Life was good. I had just gone Regular Army (career) and the Army had kept its promise and sent me to Presidio of Monterey to study German. Each morning I would get up, look out the window of my Fort Ord quarters and see Monterey Bay (or fog). When I finished the language school, I would be on my way to Germany for a three-year tour. I was being assigned to the 4th Armored Division in Goeppingen, 30 miles east of Stuttgart.
Then I received my welcoming letter from the 4th AD Staff Judge Advocate, Lieutenant Colonel Robert Cates. He hated me. Fortunately, at the time, he did not recognize my name. He would as soon as he saw me. He had been one of our instructors in the JAG Basic Course in Charlottesville, Virginia. Colonel Cates had many idiosyncrasies. And, at our class’s final banquet and party, I was part of the entertainment and had been introduced as Colonel Kiss-Me Cates. I mimicked all of his little quirks. Afterwards, he sought me out and told me that he enjoyed my performance. I thanked him, but neither of us was very convincing. I had never planned on seeing him again. Duh.
So how did I last 28 years and end up as the Commandant at the school where Colonel Kiss-Me Cates had taught. I was just lucky. When I arrived at the 4th Armored Division, Colonel Cates had departed three weeks before. It reminds me of what Brigadier General Ron Holdaway told one of my JAG Graduate Classes many years later. “To make general officer, you have to be good and lucky. But, if you can only be one, be lucky.”
I arrived in Germany in 1966 about the same time the Miranda decision was being handed down by the Supreme Court. As most of you know, it requires that before law enforcement officials can take a statement from a suspect, they must advise him or her of his or her’s right to remain silent and right to an attorney. Practically the first case I was handed was the retrial of a murder case originally tried in 1964.
Back in 1964, Private Mayberry left his barracks in Erlangen and caught a train to Nuernberg. He partied at his favorite gasthaus and then went with a prostitute back to her trailer. After a couple of hours, he announced he had to get back to his unit or he would be AWOL. They argued and she put a cigarette out on the Private’s privates. He then strangled her. He then took her wallet (she no longer needed it) and caught a cab back to the train station. The cab driver observed Mayberry going through the wallet, emptying it of money and then throwing it out the window. A bus driver saw the wallet fly out of the window, stopped, picked it up and turned it into the police. The cab driver identified Mayberry as the one who threw the wallet.
It didn’t take long for the military police to latch onto Mayberry and he confessed that he killed the prostitute (I’m sorry I can’t remember her name). He pleaded guilty to second degree murder and the stipulation of facts laid out that she had burned him with the cigarette. The Army Court of Military Review, on appeal, determined that Mayberry, being burned by the cigarette could have put him in such a “heat of passion” that the crime committed was only manslaughter. So they did not approve the conviction, but sent the case back to Germany to be retried. I think the appellate court could have reduced the case to manslaughter and reduced the sentence and we all would have been fat, dumb and happy.
So, I’m designated the Trial Counsel (prosecutor). We still have Mayberry’s confession, but we don’t know if it is admissible. My position was that it is hard to give a Miranda warning before the Supreme Court decides the Miranda case. A few years later, the Supreme Court decided that such confessions, as Mayberry’s, were valid and admissible. But I had to try the case in the nether-nether land. My trial judge decided that Miranda was the law of the land at the time of this retrial and the confession could not be used.
So what did I have (if you think I am going to be the hero and somehow get a conviction, forget it. Sometimes you play the hand you are dealt)? I had fiber testimony, testimony from the gasthaus that they left together and the wallet. The fiber evidence was extensive. It was taken from Helga (I had to give her a name), Helga’s trailer (blanket, etc), and Mayberry’s clothes. The University of Erlangen had used their forensic lab and tied Mayberry and Helga in a knot. One example should suffice – fibers from his socks were found inside her bra. Now, just use your imagination. I had lots and lots of fibers and lots of connections.
The cab driver still remembered Mayberry and him throwing Helga’s wallet out the window. Even though the wallet had been kept in an evidence vault during the intervening years, the bus driver insisted it wasn’t the same wallet!?
The defense put on only one witness who lived in Helga’s trailer park and testified that someone had been sneaking around the trailer park that night. Probably the one-armed man from the “Fugitive.” The bottom line was I could put them together in the trailer, but without the confession, I had no evidence that he killed her. The military court acquitted Mayberry.
Then to add insult to injury, I received a whopping bill for the forensic support from the University of Erlangen. I talked to my Finance chief and he told me that I should have gotten authority before I authorized the contract. “Authorized the contract?” Whatever happened to German-American Friendship? I thought we were walking down this road together. It really shook me up. As a young Captain, I couldn’t afford to pay the bill. For about three months in a row, I received the bill. My friend in Finance had his hands full because his boss was a drunk and he was trying to hide him out. The good news was that higher headquarters found out about the boss and shipped him home. They brought a young Lieutenant Colonel over from VII Corps to run the Finance Office. When I asked him about my Erlangen problem, he said, “Oh, we’ve got funds up at VII Corps to dispose of such matters.” Free at last, free at last (be lucky)!
I later found out that it was none other than Kiss-Me Cates that had insisted that Mayberry plead guilty to murder rather than manslaughter. So, maybe Cates got me after all.
Written by PJ Rice at www.ricequips.com