Their problem was the pathologist. He had observed no powder burns on the skin on Jimmie's neck near the wound, and in his expert opinion any weapon larger than a .25 caliber would have produced both a star-shaped wound and a burn visible to the naked eye. Since he found gunpowder within the wound he concluded that the weapon had been held against Jimmie's body. The .38 would have made a larger hold, and a more pronounced gunpowder "tattoo."

The pathologist said a weapon of .25 caliber or less had been held against Jimmie's neck. That ruled out an accidental or stray shot, shrapnel or a ricochet. It also ruled out the possibility that a bullet had been fired from outside the Datsun. But the windows on the left side of the automobile had been down, and a motorcycles had pulled away from the "safe house" and headed up the highway immediately before them. Inside the Datsun, McCarthy, his .38 cocked in anticipation of hostile fire, had speculated on the mission of the motorcyclist. The sergeant testified that his elbow had been resting on the window frame when the "explosion" occurred. It was then that McCarthy's weapon had fired. Had McCarthy's weapon caused that explosion or had he fired it as a reflex response to another shot?

By saying that the wound could not have been caused by the .38 at close range, the pathologist ruled out answers to these and other questions. Under normal circumstances his testimony would have meant McCarthy could not have committed the crime. But Special Forces men were trained to defy normal circumstances. They were known for their ability to obtain and use small, secret. 25-caliber single-shot devices. So the jury believed that McCarthy had killed Jimmie with a secret 25-caliber weapon, and under that theory, the killing could not have been accidental.

They sentenced him to life and hard labor and recommended clemency. That was normal enough. What was unheard of was their refusal to order a forfeiture of his pay and allowances and his dismissal from the service.

I entered the case on June 10, 1968. It took the Army 229 days to prove me "nationally secure." After my clearance on February 25, 1969, I certified in writing that I had read the statutes which provide for "the willful or negligent divulging of classified information to unauthorized persons" and a "penalty of death or imprisonment for any term of years or for life." In a similar situation, In Muhammad Ali's case, I had refused to accept wiretap logs covered by a secrecy order. That also was an intuitive judgment and, in law as in life, "luck."

In Falls Church, Virginia, I was provided a "secure" secretary for dictation, typing, and clerical work. I couldn't work on certain aspects of the case in Atlanta, for the transcript and other documents couldn't leave the Falls Church office building. Later (on February 8, 1970) in an article in the Washington Post entitled TERMINATED AGENT MAY HAUNT U.S., Murray Marder would write: "[W]hile comparatively obscure, the McCarthy case carries a larger potential for international complications than the celebrated Green Berets case." McCarthy was locked up in the government's prison, but if Marder was right, the secrets McCarthy knew made the government his prisoner. In court papers I urged McCarthy be freed, for he had been deprived of his unqualified constitutional rights to an open and public trial.

Soon after the August 6, 1969 headline in the Atlanta Journal---BERET COLONEL, 7 OTHERS CHARGED IN VIET MURDER---I telephoned the disciplinary barracks. "John, if you haven't told me the truth, if you lied at the trial, if you've said anything up to now that wasn't true, it is time to recant."

I want to know every fact which a client reasonable thinks may have a bearing upon his case. From the beginning McCarthy maintained his innocence, and even if his story seemed irrational to some, he stuck by it---tenaciously. I would cross-examine and attempt to trip him up, and ask him every question I could think of. He remained unshaken and unshakable.

I explained that Special Forces Colonel Robert B. Rheault and the seven other men charged with murder in Vietnam had as much chance of coming to trial as did the CIA or Richard M. Nixon. The desire to cover up, to keep secrets---not from the Communists but from Americans---would guarantee the release of the Special Forces men. If McCarthy had lied at trial and to me, but now came out with the truth, we could tie his case to Rheault's, and the odds would be a hundred to one in favor of his release.

"I'll be Goddamned!" came the response. "If my own lawyer won't believe me. I told the truth! I don't give a damn if I rot in here. I didn't kill that man!" When a convict serving a life sentence angers at the sight of a master key to his cell, it's time that he be believed.

