...A couple of days into the trial, Sack got a call from Hayes. The press coverage was making Calley look like such a monster that Hayes was worried about how the next two Esquire articles would be received. Not to worry, said Sack. The rest of the press could make Calley out to be a monster and then Esquire would come in and let everyone know he was an average American guy.

No, said Hayes, the coverage was so negative that when Esquire's version came out no one was going to believe it. He suggested that Sack try to get other reporters close to Calley so they could get to know Calley as Sack and Hayes knew him.

With the consent of Viking, Hayes was abandoning Esquire's exclusive rights to Calley's story. The problem was, Calley did not really want to talk to the press. He thought the press was out to hang him. When reporters approached him in the hall during breaks in the trial, he would speak briefly and then walk away. And not everyone in the press wanted to meet Calley. According to Sack, Homer Bigart, reporting the trial for the New York Times, believed that talking to Calley might bias his coverage of the trial--that knowledge of Calley himself, gained outside the trial setting, might contaminate his objectivity. To Sack, that was a clear example of the difference between Old and New Journalism. Sack felt the only way to know the truth was to surrender to it, to become part of it, to get as close to it as possible.

Sack was not trying to be objective. He had a clear view of the trial as a hypocritical act. He figured if the United Nations wanted to try Lieutenant Calley for war crimes, that was fine, let the United Nations try him and convict him. If the North Vietnamese won the war and put him on trial for war crimes, that, too, would be absolutely appropriate. If Jane Fonda and other peaceniks wanted to have a mock trial and try him and convict him, that would be absolutely right.

But when the very people who sent Calley to Vietnam, the very people who gave him the order, the very people who had already destroyed 85 percent of the villages in Quang Ngai province when Calley arrived--when the United States Army prosecuted him, it was not the injustice, it was the hypocrisy that infuriated Sack.

One day Sack was sitting in the defense room during a recess when he received word that Captain Aubrey M. Daniel III, the prosecutor, wanted to see him. Daniel had a subpoena for all of Sack's interview tapes and files on Calley.

Sack had an apartment in New York, but he had also rented a house in Aspen with the idea that he would go there to write the Calley book when the trial was over. He had friends living in both of his residences. A playful man, almost boyish, Sack started teasing Daniel.

"Gee, Captain," he later recalled saying, "this winter I'm living in Aspen, Colorado. If my files are in Aspen, Colorado, are you going to pay me to go to Aspen, Colorado, to get my files?"

Daniel said that he would.

"The United States of America is going to pay me to go to Aspen, Colorado, and to come back here?"

Yes it would.

"Gee," said Sack, "can I go skiing while I'm there?"

Back in the defense office, he showed the subpoena to one of Calley's lawyers, and he also called Harold Hayes. At no point in the discussion with Esquire, that Sack could recall later, had the possibility arisen that Sack's tapes and transcripts might be subpoenaed, although Calley's lawyer probably considered the possibility--hence the precaution of putting the Mylai episode off-limits to Sack until after the trial.

Hayes passed Sack on to Esquire's lawyer, who broke the bad news that in his judgment Sack would not be protected by reporter's privilege. Shield laws, he said, protected reporters who did not want to reveal their sources. But what Sack had was an alleged murderer who had told him his story, maybe even confessed, and under the law, he had to turn over what he had.

"Listen, listen," said Sack, "let's get this straight. I'm not going to turn it over. I did not become friends with Calley, I did not make this deal with Calley, I did not ask Calley all these questions, in order to help the United States government hang him, and I'm not going to do it. And if you can find a legal reason to get me out of jail, great, otherwise, I'm going to jail."

At some point, someone suggested that if Calley himself had the tapes, they could not be subpoenaed because he would be incriminating himself if he turned them over.

At lunchtime, Sack went to a pay phone nearby and called the friend who was staying at the house in Aspen.

"Hello, how are you, how's the weather, everything's fine, yeah, great," said Sack. "You know, I just want to make sure that you remember what I told you when I left. You know those boxes I have in the closet?"

And Sack's friend, a smart woman, replied, "Oh, yeah, sure, the boxes in the closet in your bedroom."

"You remember those boxes in the bedroom, I pointed them out."

"Yeah, you pointed them out."

"With all my files on Lieutenant Calley."

"Yeah, sure, what about them?"

"I just want to make sure you remember that I told you they're not my property. They're Lieutenant Calley's."

