Download - Military executions during WWII: The case of David Cobb

NOTES & COMMENTS

MILITARY EXECUTIONS D U R I N G WWII: THE CASE OF DAVID COBB

J. Robert Lilly* Northern Kentucky University

ABSTRACT While few topics today generate more heated debate in American criminal justice than capital punishment, little attention has been directed to the one institu- tion other than civilian courts that can execute U.S. citizens: the military. This article calls attention to this oversight and provides general descriptive information about military executions during WW II's European Theater of Operations (ETO), and a more detailed examination of the ETO's first execution. It illus- trates several striking features of other ETO executions: predominately Black males with White victims, speedy trials, weak defense efforts and an appeal processes subject to illegal influence of commanders. In view of the U.S. Supreme Court's 1996 decision (9-0) in Loving v. United States upholding the constitutionality of the military executions and disproportion of minorities on Levenworth's death row, the data reported here is timely and important for comparative research and the death penalty debate.

INTRODUCTION Given the long and illustrious research and judicial a t t en t ion de-

vo ted to the imposi t ion o f the dea th pena l ty within the U.S., it is sur- prising that little empir ical research has b e e n devo ted to the one social insti tution, o the r than civilian courts, where the dea th pena l ty has b e e n imposed on U.S. citizens: the military. This neglect can no t be expla ined by the a r g u m e n t that mil i tary execut ions have b e e n b e y o n d scholars ' knowledge or oppor tuni t ies to examine it. For at least 10 o f the 64 years the federa l g o v e r n m e n t has been repor t ing statistical descr ipt ions o f capital pun ishment , the Bureau of Justice Statistics ' widely c i rculated

* The author gratefully acknowledges earlier contributions to this project by Rob- eft Bohm, Michael Radelet, and Polly Bunzel. Funding was provided by a grant from LABCONCO Corporation, Kansas City, MO.

AMERICAN JOURNAL OF CRIMINAL JUSTICE, Vol. 20 No. 1, 1995 �9 1995 Southern Criminal Justice Association

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annual Bulletin Capital Punishment has, without failure, reported that "An additional 160 executions have been carried out under military authority since 1930" (U.S. Department of Justice 1984, 1985 1986, 1987, 1988, 1989, 1990, 1991, & 1992).

Other sources in the decades since WW II have also recognized and commented on the U.S. military's use of capital punishment. These executions, excluding those resulting from war crime tribunals such as the Nuremberg trials, have been addressed by journalists, novelists, legal scholars, and film makers. Huie's (1954) acclaimed examination of The Execution of Private Slovik, the only U.S. soldier to be executed for desertion in more than ninety years, Natanson's (1965) The Dirty Dozen, each of which were made into Hollywood films, and HBO's 1995, The Affair, are three examples of Hollywood's interest in this topic. 1 Sherrill's (1971) Military Justice is to Justice as Military Music is to Music, Terkel's (1984) The Good War, Luszki's (1991) A Rape of Justice: MacArthur and the New Guinea Hangings, and Allen's (1993) The Port Chicago Mutiny, have each given some attention to this subject in the U.S. The future of military executions has also been a topic of recent interest in the legal arena of European human rights (Con- ners, 1982; Jackson, 1986; Anderson, 1990; Parkerson & Stoehr, 1990; Spradling & Murphy, 1990; Intoccia, 1990). For the last twenty years several legal scholars have been concerned with the constitutionality of military executions (Trogolo, 1974; Berkman, 1996).

Details about military executions in other countries' has, like the U.S., received scant attention. This neglect includes Britain where, in recent years, two book-length reviews of its military executions during WW I have prompted debated in Parliament and in the media (Bab- ington, 1983; Putkowski & Sykes, 1989; Shrimsley, 1993; Bellamy, 1993). Issues central to these debates include accounts involving questions of class-based justice meted out to more than 300 soldiers executed for desertion under conditions of poor health, and combat and shell-shock, none of which were recognized as mitigating circumstances during WW I. 2 As in the U.S., the execution of soldiers by their own forces has yet to stimulate British sociological or criminological investigation.

More perplexing than the general sociological and criminological neglect of this topic is the fact that military sociologists with an explicit concern for social control have been silent on this subject (cf., Burk, 1991; Janowitz, 1974; Moskos, 1966, 1970, 1973). In general terms, the closest criminologists have come to connecting crime and the military has been Mannheim's (1965) work on civilian crime during war, Cloward's unpublished report on a military discipline barracks (Merton, 1955, p. 24-55), and Bryant's (1979) study of khaki-collar crime.

