High Crimes (20 page)

“What are you sayin’, it was your ‘understanding’?” Farrell shot back with narrowed eyes.

Grimes stood. “We were told that informally by the Staff Judge Advocate’s Office, Your Honor.” Claire had never before heard such anxiety, such timorousness, in his voice.

“Yeah, well, you may have that agreement with the Staff Judge Advocate’s Office,” Judge Farrell said, “but I’m the military judge, and I control the docket.”

“Your Honor,” Claire said, “we’ve just had a motion session this morning. We obviously couldn’t prepare our case without knowing what your rulings would be on our evidence. Your rulings on the admissibility or nonadmissibility of certain evidence sculpt our case. There are certain witnesses we haven’t had an opportunity to question at all. Other witnesses, we need more investigation to corroborate or contradict their testimony.”

“Counsel,” Judge Farrell said frostily, “you’ve had plenty of time to prepare.”

It took all of her restraint not to lash out at the judge. “Your Honor, the defense has not been dilatory. We have planned our case based on the scheduling that was informally decided—that is, three weeks between arraignment and trial. I will say, too, that we’ve tried repeatedly to question the primary witness against my client, the chief of staff of the army, and he has repeatedly refused our requests. Therefore, we are absolutely not prepared to present our case today, and we are not prepared to question witnesses. We would in fact request a month in which to prepare for this trial.”

“Your request is denied,” Judge Farrell said flatly.

Waldron stood and said, “Your Honor, the Staff Judge Advocate has communicated to us that General William Marks has decided to make himself available to defense counsel for an interview.”

Claire looked at Grimes. This was a thunderbolt. She got up. “In which case, Your Honor, we respectfully request two weeks to prepare for and conduct this interview before trial begins.”

“Denied,” Judge Farrell said.

“Your Honor,” Grimes put in, “defense will accept the delay in speedy trial. The accused has been arraigned, so speedy trial is no longer a consideration. All that’s at issue now is whether our client gets a fair trial, and he’s not gonna
get
a fair trial if counsel’s not prepared.”

“Well, counsel,” Judge Farrell said, “defense counsel
shoulda
been prepared, and if you’re not, it’s not this court’s fault. This case is going to trial today.”

Grimes sank into his chair, stunned. Tom turned to him wide-eyed, and whispered, “Is he serious?”

“This is a military court,” Grimes muttered. “They got the right. Only in a military court.”

“Son of a buck!” Embry whispered in disbelief.

“Your Honor,” Claire said, still standing, “once again we object to proceeding today.”

“Your objection is noted and overruled, counsel. Are you prepared for voir dire?”

“We are, Your Honor,” Waldron called out.

“Your Honor,” Claire said, “we’ve already made our position known on whether we are prepared. We are not. We are absolutely not prepared, because of assurances given us that this trial would not begin for another three weeks.”

Farrell jabbed a stubby index finger at her. “I said, are you prepared for voir dire?”

“If you’re going to force us to proceed,” Claire said acidly, “we will conduct voir dire to the best of our ability.”

“All right,” Farrell said. “I will give you two hours to frame your questions for the members. As the lunch hour is almost upon us, this would be an appropriate time to take that break.”

And he slammed down his gavel.

CHAPTER THIRTY-THREE

“
Is the
government prepared to make an opening statement?” Judge Farrell asked.

Waldron stood. “Yes, sir.”

This came after several hours of voir dire of the panel members. The jury. After several challenges for cause on both sides, and two peremptory challenges, it came down to two women and four men who would decide Tom’s fate. The most senior member, a lieutenant colonel, became the president of the jury, equivalent to the foreman. He was a light-skinned black man with steel-rimmed aviator glasses. He sat in the center of the front row of the jury box, the next most senior to his right, the second most senior to his left, and so on. They were an unremarkable group, and they watched the proceedings with rapt attention. Each of them had top-secret clearance, and could be relied upon to maintain absolute secrecy.

*   *   *

Waldron started softly, his voice almost incantatory. Claire had expected a booming, stentorian beginning. Waldron, however, was too clever.

“On 22 June 1985, in the tiny village of La Colina, not far from San Salvador, eighty-seven people were awakened from their sleep and slaughtered like farm animals.”

He had the jury members’ complete attention. They wrote nothing: the judge had instructed them that opening statements weren’t evidence and they shouldn’t take notes. They watched Waldron slowly approach the jury box and stand still in front of them.

“These eighty-seven people were not soldiers. They were not combatants. They were not rebels. They had nothing to do with the battles then raging in the country. They were men, women, and children—innocent civilians.

