High Crimes (19 page)

CHAPTER THIRTY-ONE

Waldron was
waiting not far from Claire, Grimes, and Embry in front of the secure-courtroom door at fifteen minutes before nine in the morning. When Claire arrived, he pounced.

“Ms. Chapman.”

“Major,” she said blandly.

“Are you ready to deal?”

Claire tried to conceal her astonishment. “Hadn’t given it a thought.”

“I wish I could believe that. I’ve been instructed to make you an offer. Personally, I oppose any kind of deal—I think you know that. I’m prepared to go for the death penalty, and I’m highly confident we can get it, in the current climate. But I’ve been asked to make an offer.”

“We’re listening.”

Embry and Grimes gathered around.

“We’re willing to drop to voluntary manslaughter—Article 119.”

“How many specifications?” Grimes demanded.

“One,” Waldron said. Grimes raised his brows. “Not eighty-seven. Same course of conduct.”

“Voluntary manslaughter’s fifteen years,” Embry put in.

“Here’s the crux of the deal,” Waldron said. “We’d insist on total nondisclosure. In writing, of course. If the government of El Salvador gets wind of this, there’ll be a major international incident. Sergeant Kubik will speak of the circumstances to no one, including the terms of this agreement and everything connected with these negotiations. No books, magazine articles, letters to the editor. No publicity whatsoever. No private conversations to anyone about the incident either.”

Embry and Grimes nodded. Claire simply watched Waldron, blank-faced.

“All attorneys and support and investigative personnel would also be required to sign nondisclosure agreements,” Waldron continued. “You also waive appellate review. Kubik gets dishonorable discharge, forfeiture of all pays and allowances.”

“What about time?” Grimes said.

“He serves five years,” Waldron said. “But all confinement in excess of five years will be suspended for fifteen years from the date of trial. His nondisclosure will be part of the good-conduct clause. He violates nondisclosure, we vacate the agreement, and he’s back in Leavenworth.”

Grimes turned to Claire.

Waldron said grimly, “Not bad, huh? Five years for killing eighty-seven people? You’ll never beat a deal like this.”

“Why are you suddenly so interested in making a deal?” Claire asked.

“Because this is a long and arduous and expensive process, and we think it’s best for all concerned to come to a settlement now.”

“When do you want to know?”

“Now.”

“Now? You’re crazy. I’ll have to talk to my husband.”

“He’ll be here in a minute or two. I should warn you, the deal’s off the table once he’s arraigned.”

“We’ve got three weeks before trial,” Claire said. “What’s the rush?”

“Just let me know your decision before arraignment. Which is in about five minutes.”

*   *   *

When Claire told Tom the deal as his restraints were being removed inside the courtroom, he shook his head.

“Why not?” Claire said. “The nondisclosure’s no big deal—you’ve kept mum about it for thirteen years! And five years at Leavenworth—well, I won’t minimize how tough any prison time is, but that looks awfully attractive, given the alternative.”

“Claire, I’m an innocent man,” Tom said. “I’m not doing five years for a crime I didn’t commit. Anyway, I wouldn’t survive Leavenworth. They’d have me killed. If they’re offering to deal, that tells us they’re scared. They’re scared of what we might bring out at trial. Scared of what might become public. Don’t you smell blood, too?”

“You’re being awfully brave for a man who faces the possibility of execution. It’s a gamble, Tom. A huge gamble.”

“Everything I’ve done is a gamble,” he said.

Grimes stared in disbelief and whispered to Tom, “Did I hear wrong, or did you just turn down Waldron’s offer?”

“
I won’t do time for a crime I didn’t commit!
” Tom whispered back emphatically.

Grimes turned to Claire. “You didn’t
make
him take it?”

“I can’t make him take a deal,” she whispered back.

“This man’s gonna sue you later for ineffective assistance of counsel,” he said, disgusted.

*   *   *

Claire approached the prosecution table and tapped Waldron on the shoulder. “We’re passing,” she said.

