Probity

by Thomas Gatta

  Maddie nodded and said, “And that’s why you think you might sound pathetic?”

  “Yes. And I guess I am. I’ve been content with the crumbs.”

  “But not anymore?”

  “No.”

  “Then you’re not pathetic, are you?”

  Kate snorted, “Let’s just say I’m working on not feeling sorry for myself. Pity parties aren’t well attended.”

  “Nope. And, if it helps, I’ve been there. No one comes to the pity party but you.”

  Kate looked at Maddie and raised her eyebrows. “You? The brilliant young lawyer in the DA’s office?”

  Maddie rolled her eyes, “Yes, me, the not so bright Maddie, who almost dropped out of law school after my husband was killed in Afghanistan. Mike was an idealistic young captain who wanted to save the world, and he was blown apart by an IED.”

  Kate reached over and touched Maddie’s arm, “I’m really sorry Maddie. What did you do?”

  “I talked to my grandmother, who, in a lot nicer words, basically told me to suck it up and move on. And I got a dog.”

  Kate laughed. “What kind?”

  “A Corgi. I got her from the pound. She’s sweet, but she hates to run with me. Her legs are too short. And she’s not much of a watchdog. Mostly she just watches the refrigerator.” Maddie paused. “And also pizza commercials.”

  “Well, maybe I need to suck it up, move on, and get a dog, too. Let me think on it. Can I come to your office tomorrow? I know it’s Sunday, but I have something you might be interested in.”

  “Sure. I’ll be there most of the afternoon. I’ll let the guards downstairs know to let you in.”

  Kate got up off the bench and picked up her water bottle. “Thanks, I’ll see you then. And thanks for the protein bars. I need your recipe. Yours are a lot better than mine. Bye now.” She waved to Maddie and started jogging slowly back along the path as Maddie watched.

  - 31 -

  Kate certainly hadn’t expected to run into one of the prosecutors for Sean’s case. She’d chosen to drive down to Mount Vernon and run along the Potomac because it was a beautiful fall day and she figured that, unlike if she ran in Reston, she wouldn’t see anyone she’d know. Oops.

  Nor had Kate reckoned on liking Maddie, but the attorney had turned out to be quite nice. Kate had gotten the feeling that Maddie had meant what she said about helping her. Still, Kate wasn’t convinced that she should tell the prosecutors everything she knew about the case. No one knew it all. Certainly not about the rape.

  Kate made a cup of tea and took her mug with her into her living/dining area along with her recording equipment and laptop. She sat at the table and sipped her tea, looking out the window at the changing leaves on the nearby trees. After a few minutes, Kate got up, went to the kitchen, and pulled out the recording she’d made of Sean’s calls to her the night before. She took it back to the table, started up her laptop, and burned the calls onto two separate disks. One she returned to the tea canister with the original. The other she tucked into an envelope, which she addressed to David Craddock on the Senate Oversight Committee Staff. Then she stamped the envelope, put on her jacket, and walked to the post office to mail it.

  - 32 -

  Rick Davis collected his material on the jurors for the Bennett prosecution and readied folders for the prosecutors, Sommers, and DA Cohen. His digging hadn’t yielded huge amounts of information, but he thought that what he had found would interest the prosecution team.

  Rick assessed that half the jurors would be conservative, law-and-order types. They most likely would be in favor of the SU and the defendant. A couple of those six, Vivian Markham, a socialite housewife, and Ted Walker, a Homeland Security employee, appeared to be ultra-conservative. Their neighbors reported that Markham and Walker were Tea Party sympathizers.

  Several other jurors had backgrounds that suggested they also would look kindly on the defendant. Ralph Peters was a retired landscaper, had served briefly in the military in Vietnam and had a son who was a navy warrant officer. Mary Rodgers was a retired secretary. She was married to a retired Baptist minister. They had one son who was a police officer in Greenville, South Carolina. Ben Hernandez worked for the Department of Labor and seemed apolitical. Still, years ago he had he had gotten his degree from University of Texas thanks to a GI bill. Mike Jablowski was a FedEx delivery man. He didn’t seem to have any ties to the military or police, but Rick guessed that he would be fairly conservative given the neighborhood in which he lived—which was upper middle class and mostly Republican—and his wife’s work on the campaign of a conservative local school board member. Rick wasn’t entirely sure about Jablowski, despite his conservative neighborhood and his wife’s apparent leanings. The FedEx man, in his down time, played the saxophone in a traveling jazz band.

