Wrongful Death (34 page)

As rehearsed, Kessler said simply, “I do.”

“And what evidence would that be?”

“The statements were recorded.”

The blue suits leaned forward, like swimmers on starting blocks, as Sloane casually returned to counsel table and John Kannin handed him the tape. Kannin had performed the research on the admissibility of the recording in a Washington federal court. It was a dicey argument. Natale could go either way.

“Your Honor, plaintiffs wish to move into evidence a tape recording made the night in question as authenticated by Captain Kessler, and further wish to play that recording here in court.”

The blue suits dived from their blocks, objections flying. They argued that the tape was inadmissible because Griffin had been surreptitiously recorded.

“Mr. Sloane, are you prepared to authenticate the tape?” Natale asked.

“I am, Your Honor. The operator is in the courtroom,” he said, referring to Jenkins.

“And what of the defendants’ objection that the tape is inadmissible?”

Sloane turned to Kannin, who handed him the legal brief containing the argument, though Sloane had committed it to memory. He presented the brief to Judge Natale and a stack of copies to the opposing counsel. “The exclusionary rule is a product of the constitutional protections of the Fourth Amendment, Your Honor. It is a constitutional limitation on the admissibility of evidence otherwise probative. The Supreme Court has therefore restricted its application, as has the Ninth Circuit, which governs here. So long as the Fourth Amendment has not been directly violated, a recording obtained with the consent of one party to the conversation is admissible in federal court. Captain Kessler agreed to be recorded, and defendants have not argued a Fourth Amendment violation.”

Judge Natale turned to the blue suits. “Do you have some evidence that the tape was obtained in violation of your clients’ Fourth Amendment rights?”

They did, of course, given that Sloane had ridden through Argus in a Bradley and busted through the warehouse wall. But the men had no way to prove that a regiment of national guardsmen had stormed Argus under the cloak of night. The guardsmen, to a man, feigned ignorance of any such maneuver. They had all filed statements that they had driven off course while performing an exercise. Their superiors supported them. The two Argus guards with Griffin that night were also cooperating with the investigation and apparently had no desire to hurt their deals by standing up for the colonel. Besides, Griffin couldn’t very well call upon them, since he had no way to justify his presence at the company the night in question without admitting to being part of the civil conspiracy.

After the chorus line of lawyers fumbled with their responses, Natale turned to Sloane. “I’m going to rule that the tape is admissible. You may play it, Mr. Sloane.”

For the next twenty minutes the only sounds in the courtroom were the recorded voices of Griffin and Kessler. When the recording ended, there was deafening silence. The blue suits sat with their heads down, either rethinking their strategy, or thinking of a way out of the case. Beverly Ford sat stoically.

“Captain Kessler,” Sloane said, “do you believe James Ford was a hero?”

No one objected. No one dared.

Kessler looked to Beverly Ford. “I believe that every man and woman who serves is a hero. We might not agree with the philosophy of the war, but as soldiers that is not our job. It’s about service. James Ford, Michael Cassidy, Dwayne Thomas, and Phillip Ferguson served with honor. They are all heroes.”

AFTER A MORNING
recess, Judge Natale retook the bench. “Mr. Sloane, you indicated you have a second witness?”

“We do, Your Honor. Plaintiffs call United States Attorney Rachel Keane.”

The announcement brought still further astonished expressions and utterances. Keane, who had sat calmly to that point, went ghostly white.

Pendergrass rose. “The government objects. We had no prior knowledge of plaintiffs’ intent. As a matter of courtesy, counsel should have notified us of this clearly unorthodox request. The United States attorney represents the government. She is extremely busy.”

Sloane had to give Pendergrass credit. The objection sounded almost sincere.

“The United States attorney is in court, Your Honor,” Sloane countered. “And we don’t intend to keep her long. Nor do we intend to ask her any questions that could violate the attorney-client privilege or the work-product doctrine.”

Natale looked to Keane. “The U.S. attorney has been present in the courtroom all morning. Therefore I see no prejudice,” she said. Sloane thought he noticed a slight lilt in Natale’s voice. “Ms. Keane, please take the stand.”

Keane stood and proceeded up the aisle while reporters scribbled furiously in their notepads. After Keane had been sworn to tell the truth, Pendergrass stipulated that Sloane could dispense with the usual preliminaries concerning Keane’s occupation and other personal information.

“I think we’re all aware of Ms. Keane’s background,” Natale agreed, and this time Sloane was certain he detected a hint of sarcasm.