"Sure, you told me that."

"And I said, And if Rusty wants anything with them, that they're his property, and you're to do whatever he says."

"Sure you told me that, why are you mentioning it again?"

"I just wanted to make sure you remembered."

Later on Calley called her and asked for the tapes. She boxed them up, not too carefully, and mailed them off. A few days later the box arrived, and as Calley was carrying it across a parking lot at the post office--all these tapes and multiple copies of transcripts--the bottom of the box fell out. The subpoenaed papers started flying around the parking lot, and other people in the parking lot started running around picking them up. With most of the papers retrieved, he put everything in a safe deposit box.

Sack ultimately got off the hook on what might most succinctly be called a technicality. But meanwhile, the subpoena earned Esquire more publicity. Newsweek began a February 1, 1971, report with the unlikely claim that "the editors of Esquire had worked out a seemingly sure-fire device for promoting interest in their 'Continuing Confessions' of First Lt. William L. Calley." The device was withholding Calley's account of Mylai until part three appeared after the trial. Now, Newsweek said, the prosecutor was foiling the plan by subpoenaing the taped conversations, Esquire's exclusive confession. Sack had reveled in his distinction from other journalists covering the trial, Newsweek reported--he saw himself, said Newsweek, "as a sort of Dutch uncle to the accused." Newsweek underlined the friendly relationship with a picture of Sack and Calley grinning at each other like the good buddies they were. In Newsweek's eyes, Sack was a man who had boasted of leaving journalism because of its space limitations and now was trying to return to the fold to avoid the subpoena. With something that sounded like triumph, Newsweek reported the trial judge's ruling that Sack could not claim journalistic immunity because the Calley story was a commercial transaction.

Hayes drafted a letter of protest to Newsweek, although he may not actually have sent it. He noted Newsweek's error, made in the earlier Newsweek story as well: the confessions cost Esquire $30,000, not $50,000 as Newsweek was reporting. Then he laid to rest the idea that Sack had Calley on tape describing Mylai. On the contrary, Hayes said, Esquire, Sack, and Calley had agreed in August 1970 that possession of information about Mylai would make Sack vulnerable to a subpoena requiring him to testify against Calley.

"Sack has refused to testify"--wrote Hayes--"not because he is in possession of a hot 'exclusive' for Esquire, but because he is unwilling to assist the government in its prosecution." Hayes rebuked Newsweek for denying Sack status as a journalist. "Is CBS News to be denied such privilege because it paid $10,000 for an interview with Paul Meadlo? Is Richard Hammer of the Times disqualified because he paid Varnardo Simpson $500? Has Newsweek ever paid a source for what it considered news information?" Hayes concluded: "…We all lose if precedent is established enabling the government to decide who is, and who is not, a member of the press."

On March 29, the jury found Calley guilty of murdering twenty-two South Vietnamese civilians at Mylai. While Calley's attorneys set their appeals in motion, Sack was able, finally, to interview Calley on the events at Mylai. Then he settled down to write the third and final article for Esquire. He thought of the book as having five segments. Esquire already had the first two; he would write the third and let that be his last installment for Esquire. Then he would write the last two segments, including the trial, for book publication. That seemed the only way to get a third installment done for Esquire without undue delay.

Sack was working as fast as he could. He got up in the morning around eight, sat in his chair writing by hand until six that night, went to the Greek restaurant at the corner of 63rd and Madison, came back and wrote until ten o'clock that night, took a hot bath, went to bed, got up, and started over. He turned the manuscript in, Hayes read it, Hayes asked: Why had Sack not included the trial?

Sack explained: He and his agent had promised to deliver to Viking a book manuscript that was at least 40 percent unpublished in Esquire--a promise made without consulting Esquire, Hayes said in a memo to Blinder and Gingrich. The way Sack was writing the manuscript that fresh 40 percent included the trial. Since Esquire's agreement with Sack predated his agreement with Viking, Hayes thought his first responsibility was to Esquire. If Hayes had to, he had told Sack, he would refer the matter to Esquire's lawyer.

Viking asked for a meeting; Hayes, Sack, and Calley's and Sack's agent, Kiliper, met with Viking's lawyer and editors over a conference table at Viking. While Sack looked on, Hayes and Tom Guinzburg, president of Viking Press, went back and forth: Viking wanted fresh material, Hayes wanted the trial in Esquire. Sack, feeling like a squash ball, said he was working as hard as he could, he couldn't write any faster. They paid no attention.

