Wrongful Death: A Novel

by Dugoni, Robert

  “What did she do?” Sloane asked.

  “She told him to also go fuck himself. Then she filed a grievance. The military court-martialed the three soldiers, but none were convicted of rape. They all stuck to the same story: Private Evans was a willing participant; the bruises and cuts were because she liked it rough. When her administrative action finished, she found me. I did some research, came to the conclusion she was shit out of luck, and filed a claim in federal district court against the government, the army, and the three soldiers.”

  The latter two sentences didn’t make sense. “She was shit out of luck, but you filed the complaint?”

  Kannin shrugged. “Like I said, I like to shake the trees and see what falls out. I’m not afraid to lose, but I hate rolling over. I learned playing football that things can turn around quick. I was hoping that would happen in Private Evans’s case.”

  “Did it?” Sloane knew it was likely or they wouldn’t be discussing the case.

  Kannin nodded, still smiling. “During discovery I learned two of the soldiers had a propensity for violence against women, and one had earlier confided to the same investigating officer that, given the chance, he’d, quote, ‘like to fuck the shit out of Private Evans,’ end quote. But this officer is a wannabe, a weenie. You know the type? He’s trying to be one of the boys. So he says nothing about it. Then they go and do it. Now his ass is on the line.”

  “Sounds like a pretty good case. Why would you be shit out of luck?”

  Kannin put up one finger. “You’re thinking like a civil lawyer. Remember this is military law. The assistant U.S. attorney brought a motion to dismiss, arguing that the Feres doctrine barred the claim.”

  “The Feres doctrine?”

  Kannin’s smile now had a bit of the Cheshire-cat grin. “And you were a marine. The first rule of military law is understanding the hurdles, and the Feres doctrine is about a ten-foot hurdle. This is where you might want to take notes.”

  Sloane took out a pad of paper and a pen from his briefcase. Kannin spoke in a rote tone, as if reciting a legal treatise from memory. “When an inductee takes the oath of enlistment, he swears to protect the Constitution of the United States against all enemies both foreign and domestic.”

  “I remember it well,” Sloane said.

  “But I’ll bet you didn’t know that at that very instant you also forfeited your right to sue the government, the military, and your superior officers for injuries incurred ‘incident to service,’ even if you could prove those superior officers acted negligently or deliberately to deprive you of your constitutional rights.”

  “Incident to service. What does that mean?”

  Kannin shrugged. “Hell if I know. Hell if the courts know. But there’s a case directly on point that says getting raped on base fits the definition.”

  “You’re kidding?”

  “There’s also precedent that says having the wrong leg cut off by a military doctor, or having surgical tools left inside your stomach is ‘incident to service.’ So is being unwittingly exposed to nuclear radiation during atomic testing, or to chemical weapons, LSD, and electroshock treatment as part of a military test program. I could go on, but I think you get my point.”

  “This all developed from one case?”

  “Three, actually. In 1950 the Supreme Court consolidated three cases with a common thread—families of soldiers suing the government and members of the military for their deaths. The family of Lieutenant Rudolph Feres claimed their son died because the government negligently quartered him in barracks it knew had a defective heating unit. The barracks burned to the ground.”

  “How have the courts rationalized the doctrine?”

  “Not well. But you have to remember that 1950 was not long after the end of the Second World War, which meant the Supreme Court was faced with the potential of hundreds of thousands of civil claims by soldiers and their families. The justices opined that military benefits rather than lawsuits were the appropriate remedy.”

  “Makes sense in theory,” Sloane agreed.

  “It did. But obviously, the courts didn’t anticipate that civil jury awards would eventually dwarf military benefits, or that lower courts would extend the doctrine as far as they have.”

  “I take it people have challenged it?”

  “Some,” Kannin said. He lifted a thick black binder from his desk and handed it to Sloane. “I took the liberty of pulling this off the shelves when your secretary called. These are the highlights. I think my research pulled up around three thousand total cases.”

  “Three thousand? And nobody’s punched a hole in the rationale?”