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Sociologists and criminologists are not the only scholars to over- look this topic. Mainstream military scholars have focused primarily on the diplomacy, battle strategies, and the heroes and villains of the war itself. Although it is unfortunate that this subject has been slighted in the past, including what seems at times to be a continual and often anguished re-examination of various WW II policies, 3 the research shared here raises important questions about military executions during WW II. To ignore these questions would contribute to a failure to con- front some very enigmatic questions about U.S. military executions during the "Good War" (Turkel, 1984; Adams, 1994). It would also fail to provide data for comparing patterns of military and civilian executions.

Some descriptive research on military executions has been pub- lished, Military Police, a specialist publication, has tallied 459 military executions for the Civil (Union side only), First and Second World Wars, and the years between 1950-1985 (Wyble, 1985). 4 No information on the age, race or class of origin for the 459 military executions was presented in this research.

As of this date the U.S. Army had not executed anyone since 1961. However, this hiatus may change. There are presently eight members of the Armed Forces now awaiting death, seven of whom are people of color. This 7-to-1 ratio means that the U.S. military death row now has the largest percentage (88%) of people of color awaiting execution, compared to 48% for the death-row inmates nationwide (NAACP, 1995). There is also a new Death Row at Ft. Leavenworth, Kansas with a new lethal-injection chamber (Saran, 1994; Sullivan, 1995), awaiting the first soldier to be executed since the U.S. Supreme Court's stunning decision (9-0) upholding the constitutionality of military executions in Loving v. U.S. (1996).

Between 1798 and 1989, the U.S. has used its armed forces in ap- proximately 215 excursions abroad, involving millions of conscripted and voluntary citizens, all of whom were subject to military justice (Congressional Research Service, 1989). The neglect of social control in the military generally, and the imposition of the death penalty by the military in particular, suggests it is time to further examine this topic.

While it would be rewarding to search for explanations for the scholarly neglect of military executions, the purposes of this study are more limited. This study will: (1) examine the details of the imposition of the death penalty on David Cobb, the first of 18 U.S. soldiers executed in England during WW II's European Theater of Operations (hereafter ETO); and, (2) compare various aspects of this execution to the seventeen other U.S. executions in England. 5 The Cobb case in- volves a 21-year old Black man from Dothan, Alabama. The official records indicate that while on guard duty he shot to death his Officer of


the Day, 2rid. Lt. Robert J. Cobner, who was White. These data are rich for comparative purposes, more than fifty-years after the fact.

This case study builds on previous original archival and field research that focused on the crimes and punishment of U.S. soldiers in the ETO between 1942 and 1945. The earlier research concentrated on the demographic features of those executed, including race, crime, and country where the executions occurred, sexual racism and the impact of "command influence" on the executions of African Americans (Lilly, 1993, 1995, 1996; Lilly & Thomson, 1995). The latter term refers to the fact that commanders use their power and authority to illegally influence outcome of trial and appeals by first, selecting the judge, jury members, prosecutors and defense counsel, and second, by requesting reviews of capital cases by those who under his command. Lilly (1993, 1995, 1996) has previously reported that nearly 80% of the 70 U.S. soldiers executed during ETO. were African Americans, yet comprised no more than 10% of the troops of WW II.

T H E S T U D Y

The research for this project involved several avenues of information collection. First, after learning about the WW II executions from a colleague in England, a micro-film copy of the U.S. Army's History o f the Branch Office of the Judge Advocate General with the United States Forces European Theater, Vol. I and H (1945), hereafter USFET, was located in the Library of Congress. It summarized the disciplinary problems experienced in the European Theater of Operations, and provided an authoritative report of the major breaches of military discipline and serious criminal offenses. This document also contained statistical summaries and detailed accounts of the ETO soldiers' trials and their punishments. The USFET contained data for 70 executions between 1942 and November, 1945, plus another 38 scheduled executions, for a total of 108.

The trial transcripts for the 70 ETO executions were another source of information. They were located at the National Archives, and contained material about the ages of the offenders and victims, race, and numerous other tidbits of information. In addition to the trial transcripts and the execution protocol, these files often contained investigation reports, witnesses statements, photos of the victims and/or the deceased, letters from concerned loved ones, letters from politicians written on the behalf of the condemned, and occasionally macabre but informative memorabilia.

Face-to-face and semi-structured phone interviews, coupled with written correspondence provided another source of information. These

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included contact with family members of those executed, prosecution and defense counsel for the U.S. Army involved with the trials, execution witnesses, and, in one instance, a member of the burial detail of an executed soldier.

