Of the thousands of American soldiers court-martialed for desertion in World War II, Eddie Slovik was the only one put to death. One of the judges who convicted him looks back with regret.
When Private Eddie Slovik was executed on January 31,1945, he became the only American put to death for desertion since Lincoln was President. After his death he became the subject of a book that sold in the millions, numerous magazine articles, a television special, a play or two, and several public campaigns that made his case an issue and still keep it alive.
I saw Eddie Slovik for most of one morning, no more, and he never said a word to me. I cannot say for certain whether it is his face I remember or a photograph in a magazine article based on William Bradford Huie’s best seller The Execution of Private Slovik. But I sat on Slovik’s court-martial, as one of the nine officer-judges who unanimously voted the death penalty.
In August of 1944 Eddie Slovik was a twenty-four-year-old replacement trucked up one day in a group assigned to an infantry line company in France. Encountering shellbursts and heavy fire for the first time, he knew at once that he could never make it on the line. With a buddy he hid out, and on the following day they turned themselves in to Canadian military police who were passing through. Not under arrest, they made themselves generally useful for the next six weeks, until the Canadians returned them to American military control on October 5.
Returning to his regiment a couple of days later, Slovik asked the company commander if leaving again would be considered desertion. He was told that it would be, but he walked off, refusing to be persuaded by his buddy, who remained. The next day, October 9, he turned himself in at a nearby field kitchen. He handed the cook a written statement:
“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 [Elbeuf] in France. I come to Albuff as a replacement. They were shilling the town and we were told to dig in for the night. The flowing morning they were shilling 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 in my fox hole till it was quite and I was able to move. I then walked in town. Not seeing any of our troops so I stayed over night at a 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.R They turned me lose. I told my commanding officer my story. I said that if I had to go out their again Id run away. He said their was nothing he could do for me so I ran away again AND ILL RUN AWAY AGAIN IF I HAVE TO GO OUT THEIR.
—Signed PvI. Eddie D. Slovik A.S.N. 36896415”
He waited while the cook got an officer, who phoned for an MP to place him under arrest. After being transferred to a prisoner stockade on October 26, Slovik was interviewed by both the division judge advocate and the division psychiatrist.
The judge advocate, the division’s chief legal officer, offered to quash all charges if Slovik would take back his statement and agree to serve. Slovik refused. The division psychiatrist interviewed him and found him “to show no evidence of mental disease...& I consider him sane & responsible for his actions...” Private Slovik was ordered to stand trial on November 11,1944, before a general court-martial of the 28th Division.
The trial took place in the grimmest surroundings and during the worst time the division had endured, a stalemate in the Hürtgen Forest. For nine days the Americans had been wasting their men and firepower against impregnable pillboxes expertly placed years before. The casualty lists were high, with one-third of the casualties killed in action or dying of wounds, and with no ground gained. The site of the trial was a scarred two-story building in the village of Rötgen, Germany. It was a cold, gray day, with snow off and on.
The court convened at 10:00 A.M. The judges all were, like myself, staff officers. Up to that time none of us had truly served in the line or had had the job of commanding troops in actual combat. I was a dentist. Another was a lawyer in civil life. The division finance officer, a colonel, presided. Staff officers were more likely to be readily available than line (combat) officers, and their appointments to serve on general courts-martial were not unusual. Slovik’s defense counsel, a young staff captain, was not an attorney, but he had served on previous courts-martial.
Slovik elected to stand mute. His defense counsel pleaded him “not guilty.” Witnesses gave testimony to Slovik’s identity and the dates and places of his defections. His written statement was placed in evidence with his and his counsel’s permission. I recall that at one point some member of the court suggested that Slovik might withdraw his statement about refusing to go out there in the future in return for our dismissing the charges and removing the risk of his receiving the “full penalty.” The scene in my mind is of Slovik’s turning silently to his defense counsel, who declared, “Let it stand,” which seemed to satisfy Slovik.
