High Crimes (23 page)

CHAPTER THIRTY-NINE

This time
the call came at close to 4:00
A.M.
She answered, said, “Keep it up. We’ll trace you,” then hung up.

Before she left the house that morning, Devereaux called. “The FBI’s close,” he said.

“What do you mean?”

“On those mysterious phone calls. They’ve narrowed it down to one of several public payphones within the Pentagon.”

“The
Pentagon
?”

“Yeah,” Devereaux replied. “Whoever’s trying to scare you doesn’t want to make them from his Pentagon office, I’ll bet. That time of night, you can only get into the Pentagon if you’re an employee or have a pass.”

“That narrows it down to twenty-five thousand people,” she said tartly.

*   *   *

The first day of testimony had been, all told, a good one for the defense. Claire’s cross had been devastating. Waldron’s attempt to rehabilitate the CID man in his redirect was perfunctory and not particularly effective.

But by the end of the second morning of testimony, things took a sudden bad turn for the defense.

Colonel James J. Hernandez was testifying for the government, and for the most part he was repeating the same charges he’d made before. Waldron had put him on in order to establish what the law calls the
corpus delicti
, the material evidence that a crime has been committed, the body of a murdered person. They had no photographs of bodies, no autopsies, so they would have to present eyewitness testimony that there were in fact bodies—which Hernandez did ably and without a hitch.

Until shortly before lunchtime, when Waldron guided Hernandez to the moment when the unit, in the dead of night, entered the town. Hernandez had approached alongside Ronald Kubik, he testified.

“And what did you proceed to do?” Waldron asked in a seemingly offhand way.

“We went around from hut to hut, rousting people out of there, waking them up, checking for weapons or any signs of the guerrillas.”

“Did you find any weapons or any guerrillas?”

“No, we did not, sir.”

“Did you use your weapons while you were forcing them out of their huts?”

“Only to point at them. Bayonets or rifles or carbines or machine guns, whatever we had on us.”

“You didn’t shoot at them, did you?”

“Didn’t have to. They were scared. They were old men and women, and mothers with babies and little kids. They cooperated right away.”

“Did you see what Sergeant Kubik was doing at that time?”

“Yes, I did.”

“What was he doing?”

Hernandez drew himself up and turned toward the jury. Claire’s attention quickened. When a witness turned toward the jury, or the judge, he was often about to say something that he expected would elicit a reaction.

“He—well, he was doing sicko things.”

“Would you use the term ‘sadistic’?”

“Objection.” Claire shot up. “The witness isn’t a psychiatrist or a mental-health professional, to my knowledge. He’s not qualified to render diagnoses.”

“Your Honor,” Waldron said, clearly annoyed that she had broken his rhythm, “the witness is permitted to characterize actions using words he’s familiar with.”

“Overruled,” Farrell said.

“Go ahead,” Waldron prompted Hernandez. “Did he do things you’d characterize as sadistic?”

“Yes, sir.”

“Can you tell us about those things?”

“Well, one old man tried to escape through the back window of his hut, and Sergeant Kubik, he says, ‘You want to flee? I told you to go out the front door.’ And he hamstrung the guy.”

“Hamstrung?”

“He cut the old man’s Achilles tendon. One slash of his knife. He said, ‘There, now you’ll never walk again.’”

Claire turned to Tom, who shook his head, compressing his lips. “Did you hear any of this before?” she whispered.

He continued shaking his head. “It’s a total fabrication, Claire.”

Waldron continued: “And what did you do when you saw Sergeant Kubik do this?”

“I told him to stop it.”

“And did he?”

“No, sir. He said, if I ever told anyone about it, he’d kill me.”

“Did he do anything else?”

“Well, yes, sir. It was so horrible.” Hernandez looked genuinely stricken. Either he was telling the truth, Claire thought, or he was a remarkable actor. “This boy—he couldn’t have been much more than ten—this boy was throwing rocks at him. Shouting obscenities. And Kubik forced him to the ground and took out his knife and sliced his belly.”

“Sliced how?”

“He made this quick Y shape on the boy’s belly with his knife. Real quick. Not deep.”

“What was the point of that?”

“Well, sir, it was so horrible.” Hernandez’s lips curled up on one side. His face was contorted as if he were about to be sick. “When you do that—well, the boy’s insides came out. His—his intestines popped out. When that happens, the victim dies a slow, agonizing death. I shouted—screamed at Kubik—but it was like he was enjoying himself.”

Claire whispered to Grimes, “Did this guy say any of this before?”

Grimes shook his head. “Nowhere I ever saw.”

“What about his original CID statement?”

“No way. You think I’d forget it?”

“We gotta object.”

“Ask for a 39(a) session, with the jury out,” Grimes said.

Claire stood. “Your Honor, this is the first we’ve heard this testimony. We claim surprise. We request a 39(a) session.”

“Is that really necessary?” Farrell asked.

“Sir, this is outrageous. The witness is introducing new material he never gave before, not in his CID interview, or his interviews with the prosecutor, or with us—”

“All right,” Farrell said, cutting her off. “The members will be excused.”

Everyone in the courtroom rose as the bailiff escorted the jurors out.

“Your Honor,” Claire said when the jury was gone and the witness temporarily excused, “this witness has been interviewed countless times about the incident in question, by army investigators, by prosecutors, and by ourselves. Not once did he make mention of all this alleged sadism by my client. Now, if the government is going to try to tell us that the witness has been hypnotized, I want to hear it now. Because the courts have recently been taking a pretty dim view of hypnosis-induced prior recollection—”

“Your Honor,” Waldron said, “this incident took place thirteen years ago, and, given the horrific nature of Sergeant Kubik’s actions, it’s only natural that the witness has tried to forget it.”

