appeal on United States soil where such extreme measures to dissuade desertion might not have seemed as necessary as they did to Eisenhower. In all likelihood, it meant for Slovik the difference between life and death.[134]
V. In Any Event, Did Slovik Receive a Fair Trial?
[T]here cannot be a fair trial under unfair circumstances.
-Benedict B. Kimmelman[135]
Assuming that Article 58 charges were the most appropriate charges to be brought in the Slovik case, a question of whether Slovik received a fair trial requires additional elaboration and tailoring. Slovik’s actions and his subsequent court-martial occurred during WWII on the European front during and in close proximity to the Battle of the Bulge. Some aspects of fairness and impartiality could not logistically be overcome.[136] The Articles of War and the Manual for Courts-Martial, however, set out various procedural requirements for courts-martial, and these procedures should have been followed categorically.[137] Thus, any appropriate questions on the fairness of Slovik’s trial should (1) be asked in light of the state of war of the time and (2) begin with analysis under the Articles of War and Manual for Courts-Martial.[138] With these considerations in mind, two specific questions will be addressed: (A) whether Slovik had adequate legal defense; and (B) whether the prosecution proved the requisite intent beyond a reasonable doubt.
A. Did Slovik have adequate legal defense?
Slovik’s attorney was not a lawyer. Did that fact alone violate Slovik’s rights under the Articles of War or under the Manual for Courts-Martial? Article 17 states, “The accused shall have the right to be represented in his defense before the court by counsel . . . reasonably available, otherwise by the defense counsel duly appointed for the court pursuant to Article 11.”[139] Article 11 states, “For each general . . . court-martial the authority appointing the court shall appoint . . . a defense counsel . . . and one or more assistant defense counsel when necessary . . . .”[140] Thus, the minimum requirements under the Articles of War for Slovik’s court-martial called for “defense counsel” and an assistant when necessary, both of which Slovik had.[141] The Articles do not specifically mention any requisite qualifications of the defense counsel.
Paragraph 45(b) of the Manual for Courts-Martial outlines the duties of defense counsel.[142] It states that defense counsel “will guard the interests of the accused by all honorable and legitimate means known to the law.”[143] Thus, as to defense counsel’s qualifications, this rule required only that Slovik’s defense counsel know the law. While a legal education would likely be sufficient to satisfy this requirement, it probably was not necessary. Furthermore, Woods had experience trying cases.[144] The same court-martial that tried Slovik tried twenty-four other cases, and Captain Woods served as defense counsel in each of them.[145] In Slovik’s case, Woods demonstrated ability by lodging several appropriate objections to certain questions by the prosecution.[146] The mere fact that Woods did not have a formal legal education did not appear to make him inadequate, and all things considered, Slovik’s rights under both the Articles of War and the Manual for Courts-Martial were not infringed per se by his counsel’s lack of formal legal education.
The inquiry, however, should not end there. Did Slovik’s defense counsel factually “guard the interests of the accused by all honorable and legitimate means known to the law”?[147] Answering this question is difficult because, in all likelihood, Slovik wanted a conviction.[148] That said, defense counsel had several strategies he could have employed. First, under Article 20, defense counsel could have moved for a continuance.[149] Article 20 allows a court-martial, “for reasonable cause, [to] grant a continuance to either party for such time and as often as may appear to be just.”[150] Defense counsel could have argued that Slovik had little chance of getting a fair trial from a court-martial of all officers unfamiliar with actual combat and while on foreign soil, and that a continuance be granted until conditions were more suitable in the interest of justice. Second, defense counsel should have recommended clemency[151] and, in doing so, should have (1) presented testimony that Slovik was a non-violent person with a non-violent criminal record,[152] (2) emphasized mitigating evidence presented at trial, such as the testimony that Slovik helped with the dishes at the field kitchen,[153] and (3) introduced any additional mitigating evidence, such as his hazardous volunteer work of clearing minefields while with the Canadians.[154] Such evidence might have been enough to persuade the court to vote against the death penalty. These strategies represent “legitimate means” to “guard the interests” of Private Slovik—namely, his life.[155] While defense counsel’s efforts do not amount to a violation of Slovik’s rights under paragraph 45(b), Woods could have done more.
B. Did the prosecution prove intent?
The Manual for Courts-Martial specifically addresses the issue of proving intent: “In certain offenses, as murder, larceny, burglary, and desertion, a specific intent is a necessary element. In such a case the specific intent must be established either by independent evidence . . . or by inference from the act itself.”[156] Also, the manual specifies in paragraph 78 the appropriate burden of proof for any element of the crime:
In order to convict of an offense the court must be satisfied, beyond a reasonable doubt, that the accused is guilty thereof. By “reasonable doubt” is intended not fanciful or ingenious doubt or conjecture but substantial, honest, conscientious doubt suggested by the material evidence, or lack of it, in the case. It is an honest, substantial misgiving, generated by insufficiency of proof. . . .
