Grover reminded the jury that two of the Blackwater guards killed in the Fallujah ambush were former Navy SEALs, and this could have been a motive to attack the infamous Butcher.
And then he brought up the fine balance and high moral code all SEALs must develop. “We give them training and much power and responsibility,” he said. “And with that we assume they will uphold American values and the values of the SEAL community. None of us must ever forget this is why we are better than terrorists.”
Some closing speeches by the prosecution are hard for the defense to immediately follow. And this was one of them.
Lombardi’s closing was a calm and considered reminder to the six-man jury of all that they had heard: the obvious honesty of every one of the SEAL witnesses; their unanimous voice, their certainty that no military rule had been transgressed; and their loyal, admiring assessment of the accused man, Petty Officer 1st Class Sam Gonzales.
She further reminded them of the inconsistencies of the government’s star witness, MA3 Brian Westinson, with his swerves away from the timeline and his plain motive for not telling the truth—that, indeed, he was the only one who could have whacked the terrorist.
As for the terrorist, Lombardi spoke of him with thinly disguised scorn. He was, she believed, a man of such evil and deviousness that to accept his word against those of the US Navy SEALs was, more or less, beyond her understanding and, she assumed, that of the members of the jury.
At the end of her closing speech Judge Carlos announced a recess for lunch, after which he ordered the jury to chambers to deliberate. And in such moments as these, preconceived ideas and theories are apt to disintegrate. What had seemed blissfully simple and encouraging half a day ago now seemed fraught with peril. A thousand “what ifs” cascaded through the three defense attorneys’ minds, not to mention the hopes and fears of Petty Officer Gonzales.
No sooner were the members of the jury out of sight than Reschenthaler slipped firmly into negative mode. What if they find Sam guilty? Reschenthaler thought the prosecution had done a good job making Brian credible, and he thought his appearance on the stand had been effective. But Jesus!, he thought, you never know how a jury will decide. Just in case, Lombardi had already asked the accused SEAL to write down very carefully his thoughts about why he became a SEAL, what the Navy meant to him. And Sam had come through with a wonderful, moving piece of writing in which he laid bare his soul.
Lombardi almost wept with sadness and frustration at what the government might still do to him. But the plan had to be there: if he were found guilty, Sam would read out before the court what he had written.
Reschenthaler thought it imperative that the many heroic deeds that Sam had undertaken be told to the judge before he passed sentence. But Sam would not agree. He said simply: “I am not allowed to speak of these things. No SEAL would.”
And in a truly heartbreaking moment, right there in that Baghdad courtroom, facing ruination, he just reminded Reschenthaler that SEALs are silent professionals and do not discuss their trade.
“I can’t do it, Guy,” he said. “I just can’t.”
“Not even now, perhaps to save yourself?”
“Not even now,” said Sam. “Not even now.”
Carmichael and Reschenthaler moved outside to get on the phone to call Matt McCabe’s right-flank point man, Eric, who had left the Navy and became a medical student. Over the phone he regaled the two attorneys with anecdote after anecdote about Sam, and they both thought that, if their luck held, they had a chance to get him off with a letter of reprimand.
In less than two hours they returned to the courtroom, where Sam was sitting stoically awaiting his fate. And then the jury returned. Everyone arose from their chairs. And when the jury was seated, Judge Carlos asked, “Does the jury have a verdict?”
The senior member stood up and replied, “Yes, sir.”
And now the bailiff stood up and walked over to collect the “findings worksheet,” a set of directions on which the jury had checked either “guilty” or “not guilty” to the various charges against Sam.
Judge Carlos read them and said, “Very well, bailiff. Hand this back. And now, when you’re ready, the senior member may stand and read your findings.”
The jury leader immediately stood. And so did everyone involved in the case. By his own admission Reschenthaler recalls a state of grace with which he was not normally accustomed: “My legs felt like Jell-O,” said the former marauder of the mat.
And now the juryman spoke: “On all charges and specifications, we find the accused ... not guilty.”