  “The rationale changes, but the most frequent explanation is that claims by soldiers could subvert the chain of command and make officers hesitant during combat.”

  “That’s ridiculous. No officer is going to be thinking of a lawsuit in the middle of a battle.”

  “I agree, and the Supreme Court was leaning that way too the last time it heard a Feres case. The justices split five to four. Justice Scalia wrote that Feres was wrongfully decided then and remained wrongfully decided.”

  “But they didn’t overrule it.”

  “It was the wrong case for a reversal. You think you got a better one?”

  “I don’t know. Sounds like you didn’t.”

  “We never got that far.”

  “What happened?”

  “The morning of the hearing I’m standing in the hall with my ass in hand when I get a gift handed to me. My investigator calls to tell me that a certain army officer who visited my client in the hospital is the nephew of a prominent politician whose name I am not at liberty to divulge pursuant to a confidentiality order I would never deliberately violate—Jack T. Miller.”

  “The senator?”

  Kannin put up both hands. “I can’t say. But when I bring this up in the hallway with the assistant U.S. attorney, along with my intent to tell the media, she’s suddenly willing to kick over the hearing. Two days later I have a settlement offer on my desk, which, of course, I rejected. Two offers later we’re in the six-figure range and the first figure, which I am also forbidden to reveal, was not a one, or two, but comes before four.” Kannin sat back. “Enough of my war stories. Tell me about your case.”

  Sloane explained what he knew about James Ford’s death. As he did, Kannin shook his head. “You’re right in the jaws of Feres, I’m afraid, and it’s especially tough in your situation because the Federal Tort Claims Act prevents soldiers from recovering for injuries incurred serving during a war in a foreign country.”

  Sloane sighed. “Sounds like I’m at a dead end.”

  “What you need is something to bargain with,” Kannin said. “The government is sensitive—the war hasn’t exactly gone as the administration led us all to believe. You need to make someone important’s ass pucker.”

  “And if I can’t?”

  “Based on what you’ve told me, you’ll lose. Unless you can do what about three thousand other lawyers couldn’t.”

  “What’s that?”

  “Find a loophole in the Feres doctrine.”

  CHARLES JENKINS STOOD waiting on the sidewalk outside John Kannin’s building looking like a well-paid bodyguard in a black leather car coat, black jeans, and sunglasses.

  “You can be arrested for loitering,” Sloane said.

  “Elvira gave me the address. My alternative was to wait for you in your office with her giving me the evil eye. I’d rather be arrested.”

  “Carolyn’s harmless,” Sloane said.

  “That’s what they say just before the vampire sinks her teeth into your neck. I recommend a garlic necklace.”

  Sloane slipped on sunglasses. A breeze rustled the leaves in the dwarf maple trees and kicked up pieces of litter, creating small tornadoes in Occidental Square. “So why are you waiting for me?”

  “I found someone who was with James Ford the day he died.”

  “That was fast.”

  “It will be
reflected in my bill.” He handed Sloane a piece of paper with an address and phone number.

  “Marysville?” Sloane checked his watch. It was getting late, and like the Bay Area, Seattle had too many cars and not enough means to escape the downtown. Traffic would be heavy on I-5 heading north, which was the opposite direction from Three Tree Point. “You sure this guy will talk to me?”

  Jenkins shrugged.

  “You haven’t talked to him?”

  “You just said to find them. I found him. Besides, you told me you like to talk to the witnesses yourself.”

  “But you’re sure he served with Ford.”

  “Same platoon, same squad, injured the same day.”

  “What type of injuries?”

  “Don’t know. But he also received a Purple Heart. Five of them did.”

  “Must have been a hell of a battle,” Sloane said.

  “Must have been.”

  “How many died?”

  “Just your boy Ford.”

  MARYSVILLE, WASHINGTON

  SLOANE TOOK THE exit just past a salmon, rock, and waterfall sculpture in the front of the Tulalip Indian casino. Tribal money was abundant in the area. The forest along the freeway had been recently clear-cut, and according to a large construction sign, nature was to be replaced by both a Home Depot and a WalMart. During the drive north, clouds had rolled in overhead and the weather had changed quickly—not unusual for the Northwest, as Sloane had learned. He should have become a weatherman. He only needed to be right fifty percent of the time and he’d still get a paycheck. Rain began to splatter the windshield and soon the wipers beat a steady hum.

