Wrongful Death (9 page)

Kessler repeated the process of entering a code on the sensor. “I can’t answer that. I’m sure you can appreciate that what we do over there can be sensitive. It doesn’t always make the news, and we try to keep it that way. Given the current climate, working over there is sort of like living with a tiger. You don’t want to be poking it with a stick, drawing its attention and making it angry if you don’t have to.”

BACK BEHIND HIS
desk, Kessler looked as normal as the next guy, but Sloane knew appearances could be deceiving. Despite Kessler’s upbeat demeanor and jokes, Sloane couldn’t help but wonder what happened to a man’s psyche when he lost so much so quickly, and how much of Kessler’s demeanor was an act for their benefit, part of the unwritten “man’s code” not to show weakness.

“You wanted to talk about James Ford?” Kessler asked.

“Mrs. Ford has asked me to look into James’s death. They have a lot of questions about what happened to him, about how he died. You gave a statement in some detail,” Sloane said. He pulled out Kessler’s witness statement from his briefcase and handed it to him. “The family obtained a copy. I assume it’s an accurate recollection of what occurred?”

“Yes,” Kessler said, without giving the statement a glance. “And I’m aware that Mrs. Ford filed a claim.”

“Who told you that?”

“The claims office.”

“So you understand Mrs. Ford takes issue with Mr. Ford’s body armor?”

The vein in Kessler’s temple became more prominent, though his voice remained even. “I’m aware that Mrs. Ford is upset because in her mind James did not have sufficient body armor, yes.”

“You don’t agree.”

Kessler paused, as if to measure his response. After a moment he said, “I understand there were quite a few claims after that article that the new armor might have saved lives.”

“You don’t agree?” Sloane asked again.

“The article’s implication was that the soldiers did not have to die—that better armor would have kept them alive. In my opinion that’s just speculation.”

Sloane decided to push him. “The report indicates the wounds were inflicted in areas left unprotected by the older armor. Why is that speculation?”

“Because we could reach the same conclusion about every soldier who has died in every war. Soldiers don’t die unless they incur a wound in an unprotected area.” Kessler paused. “The fact is, there never has been and there never will be body armor that will keep every soldier alive. If there were, we’d be in a constant state of war.”

The latter comment surprised Sloane. “It seems the opposite would be true.”

“Would it?” Kessler adjusted in his chair. “War is inevitable. I’m not a pessimist by nature, but you can’t ignore history. Men have been fighting since we could stand on two legs and throw a spear. If no soldier died, there would be no casualties, and as we all know, wars usually end when the casualties become unacceptable to one side or both.” Kessler looked at Jenkins. “You served in Vietnam; you’re familiar with the vests we used over there.”

“Couldn’t stop a fart and weighed a ton,” Jenkins said.

Kessler turned to Sloane. “They called them ‘flak jackets’ because that’s all they were designed to protect against, flak from shrapnel and other low-speed projectiles.”

“I’m familiar with the term, and the jacket, Captain.”

“Then you know they were the best we had at that time. They saved lives. Not enough, for sure. What we wore in Desert Storm wasn’t much better. The technology didn’t change until production of the Interceptor in 1999. It was supposed to be part of a ten-year plan to replace the flak jackets. Unfortunately, nine-eleven occurred in the fifth year of that plan, and we hadn’t produced enough to outfit every soldier before the invasion. You go to war with what you have.”

It was an argument Sloane knew he could anticipate from an assistant U.S. attorney if he ever filed a complaint in federal
court. He sensed that further argument would only make Kessler guarded, and what he really wanted was to better understand why the witness statements were so uniform.

“What can you tell me about the night James Ford died?”

Kessler shook his head. “Nothing, I’m afraid.”

Sloane looked to Jenkins, but the big man appeared equally perplexed by Kessler’s sudden reticence. “I don’t understand. You knew we wanted to talk about James Ford.”

“About his vest, yes, but I can’t talk about what happened to him that night.”

“I thought you indicated to Mr. Jenkins that you were willing to talk to me?”