Reschenthaler and Lombardi froze. Sam almost went into shock with relief. And Carmichael leaned over and shook his hand. Sam reached out for Lombardi’s hand. And behind them the room erupted—as near as possible to an outburst of joy from a court-martial as traumatic and cruel as this one had been.
Even Judge Tierney Carlos smiled as he congratulated the jury on a job well done and then dismissed them.
By now everyone was shaking hands. The entire courtroom was ecstatic. Even Weston just sat there and clapped his hands, nodding his head. And then strangely, when the courtroom was emptying, he grabbed a broom and started to sweep the gallery.
Sam Gonzales, with gigantic understatement, said quietly, “This is a big weight off my shoulders.”
The only man on the entire base who was still in the throes of fear and depression was Jonathan Keefe, who had been in his room alone all day, staring at the ceiling. But within a few minutes of the verdict there was a loud knock on his door, followed by the excited voice of Matthew McCabe trying out one of the worst jokes in the history of the world: “JON! JON!” he yelled, “They’ve found him guilty. They’re talking about a firing squad.”
At which point Jon read straight through his buddy’s antics and began to laugh. Then Matt went real and told him: “Sam’s been found not guilty. Not one juror voted against him. The lawyers crushed it. All the defense witnesses did a fabulous job. We’ve had a blow-out victory!”
“When he finally opened the door, he couldn’t find me,” said Jon later, “because I was way up there, on cloud nine. And God was in his heaven.”
They were, however, denied much of a celebration, because Jon was due in court on similar charges the very next morning. But two major clouds had been lifted: the one of almost permanent injustice that had hung over them all since last September, and the one that was full of ash and cinders that had now veered east and allowed McCormack to take off from Amsterdam and finally make it to Baghdad.
Jonathan Keefe and Paul Threatt borrowed a vehicle and drove out to the airport to meet him, and they conducted a detailed strategy session in the hours before Sam’s celebration dinner, such as it was.
This took place in the on-base Army cafeteria, and all of the defense team and witnesses were there. But it was quiet and calm, because the defeated prosecutors were also there at a nearby table in the chow hall. And no one wanted to indulge in obvious triumphalism. Besides, this was a victory that needed to be repeated on the morrow.
And now McCormack prepared to take over the helm, as he was completely up to date with the proceedings in the first trial and had given due consideration to Judge Carlos’s mind-set.
McCormack understood that for many hours the judge had sat through the SEALs’ evidence, and by this time he understood that he could show that Westinson was unreliable and that Al-Isawi was at least as big a liar as everyone had suspected. Those were the official opinions of Sam’s jury, who believed neither of them in their unanimous “not guilty” verdict.
Judge Carlos had heard it all and, in McCormack’s opinion, had agreed with it all. And in the back of his mind there was a feeling of disquiet, the long road ahead that would involve making a case for Jon and wheeling out all the witnesses the judge had already heard, explaining everything to a new jury.
However, along the corridor of the building where they were staying Threatt was experiencing very similar doubts. He and Reschenthaler were burn
ing the midnight oil agonizing over that same quandary. Reschenthaler was helping out voluntarily as a well-wisher and adviser, having fought a front-rank courtroom battle with the terrorist the previous day. And he believed to the bottom of his heart that the three SEALs were innocent.
In his combative mind, that road—resurrecting everything to a new panel—was not a good plan because these jurymen, hearing the allegations for the first time, would require an endless amount of “nursing” through the evidence. Threatt, vastly more experienced than Reschenthaler and pretty combative himself, also believed the correct route for Jon and his defense team was to go “judge alone,” dispense with the jury, and throw themselves on the mercy of Judge Tierney Carlos.
And now, long after the midnight hour, both Threatt and Reschenthaler trooped along to McCormack’s miniscule bedroom to find him with about four thousand documents all over his bed. Threatt explained his thoughts, and the veteran courtroom warrior from Virginia Beach immediately agreed.