“And these innocent civilians were massacred not by some warring faction, not by soldiers of the El Salvador government, or by rebels or guerrillas.

“They were slaughtered by one American soldier.

“You heard me right: by one American soldier.

“One.

“And not in the heat of battle. Not by accident. But for the thrill of it.”

Claire looked at Grimes, who shook his head. Don’t object as to motive, he was saying. Not now. Don’t call attention to it. Not yet.

“How could this possibly have happened?” Waldron bowed his head as if in deep thought. He bit his upper lip. “Several hours earlier, a top-secret unit of the U.S. Army Special Forces, Detachment 27, was ordered to secure this village and determine whether the intelligence reports they had received were right—to see whether there were antigovernment rebels in hiding there.

“In fact, there were none. The intelligence, as often happens in wartime, was wrong.”

He shrugged.

“And Detachment 27, under the able leadership of Colonel William Marks—now chief of staff of the army—made this determination. They prepared to return to their base at Ilopango.

“And then, suddenly, without warning, someone began to fire his weapon. A machine gun. An M-60. To fire this machine gun on the innocent villagers.”

Claire turned to whisper to Tom and saw tears streaming down his face. She took his hand and squeezed it tight.

“You will hear from two members of the unit, Colonel James Hernandez, the executive officer, and Staff Sergeant Henry Abbott, who saw
this
man.” Waldron turned slowly and walked to the defense table. He pointed directly at Tom. “Sergeant First Class Ronald M. Kubik. They saw him raise his machine gun and point it at the eighty-seven villagers, who were lined up in four rows, and begin mowing them down.

“They saw the villagers, who had no weapons, beg for mercy. They saw them scream.

“And they saw Sergeant First Class Kubik, while machine-gunning these eighty-seven civilians, smile.”

Waldron turned back to the jury, a puzzled expression on his face. “He smiled.”

Tom shook his head. He was still weeping silently. He whispered to Claire: “How can he lie like that?”

“The commanding officer, General William Marks, was unable, despite his best efforts, to stop this atrocity.”

The panel members did not move. They watched in fascination. One of them had placed her index finger on her lips. The court reporter, a weary-looking middle-aged black woman with a floral shawl over her shoulders, softly ticked away at her machine.

“Two members of that unit will tell us about this horrible night. So will the commanding officer.

“But we will not stop with eyewitness testimony. We have hard evidence as well. We will present ballistic evidence: some of the bullets used to kill these civilians, and some of the shell casings ejected during this rampage. And we will demonstrate beyond any doubt that these bullets came from Sergeant First Class Kubik’s own gun. There will be no doubt, no ambiguity, not a shred of uncertainty. We have eyewitnesses, and we have forensic evidence.

“Yet there’s still more.

“After this nightmarish incident, members of Detachment 27 were recalled to Special Forces headquarters at Fort Bragg to be debriefed about what happened. Seven soldiers offered sworn statements. But what did Sergeant Kubik do? Sergeant Kubik was questioned at length but refused to give a sworn statement.

“And then he engineered an escape from custody.

“He escaped. He deserted the army.

“He fled across the country. He created a false identity using cleverly forged documents. He assumed a false name, even a false biography. And then he underwent extensive plastic surgery to drastically alter his appearance.

“Eventually Sergeant First Class Kubik, having assumed the name Thomas Chapman, moved to Boston, where he lived as a fugitive under a false name, with a new face. For thirteen years he escaped his crime.

“Until a few weeks ago, when a lucky tip led us to him, and he was apprehended by federal marshals.

“This, ladies and gentlemen, is not the behavior of an innocent man. This is the behavior of a very clever, very calculating man who knew he was liable to be prosecuted for committing cold-blooded murder.

“We have rules, ladies and gentlemen. We have laws. Even in wartime—especially in wartime, some would argue—our conduct is governed by strict, honorable laws. And we do not slaughter innocent civilians for the demented pleasure of it. That way madness lies.

“The evidence you will hear in this trial will shock you and horrify you. All I ask is that it move you—to demonstrate that we Americans must never do such horrific things. And that you find Sergeant First Class Ronald Kubik guilty of murder in the first degree.

“Justice demands it.”

Quietly, he returned to his table.

There was a long, shocked silence.

Judge Farrell cleared his throat. “Defense counsel, do you have an opening statement, or do you wish to reserve?”

“I’m going to reserve, Your Honor.”

“Very well. Then we will recess for the weekend. On Monday at oh-nine-thirty we will resume with the prosecution’s case in chief.”

Claire sank into her chair, drained.

