The government had again responded with a motion to dismiss, and the hearing was set for the morning. It promised to produce still more fireworks.
Sloane built up a sweat digging the holes and helping to plant the rhododendrons, then put down the shovel and grabbed the hose to water them.
“This time next spring they’ll be in full bloom,” Tina said, gathering the plastic containers and her gardening tools. “I’ll finish here. You grab Jake. I’ll get dinner going.”
He kissed her, shut off the hose, and walked down to the beach. Jake had stayed closer to the house since his experience with Mr. Williams and remained leery of strangers. To Sloane it was sad that kids had to initially fear an adult, and that Jake had a better reason to do so than most.
“How are they biting, Hemingway?”
Jake smiled halfheartedly. “Nothing yet.” He cast out and waited for the lure to plunk into the water before clicking over the reel. “Mom says you have a big motion tomorrow. Are you going to be on the news again?”
“I don’t know.” Sloane smiled. “Probably.”
“Cool.”
“Your mom’s getting dinner ready. Better reel in.”
Jake began to reel. The top of his pole suddenly yanked forward, jerking him a step toward the water as the line on his reel whizzed. The big fish had struck quickly and was now running with the bait.
“I have one,” Jake yelled, eyes wide in disbelief. “Dad, I have one.”
Sloane smiled. “Play with him, son. Be patient. Let him tire himself out.”
U.S. DISTRICT COURT
SEATTLE, WASHINGTON
JUDGE JO NATALE looked down from her seat behind the bench.
“Mr. Sloane, you’re back.”
Natale spoke as if Sloane had simply stepped out of line at a bank and returned to make a deposit, seeming to ignore the overflow crowd in her gallery that included local and national news media, law enforcement, and attorneys from the Justice Department in Washington, D.C.
“I am, Your Honor,” Sloane responded, “and I’ve brought co-counsel.”
The man to Sloane’s right introduced himself in a deep baritone voice. “John Kannin, also appearing on behalf of the plaintiffs.”
When Sloane called to ask for Kannin’s assistance, he’d laughed. “I told you to kick up some dust,” he’d said, “not create a tornado.”
Beverly Ford sat between them at counsel table, Lucas and his three siblings in the first pew behind them. Sloane introduced them.
Tom Pendergrass again stood at the table perpendicular to Sloane, wearing his dress-green uniform. This time he was far from alone. Although Rachel Keane had opted not to sit at counsel table, she sat in the pew behind the railing, and a chorus line of blue suits two rows deep stood next to Pendergrass. Lawyers from national law firms stated their appearances on behalf of Colonel Bo Griffin, Argus International, Houghton Park, and a number of other current and former Argus executives, including Northrup.
When the attorneys had finished, Natale looked to Sloane. “I’ve read your amended complaint, as well as the government’s motion to dismiss, joined and supplemented by each defendant. Does the government wish to provide any further evidence?”
Pendergrass had attached the four witness statements to his motion to dismiss. One of the designated blue suits stood and objected that the introduction of the statements was improper. The others joined.
Pendergrass looked chagrined. “Your Honor, I am perplexed by my colleagues’ objections. The statements are already a part of the court record. Besides, they unequivocally state that Mr. Ford was killed incident to his service, while engaged in a military exercise. They prove there is no basis for Mr. Sloane’s fantastical allegations of a civilian conspiracy.”
Although the blue suits vehemently objected that the admission of the additional information was improper, Sloane knew, and he suspected Judge Natale did also, that their real concern was not the witness statements, but the smoking gun Sloane was prepared to use: the taped confession of Colonel Bo Griffin that the statements were false.
Judge Natale listened to their objections before turning to Sloane. “The real prejudice would be to you, Mr. Sloane. Do you object to the admission of these statements?”
“I do not, Your Honor, so long as the government will indulge me the same courtesy.”
Pendergrass looked to the bench. “The government has no objection.”
Again the blue suits objected. Again Judge Natale overruled them.
“Mr. Sloane, how many witnesses do you intend to call?” Natale asked.
“Two, Your Honor. We anticipate the testimony of the first witness to be lengthy. The second witness we don’t anticipate will take much time at all.”
“Very well, call your first witness.”
“Plaintiffs call Captain Robert Kessler.”
Every head in the room turned as the courtroom doors opened and Kessler wheeled himself down the aisle in full-dress uniform, the medals on his chest glistening. Jenkins and Alex, who had been protecting Kessler and his family, slipped silently into the room behind him.
The intervening weeks since Kessler had gone to the newspapers as an Argus whistle-blower looked to have taken its toll on him physically. Thin through the cheeks and neck, he had dark circles beneath his eyes, indicating he had not slept much. The Justice Department and FBI had subpoenaed him to testify before a grand jury, and Congress, too, had indicated it would subpoena him to appear at hearings. Sloane had agreed to represent him.
With Kessler positioned at the witness stand, Sloane moved to the podium and gently walked him through his background. Then he asked Kessler about the admissions made to him by Griffin. Concluding, Sloane asked, “Captain Kessler, these are rather incredible statements. Do you have anything to support your allegations that Colonel Griffin made them?”