  Rick’s information suggested that at least two of the jurors would be more questioning of the defendant’s self-defense claim.

  Val Stephens was a retired florist. She had a degree in English literature, season subscriptions to the Shakespeare and Arena theaters, a brother who was married to a same-sex partner, three cats, and a mini-Cooper with bumper stickers that said “peace now” and “old age should burn and rave at close of day.” Her neighbors indicated she was not one to accept everything she was told—or any authority—without questions.

  Bella Nevarrino was in her 20s with a degree in Philosophy from Johns Hopkins University and lots of courses in accounting from George Mason. She worked for Price Waterhouse Coopers. Nevarrino also was a volunteer ESL teacher and had offered to help in the local office of the Clinton campaign. Nevarrino’s father was an attorney who had represented several immigration and human rights organizations, and her mother was a pediatrician.

  Rick had uncovered conflicting information about the other jurors. Some of the information indicated they would go for the defendant, and other facts suggested the jurors would be inclined to go against him.

  John Lawson, an information technology employee at a firm in Reston, seemed to be a computer geek. He was in his late 30s, unmarried, rented a one-bedroom apartment, and spent most of his time either at work, reading, or getting together with a few friends and watching science fiction movies. He didn’t have any ties to the military or police, nor did he seem to take any active interest in politics or the workings of government.

  Hank Zaun, a black man in his early 60s and a retired manager in the Office of Personnel Management, spent much of his time working out at his gym, golfing, volunteering with his church, and helping his wife look after his twin four-year-old grandsons. His daughter, the mother of the boys, was a kindergarten teacher. The boys’ father was an army captain who had served in Iraq but was now at the Pentagon. Zaun had two grown sons. One worked as an investigator in the Treasury Department Inspector General’s Office, and the other owned a successful barbeque restaurant in northern Virginia.

  Andy Lloyd worked for Booz Allen on a contract with the Director of National Intelligence. Rick was surprised Lloyd had been picked for the jury, but Lloyd was an anomaly. He worked as an editor for the DNI and lived in a condo in northern Virginia for part of the week. He also had a farm out near Warrenton where he and his wife raised llamas. They sold the wool to artisan weavers and rented out the llamas on the weekends to carry wine and gourmet lunches for couples seeking an “experience” picnic in “a beautiful, natural, rural setting, only minutes away from Washington.” Lloyd had three vehicles, an old 4x4 pickup truck with no rifle rack but a peeling bumper sticker that said “semper fi,” a Subaru Forrester, and a new Lexus 350 sedan. Despite the bumper sticker on the pickup, Lloyd had no discernable ties to the military or police, nor did his wife or her family. Lloyd had one grown daughter who was studying for her Ph.D. at London School for Economics.

  Rick thought Dan O’Neill was the hardest to figure out. He was a 34-year-old former Army Ranger Captain who had lost his leg in a firefight in Fallujah, Iraq. Although O’Neill had been gravely wounded, his actions duri
ng what amounted to an ambush of his unit saved the lives of his men. O’Neill came from a military family. His father and grandfather were highly decorated Army officers. Nonetheless, after losing his leg, O’Neill chose to leave the military, go back to school, and become a teacher. He was assigned to a Fairfax County high school that had a high percentage of economically disadvantaged immigrant children, many of them from South Asia. O’Neill had been married, but his wife left him after he returned from Iraq. A retired General’s daughter, the wife had told friends that O’Neill had changed too much since he’d come back from Iraq. She had said she just couldn’t be married anymore to someone with such limited ambition as to be a teacher. After the dissolution of the marriage, O’Neill had moved to a one-bedroom apartment near his school. He spent his after-school time coaching boys’ soccer, studying for an advanced degree in education, and, despite his artificial leg, working out and running. O’Neill didn’t seem to have much of a social life. He probably didn’t have the time.