Claire gave Waldron a look of astonishment. “Is trial counsel trying to say that the witness didn’t recall these alleged actions immediately after they took place, when the CID interviewed him in 1985?” Claire snapped. “Your Honor, in light of the new testimony being presented, we request a reinterview of this witness, as well as time to confer with our client and among ourselves.”

“Your request is granted,” Farrell said. “We will resume after the lunch hour, at fourteen hundred hours.”

Waldron brushed by Claire on his way out and remarked casually, “Saw your name in the paper.”

She looked up, but before she could think of a response, he was gone.

*   *   *

They interviewed Jimmy Hernandez in a small conference room within the classified facility.

He sat uncomfortably at the conference table, his eyes hooded and darting uneasily.

“So,” Grimes said. “Sudden rush of memory, huh?”

Hernandez scowled, twisted in his seat.

“Have you been hypnotized?” Grimes asked.

His scowl deepened. He rolled his eyes.

“Cat got your tongue? You got anything to tell us you forgot to tell us before?”

Hernandez said nothing. With his index finger he stroked the scar under his right eye.

“Lemme ask you something,” Grimes went on. “You and Marks—how far back you guys go?”

Hernandez furrowed his brow, shrugged.

“Colonel, look,” Claire said. “We have copies of the citation and the statements from when you got your first Bronze Star, at the end of the Vietnam War. One of the eyewitness statements that supported your citation was a William O. Marks. So you two obviously go back quite some time. What I want to know is, how many times did you serve with him?”

“A lot,” Hernandez finally said. “Many operations.”

“A lot,” Claire echoed. “Care to be more specific?”

Hernandez shrugged again.

The reinterview went on for almost an hour.

*   *   *

When Claire, Embry, and Grimes entered the conference room where Tom had been sitting, his chasers standing post outside, Tom got to his feet. “Every time I think they can’t sink any lower,” he said, “there’s a new low.”

“I take it you deny it,” Grimes said, handing him a cardboard-encased double cheeseburger and large fries.

“I hope you’re kidding me,” Tom said, taking them. He unwrapped the burger ravenously and took a large bite.

“I’m not. These are serious accusations, whether they come out of left field or not.”

Tom chewed quickly, shaking his head. His reply was muffled. “Of course I deny it. I deny them all. How can you seriously ask?”

“It’s my job, man.”

“Claire, you don’t believe that crap, do you?” He put down his burger.

“No, I don’t believe it,” she said. “The way it was introduced is totally suspicious. I don’t believe he’s suddenly an honest man.”

“That isn’t what I’m asking,” Tom said. “I’m talking about me. Forget about the legal junk. You can’t possibly believe that about me.”

She felt her stomach tighten. “No, Tom,” she said. “Of course I don’t. Terry, do you think you can try to turn up Hernandez’s medical records?”

“Sure,” Embry said. “I mean, I think so.”

“But quietly, okay? I don’t want Waldron to know—he’ll make us show relevance.”

“No problem. But what are you looking for?”

“Well, correct me if I’m wrong, but isn’t it true that psychiatric records aren’t privileged in the military?”

“Man, nothing’s privileged in the military,” Grimes put in. “You don’t think this creep ever saw a shrink, do you?”

“Not voluntarily, I’ll bet. But maybe he was compelled to. I don’t know. It’s worth checking. See if we can find any interesting information about the guy.”

“What are you thinking?” Tom asked.

“Something about him I don’t get.”

Tom’s eyes narrowed. “What do you mean?”

“Just—is he covering for his boss, or is there something more going on?”

Tom shook his head. “He’s just covering Marks’s ass.”

“Well, I hope you’re right. I hope there’s nothing we’re missing.”

*   *   *

When court resumed after lunch, the members were brought back in and Hernandez was back on the stand for the cross-examination. Claire paced in front of him for a few seconds before she began, trying to strike the right note.

“Mr. Hernandez, when you were interviewed by the Army Criminal Investigation Division in 1985—”

“Objection,” Waldron called out. “The witness is a colonel and is fully entitled to all the respect that rank deserves. Ask that defense counsel refer to him as ‘Colonel Hernandez.’”

“Fine, Your Honor,” Claire said. “
Colonel
Hernandez, when you were interviewed by the CID in 1985, were you asked to give a complete version of the events at La Colina?”

“Yes—”

“Thank you. Did you do so?”

“No.”

“I see,” she said, moving hastily along. “Were you aware that when you gave that statement you were under oath to tell the
whole
truth and nothing but the truth, so help you God?”

“Yes,” he conceded.

“When you testified at the Article 32 hearing, were you also aware that you were under oath to tell the whole truth, so help you God?”

“Yes.”

“Well, then, I have to admit I’m puzzled, Colonel. Did you consciously think about these details, and then willfully and intentionally not give testimony about these alleged events at the Article 32 hearing?”

The question confused him. He had to think a moment. “Um, yes, but as I explained to you—”

“Just answer the question, please. Colonel, if you didn’t tell the whole truth under oath to the CID investigators, and you didn’t tell the whole truth at the 32 hearing, when you were also under oath—how can we believe what you’re saying now?”

“I’m telling the truth!”

“The whole truth?”

“Right!”

“Because you’re under oath?”

He hesitated. “Because I’m telling the truth.”

“I see. Thank you for clearing that up for the members. You’re telling the whole truth now because you
are
. Thank you.”