Until this moment, Terry had never seen Hollis in court. The judge exuded a calm authority; he was accustomed to respect and knew that he would receive it. Tall and lean at fifty, Hollis had smooth features, salt-and-pepper hair, and probing dark eyes that, Terry had heard, hinted at emotions—interest, skepticism, impatience, or amusement—otherwise absent from his scrupulously impassive face.
The high mahogany bench from which Hollis surveyed the courtroom was flanked by the flags of the United States and its army. Behind him stood his bailiff, a sergeant. In the well of the courtroom, the court reporter, a corporal, was stationed near one corner of the bench. To the left Major Flynn, tense and alert, sat with his second chair, Captain Rod Pulaski, dubbed the “Angel of Death” for his deceptively innocent face. To the right were Paul Terry and Meg McCarran. The gallery at the rear was jammed with reporters and spectators drawn by the facts of the case—a compound of adultery and death—and the identity of the accused. Brian himself was, on Terry’s instructions, scrupulously impassive. But through Meg, Terry could feel his tension, and that of their father. Her expression was taut; she knew, as did their opponents, that the outcome of the trial might depend on how Hollis ruled today.
The judge looked from Terry to Flynn. “This hearing,” he intoned in a baritone voice, “is to consider the army’s motion to preclude any defense based on post-traumatic stress disorder. You may proceed, Major.”
Flynn rose, striding to the podium so briskly that Terry thought of a greyhound. “Thank you, Your Honor,” he said hurriedly. “The arguments of the accused are without precedent or merit. First, the law. No military court, anywhere, has allowed PTSD to reduce murder to manslaughter—”
“What about the Rezaq case?” Hollis cut in sharply.
“That was a federal case,” Flynn parried, “not binding on this court. And Rezaq merely suggests that PTSD may be considered.”
Hollis leaned forward. “Then why shouldn’t this court at least hear evidence regarding Lieutenant McCarran?”
Flynn stood straighter. “Because experience in combat—however harsh—has never nullified the intent to commit murder—”
“Let’s stick to Rezaq,” Hollis interjected. “The defendant was a terrorist who highjacked an Air Egypt flight. His claim was that he suffered from PTSD after witnessing the slaughter of Palestinian refugees many years before. Isn’t that a bigger stretch than for Lieutenant McCarran to assert that, in a moment of danger, his reaction was conditioned by traumatic combat experience?”
“Good,” Terry murmured to Meg. But doubt was graven on her face.
“It’s all a stretch,” Flynn answered. “The Rezaq court imagines that a terrorist who highjacked a plane, endangering innocent lives, could claim that he was gripped by a slow-motion trauma. By that standard, any witness to an atrocity is entitled to commit one—”
“We’re talking about Lieutenant McCarran,” Hollis snapped, “not Mohamed Atta. Let’s stick to the effects of a war from which he returned six months before the shooting.”
“What effects?” Flynn said with mild disdain. “We don’t know what trauma the accused supposedly suffered in Iraq. We do know that he was in combat. No one knows what it means to kill someone better than a combat veteran.”
Hollis frowned. “You assume, Major, that combat is like shooting skeet. But doesn’t combat also produce reflexive reactions in a matter of split seconds?”
Flynn seemed to riffle the file cards in his head. “In United States versus Martin,” he replied, “the court ruled that a defendant’s delusional belief that his conduct was justified could only be considered in mitigation of sentencing—”
“But isn’t the real problem,” Hollis countered, “that the accused often can’t relate the factual origins of combat stress to the violent act in question?”
Terry felt Meg tense, as did he. “Precisely,” Flynn said smoothly. “That’s also Lieutenant McCarran’s problem here—”
“That’s a different point,” Hollis interrupted. “What you’re really saying is that it doesn’t matter if the accused can relate his combat experience to his crime. Think that’s how the law should be?”
Terry repressed a smile. Decisively Flynn answered, “Yes, Your Honor. Captain Terry’s argument opens the floodgates to abuse. There’s no way to verify that combat stress—even if proven—means that an accused did not intend to do what soldiers are trained to do: deliberately kill another human being.”
