Jefferson nodded, though I was confident he didn't understand.
"Listen," I continued. "We win by attacking the prosecution's witnesses. Their memories, their motives, their credibility. We win by pinning this on the CIA. We make a big deal out of the missing evidence. That is how we win. That is how we raise reasonable doubt."
"What about our case?" Jefferson slumped in his chair. "Who are we calling as witnesses?"
"Nobody," I said. "We win this case on cross-examination. We attack, attack, attack. We force them to defend. It's difficult to prove a case beyond a reasonable doubt, especially when you're on the defensive. The more we attack, the more Paine has to defend. The more he is forced to defend, the stronger we become." I was dangerously close to believing my own bullshit.
Chapter 66
Colonel Antonio Bertram Gianelli, "Tony" to his drinking buddies, was a stout man with hams for hands and a 50-terabyte computer for a brain. A West Point graduate with a crackling competitive streak, he continually defied stereotypes. Though built like a nose tackle, a position he played fiercely and well in high school, Gianelli opted to pursue more esoteric extracurricular activities at the Point, playing oboe in the Academy's Concert Band. While his classmates manned the howitzers for the cannonade during the "1812 Overture," Gianelli steered through the passages of Tchaikovsky's most recognizable work with a facility that brought looks of wonder from his fellow performers.
Perhaps it seemed odd that a master musician was best known in military circles for his proficiency with a pool cue. Many a young JAG lawyer, and more than a few senior officers had retreated from an evening of nine-ball with "Tony the Stick" Gianelli searching their wallets in a vain attempt to find enough scratch to catch a taxi home.
From the beginning of his time at West Point, Gianelli had designs on the law. He'd excelled in the classroom in every subject but was particularly adept at anything involving research, oratory, and writing. Upon graduation, Gianelli was commissioned as a Second Lieutenant in the Armor Corps, where he commanded an M1-A1 Abrams Tank. He'd served his six-year service obligation at the top of his peer group.
Half a dozen years after graduation, Gianelli left the world of combat arms and went to William & Mary Law School. Thirty-six months after that, he made the Army JAG Corps his lifelong home.
This morning, I would face Judge Gianelli for the first time. I hoped he was better than Judge Rake. I glanced around the room, and the scene was depressing. The preening paralegals sat behind the prosecution table, notebooks at the ready. On our side, Jefferson appeared gaunt and disinterested. Reggie occupied the last chair on the back row behind me, and Rose mirrored his position in the front row.
On cue, we all stood for the new judge. "This general court-martial is called to order." Gianelli's baritone voice carried absolute authority. No one questioned who was in control. "Counsel," Gianelli continued. "Please announce your qualifications for the record."
Paine slowly stood and straightened his tie before speaking. "Colonel Covington Spencer Paine for the prosecution, Your Honor." Paine acted so much like Neidermeyer from Animal House, I wanted to laugh. He started to introduce his team as if they were the Twelve Apostles at the Last Supper.
Gianelli interrupted him, "Colonel Paine."
"Yes, Your Honor?"
"Do you have the court-martial script in front of you?" Gianelli asked, peering over the bench.
"Ah, no. I don't need it."
"Yes, you do," Gianelli said, "This is not an improv class. Under the Uniformed Code of Military Justice, we follow a script for a reason, so that things run smoothly." Gianelli tapped his gavel. "This court is in recess until the Senior Prosecutor finds a script." Gianelli stood and exited the courtroom.
Paine turned to Major Weiss. "Where's my script? Find me a script. Now!" Embarrassment made his voice higher and faster. He sounded like a chipmunk on meth. Weiss, Nelson, and Bronson pawed through binders and boxes of documents while Paine neurotically clicked his ballpoint pen.
"Hey, Colonel," I said. "I have a script you can borrow." A discernible giggle rolled across the gallery. I crossed the courtroom and dropped a stapled stack of papers on Paine's desk. "Here you go," I said. "But I'm going to need it back." I returned to my desk. No one but the bailiff could see me smile. Behind me, I heard papers flutter through the air.
"I don't need your help," Paine snarled. I left the papers on the floor in front of Paine's table. I sure as hell wasn't picking them up.
Then, the bailiff knocked twice on the door, and Gianelli reentered. "All rise."
