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PROSECUTION RIFT CAUSES SENSATION IN MITCHELL TRIAL
[[handwritten: Star 11/20/25]]
Moreland Joins Reid in Attack on Tactics of Gullion During Case
LATTER DRAWS REBUFF FOR EFFORT TO SPEAK
Startling Turn in Events Follows Striking Out of "Damn Rot" Incident
An open rupture in the ranks of the prosecution following closely a serious outbreak from the personnel of the court itself, threatened today to handicap the Government in its efforts to convict Col. Mitchell of the various charges made against him as a result of his accusations against the War and Navy Departments.
The military court which is trying the flying colonel scarcely had completed expunging from the record the sensational "damn rot" clash between Brig. Gen. Edward L. King and Representative Frank R. Reid, chief counsel for the accused, when the second sensation broke on the military side with startling suddenness.
Moreland Joins Protest
The dissension occurred between Col. Sherman Moreland, trial judge advocate, and Maj. Allen Gullion, recently appointed by the Army general staff as assistant judge advocate, but who virtually has taken the prosecution out of the hands of his superior, Col. Moreland.
The trial judge advocate, his face flushed, formally protested to the court the action of Maj. Gullion in attempting to make an opening statement in rebuttal of the defense case, and declared his associate's move was as much a surprise to him as it was to Col. Mitchell's counsel.
Maj. Gullion incurred the displeasure of his chief when he vainly endeavored to deliver to the court what he characterized as "the prosecution's statement of what it expected to prove in rebuttal of the defense testimony." Mr. Reid jumped to his feet to object to the "unusual procedure," and col. Blanton Winship, law member of the court, agreed that such a statement would be "unusual and out of place."
Fails to Convince Court
Still hopeful of succeeding in his plans for a speech, Maj. Gullion began to defend his course at some length, but he failed to convince the court of the propriety of his methods.
When the court, through its law member, voiced vigorous disapproval of Maj. Gullion's persistent attempts to get his statement in the record and ordered him to proceed to the examination of witnesses Col. Moreland, in defense of himself, arose and made his announcement. He declared that he agreed fully with the court that Maj. Gullion's move was improper.
There have been rumors for some time that the prosecution machinery was not running so smoothly as the War Department might have hoped, but no outward evidences of the dissension had been observed until today.
It has been reported that the action of the Army general staff in relegating the original trial judge advocate to a relatively unimportant place in the prosecution in favor of two younger assistants, one of them claiming no legal knowledge whatever, did not sit well with Col. Moreland.
Both Precipitate Disputes.
The non-legal assistant, Maj. Francis D. Wilby of the general staff, frequently has placed the prosecution in "hot water" on certain phases of the trial through his apparent unfamiliarity with court-martial procedure while Maj. Gullion, a young Kentucky soldier-lawyer, often has precipitated sharp clashes between the prosecution and the defense.
The court itself has shown at times a certain impatience over the aggressive tactics of Col. Moreland's assistants. Most of the rumors regarding unrest in the prosecution ranks are traceable to these incidents.
Mr. Reid at the outset of today's session moved that the "damn rot" episode of last Friday be entirely stricken from the record. He explained to Gen. Howze, president of the court, that the proceedings were under great tension at the time, and that every one involved had been under severe strain, and therefore could not be held accountable for certain of their actions. He was referring to his rebuke of Gen. King for using the words "damn rot" in commenting to another member of the court about Mr. Reid's cross-examination of a prosection witness.
Howze Approves Plea.
Gen. Howze, after receiving the concurrence of the prosecution in Mr. Reid's motion, announced that the court approved the suggestion and directed the stenographer to erase all reference to the incident from his record.
Most of teh morning's session was taken up in the examination of Comdr. H. C. Richardson, naval expert on airplane construction. Comdr. Richardson testified in opposition to Col. Mitchell's charges that lives of flyers were being menaced by defective ships. He declared that he had never heard of a DH type Navy plane crashing because of a structural defect, and adhered to this statement under a withering cross-fire of questions from Mr. Reid. Comdr. Richardson also defended the use by the Navy of Loening amphibian planes for the MacMillan Arctic expedition and gave testimony designed to show that Navy planes were not allowed to deteriorate in storage.
Liut. Byron J. Connell, pilot of the Navy Hawaiian flight plane PN-9 No. 1, told of preparations made for the flight and repeated his previous statements that the radio bearing system worked out for the flight failed to function properly.
Clash Stricken Out.