Five witnesses were heard. The cross-examinations were perfunctory. The defense made no closing argument. The court recessed for ten minutes, resumed, and retired almost immediately afterward. Three ballots were taken in closed court, the verdicts unanimously guilty on all counts. In open court once more, the president announced the verdict and the sentence: to be dishonorably discharged, to forfeit all pay and allowances due, and to be shot to death with musketry. The trial had begun at 10:00 A.M.; it was over at 11:40 A.M.
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.
Slovik, still wordless, was escorted out under guard. We members of the court, satisfied with our morning’s work, disbanded and went our separate ways. If the too-simple procedure and the too-quick verdict stirred doubts within, I put them down, as I and probably lots of others had gotten into the habit of doing during our time in the Army. 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.
The sentence was approved by the division commander, Maj. Gen. Norman D. Cota, on November 27, while the division was still mired in the Hürtgen Forest. On December 9 Slovik wrote an explanatory, apologetic letter to Gen. Dwight D. Elsenhower, ending with “To my knowledge I have a good record since my marriage and as a soldier. I’d like to continue to be a good soldier....” Eisenhower did not read the letter in the short time before he confirmed the death sentence. The various reviewing authorities approved the death sentence.
The execution was carried out on January 31, in a walled-in garden of an estate in a small town in eastern France, before a large group of military witnesses. Twelve expert riflemen, strangers to Slovik, were detailed to the firing squad. They were rehearsed the day before. Slovik needed no assistance and replied quietly to those trussing him up and placing the hood over his head. He stood “straight as could be” without “any sign of emotion,” in the words of one of the squad.
When the military surgeon examined the slumped body, following the volley of rifle shots, Slovik was still alive. None of the eleven bullets (one unknown rifleman having drawn a blank), fired from a distance of twenty paces by expert riflemen perfectly capable of hitting a silver dollar on a stationary target at twice that distance, had exactly hit the heart. He died as the guns were being reloaded.
Meanwhile, several of those involved in the case, myself included, had been taken prisoner in the Battle of the Bulge, which had begun for us on December 16, five weeks after the trial. The first knowledge I had of the execution followed my release from a German prison camp in the spring of 1945, when a noncom, recognizing me, cried out, “Hey, Captain, you know they shot Slovik!” We were in a souvenir shop in Paris, where I was looking for a wedding-anniversary gift to send home to my wife.
I was shaken. It was bitter bad news. My experiences in the Battle of the Bulge had totally changed my mind about the sentence.
In December 1944 I had volunteered to remain with a rearguard task force commanded by a lieutenant colonel I much respected. We were at division headquarters in a castle in the nearly surrounded little town of Wiltz, Luxembourg, ten miles east of the soon-to-befamous Bastogne. When I reported in on the morning of December 18, headquarters looked like a just-disturbed ant heap. Ominous messages were coming in from the north, east, and south; many enlisted men and officers took off without orders, some empty handed, running on foot or jumping onto and clinging to every vehicle moving out.
The perimeter of the city was being defended by “specialists”—cooks, clerks, musicians, telephone linesmen—all suddenly ordered to take up rifles, which most of them had not fired against the enemy for months, if ever. Furious and scared but obeying orders, they had never really forgotten that they were only ragmen, infantrymen who had been out on a liberal leash for a time. With them were numbers of officers, as inexperienced in this kind of situation as we all were but trying to put and hold things together. Few ever got out.
Refugees came trooping down the main road from the north, bundles on their backs, holding children and pushing carts. The mayor of Wiltz, at the head of a small group, breathlessly pushed his way to the open side door of the castle to speak to the general. He spoke good English. I heard him say, “What shall our people do? Go, or stay in the cellars? If we go, we block your roads.”
The general was on the field telephone, his back turned to them. “Tell ’em I can’t do anything for ’em,” he growled to the provost marshal, his chief of military police, standing nearby. It is hard to forget the disbelief on the mayor’s face as the provost marshal repeated the remark. The little group walked off, slowly and silently.