"Please, be seated," the judge said. "Colonel Paine, put your qualifications on the record."
Paine and his team continued to excavate. The only sound was the flurry of shuffling documents. "Your Honor, I need another moment to find the script," Paine said.
Gianelli removed his glasses and squinted. "What is that?" he asked, pointing at the floor. No one answered. "Trial Counsel, why are those papers on my courtroom floor?"
"Those are Captain O'Donnell's," Paine said.
Gianelli shifted his gaze toward me. "Is that true, Captain O'Donnell?"
"Yes, sir."
"Pick them up, now," Gianelli said. I stepped from behind the table and walked toward the papers. I saw Paine smirking from the corner of my eye. As I bent over to retrieve them, the court reporter whispered into Gianelli's ear. The judge's head jerked up. "Captain O'Donnell." I froze. "Put those papers back on the floor and return to your seat." Gianelli slowly pivoted toward Paine, like a leopard preparing to pounce on its prey. "Colonel Paine, on your feet." Gianelli's voice sent a shiver down my spine. Paine snapped to attention, and the courtroom fell silent.
Gianelli continued, "You are an Army officer and a graduate of West Point. Yet, on the first day of trial, you came into my courtroom unprepared and trashed it. Then, you disrespected a fellow lawyer and officer. You should be ashamed of yourself. Now, apologize to Captain O'Donnell."
Paine turned to me and said, "I apologize."
"Apology accepted." I managed not to smirk.
"Now, pick up those papers and read them," Gianelli said in a commanding voice. Paine walked around his desk, picked up the script, and began reading. His voice cracked, whether from outrage or a bruised ego, I couldn't tell. Gianelli addressed me when Paine finished. "Captain O'Donnell, please announce your qualifications." I stuck to the script - read it verbatim. "Thank you, Captain," Gianelli said. "Now, is there anything else we need to take up before we call the panel?"
"Yes, Your Honor," I said. "The defense moves this Court to compel the production of a witness who goes by Mr. Johnston-"
"Objection," Paine interrupted. "This is classified. I suggest we close these proceedings and reopen them in a classified setting."
"Very well." Gianelli nodded. "This hearing is now closed to the public." No one in the gallery moved. Gianelli smiled and addressed the courtroom, "Members of the audience, please collect your belongings and step out of the courtroom. I have to conduct some classified business with the lawyers. I will reopen the Court when we finish discussing classified material, and you can come back in to watch."
After the onlookers departed, I outlined my request. Then, Judge Gianelli asked Paine, "Is this witness, Mr. Johnston, a Federal employee?"
"He's an OGA," Paine said.
"A what?"
"An OGA. He works for an Other Government Agency."
"What specific agency did he work for?"
"I'm not at liberty to say."
"Interesting," Gianelli said. "Because a CIA lawyer, Ms. Carolyn Reynolds, called my office this morning. She left a long message on behalf of the Central Intelligence Agency. Somehow, she knew all about what was going to happen in my courtroom this morning - even before I did. She requested that I block Mr. Johnston from testifying. I found her ex-parte interference with this case quite troubling and inappropriate. So, it appears that Mr. Johnston works for the CIA. Colonel Paine, do you dispute that?"
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p; "I can neither confirm nor deny that," Paine said.
Gianelli removed his glasses and placed them on the table in front of him. "Don't play games with me. Mr. Johnston, sure as heck, does not work for the Environmental Protection Agency. The CIA wouldn't be calling me if he did."
Paine's shoulders slumped. "Yes, Your Honor."
I sat back in my chair, watching my opponent on the ropes.
"I'm taking judicial notice that Mr. Johnston works for the CIA," Gianelli said. "Now, why did you refuse to subpoena him?"
"He is not relevant," Paine said.
"He's not relevant?" Gianelli raised his eyebrows and leaned forward. "According to a motion filed by the defense, Mr. Johnston removed Hamza Nassar from Sangar Prison on 8 August 2002, and never returned him. Sergeant Jefferson allegedly killed Nassar on 20 September 2002, in the prison. I think Mr. Johnston has some explaining to do? Don't you?"
