Civil rights attorney Terence “Kayo” Hallinan died earlier this year at the age of 83. Fifty years ago, seventeen Army prisoners accepted his offer of free representation after the Presidio Mutiny.
by Fred Gardner at the Anderson Valley Advertiser
There is an unsung hero in the Presidio mutiny saga —an honest journalist named Barry Farrell— and an unremarked turning point. In February 1969 the first three court-martials had resulted in sentences of 15, 14 and 16 years for Nesrey Sood, Larry Reidel, and Louis Osczepinsky. Then Life Magazine (circulation 8.5 million, no internet competition) published “The Case of Private Sood,” Farrell’s straightforward account of stockade conditions, the killing of prisoner Richard Bunch, and the Sixth Army’s decision to press mutiny charges. Millions of Life readers who had not opposed the US role in Vietnam were shocked and upset to read about the Army’s mistreatment of stateside misfits —which called into question their pro-war attitudes. The impact on mainstream public opinion is what Dershowitz must have meant when he called the Presidio mutiny the “pivotal event” in ending the war.
Farrell’s piece ran on February 28. Liberal Republicans in Congress immediately dispatched an investigator to the Presidio and the Department of the Army in Washington announced that it was reviewing the sentences. (The leading critic of the Army in the Senate was Goodell of New York, whose son Roger now runs the NFL for the team owners.)
Terence “Kayo” Hallinan’s defense of 14 Presidio “mutineers” began with objections to a prosecution request that the trial be moved to Fort Ord. “Security concerns” were cited justifiably, but the brass also hoped to minimize coverage. I had been writing about the case for a Washington newsletter called Mayday and an underground press syndicate. The Chronicle and Examiner had assigned two good reporters to the story. George Murphy and George McEvoy. Barry Farrell is the ace who really broke it.
This is when I got to know Kayo —driving between Frisco and Fort Ord in his Mustang. We would usually stay for the week with peace-movement allies in Pacific Grove or Monterey. We had met before. The first time he had weed so strong that his date took a hit and fainted. I may have been on the list of reporters he tried to contact in advance of the Presidio sit-in on October 14, 1968, but my father had died on Sunday the 7th and I was back in NYC.
Seventeen prisoners accepted Hallinan’s offer of free representation after the sit-in. They were repeatedly urged by officers at the stockade to drop him because he was “a Communist.” Capt. Dean Flippo, one of the Army prosecutors (and future District Attorney of Monterey), advised the prisoners, “If I were on trial in the Sixth Army area, I wouldn’t want a lawyer who was waging a one-man war on the Sixth Army.” None of the honorable young captains assigned by the JAG Office to the defense side felt a temperamental or political affinity for Hallinan, and they questioned his familiarity with the Uniform Code of Military Justice and his technical skills in court. Capt. Thomas Fay frankly told his clients that retaining Hallinan was a risk. Civilian lawyers made the same point to the parents of some of the men. But in the end only Michael Murphy dropped Kayo. Keith Mather and Lindy Blake escaped.
The looming drama at Fort Ord was whether Randy Rowland —Kayo’s original client, who had conveyed the idea of staging a non-violent sit-down— would be singled out for severe punishment. Rowland could have escaped with Blake. They had been sent to the hospital with hepatitis in late February and a friend smuggled in a hacksaw blade. Hallinan convinced Rowland to stay by reiterating that there was a chance for acquittal. “We’ve got the Army in a situation now where they’ve made a demonstrably false charge and we can prove that it’s false,” he said. “They’ve backed down slightly for public-relations purposes, but there’s no reason why we shouldn’t force them down all the way.”
When the climactic trial began April 7 in Fort Ord’s defunct East Garrison it appeared as though the brass really believed Kayo was waging a one-man war. A helicopter circled overhead. Twenty armed MPs waited outside while seven stood inside the courtroom, which held only 40 spectators. Three California Highway Patrol cars and three Monterey sheriff’s cars were parked nearby. Capt. Emmitt Yeary, a paratrooper, noted that the US Embassy in Saigon was not better guarded. The crowd being controlled consisted mainly of demure, upper-class women from Carmel.