On September 29, 1969, the army dismissed the charges against Rheault and company and blamed the cover-up on the CIA's refusal to allow its agents to testify at any trial. Two days later, in the New York Times, the lawyer for a Green Beret, Henry B. Rothblatt, said that Nixon made that decision.

In Washington, Stewart Davis conferred with Colonel Pierre A. Finck, chief of the Wound Ballistics Pathology Branch of the Armed Forces Institute of Pathology, and widely known as the physician who performed the John F. Kennedy autopsy. Finck told Davis that he was familiar with the McCarthy file and testimony, but he revealed nothing helpful. Neither did the army attorney who directed Davis to the right file, which, however, he could not let Davis see. But he placed the file on the nearby table and left Davis in the room, saying, "There's a Xerox machine down the hall and a sergeant in the next office."

Alone, Davis opened the folder. On top there was a memorandum from the prosecution's pathologist-witness to "Chief, Forensic Pathology Division, Armed Forces Institute of Pathology." "Because of the small size of the wound and the absence of grossly visible powder tattooing I originally testified....that the murder weapon was probably a .22 or .25 caliber weapon."The pathologist went on to write that he had been "mistaken about the weapon." (Date of Memorandum is September 8, 1968---Date of Discovery is March 20, 1970)

Based upon the trial transcript, McCarthy's testimony that he had a .38-caliber pistol, and the driver's description of the sound as deafening, that his ear were ringing, and that he experienced "a temporary loss of hearing", the pathologist had altered his scientific judgment. He wrote, "In conclusion I now think the victim was killed by a single shot from Captain McCarthy's revolver fired several inches away from the back of the neck."

So the accidental firing of the .38 could have killed Jimmie.

Finally, in the secret world of secret cases, we had begun to win. The report of the pathologist also mentioned correspondence with "the Federal Bureau of Investigation regarding a bullet fragment removed from the nasal pharynx from the deceased." This metal was "enclosed in a plastic envelope attached to the FBI report."

When we obtained the report it read, "A tiny particle of quartz was stuck to the surface of the fragment." It also said, "No glass was found." Quartz comes from glass and glass can come from shattered windshields, so we wanted to examine the metal fragment. But the FBI and the army had managed to lose it in the registered mail.

In a Virginia office building, in a hearing open to the public, I argued for the right of public trial. Then the three officers on the Court of Military Review, accompanied by their security adviser, adjourned to a conference room in the bowels of the Pentagon. Outside, soldiers stood guard which I argued from the secret portion of the record.

On October 29, 1970, we won. Based upon the pathologist's altered testimony, the court unanimously ordered the convictions set aside. One judge went further. To him, McCarthy's "record in intelligence and intelligence-related operations, as well as the military skills associated therewith which he has developed," made it in defiance of "logic" that he would have murdered "the victim in the manner developed by the Government at trial and urged upon us during appellate argument."

Terming McCarthy a "proven officer, thoroughly trained in intelligence operations, well-disciplined and sensitive to the ramifications of all his actions, not only with regard to the United States but to other political entities whose interests might be affected," that judge said the court should have forbidden a retrial. But that decision rested with Major General W.B. Latta of the army's Strategic Communications Command, under whom McCarthy was then serving.

On January 6, 1971, I met the general at Fort Huachuca, Arizona. He concurred in his staff judge advocates recommendation that a new trial was "not warranted." The charge was dismissed.

Months after John McCarthy honorably left the service, I received an urgent telephone call. He had applied for a job. He told me of the county personnel officer who had received an FBI report on his status.

"I'm sitting in this man's office and the report at which he's looking says I should be locked in prison. Would you tell him I'm not an escapee or a convicted felon?" I did so, as I marveled at the efficiency and concern of a government which imprisoned together one man who termed its heroes killers, and a hero whom the government termed a killer, then ignored its own pathologists recantation, lost a metal bullet fragment transmitted in its registered mail, and failed to put into its computer the record of the one Green Beret it had certified innocent.

Charles Morgan is retired and living in Northern Florida, Stewart Davis is a Judge in Northern Virginia, Pierre Finck is retired and living in Switzerland