Crimes and Executions in England

In England, there were a total of eighteen U.S. soldiers executed, not nineteen as has often been reported (After the Battle, 1988). One explanation for the discrepancy is that a Private Thomas Bell, who was reported as having been executed during the war, was actually still im- prisoned in an Atlanta, Georgia, federal penitentiary for a rape conviction as late as the early 1950s. Rape was only one of several capital charges that could result in death sentences for American soldiers. Other charges included murder, murder/rape, sodomy and desertion, however, in England executions occurred only for rape, rape/murder and murder.

Another reason for reports of nineteen executions is a result of a post-WW II report that stated that nineteen bodies of U.S. soldiers were dis-interred from their original burial in England and transported to a plot for the dishonored in a WW I cemetery in France. While this report is correct as to body count, the nineteenth soldier in fact was not executed but died in a English hospital after being accidently shot while a prisoner in a military prison in England.

T H E CASE OF PRIVATE D A V I D C O B B 6

Early years Personal information about Private Cobb has been located through

surviving members of his family. According to his only brother Richard, who was himself a WW II volunteer infantryman, David was " . . .way- ward and mischievous." David was the second son of the mild-man- nered and upwardly mobile Reverend Howard Cobb and his devoted wife Addle May. He is remembered for his inclination to drink beer and his fondness for playing pool, although much to the consternation of his parents. Richard, his older brother, often took care of David, particularly on Saturday nights after he had drunk "too many beers and got in his last shot [of pool]."

As Richard and David grew older, Reverend Cobb gave his sons an ultimatum: go to school or go to work. Richard continued with school and enrolled in the Tuskegee Institute before entering the service. David opted for the latter choice, dropping out of the segregated school both he and Richard attended to work as a driver on a paper


delivery truck. He also continued his habit of nighttime imbibing; on some mornings after a night of drinking, it was brother Richard who came again to the rescue and made the delivery rounds at David's request.

In 1938, at the age of seventeen, David married a young local woman from a respected family. Her name was Cornelia Dozier. They lived with the Reverend and Mrs. Cobb, and Cornelia gave birth to two children, Howard and Christine. After some marital difficulties, David and Cornelia parted ways. She took their children and went to live with her parents. However, the children preferred the home of their paternal grandparents and spent much of their time with David's parents. Today, David's son divides his retirement time between Dothan, Alabama, and Atlanta, Georgia. When in Dothan he lives only a few streets from where he and his sister lived with their grandparents. Howard is re- cently retired and Christine works in a shirt factory and takes care of her ill husband, a military career retiree. She too lives just a few blocks from her grandparents' home and "Baptist Bottom" where Reverend Cobb preached.

Military history Inducted as a volunteer on January 8, 1942, David departed the

country from Ft. Dix, New Jersey on the December 5 of the same year and arrived in England on the 16th. Before leaving he had been assigned to a new unit, Company C, 827th Engineers. The crime that David was accused of was committed Sunday, December 27, 1942. His trial was held ten days later on January 6, 1943. Upon learning about "David's troubles" in early 1943, his father and mother wrote letters to President Roosevelt requesting that he grant clemency to their son. Ad- ditionally, Cornelia, who had moved to Philadelphia, Pennsylvania since the failure of her marriage to David, tried to intervene as well. She enlisted the help of the president of the Community Social Club, and a Reverend John R. Curtis. All of their efforts were unsuccessful, resulting only in explanations and regrets from Col. Ralph Pulsifer, J.A.G. "Mother" Cobb's letter was answered by F. M. Andrew, Lt. General, U.S. Army, Commanding, two months to the day after David was found guilty and condemned to death.

The Trial There are several disturbing and questionable aspects to Private

Cobb's trial, all of which at this date suggest it was a hastily constructed one-day event with an inappropriate and tragic result. While there is no doubt Cobb shot Lt. Cobner, there is considerable evidence in the tran-

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script that indicates that Cobb believed he was acting appropriately according to his training. After Cobb asked Cobner if he could be relieved of guard duty, Lt. Cobner said he could not do anything for him, and he berated Cobb for his appearance. He ordered Cobb to shape up or he would be placed in the guard house. The lieutenant did not like Cobb's response and ordered him to give him his gun. Cobb testified that he had been taught that to be relieved from guard duty required a specific procedure, which Lt .Cobner did not follow. Lt. Cobner, for instance, did not first remove Cobb from his post to his barracks, and then take his gun. Nor did Lt. Cobner identify himself as the Officer of the Day, nor did he have with him Cobb's replacement. Cobner, according to witnesses, "crowded" Cobb and backed him up against a truck, all while Cobb was repeatedly saying "Halt!" Lt. Cobner's behavior confused Cobb, who according to his own testimony, had been taught by a previous commanding officer that while on guard duty he must not allow anyone within five paces of his gun.