The rule as to reasonable doubt extends to every element of the offense. Thus, if, in a trial for assault with intent to kill, a reasonable doubt exists as to such intent, the accused cannot properly be convicted as charged, although he might be convicted of the lesser included offense of assault. Prima facie proof of an element of an offense does not preclude the existence of a reasonable doubt with respect to such element. The court may decide, for instance, that the prima facie evidence presented does not outweigh the presumption of innocence.
. . . .
A reasonable doubt may arise from the insufficiency of circumstantial evidence, and such insufficiency may be with respect either to the evidence of the circumstances themselves or to the strength of the inference from them.[157]
In short, the prosecution was required to prove the specific intent under Article 58 beyond a reasonable doubt. It did not do so.
At trial, the prosecution relied almost exclusively on Slovik’s written confession to show the requisite intent. The confession alone, however, was factually insufficient to infer intent. In his confession, Slovik first confessed to “desertion.”[158] This is a legal conclusion and not a factual statement. Slovik could not have known the legal difference between AWOL and desertion.[159] Initially he wanted to be tried for AWOL after Incident One. His understanding of “desertion” from his confession was based entirely on his exchange with Captain Grotte. Not knowing exactly what desertion was, Slovik asked Grotte, “If I leave now will it be desertion?” Incorrectly, Grotte told him that it would be. Grotte should have said, “It depends. Are you intending to avoid hazardous duty or to shirk important service?” According to the case law of the time, Grotte, without knowing what Slovik’s intention was at that very moment, could not know whether Slovik’s leaving would constitute desertion. Furthermore, no inference could be made from Grotte’s testimony as to whether Grotte had assumed Slovik had the requisite intent. Grotte gave no indication that he was under the impression that Slovik was intending at that time “to avoid hazardous duty or shirk important service.”[160] Thus, Slovik, being misinformed by Grotte, incorrectly believed that his action of leaving constituted desertion instead of AWOL. His confession to desertion was actually a confession to AWOL. Grotte’s testimony offers support for this conclusion on two occasions: (1) when Grotte, referring to Incident One, testified specifically that Slovik was AWOL; and (2) when Grotte testified that Slovik asked if he could be tried for AWOL regarding Incident One.[161] At no point prior to Slovik’s arrest, apart from his misconstrued written confession, was the word “desertion” ever mentioned regarding Incident One.
Second, in his confession to desertion Slovik described only Incident One as his “desertion”; he then discussed Incident Two only in factual terms and not as a confession to desertion.[162] Thus, Slovik’s statement regarding Incident Two was not part of any confession to any crime, but rather it was a mere recitation of facts and should only be construed as facts. Assuming Slovik knew exactly what desertion was, which he didn’t, Slovik was not claiming that he committed desertion in reciting the facts of Incident Two. He was merely telling the whole story of how he came to have the charges brought against him.
Third, there is absolutely no mention or inference in Slovik’s confession regarding his intent. With regard to the Incident One, Slovik stated only that he “couldn’t move.”[163] One cannot logically infer any intention on the part of Slovik from his statement that he merely couldn’t move. If anything, one can only infer that he was physically incapable of movement or physically restrained in some way. Slovik may well have fully intended to join his group at that moment, but he simply “couldn’t move.”[164] With regard to Incident Two, the most plausible interpretation of what he meant by either “I ran way” or “I’LL RUN AWAY AGAIN” is that “I will be away against any orders stating otherwise.”[165] Again, this statement, while damaging on an AWOL charge, infers no intent on the part of Slovik whatsoever. He did not say why he ran away or why he would run away again. For all anyone knows, Slovik might have simply not liked loud noises and intended only to avoid them at all costs; he may have been happy to throw himself into hazardous duty (such as clearing mine fields while with the Canadians)[166] or tackle important service as long as there were absolutely no loud noises involved. Slovik’s confession, while ripe with evidence of factual events that occurred and damaging of an AWOL charge, admitted at best circumstantial evidence of his intent—evidence that was insufficient to overcome his presumption of innocence.[167]
Apart from Grotte’s erroneous testimony, there was no other evidence presented at trial as to Slovik’s intent. Lieutenant Griffin testified that he called the S-1 at the 109th Infantry and reported that he had one of his men who was “absent without leave.”[168] Thus, not only did the prosecution fail to present any one witness to show intent under Article 58, at least one witness thought Slovik was actually guilty of AWOL. In conclusion, the prosecution failed to meet its burden of proof on the issue of intent.[169] Therefore, under paragraph 78 of the Manual for Courts-Martial, the members erred in finding Slovik guilty of desertion; they should have found him guilty of only the lesser included offense under Article 61: “Absence Without Leave.”