To Terry’s discomfort, Hollis remained silent, regarding Flynn with a look of renewed interest. “The second problem,” Flynn continued, “is the gap in the affidavit of Dr. Carson, submitted by counsel. Dr. Carson opines that Brian McCarran suffers from PTSD. But he offers nothing that would link his service in Iraq to putting four bullets into his lover’s husband—including one in the back. This absence of detail—fatal in itself—confirms the abuses inherent in this defense.”
“Captain Terry,” Hollis pointed out, “asserts that the investigation of his client’s combat experiences is ongoing.”
Flynn’s eyes glinted. “Hasn’t he asked the accused? Perhaps Lieutenant McCarran has also forgotten his time in Iraq.”
Hollis placed a finger to his lips, his silence deepening Terry’s unease. Firmly, Flynn asserted, “This unsupported claim would confuse the members of the court without illuminating the facts of Captain D’Abruzzo’s death. The army respectfully asks this court to preclude all testimony from Dr. Carson, or from any other witness called to establish post-traumatic stress disorder.”
Hollis nodded briskly. “Thank you, counsel. I’ll hear from Captain Terry.”
Rising, Terry was aware of Meg’s tension, and that this was the first time she had witnessed him in court. As Terry walked slowly to the podium, Hollis said, “Your papers suggest that you’re reluctant to bring Dr. Carson before the court, preventing Major Flynn from cross-examining him. Wouldn’t that help clear things up?”
Terry placed his hands on the podium. “It’s too soon,” he said simply. “We’re still tracking down the men who served with Lieutenant McCarran. Some have suffered traumatic brain injury; others are in Iraq and Afghanistan. Still others—particularly those involved in combat operations with Lieutenant McCarran—are dead. Until we locate all the witnesses, Dr. Carson cannot form an opinion. It’s as premature to cross-examine him today as it would be to preclude his testimony at trial.”
“And what if his testimony is based on vapor?” Hollis asked. “That could create the confusion Major Flynn implores us to avoid.”
Terry was prepared for this. “When a man’s freedom is at stake, what’s the greater risk—confusion or an unjust verdict? I’m certain that this court can instruct the jury to ignore testimony it deems irrelevant.”
Hollis raised his head, telegraphing skepticism. “Why risk a sloppy trial, where the members lose track of what testimony is irrelevant when they’ve already heard it. You may think too highly of this court’s ability to cram your genie back into Major Flynn’s bottle—although perhaps you don’t much care.” Having unloosed this barb, Hollis continued, “But let’s move on to your next suggestion—that PTSD can support a verdict of not guilty by reason of insanity. Why should this court so boldly go where no courts have gone before?”
The casual reference to Star Trek caused Terry, however worried, to smile. “If the law didn’t evolve,” he answered, “courts would still be applying the ‘wild beast test,’ where an accused’s insanity was measured by his propensity to make the growling sound of predatory animals. With all due respect, Major Flynn would lead us boldly toward the Middle Ages.”
The light in Colonel Hollis’s eyes might have been amusement. “According to the major, he’s intent on protecting the law from your factitious claim.”
“The law,” Terry answered, “needs no protection. The legal test for insanity is very clear: At the moment he shot Captain D’Abruzzo, did Brian McCarran have a ‘mental disease or defect’ that prevented him from knowing
that his action was wrong?
“If, as we claim, Lieutenant McCarran acted in self-defense, that question never arises—one can legally take a life if he reasonably believes his own life is in danger. But suppose that, based on PTSD, Brian shot D’Abruzzo in the mistaken but honest belief that he was acting in self-defense?” Terry paused for emphasis. “If that is the case, then Lieutenant McCarran did not know that shooting D’Abruzzo was wrong. By definition, he is not guilty by reason of insanity.”
Hollis raised his eyebrows. “I’ll grant you points for creativity. But is PTSD a recognized ‘mental disease or defect’?”
