Terry stood at once. “At the end of its case, the army must have offered evidence that—taken alone—would support a verdict of guilty on homicide charges. That requires proof beyond a reasonable doubt. Instead, the case advanced by trial counsel defines reasonable doubt.
“The physical evidence is equivocal. The testimony of Sergeant Frank, Major Dahl, Dr. Goode, and Sergeant Martini leaves room for multiple interpretations. As for Mrs. D’Abruzzo, the only concrete evidence elicited by Major Flynn is that she and Lieutenant McCarran were having an affair. The fact of an affair—or its concealment—does nothing to prove that the accused is guilty of homicide.” Terry paused, then added succinctly, “On the evidence before you, this case should never have been brought. That’s all Major Flynn has proven. Accordingly, this court should dismiss the charge of homicide.”
“Thank you, Captain Terry.” As Flynn began to rise, Hollis held up his hand for silence, continuing to address Terry. “I admire your skills as a cross-examiner, Captain. You deserve your reputation, and you’ve served your client well. But, in my view, Major Flynn has offered sufficient evidence to put you to your proof and, at your discretion, to call Lieutenant McCarran in his own defense.
“That’s up to the accused, of course—no prejudice will accrue if he chooses to remain silent. But a charge of premeditated murder also includes lesser offenses such as voluntary or involuntary manslaughter.” Leaning forward, Hollis continued, “Whatever you achieved on cross-examination, you’ve offered no physical, medical, or forensic evidence that affirmatively helps the accused. Nor is it helpful that Mrs. D’Abruzzo testified that she and the lieutenant misled the CID about such an important matter.
“The court does not wish to quash a case so serious. Where so much room for interpretation exists, and so much rests on the credibility of witnesses like the victim’s widow, I’m more inclined to leave this judgment to the members of the court.” Hollis’s deep brown eyes met Terry’s. “File papers if you like. I’ll read them with an open mind. But your time might be better spent impressing the members of the court with that reasonable doubt you seem to rely on.”
It was done, Terry knew. Startled by the swiftness of his defeat, he was left with the familiar response of a deflated advocate: “Thank you, Your Honor.”
IN LATE AFTERNOON, TERRY, Meg, and Brian sat at Brian’s kitchen table. “On Monday,” Terry said, “we’re starting our defense. I’d like to lead with Kate.”
Brian watched him fixedly, saying nothing. “Is that wise?” Meg asked. “She comes with a built-in credibility problem.”
“Nonetheless,” Terry countered, “we need her. She gives us a frightened victim, and Joe as spousal abuser quite possibly afflicted with PTSD. Plus, she reinforces Brian’s story about the events leading up to the shooting. Right now,” he told Brian pointedly, “that’s the only story we’ve got. Fortunately, Flynn has no story—whatever he thinks happened, he’s got no one to prove it. But there is one other witness, Brian. You. I want you to consider testifying on your own behalf.”
Brian shook his head. “I’ve been working with Dr. Carson,” he said softly. “You know that. What makes you think that I’m not trying?”
“The results,” Terry snapped. “Look, you’re a combat veteran with a fine war record—including good reports from D’Abruzzo. It’s clear that your experience came at a very steep price. We’re looking for at least one guy who served with you to spell that out. And we can also call your father and Meg to say how much you’ve changed. But only you know why or how it may have affected your reaction when D’Abruzzo came looking for you. And only you can say what happened when he did.
“Without you, you’ve pretty much seen your defense. I’m not calling our own pathologist or a ballistics expert—we’ve done as well as we can out of the mouths of Flynn’s own witnesses, and we’re better off not giving him a second chance. And there’s no changing the physical evidence. What do you suppose that leaves?”
Brian stared at the table. “I’m right,” Terry told Meg. “And you damned well know it. As of now, Brian’s a cipher. We need to give the jury a human being.”
Meg faced her brother. “Please try to remember what happened,” she asked softly. “Then we can decide.”
After a moment, Brian nodded.
PART
IV
The Defense
November 2005
one
IN THE MOMENTS BEFORE PAUL TERRY OPENED THE DEFENSE BY recalling Kate D’Abruzzo, her mother entered the crowded courtroom.