Two medical officers, having somehow missed the earlier exodus, requested my permission (since I was designated acting surgeon of the defending task force by the departing division surgeon, my dental degree and time in service deemed adequate for the job) to retrieve two abandoned ambulances “just outside town.” Working in concert, they succeeded in getting my permission and quickly took off, for good. I met one of them at a veterans’ reunion four years later, and he spent a lot of time detailing an elaborate alibi.
When I volunteered to remain with the defense task force, my action technically relieved all the other headquarters medical department officers of the need to wait for orders to leave. I requested a volunteer from my own detachment. There was an immediate response from one man, the others staring at us as though we were out of our minds. He was Sgt. Bill Moffett, a 1941 draftee from Pittsburgh, an able medic and a maverick in no awe whatever of Army regulation and routine.
On the night of December 18, Moffett and I crept out of our empty aid station at the lower end of Wiltz and cautiously approached a nearby bridge across the narrow Wiltz River. It was patrolled by a single sentry, who challenged us in unmistakable American, and we soon discovered that a medical unit of about eighty men had fallen back and was now situated on our left flank, leaving us exposed there no longer. I reported this good news on the field telephone to the commander. At dawn on the nineteenth, when Moffett and I ventured out to contact them again, they all were gone, the bridge left unguarded and ourselves again exposed.
On the fateful night of December 19, our remnants were still in the town of Wiltz, thanks mainly to the resistance of the little groups of “noncombatant” specialists on the outskirts and the remnants of one infantry regiment. A group of three visiting surgeons, who were now marooned in Wiltz, shared rations with me. With a couple of candles and a bottle of wine, we squatted about an improvised table in the basement of an outbuilding of the castle headquarters, the shellfire muffled by the thick walls, and we sensed we were sharing a “last supper.” A few hours later, at about 11:00 P.M., I got word that all of us were to move out, our job done, the Germans all around us. As medics, Moffett and I were to bring up the rear.
We had to hustle in single file through an underground tunnel that opened on the courtyard. The shelling was now heavy. On emerging, Moffett and I raced the few yards to the outbuilding to pass on the orders to the three surgeons and five or six exhausted soldiers I had seen there. None of the soldiers got to his feet. They were through with the war, ready to be taken prisoner. I bent down to shake hands and say good-bye. I felt no obligation to order or persuade them—infantrymen who had been in the line for days on end, over many months, and now had decided “no more.”
The major, highest-ranking of the visiting surgeons, said to me, “Don’t go. You haven’t a Chinaman’s chance.” Those were his exact words. Never forgotten, either, was my immediate understanding of how different our worlds were, his and mine. For me there was no choice. I had orders.
The six frenzied hours of combat, of being shot up from three sides by panzer troops in the trap that had finally closed on us just outside Wiltz, are remembered all too well. My ubiquitous shorthand diary, resumed three weeks later, cites a numb acceptance of personal disaster by many of the wounded we reached and their effusive thanks; the energy and zeal of Moffett and three other medics picked up somewhere; and one brave, hopeless flanking maneuver attempted by an officer and a pickup squad. I stumbled on to a little group of soldiers huddled in a heap, too demoralized to fire their weapons. Half-hallucinating and in a burst of crazy humor, I asked one man with the shakes, whom I recognized, if he was taking his rifle apart to clean it.
Moffett, the other three medics (my diary gives their names as Pogue, Deboe, and Curtis), and I managed, during lulls in the firing, to carry all our forty-one wounded up a slope of the traplike defile and onto several vehicles blocked on the narrow road. When flares exposed our position, the German mortars proceeded to bracket our vehicles front and back. I jumped into the ambulance and got the little convoy to move forward, some of the vehicles tilting on two wheels to maneuver around the wrecked jeeps in front. A few hundred yards farther on we got stuck in an impassable copse. It was about 5:00 A.M., and the firing had stopped. A short while later we heard shouts in German, followed by short bursts of automatic-weapons fire. Mr. Purvis, the band warrant officer, ill with pneumonia and a casualty, called out our surrender in German, and he and I went forward, hands on top of our heads, to surrender ourselves and our wounded to a brisk German tank corporal, posing and strutting as though he had won the war.
