The Juror Rejudges The Trial: The Juror and the General 35 years later

By M Patricia Roth

In 1985, author M Patricia Roth shared interesting comments and witness descriptions on the CBS-Westmoreland trial after serving as a member of the jury. The product was the publication of her book, "'The Juror and the General". Now, decades later, she revisits the trial in this highly anticipated edition. In addition to covering the complexities of the legal battle, Roth also elaborates on the intricacies of life as a juror after the trial's conclusion.

Time changes everything. It changes how we think, act, and even our beliefs. After sitting on that trial and pondering every little detail about witnesses, statements, and the complexities of legality, Roth was inspired to change her career and focus on her writing. Was she naïve at the time of the trial? It's possible. But she has grown and changed – so much is different, but so much is exactly the same. A must-read for law students, Vietnam veterans, and anyone with experience serving in a jury, this is a story about how decisions are made and how intelligence is gathered. This is a story about history and how it repeats itself and the danger of the written word.

• Language: English
• Publisher: BookBaby
• Release date: Jan 18, 2022
• ISBN: 9781667814919

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The Juror Rejudges The Trial

© 2021 M. Patricia Roth

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law.

ISBN 978-1-66781-490-2

eBook ISBN 978-1-66781-491-9

For Richard Kelley, the editor that encouraged me to re-write the Juror and the General. His unexpected passing nearly ended the project.

And to my dear understanding husband Robert, without his patience and help this project would not have seen a completion.

Table of Contents

Re-Judgment

Introduction

Definitions of Acronyms and Abbreviations

KEY PLAYERS

The Westmoreland vs. CBS Trial

The Call for Jury Duty

The Perfect Juror

Going on Guts

Lying about the Numbers

The Six Star General

The Observer

ARTFUL FILABUSTERS

THE GENERAL TAKES THE STAND

The Case Against Crile

A Warning Flag

The Juror Growls

Documents Don’t Lie

Adams Takes the Stand

Let the Evidence Speak for Itself

Less is More

Being Non-Committal

Dare Not Complain

One Little Lie

Finally, The Colonel Appears

The Final Curtain

THE PASSAGE

THE SEQUEL

Right after the Trial

The Men That were on Trial

THE AMERICAN BAR ASSOCIATION CONFERENCE, Scottsdale Arizona

LIFE AFTER THE CLASSROOM

THE TRIAL OF 1431

THE BIRTHDAY SURPRISE

THINKING ABOUT NIETZSCHE

THE TRIAL STILL ON MY MIND

Re-Judgment

I’d been afraid that the Juror and the General was too ancient to re-print at this time. But after reading it 20 times in the past year as I re-typed the original I was able to read it with Total Objectivity; It gave me the chills.

Change the names and dates and the trial would sound the same for events going on today. Lying about the number of deaths in the Covid pandemic, lying about the numbers in the presidential election, lying about the Capital riot.

I’m brought back to my old friend Jim and my college days before the Viet Nam campus protests.

I went to college in New Haven, not the Ivy League University but the State College I could afford.

What’s great about being in the same town as Yale was the free lectures and eminent speakers, packing their halls. My friend and I went to them all. We closed Michael’s Pub over pitchers of beer. Jim liked to pound the table disputing things we just heard. He hated social injustice and the bureaucracy. He was a social worker who knew both well. We had a good time in lively debate and beat subjects to death.

We both aspired to be writers.

We ended up going separate ways when I moved from New Haven.

***

Years later, I received a letter from him. Would I have time to read his new writing?

Shortly before his letter arrived, I had a life-changing accident.

Going up a hill I skidded on black ice. My car went straight into the path of a Mack Truck (the garbage truck variety).

My ankle was shattered and I was hanging around the house in a wheel chair with lots of spare time. Writing was a great way of keeping me from obsessing over the next surgery I needed to correct the unsuccessful previous ones.

They don’t tell you what condition those crash survivors are in. I myself will never again hike the Appalachian trail.

