An odd silence fell. Even without a signal, Terry reflected, the participants in a court-martial always sensed its imminence. The door to Hollis’s chambers opened, and the judge walked briskly to the bench.
“All rise,” the sergeant called out. “The court is called to order in the case of United States versus Lieutenant Brian McCarran.”
Though Terry had experienced this over a hundred times before, the moment still instilled a sense of awe. “Major Flynn,” Hollis said. “You may commence your opening statement.”
Flynn approached the members of the court with renewed resolve, appearing rested and relaxed. Crisply, he outlined the physical evidence against Brian McCarran, then moved to the essence of his case. “The accused,” he said with measured passion, “told the CID a tale of self-defense that, as you will learn, did not conform to the evidence.” Turning, he faced Brian, his tone accusatory. “Then this officer in the United States Army lied about the most crucial fact of all: that he and the victim’s wife were involved in an adulterous affair. A lie made possible only because Lieutenant McCarran had just shot an unarmed man four times, causing him to bleed to death. A death made possible because, for the next twelve minutes, the only call Brian McCarran made was not to the paramedics but to the woman sitting next to him: his sister, Meg.”
As Flynn intended, for an instant Brian and Meg looked defensive. Turning from them with an expression of disdain, Flynn told the members, “When you listen to the witnesses, ask yourself these questions: If the accused acted in self-defense, why does the physical evidence contradict him? And why did he choose to violate the army’s code of honor by lying about his affair?
“The answer is inescapable: he lied about the affair for the same reason he shot Joe D’Abruzzo—to cover up his adultery and take Kate D’Abruzzo for himself. Far from ‘forgetting’ how Captain D’Abruzzo ended up with a bullet in his back, Brian McCarran is trying to conceal his guilt. And, in the end, you will know this.”
As Flynn sat, Colonel MacDonald and Major Wertheimer regarded Brian with dubious expressions, the doctor’s dark, probing eyes lingering on Brian’s face. Standing, Terry rested his hand on his client’s shoulder until he had drawn the jury’s attention. “Major Flynn,” he said with casual dismissiveness, “has just told you a story. That’s really all it is—a smattering of the evidence he believes will be presented, selectively plucked from a mass of less convenient facts, then neatly arranged in a narrative that casts his accusations in the most favorable light. But the undisputed evidence will present a very different story.
“That Captain D’Abruzzo repeatedly hit his wife.
“That Captain D’Abruzzo held the gun in question to Kate D’Abruzzo’s head.
“That Kate D’Abruzzo called Brian McCarran, her close friend since childhood, out of fear for her own life.
“That Brian took D’Abruzzo’s gun to protect her.
“That on the night of his death, Captain D’Abruzzo choked his wife until, fearing for her life yet again, she confessed to him that Brian had taken the gun.
“That Joe D’Abruzzo went to Brian’s apartment in an alcoholic rage.
“That Joe D’Abruzzo, a black belt in martial arts, could have killed Brian McCarran with his bare hands.
“And that, when Joe D’Abruzzo spun to attack him, Brian shot him in self-defense.”
Terry looked into the face of each juror, pausing to focus on Randi Wertheimer. “When this court-martial is done, I believe that you will conclude you would have chosen as Brian McCarran chose in the split seconds Captain D’Abruzzo allowed him—to survive. But the ultimate question is simply this: Has the prosecution, as required by the Uniform Code of Military Justice, proven beyond a reasonable doubt that Brian McCarran did not act in self-defense? I am confident that Major Flynn’s story, however artfully he presents it, will not satisfy this burden.”
Walking back to the defense table, Terry was aware of Meg’s look of gratitude, Brian’s troubling opacity, the stricken look of Joe D’Abruzzo’s mother.
WHEN FLYNN CALLED HIS opening witness, the lead investigator from CID, Terry’s first thought was how likable the man seemed.
Sergeant Gordon Frank had an amiable, observant face and, though he was not yet forty, the avuncular air of an older man. His frame, bulky without being fat, lent an impression of solidity, and the blue eyes beneath carefully combed gray-brown hair were sharp yet kind, suggesting he had seen a lot without becoming disenchanted. In Terry’s estimate, he was a jury-friendly witness.
