Army Will Face Delicate Decision in Sex Case

Plodding along in a usually obscure corner of Washington, the Army proceeding has made history: None like it has ever gone nearly so long, including the 1971 inquiry into 1st Lt. William Calley’s involvement in Vietnam’s My Lai massacre.

Yet as the pretrial inquiry into the alleged sexual misconduct of Sgt. Maj. of the Army Gene C. McKinney stretches into its ninth and probably final week, the outcome may turn not on any factual detail but on more intangible factors: the military’s fear of embarrassment versus its concern that it not appear too lenient.

Facing allegations from six servicewomen, McKinney and his lawyers are betting that their best chance lies in convincing the Army that it can even less afford to proceed with a court-martial than can the decorated 29-year veteran, legal observers say.

To drive home its point, the defense has worked to extend the painful spectacle of the hearing for as long as possible, sought to mobilize political support from McKinney’s fellow black service members and other sympathizers, and even threatened to expose the sexual misbehavior of generals.

It has, in a word, put the Army on the spot once more, in a year when the military already has seen its fair share of bad publicity--in the sexual assault scandals at Aberdeen Proving Ground, Md., in the sexual misconduct allegations against top-ranking generals (which caused one to drop his bid to be chairman of the Joint Chiefs of Staff) and in the adultery-related case involving the nation’s first female B-52 pilot, Air Force Lt. Kelly Flinn.

But while senior officers have privately acknowledged that they would prefer to quietly dispose of the McKinney case outside of a court-martial, they also understand that any move that seems to treat lightly the infractions he is accused of would meet a storm of protest from women in Congress and elsewhere.

Thus, with their eyes on the powerful political constituencies hovering invisibly in the courtroom here at Ft. McNair, they have sought to carefully pick their way through a hearing that they don’t want to be faulted by either McKinney and his supporters or the accusers and theirs.

The Army leadership “knows this is a hot potato,” said Michael Gaffney, who practices military justice law in Washington. “They’re damned if they do and damned if they don’t.”

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For its part, the defense is in a hot spot as well.

Its efforts to crank up political pressure are controversial even among other military-justice lawyers, and some believe its chances of forcing the Army to cave in are slight. Yet many also agree that from the defense’s point of view, it is a big gamble worth taking.

With its many lawyers and deep pockets, the military “is an 800-pound gorilla in the courtroom,” says David Brahms, a military law practitioner in San Diego County and a former Marine general. But recent history, including the Flinn case, he says, has shown that “one of the ways to deal with this 800-pound gorilla is to try to embarrass it.”

Flinn and her lawyers, by questioning the Air Force’s treatment of her case, set off an outcry that led to better discharge terms for her.

McKinney, the first black to hold the prestigious post of the Army’s top enlisted man, faces accusations that he sought sex with half a dozen women, using varying degrees of pressure and sometimes touching the women. The Army has filed 22 preliminary counts that could put him in jail for more than 57 years, though the penalty is likely to be far less than that.

The pretrial hearing, called an Article 32 proceeding, is aimed at deciding whether there is enough evidence to send the case to a court-martial.

McKinney has denied all wrongdoing. He is insisting on an honorable discharge that would preserve his rank and retirement pay.

In lengthy cross-examinations, McKinney’s defense team has sought to bring out inconsistencies in the accusers’ stories in hopes of hurting their credibility. Last week, for example, defense attorneys wrested an acknowledgment from Sgt. 1st Class Rita Jeczala that in an alleged encounter McKinney had seized her around the waist, not around the shoulders, as she had said in an earlier sworn statement.

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The defense lawyers have challenged the motives and personal records of other accusers, using testimony to portray one as a man-hater and others as nurturing grudges against McKinney and the Army.

Yet the defense does not want to rely on narrow factual arguments alone, as it has demonstrated in its declarations that McKinney is a victim of a racist double standard in military justice.

Such accusations have a political potency. While some black leaders have conspicuously hesitated to embrace McKinney as a cause, in other quarters--including among some senior officers at the Pentagon--support for him is strong.

His case was debated at a summer meeting of the National Assn. for the Advancement of Colored People. And many black soldiers and veterans, such as Steven Williams, deputy director of the Black Vets organization in Brooklyn, N.Y., think that the Army’s recent prosecution of soldiers for sexual misconduct “is clearly going along racial lines.”

The defense sought to turn up the heat further by putting the Army leadership’s personal probity at issue.

On Aug. 13, during a frustrating day for the defense, McKinney’s lead lawyer warned that he and his colleagues would point fingers at senior officers if McKinney didn’t receive the treatment they wanted. “We will open up all the Army’s dirty laundry if this case goes to trial,” said Charles W. Gittins, lead defense counsel. “If we go to trial, this is war.”

Brahms said Gittins’ hard-knuckle tactics might be a worthwhile way to signal the Army that it will have “a high price to pay” if McKinney is punished.

But other lawyers argued that Gittins had overplayed his hand with this final threat, which, they said, would make it even more difficult for the Army leadership to allow McKinney an easy out.

One lawyer, who asked not to be identified, said of Gittins’ threat: “This last blast is the end game. [McKinney’s] got nowhere to go.”