It took but a few moments to expunge from the record the now famous "damn-rot" clash between Gen. King and Mr. Reid. As soon as court convened Mr. Reid moved that all of the remarks passing between himself and Gen. King last Friday be stricken from the record, explaining that it was a very regrettable episode resulting from the "strain of the proceedings."
Gen. Howze inquired of the prosecution as to its attitude in the matter, and Col. Moreland announced that he wholeheartedly concurred. There being no objection from the court, Gen. Howze then declared the motion accepted, and directed the official reporter to make the necessary erasures.
Gen. King did not lift his eyes during Mr. Reid's statement, and evinced intense interest in the proceedings thereafter.
Maj. Gullion then arose to advise the court that the prosecution contends that the defense "has utterly failed to prove its allegations." and started to elaborate, when Mr. Reid entered vigorous objection to the prosecution trying to make an opening statement in rebuttal. Maj. Gullion replied that he did not intend to make a speech, but Mr. Reid continued to object to any act by the prosecution at this time other than examination of rebuttal witnesses.
Winship Enters Discussion.
Col. Winship inquired the purpose of the prosecutor's "motion" and Maj. Gullion said there was no motion.
"Then what is it you are trying to do?" asked the law member.
"I am merely making a statement as to what the prosecution is going to prove in this case. We are merely trying to save time by telling the court in advance what we intend to show," explained the assistant judge advocate.
Mr. Reid continued to object to what he characterized as this new method of court-martial procedure and said he had never heard of the prosecution being allowed to make an opening statement in rebuttal.
"I don't blame them for getting nervous." defense counsel said. "We have presented our defense so well that they have become aroused and now they must go out of their way to try and make some sort of an opening statement. It is something I have never heard of before."
Col. Winship called upon Maj. Gullion to quote authorities for such a statement, and Maj. Gullion after lengthy defense of his contemplated move admitted that it was entirely in the discretion of the court to hear him.
Col. Winship characterized the plan of the prosecution as unusual and out of place at this time, and the effort of Maj. Gullion thus failed.
Explains Attitude.
Maj. Gullion then asked for permission of the court to "state the methods we will use for qualifying witnesses," and when permission was given he began to explain the difference between the prosecution's way of qualifying witnesses and the methods used by the defense.
There was a joing objection from Mr. Reid and the law member of the court, however, and Col. Winship advised Maj. Gullion to dispense with further explanations and bring in his witnesses.
It was at this point that Col. Moreland arose and said:
"I wish to say at this time as trial judge advocate that I am much surprised at the request made of the court about an opening statement by my associate judge advocate, in fact, I am as much surprised as counsel for the defense, and I heartily agree with the court that such procedure is not proper."
The announcement of Col. Moreland caused a sensation in the courtroom which ended only when Maj. Gullion arose to make another effort to tell the court in advance what his witnesses expected to testify about. Defense counsel objected again on the grounds that the prosecution was trying to pledge the court in advance, whereupon Maj. Gullion explained that he was "merely trying to define the witnesses."
Gullion Drops Point.
"The court is entirely capable of defining the witnesses," Col. Winship broke in, and rebuffed, Maj. Gullion sat down and summoned the first witness, Comdr. H. C. Richardson, U. S. N., Construction corps.
As Comdr. Richardson faced Maj. Gullion the latter began to swear the witness in and defense counsel announced its objection to the assistant trial judge advocate swearing in witnesses when the trial judge advocate is present. Maj. Gullion pointed out that "his chief, Col. Moreland," had asked him to take charge of Navy features of the prosecution and he felt it was proper for him to administer the oath.
"I object unless the record shows that the trial judge advocate is incapacitated to perform his duties," protested Mr. Reid.
"Let's don't have that question raised," broke in Col. Winship, and, nodding to Col. Moreland, the latter arose and repeated the oath to Comdr. Richardson.
Piloted NC-3 on Trip.
The witness told the court that he was pilot of the NC-3 during its famous transatlantic flight in 1923, and told of his long experience in construction of sea plane hulls and pontoons.
In the face of a series of objections on technical grounds raised by Mr. Reid, the witness told the court his knowledge of the Navy seaplanes used in the Pulitzer races, of the Loening amphibian ships used by the Navy in the MacMillan Arctic expedition, and of effects of storage on racing planes and DH type planes.