VI. Conclusion
I believe that in the beginning he thought he could “beat-the-rap,” but as the inexorable process of military law became eventually inescapable he probably succumbed to some deep death wish, which we so frequently encounter when life fails us or we fail life.
-Dr. Robert E. Rougelot[170]
One can only hope that the ultimate injustice suffered by Eddie Slovik actually served as an example for other soldiers and effectively reduced the number of desertions during the remaining months of WWII. This conclusion, however, is speculative at best.[171] While, at the time, the execution of a deserter might well have been a prudent action to take, Eisenhower and the Judge Advocates should have taken greater care in selecting an appropriate case of which to make an example. Because, as charged, he was guilty only of being AWOL, Eddie Slovik’s case was not it.
[1] Carlo D’Este, Eisenhower—A Soldier’s Life 629 (2002) (what Eisenhower asserts he instructed his JAG to say to Slovik, to which Eisenhower reports he was told Slovik replied, “[b]aloney”). In reality, no one from the Supreme Headquarters Allied Expeditionary Force (“SHAEF”) was ever sent to Slovik’s 28th Division before his execution. Id.; Geoffrey Perret, Eisenhower 333 (1999).
[2] William Bradford Huie, The Execution of Private Slovik 199-200 (Delacorte Press 1970) (1954); Zena Simmons, The Execution of Pvt. Eddie Slovik, Detroit News, Aug. 25, 1999, at *1, available at http://info.detnews.com/redesign/history/story/historytemplate.cfm?id=103&CFID=12195516&CFTOKEN=73812108; Edward Patrick Woods, United States vs. Private Eddie D. Slovik 135 (1979).
[3] Alfred Avins, The Execution of Private Slovik and Punishment For Short Desertion, 30 Geo. Wash. L. Rev. 785, 785 (1962), available at http://heinonline.org/HOL/Page?handle=hein.journals/gwlr30&id=1&size=2&collection=journals&index=journals/gwlr (select p. 785 from drop-down menu); Huie, supra note 2, at 199.
[4] Huie, supra note 2, at 200.
[5] Id.
[6] Woods, supra note 2 at 135.
[7] Huie, supra note 2, at 200-06.
[8] Id. at 203.
[9] Id. Historically, one musket was randomly loaded with a blank so that each rifleman had a reasonable doubt as to whether he actually participated in the shooting. This practice, however, was meaningless at the time of Slovik’s execution because the high powered rifle of choice, the M-1, “kicks like a mule” and ejects a shell casing only when a live round is fired. Id. at 204.
[10] Id. at 207.
[11] Id.
[12] Id.
[13] Id. at 207.
[14] Id.
[15] Id. at 207-08.
[16] Id. at 208.
[17] Id.
[18] Id. at 208-09.
[19] Id. at 209.
[20] Id.
[21] Id.
[22] Id.
[23] Mitch Kehetian, Editorial, Fight to Clear Pvt. Slovik Continues, The Macomb Daily, Jan. 31, 2005, at *1, available at http://www.macombdaily.com/stories/013105/opi_kehetian001.shtml.
[24] Huie, supra note 2, at 210. Not one of the eleven bullets met its target: Slovik’s heart. Id. “The body stiffened at the impact of the bullets. Blood and pieces of flesh splattered from the prisoner’s back on to the board panel behind the post and the body then slumped forward, supported by the straps. The 3 Medical Officers immediately went forward and examined him. About 5 seconds after the shots the condemned’s body straightened up, his head and shoulders raising about a foot and dropping back. About 3 seconds later he again raised about 6 inches.” Woods, supra note 2 at 136. Lieutenant Koziak began to reload the rifles, but before all of them could be reloaded, Doctor Rougelot pronounced Slovik dead. Huie, supra note 2, at 211-12. Five minutes had passed between the volley and the pronouncement. Woods, supra note 2 at 136. But see David Eisenhower, Eisenhower: At War 1943-1945, at 643 (1986) (declaring eight minutes had passed instead of five).
[25] Laurence M. Vance, The Execution of Eddie Slovik, LewRockwell.com, at *2, Jan. 31, 2005, http://www.lewrockwell.com/vance/vance34.html. Although the judgment was reviewed by several levels of military command authorized to exercise clemency, including General Eisenhower, none did. Jon O. Newman, Foreword to Yale L.J., Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810, 812 (1975); Avins, supra note 3, at 785. This gave rise to the term the “Slovik Syndrome,” which is “the expectation that [a] sentence will not be fully carried out.” See Newman, supra, at 812.