Now it was Kessler who looked perplexed. “I did. But…I’m sorry, I thought you knew.”

“Knew what?”

“That Mrs. Ford’s claim has been reopened.”

INSIDE THE JEEP,
Sloane put on sunglasses and turned on the radio.

Jenkins smiled. “Are we getting paranoid, Counselor?”

“You told him we wanted to discuss the night Ford died.”

“Yep.”

“And he said he’d talk to us.”

“Yep.”

“And by the time we get here he tells us he can’t say anything?”

“Yep.”

Sloane backed the Jeep from the building and drove toward the entrance. “So what was the damn point of making us drive all this way?”

“Don’t know. But isn’t the real question why the claim has been reopened?”

The fence pulled apart. Jenkins turned down the radio as Sloane handed the two plastic cards back to the guard in the booth. The man never uttered a word.

As they drove off, Jenkins said, “I don’t like that guy’s attitude.”

“He has no attitude. He’s a robot.”

“He’s got attitude,” Jenkins said.

“Why provide Beverly Ford the statements at all?” Sloane asked.

“What?”

“Why did they give her the statements? I’ve never come up with a good answer.”

“You said she made a FOIA request.”

“It’s the government, Charlie—they invented stonewalling. They could have come up with a dozen legal reasons to not turn the statements over, not to mention playing the national security card. I’ve been focused on why the statements are so similar. Maybe I need to focus on why the government would give them up at all.”

“You have a theory?”

“What’s the best way to get rid of a squeaky wheel?”

“Oil it.”

“Let her read about how her husband tragically died a hero. Let her believe there’s nothing to hide and hope that will be the end of it,” Sloane said. “But it isn’t the end of it. She isn’t pacified by a Purple Heart. She continues to press for information, and they go back to ignoring her.”

“Enter you,” Jenkins said, following Sloane’s reasoning.

“Now she has a lawyer asking questions.”

“So they reopen the claim and tell Kessler he can’t talk about it.”

Sloane shook his head. “That’s where I’m having a problem. If
the claim is as unviable as John Kannin believes, if the Feres doctrine is as impenetrable as he says, we have to assume the regional claims office knows that, right? I mean this is what they do on a daily basis.”

“One would assume.”

“And if that’s the case, then the smart move would be to let me talk to the captain. Either that’s the end of it, or, if I do file my complaint in federal court, the government brings a motion to have it dismissed, and they’re done with the whole thing.”

“So we have to assume that whoever ordered the claim reopened isn’t comfortable with either scenario,” Jenkins said.

Sloane nodded. “And the only reason they wouldn’t be comfortable is because they don’t want us talking to the other soldiers about what happened. Maybe the claim isn’t as unviable as we think.”

“If they were going to cover something up, they’d make sure everyone was saying the same thing.”

“Kessler never even bothered to look at his statement. Did you notice that?” Sloane merged the car onto the freeway, heading north.

“A lot of soldiers want nothing to do with those memories, David. That’s a tough place to return to.”

“Maybe, but I keep thinking of two things Katherine Ferguson said to me.”

“What was that?”

“She said her husband told her that they never should have been there.”

“Iraq?”

“That’s what I thought, but now I’m not so sure. Where was their support? A single squad? Five guys? It doesn’t make sense.”

“Their statements say they drove off course during a sandstorm.”

Sloane nodded. “But if we’re assuming we can’t trust those statements…”

“I follow. So what was the second thing she said?” Jenkins asked.

Sloane stared out the windshield. “She said her husband never took the easy way out.”

HIGHWAY
5
OUTSIDE FORT LEWIS, WASHINGTON

W
hat can I do for you, David?” John Kannin’s voice reverberated over the speaker on Sloane’s cell phone so Jenkins could hear the conversation.

“I have a couple more questions,” Sloane said.

“Shoot.”

“If a soldier’s claim is denied, how would the family receive notice?”

