In other words, being in an Article 32 hearing was a little bit like being a gunslinger in a long-distance pistol shootout. You had no real expectation of hitting anything, but you paid very close attention to the bullets whizzing by.
CHAPTER 19
Early the following morning, Tracy set her coffee on the Formica table and slid into the leather seat across from Shaniqua Miller and her mother.
“Are you sure I can’t get either of you a cup of coffee?” she asked.
They both again declined.
Their demeanor since they’d boarded the ferry had been polite but reticent. Neither had displayed much emotion or had said much, and Tracy had no doubt their reservation was with her and the judicial system. Tracy had not been able to offer any words to alleviate their concerns or to convince them that things would be different.
Shaniqua Miller, in a black suit and dark-blue blouse, folded her hands on the table. Her mother, seated beside her, also wearing black, directed her gaze out the ferry windows, which were spotted with rain. In the booths around them, D’Andre Miller’s uncles, aunts, and the pastor from their church, also dressed in dark-colored suits and dresses, solemnly considered the heavy cloud layer, falling rain, and Elliott Bay’s slate-gray waters.
It made Tracy think of Dan, how he liked to take the dogs for a walk on winter mornings and come back broadcasting a stilted local weather forecast. “This morning it will be gray, followed by more gray, with a burst of gray in the evening.”
For Shaniqua Miller, less than a month removed from D’Andre’s death, Tracy suspected from experience that her view of the world would be gray for quite some time. Following the disappearance and presumed death of her sister, Sarah, Tracy’s world had become a black-and-white photograph, and it had taken nearly a year before even a glint of color pierced her bleak tapestry. Even now, more than two decades removed from that horrible event, there were days when the gloom descended—so heavy it was difficult for her to find the will to get out of bed, and nothing alleviated that sorrow.
So Tracy knew she could not say anything to the two women to minimize their distrust; nothing she could say to reassure them, calm their nerves, and alleviate their concerns. All she could do was act as a liaison between them and the judicial process, to be available to answer their questions, and to guide them if they needed guiding. So far they hadn’t, or they hadn’t wanted any. They had erected a curtain as thick as the cloud layer to protect against any more pain, and turned instead to each other and their unshakable faith in God for comfort. Tracy was not a part of their lives, and she could not pretend to be. And she had never received the gift of an unwavering acceptance of God’s will. All she had to offer them was her experience, and her hope that the Navy had assumed jurisdiction to mete out punishment.
“I spoke to Brian Cho yesterday afternoon,” Tracy said to break the uncomfortable silence.
“He called,” Shaniqua offered, but did not elaborate on their conversation.
“He sounds well prepared for the hearing,” Tracy said.
“But it’s just preliminary,” Shaniqua said. “He said there will still be a general court-martial, likely not for months.”
“That’s my understanding,” Tracy said. “Unless Trejo pleads.”
Shaniqua’s mother gave an audible sigh and looked over the top of her round wire-rimmed glasses, but offered no words.
“What will be your role at the hearing?” Miller asked.
“I’ll testify about what Mr. Trejo said when my partner and I interviewed him. I’ll also explain where we found his car and the results of the interior search.”
“The receipt you found,” Miller said.
“Yes, and the evidence that someone tried to wipe down the car to eliminate fingerprints. I’ll also testify about the cut on Mr. Trejo’s forehead.”
“But the hat he wore in the video, the prosecutor said it will prevent you from proving the cut occurred during the accident.”
“Yes, but the blood found inside Mr. Trejo’s car is circumstantial evidence that he was driving the car when it hit your son.” She didn’t want to overcomplicate things. “But really, the videotape from the convenience store should be enough for the preliminary hearing officer to find probable cause.”
Shaniqua Miller’s gaze drifted to the window. A seagull glided on the wind current created by the moving ferry. After a minute, she turned back to Tracy. “The prosecutor said Mr. Trejo will likely plead after the hearing?”
“He told me that also.”
“Do you believe that?”