Cobb also testified that he had been awakened at midnight on the day of the shooting and ordered to stand guard duty without knowledge he was to be a guard. He stood guard until 5:30 am, returned to his barracks and was assigned detail, and again ordered back to guard duty. He also testified that he had been trained with a Springfield rifle, and did not know how to handle the M1 rifle given to him for guard duty. In fact, he testified that he did not know how to load the rifle, a task completed by another trooper in his barracks. The previous day he had been a truck driver.

The jury was composed of eight commissioned officers, including one lieutenant colonel, three majors, one captain and three 2nd. lieu- tenants. No non-commissioned men were on the jury, and there is no record indicating any member of the jury was a Black American.

The defense attorney, a captain, did not appear to mount a vigor- ous defense of Cobb. He did not develop a "theory of defense" that might have elaborated or demonstrated that Cobb's testimony had merit. On two occasions during the one day trial, the defense attorney referred to the shooting as an "accident," a term suggesting an occur- rence far less serious than one meriting a death sentence. Yet he never developed this point even though this description was not challenged by the prosecution. Nor did defense act aggressively when given the opportunity to take advantage of evidence presented by the prosecution. Several prosecution witnesses concurred with Cobb that they also did not know that Lt. Cobner was Officer of the Day. Again, the defense was silent.

Six days after the conviction, Cobb's attorney, however, did write a letter to the Commanding General requesting that a plea of clemency


be considered. In it he reasoned that Cobb believed that he was fulfil- ling his duty as a guard by not relinquishing his rifle until he was prop- erly relieved. The strength of his conviction, according to Cobb's attorney, was demonstrated by the fact that Cobb continued "walking his post after the fateful accident." He did so for another fifteen min- utes after the incident.

The Review

There is no surviving evidence that indicated that Cobb's conviction was troublesome to any of the court's participants. But when it was reviewed before the execution, it created a heated exchange of letters between the ETO Branch of the Judge Advocate General and the Judge Advocate General's headquarters in Washington, DC. Cobb's guilt was not at issue, but rather the procedures for assuring that the review process was indeed impartial and not swayed by "command influence" were questioned.

This was not a new issue for the U.S. military. Command influence was the subject of a long and detailed U.S. Congressional Hearing in 1919 resulting from bitter complaints about military justice following WW I. At the heart of the debate was whether a military court of review could render fair decisions when in fact their very own commander had requested the review. The fear in 1919 and throughout WW II was that "independent" decisions would be sacrificed for career concerns. No career military personnel, it has been often said, would be so stupid as to give his commander the "wrong" answer.

This debate obviously had no effect on the outcome of Private Cobb's sentence. He was sentenced to die, and the execution was ordered to proceed as scheduled.

The Execution

Eight days before the execution at England's 350-year old Shepton Mallet prison, Cobb was informed in the company of five witnesses that the order for his death had been approved. The next day, March 5, 1943, the JAG's office outlined the rituals of Cobb's execution in two pages of instructions containing five separate procedures. The first addressed "Preliminary Arrangements," including the opportunity for Cobb to have "consolation and ministration" of the chaplain or clergy of his choice. Two days later the instructions were modified and extended.

The organization of the procession from Cobb's cell to the death chamber required the military to lead and the clergy to accompany. Shepton Mallet's Commandant, Lt. Col. T. W. Gillard, lead with Cap-

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tain J. O'Brien, Chaplain, on his left. In addition to Cobb, 21 people were present including 12 commissioned officers, six non-commissioned officers, one private and two civilians. Thirteen of the 21 present were witnesses, no fewer than five witnesses were required. One wonders if this, the first ETO execution, had some of the characteristics of a spec- tacle since only two witnesses attended England's civilian executions.

To the surprise of many capital punishment experts today, most of the U.S. military executions were by hanging and not by firing squad. For Cobb's execution, the U.S. Army hired one of England's official hangmen, Thomas W. Pierrepoint and his nephew Albert (Pierrepoint, 1974). While the specific reasons for this arrangement have not been determined, one post-WW II Shepton Mallet guard claims that the sound of rifle shots coming from within the walls of the prison would have been most disturbing to local residents. 7 After Cobb spoke his last words to Chaplain J. O'Brien, "Just pray for my soul as I asked before," he was executed at 0103 hr. In accordance with English custom, he was left hanging until 0208 when he was declared dead by three U.S. Army medical officers.

