U.S. District Court Judge Pierre N. Leval today formally dismissed the jury in the libel suit of retired general William C. Westmoreland against CBS, saying the verdict in the $120 million case was perhaps best left to historians, not to a court of law.
Then Leval released the 12 jurors and five alternates from their 18-week public silence about the case and opened the courtroom to conversation among the principals, their lawyers, the news media and the largely disappointed jurors -- several of whom said they would have voted in favor of CBS.
"I was disappointed that I didn't get to make a decision," said Randy Frost, 24, a college student who asked Westmoreland for his autograph in the jamboree atmosphere that briefly enveloped the normally sedate courtroom.
Though Westmoreland agreed Sunday to withdraw his suit, jurors today tried to render an unofficial verdict to an eager audience of lawyers and reporters.
"It probably would have been a verdict in favor of CBS," jury foreman Richard Benveniste, 34, told a swarm of journalists. "But I wasn't convinced Westmoreland was dishonest," said the insurance underwriter from the Bronx. "No one ever said that he gave an order to lower estimates of enemy troop strength in Vietnam."
Another juror, art instructor Patricia Roth, said: "I felt the broadcast was extremely accurate." She told CBS codefendant correspondent Mike Wallace today that she tried not to reveal during the trial how much she favored the network.
"I practiced those blank looks," she said, laughing.
But foreman Benveniste said that even a CBS victory might have taken weeks of deliberation and much give-and-take among the jurors about the complicated case.
At issue in the case was whether Westmoreland had been defamed by the CBS documentary "The Uncounted Enemy: A Vietnam Deception" when the show accused him of leading a "conspiracy" to suppress higher enemy-troop estimates from his superiors, including President Lyndon B. Johnson. Westmoreland was commander of U.S. ground forces in Vietnam from 1964 to 1968.
Most jurors interviewed said they had been trying to keep open minds until deliberations began. They would likely have begun next week. But most said they thought that Westmoreland's lawyers had failed to prove one of the key elements of a libel case involving a public figure: that the network had aired the show with "reckless disregard" for whether it was true.
Most of the jurors interviewed also said they thought that the network had many sources who told them much of what appeared in the 1982 documentary, thus discounting the "reckless disregard" element.
There were exceptions.
Juror No. 4, Michael Sussman, a private accountant from Manhattan said, "If I ever were a soldier, I'd like him Westmoreland to be my general."
Sussman said he thought that the CBS documentary team had "sort of tricked Gen. Westmoreland into looking guilty."
Although Judge Leval had not completed his instructions to the jury, a draft last week indicated that if the jury agreed unanimously with CBS on any of four issues, Westmoreland would have lost.
For Westmoreland to win, the jury would have had to be convinced that the 1982 broadcast was "defamatory" or damaged Westmoreland's reputation. They would have been required to decide that the defamatory sections of the broadcast were "of and concerning" Westmoreland. They would have had to decide that the broadcast was substantially false. Finally, they would have had to decide that the network had serious doubts about the truth of the show.
A no vote on any of the questions would have meant a verdict in favor of CBS.
Lawyers for both sides said the question of whether the broadcast was substantially false increasingly became the one CBS most wanted to win and the one Westmoreland most feared losing.
At least three jurors said they felt without reservations that the program was true. "I would like to shake Sam Adams' hand," said Philip Chase, 34, of codefendant Adams, the former Central Intelligence Agency analyst who was the prime mover behind the theme of the broadcast. "I would have gone for CBS."
Other jurors interviewed on the truth of the broadcast indicated in many cases they had been leaning toward supporting CBS on this issue, but a few said that they had had doubts.
"The broadcast definitely reflected what people told CBS," juror Frost said. "But they blew that conspiracy question out of proportion."
Others, like Eileen Miller, a bank vice president, said they had believed many of Westmoreland's witnesses.
"I was particularly mesmerized by Robert McNamara," she said of the former secretary of defense who testified for the general.
Leval indicated last week that he would have had the jury render its verdict on all counts simultaneously, in contrast to the procedure used in the libel suit brought by former Israeli defense minister Ariel Sharon against Time magazine.
Lawyers for CBS said both sides had told the judge that they wanted the jury to give one answer on the entire issue. But they said Leval refused, saying jurors would have to try to reach a unanimous verdict on each of the four major questions.
Leval, who signed papers dismissing the case at 10:30 a.m. today, praised the jurors and acknowledged that many of them felt "a sense of letdown" at the abrupt ending of the trial.
"I suggest that the value of this proceeding may have more to do with the record it has created for history than with the verdict it could have produced," Leval said. "I think it is safe to say that no verdict or judgment that either you or I would have been able to render in this case could have escaped widespread disagreement."