“I don’t know,” Tracy said. “I think it’s possible the defense attorney might try to attack the video somehow and keep it out of evidence. It’s the only thing I can think of for why Mr. Trejo hasn’t pled.”
“I keep thinking, if he was going to accept some plea deal, he would have done so already,” Miller said.
Miller’s mother raised her eyes and stared at Tracy. That had apparently also been on her mind.
Miller, no longer trying to hide her distrust, said, “I mean, he’s seen the video, hasn’t he? So why hasn’t he admitted he’s guilty? Why do we have to go through this hearing?”
“I don’t know,” Tracy said, and she didn’t. In her experience, in a situation such as this, the defense counsel would be seeking a plea for her client. Maybe Leah Battles was waiting until after the Article 32 hearing. Or maybe she did have an argument to keep out the video and wanted to give it a try. There was no harm in waiting, hearing all the evidence, especially if her client was actually being recalcitrant.
“Cho said this is a big case for the defense attorney, that she may want to push her chances of defeating him,” Miller said. “Did he tell you that?”
“He did,” Tracy said.
The grandmother shook her head. Miller bit back a bitter grin. “It’s all just a big game, isn’t it?”
Again, Tracy had no words to console them. And, unfortunately, she knew firsthand that the judicial process would not bring them any satisfaction or relief. It wouldn’t bring back D’Andre.
She only hoped Shaniqua Miller would find some closure from the proceedings.
Leah Battles had resisted the urge to sleep in her office, and thereby set a dangerous precedent for a profession that lawyers could so easily wed. She’d once known an attorney who took great pride in telling others he frequently slept in his office, seemingly oblivious to the fact that, at forty, he was also still single. Given her own ring-free left hand, and the lack of anyone even remotely considering adorning that finger, Battles didn’t need any further help fueling the rumor mill inevitable for a woman in the military.
And no, she wasn’t gay.
Not that there was anything wrong with that—to quote a famous Seinfeld proverb.
She’d caught the 11:40 p.m. ferry home, slept a few hours, then caught an early ferry back to the office. Now, at just before 9:00 a.m. it was show time, and she was dressed for it. Lopresti had let it be known that he wanted counsel in dress blue uniforms, no doubt to impress the crowd, including the press. As a result, Battles was as spit shined, though hopefully not as incompetent, as a young Demi Moore in the movie A Few Good Men.
She made her way out of her office carrying notes in the event that she opted to cross-examine any of the witnesses, and a few other materials. The evidence to be introduced was kept in the custody of the court reporter, and today was largely going to be Brian Cho’s show.
She didn’t have a long walk. The courtroom was one floor above, through metal detectors. This morning, with the anticipated crowd, several MAs would also be present, as well as brig chasers, or prison guards. It would make for a tight fit. The courtroom was not like some of the grandiose state courtrooms adorned with marble and mahogany and lit beneath hanging chandeliers. Far more functional than ceremonial, the Naval Base Kitsap courtroom consisted of a gallery of just four benches, two on the right and two on the left, which accommodated all interested spectators—with room to spare,
in 99 percent of its cases.
Battles pulled open the door and stepped inside.
Not today.
The gallery overflowed, despite extra chairs, and the crowd made the room even smaller. With no exterior windows, the courtroom could quickly feel claustrophobic.
African American faces turned and considered Battles as she made her way to the railing separating the gallery. She caught sight of D’Andre Miller’s mother, and, presumably, relatives and other supporters. They did not look happy to see her. The detective, Tracy Crosswhite, sat with them, as did Joe Jensen. Battles had seriously considered excluding both from the hearing until after they’d testified, just to screw with them, but she didn’t see the point. She had the benefit of their official reports to keep them honest.
She walked the short aisle, pushed through the gate, and placed her materials on the desk to the right—dark wood but certainly not mahogany. Cho already sat at the desk on her left, his second chair occupied by Lindsay Clark, his assistant prosecutor and, according to rumors in the office, his latest conquest. They too were resplendent in their dress blues. Clark’s job would be, no doubt, to hand Cho evidence and otherwise look competent. As Battles stepped past the lectern between the tables and settled at the table on the right, Cho glanced up, as if surprised to see her. Then, as if to say, So be it, he shook his head and refocused on the task at hand.