Autopsy and Burial Cobb was transported by U.S. Graves Registration personnel to

Brookwood Cemetery, London. There on the day of his death, for reasons still unknown and in compliance with the modified and extended execution rituals, Cobb's remains were autopsied by Lt. Col. John B. Hazard, MD.

Contrary to post-WW II accounts that have reported that all of the remains of the ETO's dishonored soldiers were collected after the war and interred in Plot E , Oise-Anise, France, Cobb's body never made this journey. U.S. Grave Registration records indicate that his mother requested his body by telegram March 22, 1943, ten days after his death. But it was in fact his wife's request as "next of kin" that brought him home. His remains were returned home March 31, 1949, in a padlocked casket and received for burial in Dothan, Alabama. The burial itself was, according to his daughter who was age ten at the time, attended by two White soldiers bearing rifles. He now rests in an unmarked grave next to his sister, Ruby Lee, who died in 1948. They both rest not far from their parents in the city-owned North Highland Street Cemetery, in Dothan.

The fact that Cobb was never buried in Oise-Anise raises some as yet unresolved questions about just how those in Plot E died and who is interred there. Several sources, including the American Battle Monu- ments Commission, maintain that Plot E contains ninety-six graves.


And according to Huie's book, The Execution o f Private Slovik (1954), all 96 dead are from the ETO. Yet, WW II military reports state that only 70 men were executed in the ETO. The discrepancy of 26 bodies has puzzled some WW II historians and capital punishment specialists for nearly fifty years. One explanation for the discrepancy claimed that the 26 graves contained soldiers summarily shot in the field of battle without benefit of a trial. Another theory speculated that the 26 were soldiers sentenced to death but who had either expired from natural causes, committed suicide, or were murdered while awaiting execution.

In early 1995, research into this question solved the mystery. With a list of those buried in Plot E from the American Battle Monuments Commission and a list of WW II executions from the Office of the Clerk of Court, United States Army Judiciary, it was learned that the 26 graves contained soldiers executed in the Mediterranean and North Af- rican Theaters of Operations. It was the fact that Cobb's name did not appear on the Commission's Plot E list that triggered the investigation into where he had been interred. As is the nature of historical research, this discovery raises further intriguing questions about the final disposal of ETO's dishonored soldiers. The Commission's list contains the name of at least one soldier, probably several more, it reports as still buried in Plot E, who in fact have been confirmed as buried in the U.S.

SUMMARY The examination of Private David Cobb's crime and execution leaves

several unanswered questions. Was he a cold-blooded killer who de- served to die, or was his execution a tool used to reaffirm some military value? Was this first ETO capital trial and subsequent execution sub- stantially different from the seventeen executions that followed at Shepton Mallet prison? No evidence was presented that indicated that Cobb was a dangerous killer without remorse.

On the other hand, Cobb's execution could have occurred because of the Army's fears of future discipline problems as well as for shooting Lt. Cobner. In the words of Brigadier General L.H. Hendrick, JAG, ETO "As much as one must always regret the need for the imposition of the death penalty, to commute the judgment of the court in this case I fear would seriously jeopardize discipline." A comparison of Private Cobb's trial and execution to the subsequent trials leading to executions in England reveals several disturbing findings.

C r i m e

Cobb's murder of a member of the military was one of four such crimes that lead to death in England. These crimes represented only

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33% of the crimes that led to execution; 67% of the capital crimes were for sex-related offenses, including rape, and murder/rape.

Race

While Cobb was the first African American executed in England during WW II, he was not the last. Between March, 1943 and June, 1945, African Americans comprised 56% of those executed; Mexican Americans comprised another 17%; only 28 % of the executed soldiers were White.

Trial

The median and average number of days of each trial in England was one. Only three trials exceeded this number. They took 3, 4 and 5 days, respectively. The days to trial for Cobb between the time he was charged and tried was 66 days, while the median and average number of days between charge and trial was 90 days in the subsequent cases. Only two trials occurred more quickly; they occurred between 32 and 45 days, respectively, after the formal charge. These trials involved African Americans charged with murder/rape and rape of White civilian women.