In school you are expanding your mind with years of open thinking and debate.

You graduate into a world so focused on making a living you forget who you are. Maybe I could finally write the story that I’d been wanting to for years. I couldn’t get the emotions on paper—they were still raw.

I was thrilled to have someone to try it out on.

If you’re having a hard time writing about it, you probably shouldn’t write it, he advised. I was trying to document the impact my father’s bipolar disorder had on me. Mental health had a stigma in the 1960s. He’d tackle me for car keys as he screamed! You’re going to die in a crash.

When I remember those days, a cold hand grips my heart. Someone told me bipolar was genetic. I worried that it could happen to me.

Less than a year later I found myself sitting in a jury box at the top of a huge bank of marble stairs; of a federal courthouse in New York City.

****

This story is about the perfect Juror. Optimistic, trusting, believing in our government. A teacher who spent her life learning how to teach children to live productive lives.

Within a year after the trial she left teaching and followed her own buried dreams.

After pursuing several careers in painting she began to seriously write. She worked with an editor on a book about becoming an artist. When she mentioned to him that she’d been getting inquiries about the now out of print ‘The Juror and the General’ it was her editor Richard Kelley that suggested she put aside her present project and update her book about the Westmoreland vs. CBS trial which had been billed as the trial of the century in 1984.

Introduction

Westmoreland v. CBS

The ISSUE on Trial

January 23, 1982 CBS aired a program called THE UNCOUNTED ENEMY A Vietnam Deception.

It was produced by George Crile and narrated by Mike Wallace. The documentary was based on investigations done by Sam Adams, who had been a CIA analyst, reporting a much larger enemy number in Vietnam from 1966-1968, than the military was reporting to the American people, even perhaps to the Congress or the White House.

While researching Sam Adams’s allegations, the producers of the documentary found further evidence to support his claim—that the Tet offensive (the turning point of the Vietnam War) should not have been the military surprise that it was.

The documentary finished dead last in the TV ratings that week, but it produced minor waves in certain circles, of which Westmoreland was a part. He had been Commander-in-Chief of ground forces in Vietnam at the time of the Tet offensive. On January 26, 1982, he held a news conference denying the allegations set forth in the broadcast. The issue seemed to have been put to rest.

But TV Guide carried a cover story written by Don Kowett in May 1982, which accused CBS of defaming General Westmorland with the material it had presented in the broadcast.

This reignited interest in the documentary and General Westmoreland felt he had grounds for a libel suit. He began to approach some prestigious attorneys who refused to take the case. Meanwhile, CBS began an internal investigation re-evaluating the materials it had used.

In the summer of 1982, the Capital Legal Foundation, headed by Dan Burt, approached General Westmoreland offering to handle the case at no expense to him.

CBS offered the General fifteen minutes of prime-time to air his views and refute the broadcast. Westmoreland refused the invitation and continued with the litigation.

In September 1982, General William Westmoreland filed a suit against CBS, Mike Wallace, the narrator of the broadcast, George Crile, the producer, and Sam Adams, the consultant for CBS. He initiated the litigation in South Carolina, his home state. Attorney David Boies was successful in having the trial moved to the U.S. District Court in New York City. He represented Cravath, Swaine & Moore, the law firm CBS had hired for its defense. Judge Pierre Leval presided over the case. The First Amendment was at issue.

Definitions of Acronyms and Abbreviations

CIA Central Intelligence Agency

CICV Combined Intelligence Center Vietnam

CIIED Current Intelligence and Indications Estimate Division (General Danny Graham)

CINCPAC Commander in Chief Pacific (Admiral Ulysses S. Grant Sharp)

Communication Information Information regarding enemy picked out from the airways; radio eavesdropping

Collateral Information All other information: reports, documents, POW interrogation, diaries, etc.