Days of misery, exhaustion, and near starvation followed as groups of us were marched east into Germany, through devastated villages, halting during the day in bombed-out buildings or in woods to escape strafing by American planes and trudging on during the night. The final leg of our journey was a four-day ride in crowded boxcars, in which we took turns sitting and standing, unable to stretch out.
It was nearly three weeks after capture that several hundred of us from the 28th Division came to a halt at Stalag IVB, ninety miles southeast of Berlin.
In the prison camp, after some time, there was considerable talk about the Slovik case. The harsh sentence had certainly had an impact. Some of my fellow POWs had gotten acquainted with him during his time in the stockade. They mostly liked him. “A quiet little guy, no trouble.” “Do anything for you.” Several maintained that he was not gutless at all, that he just felt helpless under heavy fire. There was a story that when he was with the Canadians, he had volunteered for the hazardous job of helping clear minefields. There had been no mention of this at the trial.
My fellow prisoners never challenged me to defend my part in the verdict, though I at no time denied that in “throwing the book” at him, we indeed assumed that the death sentence would be carried out. No one then implied that the court had been “ordered” to find him guilty and pass a sentence of death. The consensus was that he had provoked the court-martial, gambling on receiving a prison sentence.
And there was no doubt in the minds of us POWs that he had won the gamble anyway. For the authorities could never follow through on the sentence—not now, after the Bulge debacle and all its widely witnessed large and small foulups. Indeed, some men of the 106th Division, a new outfit, were rumored to have surrendered en masse, their rearechelon baggage still in their possession. There were many in the camp from that luckless division.
I came to accept the view of Slovik’s prospects that was general in Stalag IVB. There seemed little chance that the many offenses in the Bulge debacle could or would be run down and cited for courtsmartial. That would be bad publicity. This being so, “they” could not in good faith execute this one offender. By strict interpretation they should try the three surgeons and the exhausted enlisted men left behind in Wiltz on the night of December 19 and all those who had run away from division headquarters the day before. Charges would certainly have to be brought against the commander of the medical unit alongside us that had disappeared without notice during the night of December 18. You could grant that the two medical officers who ducked out earlier that day had played the old Army game; no one could pin anything on them.
For a time, after I had learned of the execution, I made some noise about it. Among the group of hundreds of exPOWs awaiting early shipment home, my “protests” met with agreement—diluted with indifference. I railed 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, I maintained, and I would not vote the death penalty, knowing that among the thousands of soldiers engaged there had to be dozens or even hundreds who would fail. At the trial in November I simply had not had sufficient experience or understanding of that fact.
Those sympathetic in some degree with my personal crusade did their bit to put it into perspective. They said, in effect: “OK, Slovik alone got the book thrown at him. He was dumb, his defense counsel was dumb, and the court was a bunch of Boy Scouts. What can you or anybody do about it now?”
In June 1945, as we camped comfortably on the beach in large tents, luxuriating in too much food and idleness in the incredible sunshine that bathed Le Havre that month, the sense of great good luck, of having made it, prevailed over everything. The war in Europe was over; we were Americans victorious. The times were crude and exciting, and talk of Justice, the blindfolded goddess holding the scales in her hand, was out of place. Reading, writing letters, idling in the sun over endless games of poker, trading rumors and jokes, I found the sense of outrage gradually fading. Just ahead was everything we believed we had fought for: country, family, home, career, and an end to war forever.