Strength of Defense

In terms of the strength of the defense defined in terms of the number and percentage of the trial transcript pages devoted to the defense, number of defense exhibits, and defense motions, Cobb fared poorly. Out of a total of 45 pages of his trial transcript, only 3 pages, or 6% of the total pages, were for his defense. With the median number of trial transcripts pages for all of the England trials at 92, the median and average number of defense pages for the 18 trials was 10 and 22 respectively, or 11% and 15%, respectively. Cobb's attorney did provide 6 defense exhibits; the average was 1; however he offered no defense motions where the average was 1. For none of the trials did the number of defense pages exceed 46% of the total trial transcript pages. An additional tactic available for the defense was challenges to the membership of the jury.

Jury Size

Cobb's defense attorney was one of half of all the defense attor- neys in England to not challenge the membership of the jury. Cobb's trial panel began with 8 members and ended with the same number. The median and average panel size was 9 and 10, respectively. The larg-

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est panel was 11, while the smallest was 5. Each capital trial required a unanimous vote.

As far as is known at this juncture, no Regular Army soldier was executed in the ETO. Thus only draftees or men who had enlisted for the duration of the war fell prey to military executions. And, as we know, most of the executed soldiers were Black. Future research on the disproportionality of African American soldiers at each stage of the military justice process should provide data for more in-depth discussions of the military use of capital punishment during WW II, as well as an opportunity for informed comparisons between patterns of military and civilian executions.

C O N C L U S I O N S

The U.S. military has been executing its soldiers since at least 1792, when Hugh McLaughlin was hanged in Pittsburgh for desertion and horse stealing (The Catskill Packet, 1792), 8 yet few scholars have examined this topic. This oversight has resulted in a gap in our knowledge about the hundreds of soldiers who have been executed by the military, and has deprived the discipline of a rich source of comparative data on the salient topics of the capital punishment debate (Bohm, in press). Furthermore, military executions raise important questions about how civilian and military laws and procedures differ and how the latter are more or less accountable to public scrutiny. Military law represents un- familiar legal and procedural terrain. If military trials and executions, such as that of Private Cobb, are representative of military law, then civil procedures differ greatly. Whether this disparity remains today is yet to be determined.

There are other reasons to be interested in military justice and its concomitant punishments. In addition to the disproportionate represen- tation of minorities currently on the military death row, there are questions about whether the military should be allowed to execute its own. First, the military is traditionally more interested in discipline than justice, thus raising questions about the arbitrariness of military executions. The military is also traditionally efficiency driven. This emphasis raises questions about the military's commitment to lengthy and costly investigations. Once the investigation is completed and the sentence is rendered, questions remain about the military appeal system and whether it is as circumspect as civilian appeals. Lastly, the question remains as to whether the military justice system is still heavily influenced by command influence. For a system that is organized with clear distinc- tions of rank and power, it is important to examine how these features influence military justice outcomes. For current and future citizens who

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will encounter military justice the outcome can be disastrous. At this point there is no reason to think that military executions have been any less capricious than civilian executions.

R E F E R E N C E S

Adams, M.C.C. (1994). The best war ever: America and World War II. Baltimore: Johns Hopkins University Press.

After the battle.(1988). The U.S. Prison at Shepton Mallet. No. 59:28-51. Allen, R. (1993). The Port Chicago mutiny. New York: Amistad. Anderson, D.A. (1990). Spying in violation of Article 106, UCMJ: The offense and

the constitutionality of its mandatory death penalty. Military Law Review. 127:1-61. Babington, A (1983). For the sake of example: Capital courts-martial 1914-1920. New

York: St. Martin's. Barker, P. (1991). Regeneration. New York: Plume. Barker, P. (1993). The eye in the door. New York: Plume. Barker. P. (1995). The ghost road. New York: Dutton. Bellamy, C. (1993). Major refuses pardons for executed soldiers. The Independent, 20

February: A-3. Berkman, H. (1996). Court looks at military executions details. National Law Jour-

rud, 22 January: A 10. Bohm, R. M. (in press). The pros and cons of capital punishment. In Scwartz, M.D.,

Clear, T.R. & Travis, F. L.(Eds.). Corrections: An issues approach. 4th ed. Cincinnati, OH: Anderson.

Bryant, C. (1979). Khaki collar crime. New York: Free Press. Burk, J. (1991). On social organization and social control: Morris Janowitz. Chicago:

University of Chicago Press. Charney, M.D. (1994, December, 25). The laws of war are many, but self-interest is

the only enforcer. New York Times, p. A-7. Collier, E.C. (Ed.). (1989). Instances o f use o f United States Armed Forces Abroad,

1789-1989. Congressional Research Service (4 December). Washington, DC: The Library of Congress.

Conners, C.S. (1982). The death penalty in military courts: constitutionally imposed? University of California Law Review, 30, 366-404.