The solution they came up with left Sack panting for air. Sack would simply have to write the rest of the book--the final two sections--in approximately two weeks, and deliver that manuscript to Esquire. Esquire would trim the manuscript down to a 10,000--word article.

Out of the meeting, Sack, shaken, called his secretary. He arranged to meet her by the seal enclosure in the Central Park Zoo. He told her what he had to do. She put him on an airplane to Fire Island for a day's rest, and when he came back he went to work.

When Sack's manuscript for the rest of the book came in, Hayes gave it to his new young editor Aaron Latham, who had won an in-house cutting contest on an earlier manuscript, and Latham prepared the excerpt. He was very opposed to the war, and, he said later, he tried to undermine Calley with his cuts.

This final installment contained Calley's comments on Captain Ernest L. Medina, who Calley said had ordered the killings at Mylai (Medina himself faced a court-martial but was found not guilty). Medina was represented by an aggressive lawyer, F. Lee Bailey. To be on the safe side, Esquire's lawyer recommended that Esquire put forth Calley's account as clearly his version, without Esquire's endorsement, even though Esquire believed his account to be true. The article ran in the September 1971 issue with a head, "The Concluding Confessions of Lieutenant Calley," and underneath that a deck: "The lieutenant's account of the day at Mylai Four, the aftermath, the trial."

After Calley was found guilty and sentenced to life imprisonment, President Nixon was deluged with phone calls and telegrams asking for clemency. Even some who opposed the war saw Calley as a scapegoat, used to deflect guilt from the powerful men who had made national policy. More condemnations of the verdict came from congressmen, leaders of veterans associations, radio stations, and Governor George C. Wallace of Alabama, who asked the director of the state's Selective Service System to find out if Alabama could suspend the draft.

Calley's sentence was reduced by the military; then, in September 1974, the U.S. district court in Columbus, Georgia, overturned his conviction. The judge, J. Robert Elliott, said "massive adverse pretrial publicity" had prevented Calley from getting a fair trial. "Never in the history of the military justice system, and perhaps in the history of American courts, has any accused ever encountered such intense and continuous prejudicial publicity," he said. Elliott also ruled that the army was wrong in refusing Calley's request to subpoena as witnesses Melvin R. Laird, then secretary of defense, and General William C. Westmoreland, commander of U.S. forces in South Vietnam. Perhaps, he suggested, Calley's superiors "could well have been worried about their own possible criminal responsibility as a result of the Mylai incident."

Elliott's judgment was overturned by a U.S. circuit court of appeals, but by that time Calley had been approved for parole.

John Sack never stopped liking Rusty Calley. They had come to be comrades--Sack thought of Calley as his best friend that year. Once after they had worked late the night before, they came into Hayes's office linked arm in arm and singing, "We are the joy boys of radio, hello, hello, hello, hello-o-o." Hayes looked up, incredulous, at his star reporter and the man accused of mass murder. Sack thought Hayes liked having Calley around the office, and when the first article came out, and Esquire described Calley in the "Backstage" column as merely "much like the rest of us," Sack was surprised by the cautious wording.

After Sack's book on Calley appeared, Sack went on a sixteen-week promotion tour, doing radio, television, lectures. When it was over and he went to Aspen, he felt all wrong that winter. A girlfriend, an actress, said no wonder--he had been on a bus and truck tour. In the spring, when he still had not recovered, Sack went into primal therapy and stayed in therapy for ten years.

In December 1971, Harold Hayes received a Christmas card from Lieutenant Calley:

may you and all whom you hold dear
be graced with the blessings 
of good health and happiness,
peace, freedom and security at this holiday time
and in the coming new year.

Hayes saved the card and wrote on the envelope a note, dated October 17, 1985: "As good as any way to start a book on Esquire in the sixties--"

Read a scene from Lieutenant Calley

Buy an autographed book
from the Author's Guild

Buy an autographed book
from amazon.com

Buy
It Wasn't Pretty, Folks,
But Didn't We Have Fun?
Esquire in the 60s
by Carol Polsgrove
from amazon.com

Read about Lieutenant Calley
in Vietnam, We've All Been There:
Interviews with American Writers
by Eric James Schroeder 

     Read about Lieutenant Calley
in Dictionary of Literary Biography

Other books by John Sack