High Crimes (15 page)

CHAPTER TWENTY-FOUR

The courtroom
where the hearing was to take place was a windowless underground chamber, newly constructed, beneath the basement level of one of the buildings on the Quantico grounds not far from the FBI Academy. It had been specially built for security-classified meetings, courts-martial, and other proceedings, and was intended for the use of all four branches of military service. Two MPs stood guard before the steel stairway that descended to the steel double doors that locked by means of electronic cipher locks. It was extremely secure.

Shortly before nine in the morning—0900 hours—Claire and Grimes met in front of the red-brick building. She wore a navy suit, conservative—nothing too stylish or flashy. Grimes, she was pleased to see, was in a suit as well: double-breasted, pinstriped, elegant.

“I don’t want Embry speaking,” she said.

“I don’t either.”

“And I want you to start off with the first witness. I’ll observe.”

“Fine.”

“You look good.”

“Surprised, huh?”

“Yeah. Let’s go.” They entered the building and descended to the basement, then waited for the steel doors to the subbasement to be unlocked. The sleek, modern room was low-ceilinged, about twenty by thirty feet. The floors were gray linoleum over concrete; the walls were poured concrete as well. Otherwise, it looked exactly like every other courtroom in the world, with a raised judge’s bench and witness chair, a jury box (ten seats instead of twelve, but empty, because there would be no jury at this hearing), a long table for defense and one for prosecution. The furniture—the witness and jury chairs, the spectators’ chairs, the tables—was modern and tasteful, blond wood and gray upholstering. An American flag hung from a pole next to the bench, on which was mounted a brass armed-forces seal. On the wall in back of the jury box was a large clock. The quality of sound in here was curiously deadened: the chamber was, of course, soundproofed.

Claire was surprised to see four or five unsmiling spectators already in place, uniformed men wearing security badges on white plastic-beaded chains around their necks. None of them she recognized. Why were they here, and how were they allowed in such a secret proceeding?

“I thought this was a closed hearing,” Claire muttered to Grimes.

“Spectators are allowed if they have top-secret clearance.”

“Who are they?”

Grimes shrugged. “Lot of people in the Pentagon are watching this case closely.”

Claire, who’d done hundreds of trials and observed even more, couldn’t help feeling nervous. Her throat was parched. She looked around for some water. Sure enough, a glass pitcher was already in place on the defense table. She poured some water for herself and Grimes, then set down her briefcase and opened it to remove her carefully indexed file folders. Stuffed inside was a honey-colored, fuzzy Winnie-the-Pooh doll, a little gift, a message from Annie. She smiled, almost laughed out loud with pleasure.

A few minutes later Major Lucas Waldron entered, tall and lanky and dour, accompanied by his associate trial counsel, whose name, she’d been told, was Captain Philip Hogan. They were both uniformed and carrying identical bulky leather briefcases. Waldron saw Claire and Grimes and nodded at them as he and Hogan approached the prosecution’s table.

“The gang’s almost all here,” Grimes said. “Where’s the man?”

“He should be here any second,” Claire said. She saw the steel doors open and, sure enough, Tom entered, flanked by two guards. He wore a sharp, dress-green uniform. She was stunned to see him in it: it fit him perfectly, he seemed a natural in it. His ankle restraints, handcuffs, and chain belt looked like some strange funky jewelry. His shirt was immaculately pressed but was noticeably too large at the neck. He’d lost weight. He looked pale.

He looked around the room anxiously until he saw Claire, then smiled. Claire gave him a wave. He was ushered to the vacant chair between Claire and Grimes.

At three minutes before nine, Embry entered, in his dress-green uniform, and rushed over to them. “Sorry,” he said, as he sat next to Grimes.

“Late night?” Grimes said.

Embry shook his head, smiled pleasantly. “Car trouble.”

“You friendly with the prosecution?” Grimes asked suddenly. Claire winced. She’d asked him not to confront Embry, not yet.

“Not especially. Why?”

“Because, if I learn that you’ve leaked anything to them, and I mean
anything
, no matter how trivial or stupid, I’ll have you disbarred, and then I’ll have your testicles marinating in a pickle jar in my office, next to my bowling trophies.”

“What’s all this about?” Embry said, hurt.