The case first came into public view in June 1948, in a tendentious article by William Bradford Huie, “Are Americans Afraid to Fight?” in Liberty, a national magazine, now defunct. The article infuriated veterans of the 28th Division because of errors of fact and because it implied that the division had performed badly. We sent a letter of protest, but there was no acknowledgment from Huie or the magazine.
It was five years later, in the summer of 1953, that I met Huie, at dinner in Philadelphia. Unfazed by my hostile response on the phone the day before, he admitted to a bad job and requested help. He was writing a book that would set the record straight. According to my diary notes, there were six of us at dinner, including Edward P. Woods, Slovik’s defense counsel, two former MPs, and another who had guarded Slovik or witnessed the execution. We all were members of the same veterans’ post and in those days still met occasionally.
At the time, Huie had first-rate conservative credentials as former editor of the American Mercury and as a national news commentator. During our conversation in my office before we met at dinner, this slight, tired-looking ex-naval officer from Alabama let some dire hints drop. Hostile questions were beginning to be asked by a conservative congressman from Slovik’s district, among others, about Elsenhower’s role. For example, why was a Catholic white boy the only man to be executed by the U.S. Army for desertion since Abraham Lincoln’s time? What seemed to disturb Huie—or perhaps what he wanted to have disturb us—was the political hate that the extreme right right wing felt for Elsenhower, whom they saw as a soft middle-of-the-roader. These were the times of McCarthy, and it was not fanciful to imagine a new storm center building.
There was a certain brutal directness about Huie, possibly a profesional trait of the investigative journalist. He had told Slovik’s widow—unaware till then—exactly how and why Slovik had died eight years before. He gave her a sum of money to talk with him and permit him to write the story. At dinner he asked us some challenging and personal questions. But he did not try to corral the answers he wanted. All those around the table, with the exception of Huie, knew one another, several as close friends. We were generous with our recollections and opinions. A few undertook to put Huie in touch with others who had had firsthand contact with Slovik or the case.
A few months after the meeting, true to his word, Huie sent me the pre-publication script of my remarks for review. The comments he attributed to me were not what I remembered and had noted. What appeared in the book was this corrected version:
Doctor Kimmelman: “A few weeks after I had voted for the death sentence for Slovik as a member of the court, I was captured in the Bulge battle, and didn’t know of his execution until after my release from a German prison camp. In prison, we often talked about the case. I can’t say positively what I would have done if I had still been with the division in January, 1945, but the experiences in the Battle of the Bulge altered my views. I came to believe front-line offenses ought to be judged only by front-line personnel. At trial time we had not been a court of front-line personnel. He got a fair trial under the circumstances, but in retrospect, the circumstances were not fair. I believe I would have tried to do whatever was in my power to get the entire case reviewed on this basis.”
The one part of my statement in Huie’s book with which I do not agree today is the next-to-last sentence: “He got a fair trial under the circumstances, but in retrospect, the circumstances were not fair.” I meant to make plain by the term fair trial that no one had attempted to feed us inside information or influence us in advance. The statement otherwise is a contradiction in terms, like that bromide of vigilante justice “Give him a fair trial and then hang him.” I should always have known that there cannot be a fair trial under unfair circumstances.
It all had begun for me late in the afternoon of November 10, 1944, when a Captain French and I were handed orders to report for a court-martial the next day. We were just returning to the bivouac area after a long, silent hike from the clearing company hospital, where we had learned that our best buddy, Captain Rokey, had died of his wounds. He had volunteered three weeks before to go forward to command a line company. I cannot know just what Captain French or any of the others assigned to the court were thinking as we took our seats at that judgment table the next morning. I do not even know that I succeeded in making my own mind and feelings neutral. After all, I was hearing the case of a deserter who had not been hurt and who refused to return to the line. However, there were no challenges by the defense. Captain Woods, the routinely assigned defense counsel, was good enough at his various jobs but was young like the rest of us and had no legal training. Even with the best will and devotion, he had to be out of his depth.