“Absolutely. Hundreds of years of military history confirm that combat is traumatic to those engaged in war. First they called it ‘soldier’s heart’; then it became ‘shell shock.’ Since Vietnam we’ve known it as post-traumatic stress disorder. But the symptoms are the same: hyperarousal, nightmares, reflexive violence, substance abuse, and, in the case of one of Lieutenant McCarran’s men, suicide. We know that many veterans evince these things. PTSD is the cause.” Terry paused, then added, “It is also possible that Captain D’Abruzzo suffered from PTSD. Specifically, that the same impulses that caused him to hit his wife, hold a gun to her head, and drink himself senseless also drove him to threaten Brian McCarran—”
“What about adultery?” Hollis inquired mildly. “Think that played a role?”
Terry feigned a calm he did not feel. “Adultery is not an excuse for murder. Nor does it mitigate the effects of combat.” He paused again. “There is time enough for Major Flynn and me to contest the role—if any—played by the lifelong closeness between my client and Kate D’Abruzzo. But the question now is whether the officers who will determine the fate of the accused are capable, with this court’s guidance, of sorting out the facts. We say yes; Major Flynn says no. The future of too many returning veterans may depend on this court’s answer.”
“Thank you,” Hollis said at length, then turned to Flynn. “Any response, Major?”
Flynn stood at once. “Yes, Your Honor,” he said in a stern voice. “Captain Terry’s plea comes down to this: let’s figure out what the law is after we’ve ignored it by admitting evidence that is contrary to law. His real purpose is to create sympathy for the accused, instead of the officer he murdered—”
“Killed,” Hollis corrected. “It’s for the jury to determine whether this is murder.” He folded his hands, addressing Terry. “For now, I’m denying the government’s motion. But the court will allow testimony on PTSD if—and only if—you come up with a written proffer of evidence that relates Lieutenant McCarran’s combat experience to the facts of Captain D’Abruzzo’s death. And if the testimony fails to meet that standard, I will instruct the members of the court to ignore it.” The quiet of Hollis’s tone underscored the force of his admonition. “You surely know that this would not redound to your client’s benefit. Before you invoke this defense, please consider it with the utmost care.”
With that, the judge brusquely nodded to his bailiff. “All rise,” the sergeant called out, and Hollis left the bench, vanishing through the door to his chambers.
As the press stood behind them, chairs scraping and voices murmuring, Flynn stared at the floor. Daunted but relieved, Terry turned to see Meg’s brief, uncertain smile. Brian remained expressionless, as though he had removed himself from the courtroom.
A HALF HOUR LATER, using the speakerphone in Terry’s office, they reached their CID investigator, Sergeant Ben Flournoy. He had worked with Terry and Meg for the last four months, looking for soldiers who had served with Brian from his arrival in Iraq. Today the connection was not good; Flournoy had just landed in Afghanistan.
“I found the chaplain,” he reported, “the one who knew Lieutenant McCarran in Sadr City. But it seems like the other guy I’m looking for—Johnny Whalen—is the only soldier who went all the way through with our guy.”
Terry glanced at Meg. “What about the ones you found in Iraq?”
“Not much good, sir. They rotated in later, when the worst was over. I don’t like saying this. But if Whalen can’t help us, I’m feeling like we’re done.”
“Keep trying,” Meg urged.
“What about Lieutenant McCarran?” Flournoy asked. “How’s he doing with Dr. Carson?”
“It’s still a struggle,” Terry admitted. “Carson’s trying to unlock him. He thinks Brian’s afraid of something. It would be great if you found out why.”
After the call was over, Meg slumped in her chair. Because they were alone, Terry took her hand.
“Let’s go home,” he said.
two
THE FOLLOWING MORNING, COUNSEL AND THE ACCUSED returned to court.
With the others, Terry stood. In the next minutes, Flynn would recite the charges, then the judge would inform the accused of his right to counsel and proceed to the selection of the members of the court. Despite his steady gaze, Brian McCarran looked apprehensive. But then he knew that Flynn and Terry were poised to select the strangers whose votes would determine the course of his life.
TWO WEEKS BEFORE, TERRY had explained the process to Meg.