As the paid civilian lawyer and lead counselor, he would, in the final reckoning, make the formal call to remove the jury. But he stressed that Jonathan himself had to be on board and in agreement.
“Well, he’s asleep,” said Threatt.
“Wake him up,” replied McCormack.
At which point Threatt and Reschenthaler walked over to Jon’s room and did just that. And soon all four of them were in McCormack’s overcrowded bedroom, sitting on the bed, surrounded by trial documents, and explaining to the big Navy SEAL why they wished to make this sudden last-minute swerve from the traditional path of a court-martial defense team.
The six-foot four-inch breacher listened carefully and then said, “Let’s go for it.” He might have been about to storm a terrorist stronghold.
Once this was clarified there was still much to decide. And here McCormack made a brilliant call: he elected to call no witnesses. In short, he decided not to present a case to the court but to let the prosecution get on with it and try their luck at presenting to the court a case that had been shot full of holes less than twenty-four hours previously.
Both Threatt and McCormack considered the difficult position of the judge. If they presented a strong case for the defense, he would be in a situation in which he personally had to find against the prosecution and would thus be compelled to rule against the military brass who had continually allowed this case to proceed.
By going “judge alone” and not presenting any case for the defense, they offered Judge Carlos the strong and correct procedure of finding that there was not sufficient evidence to sustain a guilty verdict, not enough evidence to cast aside the issue of reasonable doubt, and little alternative except to uphold the universal assumption of “innocent until proven guilty.”
By allowing the prosecution to stand or fall, McCormack and Threatt made an awkward issue for the judge into a relatively simple one—provided, of course, that Al-Isawi presented his customary volume of lies.
It was, of course, an unusual step—electing to be heard by the judge only. Indeed, it was only the second or third time out of hundreds of military trials in the past twenty-eight years that McCormack had taken such a route. At least it was in a trial as fiercely contested as this.
But Judge Tierney Carlos had been looking skeptically at this court-martial for many weeks. He had found for the defense over and over in various motions and points of law. And yesterday, in his own courtroom, a six-man naval jury had delivered a “blow-out” verdict of not guilty, which more or less put the US Navy in line with hundreds of thousands of Americans who believed the case against the SEALs should never have been brought.
McCormack was a renowned jury lawyer—a silver-tongued, passionate advocate, adroit at swaying any jury to his point of view. But this was different. He was sure of his ground, and Petty Officer Keefe and Navy JAG Threatt were with him.
They would leave it to the judicial expert on the case, Judge Carlos, who had not let them down in any way thus far.
McCormack decided not to disclose this change in forum until the morning of trial, and as expected, it threw the prosecution off base, as they found themselves now trying to persuade a senior JAG that the previous trial had been “unsafe” and that Jonathan Keefe, the breacher from Virginia, was guilty as charged. And they were extremely pressed for allies.
And McCormack had his heavy guns primed. When Jonathan Keefe’s trial began in the morning, McCormack would reserve his most telling barrages for Westinson. In his opinion Reschenthaler had so utter discredited the terrorist that he scarcely mattered. Whatever he said, it no longer counted.
The specific task of Jon’s defense team was to remove once more the master-at-arms as a dependable voice for the prosecution, as Carmichael and Lombardi had done for Sam Gonzales. And the decision to go with Judge Carlos quickly proved to be a master stroke. The prosecution were instantly on the back foot, forced to shelve speeches designed for a jury.
And McCormack was about to give one of his finest military trial performances in the court of a judge who had not yet shown any significant sympathy to the men who sought to ruin the three SEALs.
On the morning of the trial he was accompanied by Lieutenant Paul Threatt, who had stood so doggedly alongside Jon from that very first phone call from Norfolk to the Qatar Base. Neither attorney had ever doubted Jon’s innocence, and McCormack in particular, after his long wait in Amsterdam, was fired up for confrontation.
As for the prosecution, there was an understandable lack of steam, at least it seemed so to McCormack. Their situation was simple to understand: the jury in the previous case had not believed what Al-Asawi had alleged and had not believed Westinson. That jury believed both of them were lying. In fact they probably thought that everyone in the courtroom believed both of them were lying.
