High Crimes (13 page)

CHAPTER TWENTY

As she
waited to be admitted to the brig, she found herself lost in thought.

It is shortly after their wedding, on their honeymoon, in fact. They are checking into the Hotel Hassler in Rome, at the head of the Spanish Steps, on the Piazza Trinità dei Monte. She’d wanted to stay at a more modest
pensione
nearby, the Scalinata di Spagna, but Tom insisted they treat themselves to some serious luxury. The reservation, however, has been lost. A screwup. The suite he’d reserved is no longer available. The most they can offer, with deepest apologies, is a “junior suite.” Tom flushes, slams his fist down on the counter. “
We made a reservation, goddamn it,
” he thunders. Everyone in the lobby turns, appalled and fascinated. The reservation clerk is all apologies, flustered, humiliated. He almost dances before them. Tom glowers terribly, but then, just as quickly as he ignited, he cools. He nods. “See what you can do,” he says.

There are other times, she now remembers.

The time when his assistant at Chapman & Company confused the date of a lunch meeting with a big-time potential investor so that Tom missed the appointment. He flew into a rage, became abusive, and fired her, but then relented a few hours later and hired her back.

The time when a neighbor accidentally swerved his Range Rover into their lawn and gouged out a rut. Tom came storming out of the house, face dark with fury, but by the time he reached the neighbor’s car he seemed to have cooled down.

The time when, as he was walking with Annie in Harvard Square, she reached out to pet a dog, and the dog growled and snapped at her, and Tom grabbed the dog by the scruff of the neck until it yelped. The owner protested angrily; Tom set the dog back down, and it slunk away, tail between its legs. “Don’t you worry about anything,” he said to Annie.

There were dozens of such incidents, but what did they mean? A man who didn’t want his perfect honeymoon spoiled. An overly exacting boss. A meticulous homeowner. An overprotective father. In the course of marriage—even a relatively brief one, as theirs had so far been—you witness anger and sadness. You see the best in your spouse, and you see the worst. Tom had a quick temper, but he’d never directed it at her, never at Annie, and he’d always managed to contain it.

And then there was the way he had paralyzed the U.S. Marshals agent who had pursued him at the shopping mall. No doubt it was his Special Forces training. Had he really been unnecessarily brutal? They were trying to imprison him for a crime he insisted he hadn’t committed. He hadn’t killed the man.

Even the ruthless way he’d fought off the marshals at the lakeside cabin in the Berkshires—but was that anything more than self-protection, the survival instinct?

Did all these things really make him a killer?

*   *   *

“Hey, where’s the rest of my team?” Tom asked. He’d begun to exhibit the occasional flash of joviality, which for some reason irritated Claire. They met in the small glass-walled room that adjoined his cell. This time they had removed all restraints, presumably as a sign of respect to her.

“Just me right now,” Claire said quietly. “I want to know about La Colina. What really happened.”

He cocked his head, squinted. “I told you—”

“I’ve just read seven statements. They’re all substantially the same—”

“They’re probably
identical.
The military can be clumsy in their forgeries.”

“Who’s Jimmy Hernandez?”

“Hernandez? The executive officer of my detachment. Marks’s number two. Kid from Florida, son of Cuban immigrants—”

“Is he honest? A truth-teller?”

“Claire,” Tom said with exasperation. “Honesty is a relative concept to these people. Their CO tells them to fart, they fart. And if he tells them it’s gardenias, they’ll say it’s gardenias. Hernandez is Marks’s asshole buddy. He’ll say whatever Marks tells him to say.”

“Well, the prosecution is calling Hernandez as an eyewitness to the atrocity you allegedly committed. If he’s as believable as his CID statement, we’re in trouble.” She adopted a carefully neutral, professional tone.

“And what, he says I did it? I was some kind of mass murderer of eighty-seven civilians?”

“Yeah.”

“I told you, Colonel Marks gave the order to waste the whole village. ‘To teach ’em a lesson,’ he said. Hernandez was the XO, Marks’s loyal number two—it wouldn’t surprise me if he was one of the shooters. I wouldn’t participate in the cover-up, so they turned the tables and blamed me. That’s what this is all about. It was thirteen years ago, for God’s sake, I don’t know why they don’t just let it go away.”

“The Criminal Investigation Division interviewed the entire unit. They must have interviewed you, too.”

“Sure they did. They interrogated me at length, and I told them the truth. Obviously I didn’t do a statement for them.”

“And you didn’t report this to anyone? The truth, I mean?”

“Report to who? You don’t know the military. You keep your mouth shut and your head down and hope for the best.”

“But some of the guys in the unit must have seen you on the other side of the village. Some of them must know you weren’t there.”