“It can be formally denied, in which case the regional claims office will send a letter to the service member or their spouse, or if it isn’t formally denied within six months, it’s deemed denied, in which case there might not be a letter.”

“Have you ever heard of a claim being denied and then reopened?”

“Reopened? Why?”

“No idea at this point.”

“I’ve never had that happen before.”

“Any guesses why they might?”

“Off the top of my head?” There was a pause to indicate Kannin wasn’t overwhelmed with possibilities. “The JAG attorneys rotate out of that office after a year; it’s not unusual for me to deal with more than one on the same claim. I guess it’s possible a new JAG could come in and assess a claim differently from his predecessor.”

“How likely is that?”

“Not likely with the volume of claims they have, unless perhaps someone draws their attention to the particular claim.”

Sloane had done just that. Could it be that simple? Could a new JAG have reopened the claim to take another look at it? “Any other reasons you can think of?”

“Claims can get passed up the chain if greater settlement authority is needed. It could be that a superior got a hold of it and wants to take a closer look.”

Given the Feres doctrine, that did not seem likely. Then again, if someone had researched Sloane’s reputation it was possible, as he’d hoped.

“Anything else come to mind?”

“Only other thing I can think of is maybe if the family provided additional information for the officer to consider.”

“What about reopening the claim to impede a civilian investigation into the circumstances that led to the service member’s death?”

“
Now
this is getting interesting.” Sloane envisioned Kannin sitting up with his Cheshire-cat grin. “Tell me more.”

Sloane explained what had happened when they tried to speak with Captain Robert Kessler.

Kannin interrupted. “Wait a minute. They
gave
her the witness statements?”

“I take it that’s unusual.”

“Highly. Ordinarily an investigation into a soldier’s death
includes the tactical methods employed. They want to determine whether what happened was an isolated incident or potentially endemic of a larger problem necessitating a change in field tactics. In my experience that part of the investigation is
always
classified.”

“Assuming that to be the case, any reason you can think of to explain why they’d turn over the statements to his wife?”

“None. I mean maybe you get a JAG who understands the family is looking for answers and wants to do the right thing. The ones I’ve dealt with are decent people. And they’re soldiers too, remember. But I would doubt it.”

Sloane’s phone indicated an incoming call. He’d called Carolyn requesting Beverly Ford’s phone number. “I have another call. Thanks for the help, John.”

“No problem. Keep me posted. I’d like to know how it turns out.”

Sloane switched the call and Carolyn provided Ford’s number. “Do me another favor,” he asked. “Check Mrs. Ford’s files for letters from the regional claims office. Find me a name and a phone number.”

“Hang on.”

He heard papers rustling and handed Jenkins a pen and piece of paper, repeating the name Carolyn provided. “Captain F. Lloyd Bitterman.” He was about to hang up when he saw a freeway sign that provoked a thought. “What’s the address for the claims office?”

“The address? Fort Lewis. Why?”

Sloane cut quickly across two lanes of traffic, eliciting a honk and a one-finger salute from the driver of a blue BMW.

Jenkins braced an arm on the dash. “What the hell?”

Just off the exit, Sloane turned into a parking lot outside the gated entrance to Fort Lewis. “Thanks, Carolyn. That’s all I need for now.”

“Are you coming in or did I blow another chance to get better looking?”

“I’ll be in,” he said. “Call me if anything comes up.” He disconnected the call and dialed Beverly Ford’s number. She answered after four rings and sounded as if she had a frog in her throat. He had awakened her, and apologized.

“Don’t apologize. I’m glad you called. I worked an extra shift last night, but it’s about time I got up. What can I do for you?”

“Has anyone informed you that they were reopening your claim?” Sloane asked.

“Reopening it? No. Why?”

“You haven’t received a letter or a phone call telling you it was being reconsidered or re-evaluated, anything like that?”

“No. Nothing like that.”

“Did you ever get a letter advising that your claim was denied?”

“Not a formal letter. I just assumed it because I read in the papers they gave me that if I didn’t hear from them within six months, the claim was considered denied. Was I wrong?”