Methodically, Flynn laid out Frank’s qualifications—extensive training; nineteen years at CID; sixteen homicide investigations. Then Flynn positioned himself so that the witness could speak directly to the members of the court. “When did you first learn, Sergeant, of the shooting at Lieutenant McCarran’s apartment?”
“The MPs called to say that Lieutenant McCarran had reported shooting Captain D’Abruzzo. The time of his call was seven forty-one P.M. on Friday, June 17.”
Walking to the defense table, Flynn picked up a digital recorder and gave it to Frank. “I hand you a tape recording of the lieutenant’s call, premarked as Prosecution Exhibit One. Would you please play it for the court?”
Brian studied the lacquered table, while Meg drained her face of expression. Behind them, Terry felt the stillness of anticipation.
Placing the cassette on the arm of the witness chair, Frank pressed a button. At the edge of Terry’s vision, Brian blinked, as though startled by his own voice echoing in the courtroom, his tone so unemotional that he could have been ordering pizza. This is Lieutenant Brian McCarran. I just shot Captain Joe D’Abruzzo in my quarters. Send the EMTs to 240 Meade Drive, apartment four.
At once, Terry realized that this might be the studied calm of a platoon leader reporting casualties on the radio. But the contrast with Frank’s soft but nuanced southern baritone made Brian’s voice sound even less human. “When you arrived at the scene,” Flynn asked the witness, “what did you find?”
“Lieutenant McCarran was sitting in a chair. Captain D’Abruzzo lay on his side near the opposite wall.” Frank paused. “There was a gun beside the lieutenant’s chair. The victim was lying in a pool of blood, and there was a bloodstain on his back where his sweatshirt had been perforated.”
With the discipline of a trial lawyer, Meg maintained a studied blankness that suggested that nothing she heard was troubling or remarkable. In the same brisk manner, Flynn asked, “What was the distance between Lieutenant McCarran and Captain D’Abruzzo’s body?”
“Fifteen feet.”
“Was there any sign of a struggle?”
“Not that we could see.”
“What did you do then?”
Brian, Terry noticed, had begun to watch and listen carefully, trying to recall the image. In a phlegmatic tone, the witness answered, “Sergeant Palko and I led Lieutenant McCarran to the bedroom and asked him what had happened. The lieutenant told us that the victim’s wife had called him three days before, and said that her husband had threatened her with the gun. He claimed that he’d taken it to protect her.”
“Did he explain why Mrs. D’Abruzzo had called him?”
“Yes, sir. The lieutenant told us that he’d known Mrs. D’Abruzzo all his life, and that they were extremely close.”
“Did he offer any further explanation of their relationship?”
“He did not.”
In the jury box, Bobby Wade put a curled finger to his lips, appraising Brian closely. “How was the lieutenant’s demeanor?” Flynn asked.
Frank seemed to weigh his answer. “Very unemotional, almost detached. You wouldn’t have known that Captain D’Abruzzo was lying dead in the next room—”
Terry stood at once. “Move to strike, Your Honor. The witness is disparaging Lieutenant McCarran for trying to be steady and responsive in a difficult time.” With a hint of sarcasm, Terry added, “To clear this up for Sergeant Frank, that’s what leaders in combat learn to do. He should sk
ip second-guessing a man in shock.”
“Your Honor,” Flynn shot back, “in the guise of an objection, Captain Terry has just indulged in what he rebuked the witness for—gratuitous interpretation of the lieutenant’s mental state. At least Sergeant Frank was there.”
This was true enough, Terry knew—and exactly what he’d meant to do. Addressing both Flynn and Terry, Hollis said sternly, “You invited the answer, Major Flynn, and created the opportunity for Captain Terry to turn his objection into testimony. I warn you both that I won’t let this court-martial become a food fight.” He turned to the witness. “Confine yourself to facts or your observation of facts. The members of the court don’t require your services as a mind reader.”
With that, Terry had accomplished everything he could. Erasing his brief look of annoyance, Flynn asked the witness, “Did you ask the accused what led to the shooting?”