[26] Avins, supra note 3, at 800. Of the fifty-six other persons convicted of desertion to avoid combat in the European Theater of Operations and originally sentenced to death, data has been found for only forty-nine. This accounts for why some authors cite “forty-nine” as the total number of death sentences.
[27] Id. at 796-97.
[28] Vance, supra note 25, at *2.
[29] Newman, supra note 25, at 812.
[30] Avins, supra note 3, at 785. See generally Huie, supra note 2; Charles Whiting, American Deserter—General Eisenhower and the Execution of Slovik Case (Eskdale Publishing 2005); The Victors (Columbia Pictures Corporation 1963) (executed soldier in this motion picture is not named, but it is likely based on Slovik’s execution); The Execution of Private Slovik (Universal TV 1974).
[31] See Huie, supra note 2. Huie’s account of the story received both praise and criticism from a wide range of sources. Frank Sinatra was so moved by the story that in 1960 he announced plans to produce a movie based on the book. Kitty Kelley, His Way: The Unauthorized Biography of Frank Sinatra 296-301 (1986). The project was cancelled, however, when John F. Kennedy, for whom Sinatra was actively campaigning, became concerned about allegations that Sinatra was a communist sympathizer. Id. Others claimed Huie’s account was inaccurate and contained “numerous errors and at least one seriously misleading suggestion, namely, that the Slovik case only came to light after [Huie] struggled for seven years to get the file declassified.” Frederick Bernays Wiener, Lament for a Skulker, Army Combat Forces Journal, July 1954, at 36-37; see Benedict B. Kimmelman, The Example of Private Slovik, American Heritage Magazine, Sept.-Oct. 1987, at *6 available at http://www.americanheritage.com/articles/magazine/ah/1987/6/1987_6_97.shtml.
[32] See Kimmelman, supra note 31 at *5 (“I rallied against the injustice of executing one offender while closing eyes, as a matter of practical or political prudence, to the raft of new offenses committed in the Battle of the Bulge. Assign me to that court now . . . and I would not vote death penalty . . . .”).
[33] See, e.g., After the Battle (no author listed), The Execution of Eddie Slovik, 32 After the Battle 28, 30 (1981) (accused Cohagen found guilty of desertion after absenting himself without leave in England on November 11, 1942 and remaining absent until his apprehension at a pub in London on July 5, 1945).
[34] Whether Slovik’s execution actually served as an example and effectively reduced the number of desertions during the remaining months of WWII is inconclusive. There is little doubt, however, that this was Eisenhower’s intention. Chronologically, Slovik’s desertion occurred just prior to the Battle of the Bulge, during which Germans broke through Allied lines staffed primarily by new and inexperienced soldiers prone to desertion. Guido Calabresi, Dean of Yale Law Sch., Commencement Address at Quinnipiac College School of Law (May 16, 1993) (transcript available at 14 Quinnipiac L. Rev. 83). There was, at the time, real danger of defeat. Id. In order to discourage desertion, Eisenhower decided to make an example out of someone and requested, according to one source, “a loser” for execution. Id. at 84; see also Eisenhower, supra note 24, at 634; Perret, supra note 1, at 333 (Division Commander Norman Cota wanted a scapegoat due to increased AWOL rates). After the fact, Eisenhower claimed that the execution served to provide for the security of the forces assigned to him and “to insure [sic] the accomplishment of the mission . . . .” Eisenhower, supra note 24, at 642; see id. (quoting Colonel Edward L.R. Elson: “the purpose of an action of this kind is to save troops from themselves, from the constant temptation in a forward area in war to evade duty. Without a stiff reminder, unwitting soldiers might desert, eroding the effectiveness and morale of their units”); see also Jerold E. Brown, The Execution of Private Eddie D. Slovik in Combined Arms in Battle Since 1939, at *1 (Roger J. Spiller ed., 1992) (arguing that without military discipline, “the cohesion that welds individual soldiers into units and makes them behave in certain ways in the face of impending danger disintegrates”), available at http://www-cgsc.army.mil/carl/resources/csi/Spiller/Spiller.asp#11D. Notwithstanding, when asked whether the execution had an observable effect to stem desertions, Colonel Charles E. Cheever, Judge Advocate of the Third U.S. Army during WWII, replied, “We were not aware of it in our area.” Interview by Fred K. Green with Charles E. Cheever, Colonel, U.S. Army, Retired in Carlisle Barracks, Pa. (1983); see also D’Este, supra note 1, at 629 (Slovik’s execution “not only failed miserably to act as a deterrent but was not even well publicized within the 28th Division”); cf. Kimmelman, supra note 31, at *2 (“For the next several days the case and its no-nonsense disposition and verdict created some little stir in headquarters, but it was an approving stir. If there was a different reaction among the enlisted men, we knew nothing about it then.”); id. at *4 (“In the prison camp . . . there was considerable talk about the Slovik case. The harsh sentence certainly had an impact.”); Eisenhower, supra note 24 (quoting Cota’s theater JAG report: “based upon personal observations and conversations, the present AWOL rate of the Division and reports from the unit commanders and other personnel of my command, . . . the execution did have in my division the deterrent effect visualized by the theater commander”).