COMUSMACV Commander of the U.S. Military Assistance Command Vietnam (General William Westmoreland)

CORRAL Study of Vietcong: infrastructure, the political cadre

DIA Defense Intelligence Agency

ICEX Program Program designed to eliminate the enemy

INSUM Daily Intelligence Agency

ICEX Program Program designed to eliminate the enemy

INSUMDaily Intelligence Summary

KIA Killed in Action

MACV Military Assistance Command Vietnam

MACV J2 Military Assistance Command Vietnam Intelligence (General Joseph McChristanGeneral Phillip B. Davidson)

NIE National Intelligence Estimates

NSANational Security Agency

ONE Office of National Estimates (part of CIA that published the NIE and SNIE)

PREINTREP Periodic Intelligence Report (a large document of a couple hundred pages published monthly)

Pike Committee A House subcommittee headed by Otis Pike from May 1975 to February 1976. It held hearings on several issues affecting U.S. interests around the world, include the Tet offensive.

RITZ Study of irregular forces

SAVA Special Assistance for Vietnam Affairs

SD Self-defense

SNIE Special National Intelligence Estimates

SSD Secret Self-defense

WIAWounded in Action

WIEU Weekly Intelligence Estimate Update (weekly meeting)

14.3-67 Special National Intelligence Estimate (SNIE) report for 1967

JCS Joint Chiefs of Staff

OSS Office of Strategic Services

KEY PLAYERS

Samuel Alexander Adams (June 14,1934 – October 10, 1988) Known as Sam Adams, was an analyst for the Central Intelligence Agency(CIA). He is best known for his role in discovering that during the mid- 1960s American military intelligence had underestimated the number of Viet Cong and North Vietnamese Army soldiers. Although his opinion was challenged, he pushed the case for a higher troop count.

David Boies,(March 11,1941) . He attended Northwestern Law School and graduated from Yale in 1966. He was the lead attorney with Cravath, Swaine & Moore representing CBS, Adams, Crile and Wallace. Boies already had a reputation for taking risks. Other lawyers had turned down this case, thinking they’d likely lose. Boies was a gambler. His first win was to have the trial moved to NewYork City. He also had some additional ideas.

Dan M. Burt, (born 1942) His early years were challenging, working at a variety of jobs and attending several schools, he ended up with a law degree from Yale Law School in 1969.

1980-1985 Mr. Burt was president of the Capital Legal Foundation, a public policy, not for profit law firm engaged in cultural warfare. He represented General William C. Westmoreland in this law suit pro-bono.

George Crile, (March 5,1945-May 15, 2006) was a television news producer who specialized in attacking controversial subjects. His formidable topics earned him a reputation that won awards and drew stinging criticism. Much of his career was spent on 60 minutes. This trial was a notable clause in his obituary.

David M. Dorsen ( born 1935) He’s been a jurist on several high- profile cases. He was assistant chief counsel of the Senate Watergate Committee. He has taught at several law schools from Duke- to Georgetown University Law Centers. He’s an author of both fiction and non-fiction books including books on two justices Henry Friendly and Antonin Scalia. He represented General William Westmoreland in this libel suit against CBS.

Myron Leon Mike Wallace (May 9,1918 – April 7,2012) was an American journalist, game show host, actor and media personality. He interviewed a wide range of prominent newsmakers during his seven-decade career. He was one of the original correspondents for CBS’60 Minutes, which debuted in 1968. Wallace retired as a regular full-time correspondent in 2006, but still appeared occasionally on the series until 2008.

William Childs Westmoreland (March 26 1914 – July 18,2005) was a United States Army General, most notably commander of the United States forces during the Vietnam War from 1964 to 1968. He served as Chief of Staff of the United States Army from 1968 to 1972. He brought the libel suit against CBS, the case that is the subject of this book.

The Westmoreland

vs.

CBS

Trial

The Call for Jury Duty

M. Patricia Roth is summoned for jury service on October 9, 1984, at 9:00 a.m. in the United States District Court for the Southern District of New York. So, says Raymond F. Burghardt, Clerk of the Court.