Sloane stepped back to the podium. “Ms. Keane, as the United States attorney for the Western District of Washington, you have
authority to make offers of settlement on behalf of the United States so long as those offers do not exceed a certain dollar limit. Is that correct?”

“That is correct,” she said.

“And in this particular matter you authorized a settlement offer to Mrs. Ford in an amount within your authority. Isn’t that correct?”

Pendergrass stood, his timing perfect. “Objection, Your Honor. Offers of settlement as well as all settlement discussions are inadmissible pursuant to Evidence Rule 408.”

“Mr. Sloane?” Natale asked.

“Counsel is correct. An offer of settlement is inadmissible for the purposes of implying guilt or liability. We are not offering it for either reason. We are offering this evidence only to show that an offer was made. If the court will grant me some indulgence, I can finish this quickly.”

“I’m going to overrule the objection,” Natale said. “I’ll allow you some leeway, Mr. Sloane. I believe the court is sufficiently capable of differentiating between the many reasons why an offer of settlement can be made other than liability. Answer the question, Ms. Keane.”

Keane looked up at Judge Natale. “Yes, I authorized an offer of settlement.”

“Was there a demand?” Sloane asked.

“No, there was not,” Keane said, still poised, though looking less and less in command.

“Is it unusual for the United States attorney to make a settlement offer when the plaintiff has not made a demand?”

“It happens,” Keane said, calm.

“Can you remember another occasion?”

Keane shrugged. “Not off the top of my head, no.”

“So we can assume it’s not frequent.”

“No, it’s not frequent.”

“And you did not seek authority from your superiors to make this settlement offer because, as you said, the amount was within your authority, correct?”

“That is correct.”

“Did you request that a Treasury check be issued from the Department of the Treasury?”

Keane smiled. “There was no need, Counselor. Your client turned down the offer.”

Sloane paused, nodding. Then he asked, “I take it, however, that you advised the Federal Tort Claims staff that Mrs. Ford had filed a claim and forwarded a copy of the complaint to them for processing?”

“I don’t do those kinds of things, Counselor. Someone on my staff handled that,” Keane said, dismissive.

“And when would that have been done?”

“I’d have to have my staff check the file. I really wouldn’t know.”

“Was it within the last week?”

“Yes,” she said. “Most likely.”

“Actually, you have a good memory,” Sloane said. “It was one week ago today,” he said, holding up another document. “But perhaps you didn’t hear my initial question, Ms. Keane. I didn’t ask whether you forwarded a copy of Mrs. Ford’s
amended
complaint to the Tort Claims division. I asked whether a copy of the original complaint was forwarded to that division.”

Keane squirmed in her chair. “I don’t recall.”

“I think we’ve just established that that would have been standard procedure, would it not?”

“Yes, it would have been.”

“Would there be any good reason why that standard procedure would not have been followed in this instance?”

“I can’t think of any. Perhaps administrative oversight.”

“In that case, I would request that the government be ordered to turn over their file for Beverly Ford.”

Pendergrass stood. “Objection, Your Honor. That request violates the attorney-client privilege and contains the government’s work product.”

“Your Honor,” Sloane said. “I’m not interested in any of the government’s work product. I’m just interested in whether the United States attorney ever notified the proper divisions within her office that Mrs. Ford filed a complaint before the offer of settlement. I’m happy to allow the government to provide that file to the court for an in-camera inspection for that purpose.”

“I’ll grant the motion,” Natale said, now seemingly on Sloane’s wavelength or at least damn interested in where he was heading. “The government will provide the court with its file immediately following this hearing.”

Pendergrass sat.

“Mr. Sloane, do you have any further questions of Ms. Keane?”

“No, Your Honor.”

Keane started from the stand.

Sloane turned back. “Actually, I’m sorry, I do have just one more.”

Keane begrudgingly retook her seat.

Sloane took a moment, as if studying his notes before looking up at the U.S. attorney. “Ms. Keane, have you ever met with Argus CEO Houghton Park and Colonel Bo Griffin at Mr. Park’s residence on Lake Washington to discuss how Argus could pay a hundred thousand dollars to Mrs. Ford so that no settlement offer would have to be communicated through the Tort Claims staff?”

The courtroom erupted. This time Judge Natale did not seek to calm it. She turned and looked to the witness chair.

Keane’s face had faded to an ashen white. Her eyes shifted across the room to Pendergrass, urging him to stand and object.

But Pendergrass remained anchored in his seat, eyes locked on Rachel Keane. To the rest of the courtroom he looked like a statue, unmoving, frozen, but Sloane saw the nearly imperceptible movement, and he knew Keane did as well.