“You’re not going to get anyone to testify to that. Either they took part in the massacre, or they’re part of the cover-up. They probably all have deals, immunity, whatever. You can find that out in discovery, can’t you?”

“They’re required to tell me. You didn’t have any friends in the unit? Any guys who might have refused to deal, but agreed to keep silent? Who might be willing to help you out now?”

“I liked maybe three guys in the unit. One or two of them I’d call friends. You know I don’t make close friends easily. Anyway, how do I know they didn’t fire at the villagers.”

“Tom,” she began. “Ron.”

“You can call me Ron, if you want,” Tom said softly. “If you’d feel more comfortable.”

“I know you as Tom. But that’s made up, isn’t it?”

“It’s the name I chose, not the one my parents gave me. I became Tom with you. I sort of like being Tom.”

“Tom, why should I believe you? Really. You’ve lied to me for six years, as long as I’ve known you. Really.”

“I lied about my past. To protect you from the kind of crazies who don’t fuck around. Who if they heard the slightest whisper that I was alive and living in Boston would have tracked me down and killed me and everyone around me. I should never have fallen in love with you, Claire. I should never have ruined your perfect life, me, with my horrible background—”

“You didn’t ruin my life.” Tears misted her eyes. She exhaled slowly.

“Claire, I’ve been thinking a lot about who might know the truth. About what really happened. There is a guy.” He bit his lower lip. “Someone who knows about what really happened. He’ll have the proof. He knows the Pentagon’s trying to cover this up. I’ll bet he can turn up the documents for you.”

“Who?”

He took her pencil and scribbled a note on one of her legal pads. He whispered: “Keep this name locked up. Destroy this paper. I mean, flush it down the toilet.”

She glanced at it. Her eyebrows shot up.

“Tom,” she said, “I have to ask you something else.” She told him about the grisly incident with the neighbor’s dog and the mailbox back in Fayetteville, North Carolina.

Tom closed his eyes, shook his head slowly. “Come on. I did live off-base, they got the right address, but I bet, if you try to track this supposed ‘neighbor’ down, you’ll find he doesn’t exist.” His eyes were moist. “Claire, we need to talk.”

“Okay,” she said guardedly.

“Listen to me. You are my rock right now. When Jay took off, I was there for you because I valued you as a friend. I’ve tried to be a rock for you, because I love you. But now I need you. I can’t tell you how hurtful it is that the person I love most in all the world doubts me.”

“Tom—”

“Let me finish. I’m utterly alone here. Totally alone. And if it wasn’t for you, your faith in me, I don’t think I’d make it. I really wouldn’t.”

“What does that mean?” she asked softly.

“Just that I don’t think I’d live through it if I thought you didn’t believe in me. I need you. I love you, you know that. Deeply. When this is over, if I pull through this okay, we’re going to get our life back. I need you, honey.”

She felt the tears spring to her eyes, and she hugged him, hard. She felt the sweat rising hotly from his shoulders.

“I love you, too, Tom,” was all she could say.

CHAPTER TWENTY-ONE

The library
in the rented house was the real thing, an old-house, old-money library. Linen-white-painted bookshelves that held not just the requisite leather-bound antiquarian volumes in sets of ten and twenty and fifty, but real books as well, recent and not-so-recent hardcover editions, mostly politics and history, no fiction in sight. The sort of books that the owner of the house, right now perhaps drinking
un caffè macchiato
at a café in Siena, probably actually read. His library was the century-old prototype of Claire and Tom’s modern study back in Cambridge.

Captain Embry, dressed in civilian clothes (brand-new deep-indigo jeans and a short-sleeved shirt, both neatly pressed), sat on a hard chair at a side table, taking notes with a chewed Bic pen on a legal pad. Grimes (once again in his 1970s orange Day-Glo sweater) was sunk deep in a floral-upholstered wing chair, legs splayed.

Claire sat, smoking, at the immense oak library table, surrounded by law books:
Military Rules of Evidence Manual, Military Criminal Justice: Practice and Procedure, Manual for Courts-Martial: United States.
“So all the prosecution is planning to present at the 32 hearing”—already she spoke like an old hand—“are those seven CID statements and one so-called eyewitness, this Jimmy Hernandez guy, to corroborate? That all?”

“Yeah,” Grimes said. “The government doesn’t have to present everything they got. Just enough. Remember, all they got to do is demonstrate there’s enough probable cause to go on to a court-martial. It would be dumb for them to present more than the bare minimum.”

Embry put in: “The idea is, we’re supposed to try to knock it out.”