Comdr. Richardson said that the Navy constructed two racing planes for the 1923 Pulitzer races, one of which was turned over to the Army for the 1924 speed classic. The latter, he said, was the one in which Lieut. Pearson met his death during the 1924 races. He said this plane had been in storage with the Navy from October, 1923, to April, 1924, and had been held by the Army from April until September, 1924. He said that while under the care of the Navy this plane received special care in storage. This testimony was given in connection with Col. Mitchell's charges that Lieut. Pearson was killed in a dilapidated racing plane that had deteriorated in storage.
Thinks Plane Satisfactory.
The sister ship of Lieut. Pearson's plane, the witness continued, was converted into a seaplane for use in the Schneider cup races of 1924 but was not used that year. It was reconditioned, he said, and put in shape for the Schneider cup races this year. He expressed the opinion that this plane was in satisfactory condition now. He disagreed with Col. Mitchell that racing planes should only be flown in the race for which they are constructed, pointing to the use over and over again of various Navy speed planes.
When Maj. Gullion asked the witness if he considered the sister ship of Lieut. Pearson's plane "a dilapidated old crate" defense counsel objected and the court sustained the objection. The prosecution tried again to get an answer to this question after it had been put in a slightly different form and the court upheld another objection by Mr. Reid.
Maj. Gullion then changed his tactics and asked if the witness had official knowledge of the condition of racing plains referred to previously. Defense counsel claimed a victory when Comdr. Richardson admitted that he had no exact knowledge of their condition.
the witness then told of inspection work he had done on the DH type planes, which have been characterized by Col. Mtchell as "flying coffins." The Navy officer said he had examined a great many DH ships from 1919 to 1923, and after numerous objections from Mr. Reid was permitted to testify that he had not seen any cases of serious deterioration of the DH planes in storage.
Ships are Repainted.
He said it often was necessary to re-veneer the fusilage and repaint the framework, and that usually improvements were introduced in ships being overhauled so that they were actually in better condition when they were re-issued than previously.
Comdr. Richardson revealed that it was he who recommended the use of the Loening amphibian planes for the MacMillan party. He said he became officially interested in these ships in 1924 and saw them under construction at the factory. He defended their use in the Arctic expedition, pointing out that their hulls were constructed from sheet duralumin over wooden frames, with special longitudinal structural members and outside patterns. He said that this construction made them much safer for use in ice-infested regions than the ordinary planes with wooden hulls. He told of having operated wooden-hulled seaplanes in the Delaware River when it was filled with mushy ice and cited but one instance of a hull being damaged.
Studied Ship Carefully.
Over the objection of Mr. Reid, Comdr. Richardson explained that he advised the selection of the Leoning ships for the Arctic trip only after he had given due consideration of all their qualities, including their ability in landing on land or water and their provisions for excellent visibility for the pilot. He added that a very enthusiastic report regarding these planes had been received by Admiral Moffet from the inventor, Mr. Loening, and all these matters were taken into consideration in making the selection.
Mr. Reid examined the report and declared that he had no objection to its being admitted as evidence.
"Did the report influence you in recommending the plane for the Arctic?" asked Maj. Gullion.
"Yes," replied Comdr. Richardson.
"Was it favorable or unfavorable?" Mr. Reid objected, declaring the report showed the plane was designed for use in Hawaii and Panama. "He would like to shove it through as being good for the Arctic region," added the defense counsel.
Maj. Gullion then withdrew the question.
Comdr. Richardson detailed teh Navy Department's experiences with the amphibian type planes, which he said dated back to 1914. As the amphibian ty pe, inhis opinion, is the only one suited for Arctic work, giving the dual advantage of landing on ground, ice or in the water, he said he would recommend that it again be sent on such an expedition.
Quizzed on Accident.
The questioning changed to an accident that occurred to a similr type Loening amphibian at the Army Test Station in Dayton, Ohio, in which the stabilizer collapsed in ordinary flight. Comdr. Richardson said he received a report from the Army that a fitting had failed and half the horizontal stabilizer had collapsed. On receiving this report, he testified, he examined the plane and determined what type of alteration or repair should be made. This information was sent to the naval aviation section of the MacMillan Arctic expedition in a radiogram.
The message was produced, but was in code, and was not given an exact translation. Comdr. Richardson, however, summarized the message to the effect that the fittin ghad failed under vibration in normal flight and suggested that the anchorage fitting for the beam be increased to certain dimensions. He also cautioned the aviation detail to keep a careful watch on the plane before each flight. The thickening of the fitting or widening of it might help, he also suggested. Only limited facilities for repair were with the expedition, the witness added.