[35] Brown, supra note 34, at *4; see Huie, supra note 2. Other authors raise additional issues. One points out sentencing disparities between desertion convictions in WWII and desertion convictions in 2004—Sergeant Charles Jenkins deserted for forty-nine years and was sentenced to thirty days while Slovik deserted for one day and was sentenced to death—and argues for a modern day return to sentencing uniformity in order to punish the accused “based on the severity of the crimes they commit, not based on the passions of sentencing authority.” See Scott Sylkatis, Sentencing Disparity in Desertion and Absent Without Leave Trials: Advocating a Return of “Uniform” Code of Military Justice, 25 Quinnipiac L. Rev. 401, 401-02, 413 (2006). Another implies that “other men may have died because Slovik refused to perform his assigned duty . . . .” Brown, supra note 34, at *5. Another issue which could be addressed is whether Slovik received a fair review by the various reviewing Judge Advocates. In order to appropriately limit the scope of this article, however, these issues will not be addressed directly.
[36] The issue of just treatment by the army toward Slovik could take a number of directions. Consider the following analogy proposed by one author: “[P]icture a factory hand who breaks a mill window during a strike and is then brought into a court where judge, jury, prosecutor, and defense attorney are all members of the board of that factory. Without emphatic warning that his is a capital offense, he is then sentenced to death under a law not enforced for some eighty years.” David Kenyon Webster, Commentary, The Generals’ Anger, Army Combat Forces Journal, Aug. 1954, at 47.
[37] See Kehetian, supra note 23, at *1 (claiming Slovik “was wrongly charged, and then executed. His crime was being absent without leave with intent to avoid hazardous duty, but Slovik’s non-attorney counsel failed to grapple with the clause etched into Article of War 58”); see Articles of War, art. 58, Act of June 4, 1920, 41 Stat. 800 [hereinafter A.W.].
[38] Huie, supra note 2, at 17 (excerpt from Slovik’s response when, just prior to the execution party’s march into the courtyard, military police (“MP”) sergeant Frank J. McKendrick said to Slovik, “Try to take it easy, Eddie. Try to make it easy on yourself—and on us”). Slovik was likely of the impression that, but for his prior criminal record, he would have been granted clemency.
[39] Wiener, supra note 31, at 34.
[40] Brown, supra note 34, at *1; Simmons, supra note 2, at *2.
[41] Wiener, supra note 31, at 34.
[42] Id.
[43] Brown, supra note 34, at *1.
[44] Simmons, supra note 2, at *2.
[45] Wiener, supra note 31, at 34.
[46] Id.
[47] Id. “IV-F” classification applied to men physically, mentally, or morally unfit for military service. Selective Service Regulations, vol. 3, Classification & Selection (1940) [hereinafter SSR], summary available at http://www.swarthmore.edu/library/peace/conscientiousobjection/MilitaryClassifications.htm.
[48] Simmons, supra note 2, at *2.
[49] Antoinette was five years older than Slovik. Wiener, supra note 31, at 34. She was also crippled and epileptic. Id.
[50] Simmons, supra note 2, at *2.
[51] Id.
[52] Wiener, supra note 31, at 34. “I-A” classification meant available and fit for general military service. SSR, supra note 47. Evidently, the army needed more soldiers and was willing to reevaluate Americans formerly determined to be unfit as they “scraped the bottom of the barrel.” Fenton Bresler, Scales of Justice 175 (1973).
[53] Wiener, supra note 31, at 34.
[54] Simmons, supra note 2, at *3. During his 372 days in the Army, Slovik wrote 376 letters. Id.
[55] After the Battle, supra note 33, at 33.
[56] Wiener, supra note 31, at 35. Tankey did not testify at Slovik’s trial, and this statement was not admitted. See generally Woods, supra note 2.
[57] Wiener, supra note 31, at 35.
[58] After the Battle, supra note 33, at 33; Brown, supra note 34, at *2. Because the 28th participated in some of the fiercest battles of the European front, the prospect of serving in the unit was not a happy one for Slovik. Brown, supra note 34, at *3.
[59] Wiener, supra note 31, at 35.
[60] Joseph DiMona, Great Court-Martial Cases 118 (1972). The area through which they rode was previously the site of a massacre on fleeing German soldiers by Allied planes. “The scene was not a pleasant introduction to combat—particularly for a man with no stomach to fight.” Id.