As rehearsed, Kessler said simply, “I do.”
“And what evidence would that be?”
“The statements were recorded.”
The blue suits leaned forward, like swimmers on starting blocks, as Sloane casually returned to counsel table and John Kannin handed him the tape. Kannin had performed the research on the admissibility of the recording in a Washington federal court. It was a dicey argument. Natale could go either way.
“Your Honor, plaintiffs wish to move into evidence a tape recording made the night in question as authenticated by Captain Kessler, and further wish to play that recording here in court.”
The blue suits dived from their blocks, objections flying. They argued that the tape was inadmissible because Griffin had been surreptitiously recorded.
“Mr. Sloane, are you prepared to authenticate the tape?” Natale asked.
“I am, Your Honor. The operator is in the courtroom,” he said, referring to Jenkins.
“And what of the defendants’ objection that the tape is inadmissible?”
Sloane turned to Kannin, who handed him the legal brief containing the argument, though Sloane had committed it to memory. He presented the brief to Judge Natale and a stack of copies to the opposing counsel. “The exclusionary rule is a product of the constitutional protections of the Fourth Amendment, Your Honor. It is a constitutional limitation on the admissibility of evidence otherwise probative. The Supreme Court has therefore restricted its application, as has the Ninth Circuit, which governs here. So long as the Fourth Amendment has not been directly violated, a recording obtained with the consent of one party to the conversation is admissible in federal court. Captain Kessler agreed to be recorded, and defendants have not argued a Fourth Amendment violation.”
Judge Natale turned to the blue suits. “Do you have some evidence that the tape was obtained in violation of your clients’ Fourth Amendment rights?”
They did, of course, given that Sloane had ridden through Argus in a Bradley and busted through the warehouse wall. But the men had no way to prove that a regiment of national guardsmen had stormed Argus under the cloak of night. The guardsmen, t
o a man, feigned ignorance of any such maneuver. They had all filed statements that they had driven off course while performing an exercise. Their superiors supported them. The two Argus guards with Griffin that night were also cooperating with the investigation and apparently had no desire to hurt their deals by standing up for the colonel. Besides, Griffin couldn’t very well call upon them, since he had no way to justify his presence at the company the night in question without admitting to being part of the civil conspiracy.
After the chorus line of lawyers fumbled with their responses, Natale turned to Sloane. “I’m going to rule that the tape is admissible. You may play it, Mr. Sloane.”
For the next twenty minutes the only sounds in the courtroom were the recorded voices of Griffin and Kessler. When the recording ended, there was deafening silence. The blue suits sat with their heads down, either rethinking their strategy, or thinking of a way out of the case. Beverly Ford sat stoically.
“Captain Kessler,” Sloane said, “do you believe James Ford was a hero?”
No one objected. No one dared.
Kessler looked to Beverly Ford. “I believe that every man and woman who serves is a hero. We might not agree with the philosophy of the war, but as soldiers that is not our job. It’s about service. James Ford, Michael Cassidy, Dwayne Thomas, and Phillip Ferguson served with honor. They are all heroes.”
AFTER A MORNING recess, Judge Natale retook the bench. “Mr. Sloane, you indicated you have a second witness?”
“We do, Your Honor. Plaintiffs call United States Attorney Rachel Keane.”
The announcement brought still further astonished expressions and utterances. Keane, who had sat calmly to that point, went ghostly white.
Pendergrass rose. “The government objects. We had no prior knowledge of plaintiffs’ intent. As a matter of courtesy, counsel should have notified us of this clearly unorthodox request. The United States attorney represents the government. She is extremely busy.”
Sloane had to give Pendergrass credit. The objection sounded almost sincere.
“The United States attorney is in court, Your Honor,” Sloane countered. “And we don’t intend to keep her long. Nor do we intend to ask her any questions that could violate the attorney-client privilege or the work-product doctrine.”
Natale looked to Keane. “The U.S. attorney has been present in the courtroom all morning. Therefore I see no prejudice,” she said. Sloane thought he noticed a slight lilt in Natale’s voice. “Ms. Keane, please take the stand.”
Keane stood and proceeded up the aisle while reporters scribbled furiously in their notepads. After Keane had been sworn to tell the truth, Pendergrass stipulated that Sloane could dispense with the usual preliminaries concerning Keane’s occupation and other personal information.
“I think we’re all aware of Ms. Keane’s background,” Natale agreed, and this time Sloane was certain he detected a hint of sarcasm.
Sloane stepped back to the podium. “Ms. Keane, as the United States attorney for the Western District of Washington, you have authority to make offers of settlement on behalf of the United States so long as those offers do not exceed a certain dollar limit. Is that correct?”
“That is correct,” she said.
“And in this particular matter you authorized a settlement offer to Mrs. Ford in an amount within your authority. Isn’t that correct?”
Pendergrass stood, his timing perfect. “Objection, Your Honor. Offers of settlement as well as all settlement discussions are inadmissible pursuant to Evidence Rule 408.”