“Kubik heard the terms, and he’s not jumping at this?” Waldron said. “You serious?”

“Drop the five years, and you’ve got a deal.”

“Not negotiable.”

“Then we’re going to trial.”

Waldron gave a gladiatorial smile. “You’ll wish you’d taken it.”

“Maybe so.”

“Believe me. You don’t know what’s in store.”

“Nor do you,” she said.

PART FOUR

CHAPTER THIRTY-TWO

“
All rise,
” the bailiff called out.

Judge Farrell, wearing a black robe over his dress greens, entered the courtroom and mounted the bench. He sat in his high-backed leather chair. In his rumbling voice he spoke into the microphone. “Please be seated. This Article 39(a) hearing is called to order.”

Waldron remained standing. “This court-martial is convened by the secretary of the army, by convening order number 16-98,” Waldron said. In military court-martials, the trial counsel also served as the court clerk. “
United States
versus
Sergeant First Class Ronald M. Kubik.
The accused is charged with violation of Article 85, desertion, and violation of Article 118, premeditated murder, eighty-seven specifications.” And he continued reading a litany of preliminaries.

In front of the judge’s bench sat the court reporter, the same middle-aged blond-haired woman who’d been at the last court session, at a small table, wearing headphones. The LED lights on the tape deck before her flashed, emerald-green lines jumping and sinking.

“All right, I am Colonel Warren Farrell, U.S. Army,” the judge recited. “I’ve been detailed to this court-martial by the circuit military judge. I’m qualified in accordance with Article 26(a) of the Uniform Code of Military Justice. Would any counsel like to voir dire the military judge?” He referred to the seldom-used right to question, even to challenge, the judge’s right to try the case.

Waldron stood. “No, Your Honor.”

Claire stood next. “Yes, Your Honor. We would.”

Grimes slapped his forehead with a large hand. The sound was audible as far as the prosecution table, where Captain Hogan regarded Grimes with a smirk. He’d tried to talk her out of this last night, but Claire was determined.

“All right, Ms. Chapman,” Judge Farrell said in an attempt at bluff good humor.

“Your Honor,” she asked, “do you know why you were assigned to this case?”

Farrell jutted his chin and regarded her with veiled eyes. He took a sip of his coffee. “I assume I was assigned because of my experience with national-security cases.”

Claire considered this for a moment and decided to move on. “Can you please state for the record any conversations you’ve had with any member of the Office of the Judge Advocate General regarding this case.”

Farrell’s eyes flickered almost imperceptibly. But he remained game. “To the best of my recollection, counsel, I had one or two conversations that were purely administrative in nature.”

“I see. And can you please state for the record any conversations you may have had with any member of the personal staffs of the secretary of the army or the chief of staff of the army.” Here was the interesting question, and Claire wondered how honest he would be, whether he’d risk trying to cover his tracks.

But the judge was too clever. He took another sip of his coffee and glanced up at the low ceiling as if trying to recall a dim, distant memory. “Well, counsel, I can only recall one conversation I might have had that related to this case, with a member of the chief of staff’s office a few days ago.”

“Can you state for the record what you recall of that conversation?”

His eyes were dead. “Oh, we talked only generally about scheduling matters and such.”

But why was someone from General Marks’s office talking to the judge about scheduling matters? It made no sense.

“With whom did you talk, sir?”

“With Colonel Hernandez.”

From behind her, she heard Grimes exclaim, “What?”

Straining not to show her astonishment, Claire asked, “Is Colonel Hernandez in your chain of command, Your Honor?”

“No, he’s not.” The judge’s patience was visibly wearing thin.

“And, Your Honor, has Colonel Hernandez ever called you before about the scheduling of a case?”

Now he sounded dismissive. “I don’t believe so, no.”

“He’s never had any other conversations with you regarding any other court-martial scheduling?”

“As I said, I don’t recall any others.”