  Uncertain of the area, he took an exit and pulled into a gas station, parking for a moment to retrieve the map from the glove compartment. Being a guy, his first instinct was to drive around and hope he stumbled onto the address. Being a woman, Tina had purchased a set of maps for each car when they moved from San Francisco. Sloane found the street name on a map that included Marysville, neatly refolded it so Tina wouldn’t know he’d actually used it, and replaced it in the glove compartment.

  Marysville had at one time been rural farmland, but as with other areas of the Pacific Northwest, farmers had sold to developers. Fences now separated farm acreage from tract homes. Sloane turned off the paved road onto a dirt and gravel road and drove through a field of strawberries that led to a two-story yellow farmhouse. As he neared, the road became a circular drive around an area neatly gardened with shrubs and flowers, brightly colored tulips. Dogs lounging on a wraparound porch sat up and barked. He wouldn’t sneak up on anyone.

  He stepped from the car into a steady rain and walked a gravel path to the porch, the dogs continuing to bark, but remaining dry beneath the safety of the covered porch, and showing no real threat. One cocked his head and took a step back as Sloane reached the porch, as if he understood barking to be his job, though he wasn’t particularly enthusiastic about it.

  “Shush now,” Sloane said, never having become comfortable around dogs and not sure how to act. It worked. The dogs lowered their heads and padded behind him. He drew back a screen to knock but the inner door pulled open, the dogs having announced his presence. An attractive woman in a red knit sweater and blue jeans greeted him. “Can I help you?”

  “I’m sorry to bother you.” Sloane handed her a business card, which she took with some hesitancy. “My name is David Sloane. I’m an attorney. I was hoping to speak with Phillip Ferguson.”

  The woman’s brow furrowed and she looked down at the card. Rain beat on the shingles overhead. She lowered the card. “I’m afraid that’s not possible.”

  “I won’t take much of his time, just a few minutes.”

  “You won’t take any of his time,” she said. “My husband is dead.”

  SHE STOOD WITH one hand holding the edge of the door.

  “I’m very sorry,” Sloane said.

  “What is it you wanted to talk to Phil about?” She looked down at the business card. “Mr. Sloane.”

  “I represent the wife and children of a soldier who served with your husband and died the night he was injured, James Ford.”

  “Phil said something about that. I guess you could say Phil died over there in Iraq too.”

  “I understood that he was injured,” Sloane said. “That he received the Purple Heart.”

  Katherine Ferguson’s bangs fluttered in a breeze. A tear escaped, but she wiped it halfway down her cheek. “My husband lost his eyesight that night. Shrapnel from an explosion damaged the optical nerves behind both his eyes.”

  “I’m sorry.”

  She gestured to the strawberry fields. “Phil was a farmer. This was his father’s property. It was split between my husband and his brother.” She shrugged as if to say, What are you going to do? “Phil couldn’t farm blind and…well, farming was what he did.”

  Sloane sensed the conversation’s direction. He’d heard and read of similar stories of Vietnam veterans.

  Katherine Ferguson let the screen door slap closed and walked to a corner of the porch. She pointed to a rust-colored barn, a traditional structure with wide doors and a hayloft. “About six months ago Phil went to the barn and shot himself.”

  Sloane was at a loss for words. It struck him that Katherine Ferguson was a young woman, like Beverly Ford, both too young to be burying a husband. “I’m not going to pretend to understand your loss, but I am truly sorry.”

  “What are you doing for the family?”

  “Mrs. Ford filed a claim—”

  “Did they deny it?”

  Sloane heard a bitterness he had not previously detected. It gave him pause. “Yes, they did. Did you file a claim, Mrs. Ferguson?”