Pendergrass winked.

OUTSIDE THE COURTHOUSE
Sloane finished with the last of the news media interviews. As technicians rolled up yards of cable and packed equipment back into news vans, he unclipped the microphone from his suit coat and met Beverly Ford in the courtyard out front of the Federal Building. Beverly wore the same modest skirt and jacket as when Sloane first met her in the King County Superior Courtroom. She called it her lucky suit.

At the end of the hearing Judge Natale had not taken the matter under submission, as was her normal routine. Instead, she had read from a carefully prepared statement. She said that the evidence of wrongdoing on the part of Argus and its directors, as well as Colonel Bo Griffin, and perhaps Rachel Keane, was overwhelming.

Keane had never answered Sloane’s final question. She pleaded the Fifth Amendment.

Natale also said there was significant evidence the mission that had resulted in James Ford’s death was not a military operation at all, and therefore that James Ford had likely not been killed while acting incident to his service.

Then she granted the government’s motion to dismiss.

While the rest of the courtroom sat in wide-eyed shock and disbelief, Judge Natale explained that despite the evidence, under the Feres doctrine, as currently interpreted by the U.S. Supreme
Court, Beverly Ford’s complaint was barred, and Natale was duty-bound to apply it.

God bless her! It was the only time Sloane could have kissed a judge for ruling against him.

Addressing Beverly Ford, Judge Natale had said, “If ever there was a case that cried out for justice, Mrs. Ford, this would be it. I hope you find it.”

Ford had turned and smiled at Sloane. “I have hope, Your Honor. And faith.”

Natale had then turned to Sloane. “I suspect my ruling will cause you to appeal this matter to the Ninth Circuit Court of Appeals, Mr. Sloane.”

Sloane nodded. “It will, Your Honor, and perhaps beyond.”

Natale nodded. “Perhaps.” Then she stood and left the bench, and the onslaught of reporters converged on Sloane and Kannin for nearly an hour.

Ford handed Sloane a wrapped package. “I got you something. And I want you to know, win or lose, I won’t forget what you’ve done for James and our family.”

Sloane unwrapped the package. Inside was the framed painting from Beverly Ford’s mantel, the one of the dove and the prayer about houses being built not of wood and stone but love. He smiled. “I’ll put it on the mantel in my home. And it will remind me of what you’ve done for me as well.”

“What I did?”

“You taught me about hope, Beverly.”

Sloane gave her a hug. When they separated they started toward Beverly’s children, who stood on the grass beneath the fist sculpture in the middle of the courtyard, along with Charles Jenkins, Alex, and John Kannin. Sloane would not allow Tina or Jake to be at the hearing. He did not want either one of them appearing on film or in the papers.

As Sloane and Ford approached, Althea broke free of Lucas’s hand and ran across the cement toward them. Beverly Ford reached out to greet her daughter, but to Sloane’s considerable surprise, Althea veered at the last second and ran to him, wrapping her arms around his legs.

When she released her grip, he lowered to her eye level and asked, “What was that for, angel?”

Althea turned and looked over her shoulder at her brother. Lucas nodded. Then she turned back to Sloane.

“Thank you,” she said.

AS ALWAYS THERE
are many to thank. If I miss anyone, you know who you are and how grateful I am for the help and support.

My thanks to those who allowed me to use their names or likenesses, either to benefit charity or just for the heck of it. Among those are King County Superior Court judge Anthony P. Wartnik (retired), who allowed me to sit in his courtroom and pick his brain. Thanks also to John Kannin, a good friend and excellent trial attorney; and to Charles Jenkins, my law school roommate and friend. I’d like to say I made Charles larger than life, but those who know him, know he is larger than life. To Jo Natale and her husband Scott Cameron for their generous contribution to the Bellevue Boys & Girls Clubs in exchange for my use of her name. Thanks also to Johnson Marshall, a Canadian but with such a cool name I had to make him a United States senator. And thanks to Dan House, aka Dan the Sausageman, owner of the Tin Room, a great restaurant in Burien.

To Colonel Drew Blazey, United States Army (retired), for
putting me in contact with those who served in Iraq who were willing to share their experiences. To Command Sergeant Major (retired) Bill Barkley (Washington National Guard) for taking the time to give me a tour of Fort Lewis and Camp Murray and to introduce me to JAG officers and other soldiers who served in Iraq and who have handled the claims of soldiers and their families, including Major Matt Cooper, Judge Advocate General–Washington National Guard, for taking the time to explain to me some of the intricacies of the claims process and Feres doctrine.

