By Homer Bigart
Special To New York Times
Fort McPherson, Ga., Sept. 10
The military judge in the trial of Capt. Ernest
Medina denied today defense motions to dismiss the case. He said
that the Government had produced "some substantial evidence"
in support of all the charges against the captain in the Mylai
The judge, Col. Kenneth A. Howard, also refused
to direct the five-man court-martial to return a verdict of not
F. Lee Bailey, representing Captain Medina, said
he was ready to open the defense case on Monday. He has asked
the Government to produce as defense witnesses First Lieut. William
L. Calley Jr., one of Captain Medina's platoon leaders, who was
convicted last March of the premeditated murder of 22 South Vietnamese
civilians at Mylai, and Col, Oran K. Henderson, former commander
of the 11th Brigade, American Division, no on trial at Fort Meade,
Md., for attempting to cover up the mass slaying of March 16,
Lieutenant Calley, whose sentence has been reduced
to 20 years, will be brought here Monday morning from Fort Benning,
Ga., where he is confined pending appeals.
Colonel Henderson will not be available until
late next week.
Arguments for Dismissal
In has arguments for dismissal, Mr. Bailey contended
that the Government had failed to support its charge that Captain
Medina had committed premeditated murder when he shot a Vietnamese
woman lying in a rice paddy outside Mylai. There was a difference,
he said, between a "battlefield homicide" and "murder
in the street."
There was no dispute, he said, that Captain Medina
shot the woman. But the Government failed to prove that the shooting
was without justification, he said. Captain Medina fired instinctively,
Mr. Bailey went on, when he saw the woman move after he had been
ordered to check the "Vietcong suspect" for arms.
Captain Medina felt bad after shooting the woman
and reported the incident by telephone to Colonel Henderson, who
told him not to worry, according to Mr. Bailey.
As for the charge that Captain Medina shot a
small boy, no witness contended that Captain Medina discharged
his rifle, Mr. Bailey said. I was conceded that the captain, reacting
to a "sudden movement," had shouted something and that
a member of his command group had shot the child, but there was
"only the rankest speculation" that Captain Medina intended
that the boy be shot, Mr. Bailey said.
Similarly, the Government failed to prove Captain
Medina had over-all responsibility for the mass slaying. Mr. Bailey
said. There was no proof, he said, that the captain was aware
of excessive killings until he saw a large number of bodies on
a trail sometime between 10 A.M. and 10:30 A.M. and he then ordered
For the Government, Maj. William G. Eckhardt
argued that the evidence submitted by 31 witnesses "Clearly
showed Captain Medina had knowledge of the killings and calculatingly
chose to ignore what was happening." By his inaction, Captain
Medina "aided and abetted" in the slayings, Major Eckhardt
Frederick J. Widmer, a 23 year old welder of
Lower Burrell, Pa., will continue his refusal to testify as a
Government witness in the Medina case despite a contempt citation,
his Army attorney, Capt. Gary Myers, said today.
Mr. Widmer was cited for contempt Aug. 25 when,
despite a grant of immunity, he invoked the Constitutional privilege
against self-incrimination. He obtained a temporary order restraining
the Government from prosecuting him on the contempt charge. The
order was dissolved this morning by a Federal judge. Mr. Widmer
was a member of Captain Medina's company at Mylai. A witness testified
two weeks ago that Mr. Widmer shot a small boy during the attack.