With considerable grace, Rose Gallagher navigated the emotional crosscurrents stemming from her son-in-law’s death. Terry watched as she approached the D’Abruzzos, bending closer to kiss Flora’s pallid cheek, eliciting from her a wan smile as Joe senior watched them, uncertain of what to do or say. Having called Brian the night before, she confined herself to a glance in his direction, its warmth apparent in her eyes. She followed this with a look toward Meg that somehow conveyed empathy for her burden. Then Rose sat alone near the front of the courtroom, her expression neither apprehensive nor falsely serene, supporting through her presence the daughter whose adultery, by her own admission, had led to Brian’s fatal confrontation with Joe D’Abruzzo. Terry had seldom been so struck by quiet dignity.
Her daughter had by far the harder role. “What we’re doing,” Meg had told her with brutal candor, “is prosecuting a domestic violence case against a dangerous man. Joe’s dead; Brian’s alive. Your sole purpose is to save him. You can’t do that by sparing your in-laws’ feelings, or airbrushing a spousal abuser for the sake of the kids. The only debt you owe on Monday is to Brian.”
Kate’s eyes had flashed with resentment. Then she’d simply nodded, composed again. No doubt she knew that worse awaited her.
Now, retaking the witness stand, Kate carefully arranged her simple dress, gave Brian a brief half smile, then watched expectantly as Terry rose to commence tarnishing Joe D’Abruzzo’s reputation. “Before your husband went to Iraq,” Terry began, “how would you describe your marriage?”
Kate folded her hands. “I would have said that we were happy. The two of us were different—Joe was fun and confident and full of energy; I’m quieter by nature, more of a reader. Joe wasn’t one to examine himself, while I may do too much of that. But we appreciated each other. So it worked.”
Her tone was perfect, Terry thought—without being maudlin, it was laden with regret about what the two of them had lost. “You mentioned that you and Captain D’Abruzzo have children. What are their names and ages?”
“Mathew is nine; Kristen is seven.” Kate smiled a little. “Mathew’s like his dad—always ready to go, with no sport he doesn’t like. Kristen’s our thinker.”
The members of the court listened gravely; by humanizing Joe D’Abruzzo, Terry was also humanizing Kate, preparing them to empathize with her shock at confronting a different man. “How was your husband as a father?” Terry asked.
“Joe was a good dad,” Kate answered. “Of course, he was intent on advancing his career. But he was attentive when he had time, especially to Mathew. He was a great one for doing things—picnics, sightseeing in Washington, baseball games or movies or just going to a playground.” Her voice became rueful. “I got the parts that weren’t so much fun: toilet training, carpooling, and checking homework. Sometimes I felt a little like wallpaper. But my own father died in Vietnam before I was born—I was grateful my kids were so happy. That’s the whole point, isn’t it?”
Major Wertheimer listened with apparent sympathy, as though recognizing pieces of her own life. “After he returned from Iraq,” Terry asked, “did your husband’s behavior change?”
The split-second shift in Kate’s expression—misery erasing nostalgia—was as effective as her answer. “Joe changed totally. It was like some frightening stranger had taken control of his body.”
“Could you explain that?”
“It started in Iraq. His phone calls became less frequent,
and his tone was flat and distant. He stopped asking about the kids, or asking me to put them on the phone.” Kate shook her head. “I told myself it was the war—that we’d make things okay again. But when he returned, the man I knew was gone.
“He’d sit alone, drinking. He couldn’t say what was bothering him. When I tried to push him, he’d flare up at me. The simplest conversations would suddenly go off the rails, Joe shouting without me even knowing why. Then he started calling me names he’d never used before.” Kate averted her eyes. “First it was ‘bitch,’ ” she finished softly. “Then it was ‘cunt.’ That one stuck.”
In the jury box, Major Bobby Wade—soft-spoken and religious—winced. Noting this, Terry asked, “How did Captain D’Abruzzo treat your children?”
“He withdrew.” She paused, her voice filling with puzzlement. “He acted like he’d been trapped in an out-of-control day-care center with someone else’s obnoxious kids. The only time he acknowledged them was to bark in irritation. Matt started getting into fights; Kristen’s schoolwork slipped. But the most painful part was watching them learn to fear their own father.”