Grimes looked over, saw the investigating officer enter the courtroom from his chambers. “We can talk about it later. It’s showtime.”

*   *   *

“This Article 32 hearing will come to order. I am Lieutenant Colonel Robert T. Holt. As you know, I have been appointed as the investigating officer under Article 32 of the Uniform Code of Military Justice.” Lieutenant Colonel Holt was a career army man of around fifty, a JAG officer with clearance. Even from his seat on the bench he appeared tall; he was thin, with receding black hair, a high forehead crowning a long, narrow, pinched face. He wore squarish wire-rim glasses. His voice was husky, high, his cadences matter-of-fact. In front of him, at a low table, sat the court reporter, a stout middle-aged woman, whispering into a black rubber steno mask.

“The purpose of this investigation is to inquire into the truth and form of the charges sworn against Sergeant First Class Ronald M. Kubik, United States Armed Forces. Copies of these charges—and the order appointing this investigation—have been provided to the accused, counsel for the accused, counsel for the United States, and reporter. Sergeant First Class Kubik, have you seen these charges against you?”

He sat between Claire and Grimes at the defense table. His shackles had been removed. “Yes, sir, I have.”

“You understand you have been charged with eighty-seven specifications of murder, which is a capital crime.”

“I do.”

“You are advised you have the right to cross-examine any witnesses produced against you at this hearing. All right, now to the first order of business. Have the nondisclosure statements been signed by both trial counsel and defense counsel?”

“Yes, they have,” Waldron said.

“They have,” Grimes said.

“You all understand that anything that is said in this hearing, anything that happens here, may not be divulged outside this room.”

“We do,” Waldron said.

Grimes got to his feet. “Yes, sir, we do, but we want to assert that, by signing the statement of nondisclosure, we are in no way waiving our right to a public trial as guaranteed by the Sixth Amendment. The government has made no showing whatsoever as to why these proceedings should be classified.”

Lieutenant Colonel Holt peered at him for a few seconds and cleared his throat. “Your assertion has been noted for the record.”

Now Major Waldron rose. “Mr. Investigating Officer, the accused doesn’t need a public proceeding to get a fair hearing. As long as the defense has a full and complete opportunity to hear all the evidence, the public doesn’t have to know about it.”

“Thank you, Major,” Holt said.

Waldron remained standing. “Sir, moreover, this is a CIPA case”—he referred to the Classified Information Procedures Act—“involving national security and classified information.”

“
Moreover
,” Grimes mocked in a priggish whisper.

“Yet the government has reason to believe that the defense may attempt to ‘graymail’ the government,” Waldron continued, “by threatening to leak classified information, in order to obtain an unfair advantage in this court. Or they may even be planning to selectively leak information to try to sway public opinion in their favor—which would be a total violation of the nondisclosure forms they have signed. I’d like to request that, in the interest of the fairness of this proceeding, you order the defense counsel not to make any leaks to the press.”

Claire and Grimes stared at each other, astonished. How much did Waldron know about their intentions—and was it Embry who had told them? Who else could it be?

“Uh, yes,” Colonel Holt said. “Counsel, you are reminded that this is a classified proceeding and you are counseled not to make any statements to the press.”

Claire stood up. “Sir, I appreciate your admonition, but as you well know, my cocounsel Mr. Grimes and I, as civilians, are not subject to your orders. I’m sure my military cocounsel, Captain Embry, will abide by your orders. But we have all signed a nondisclosure-of-classified-information form, and we intend to abide by that agreement. Anything else concerning this matter that you choose to instruct us with, sir, we will take for informational purposes only.”

The investigating officer glowered at her. After a significant pause, he muttered, “So noted. Does government counsel have, at this time, a list of prospective witnesses they intend to call?”

Captain Phil Hogan replied, “Mr. Investigating Officer, at this point the government anticipates calling Colonel James Hernandez and Chief Warrant Officer Four Stanley Oshman.”

“Who’s that last one?” Claire whispered to Grimes.

Grimes shrugged. “No idea,” he said.

“Okay, Captain Hogan, Major Waldron, would you like to begin your case in chief?”

Waldron stood. “Sir, the government offers Investigative Exhibits 2 through 21, copies of which have been provided to defense counsel for inspection and possible objection, and requests that they be considered by the investigating officer.”

“Defense counsel?” Colonel Holt asked.