“Which ain’t gonna happen,” Grimes said. “No matter how hard we try. So consider the 32 as the government’s tryout, their audition. We get the chance to scope out their case in advance, see what they put on the table. Cross-examine to point out all the weaknesses.”

“What about the other six members of Burning Tree who gave statements?” asked Claire. “Why aren’t they being called as witnesses?”

“One, they don’t have to,” Grimes replied. “Any witnesses who are ‘legally unavailable,’ meaning more than a hundred miles away, don’t have to appear. Two, the government doesn’t need ’em.”

Claire nodded. “Can they surprise us? Pop something on us at the hearing?”

Embry said, “Normally they give you the evidence as soon as they get it.”

“Yeah,” Grimes said, inspecting the ornate detail on the vaulted ceiling, “or they might give it to us a day or two before. But I doubt they’re going to surprise us at the hearing. They want to be able to say they gave us everything in advance.”

“Anyway,” Embry said, “if they do drop something on us, we ask for a continuance, that’s all.”

“Same as a civilian court,” Claire said. “But what about Article 46 of the code? The equal-access clause?”

Grimes lowered his head and turned slowly to regard her. “Someone’s got the UCMJ on her bedside table.”

“We get ‘equal opportunity to obtain witnesses and other evidence’ blah blah blah, right?” Claire said.

“Right,” Grimes said, “but it doesn’t say equal
time
, does it?”

“Mommy?” came Annie’s voice, high and sweet and tentative. She was wearing blue-jeans overalls and pigtails. She stood at the open door, curiously stealing a glance at the two men.

“Yes, honey?”

“Mommy, Jackie’s making dinner. It’s going to be ready soon.”

“Okay, honey. We’ll be done very soon, too. Now, let us work, babe, okay?”

“Okay.” She looked around shyly. “Hi.”

“Hi,” both men called out.

“Why are you smoking, Mommy?”

“Come on,” Claire said, “out of here. I’ll see you at supper.”

“But I want to play here,” Annie said with a pout.

“Not now, sweetie.”

“Why not?”

“Because Mommy’s working.”

“You’re
always
working!” Annie said, stalking off.

“Man,” Grimes said, “you got a serious case of that nasty habit. I thought no one in Cambridge is allowed to smoke, some zoning law or something.”

“Yeah, well, I’m going to quit when this is over,” she said. “I
was
going to invite you guys to stay for dinner, but—”

“Invitation accepted,” Grimes said. “I can smell it from here. Someone around here knows how to cook. I love garlic.”

“Terry?” she said.

“I can’t,” Embry said. He reddened immediately. “I’m sorry, I’ve—I’ve got to meet someone.”

“Cheating on the wife already?” Grimes said.

Embry smiled bashfully, shook his head.

“All right, now,” Claire said, “I want to find out whatever we can on Hernandez. Terry, I want you to start a file on every witness or potential witness, starting with Hernandez and the other six who gave statements against Tom. I want their, what do you call them, fitness reports, service records, the works. Then I want to interview Hernandez.”

“Uh, you better leave the interviewing on this guy to me or Embry here,” Grimes said.

“Why?”

“Because we’re both army guys. I’ve done my time in the service. We know how the shit works.”

“Fine, but I want to be there. I want to see his face.”

“Of course,” Grimes said.

“I also want to find out if this guy’s been offered anything in exchange for testifying. Like immunity. Same for anyone else they might call at the trial itself.”

“We get that in discovery,” Embry said. “The general-discovery request.”

“Well, no we don’t, necessarily,” Grimes said. “You got to put in a specific request. Demand the government state with specificity which witnesses are claiming privilege and why. Tell ’em you want a copy of all grants of immunity given to any witness. Or any promises of leniency. We want a copy of all informants’ agreements, including any records of monetary and property remunerations.”

“All right,” Claire said, lighting a fresh cigarette. “I want the names of all members of this unit, their current names and addresses and phone numbers. I’m going to have Ray Devereaux track them all down.”

“You won’t find ’em all,” Grimes said. “These guys disappear, sometimes.”

“Ray’s good,” she said.

“They’re better.”

“You think we can trust them in the discovery process?” Claire asked. “To give us everything we ask for?”

Embry hesitated. Grimes said, “Can you ever trust your opponent in discovery? In the real world, I mean?”

“Not always,” she admitted. “It’s always a question.”

“There you go,” Grimes said.

“But the
Brady
rule requires them to give us all exculpatory evidence, anything that might indicate Tom’s innocence,” she said.

Grimes chuckled.

“You don’t trust them,” Claire said.

“It’s why I have a job, baby,” Grimes said. “It’s what keeps the big bucks rolling in.”