Cowell, A. (1995, November 20). War's crimes and punishments, then and now. New York Times, p. A-4.

Habble, C. & Koblitz, D. (1995, December 2). Dresden's undying embers. New York Times, p. A-15.

Honan, W.H. (1994, September 3). Thief knew value of Quedlinburg treasures. New York Times, p. A-9.

Honan, W.H. (1995, January 5). 3 are charged in sale of artwork stolen in Germany by G.I. in '45. New York Times, p. A-14.

Huie, W.B. (1954). The execution of Private Slovik. New York: Duel, Sloan and Pearce.

Intoccia, G. F (1990). Constitutionality of the death penalty under the Uniform Code of Military Justice. Air Force Law Review, 32, 395-414.

Jackson, R.T. (1986). Issues in capital sentencing. The Army Lawyer, July, 54-56.


Janowitz, M. (1974). The military establishment. Beverly Hills: Sage. Johnson, D. (1995, August 14). A migration created by burden of suspicion. New

York Times, p. A-6.

Kifner, J. (1995, January 31). Hiroshima: A controversy that refuses to die. New York Times, p. C-19.

Lilly, J. R. (1993, October). Race and capital punishment in the military: WW II. Paper presented at the meeting of the American Society of Criminology, Phoenix, AZ.

Lilly, J. R. (1995). U.S. military executions. After the Battle, 90, 50-53. Lilly, J. R. (in press). Dirty details: Executing U.S. soldiers during WW II. Crime &

Delinquency.

Lilly, J. R., & Thomson, L M. (1995, March). Executing U.S. soldiers in England, WW II: Command influence and sexual racism. Paper presented at the meeting of the Academy of Criminal Justice Sciences, Boston, MA.

Lilly, J. R., & Thomson, J. M. (in press). Executing U.S. soldiers in England, WW II: Command Influence and sexual racism. British Journal of Criminology..

Lilly, J. R. & Thomson, J. M. (1996, March). Military executions in ETO: The effect of changing context on the practice of sexual racism. Paper presented at the meeting of the Academy of Criminal Justice Sciences, Las Vegas, NV.

Luszki, W.A. (1991) A rape of justice: MacArthur and the New Guinea Hangings. Landham, MD: Madison.

Mannheim, H. (1965). Comparative criminology. Boston: Houghton Mifflin.

Merton, R.K. (1995). The social-cultural environment and anomie. In H.L. Witmer & R. Kotinsky (Eds.), New perspectives for research in juvenile delinquency (pp. 24-50). U.S. Department of Health, Education, and Welfare: Washington, DC.

Moskos, C.C., Jr. (1996). Racial integration in the Armed Forces. American Journal of Sociology, 72, 132-48.

Moskos, C.C., Jr. (1970). The American enlisted man. New York: Russell Sage Foundation.

Moskos, C.C., Jr. (1973). The emergent military: Civil, traditional or plural? Pacific Sociological Review, 16, 255-280.

NAACP. (1995). Death row, U.S.A. Legal Defense and Educational Fund. 41 Spring: Nathanson, E.M. (1965). The dirty dozen. New York: Random House. New York Mercury. (1757). April/.[No title or page number]. Parkerson, J.E., & Stoehr, C.S. (1990). The U.S. military death penalty in Europe:

Threats from recent European human rights developments. Military Law Review, 129, 41- 76.

Poweil, B. (1995, November 6). Lessons of Nuremberg. Newsweek, pp. 52-55.

Pierrepoint, A. (1974). Executioner Pierrepoint. London: Cornet Books. Putkowski, J., & Sykes, J. (1989). Shot at dawn. Barnsley, UK: Wharndiffee. Serrano, R.A. (1994, July 12). A grim life on military death row; as the Armed Forces

prepare to resume exeutions, six men await their fate at Ft. Leavenworth. The fact that only one is White renews debate over the question of equal justice. Los Angeles Times, p. A-1.

Sherill, R. (1971). Military justice is to justice as military music is to music. New York: Harper and Row.

Shrimsley, R. (1993, February 20). Pardon ruled out for soldiers shot at dawn. The Daily Telegraph, p. A-1.

LILLY 103

Spradling, K.K., & Murphy, K.K. (1990). Capital punishment, the Constitution, and the Uniform Code of Military Justice. Air Force Law Review, 32, 415-430.

Stout, D. (1995, February 19). Remembering Iwo Jima and the price of victory. New York Times, p. A-5.

