Westmoreland V. CBS - Trial

Trial

Westmoreland's case went to trial in October 1984. Westmoreland charged that the investigators asked biased and slanted questions, selectively edited interviews (for example, giving a two-minute excerpt of a 90-minute interview and portraying that selection as representative), and selectively chose persons to interview supportive of CBS's point of view. He also charged CBS with editing interview tapes dishonestly and taking statements out of context. Westmoreland charged CBS with reckless misstatements of evidence and contended these distortions indicated malice. The allegations about editing were not borne out by the evidence and the ultimate questions at trial became whether the allegations against Westmoreland were true and whether CBS was entitled to believe the high-ranking military officers who made those allegations in their interviews and stuck by them at trial.

CBS defended the documentary as true and called the military officers in question as witnesses at trial. They testified both at deposition and at trial that their criticisms of Westmoreland had been fairly represented in the documentary and they stood by them. Major General Joseph McChristian, Assistant Chief of Staff for Intelligence under Westmoreland, testified at trial that when he had presented new increased enemy strength estimates, Westmoreland had responded that sending these figures to Washington would "create a political bombshell" and would "embarrass my commander in chief ." General McChristian testified that, in withholding these figures, Westmoreland, "in being loyal to the President, was disloyal to his country."

McChristian's testimony has been seen as a "dramatic, consequential, and determinative of the outcome.".

After McChristian stepped down, CBS called another military intelligence officer, Col. Gains Hawkins, who had worked under McChristian and Westmoreland. Hawkins's testimony supported McChristian's; Hawkins reaffirmed his allegations in his CBS interviews and in the documentary.

Westmoreland's counsel, Dan Burt, had been hoping for a simple verdict from the jury, finding for Westmoreland or CBS; that way, if Westmoreland lost, he could claim that the jury concluded that the documentary was false, but under the strict legal standard had been unable to find that CBS had acted with "actual malice." When the trial court judge, the Honorable Pierre Leval, informed counsel that he intended to ask the jury to render separate verdicts on truth, actual malice, and injury, Burt told the Judge he was concerned, because "If he loses on truth, it will kill the old man." After the conference with the Judge, Burt met with Westmoreland, and the two men agreed to pursue settlement.

On February 18, 1985, shortly after McChristian's testimony, with Col. Hawkins still on the stand, and with the five-month trial expected to go to the jury within days, Westmoreland agreed to dismiss the case without payment, retraction or apology from CBS. Both sides agreed to pay their own legal fees, and Westmoreland and CBS released simultaneous public statements. CBS stated that it had never intended to say that "General Westmoreland was unpatriotic or disloyal in performing his duties as he saw them." Westmoreland said "General Westmoreland respects the long and distinguished journalistic tradition of CBS and the rights of journalists to examine the complex issues of Vietnam and to present perspectives contrary to his own."

Westmoreland declared "victory," but later conceded that his team's "jury watcher" had concluded he was likely to lose. The New York Times reported that Westmoreland had "surrendered to the evidence that . . . he and some of his aides in Vietnam in 1967 manipulated the estimates of enemy strength, apparently for political effect." "At the end, he stood in imminent danger of having a jury confirm the essential truth of the CBS report. For, in court, as on the original program, the general could not get past the testimony of high-ranking former subordinates who confirmed his having colored some intelligence information." One of the jurors, speaking to the press when the trial adjourned, stated "The evidence in favor of CBS was overwhelming."