Hallinan took advantage —for the first and only time in the mutiny trials— of the UCMJ provision guaranteeing a court panel composed of one-third enlisted men. The Army responded by assigning two senior sergeants and a buck sergeant just back from Vietnam, along with six officers. Hallinan used his peremptory challenges to remove four of the officers. “My request for enlisted men on the panel was not honored in spirit,” he complained to the law officer, Lt. Col. James Hagan (a big Texan who in profile looked just like Lyndon Johnson). “The law says ‘at least one-third’ and this is ‘at most one-third’… We asked for inclusion of ranks comparable to those of the defendants and draftees, as well as those who plan to make a career of the Army… These young men are entitled to trial by a panel of their peers, and these lifers aren’t their peers by any stretch of the imagination.”
(Kayo had learned some Army lingo from his clients and thought “lifer” meant “career man.” When told it could be considered derogatory, he apologized to the court.)
Kayo landed a swift left jab, moving to call as witnesses the three prisoners who had been on the fatal work detail with Richard Bunch. In previous trials the prosecution had successfully objected that their testimony would be hearsay. Kayo argued that the three men’s description of Bunch’s slaying greatly affected all the mutineers’ state of mind on October 14. And since the key defense contention would be that the prisoners were in a state of mass hysteria that morning, and swept up by an “irresistible impulse” to protest the killing, all such testimony, though technically hearsay, was relevant. “Will your psychiatrists really testify to this effect?” Hagan asked. “Absolutely, your honor,” Hallinan replied.
Fred Novinger, newly promoted to major, was making the prosecution case for the fourth time. He argued that the admissibility of hearsay would enable the defense to go on a “fishing expedition.” Kayo countered, “A fishing expedition is when you don’t know what’s in the pool. I know exactly what’s in the pool.”
To lefties who questioned how testimony about mass hysteria squared with his line that “these men are heroes,” Kayo explained that he was taking one step back in order to take two step forward (an echo of Lenin’s rationale for lifting restraints on private enterprise). The psychiatric defense would enable the court —and the press— to hear ample testimony on life and death at the Presidio stockade, plus it offered the best hope of acquittal. As the psychiatrists followed one another to the stand, it seemed increasingly true.
It was not easy for some of the defendants to accept the portrait of maladjustment that the doctors presented. Hallinan visited the stockade almost nightly during his two months in Monterey. He reminded everyone that the testimony dealt with a period long past and that since that time, as many of the psychiatrists observed, they had formed the first real friendships of a lifetime and, for the first time, felt a sense of purpose. Randy Rowland consoled those who were most upset and joked that such expert psychoanalysis would ordinarily have cost them all a great deal of money. (Rowland’s own father, a retired lieutenant colonel, refused to write a request for leniency, stating “The boy has shamed me enough.”)
“Almost everybody really loved Terry, which is what we called him,” Rowland reflects. “And we loved the way he went after Lamont and the people who had tormented us —and the Army itself.”
On cross-examination Hallinan asked Capt. Robert Lamont, the stockade commander, “What made you think this was mutiny?” Lamont replied, “I don’t know.” He didn’t know whether rations were short; he didn’t know how many 510 forms had been filed in September, or what most of the complaints were about; he didn’t know whether Larry Sales had requested a psychiatric interview; he didn’t know whether the latrines were frequently clogged, or whether water often covered the floor “with human shit floating in it.” Lamont didn’t know what the black armbands worn by some prisoners were supposed to signify. He didn’t know why the prisoners had chanted for him by name. “Do you think maybe they wanted to redress grievances rather than overthrow authority?” Kayo asked. Lamont answered, “I don’t know.”
On direct examination Lamont had testified that he was being considered for an Army Commendation Medal. “Are they going to give you your little medal for the way you ran the stockade?” Hallinan asked, “Or for your testimony at this trial?”
The case for the defense took five weeks and rested on the testimony of the 14 psychiatrists and one psychologist who had examined them. There was substantiating testimony from fellow prisoners, the stockade chaplain, and —crucially— from a courageous guard, an MP named Roger Broomfield. (At the end of the ’60s Broomfield and a partner would buy a small parcel in Mendocino County, where he lives to this day.)
All the psychiatric testimony, like the defendants’ accounts of stockade life, was subject to being stricken at the end. Hallinan got it all in by promising to ask a hypothetical question that the last psychiatrist to testify would answer by tying all the previous testimony together to show that a state of mass hysteria prevailed on October 14. The Hallinan called at the moment of truth was Professor Price Cobbs of the UC School of Social Welfare, a specialist in group phenomena, and co-author of Black Rage, a best-seller at the time.