And here they were again, trying to convince the very same judge that yesterday’s not-guilty verdict for Sam Gonzales was actually a mistake and that Al-Isawi and Brian Westinson were, after all, shining beacons of truth.
Tough call. And in McCormack’s opinion there was a distinct lack of zing in the prosecution’s opening attempts to inform Judge Carlos that Navy SEAL Jonathan Keefe, a striking figure in his dress blues and combat decorations, was a liar and was derelict in his duty.
There was an irrelevance to Al-Isawi’s appearance, but when Westinson took the stand, here was the real target. And when McCormack rose to begin his cross-examination of the young master-at-arms, the crowded courtroom took on an entirely new atmosphere.
Armed with a crisp legal summary of all prior statements, McCormack came out swinging from the opening bell, and he wanted to know precisely why Westinson had denied seeing anything when Lieutenant Jimmy first questioned him. He rapid-fired questions at MA3 Westinson, not being particularly interested in what he had to say in response.
How come you saw nothing that time, and then saw every SEAL on the base banging away at Al-Isawi?
I think we’ve established you were lying—I just want to know when? Which time?
Could you just explain to me how you went from seeing nothing, knowing nothing, to witnessing this apparent gang of Navy SEALs all attacking the detainee, one after another, abusing him, right before your eyes?
Sarcasm almost enveloped the courtroom as McCormack reminded MA3 Westinson that he’d claimed the two-and-a-half-ton holding cell was “rocking when the SEALs were beating up the detainee.”
And then the classic line from the previous day was of course repeated: Al-Isawi had no marks, with the only minor injury being the abrasion on the inside of his lip, which the oral surgeon had said, categorically, was self-inflicted. If this had been a championship bout, the referee would have stopped it. Either that or the government’s corner men would have thrown the towel into the ring.
By the end of that cross-examination McCormack was confident. The master-at-arms, he believed, was suitably discredited. McCormack stressed the probability that Westinson had essentially made up his story to cover his
own rear end. He had, after all, been alone with the detainee, and when Lieutenant Jimmy finally saw the small cut on the Iraqi’s lower lip, Weston had decided to give himself a custom-made alibi.
McCormack’s presentation of this theory was relentless. And although spectators, both media and Iraqi officials, might have thought they were seeing a skilled and pugnacious American attorney merely bullying a witness, they were not. Instead, they were witnessing the pent-up fury of a veteran lawyer who believed to the bottom of his heart that Jon, Matt, and Sam were the innocent victims of an enormous error of judgment and a virago of lies and false accusations. He believed the military had treated them all disgracefully.
And he was fighting for them with all he had. This was not the venom of a professional trying to win a case; this was a cry from the heart, a demand for Judge Tierney Carlos to put this right. And there would be no mercy for anyone trying to stop him. McCormack was ruthless with MA3 Brian Westinson, and he did not care who witnessed his performance.
He bounced his questions forward and then back, keeping MA3 Westinson off his guard and wanting to know, above all else, why the story changed over time, from knowing nothing to the final version.
He was particularly vehement over Westinson’s account of how Jon and Sam had started laughing, and how Jon had gone outside for “a big log,” which later became a “little stick.” And how the SEAL breacher had stood over the detainee, making a “growling, roaring” noise trying to “psyche out” the detainee.
He demanded definitions for the words “growling” and “roaring.” He wanted to know how big the log/stick was, to the inch. He bounced back to the times the detainee was without a guard, when Weston had left for short periods. He wanted to know if anyone else could have committed an assault.
That was one very confused master-at-arms when McCormack was all done with him. And the attorney was so confident that he immediately told Jon that there would be no need for him take the stand and testify. The defense would rest without presenting any substantive evidence, just as they had planned in the small hours of the morning on the cluttered bed of the lead counselor.
Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the Butcher of Fallujah -and the Shameful Ordeal They Later Endured (9780306823091) Page 35