She had come to his apartment for the night. Terry was scanning the questionnaires filled out by the potential members of the court, placed neatly on his kitchen table like chess pieces on a board. As military law required, all were officers superior in rank to Brian; among them, Terry hoped, were veterans of Afghanistan or Iraq. It was based on this hope, in part, that Terry had advised Brian to demand a jury drawn from these men and women, rather than a trial where Hollis would render both the verdict and the sentence. Another reason—Terry’s belief that he could outwit Flynn in the complex art of picking the members of the court—might prove either prescient or, perhaps, fatally foolish.
The responsibilities placed on those members were far more weighty and complex than those given to civilian jurors. In the findings phase, they would determine guilt or innocence; though Flynn would charge Brian with murder and adultery, the members could find him guilty of a lesser offense. Unless Brian was acquitted, the sentencing phase would follow, in which Flynn and Terry would again present evidence as to the appropriate punishment. Even if the members adjudged Brian guilty of the gravest crime, they could impose a lesser sentence than Flynn requested—or no punishment at all. Here lay Terry’s final hope: that nonlawyers, especially veterans of combat, might prove more lenient than a judge.
Meg stood behind him, kneading his shoulders with capable hands. “What do you see?”
“A math puzzle—a peculiar feature of military law. When you pick a jury in San Francisco, you have to come up with twelve. Brian’s jury could number twelve, or as few as five.” He glanced up at her. “Another quirk is that, to get a conviction, all Flynn needs to do is persuade two-thirds of the members that Brian is guilty.”
Meg’s eyes darkened. “Then why did you tell Brian to demand a jury—”
“Because under military law there’s no hung jury. If Flynn can’t get his two-thirds, Brian walks. That’s where the math comes in. What’s two-thirds of six?”
“Four,” Meg said impatiently. “I’d grasped that by third grade.”
Terry laughed. “Okay. Suppose I knocked the number of jurors down to five. How many guilty votes does Flynn need then?”
Meg thought swiftly. “Four. You can’t divide jurors into thirds.”
“Exactly. So with five jurors, if I persuade just two, Brian still walks. No retrial—ever.” Terry waved at the questionnaires. “I don’t have to pick twelve winners. I just need to cut this pool down to size, and find a minority of sympathetic souls tough-minded enough to stand up to the rest. Of course, Flynn knows that, too.”
Meg sat beside him. “So play this out for me.”
“All right. In a twelve-person jury, if I carry four votes, Flynn prevails: eight votes for conviction gives him the two-thirds he needs. But if the jury is only eleven and I still get my four, we can all go home.”
“So,” Meg
interjected, “if Flynn gets a nine-member jury, and you persuade only three, Brian loses. But in an eight-person jury, three votes means acquittal.”
“And so on down the line. If Flynn wants six jurors, I want five. Then the challenge becomes finding the two jurors who will vote to acquit Brian.”
“How do you get to the right number?”
“It’s like a chess game. Flynn and I get only one peremptory challenge; our sole chance of booting a potential juror without offering any reason. The remaining challenges must be for cause: one side can argue to dismiss a juror, the other to keep him, and then the judge decides.” Terry pointed at the questionnaires. “This is where I need your help. Flynn and I will be bluffing each other, holding back the challenges we think are strongest, in hope that we end up with our number. So if we get down to six members, for example, pray that I’m sitting on a challenge that Hollis will grant—giving us five. The problem is that Hollis understands the game better than anyone.”
Meg gave him the intent, practical look that had become so familiar. “So you want me to look at these questionnaires and help find Brian some winners.”
“For openers, yes. You’ll see the usual data: education, career, family, combat experience, prior service on a court-martial, whether they’ve been the victim of a crime. At the level of sheer guesswork, I’d want a divorced psychiatrist; Flynn, a fundamentalist Christian with six kids.”
Meg nodded. “Pretty routine. I do this all the time.”
“I’m sure. But we can also use this stuff to do some informal digging. You’ve got over a half million people in San Francisco—it’s not easy to investigate a jury pool. But Fort Bolton is smaller, a place where people you know may know the folks on this table. A phone call here, a cup of coffee there, and pretty soon we learn who may be sleeping with the neighbor’s wife, or knows someone who suffers from PTSD. A little inside knowledge can mean the difference between keeping a juror and knocking him off. But it’s delicate. That’s why I’m doing it myself instead of using our investigator.”
In the Name of Honor Page 20