“If we don’t get everything the prosecution has,” Claire said, “we got ourselves a mistrial.”

“If we can prove it,” Grimes said.

“Terry,” she went on, “I want you to do a complete search through the Iran-Contra hearings and the United Nations reports on abuses in Central America in the nineteen-eighties. See if there’s any mention of the massacre at La Colina.”

Embry jotted a note.

“All right,” she said, “we’re going to request that all charges be dismissed. We’re going to argue that the government has no jurisdiction, since we were in an area we weren’t supposed to be in. The government, in effect, has unclean hands.”

“But what about the desertion charges?” Embry said. “You’re not going to contest those, are you? I mean, he destroyed his military uniform and his IDs—he obviously had no intent to return.”

“Least of our problems,” she replied. “Our defense is duress.”

“Duress?”

“Desertion is a specific-intent offense. That means his intent counts, right? Well, he feared he’d be killed—whether he would have been killed or not, it’s a valid defense, as long as we can show the defendant had a good-faith
belief
he’d be killed. Maybe we can get it dropped to ‘unauthorized absence.’”

“It’s not the ‘defendant,’ it’s the ‘accused,’” Grimes said. “It’s not the ‘prosecutor,’ it’s the ‘trial counsel.’ You’ll get the hang of the lingo.”

Claire flashed Grimes a sulfurous look of annoyance. “Thanks. Basically, we’ll prove that the U.S. government is trying to make Tom the fall guy for a gruesome government-sanctioned massacre.”

“Baby, you can argue all you want,” Grimes began, back to inspecting the ceiling.

“You say the 32 hearing is for scoping out the government’s case,” Claire said. “Well, here’s how
we’re
going to use it. To let them see we know how to play the hard way, that we
intend
to play the hard way. That if they go ahead with this kangaroo court-martial, we’re going to bring out the shit they
never
want out. We plan to embarrass the hell out of them. We’re going to graymail them. Bring out operational info, stuff they don’t want out in the daylight.”

“It’s a closed proceeding,” Embry objected. “Both this hearing and the court-martial that may or may not follow. Totally sealed.”

“Closed?” Claire said. “We leak. No such thing as an airtight trial.”

Grimes chuckled dryly.

“Leak?” Embry asked, horrified. “But we signed a nondisclosure agreement. If we leak, they’ll do an investigation, and we’ll all be up on charges—”

“Hey, you wanted the case, right?”

“Well, no, ma’am, as I told you—”

“Claire.”

“Ma’am?”

“Call me Claire. And don’t sweat it. Leaks are almost impossible to prove, as long as you’re careful about where you call from. And if they can’t prove it, it goes nowhere. Anyway, then we’re going to argue against this closed-courtroom bullshit. We’re going to argue Tom’s Sixth Amendment right to a public trial, and the public’s right to a public trial.”

“And they’re going to argue national security,” Grimes said, now sitting up, drawn into the game.

“So we file an extraordinary writ for an open trial. We go to the federal district court.”

“They’ll say, ‘We’re not going to intervene in a military matter,’” Grimes said.

“So we file an extraordinary writ for an open trial with the Army Court of Criminal Appeals. And the Court of Appeals for the Armed Forces. And then the goddamned Supreme Court. And let them try to argue national security—I’m going to argue that the operation is no longer ongoing, hasn’t been for years. That they’re just trying to protect the reputation of the Pentagon. Where’s the national-security interest? They want to have it both ways—protect the national security, yet prosecute my client.”

Grimes nodded slowly, rhythmically. A smile crept across his face. Embry watched her, panic-stricken.

“And you see if the government really wants to go ahead with this court-martial,” Claire said. “I’ll bet they lose their enthusiasm.”

“Claire,” Grimes said, “do you really want this trial open?”

She considered for a long moment. “I don’t, do I? In a sense, we’re trapped. I don’t want Tom’s name smeared. Once the charges are out in public, that’s it. They’re accepted as true.” She nodded. “You may have a point, Grimes. But I’ll tell you something else. We’re going to call General Marks to testify.”

Grimes brayed a laugh, his ha-
ha
. “I want some of whatever you’re smoking,” he said.

“Camel Lights,” she said. “I’m goddamned serious. If he refuses, I’ll subpoena him.”

“The lady’s kickin’ butt and takin’
names
,” Grimes said.

“Claire, ma’am,” Embry said desperately, “General William Marks is the chief of staff of the army. He’s a four-star general. You can’t make him testify.”

“Who says? Where does it say that? I didn’t read anything like that in the Uniform Code of Military Justice.”

“I like it,” Grimes said. “You got balls.”

“Thank you,” Claire said, then added, “That
is
a compliment, right?”