“Uh, yes, sir,” Grimes said. “We object to the admission of Investigative Exhibit 3, a CID statement regarding my client’s alleged misconduct involving a neighbor in North Carolina in 1984.”

“On what grounds?”

“On the grounds that it deals with uncharged misconduct that’s not relevant to this case. It’s also improper character evidence. No charge was ever filed over this alleged incident—which we dispute anyway—and the statute of limitations has expired. Therefore, we object under Military Rule of Evidence 404(b) and 403. This uncharged misconduct has no relevance whatsoever on whether my client murdered eighty-seven civilians in El Salvador. The government is simply and obviously attempting to admit this phony evidence for the sole purpose of impugning my client’s reputation at this hearing.”

“Trial counsel, how is this relevant?” Holt asked.

“Sir,” Waldron replied, “we’re offering this other act of killing, the killing of a dog, not to show the accused’s propensity—”

“Hold on,” Holt said. “The killing of a
dog
?”

“
Alleged
,” Tom whispered. Indeed, Devereaux had been unable to get any information on the incident, or on the alleged neighbor.

“Yes, sir,” Waldron continued. “Not to show the accused’s propensity to commit murder, but that the accused is able to form a premeditated design to kill.”

Whatever that means, Claire thought.

There was a long silence.

“I’m going to agree with defense counsel,” Holt said at last. “This is an extrinsic act of misconduct that’s not relevant to any of the elements of the charged offense, and I am not going to consider them. Trial counsel, you may not present that evidence.”

“Yes, sir,” Waldron said neutrally, betraying no disappointment.

Grimes smiled. “We also object to Investigative Exhibits 6 through 11,” he said. “The sworn CID statements allegedly given by six other members of my client’s Special Forces unit, Detachment 27. It ain’t easy to cross-examine pieces of paper. Where are these other six men?”

“Trial counsel?” Holt said.

“Sir, several of these men are deceased. As for the others, we are only required to produce witnesses who are ‘reasonably available,’ that is, located within one hundred miles of the site of the hearing. The others are at the moment unavailable under Rules of Courts-Martial four oh five golf one alpha.”

Holt hesitated. “All right. I’m willing to consider these sworn statements alone. If there are no further objections, trial counsel, you may call your first witness.”

Waldron called out—sang out, really: “The government calls Colonel James Hernandez.”

CHAPTER TWENTY-FIVE

Colonel James
Hernandez, the general’s aide de camp, was short but powerfully built, with short curly black hair, a thin mustache, and swarthy skin. Under his right eye was a scar. He had the slightest trace of a Cuban accent. As he spoke, he gripped the railing in front of the witness stand.

“They begged for mercy,” he said. “They said they weren’t rebels.”

“And what did Sergeant Kubik do while he was machine-gunning them down?” Waldron asked.

“What did he do?”

“Did he react in any way?”

“Well, he smiled, sort of.”

“Smiled? As if he were enjoying himself?”

“Objection!” Claire called out. She felt Grimes’s restraining hand on her arm. “This witness can’t possibly testify as to whether Sergeant Kubik was enjoying himself—”

“Uh, Ms. Chapman,” Colonel Holt said, “this isn’t a regular court-martial. This is an Article 32 hearing. That means that none of the rules of evidence apply here. The only thing we go by are the military rules of procedure for Article 32 pretrial investigations.”

“Your Honor—”

“And I’m not Your Honor, much as I’d like to be. You can call me ‘Sir,’ or ‘Mr. Investigating Officer,’ but I’m not Your Honor. Now, are you going to be cross-examining this witness, when the time comes?”

“I am, sir,” said Grimes.

“Well, then, counsel, I don’t see why you’re objecting anyway. Mr. Grimes here should be the one objecting. We have a rule here—one counsel, one witness. No tag teams. Understood?”

“Understood,” said Claire with a half-smile. She whispered to Grimes, “Sorry.”

“I have nothing further,” Waldron said.

Grimes got to his feet. Standing just in front of the defense table, he said: “Colonel Hernandez, when you were contacted in regard to this 32 hearing, were you threatened with charges if you didn’t cooperate?”

“No,” Hernandez said.

“You weren’t coerced in any way?”

“No, I was not.” He gave Grimes a direct, confrontational stare.