“No, you weren’t wrong, Beverly. And you haven’t recently sent the regional claims office additional information for them to consider?”

“I don’t have anything else for them to consider.
They
have all the information. Why are you asking?”

“I just came from a meeting with the man who was James’s captain the night he died. He told me your claim had been reopened.”

“I haven’t heard anything about that,” Ford said. “But that’s a good thing, right? It means someone is going to look into it.”

Again Sloane wondered if maybe it was that simple. “I don’t want to jump to any conclusions or get your hopes up unnecessarily.”

“Don’t worry about my hopes,” Ford said. “I thought I’d lost all hope when James died, but God finds the way to build us back up.”

Maybe, Sloane thought, but he remained concerned about giving Ford a false hope unnecessarily. “Let me make some more calls and see what I can find out. I’ll keep you posted.”

He disconnected and called the number Carolyn provided for the regional claims office. If he was already there, Sloane figured he might as well pay the claims officer a visit and find out what was going on. Three minutes later he hung up, and he and Jenkins stepped from the car and walked into the Fort Lewis processing center. A soldier seated behind a desk asked to see their driver’s licenses. Upon considering Sloane’s license, he said, “Didn’t I just speak to you?”

“I was in the area.”

The processing center had connected Sloane to a paralegal, Sergeant Bowie, who said Ford’s claim had been assigned to a Captain Thomas Pendergrass.

“I’m not familiar with that name from the file,” Sloane had said.

“Captain Pendergrass just recently rotated in,” Bowie explained. He told Sloane that Pendergrass was at a dental appointment, but expected back at any moment. Sloane apologized for the late notice, and told the sergeant it was urgent he speak with the captain. The sergeant said he’d fit him in.

Jenkins and Sloane peeled the backing from visitor passes and stuck them onto their jackets as the soldier behind the desk provided directions to the judge advocate general’s office. They got back into the car and drove through the security checkpoint, which involved another review of their driver’s licenses, passes, and car registration while another security officer walked around the car using a mirror to look beneath it.

Entering the base, Sloane drove through what appeared to be Everytown U.S.A., with a Chevron gas station and an assortment
of businesses, including a Starbucks. Moments later the scenery changed. They drove past three-story, red-brick buildings with white wood trim and dormer windows. Maple trees lined spotless sidewalks and well-manicured lawns.

“Looks like an Ivy League campus,” Sloane said, except that every man and woman wore the same green-and-beige camouflage combat uniforms, some with black berets.

Jenkins pointed out the two polished bronze cannons on the lawn in front of a building. The soldier in the processing center had given them the cannons as a landmark. Sloane turned into a parking lot just past the building.

“I think I’ll take this alone, lawyer to lawyer,” Sloane said.

Jenkins shrugged. “Have at it.”

Sloane entered the building through oak doors, took half a flight of stairs, and found the judge advocate general’s office. Sergeant Bowie turned out to be a burly man with a firm handshake and warm smile. He led Sloane to an office with a low tiled ceiling.

Captain Pendergrass stood behind an L-shaped desk, the word “Pendergrass” stitched on his uniform over the right breast, “U.S. Army” stitched over the left. The tops of several pens protruded from a pocket on his right-forearm sleeve. With the low ceiling, Pendergrass looked huge, but was actually perhaps five foot seven in his combat boots and military-fit. Irish or Scottish, he had a fair complexion, red hair, and boyish features. He looked to be fighting a headache.

Sloane thanked Pendergrass for seeing him. “I understand you just had dental work.”

“A root canal. I thought I was just coming in to pick up some files,” he said, implying that he had not appreciated Sergeant Bowie setting a meeting. Sloane didn’t have a lot of time.

“I had one last year—they’re a bitch. I promise not to take too much of your time.”

Pendergrass gestured to one of two chairs. As the captain slid behind his desk Sloane glanced at his credentials hanging on the wall. A brown flag hung near the framed certificates indicating Pendergrass had been the Combat JAG for the 81st Brigade Combat Team in Operation Iraqi Freedom, which explained the well-worn desert combat boots propped on a box near his desk.