[61] Woods, supra note 2, at 61-64.
[62] Id. at 64.
[63] Wiener, supra note 31, at 35. According to Tankey, he and Slovik both dug in, rode out heavy shelling, and after it got quiet the Canadian tanks rolled in. “We didn’t know where our outfit was and couldn’t find out. The Canadians said we might as well join up with them. . . . [We] never thought of it as deserting.” Huie, supra note 2, at 117. According to Tankey, he never heard the order to move out. Id. at 119.
[64] Wiener, supra note 31, at 35. Private Tankey committed the same acts or omissions that Private Slovik did when the two failed to move out. However, Tankey eventually made it to the battlefield, and, after being wounded, was awarded the Purple Heart and the Bronze Battle Star. He was never tried for desertion. Woods, supra note 2, at 39.
[65] Wiener, supra note 31, at 35. Kimmelman, supra note 31, at *4 (“There was a story that when [Slovik] was with the Canadians, he had volunteered for the hazardous job of helping clear minefields.”).
[66] Huie, supra note 2, at 122-23.
[67] After the Battle, supra note 33, at 34.
[68] Woods, supra note 2, at 66-67 (emphasis added).
[69] Wiener, supra note 31, at 35.
[70] Kimmelman, supra note 31, at *1.
[71] Woods, supra note 2, at 68.
[72] Id. (emphasis added).
[73] Huie, supra note 2, at 120. Although not admitted, prior to the trial Slovik had amended his confession: “Accused reaffirmed statement previously made to Lt. Colonel Ross C. Henbest. However, he stated that he did not desert his unit at Elbeuf, France, but did not move out when other men left foxholes.” Woods, supra note 2, at 24. Woods explains that this piece of evidence “was not made available to me prior to the trial, nor is it contained anywhere in the record of trial proper. . . . I confronted [Slovik] with the serious nature of the confession which he would not refute, withdraw, or modify. He did not nor did anyone connected with the Trial mention this amendment.” Id.
[74] Woods, supra note 2, at 65. A Lieutenant Colonel warned Slovik that the written confession could be damaging to him and suggested Slovik destroy it. Slovik, however, refused. Furthermore, he amended the confession by adding to the back of it, “I have been told that this statement can be held against me and that I made it of my own free will and that I do not have to have it.” Wiener, supra note 31, at 35.
[75] Wiener, supra note 31, at 35. While in the stockade, Slovik saw many others returning from courts-martial for desertion who received sentences of twenty years. It was cause to celebrate. Id.
[76] Uzal W. Ent, The Private Slovik Case in The First Century: A History of the 28th Infantry Division 237, 238 (Robert Grant Crist ed., 1979).
[77] Wiener, supra note 31, at 35.
[78] Brown, supra note 34, at *3; see A.W. 58.
[79] Vance, supra note 25, at *2. But see Kimmelman, supra note 31, at *5 (“we indeed assumed that the death sentence would be carried out”).
[80] Kimmelman, supra note 31, at *2.
[81] Id. According to Huie, “[a] commander could go up at night expecting to find two hundred men on the line and be lucky to find seventy.” Huie, supra note 2, at 137.
[82] See generally supra note 34. Initially, Eisenhower had six deserter candidates for execution. Among them was a Jewish solider who was later determined to be of unsound mind. Doris L. Bergen, Introduction to The GI’s Rabbi 2-4 (Greg Palmer & Mark S. Zaid eds., 2004). Slovik, in contrast, was determined to be “sane and responsible at the time of his alleged offenses.” Woods, supra note 2, at 41.
[83] Kimmelman, supra note 31, at *2.
[84] Brown, supra note 34, at *3. Unlike a civilian jury trial, a court-martial is composed of members (instead of jurists), a president of the court, and a law member (who together function in the same general capacity as a civilian court judge). See Manual for Courts-Martial (1928 ed., corrected to April 20, 1943), pars. 36-39 [hereinafter M.C.M.].
[85] Kimmelman, supra note 31, at *2. Because combat officers were not readily available, staff officers were often appointed to serve on general courts-martial.
[86] Id.
[87] Many of the witnesses that testified at Slovik’s court-martial “came into court directly from the front lines with clothes torn and muddy and with very poor memories as to past dates and places.” Woods, supra note 2, at 88.
[88] Kimmelman, supra note 31, at *2.
[89] Id.
[90] After the Battle, supra note 33, at 28.
[91] Id.
[92] See A.W. 48.
[93] Wiener, supra note 31, at 36; see Woods, supra note 2, at 83. Only the execution portion of the sentence was recommended for approval. Woods, supra note 2, at 90. In any event, Sommer concluded that “[t]he record of trial is legally sufficient to support the findings and sentence and is free of any error injuriously affecting the substantial rights of the accused.” Id. at 87.