CHAPTER THIRTY-FOUR

Two grease-spattered
cardboard pizza boxes sat on the library desk, empty Coke cans resting on top of them. It was late Friday night. Between Waldron’s opening statement that morning, and the meeting with General Marks in the afternoon after court, it had been a long day. It had been barely a week since the Article 32 hearing, yet it felt like months.

Grimes and Embry sprawled in their usual chairs. Ray Devereaux was sweeping the room for bugs, going through the frequencies of an RF frequency-finder, which looked like a radio with a long antenna. Claire paced.

“What if we’d never brought it up with the general?” she said. “What if he’d never boasted he had immunity? When was the prosecution planning on telling us?”

Grimes and Embry said nothing.

“Aren’t they required to notify the defense of any grant of immunity,” she went on, “and serve us a copy of it before the arraignment?”

“Actually,” Grimes said wearily, “it says ‘or within a reasonable time before the witness testifies,’ something like that.”

“Which means whenever the fuck they feel like it.”

“Basically.”

“It’s clean,” Devereaux announced. “You can talk freely.”

“Bugs never stopped her before,” Grimes said.

“I wonder if we should raise this issue with the judge,” Claire said.

Embry shook his head slowly but said nothing.

“Claire,” Grimes said, “let me tell you something. When you decided to voir dire the judge, when you went after him, you pissed him off royally. You questioned his integrity. Now I think it’s time for you to cool it, lay off the guy. Stop pissing him off.”

“I don’t intend to stop pissing him off,” she replied. “Here we are, we have no witnesses to corroborate Tom’s account, and if we ask for a continuance, Farrell will laugh. The sworn statements from the other members of his unit are suspiciously identical—”

“You think they were coached?” Embry asked.

“They have to be.”

“How can we ferret that out?”

“The only way,” she said, “is from the witnesses. To try to get the unit members still living to repudiate the statements they made to CID thirteen years ago. So who do we have?”

Ray Devereaux spoke up. “The two Waldron mentioned as being the ones who saw Tom fire his machine gun are Hernandez and a guy named Henry Abbott. Hernandez you’ve already talked to.”

“He’s the general’s boy,” Grimes said. “He’ll never back down. Though I may be able to trap him, corner him, if I’m lucky. Who’s Abbott?”

“Staff Sergeant Henry Abbott left the army in 1985. Went into the private sector. Defense-contractor work, specifically.”

“Why am I not surprised?” Grimes said.

“He’s in ‘government liaison’ at one of those big scary defense corporations. That means he sells to the Pentagon. So somehow I don’t think he’s going to turn state’s evidence for you. The Pentagon’s got him by the proverbial short hairs.”

“He’s on the prosecution’s witness list,” Embry said. “But we don’t know when he’s being called.”

“He’s in Washington,” Devereaux said, always the master of timing. “At the Madison Hotel.”

“Let’s see him,” Claire said.

“I’ve set up a breakfast for you guys,” Devereaux said. “Tomorrow morning at seven.”

“What?” Claire said. “Thanks for telling us—”

“Seven?” Grimes moaned.

“I just set it up,” Devereaux said. He turned to Grimes. “He’s an early riser.”

“Or he’s just busting our balls,” Grimes said. “Who does that leave us?”

“Two others,” Devereaux said. “Robert Lentini and Mark Fahey. Fahey I finally located. He’s in real estate in Pepper Pike, Ohio. Wherever the hell that is. I talked to him. He might be worth talking to—it’s hard to say. He seems sort of embittered about his army experience. Not exactly gung-ho.”

“Our kind of guy,” Claire said.

“Then there’s Lentini,” Devereaux went on. “The mystery man. All I can turn up is his enlistment photo, which I put in a request for; they ought to dig it up in a few days, but it’s not going to do us any good. After that, nothing. No files on him. No record of where he ended up. I checked the U.S. Army Reserve Personnel Center in St. Louis, which keeps the records of all personnel who’ve left the army. And the U.S. Total Army Command, in Virginia, where they keep the active army files. Zippo. And there’s no record of his death anywhere.”

“That’s impossible,” Claire said. “If he’s alive, he’s either in the army or out of it. Can’t be neither. Make sure there isn’t some dumb glitch, like a wrong middle initial or a spelling error or something.”

Devereaux glared at her. “Do I
look
like an idiot?”

“Don’t answer that,” Grimes said.

“All right,” Claire said. “Ray, I need whatever you got on Abbott, right now. You guys can stay up if you like, but it’s almost two
A.M.
, and I’ve got to get some sleep if I’m going to be coherent with Abbott tomorrow morning.”