  “Katherine,” she said. “I had an attorney file a claim for me.” She rolled her eyes. “I have two children, Mr. Sloane. My husband was forty-three years old and in a hospital bed. I wasn’t sure how we were going to get by. Someone told me you could file a claim and maybe get some money. I went and talked to an attorney about it and had a claim filed. Phil didn’t want to, but…”

  The clouds burst, unleashing a torrent of rain. Sheets of water overwhelmed the gutters and spilled from the overhang, splattering the porch steps. “I’m sorry,” she said. “Please, come in out of the rain.”

  He followed her inside to a living room and sat on a love seat, waiting for her to sit in an adjacent armchair. She sat on the edge of the cushion, looking anxious. “I don’t want to take up too much of your time, Katherine.”

  “It’s okay,” she said. “The kids aren’t home from school yet and I’m just doing the bills and stuff for the farm. Phil’s brother is teaching me and I’m taking some classes at a community college. I’m thinking of maybe becoming a CPA.”

  “I know it’s hard treading over difficult memories, but do you happen to know anything more about the night your husband was injured? Did he ever talk with you about it?”

  Ferguson’s gaze found a spot on the wood plank floor. “Not in any detail. I remember him saying they never should have been there.”

  “Did he say what he meant by that?”

  She shook her head. “I assumed he meant Iraq.”

  “Had your husband ever made a statement like that before?”

  “No. I mean, Phil wasn’t necessarily in favor of the war, but he did believe in serving, in performing his duty.”

  “Did he ever mention James Ford?”

  “Not by name. Like I said, he told me a guardsman was killed and another one paralyzed that same night. He said there were five of them when they got ambushed. I remember because he said they didn’t have enough firepower.”

  When Jenkins mentioned that five guardsmen had received the Purple Heart Sloane assumed that was five of many, not five men total. It seemed like a small number given the battle the witness statements described. “Just five?”

  “That’s what he said.”

  Sloane suspected Katherine Ferguson was, like most witnesses, trying to forget a painful memory.
They professed not to remember it, but if you pressed, they usually remembered more than they realized. The key was not pressing too hard. “Did your husband say anything more about that—about how they got ambushed?”

  She thought for a moment. Then she sat back. “A little bit.”

  HIGHWAY 10, IRAQ

  “I CAN’T SEE.” Ford leaned forward, his nose nearly pressed to the windshield. “I don’t even know if I’m on the road anymore, Captain.”

  Out the windows it looked as if the Humvee had driven off a cliff into a brown sea. Ten minutes earlier it had been sunny, not a cloud in the sky. Then the sandstorm blew in from the south, what the Iraqis called a “turab,” and quickly turned the sky a reddish-orange before totally eclipsing the sun. The convoy had attempted to roll through it, but visibility had deteriorated to less than a foot.

  Kessler picked up the headset to the radio mounted below the FBCB2 communication system on the dash. He used his call sign to try to reach the rest of the convoy. “Alfa one-two, this is Charlie Tango Three, over.” The response was static. The storm could wreak havoc on their communication systems. Kessler waited a beat before trying again. “Alfa one-two, acknowledge. Over.” When he received no response, he set the headset back atop the radio.

  Ford looked at him from the driver’s seat while continuing to inch the truck forward. In the absence of specific orders, it was the vehicle commander’s decision to stop.

  “All right, shut it down,” Kessler said. “We’ll ride it out here.”

  Ford braked to a stop. Wind rocked the Humvee and whistled through every crack. Sand swept over them, sounding like brooms brushing metal.

  Cassidy poked his head between the seats. “You think the others stopped, Captain?” His jaw worked a piece of chewing gum.

  “Likely,” Kessler said, though Ford didn’t know how the captain could tell. He couldn’t see six inches from the hood.

  Kessler said, “Sit back and relax, Butch. And bring Fergie in.”

  Cassidy tapped Ferguson’s leg. A moment later Fergie slid down the hatch from his position manning his M249. His upper torso looked like someone had rolled him in flour. When he pulled down his face gaiter, sand shook free, drawing a complaint from DT, which only made Ferguson shake more vigorously. His goggles had imprinted raccoon eyes on his face.