“Now, Your Honor, could you be more specific about what precisely you talked about with Colonel Hernandez?”

But Judge Farrell had had enough. “Counsel, I’m a busy man,” he said flintily. “My days are scheduled to the minute. I have conversations with dozens of people every day about hundreds of things. Unfortunately, I’m not always able to recollect every word that was exchanged. Now, do you or trial counsel have challenge for cause against the military judge?”

Waldron stood. “We most certainly do
not
have a challenge, Your Honor.”

“Your Honor, we need a brief recess to talk among counsel about whether we have a challenge,” Claire said.

“This court is in recess for ten minutes,” Judge Farrell said, and pounded his gavel.

Grimes reached out a hand and grabbed Claire’s shoulder as she sat down. “I have one simple question for you. Are you out of your fucking mind, or have you just been smoking too much weed? You’re not seriously going to challenge him for cause, are you? Because we don’t
have
cause.”

“No,” she admitted. “He’s stonewalling, unfortunately, and there’s nothing there we can use.”

“All right, he talked to Hernandez. Surprise, surprise. So is it just your intention to piss this asshole off?”

“Grimes, I want him to know we’re watching him, and that he’d better be on his best behavior.”

*   *   *

When court resumed, Claire said: “We have no challenge for cause at this time, Your Honor.”

Judge Farrell seemed to be suppressing a smile. “All right, then, will the accused please rise.”

Tom got slowly to his feet. He’d been briefed on what to say.

“Sergeant Kubik, by what form do you wish to be tried?”

Tom knew the answer. “A court-martial with officer members, sir.” The members of the jury were selected by the convening authority. It was illegal to stack the court, though it was known to happen from time to time. Members were also supposed to be free to vote their conscience, without guidance from above, or “command influence.” Generally, members were supposed to be senior in rank to the accused. If the accused was an enlisted man, not an officer, he had the right to request that at least a third of the jury members be enlisted; but Grimes had urged Tom to choose all officers, who tended to be more reliable, more trustworthy, and less likely to act rashly. Or so Grimes had told him.

“By whom do you wish to be represented?” asked the judge.

“By Ms. Chapman, Mr. Grimes, and Captain Embry, sir.”

“That request is approved. The accused will now be arraigned. Does the defense request the charges and specifications be read to the accused?”

“We waive a reading, Your Honor,” Claire said.

“Sergeant First Class Kubik, I now ask you how do you plead, but before I ask you, I advise you that any motions to dismiss, or for other relief, must be made at this time.”

“Your Honor, defense has a number of motions,” Claire said.

There was a glint in the judge’s eye. The motions weren’t a surprise, since he’d demanded they get their motions in three days before the arraignment and present them in a hearing before the judge without the jury present. The whole procedure was a formality, a highly scripted ritual, a Kabuki dance. “Sergeant Kubik,” he said, “you may be seated.”

Tom returned to his seat in a crisp military maneuver. This was the only time he would ever be required to speak in court, and he was done.

And the Kabuki dance began. Claire presented and argued her motions, one after another, and Waldron stood to knock them down as best he could. There were quite a few motions. Move to dismiss the entire court-martial on the grounds of insufficient evidence. Motion
in limine
to exclude the record of Tom’s service in Vietnam, which Tom continued to insist was cooked up, on grounds that it wasn’t relevant to the charges.

And on and on and on. Judge Farrell scribbled furiously while Claire spoke, as she produced her appellate exhibits. And for several hours this went on.

Until at last Claire was finished, and Judge Farrell began, “Counsel, I’ve considered your motion to dismiss, as well as the testimony and evidence produced in support of the motion, and the evidence produced by the government, and it is denied. My findings of fact and conclusions of law will be appended to the record of trial, prior to authentication.”

No surprise, but Claire stood to preserve the record. “Objection to your ruling, Your Honor.”

“Your objection is overruled.