  Rick dropped off the folders he had prepared in the prosecution team members’ offices and headed out. It was only nine o’clock, and he still had the rest of the morning and Sunday afternoon to enjoy before he had to be back at work. He noticed that Scott Gardner was already in the office when he left. Gardner had been in the kitchen making coffee when Rick dropped the jury information folder off in his office. Too bad Scott had to be in; it was a beautiful day. Rick didn’t envy the prosecutors their hours.

  - 33 -

  Assadullah thought about the trial during the weekend. Seeing the people come out of the courtroom was interesting, but he wanted to go back to the courthouse and watch from inside the courtroom next week. He’d gone to his cab company manager, Habib, and asked him for the next week off. Habib had understood after Assadullah explained to him why he wanted the time off. Habib was from Afghanistan, too, but had immigrated to the United States in the early 1980s. He told Assadullah to take as much time as he needed. He said he couldn’t pay him while he was off but would let him work as many nights and weekends as he wanted to try to make up his missed wages. Most important, Habib said he would hold Assadullah’s job for him.

  - 34 -

  Scott had arrived at the office at 8:00 even though it was a Sunday morning. It was quiet, and he wanted to focus on how he and Maddie could best integrate what he had found out the day before with their strategy for the trial. Scott, while he was making coffee, saw Rick scoot out the door and found on his desk the folder with the jury information in it that Rick had left for him. Scott read the material quickly and sent an e-mail thanking Rick for his quick research.

  Rick had done a good job, but what he had found made Scott even more concerned about how the prosecution should proceed. A mostly conservative jury that would be inclined to give the benefit of the doubt to the SU defendant was not what he was hoping to see. Sommers had been the one to say yes or no during the initial jury selection process. Maddie said he had left her out of it. And Sommers, not surprisingly in Scott’s opinion, had chosen the route least likely to damage his political career. Sommers had acquiesced to the defense’s pick of jurors, who would be likely to exonerate the defendant. Sommers was running for office in an area with an extremely conservative constituency. That constituency would understand that, as an assistant DA, Sommers had to take the case. But they also would expect the defendant—someone they saw as just doing his job—to be acquitted. If the defendant wasn’t, Sommers’ constituency might well direct their ire toward him. Others in Sommers’ party who were running for the nomination might go so far as to criticize him as “un-American.” So, Sommers needed to be able to claim that he prosecuted the case that was dealt him and that justice was served as the jury made the final decision. For everything to work out for him, Sommers needed a conservative jury more inclined to favor security over civil liberties and oversight. Scott thought Sommers probably got the jury he wanted.

  Scott pushed aside Rick’s folder on the jurors and turned to sorting out how he was going to try to prove that the defendant’s employment related to supporting the mission of the Defense Department in Afghanistan. In his mind, he had no question that Bennett’s work supported DOD. The SU operated under the aegis of the Pentagon for all that it the top brass wanted to deny its existence and staffed the SU with civilians. Certainly stopping terrorists who planned attacks and laid IEDs should count as support for DOD. Nonetheless, Scott needed specific facts and circumstances related to the scope of Bennett’s employment to prove to the jury, beyond a reasonable doubt, that Bennett was subject to MEJA. That was going to be the tricky part. Scott could call Bennett’s superiors and intended to do so next week. Whether they would be forthcoming with what Bennett was authorized to do was another matter. Scott suspected Bennett’s superiors were more likely to claim the information about Bennett’s activities was unavailable to the court because of sensitive security issues. That would protect Bennett, and it would protect them.

  - 35 -

  Maddie, after letting the guard at the building entrance know to expect Kate later in the day, walked up the stairs to her office in EDVA. She noticed that Scott was already in and looked to be hard at work. After getting a cup of coffee and reading through the file on the jurors that Rick had left for her, Maddie knocked on Scott’s open door and asked, “Is now a good time to talk?”