“I
see
,” Grimes said, as if he clearly didn’t believe him. “And when you were interviewed by the CID in 1985, in regard to this incident at La Colina, were you pressured in any way by CID?”

“Back in 1985?”

“Right.”

“No, I was not.”

“No one threatened you with charges if you didn’t cooperate—complicity, involvement in the alleged crimes, conspiracy to commit murder, even murder?”

“No one.”

“No threats whatsoever?”

“None.” He jutted his chin as if to say,
So there
.

“So this was a completely voluntary statement?”

“Correct.”

“Now, you work for General William Marks, the chief of staff of the army, is that right?”

“Yes. I’m his executive officer.”

“Did he ask you to give a statement?”

“No. I did it on my own.”

“He didn’t coerce you in any way?”

“No, sir.”

“You’re not afraid of harming your career if you say anything critical of the general?”

Hernandez hesitated. “If I had anything critical to say, I’m required to say it. I’m under oath. But he did nothing wrong.”

“
Aha
. Now, tell me something, Colonel. When you saw Sergeant Kubik discharge his weapon at the civilians, did you
personally
try to stop him?”

Now Hernandez eyed him suspiciously. Was this a lawyer trick? “No,” he finally said.

“You didn’t?”

“No.”

“Who did try to stop him?”

Hernandez hesitated again. He sat forward in his seat. He looked over at Waldron and company. “I don’t know. I didn’t see anyone try to stop him.”

“Hmm,” Grimes said. He took a few steps closer. He shrugged and said conversationally, “So you didn’t actually see
anyone
try to stop him?”

“No, I did not.”

“And, Colonel, since General Marks—then
Colonel
Marks—was back at headquarters at this time, you were in charge, is that right?”

“Yes.”

“Colonel Hernandez, how long have you worked for General Marks?”

“Since 1985.”

“That’s quite some time. He must trust you enormously.”

“I hope so, sir.”

“You’d take a bullet for the general.”

“If given the chance, yes, sir, I would.”

“You’d lie for him, too, wouldn’t you?”

“Objection!” Waldron shouted.

“Withdrawn,” Grimes said. “Okay, now, Colonel Hernandez, I’m going to take you step by step through this incident. We’re going to very slowly explore every single detail, just so’s I don’t miss anything, okay?”

Hernandez shrugged.

In mind-numbing detail, for two hundred questions or more, Grimes took the witness through every point he could think of. It was like watching a movie frame by frame. Where was he standing? What did Sergeant Major so-and-so say?

Then, suddenly, Grimes seemed to veer off course. “Colonel Hernandez, did you consider yourself a friend of Ronald Kubik’s?”

Hernandez’s eyes snaked over to Waldron for a moment. He looked sullen. He opened his mouth, then closed it.

“You can tell us the truth,” Grimes prompted, walking away from the witness stand, back toward the defense table.

“No, I did not.”

“You didn’t much like him, did you?”

“I thought he was twisted.”

Grimes stopped and whirled around. “Twisted?”

“That’s what I said.”

“Twisted like sick-twisted?”

“Yeah. Sick.”

“Oh?” Grimes looked curious. “And how was he sick?”

“He was a sadist. He loved to kill.”

“In combat, you mean.”

Hernandez looked confused. “Yeah, when else?”

“You didn’t kill people outside of combat, did you?”

“No. Outside of a designated operation, which wasn’t necessarily combat.”

“I see. So, during a designated operation, he loved to kill.”

“That’s right.”

“Which was his job—
your
job.”

“Only part of the time—”

“Part of the time it was your job to kill people.”

“Right.”

“And he was good at it. In fact, he loved it.”

“Correct.”

“Would you say Ronald Kubik was a good soldier?”

“What he did was illegal—”

“I’m not asking about what happened on June 22, 1985. I’m asking you, up until that point, up until that night, would you say Ron Kubik was a credit to the Special Forces?”

Hernandez looked trapped and resentful. “Yes.”

“He was really good.”

“Yeah,” Hernandez conceded. “He was so fearless it was scary. He was one of the best guys we had.”

“That’s all I’ve got for this witness,” Grimes said.