The first part of Cobbs’s testimony concerned Gentile, individually. The courtroom took on the aspect of a Genet play as the scholarly black doctor described the big white soldier’s troubles with his father, his nomadic childhood and a “lifetime of maladjustment.”
“I was struck by their similar backgrounds,” Cobbs said of the group. “They were all white, They have low self-esteem. Very few had ever felt themselves the object of concern and care. They have always fled when anxiety threatens. But on October 14th the killing of Richard Bunch, another AWOL with whom they identified very strongly, meant that this course of action was no longer open to them,. They defined themselves as oppressed and began to feel some identity with the black soldiers, with black people… They became ‘niggerized.’ They responded as black people, and sang ‘We Shall Overcome,’ a song they hardly knew.
“The other side of grief is rage, and they stopped one step short of rage. They weren’t thinking about the consequences. It was unpremeditated, and they didn’t have the ability to form an intent.”
With the court members on the edge of their chairs for the first time in weeks, the prosecution called an out-of-court hearing to object to a large “scorecard” that Hallinan had prepared as a visual aid for Cobbs (and the court), summarizing the biographies of all the defendants. It showed striking similarities in their backgrounds.Hagan sustained the objection to the chart but used the hearing to question Cobb himself. “What was the precise psychiatric term for Gentile’s state?”
“Transient situational psychosis.”
“How would Gentile be affected by the mental state of his co-defendants?”
“He’d be swept into it.”
The massive law officer, a straight-faced sphinx for over a month, nodded as though it all made sense.
The prosecution preferred to get Cobbs off the stand rather than cross-examine him. “He was the single most impressive witness I’ve ever seen in a courtroom,” said McEvoy of the Examiner. “A brilliant exposition,” Murphy wrote in the Chronicle.
Hallinan’s own summation began with his original premise: “I think these young men are heroes.” The villains were the stockade officials and their Sixth Army superiors. “You understand better than I do,” he told the court, “the peculiar relationship of Captain Lamont and Sergeant Woodring —an inexperienced officer dominated by a man whoo hated confinement work, who operated through bribes, stool pigeons, rule changes that served only to bewilder and upset the prisoners… The Presidio stockade was the Army’s way of telling these men ‘You’re worthless. You’re not worth enough food. You’re not worth enough space…
“And somewhere in the middle of their terror, of their confusion, of the anxiety, somebody grabbed on the idea ‘We have to petition our grievances.’ They had no choice. They had to do that. They had lost entirely the ability to distinguish right from wrong. They were convinced that what they were doing was right even in military terms. They were convinced they would be commended for bringing this to the attention of military authority higher than Captain Lamont.”
The arguments ended on June 5, exactly two months after the trial began. It would take the court only four hours to return with a finding of guilty as charged for all but Sales, who was found guilty of willful disobedience, and Seals, who was convicted of disobeying a lawful order. The next day the defense learned that there had been considerable sentiment for acquittal and that a compromise had been worked out: guilty verdicts but light sentences. Gentile’s was announced first: six months in jail and a bad-conduct discharge. The prisoner saluted, did his about-face and walked numbly back to his seat.
No one cheered even when the ensuing sentences were also light, because there remained the possibility that Rowland would be sacrificed But then his sentence was read: 15 months and a dishonorable discharge —with only a partial cut in pay and allowances, because the court had taken notice of his wife, Sue, sitting in the first row of spectators every day, making small talk with the prisoners and restraining their dog from bowling over the shotgun guards to get at Randy.
It wouldn’t be till 1974 that Muhammad Ali defeated George Forman in the famous “Rumble in the Jungle” by employing a strategy he dubbed “rope-a-dope.” Ali stayed against the ropes in a defensive posture, passively absorbing Forman’s relentless blows for half the fight. Then, as Forman got arm-weary, Ali went on the attack and Forman could hardly defend himself. Terence Hallinan used a kind of rope-a-dope approach in his epic battle with the Army. He effectively organized a nonviolent sit-in at the Presidio stockade and the Army threw the book at the prisoners who took part, swinging without restraint, hitting the first three defendants with sentences of 15, 16, and 14 years. But by the middle rounds the Army was losing credibility with the American people and PR-conscious officers at the Pentagon knew it. When the final court-martial was held, the decision was to sentence Hallinan’s clients, on average, to one year. It was seen as a victory for the defense, although as Capt. Emmitt Yeary said at the time, “They never should have been charged with mutiny in the first place. It’s funny what you come to think of as a victory after you’ve taken so many defeats.”