What’s not to love about the guy?
Battles glanced at the empty jury box to her right. Today it would remain that way. At the front of the room, direct center, was the witness box. For some reason, the light oak chair, unadorned, always reminded her of Old Sparky, the electric chair in Stephen King’s novel The Green Mile. To its left was the judge’s bench; if elevated, it was a matter of inches, not feet. Recessed lighting spotted the United States and Navy flags, as well as two blue-and-gold disks hanging on the wall, the emblems of the Department of the Navy and the Judge Advocate General’s Corps.
Battles continued to arrange her materials, not that she had much. She did not intend to call any witnesses or introduce any evidence. This was Cho’s show. She was happy to just take it all in.
Free discovery. Never turn it down.
At minutes before nine, everything orchestrated, two brig chasers escorted Laszlo Trejo in from a door to the right of the bench. The murmurs in the gallery sounded like a low rumble. As instructed, Trejo seemingly took no note of them. He wore his work blues and looked like he’d slept little, bags beneath bloodshot eyes. Trejo, however, did not appear nervous, but that could have been because Battles had told him this was just a show for the court-martial, unless he pled.
Battles offered him the chair to her right, and he sat and faced forward, gaze alternately affixed on the tabletop or the blank wall behind the witness stand.
As soon as Trejo sat, the door to the left of the bench pulled open and the preliminary hearing officer, Sonya Rivas, entered in a black robe. Rivas, a lieutenant commander, was also a judge, which spoke to the seriousness of the allegations, and the Navy’s concern that the proceeding be handled with the highest decorum. Today, however, Rivas would serve as the PHO, the preliminary hearing officer. Rivas and Battles had a good working relationship, but there would be no special treatment because they shared the same gender. If anything, Rivas was harder on female JAG officers. She knew they had to be better than their male counterparts. Nor would there be any sympathy toward Trejo because Rivas was Hispanic. The only colors Rivas saw were red, white, and blue.
Cho had told Tracy during one of their telephone conversations that Rivas was a good pick for the preliminary hearing officer. He described her as organized, thorough, and conscientious, but not sympathetic. She certainly seemed to be all business as she sat and looked out over the gallery, wasting no time getting under way.
“Let’s go ahead and get started. This hearing will come to order.” She turned to Trejo and Battles and introduced herself. “By order of Commanding Officer Peter Lopresti, I have been appointed the preliminary hearing officer under Article 32 of the Uniform Code of Military Justice. We are here in court to inquire into the truth of allegations set forth on the charge sheet, to examine those charges, and to secure information that will be helpful in determining the disposition of this case. Copies of the charge sheet and convening order have been furnished to the accused and his counsel by government counsel. Have you reviewed them?”
“Yes,” Trejo said, voice so soft Rivas did not hear him. She looked up from her script—Cho had told Tracy the military was as big on scripts as it was on acronyms.
Trejo cleared his throat. “Yes, ma’am.”
“Petty Officer Trejo, if at any time you do not understand what I am telling you, let me or your counsel know and I will explain it until you and I are both satisfied that you understand.”
Rivas advised Trejo of the charges and said she would be making a recommendation to the commanding officer based on the evidence introduced at the hearing. “You do not have to make any statement regarding the offenses of which you are accused. You have the right to remain silent. You may, however, make a statement and present evidence in defense and mitigation so long as it is relevant to the limited scope and purpose of this hearing. If you do make a statement, whatever you say will be considered and weighed as evidence just like the testimony of any other witnesses. Further, any statement you do make may be used as evidence against you in a trial by court-martial. Do you understand my instructions?”
“Yes, ma’am,” Trejo said.
Rivas continued, “I will now read the charges against you.”
Battles slid back her chair, stood, and interjected, “We’ll waive the reading, Your Honor.”