Paine picked up his notepad and read, "First, the charge sheet says, 'On or about 8 August 2002.' The jury may find that Nassar was murdered on a different date. Second, Mr. Johnston told me that he doesn't know Sergeant Jefferson, and he never issued any directives to any U.S. soldiers. He has no recollection of ever visiting the Sangar Prison." Paine flipped the page and continued reading, "Mr. Johnston never authorized, directed, or attempted to order any military personnel to behave in any manner toward any detainee at the Sangar Prison. Therefore, Mr. Johnston has no relevant testimony or evidence on the matters at hand. His production would only lead to testimony that is irrelevant, confusing to the panel, and a waste of government resources."
I knew Johnston had been present at Sangar Prison, and I had the documents to prove it. It would be game over if he took the witness stand and denied ever being in the prison. I could easily prove that he removed Nassar from the prison and lied about it.
Paine sat down, and the judge turned to me. "Defense, what is your position?"
"Mr. Johnston is an alibi witness. He had control of Nassar at the time of the alleged murder, and my client did not."
Judge Gianelli nodded at me and addressed Paine, "Anything else?"
Paine was caught off balance. "I strongly urge you to deny this witness. It's a matter of national security. Requiring Mr. Johnston to testify could cause irreparable harm to the United States."
"Now it's a matter of national security?" Gianelli said. "Before, you said Mr. Johnston was not relevant. Which is it?"
"Both," Paine replied.
"Captain O'Donnell," Gianelli said, "the burden of proof is on you. Do you have any evidence to support your proffer?"
"Yes, Your Honor." I pulled a manila folder from my briefcase, removed two sheets of paper, and walked to the court reporter. I'd like to have these marked as Defense Exhibits A and B."
"Please show a copy to the trial counsel," Gianelli said.
I walked to Paine, who was standing with his hands on his hips. "Here you go," I said, handing him the exhibits.
Paine snatched the papers from me and scanned them. He shook his head as he flipped back and forth between the pages. "This is outrageous." Paine tossed the papers on his desk like they were contagious. "I object. This is trial by ambush. I've never seen these documents before. How do we know they are authentic? These could be fabrications."
"Let me see them," Gianelli said, motioning me forward. I handed him a copy. His eyes widened as he studied the papers. "Captain O'Donnell, where did these come from?"
"The prosecution provided them in discovery. "
Gianelli nodded. "How do you plan on authenticating them?"
"By calling Mr. Johnston to the stand," I said.
"For the record, what's your theory of relevancy?"
"These documents prove that Mr. Johnston removed Nassar from Sangar Prison on 8 August 2002. According to the charge sheet, Sergeant Jefferson killed Nassar on 20 September 2002. This is proof that Nassar wasn't in the prison on the date of his murder. It's exculpatory and highly relevant."
Gianelli smiled. "I would agree."
Paine was like a puppy with a slipper; he wouldn't give up, even though everyone in the room knew he was wrong. He rambled for a few minutes before sitting down in a huff.
Judge Gianelli made his ruling, "I hereby order the production of Mr. Johnston. His testimony is material and relevant to this case. If portions of his testimony are classified, we will cross that bridge when we get there." Finally, a win for us.
The joy was premature and short-lived. Within an hour, the President of the United States signed an Executive Order declaring Johnston indefinitely unavailable because his testimony "would cause irreparable harm to national security."
Chapter 67
After a lightning-fast jury selection, we had a panel, the Army word for a jury. Five officers, four enlisted. Seven men, two women. A blend of ages, ranks, and backgrounds. They were all experienced soldiers and combat veterans, each one looking progressively more grizzled than the last. The panel president was a crusty Special Forces Colonel with more ribbons than I could count. They all had something else in common: None of them wanted to be here.
As they entered the room, each one of them eyeballed Jefferson from head to toe, no doubt inspecting everything from his medals to the shine on his shoes. In front of Jefferson, a nameplate read, "The Accused." I was sure they were all wondering, "What did this poor guilty bastard do?" After all, innocent men usually don't find themselves in a court-martial.
Jefferson leaned over and whispered, "What a bunch of hardasses."
He was spot on. After the jury settled into their chairs, Judge Gianelli advised them that the prosecution had to prove their case beyond a reasonable doubt and that the burden never shifted to the defense. Then, Gianelli gestured to Paine. "Trial counsel, you may present an opening statement."