Sloane gestured to the boots. “You don’t find those in every attorney’s office.”

Pendergrass smiled, though only the right side of his mouth rose. “I wore those out of Iraq. I hope I never have to put them on again. You told my sergeant this was urgent?”

Wanting to gauge Pendergrass’s reaction before he could look up the status of Ford’s claim, Sloane had been deliberately vague with Sergeant Bowie about the specifics for his visit. “I represent the family of a national guardsman killed in Iraq.”

“My condolences.” Pendergrass turned to his keyboard.

“I was hoping you could tell me the status of the claim.”

“What was the soldier’s name?”

“Ford. James Ford,” Sloane said.

Pendergrass typed, then scrolled through a screen, his eyes shifting left to right, reading. “That claim was denied.”

Sloane paused in case the captain was going to add, “and has recently been reopened.” When he didn’t, Sloane asked, “I assume that decision was made before you rotated in?”

Pendergrass nodded, eyes focused on the screen. “Yes.”

“So you didn’t conduct the investigation?”

“This office doesn’t conduct investigations,” Pendergrass corrected. “Command is responsible for investigating every U.S. fatality overseas. The Criminal Investigation Division also conducts its own investigation. We evaluate the claim from a legal basis only.”

“So then you didn’t conduct the witness interviews.”

“
If
there were witness interviews, they also would have been con
ducted by command or CID, maybe both. The investigation is normally performed by an officer who was not a part of the operation.”

“You mean an officer in Iraq?”

“Yes.”

“How would I get a copy of any witness statements?”

Pendergrass shook his head. “You wouldn’t. That portion of the file is classified. I don’t even get it.”

Time to go for broke. “Then can you tell me who made the decision to reopen Beverly Ford’s claim?”

Pendergrass had been militarily calm, despite his physical discomfort, up to that point. When you represent the proverbial 800-pound gorilla, there is no reason to be concerned. But now his eyes narrowed and he seemed genuinely caught off guard.

“Excuse me?”

“Can you tell me who made the decision to reopen Beverly Ford’s claim?”

Pendergrass’s eyes shifted to the monitor.

“You do know that the claim was reopened?” Sloane asked.

“As I said, I just rotated in.” Pendergrass typed again and took longer to read the file. Sloane did not interrupt him. After a few minutes, Pendergrass picked up a pen. “I’ll have to look into it. Who told you the claim was reopened?”

“Captain Robert Kessler.”

Pendergrass shook his head, unfamiliar with the name.

“I just drove an hour to talk to Captain Kessler only to have him tell me he couldn’t talk to me because the claim had been reopened. Wouldn’t your office ordinarily make that decision?”

“Not always. Not if command or CID found out additional information warranting that the claim be reopened.”

“How often does that happen?”

“I don’t know.”

“But you’re not aware of it in this instance.”

“I’m not aware of it, no.”

Sloane tweaked him a bit. “Shouldn’t you know?”

Pendergrass appeared to be contemplating his choice of words. “I can look into the matter and get back to you. The decision might still be coming down the chain of command.”

“I’m not trying to be difficult, Captain, but I just got off the phone with Mrs. Ford, and she believed the claim had been summarily denied. This is all news to her. She’s frustrated. She thinks the timing of the claim being reopened is suspicious.”

“Suspicious?”

“Put yourself in her shoes. The claim lingered for months without a formal response, but when she finally hires an attorney and I try to talk to a witness, we’re told the claim has been reopened and he won’t talk to us. You indicated that doesn’t happen often.”

“I didn’t say that,” Pendergrass interjected.

“The family is anxious to move forward. They’ve authorized me to file a complaint in federal court.”

Pendergrass smiled, smug. “Have you handled many military claims?”

“My first one.”

“Mind if I give you a suggestion?”

“Not at all.”

“You might want to consider doing some research on the Feres doctrine before you go to the expense of filing a complaint.”