“As it’s lunchtime,” Colonel Holt announced, “we will recess for an hour and a half, until fourteen hundred hours.” A rustle, oddly dampened by the soundproofing, arose, along with a flat babble of excited voices. The few spectators got to their feet. Waldron headed for the exit; Hogan, his cocounsel, lagged behind, doing something at the prosecution table. The steel doors opened.

Tom gave Claire a hug and said, “We’re doing great, don’t you think?”

“We’re doing okay,” Claire said. “I think. What do I know?”

At that moment, Hogan brushed by the defense table. When he was next to Tom, he whispered: “You know we’ll get you, you sick fuck, one way or another. In court or out.”

Tom’s eyes widened, but he said nothing. Claire, who had overheard the remark, felt a surge of adrenaline, but then she too said nothing.

Tom held out his wrists for cuffing. The restraints were put back on him and he was led away, back to the brig for a meal in his cell.

Embry came around the table and reached to shake Grimes’s hand in congratulation. Grimes didn’t meet it. He leaned over and spoke to Embry in a low, menacing voice. “What the fuck did you tell them about leaking to the press?”

Embry’s hand dropped slowly to his side. His face darkened almost to purple.

“We saw you, Embry. We saw you having beers with Waldron and company.”

“Yeah? Well, that’s all it was. Beers. I work with these guys, you know. They’re colleagues. I have to live with them, work with them, long after you guys are gone.”

“And that’s why you feel free to divulge confidences to them?” Claire asked.

“Now he’s got you thinking this way? I didn’t tell them a thing, Claire. Not a thing. I never would. It’s unprofessional and it would just get me in trouble. Plus it would make me look like a chump. Anyway, why should I tell them I was party to a conspiracy to violate nondisclosure? That would just get me in a heap of trouble.”

He turned, looking wounded, and walked off.

“You believe him?” Grimes asked.

“I don’t know who to believe anymore,” Claire said. “Let’s get lunch. My car is parked really close. There’s a McDonald’s nearby.”

“I’d go for McDonald’s.”

“Is there a McDonald’s on every army base in the world?”

“Or Burger King.”

On the way to the car, when she was satisfied no one was within earshot, Claire said: “I don’t understand why you didn’t trap him, Grimes. In his statement he says something like, We all tried to stop him. But on the stand he backed down from that. That’s a major contradiction! Why didn’t you bring out that inconsistency?”

“Because that’s not the point of this proceeding,” Grimes said. “We’re looking to lock the witness into his story. Get it on paper. We’re not trying to impeach him here.”

“Explain.”

“Don’t blow your wad at the 32. We’re going to trial, we both know that. So hold our ammo in reserve to blow holes in him at the trial. We treat this hearing like a discovery deposition. Don’t confront the witness with his inconsistencies. Not here. Maybe we’ll point them out at the closing, but I’d rather we didn’t do it even then. Save the big guns for the trial.”

She shook her head at the curiousness of the military system.

“Look,” Grimes explained, “it’s like those different kinds of mousetraps, okay? There’s them sticky-glue traps where the mouse gets stuck to it and keeps wriggling around, alive, and you got to pick it up and throw it away. And then there’s the old-fashioned snap-trap that crushes the little bugger in half a second—breaks his back. A 32 is like a glue trap. You get the witness to poke his little paws in the glue so he’s stuck there, wriggling but alive. You don’t crush the fuckers yet.”

“Yeah, well, I wanted to crush the fucker.”

“Because you’re defending your husband. That’s not the way the system works. That would have been ill-advised.”

She flushed hotly, realizing that he was right. She wasn’t being objective. How could her feelings for Tom not hinder the way she tried this case?

She unlocked the passenger side of the rented car first, and they both got in. The instant she switched on the ignition, they were engulfed by an enormously loud sound, the blare of the car radio, turned up all the way.

“Man, you trying to kill me?” Grimes shouted. “I just sustained permanent hearing loss. I didn’t know you were the musical type.”

She switched it off. “Jesus, what was that?”

“Marilyn Manson, I think. I don’t know. I don’t listen to that shit either, don’t ask me.”

“I didn’t put that on,” she said. “I never listen to the radio.”

“Maybe you brushed it on by accident or something.”

“I would have heard it go on. Believe me, I didn’t put the radio on. Someone else did.”

“A warning,” Grimes said. “Telling you they can get into your car or your home, anytime they want, so watch it.”

“Subtle,” she said.