Paine oiled his way over to the jury and commenced reciting his opening. "On a dark night, in Sangar Prison, the defendant, Sergeant Tyler Jefferson, beat, tortured, and murdered a detainee in the custody of the United States, Mr. Hamza Nassar-"
In the 1964 movie, Robin and the 7 Hoods, a chagrined, outmanned, and outgunned criminal, played by Frank Sinatra, listens to a suave Dean Martin's plan for revenge. With his fedora rakishly tilted to one side, Martin offers his own brand of Chicago-style wisdom: "When your opponent's sittin' there holdin' all the aces, there's only one thing left to do - kick over the table."
I took a deep breath - and stood. "Objection, Your Honor. Hamza Nassar is not dead." The jurors perked up. Some seemed confused, others surprised, the rest shot me ice-cold stares.
Paine's cheeks reddened, and his eyes bulged like he'd been kicked in the groin. He sputtered for a moment. "Your Honor," Paine said, almost a whine. "He interrupted my opening."
Gianelli remained stoic. "The basis of your objection, Captain O'Donnell?"
"But-" Paine continued.
Gianelli held up his hand and peered over the reading glasses that sat at the tip of his nose. "Colonel," he said, "someone objects. I listen. You respond. I rule. Got it?" Paine nodded. In the first 10 minutes, Judge Gianelli was already better than Judge Rake. "Captain O'Donnell," Gianelli said, "what is the basis of your objection?"
"Your Honor, the Government has charged murder, but there is no corpus delicti - no dead body," I said. "Other than a highly questionable autopsy report, the Government has made no offer of proof that Hamza Nassar is, in fact, dead. We have a good faith basis to believe that Nassar is still alive, or he was when he departed Sangar Prison."
"Your Honor, this is unprofessional and inappropriate," Paine said.
Judge Gianelli calmly addressed the jury. "Members," he said, "opening statements are not evidence. It is what the attorneys expect the evidence to be." Then, he addressed me. "Captain O'Donnell, you'll have your chance to address the jury soon. Objection overruled."
Whether I gained or lost any points with the jury was anybody's guess. I hoped, at a minimum, I had planted a seed in the back of their minds. One thing was for sure: Pain
e had lost momentum. He limped through the remainder of his opening and took his seat.
I kept my opening statement short and focused. "Sergeant Jefferson is not guilty. He did not abuse, torture, or kill anyone. These are serious accusations, and they must be proven beyond a reasonable doubt. The prosecution's case is based on speculation, on assumptions. Their case rises and falls on the testimony of known liars. Witnesses who have been promised immunity in exchange for their testimony. Witnesses that cannot be trusted."
I paused for a moment and made eye contact with each juror. "The alleged victim, Hamza Nassar, is a violent man. At Sangar Prison, he attacked American soldiers and seriously disfigured two of them during an escape attempt. All the guards despised him. All of the guards had access to him. Many of the guards had a motive to beat him. Nassar was kept in a special section of the prison designed for the most dangerous terrorists."
"Objection," Paine said.
"Sustained," Gianelli ruled. Some of the jurors appeared confused.
I continued unfazed, "This alleged victim was housed in a section of the prison designed for the most dangerous inmates, where he was repeatedly interrogated by civilian intelligence agencies, behind closed doors. On 8 August 2002, Hamza Nassar was removed from Sangar Prison by a civilian intelligence agency, a month before Sergeant Jefferson allegedly killed him."
"According to the charges." I held up a thin stack of papers. "Sergeant Jefferson allegedly beat and killed Nassar on 20 September 2002." I slowed down for effect, "Nassar wasn't in Sangar Prison on that day. He was long gone. Where was he? Who knows? But we do know that he was never in Sangar Prison after 8 August 2002."
I placed the papers on the podium in front of me and delivered my final lines in a slow, methodical rhythm. "If someone beat him, it was not Sergeant Jefferson. If he is, in fact, dead, Sergeant Jefferson didn't kill him."
"Members of the jury, Sergeant Jefferson did not beat, torture, or kill Hamza Nassar. They cannot prove it because it did not happen. Before jumping to conclusions, wait until you've heard all the evidence." I turned, took my seat, and waited for the prosecution's first witness.
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