[94] After the Battle, supra note 33, at 35.
[95] Wiener, supra note 31, at 36; see Woods, supra note 2, at 95-98.
[96] Wiener, supra note 31, at 36.
[97] Id.
[98] Id. Said Woods of Assistant Staff Judge Advocate Fredrick J. Bertolet, author of the opinion issued by the board of review of which Betts concurred, “Major Bertolet in my opinion is the one person more than any other responsible for the execution of private Eddie D. Slovik. By the time Bertolet finished doing his number on him, Eddie didn’[t] have a chance. I had defended more flagrant deserters than Eddie Slovik and they were given a light sentence of no more than 20 years at hard labor. They were out in a few years or more after the end of the war.” Woods, supra note 2, at 98.
[99] Wiener, supra note 31, at 36.
[100] Id.; see A.W. 48.
[101] Id.; see A.W. 50½ . Historically, military review boards tended to scale down sentences from courts-martial, and do so almost invariably when a court-martial decrees a nonmandatory death penalty. DiMona, supra note 60, at 117.
[102] Wiener, supra note 31, at 36.
[103] After the Battle, supra note 33, at 35.
[104] Id.
[105] Id.
[106] Perret, supra note 1, at 333.
[107] Brown, supra note 34, at *3; see A.W. 58. Several commentators claim that Slovik was incorrectly charged. See Kehetian, supra note 23, at *1; Perret, supra note 1, at 333.
[108] Woods, supra note 2, at 59.
[109] Id. (emphasis added).
[110] Id. (emphasis added).
[111] A.W. 58.
[112] A.W. 28 (emphasis added).
[113] After the Battle, supra note 33, at 32.
[114] See discussion infra Part V.
[115] In many WWII desertion cases where the requisite intent was unavailable, the offense was often charged under Article 61 as mere absence without leave. After the Battle, supra note 33, at 30; see A.W. 61. If the prosecution could not factually prove intent, see discussion infra Part V, charges under Article 61 would have been more appropriate.
[116] After the Battle, supra note 33, at 30. A soldier named Cohagen absented himself without leave from the ETO in November of 1942 and remained absent until his apprehension at a pub in London in July of 1945. Id. The court found the requisite intent and convicted him of desertion. Id.
[117] Id.
[118] Id.
[119] A.W. 75.
[120] The evidence at trial did not explicitly state that an order was given to “move out.” In fact, had Tankey been available to testify, he would have stated that he never heard an order to move out. See supra note 63. This testimony would have supported the extremely plausible theory, in contradiction of Private Thompson’s testimony, that Slovik never left his hole because he never heard the orders to move out.
[121] See A.W. 75.
[122] Because the court-martial returned a “guilty” verdict under Specification One, the prosecution factually did prove intent in the mind of the court. Whether the court-martial was correct in concluding, based on the evidence presented, that the prosecution proved Slovik’s intent beyond a reasonable doubt will be discussed below. See discussion infra Part V.
[123] See supra note 63 and discussion infra.
[124] See Huie, supra note 2, at 122-23. It is possible to construct Article 75 without the element of “before the enemy” for specifically the offense of casting away arms. The numerous disjunctions within the Article could be interpreted to allow the “before the enemy” clause to apply only to the first few instances listed and not to the latter instance of “or casts away his arms or ammunition.” This construction, however, seems far fetched given that the title of the Article is “Misbehavior Before the Enemy.” See A.W. 75.
[125] See also discussion infra Part V (arguing that prosecutors failed to prove intent under Article 58 charge).
[126] See Huie, supra note 2, at 129.
[127] Avins, supra note 3 at 794.
[128] Id. at 795.
[129] See A.W. 48.
[130] Id.
[131] A.W. 48(d).
[132] Avins, supra note 3 at 795 (citing History of the Branch Office of the Judge Advocate General, European Theater of Operations, July 18, 1942-Oct. 31, 1945, 195-96 (mimeo., Nov. 1, 1945) (copy in the Law Library, Office of the Judge Advocate General of the Army, Pentagon, Washington, D.C.)). The letter’s legality was subsequently upheld by a Board of Review. Id. (citing United States v. Hawkins, 13 E.T.O. 57 (ETO 4570) (1945)).
[133] Avins, supra note 3, at 796.
[134] See Huie, supra note 2, at 216 (opining, after interviewing “informed” people, that “the distance between civil life and a battle line is too great,” and that had confirmation been required by Roosevelt, Slovik would not have been executed).
[135] Kimmelman, supra note 31 at *6.
[136] For instance, a jury of Slovik’s true peers, his fellow enlisted men who had also been exposed to action, was not readily available, and officers who had not seen action were readily available.