Thanks also to W. L. Rivers Black, Esq. (Navy Reserve), and Joseph C. Misenti, Jr. (JAG, Captain, Navy Reserve), for their help in sorting through and understanding the claims process and the Feres doctrine.

To Sergeant Jack Lewis (Army Reserve) who generously gave of his time to help me understand his experiences on the ground in Iraq. I couldn’t have written this novel without his help. He provided me with much of the information for the fictional account of the guardsmen set forth herein, corrected my mistakes, and helped to make real the fictional events portrayed herein. I am indebted for his kindness. And to those other soldiers, U.S. Army and national guardsmen, who provided me with their experiences serving in Iraq, but who for personal reasons wish to remain anonymous, thank you for your time and for your service. Any mistakes in the portrayal are mine.

To Mr. Michael T. Hurley, supervisory special agent, Drug Enforcement Administration (retired) who always goes out of his way to provide me with numerous contacts, all of whom made the book infinitely better, among them Daryl Higgins, Tacoma Police detective, Special Investigation Division; and Sergeant Tom Davidson, CID/Homicide/Robbery/Assaults, Tacoma Police Department. I’m grateful for the tour of the Hilltop in Tacoma, and for their insights.

To Ignacio Davila, for helping to translate my sometimes poor English into proper Spanish; and to Dr. Shane Macaulay, for proofreading the manuscript and educating me on rifles, handguns, shotguns, and just about everything else that fires a bullet.

To Cherie Tucker, the grammar guru of GrammarWorks, for giving the manuscript her critical eye.

In addition to the dozens of legal cases, treatises, and magazine and newspaper articles I read on the Feres doctrine, the military contractor defense, and the issues of body armor and Iraq’s chemical weapons program, I also read a number of blogs of soldiers serving in Iraq, as well as first-person accounts published, including:
The Gift of Valor,
Michael M. Phillips, Broadway Books, 2005;
Just Another Soldier,
Jason Christopher Hartley, HarperCollins, 2005;
My War: Killing Time in Iraq,
Colby Buzzell, G.P. Putnam’s Sons, 2005;
In the Company of Soldiers,
Rick Atkinson, Henry Holt & Co., 2004;
Operation Homecoming,
the award-winning anthology of stories written by military personnel and their families and edited by Andrew Carroll about military service in Iraq and Afghanistan; Michael Yon’s Online Magazine, http://www.michaelyon-online.com, on Fallujah; Columbia: Journalism Review Dispatches from Iraq, www.cjrdaily.org/dispatches_from_iraq.

While the information concerning the history of Iraq’s chemical weapons program comes from newspaper and magazine accounts, the events portrayed in this book and the characters are all fictional. None of the above persons breached any confidences or privileges in lending me their names, likenesses, or assistance. To the extent anything in this novel reflects a true account, it is coincidence. Again, all mistakes are mine.

I am also grateful to all of the people at Touchstone for making
Wrongful Death
as good as it can possibly be. Thanks to publisher Mark Gompertz and deputy publisher Chris Lloreda for believing in the manuscript; to publicity director Marcia Burch and publicist
Ellen Silberman for getting the book and me out there and for their creative means to publicize it. To art director Cherlynne Li and production editor Josh Karpf for making the book look and read better than I could have hoped. To Louise Burke, Pocket Books publisher; and Pocket Books associate publisher, Anthony Ziccardi, thanks also for believing in the manuscript. Special thanks to Trish Grader, my editor. It can be a thankless behind-the-scenes job, but without her deft touch in helping me to improve the manuscript, keep the story moving, and ratchet up the suspense, I would not be writing this acknowledgment. Thanks for your guidance and your support. And if things in Trish’s office work the way they do in mine, thanks also to her assistant, Meghan Stevenson, for taking care of the little things that make the big things work. Finally, to all on the Simon & Schuster/Touchstone sales force, without whom no one would be reading this book, thanks for your hard work and dedication promoting and selling
Wrongful Death.

To Jane Rotrosen, Donald Cleary, Mike McCormack and everyone else at the Jane Rotrosen Agency for continuing to take an interest in all aspects of my career and for taking such good care of me; and especially to my agent, Meg Ruley. Meg is the rare person who, as talented as she is at being a literary agent, is an even better person. Meg, I couldn’t do this without your guidance, tenacity, enthusiasm, humor, and patience. I am truly grateful for all that you do for me.

And always, to my wife, who puts up with the mood swings of a writer, and makes everything else in our lives never skip a beat. I’ve said before you are more talented than I, and I grow to appreciate and love you more each day.