Sullivan, D. (1995). Military death row: Separate, not equal. National Law Journal, Nov. 6, 19-20.

Trogolo, R. E. (1974). Capital punishment under the UCMC after Furman. The Air Force Law Review, 86-95.

The Catskill Packet. (1792). September 3. [No title or page number].

Turkel, S. (1984). The good war. New York: Ballintine Books.

United States Department of Justice. (1984). Bulletin: Capital Punishment. Washing- ton, DC: Bureau of Justice Statistics.

United States Department of Justice. (1985). Bulletin: Capital Punishmena Washing- ton, DC: Bureau of Justice Statistics.

United States Department of Justice. (1986). Bulletin." Capital Punishment. Washing- ton, DC: Bureau of Justice Statistics.






United States Department of Justice. (1992). Bulletin: Capital Punishment. Washing- ton, DC : Bureau of Justice Statistics.

Wyble, D.W. (1985). Capital punishment in the military. Military Police, 12, 36-37.

CASES CITED Loving v. United States, 116 S.Ct. 1737 (1996). U.S.v. Matthews, M. J. 354 (1983).

ENDNOTES 1 The author's research on WW II executions was an integral part of HBO's 1995

The Affair, a portrayal of the execution of an innocent African-American GI accused of raping a married, White English woman.

2 For excellent discussions of the British medical and military positions on shell- shock during WW I, see novelist Pat Barker's trilogy Regeneration (1991), The Eye in the Door (1993) and The Ghost Road (1995).

3 While this is not the place to address the pros and cons of unraveling official accounts of various aspects of WW II, it is appropriate to acknowledge that the research pursued on capital punishment by the U.S. military is part of WW II history long after the last shots were fired. Some of the more notable recent examples of this effort include debates about the dropping of the atomic bomb on Hiroshima in 1945, the price of victory for Iwo Jima, the internment of more than 100,000 Japanese-Americans, looting art in


Germany, the ethics of victor's war trials (Nuremberg, for instance), the bombing of Dresden, the courts-martial of 258 sailors who refused to load live shells after an explo- sion had killed 320 other men, and the segregation of the WW II military (Charney, 1994; Cowell, 1995; Habble & Koblitz, 1995; Honan, 1994, i995; Johnson, 1995; Kifner, 1995; PoweU, 1995; Stout, 1995).

4 The accuracy of Wyble's numbers may be in question. While it is generally agreed 267 Union executions occurred during the Civil War, followed by 3 more in 1882, and a total of 35 for WW I, there is a question about the number of military executions since WW I. The possible inaccuracy stems from the military reports that report that 142 soldiers were executed during WW II, and additional 12 between 1948 and the last military execution in 1961, for a total of 154. However, for more than a decade the Bureau of Justice Statistics annual Capital Punishment Bulletin has reported military authorities have carded out an additional 160 executions since 1930. If there is a discrepancy it might be explained by the fact that six military executions may have occurred between the end of WW II and 1948 that the author has yet to identify.

5 The analyses for the executions on the continent after D-Day are at this time not completed.

6 The data on the early life of David Cobb, his parents, brother, sister, marriage and children developed from a key lead provided by Watt Espy, Capital Punishment Re- search Project, Headland, AL. In March, 1993, I contacted Espy to see if he had any information on Cobb, whose home of Dothan is only seven miles from Espy's hometown and address for his world-famous research project. In addition to providing the names, addresses and phone numbers for every Cobb in Dothan, Espy also provided the name and address of the leader of the local chapter of the NAACP, Pearlean Jackson. Jackson, a long-time resident of Dothan, generated additional names and addresses of people who knew the elder Cobb's and their children. Richard Cobb, David's brother has been a rich source of family history. To each of these individuals and others too numerous to name here, the author acknowledges his debt and appreciation.

7 Contrary to several past reports including Albert Pierrepoint's 1974 autobiogra- phy, he did not execute all or a majority of the 18 U.S. soldiers (Pierrepoint, 1974). His personal ledger, examined during June, 1995, and the execution protocol records from each of the trial transcripts, reveal he participated as an assistant to his uncle Thomas W. Pierrepoint in only six U.S. military executions at Shepton Mallet prison.

8 Two soldiers, William Connor and Samuel Bailey, each belonging to the First Battalion of the Royal Americans, were hanged for desertion in Philadelphia on April Fools Day, 1757 (New York Mercury, April 11, 1757). This information and the reference to McLaughlin's execution were provided by Watt Espy, Capital Punishment Research Project, Headland, Alabama, on June 11, 1996. The author is grateful for his assistance and support throughout this project.

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