[137] See A.W. 17-38; M.C.M. pars. 53-84.
[138] Cf. Woods, supra note 2, at 18 (concluding that Slovik was denied due process under both the Articles of War and the Constitution). While Woods raises a number of important issues, some do not take into account the state of war consideration, and others pertain more to the appeals process.
[139] A.W. 17.
[140] A.W. 11.
[141] Woods, supra note 2, at 56.
[142] M.C.M. par. 45(b).
[143] Id.
[144] Woods had gotten previous clients “not guilty” verdicts on numerous occasions. Huie, supra note 2, at 139.
[145] Woods, supra note 2, at 56 (Slovik’s court-martial “heard all cases brought before it, about 25 in number. I was the defense counsel in all.”) (original emphasis).
[146] See id. at 62-65. Additionally, Woods showed ability and understanding of the law during a pretrial incident involving the reading of a prejudicial letter. According to Woods, “The jist [sic] of the letter was that all general courts . . . were too soft in their determinations of the sentences. . . . I strenuously objected to the reading of the letter, because I contended it was prejudicial to my present and future clients. Major Namen sustained my objection and was promptly replaced.” Id. at 57.
[147] See M.C.M. par. 45(b).
[148] See DiMona, supra note 60, at 118 (strategy of the trial was not based on defense counsel, but on the fact that no one had been executed for desertion).
[149] See A.W. 20.
[150] Id.
[151] In his book, Woods admits his mistake: “I, his defense counsel, am not entirely without blame. Immediately after the sentence and conclusion, in good faith [I] assured my client[,] “Eddie they will never carry out the sentence.” In the military court as then constituted, I had no right to appeal. It was however, within my provience to recommend clemency which I failed to do.” Woods, supra note 2, at 70.
[152] Slovik’s criminal record was not introduced into evidence at trial, see Woods, supra note 2, at 58-70, and there is no evidence that Woods had access to this information. However, Woods should have found someone to testify on Slovik’s behalf regarding his apparently gentle nature. See Kimmelman, supra note 31, at *7 (suggesting defense counsel “might also have located some witnesses to say something on behalf of the defendant’s ordinary conduct”). But see id. at 89 (Staff Judge Advocate Sommer’s review indicating Slovik also had record of breaking and entering, assault and battery, and that a “shooting” was involved in the boosting of the car).
[153] See Woods, supra note 2, at 68 (testimony of Private Schmidt).
[154] Kimmelman, supra note 31, at *4.
[155] See M.C.M. par. 45(b).
[156] M.C.M. par. 126(a) (emphasis added).
[157] M.C.M. par. 78 (emphasis added).
[158] Huie, supra note 2, at 120. Slovik actually modified his statement confessing to desertion in a subsequent statement, but the subsequent statement was not admitted into evidence. See supra note 73. However, because Slovik factually confessed only to AWOL, see discussion to follow infra, it should not have made a difference.
[159] In his plea to Eisenhower for clemency, Slovik wrote “I had no intentions of deserting the army whatsoever. For if I intended too [sic] I wouldnt [sic] have given or surrendered myself as I did. . . . I didn’t realize at the time what I was doing, or what the word desertion meant.” DiMona, supra note 60, at 124-25.
[160] See A.W. 28.
[161] See Woods, supra note 2, at 66-67.
[162] See Huie, supra note 2, at 120.
[163] Id.
[164] See id.
[165] See id.
[166] See Kimmelman, supra note 31, at *4
[167] See M.C.M par. 78.
[168] Woods, supra note 2, at 68.
[169] Reviewing authorities did not agree. Staff Judge Advocate Henry Sommer stated in his review, “The strongest evidence that the accused intended ‘to avoid hazardous duty and shirt important service, to wit: action against the enemy’ . . . is his declared intent contained in his confession ‘And I’ll run away again if I have to go out there.’ The fact that Elbeuf was being shelled when the accused failed to go in with the other replacements is also significant. That he intended to desert and apparently wanted to be court martialled for AWOL when he first returned to his company, followed by his inquiry a little later, ‘If I heave now will it be desertion?’, and his prompt departure when assured that it would be.” Id. at 89. Assistant Staff Judge Advocate Frederick J. Bertolet stated in his review, “his confession leaves no possible doubt that both desertions were to avoid hazardous duty within the meaning of Article of War 58. All the elements of both offenses are established beyond any doubt, as accused apparently desired them to be.” Id. at 98. The opinion of Board of Review No. 1 stated, “No errors injuriously affecting the substantial rights of accused were committed during the trial. The Board of Review is of the opinion that the record of trial is legally sufficient to support the findings of guilty and the sentence.” Id. at 111.
[170] Bresler, supra note 52, at182.
[171] See supra note 34.