Rivas nodded. “All right, thank you, Counsel.” Rivas looked to Cho. “It is my understanding that the government intends to call three witnesses at this preliminary hearing: Seattle Police Department Traffic Collision Investigator Joe Jensen, Seattle Police Detective Tracy Crosswhite, and Archibald Issa, owner of a convenience store in Renton, Washington.”
Cho stood, looking like he might bow. “That is correct, Your Honor.”
“All right.” Rivas looked out at the gallery. “Ladies and gentlemen, there may be testimony that is difficult for some, or all, of you to hear, or with which you don’t agree. While I am certainly sympathetic to your emotions, I expect all parties to respect that this is a court of law. If you fail to do that, I have the power to close this proceeding. I sincerely hope that won’t be necessary.”
Rivas set down her script and addressed counsel. “Are there any other preliminary matters we need to take up before we begin the substantive part of the hearing? Defense?”
Battles and Cho stood. Speaking in turn, they responded, “No, Your Honor.”
Rivas took a moment. Then she said, “Then the government may call its first witness.”
CHAPTER 20
Battles listened as Brian Cho dispensed with the preliminaries quickly and efficiently, in part because Joe Jensen, his first witness, made it easy. Having testified in court on numerous prior occasions, Jensen was at ease with the process. The relaxed evidentiary procedure had also convinced Battles to object sparingly, knowing Judge Rivas would be inclined to allow the testimony and that objecting would largely be futile.
Battles had met and interviewed Jensen, so she knew what was to come. Jensen testified in a deliberate but down-to-earth tone that engendered confidence and honesty. His deep voice, graying red hair, and two-piece suit gave him an air of authority. It was like Cho had put a Boy Scout troop leader on the stand.
Cho quickly went through Jensen’s current position with TCI, the fact that Jensen had been on call the evening of the hit and run, and the time he had arrived at the scene. Cho nodded to Clark, who fiddled with the keyboard of her laptop, and a grainy black-and-white photograph of the intersection, without the emergency personnel or the body, appeared on two flat-screen televisions. After establishing the picture was of the intersection and asking other
foundational questions, Cho asked Jensen to point out the locations of the vehicles and the emergency responders upon his arrival, and anything else he’d seen.
It was a subtle way to get Jensen to share the location of the victim and the other things they’d found, like Miller’s shoes and flip-flops.
Jensen said, “Near the body, a basketball lay in the gutter. Two Nike sandals were also in the street, and farther away, we located a pair of red Nike basketball shoes, laced together.”
A woman in the gallery moaned as if stricken with pain. Battles did not turn her head or otherwise react. She had been expecting the testimony to evoke emotion from the gallery, and had given Trejo strict instructions not to respond to any comments or noises. However, she also hoped that the emotional nature of the testimony might get Trejo to rethink the latest plea deal. Trejo had not so much as flinched since sitting down. Battles wondered if he’d been medicated.
Jensen testified that the body was thirty-three feet from the intersection, which he said was significant because his working hypothesis was that the victim had been struck in the crosswalk, and that the car had been traveling south to north on Renton Avenue when it crossed the intersection at Henderson Street. “This appeared to be a wrap, where the victim wrapped around the hood, hit the windshield, and was projected forward.”
“What did you do next?” Cho asked.
Jensen testified to his search for tire marks and not finding any.
“And in your experience, is the absence of tire marks significant?”
Battles wanted to object, but at an Article 32 hearing, only relevance and privilege objections applied. Cho was clearly asking Jensen to speculate. She knew Rivas would also give an expert investigator great leeway at the hearing.
“Normally, in a situation involving an impact, either with another car or, in this instance, a pedestrian, we will find tire marks indicating the driver of the vehicle tried to stop, or swerved. The absence of tire marks can be an indication that the impact was intended. It can be an indication that the driver didn’t see the pedestrian—either because it was dark, the driver was distracted, had fallen asleep, or maybe was under the influence of drugs or alcohol.”
Close to Home (The Tracy Crosswhite Series Book 5) Page 14