It is simply not true that legal skills have no place in courts-martial. A few weeks before the Slovik trial, I had served on a general court-martial that tried a private for the deliberate murder of his sergeant at close quarters in broad daylight before numbers of witnesses. The killer had as his defense counsel Lt. Col. Thomas Hoban, the officer who was later in charge of the task force in Wiltz for which I volunteered. In civilian life Hoban was a judge. The site of the killing was a street outside a bar in a French village. Cross-examining the military surgeon who had pronounced the sergeant dead, Hoban drew from him the acknowledgment that “of course” he had not conducted an autopsy. On the grounds that we were in the midst of hostilities and that it was therefore not impossible that the sergeant had been fortuitously killed by a stray enemy bullet, and with no incontrovertible evidence to the contrary, Hoban moved for a directed acquittal. The prosecutor was speechless. The court sat in closed session wrestling with this for more than an hour before we came to our senses. It was an all-day trial. The killer was said to be the most hated and feared man in his squad; the sergeant, highly respected and liked. The verdict was guilty; the sentence, life imprisonment. Later, when I asked Hoban what he would have done if his maneuver had succeeded, he said he would have made sure his client had been confined to the stockade on some pretext or other.
In the course of the Slovik trial, an experienced defense counsel might have sweated the division psychiatrist on his statement “I consider him sane and responsible for his actions.” He might also have located some witnesses to say something on behalf of the defendant’s ordinary conduct.
The circumstances were, therefore, such that Slovik could not receive a fair trial. We members of the court, all of us, were what would today be described as “establishment types.” Our lack of firsthand, close-up battle experience disqualified us as a jury of Slovak’s peers. The legal inexperience of his defense counsel amounted to a failure to grant him the full benefit of his day in court. He did not receive a fair trial.
The final sentence of my statement to Huie—“I believe I would have tried to do whatever was in my Dower to get the entire case reviewed on this basis” (that the circumstances of the trial were unfair)—was hypothetical and based on the supposition of my eluding capture by the Germans and reporting back to division. What would have been in my power was to “go through channels,” the normal bureaucratic process. Obviously I would have been strongly motivated to do so. Since reading the transcript of the court records and the review process in 1979, I do not believe that any plea by me on Slovik’s behalf would have met with sympathy at any point in the chain of command. Minds were apparently closed from division upward after the conviction and sentencing. Going beyond my legitimate power would have meant rebellion of some kind. In addition to strong conviction, this would have required moral courage rarer by far than the physical courage called bravery, which the military rewards with medals. I am not now sure I would have had the moral courage to pursue the Slovik case.
Huie’s book The Execution of Private Slovik appeared early in 1954 and was extremely well received. The Sunday New York Times review was by Brig. Gen. S. L. A. Marshall, the noted military historian; Saturday Review gave the book a favorable full page. A long summary ran in the May 4,1954, issue of Look.
It is a good, even powerful book, dramatic and thought-provoking. The theme is justice; the drama is Slovik as a victim of history. No reader, myself included, can fail to feel pity for this quite unremarkable individual deliberately deprived of his life by the relentless machine he had provoked. Frank Sinatra bought the story from Huie and in 1960 hired Albert Maltz, a Hollywood author, to write the screenplay. Maltz had gone to jail for contempt of the House UnAmerican Activities Committee and had been blacklisted. Sinatra, gutsy in those days, later capitulated and sold the rights to Richard Dubelman, a television producer. Dubelman sold them to William Link and Richard Levinson, who in 1974 produced a moving two-and-a half-hour TV special, “The Execution of Private Slovik,” with Martin Sheen in the role of Slovik. It has had many reruns.