Autumn is the busiest time for an art teacher. I’d introduced an advertising course for the sixth graders to invent a product and make a video commercial for it. They were as excited to work on this as I was to see the results. The art budget is due. I’m working on a commission for an art gallery and the biggest sale I’ve had so far in my part-time real estate job.

It’s the worst time to be called for jury duty. It is only for two weeks so I guess I can handle it.

October 4, 1984

Spent most of the day planning meals for the next couple weeks.

The girls are coming up for the weekend. A rarity now that they’re both in college.

I made appointments to take clients to see a house in Pawling and one in Brewster.

October 7, 1984

Took the Murphy’s to see the Spencer house in Pawling. They’re thinking about it. The new clients I took to the Moran house were a waste of time. I think looking at houses is entertainment for them.

This afternoon went apple picking with Leslie and Tracy. The weather was spectacular. Nice and crisp, not a cloud in the sky. At home the girls peeled the apples, Bob sliced them and I baked two pies.

October 8, 1984

We’ve been planning the logistics of getting to court and decided to drive the 60 miles on the first day.

I got ready for bed. Bob turned on the eleven o’clock news. The announcer said jury selection would begin tomorrow for the libel trial of the century: Westmoreland vs. CBS.

Bob got excited.

I knew it! You’re going to be on that case!

Who’s Westmoreland? I asked.

Where were you during the Vietnam War?

I just shrugged.

Oh God! he groaned. Never mind, you’ll be the perfect juror.

My heart sank. I set the alarm for 5:15.

October 9,1984

Bob was right, the commute is horrible and it appears to be a big case. Reporters were lined up three deep along the walls of the courtroom. Potential jurors filled every seat. Forms were passed out and names called. The bailiff had a booming voice. He was bald, corpulent, serious—perfect for the part.

If there is anyone else with a problem, raise your hand. This is your last chance to make appeals. One woman had a sick mother at home, a nervous-looking man had his own business and a family to support. Another man couldn’t understand English. I marveled at the cross-section of people. A clerk spoke through a microphone telling us about mileage forms and toll receipts. We were ushered out to the hall and placed on elevators. Then crammed into a courtroom, seated in pews like in a church, others lined up along the walls. People sat at elevated platforms in front of a judge. Everyone around me was whispering. There’s so and so—he’s on Channel 5. There’s the guy from that cable station. That one is General Westmoreland. The guy next to me reading Variety, wearing camouflage fatigues told me he was going to get off; he works in a court upstate someplace.

The bald man from downstairs was now standing on the platform below the judge. He was spinning a drum, and calling names. Meanwhile, they had passed out questionnaires ‘Checklist for Prospective Jurors.’ Not one damn question applied to me. I’d never been in the armed forces. I didn’t read TV Guide nor follow movies or read books about Vietnam, nor did I care about it. I had always thought we were in good hands in Vietnam—both in terms of our leaders in Washington, and also in the military. But as I read down the list, I felt downright embarrassed. Bob complains that I don’t keep up with anything but art and real estate. The lights in the courtroom were glaring. I kept looking around. We were given questions for each juror.

1. Age

2. How long have you lived in this country?

3. Occupation over last five years. (Unemployed)(Retired)

4. Marital status

5. Occupation of spouse

6. Occupation of children

7. Level of education (details)

8. Residency over last five years

9. Residency between 1965-1970

People’s names were picked out of the drum like a lottery. Jurors were questioned and eliminated; new names were called. This went on all morning.

The judge was questioning the latest lottery winner and asked when her husband had been in the military. He was in the Second World War and I’m not sure what he did. And your daughter’s fiancé? No! He’s not her fiancé anymore. But you know they were childhood sweethearts and then they got engaged, but they didn’t get along, so she dumped him.

Laughter broke out in the courtroom.