Frank settled in the witness chair, preparing for the heart of his account. “The lieutenant said that he’d been in the shower and heard the phone in his bedroom ringing. When he got out, and listened to the message, it was Mrs. D’Abruzzo saying that her husband was coming to confront him.
“According to Lieutenant McCarran, he called her back. She said that her husband was drunk and angry, and that he’d forced her to tell him that the lieutenant had taken the gun. He claimed that she warned him not to let her husband in.”
“Are there telephone records of those two calls?”
“Only the second.”
Flynn cocked his head. “Why is that, Sergeant Frank?”
“Both the accused and Mrs. D’Abruzzo stated that she’d made the first call on her landline, leaving a message on the lieutenant’s landline. Unfortunately, the telephone company doesn’t keep records of local calls on landlines.”
“Were you able to replay Mrs. D’Abruzzo’s message?”
“No. Lieutenant McCarran claimed that he’d erased it.”
Flynn raised his eyebrows. “In light of Mrs. D’Abruzzo’s urgent warning, did you ask why he’d taken the time to do that?”
“We did. He said it was just a reflex.”
Terry caught Randi Wertheimer’s flicker of doubt. “But there is a record,” Flynn prodded, “of the lieutenant’s call to the D’Abruzzo home?”
“At seven-fifteen. The lieutenant used his cell phone, and Sprint keeps records of every call.”
“Why didn’t he call from the landline on which he’d supposedly erased the message?”
“The lieutenant said he couldn’t remember the D’Abruzzos’ home phone number, but that it was on the speed dial of his cell phone.”
“Other than what Lieutenant McCarran and Mrs. D’Abruzzo told you, is there any independent evidence of a call to the accused?”
“No, sir.”
Flynn skipped a beat. “Or of who in the D’Abruzzo household answered the lieutenant’s call?”
“There is not.”
As Terry interpreted his keen expression, Colonel MacDonald grasped Flynn’s point—that Brian McCarran’s call could have been to Joe D’Abruzzo. Pressing his advantage, Flynn asked, “You say the call was at seven-fifteen. Did Lieutenant McCarran say when D’Abruzzo arrived?”
“He said he couldn’t remember.”
“Have you timed the drive between the D’Abruzzos’ town house and Lieutenant McCarran’s apartment?”
“Yes, sir. Driving at normal speeds, it takes approximately nine minutes.”
“Subject to proof, is there evidence as to when the shooting occurred?”
Meg’s glance at Terry was a silent plea for an objection. Almost imperceptibly, Terry shook his head—objecting would only underscore Brian’s problem. Gazing at the members, Frank said, “According to the next-door neighbor, Major Dahl, she was watching Jeopardy between seven and seven-thirty. As the closing credits appeared, she heard popping sounds through the wall between her apartment and Lieutenant McCarran’s. The TV station in Washington places that time at seven twenty-nine.”
Flynn nodded his satisfaction. “For the record,” he told Hollis, “we intend to call Major Dahl, and the defense has stipulated to the time of the closing titles.”
Noting her sideways glance at Brian, Terry suspected that Major Wertheimer had caught Flynn’s further implication: that there was sufficient time between the phone call and the shooting for D’Abruzzo to have answered the telephone and responded to Brian’s invitation—which, if true, suggested that Kate and Brian were partners in a premeditated murder. “Did the accused,” Flynn asked, “explain how Captain D’Abruzzo got inside his apartment?”
“Yes. The lieutenant let him in.”
“How do visitors enter the building?”
“They press an intercom and dial the number of the apartment they’re visiting. The occupant of the apartment has to buzz them in.”
“So Lieutenant McCarran could have kept Captain D’Abruzzo from entering?”
“Yes.”
“Did you ask why he admitted this supposedly angry and inebriated man?”
“We did. According to Lieutenant McCarran, Kate D’Abruzzo had also confided that her husband had hit her repeatedly since returning from Iraq. The lieutenant said he wanted to talk with Captain D’Abruzzo about how he treated his wife.” Frank sat back, his tone suggesting skepticism. “But before letting Captain D’Abruzzo in, the lieutenant told us he retrieved the gun and hid it beneath the pillow on his chair.”
“Did Lieutenant McCarran explain why he did this?”
