EXCLUSIVE: a judge from Italy and visitor of custerwest.org analyzes a modern court-martial of Custer for the Little Bighorn
source: Indiana law school and custerwest.org visitor and Italian judge
If the spirit of George Armstrong Custer was present in the moot courtroom of the Indiana University School of Law-Bloomington, he didn't manifest himself in any way.
On Sept. 18, he was tried posthumously by a uniform-clad tribunal consisting of the Hon. Ruth Bader Ginsburg, associate justice of the U.S. Supreme Court, the Hon. Frank Sullivan Jr., of the Indiana Supreme Court and David C. Williams, professor of law on the Bloomington campus.
Custer, a lieutenant colonel of the U.S. 7th Cavalry, was found guilty of a breech of two of the Articles of War and dismissed from the Army. He was exonerated by the court on the charge of disobeying the orders of his commanding officer, Brig. Gen. Alfred H. Terry, commanding officer of the Department of Dakota.
Prior to the trial, briefs had been prepared by the other participants in the court martial and presented to the panel of judges. Appearing for the judge advocate general were third-year law student Damon Leichty and Kathleen Buck, partner in a Washington, D.C., law firm and an IU alumna. Custer was defended by practicing attorney and IU alumnus Robert A. Long of Los Angeles and Azin Lotfi, another third-year student.
In introductory remarks, attorney John Walda, president of the Trustees of IU, told the audience that the trial was a "court martial with the warts removed." He noted that the trial served two purposes -- to give Custer, who died at the Battle of Little Big Horn in June 1876, a chance to clear his name.
The trial was also to answer those who think Custer should have been brought to justice, even posthumously.
Custer was charged with three specific Articles of War: #15 - negligent conduct resulting in destruction of military stores; #21 - disobedience of orders; and #62 - neglect of duty to the prejudice of good order and discipline. Some 263 troopers under Custer's command died in a battle against approximately 2,000 Lakota (Sioux) warriors. Custer's body was found at Last Stand Hill.
The prosecution brought up Custer's earlier disputes with authority, one of which led to a previous court martial. The two prosecutors pointed out that Custer failed to have adequate reconnaissance conducted and unwisely divided his command into four parts, leaving his troops vulnerable to an attack from superior odds.
Sullivan suggested that perhaps the disastrous battle loss was, in reality, a "battlefield mistake" rather than the result of gross violations of the Articles of War.
After pointing out Custer's past history of insubordination and neglect of duty, Buck continued, "I'm not here to argue that Col. Custer was not a brave man." She added that Custer allowed his men to light cooking fires, thus giving the Lakota the troops' location. When the soldiers were divided into four groups, they were too far apart to communicate and come to each other's aid.
The battle had been a disaster, Long said in defense of Custer and "the Army needs a scapegoat."
When challenged by Ginsburg about the lighting of the fires to cook supper, Long replied that "Custer felt little risk. He and his men were on the Rosebud side of the divide 15 miles away." He said that after the battle, Lakota warriors testified that they were unaware of the fires.
Long argued that Custer had very good reason for splitting the cavalry into four groups. The pack train of supplies had to be protected. Custer's strategy was to capture the women and children, thus demoralizing the warriors.
Ginsburg, Sullivan and Williams retired to consider the verdict and returned with a unanimous decision.
Ginsburg gave her attention to the article dealing with disobedience of Terry's orders. "Custer's actions were within Gen. Terry's orders," she said. She explained that the orders (in writing) were in highly ambiguous language and left room for Custer's discretion. There were no definite instructions or precise orders.
Sullivan spoke about Custer's failure to conduct adequate reconnaissance and the dividing of his forces.
"Reconnaissance is a continuing responsibility of a commander," Sullivan said. "Custer had only perfunctory use of scouts." He added that it is a commander's duty to maintain the integrity of his force, which means that time, distance and spacing of them is essential. "Mutual support of the units was not possible."
In his summary, Williams pointed out that the trial was not a judgment of Custer's character; that the trial was not about his killing Lakotas or that he fought poorly.
"Perhaps the campaign was unjust, but Custer was not the one who made the decision about it," said Williams.
He explained that without rules, the Army does not exist. Rules, he said, are a compilation of the wisdom of older soldiers. "Above all, the Army prizes accountability. We insist all generals comply. That's what makes us civilized. We bind ourselves according to the law."
| Opinion on the trial by a visitor of custerwest.org, complementary Italian officer and judge |
I have the degree of Judge on the Appellate Court, have more than 18 years - long experience in criminal and civil law, and above all I'm also a complementary EI (Italian Army) officer (indeed, Components of Lt. Col. Custer "mock" Court Martial wear uniforms, as I can see, but I don't know if they really ever were military officers).
I guess that the charge about #15 of Articles of War (in the text it had in 1876, not in the revisioned version of first 20th century), about "negligent conduct resulting in destruction of military stores" (poor or perfunctory use of recognition) does'nt match the beyond any reasonable doubt principle (I am not a enthusiast supporter of Col. Custer, but a reasonable doubt is enough for me!).
And should be stressed that, aside the gravest charge of disobedience, only the charge of negligent conduct made possible the sentence of dismission from the Army (the third charge, sub #62, was insufficient to the purpose in the Articles Of War of 1876).
VIDEO: Michael Donahue, Little Bighorn battlefield historian: "Custer was on the verge of a remarkable victory."
Professors in the Center for Technology and National Security Policy: "Much depended on Reno diverting the Indians from Custer and on Benteen arriving promptly."
Military Instructor: "Custer's tactics very possibly would have been used by any other officer" + Marine Robert Nightengale's analysis