“Did you ask him to seek counseling?”
“I begged him, over and over.” Kate’s voice lowered. “One night, after he snapped at Kristen and then me, I told him he was losing his family. That was the first time he hit me.”
“Hit you where, Mrs. D’Abruzzo?”
Kate touched her cheek with her fingertips, as though feeling for a bruise. “Across the face, with an open palm. But hard. My ears rang, and my legs got wobbly. My lip was bleeding.” She paused, remembering the moment. “Joe’s eyes got big, like he’d surprised himself. Then he just walked out.”
Terry inclined his head, a gesture of inquiry. “Why do you think he changed?”
“It had to be Iraq, Captain Terry. The year he spent in Sadr City.”
“Did you ever talk about what happened there?”
“I tried. He never talked about specific incidents, or even said anything very coherent. But it was clear that he was angry.” Her voice became hesitant. “He called Muqtada al-Sadr’s people ‘sand niggers’—he’d never used that word before. He seethed with feelings that had nowhere to go. That was why it scared me when he started keeping a loaded gun in his nightstand. Who was going to threaten us at Fort Bolton?”
Judging from the faces of the members, they were absorbed in Kate’s description of a volatile and unstable man. It was time, Terry judged, to start tying this more closely to Brian’s defense. “With respect to Iraq, did your husband ever mention Brian McCarran?”
“Very little. When Joe was still in Iraq, I began to think they’d had a falling out—even though our families were close, Joe stopped mentioning Brian altogether. When I’d ask about Brian, he would change the subject.”
“Did Joe ever say anything specific about their experience in Iraq?”
Kate’s eyes were grave. “Only once, before any of this happened. When Brian was in Sadr City, he was nearly decapitated by an IED—that’s why there’s a scar on his neck. I never knew about it until after they got home. When I asked why no one had told me, all Joe said was ‘I’d have been better off if those monkeys had taken off his head.’ ”
For an instant, Terry hesitated; over the weekend Kate had told this story for the first time. But Joe D’Abruzzo was dead—no one but his widow, Brian’s lover, knew if it was true. “After the time he split your lip,” Terry asked, “did your husband continue to hit you?”
“Yes,” Kate answered in a monotone. “Eight more times, always on the face. I remember every one of them.”
“Was he sexually abusive?”
“No.” Kate looked down. “He had no interest in sex at all. I told myself to be patient. But he seemed incapable of showing affection.”
Terry paused. “Was that why you became involved with Brian McCarran?”
“Not at all,” Kate said with a rush of feeling. “I went to him because I was frightened and sad and very alone. And we were always part of each other’s family: Tony—General McCarran—Meg and Brian; my mother and me.” She turned to Brian, speaking in a quiet tone. “Brian was always gentle, empathetic, and completely present. When you talk with Brian, you know that he’s listening, and that you matter to him.”
“How did your affair start, Mrs. D’Abruzzo?”
Kate bowed her head. “After Joe started hitting me, I didn’t know where to turn. If I went to his commanding officer, it might end his career. If I told my mother, she’d be angry at Joe and frightened for me. But I desperately needed to tell someone.” She drew a breath. “At first he just listened. When I was done, he held me for a very long time. I’d been so lonely, and so was he. We felt it at exactly the same moment, like this had been waiting to happen, but neither of us knew it. Suddenly we both did.”
As her voice trailed off, Kate seemed unable to look at anyone. Gently, Terry asked, “Did you and Brian talk about how to stop your husband from hitting you?”
“Brian wanted me to go to Joe’s battalion commander. I asked for time, hoping that somehow I’d get through to him.” She paused again. “Once Joe found out, it was like mutual assured destruction. Joe could ruin Brian’s career, and I could ruin Joe’s. I didn’t know what to do. That was when this terrible thing happened.”
Hands in his pockets, Terry paused, allowing the members to absorb Kate’s regret, the contrasts between Brian and her husband, the poisonous entwinement of these three people that had ended in a death. Then he asked, “Did you ever consider leaving your husband for Lieutenant McCarran?”