“He said the victim held a black belt in martial arts. He wanted to be sure D’Abruzzo couldn’t attack him.”
Flynn held up a hand. “So, to summarize Lieutenant McCarran’s account, the victim’s wife called to warn the accused that her husband was on his way, and that he was drunk and angry; the lieutenant knew that D’Abruzzo possessed lethal skills in martial arts; the lieutenant was so fearful that he hid the victim’s gun before answering the buzzer; and, in spite of all this, he not only let him into the building but opened the door to his apartment.”
Frank’s lips became a thin line. “That’s what the lieutenant told us, yes.”
In the jury box, Bobby Wade stared at Brian in apparent puzzlement. Hands on hips, Flynn asked, “Did the lieutenant describe the events that led to the shooting?”
“Yes. He said D’Abruzzo was irrational and enraged—that he demanded the gun and told the defendant that he could shatter his windpipe and gouge out his eyes. The lieutenant responded by taking out the gun. Then—in his telling—he warned Captain D’Abruzzo to straighten himself out, or that he’d protect his wife any way he could.”
“Did you ask how long this heated conversation took?”
“The accused claimed to have no idea.” Frank paused. Adding softly, “Specifically, he said that he’d forgotten to keep time.”
Eyes narrowing, Brian seemed unamused by his own dark joke. With an edge in his voice, Flynn asked, “Did he say why he shot Captain D’Abruzzo?”
“He said D’Abruzzo whirled to attack him. Before he could strike, the lieutenant fired.”
“According to the accused, how close was Captain D’Abruzzo?”
“Very close, he said. Maybe three feet.”
“And where was the lieutenant standing?”
“Beside the chair.”
Flynn paused to telegraph his disbelief. “And yet you found Captain D’Abruzzo lying on his side, face to the wall, fifteen feet from that same chair.”
“Yes.”
“Did Lieutenant McCarran explain how he got there?”
“He did not.” Frank paused, then told the members in a flat tone, “The lieutenant claimed he couldn’t remember anything between the first shot and seeing D’Abruzzo where we found him.”
“In other words,” Flynn said in an astonished tone, “he offered no account whatever of how D’Abruzzo got there, how many shots he fired, or why there was a gunshot wound in the victim’s back?”
“No, sir. None of that
.”
Flynn was doing serious damage, Terry saw—the members of the court were as still as figures in a frieze. “According to Major Dahl,” Flynn prodded, “she heard shots as Jeopardy ended—which we’ve put at seven twenty-nine. Yet Lieutenant McCarran did not report the shooting until seven forty-one. Did he explain this twelve-minute gap?”
“He claims to have been in shock. But he remembered calling his sister.” Frank inclined his head toward Meg. “That’s Meg McCarran, who now serves as Captain Terry’s co-counsel.”
Flynn gave a faint, grim smile. “How long did the call last?”
“According to the phone records, five minutes and twenty-nine seconds.”
“What did the lieutenant say they talked about?”
Frank shrugged, a heavy movement of his shoulders. “Just that his sister told him to call the MPs. Beyond that, he said he couldn’t recall.”
“During this twelve-minute period, did Lieutenant McCarran check Captain D’Abruzzo’s condition?”
“No.” Frank glanced at Brian. “He said he knew D’Abruzzo was dead.”
“How did he determine this?”
“From observation, the lieutenant said.”
Gazing down, Brian looked pale. “So the lieutenant didn’t take his pulse,” Flynn said.
“No.”
Flynn moved closer to the witness. “During the questioning, what was Lieutenant McCarran’s demeanor?”
This time Frank glanced at Terry. Carefully, he said, “Except for one occasion, his manner was very calm.”
“What was that occasion, Sergeant Frank?”
“When I asked him if he was romantically involved with Mrs. D’Abruzzo.” Frank paused, then spoke more quietly. “At that point, he raised his voice, almost spitting out his words. He said Kate D’Abruzzo was like his sister, and normal men don’t sleep with members of their family.”
Listening, Meg blanched. Flynn let a moment pass. “Later that evening, did you visit Mrs. D’Abruzzo?”
In the Name of Honor Page 23