In 1974 Slovik’s defense counsel, Woods, long retired from the military, and Robert N. DeFinis, an associate of his, began a public campaign to win financial help from the government for Slovik’s widow, ill and destitute. There was certainly a basis for her eligibility to receive his GI life insurance; the part of the sentence that forfeited “all pay and allowances due” had been eliminated by the division commander and the reviewing authorities. Nonetheless, she was denied all funds. In 1978 President Carter sponsored a bill authorizing the payment to her of seventy thousand dollars. She died before it came to a vote.
The image of Slovik I carry with me today is based on my recollections, a good deal of them recorded, as well as on Huie’s book; on the records of the trial and of the reviewing authorities, with annotations by Woods, made available to the public by Woods and DeFinis in 1979; and on opinions and information from Army buddies, several of them now years-long friends, who were acquainted with Slovik or involved in the case. It is of Slovik as a mild, ordinary GI, jumpy and easily panicked by loud explosions but otherwise unremarkable among the vast assortment. A reformed parolee, he had paid his debt after a career of petty thievery and one auto theft. He did his work and took his turns.
I am inclined to believe, as did the reviewing authorities and some who were his guards in the stockade, that he deliberately sought a guilty court-martial verdict to avoid serving as a combatant. He was sure he would never make it on the line. He was not afraid of prison, having served time, and someday, when the war was over, he would come out alive and unharmed. All the attempted dissuasion after his arrest would have come across to him as phony talk from officers, intended to con him back into the line, but he wouldn’t be suckered into that. He would have had no reason to fear execution; he believed that had never happened. If this is a faithful picture, the one-sidedness of the trial and the absence of an active defense are largely explained. Slovik would not have wanted anything said or done that might have jeopardized a guilty verdict.
That said, the execution stands out now, as it did then, as an exercise in injustice. That Slovik contributed to it by his transparent quasi-cunning does not at all exonerate the authorities. Justice is the responsibility of the legal system. We on the court (or at least I) were prejudiced (if the word means having prejudged) by the times and the circumstances. Nothing said at the trial altered for me the picture of a nonentity openly defiant of the rules that we believed bound us all. The reviewing authorities, having the benefit of a little distance, might have shown less prejudice, but did not. Lt. Col. Henry J. Sommer, the division judge advocate, exhibited his personal distaste for Slovik in his review a couple of weeks after the trial: “The accused is an habitual criminal. He has never seen combat, has run away twice when he believed himself approaching it and avows his intent to run again....”
A month following this the assistant staff judge advocate, ETO (European Theater of Operations), Maj. Frederick J. Bertolet, who was even farther from the scenes of battle, wrote in his review, “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.”
Thus Lieutenant Colonel Sommer approved the death sentence because Slovik was not a worthy person, and Major Bertolet approved it to bolster discipline. I am no lawyer and certainly not a military authority, but I believe those endorsements of the death sentence were beyond the knowledge and competence of the reviewers and did not address Slovik’s culpability and the appropriateness of the sentence.
In light of the events of that December, doubtless apparent to Bertolet by the date of his review, December 23, the execution of just one man should have taken on the appearance of cruel and unusual punishment. Defections were by then rampant.
The U.S. Army Information Sheet that accompanied the transcript of the trial and the reviews contained the following: “Shortly after Private Slovik’s trial, forces in Belgium became engaged in...the Battle of the Bulge. Heavy American casualties were being sustained while the record of trial was under review; indeed the success of the Allied campaign was uncertain at the time. This undoubtedly had an effect on the officials who reviewed the sentence of one who refused to fight....”
An official comment, undated, from C. Robert Bard, a colonel in the judge advocate general’s office, provides the following: “During the period 1 January 1942 through 30 June 1948, 2,864 Army personnel were tried for desertion....Of these, forty-nine were sentenced to death. Only one was executed.” Over a six-and-a-half-year period, then, reasons were found by those in higher authority to void the death sentences of forty-eight men found guilty of desertion. Only in Slovik’s case was no reason found. SIovik, guilty as many others were, was made an example—the sole example, as it turned out. An example is a victim. His execution was a historic injustice.