The judge answered, Gee, you had us in suspense there. I’m glad it all worked out! The next woman called was affiliated with one of the law firms representing one of the parties in this lawsuit.

That got a big laugh and rejection.

Finally, lunch time.

Back in the courtroom a woman my age sat next to me. We began to chat. When I found out she worked at the New York Public Library I told her about my commission. I needed photos of the Grimm Brothers. Turns out she was in charge of the library’s photo collection. We exchanged addresses. It was a long afternoon but it gave us time to get acquainted.

Four p.m. just after a late afternoon break the bailiff reached into the drum for the umpteenth time. So far only one person has been detained to be on the jury. They had him sit in the first seat of the jury section. I began studying him. Why did the lawyers choose him?

The bailiff called another name. M. Patricia Roth! My heart jumped into my throat. I felt a dull ringing in my ears. That was me! My usual confident self - turned into rubber. I almost couldn’t stand. Somehow, I made it to the front of the courtroom and turned to see every face looking at me. I was glad I opted for one of my real estate outfits instead of my usual arty style.

Somewhere in the distance I heard my name again. I was told to answer the questions on the list we were given. Start with your age and how long you’ve lived in the U.S.

How anyone could hear me I didn’t know. It sounded like I was in an echo chamber. I didn’t want to give my age in front of all these people. I made the mistake of stealing a glance at the reporters with pencils in position. My God, everyone in the world will be able to read....

I’m forty-two years old; born in Connecticut. I was actually speaking!

I’ve taught art for twenty years. I’m also a real estate agent; married. The reporters were feverishly writing. The court recorder was clicking away. Every eye was glued on me. My throat got dry.

And where were you between 1965 and 1970? asked the judge.

I had an art gallery in San Francisco.

Mr. Burt, the lawyer for General Westmoreland, asked one additional question. Who do you most admire in politics or government? I simply answered. I wish there was someone!

I was told to take the second chair in the jury box! I sat down and my hands began to shake. I had to sit on them. Does this mean what I think it means? I was in a state of total shock.

We were dismissed at five o’clock.

The Perfect Juror

October 10, 1984

We made it to midtown by nine-ten where the anxiety began. Traffic was coming from all directions. I jumped out of the car a block away, and raced to court arriving a minute late. The judge was at the sidebar with some attorneys. A deranged person had been sitting on the subway tracks at Forty-Second Street and all power was shut off. Several jurors told of waiting for a half hour on a train between stations.

The judge spent the first ten minutes impressing upon us the importance of being on time. Everyone will be inconvenienced if even just one juror is not present. Today was the only exception.

The same procedure was followed as the day before. A few more were chosen to sit on the jury. This went on until 3 p.m. when my new friend Cheryl, the librarian was called. She asked to go to the sidebar. I was not surprised her request to be excused was denied. She seemed to round out the jury. The judge announced the jury had been selected.

From this point on we the jury are not allowed to enter through the front of the courtroom or mingle with anyone having anything to do with this case. We were only to use the restrooms in the jury room. The only time we’re allowed to leave the building or make calls was at lunchtime. We were given a fifteen-minute recess, and the clerk showed us our new habitat. A long table filled the center of the room, with twenty leather chairs around it. There was a long coat rack at one end of the room and a men’s room and ladies room at the other. It was drab and depressing.

They called us back to the courtroom.

I found out yesterday that all one does in the jury box is watch people. I wore my new silk blouse, something I wouldn’t dream of doing in the art room. Maybe there’s a bright side to this stint; I can dress without the fear of spilled paint.

The judge swore us in. He read the rules and steps to expect. He stressed the magnitude of this trial. The First Amendment was being questioned.

He emphasized what an important job had been laid on our shoulders and how we had to keep a clear head, and an unbiased attitude, and not allow anyone to influence us. Stay away from all TV, radio and newspaper accounts. He went on for an hour. I was scared.