Kate shook her head. “It would ruin his career, tear our families apart, and traumatize our children. How could I ask them to substitute a family friend for their own father? When I was truthful with myself, I knew it had no future.” She spoke more softly. “But in a very real sense, I’d loved him all my life. In those three months, he gave me the moments of peace and safety that made me feel more human.”
“When your husband found out, did you break off the affair?”
“Yes.” Her voice became brittle. “But Joe couldn’t let it go. He kept asking what kinds of things we’d done in that hotel. The language he used was graphic and disgusting. Before, he couldn’t talk about our relationship. Now he couldn’t stop talking about my relationship with someone else.”
On the bench, Judge Hollis watched her closely, his clinical gaze revealing neither sympathy nor disapproval. Evenly, Terry said, “You described the incident where Brian took your husband’s pistol. What led up to that?”
“Joe held the loaded gun to my temple and threatened to fire. He was drunk. He said that he could kill me anytime he wanted to. And that he wanted to kill me every time he imagined me ‘spreading my legs for McCarran.’ ” Kate briefly lowered her eyes. “I was certain that he would. Instead he went to the Officers’ Club. All I could think to do was to call Brian.”
“How did he respond?”
“He came right over. He found out that the kids were at my mother’s and told me I should go there right away. When I said I couldn’t, Brian took the gun.”
“On the night of the shooting, what happened between you and Captain D’Abruzzo?”
Kate sat back, composing herself. “Joe was drunk again. When he found out the gun was missing, his face became so rigid he almost looked insane—it was like someone had thrown a switch in his brain.” Her speech became rapid, almost jittery. “He threw me on the bed, hands around my neck, fingers digging into my windpipe. He was staring into my eyes, and then his face went dark. I turned my head, gasping for air, and managed to rasp, ‘Brian has it—’ ” Kate stopped abruptly. “He was going to kill me, I swear it. Instead he went after Brian.”
The courtroom was silent—watching Kate, Flynn could have been a waxwork figure. After a moment, Terry asked, “When Brian came back from Iraq, did you also notice a change in him?”
“Yes. Sometimes he’ll get very quiet, like something’s hurting him too deeply to e
xpress. In that way he was like Joe. But there’s no meanness in Brian, none.”
“Did Brian ever talk about it?”
“Only once, when I told him that Joe was suffering from his time in Iraq. Brian gave me a funny look. Then he said, ‘Does he mention the guys who died there?’ Pausing, Kate looked troubled. “I said no. The look that crept into Brian’s eyes was somewhere between bitterness and despair. ‘You know that one of them named his kid after me?’ he told me in a quiet voice. ‘Imagine that.’ Then he went completely silent.”
“During your relationship, did you ever spend the night with him?”
“No. I couldn’t.”
“So you didn’t know whether Brian suffered from broken sleep or nightmares?”
“No. But I wondered. He always looked so tired and drawn.”
“Did Brian express any fear of Captain D’Abruzzo?”
“Not in words. But he knew Joe hit me. He knew that Joe had threatened to shoot me, because of him. And he knew that—with or without the gun—Joe could kill someone if he completely lost control.” Her voice thickened, and dampness surfaced in her eyes. “The night he went to Brian’s apartment, Joe was out of control, and Brian knew it. Because I called to warn him.”
“Liar.”
The shrill cry of rage and anguish made Terry flinch before he turned instinctively toward Flora D’Abruzzo. “Liar,” she repeated, pressing against the rail of the court as she pointed to Kate. “You helped him murder my son.”
For an instant, Terry had a jumble of images: Kate’s stricken gaze, Meg’s pallid face, the naked horror in Brian’s eyes, Joseph D’Abruzzo’s desperation as he clutched his wife around the waist, Flora struggling until, all at once, her body sagged and tears ran down her papery cheeks. Terry felt sick.
The gavel cracked behind him, cutting through the cacophony in the courtroom. “Ma’am,” Hollis said in his deep baritone. “The court knows you’re under stress. But if you can’t control your emotions, you can’t be here. I am asking the military police to remove you for the day.”
In the Name of Honor Page 28