  “Sure. Come on in. I’ll fill you in on what I learned in Charlottesville.”

  Maddie came in and sat at the small, round table in Scott’s office. “Thanks. I have something to tell you about, too. First, though, what did you learn?”

  While Maddie drank her coffee, Scott went over what he’d discussed with Beth and Paul and the importance, in his view, of focusing on clarifying why MEJA applied to the Bennett case.

  Maddie said, “Well, when DOJ handed this case over to us, we understood that we could prosecute it on the basis of MEJA. DOJ looked at the circumstances pretty carefully. Why do you think using MEJA would be a problem now?”

  “I think the defense will grasp anything it can to convince the jury to let Bennett off. If Smith can’t prove self-defense, or if that argument looks shaky, I think he’ll try to undermine the foundation of our charge that what Bennett did was a violation of MEJA. So, what Smith will do is either argue Bennett’s duties didn’t support the mission of DOD or say that whatever Bennett did was for reasons that can’t be shared with the jury.”

  “But we’ve already established that Bennett was on an anti-terrorist raid. Isn’t that support for DOD? Plus, the SU is under the sponsorship of the Pentagon. How can MEJA not apply?”

  Scott leaned forward and folded his arms on his desk. He said, “I think it does, but Smith may try to bring out that Bennett was acting on orders too sensitive to present. He, or possibly the SU attorneys, also may try to get some of the information we’ve already presented stricken from the record.”

  “Would they do that? The SU attorneys, I mean?”

  Scott shrugged, “Of course. They don’t want anything more about what Bennett did that night out in the press—that is, unless he’s exonerated. If it looks like we’re close to convincing the jury he murdered those schoolboys, I think the SU attorneys will do everything they can to suppress the information.”

  Maddie sighed. “If we run into trouble using MEJA, what about using the War Crimes Act?”

  “Nope. DOJ won’t go for that one. Particularly because Bennett is an SU officer who was employed in the so-called ‘Global War on Terrorism, the GWOT.’ DOJ will want to avoid saying that any Geneva Conventions apply to the conflict. It would open up the possibility of too many other prosecutions the Executive Branch wouldn’t want. Remember the Green case?”

  Maddie shook her head. “Umm. Vaguely. Sort of. Not the details.”

  Scott leaned back in his chair and explained, “Private Steven Green, while he was serving in the military in Iraq, went on a rampage with four others from his unit and gang-raped and murdered a 14-year old girl. Green then mu
rdered her family. The soldiers covered up the crime, and Green was discharged from the military for other reasons. Then the crime was discovered. An investigation produced statements from co-conspirators and physical evidence. DOJ subsequently prosecuted Green for rape and murder using MEJA. The attorneys at Justice didn’t want to use the War Crimes Act. They wanted to avoid—mostly for political reasons—setting a precedent that the law may be used against US Government agents for their conduct should that conduct violate Geneva Conventions.”

  Maddie asked, “So where does that leave us?”

  “We have to prove that MEJA applies. That means we have to show that Bennett was working ‘in support’ of the DOD mission. So far the exact meaning of ‘in support’ has been up for grabs.”

  Scott explained further, “Certainly the Blackwater decision should help. The men were charged under MEJA as contractors who were working in support of the DOD mission. Still, the situation was different than Bennett’s. They were in a traffic circle in Baghdad in 2007 and guarding a convoy when they killed 14 unarmed civilians. There wasn’t much secret about that and not much ambiguity about the guards’ roles. The US attorney’s office pushed hard that the guards acted unreasonably and without justification. At the sentencing, the judge commented that the court has to recognize the severity of the crimes committed, including the number of victims.”

  Scott sighed and said, “In our case, we have to deal with secrecy about Bennett’s mission and ambiguity about what he was authorized to do. Was he acting unreasonably and without justification? Or did he, on the basis of information we don’t know, have reason to believe that what he did was authorized and the right thing? Also, I think we should keep in mind that a jury is likely to construe what the Blackwater guards did in a traffic circle differently than what Bennett did during a suspected raid on terrorists.”