Westmoreland had been there from the beginning; examining every face in the jury box. His table was in front of the judge, with his counsel by his side. Behind Westmoreland was the defense, George Crile and Sam Adams, along with their counsel. They were being sued by Westmoreland along with CBS, and Mike Wallace who was not here today.

The judge spent a lot of time talking about a chart. He passed a copy to each of us. It became known as the X chart. It explained how we were to interpret the evidence. He also passed around legal pads. They were to stay locked in the jury room. He thought we would need them for this lengthy trial with so many witnesses.

It was unprecedented to take notes in the courtroom.

Going on Guts

October 11, 1984

The council for the Plaintiff took up most of the day. He read 30 pages of notes unemotionally.

He showed us segments from the ‘Uncounted Enemy,’ telling us cuts had distorted the issues. It appeared the press was having trouble following him as well.

Mike Wallace was present today.

Four of us got to know each other as we lunched together. Back in court, we listened to Mr. Burt’s concluding statements.

Next, we heard from the defense attorney. This presentation was different. Two enormous easels were placed in front of the jury. David Boies, spoke very purposefully and reviewed each statement. He too showed segments of the broadcast and gave his point of view.

October 12, 1984

Court was called; the defense attorney continued in the same manner as the previous day. He was slow and deliberate using easels on which he illustrated the contents of various documents. He explained the meanings of some of the military acronyms. Those were so convoluted; my head was spinning.

When I got home, I scribbled off a note to my pen-pal.

Dear Jim,

I don’t know how to tell you this but they accidently gave me your jury seat on a big trial—The Westmoreland vs. CBS case in Federal Court in NYC.

I promise I will take good notes for you.

My Best,

Pat

October 15, 1984

It was cold today. The jurors arrived all complaining about the commute. We shared stories about our weekend. Finally, into the courtroom.

The same characters in the same seats. The same reminders from the judge.

The plaintiff’s attorney called his first witness, Dr. Walt Whitman Rostow, who had been National Security Chief under Lyndon Johnson.

If that title alone wasn’t enough to impress us, we were told he’d written twenty-four books.

He’d taught at Oxford, Yale, Harvard, and presently was a professor at the University of Austin.

With his help the chain of command was outlined on an easel facing the jury. Burt questioned him for over an hour. Do you recall? In your opinion? Where were you in November of 1967? There was a meeting in Saigon! Did you have figures for the number of Vietcong? Did You? Do You? Have You?

I couldn’t take notes fast enough, so I just stopped and listened. We broke for lunch. My backside was aching!

It was David Boies’s turn to question the good doctor. Boies had him repeat certain statements and re-questioned others.

All I could ascertain was that Dr. Rostow had no confirmed figures regarding the strength of the Vietcong.

I think the issue is—Why wouldn’t our military include the thousands of SD and SSD guerilla fighters that were as responsible for killing our soldiers as the North Vietnam Military forces?

The number 280,000 kept coming up! That’s how many North Vietnamese we were fighting; according to the official reporting, SD ...were Self Defense, SSD were secret self-defense.… Many were women and children; some were old men. None of them wore uniforms.

The military refused to count these numbers. They were just townspeople; however, they were armed.

Mr. Boies continued to cross examine Rostow, who refused to be pinned down.

Were there 15,000 enemy coming down the trails each month?

I can’t answer that I had no way of knowing. There were conventional infiltration counts and the Johnson infiltration counts.

David Boies jumped on this; from then on it was, Well, according to the conventional infiltration counts, would you estimate that there were 10,000? Still no affirmation.

The conventional counts came from the POWs and CIA counts. As Rostow admitted these were grossly inaccurate because of the time element.

Court was dismissed.

October 16, 1984

Each morning we signed a sheet by the door. The clerk read it. When everyone was present he’d lead us into the courtroom.

Walt Whitman Rostow was still on the stand. We listened to more painful testimony. He had these broad losses of memory.

He was a likable fellow, with looks that one immediately took to. It was obvious from his presence, and from his credentials he was a man of