“Next, counsel, I’ve considered your motion for appropriate relief for admission of an expert witness to testify on an exculpatory polygraph, as well as the testimony of your expert witness, as well as the testimony produced by the government, and your motion is denied. My findings of fact and conclusions of law will be appended to the record of trial, prior to authentication.”

This was a major loss, and Claire jumped up. “Objection to your ruling, Your Honor.”

“Your objection is overruled.”

And so it went. One after another.

Each motion, so artfully presented, so cogently argued—denied. Each time Claire popped up like a child’s jack-in-the-box and preserved her objection for the record, but there it was. Denied. Overruled. Finally Judge Farrell said, with a glint of triumph, “Any further motions, counsel?”

Grimes shook his head, scowling. Tom stared straight ahead in numb disbelief. Embry looked distant, troubled.

“Yes, Your Honor,” Claire said, getting wearily to her feet. “Defense once again challenges the closed nature of these proceedings. The accused, as we continue to maintain, has a right to a public trial, guaranteed to him in the First and Sixth Amendments, which we respectfully—”

“No,” Judge Farrell snapped.

“Your Honor?”

“We’ve been through all that, so forget it.”

“Your Honor, the defense respectfully maintains that such a trial—”

“Sit down.” Claire sat. “I said forget it. I don’t want to hear it again.” The judge’s ruddy face reddened further. “The government has already made a persuasive case that the accused’s rights are not in fact compromised by holding this trial
in camera.
That there are valid national-security concerns. This is all covered under Military Rule of Evidence 505. I’ve made my rulings. Were you paying attention in court?”

From her seat at the defense table, Claire said: “Your Honor—”

“Let me tell you something, Ms. Chapman. Loud and clear. I don’t want to hear it again. And if you bring this up in front of the panel, I’ll hold you in contempt of court, you hear me?”

“Yes, sir,” Claire said. Under her breath she muttered to Grimes, “I’m in contempt of this court most of the time.”

“You say somethin’?” Judge Farrell barked.

“No, sir.”

“Good. Now, I’m dead serious about this. You raise this issue in front of the members—that’s the jury, by the way, since you don’t seem quite familiar with the rules of our court-martial system—you’re gonna spend time in the Quantico brig yourself. And I don’t know how these things work in
Cambridge,
Professor, but in these parts, warning is not mandatory. And you got no right of appeal. You hear me?”

Claire stood. “You can’t enforce that. I’m a civilian, which means I’m not subject to your jurisdiction. And you certainly can’t throw me in a military brig.”

“You wanna try me?”

Claire and the judge stared at each other for several long seconds, and then Claire sat.

Grimes covered his eyes with his hand and sank down in his seat.

“Now,” Judge Farrell said, “are you prepared to enter pleas on behalf of your client?”

“Yes, sir,” Claire said with crisp disdain, rising. “We are.”

“Accused, please rise.” Tom got to his feet.

“Your Honor,” Claire said, “through counsel, Sergeant First Class Ronald M. Kubik pleads, to all charges and specifications, not guilty.”

“Very well. I understand your pleas, and you may be seated.”

They sat. Claire clasped Tom’s hand and gave it a firm squeeze. Tom gave a squeeze in reply. She whispered, “All right, we’re done here.”

“Some rough going, huh?” he whispered back.

“Worse than I expected. This judge just doesn’t give a shit.”

“Counsel,” Judge Farrell called out, “are you prepared to conduct voir dire?”

“
What?
” Claire exclaimed.

“I said, are you ready to bring in the members?”

Claire turned to Grimes, who was as astonished as she was.

Tom blurted out, too loud: “The trial’s not supposed to start for another three weeks!”

“Yes, sir,” Waldron said, “we’re ready.”

Claire leaped to her feet. “No, Your Honor, we most certainly are not. It was our understanding that this trial was not to begin for another three weeks. This is a capital-murder trial, the charges are extremely serious in nature, and defense is not prepared to cross-examine witnesses. We’re still in the midst of our investigation.”