“Mr. Sloane?” Natale asked.
“Counsel is correct. An offer of settlement is inadmissible for the purposes of implying guilt or liability. We are not offering it for either reason. We are offering this evidence only to show that an offer was made. If the court will grant me some indulgence, I can finish this quickly.”
“I’m going to overrule the objection,” Natale said. “I’ll allow you some leeway, Mr. Sloane. I believe the court is sufficiently capable of differentiating between the many reasons why an offer of settlement can be made other than liability. Answer the question, Ms. Keane.”
Keane looked up at Judge Natale. “Yes, I authorized an offer of settlement.”
“Was there a demand?” Sloane asked.
“No, there was not,” Keane said, still poised, though looking less and less in command.
“Is it unusual for the United States attorney to make a settlement offer when the plaintiff has not made a demand?”
“It happens,” Keane said, calm.
“Can you remember another occasion?”
Keane shrugged. “Not off the top of my head, no.”
“So we can assume it’s not frequent.”
“No, it’s not frequent.”
“And you did not seek authority from your superiors to make this settlement offer because, as you said, the amount was within your authority, correct?”
“That is correct.”
“Did you request that a Treasury check be issued from the Department of the Treasury?”
Keane smiled. “There was no need, Counselor. Your client turned down the offer.”
Sloane paused, nodding. Then he asked, “I take it, however, that you advised the Federal Tort Claims staff that Mrs. Ford had filed a claim and forwarded a copy of the complaint to them for processing?”
“I don’t do those kinds of things, Counselor. Someone on my staff handled that,” Keane said, dismissive.
“And when would that have been done?”
“I’d have to have my staff check the file. I really wouldn’t know.”
“Was it within the last week?”
“Yes,” she said. “Most likely.”
“Actually, you have a good memory,” Sloane said. “It was one week ago today,” he said, holding up another document. “But perhaps you didn’t hear my initial question, Ms. Keane. I didn’t ask whether you forwarded a copy of Mrs. Ford’s amended complaint to the Tort Claims division. I asked whether a copy of the original complaint was forwarded to that division.”
Keane squirmed in her chair. “I don’t recall.”
“I think we’ve just established that that would have been standard procedure, would it not?”
“Yes, it would have been.”
“Would there be any good reason why that standard procedure would not have been followed in this instance?”
“I can’t think of any. Perhaps administrative oversight.”
“In that case, I would request that the government be ordered to turn over their file for Beverly Ford.”
Pendergrass stood. “Objection, Your Honor. That request violates the attorney-client privilege and contains the government’s work product.”
“Your Honor,” Sloane said. “I’m not interested in any of the government’s work product. I’m just interested in whether the United States attorney ever notified the proper divisions within her office that Mrs. Ford filed a complaint before the offer of settlement. I’m happy to allow the government to provide that file to the court for an in-camera inspection for that purpose.”
“I’ll grant the motion,” Natale said, now seemingly on Sloane’s wavelength or at least damn interested in where he was heading. “The government will provide the court with its file immediately following this hearing.”
Pendergrass sat.
“Mr. Sloane, do you have any further questions of Ms. Keane?”
“No, Your Honor.”
Keane started from the stand.
Sloane turned back. “Actually, I’m sorry, I do have just one more.”
Keane begrudgingly retook her seat.
Sloane took a moment, as if studying his notes before looking up at the U.S. attorney. “Ms. Keane, have you ever met with Argus CEO Houghton Park and Colonel Bo Griffin at Mr. Park’s residence on Lake Washington to discuss how Argus could pay a hundred thousand dollars to Mrs. Ford so that no settlement offer would have to be communicated through the Tort Claims staff?”
The courtroom erupted. This time Judge Natale did not seek to calm it. She turned and looked to the witness chair.
Keane’s face had faded to an ashen white. Her eyes shifted across the room to Pendergrass, urging him to stand and object.
But Pendergrass remained anchored in his seat, eyes locked on Rachel Keane. To the rest of the courtroom he looked like a statue, unmoving, frozen, but Sloane saw the nearly imperceptible movement, and he knew Keane did as well.
Pendergrass winked.
OUTSIDE THE COURTHOUSE Sloane finished with the last of the news media interviews. As technicians rolled up yards of cable and packed equipment back into news vans, he unclipped the microphone from his suit coat and met Beverly Ford in the courtyard out front of the Federal Building. Beverly wore the same modest skirt and jacket as when Sloane first met her in the King County Superior Courtroom. She called it her lucky suit.
At the end of the hearing Judge Natale had not taken the matter under submission, as was her normal routine. Instead, she had read from a carefully prepared statement. She said that the evidence of wrongdoing on the part of Argus and its directors, as well as Colonel Bo Griffin, and perhaps Rachel Keane, was overwhelming.
Keane had never answered Sloane’s final question. She pleaded the Fifth Amendment.
Natale also said there was significant evidence the mission that had resulted in James Ford’s death was not a military operation at all, and therefore that James Ford had likely not been killed while acting incident to his service.
Then she granted the government’s motion to dismiss.
While the rest of the courtroom sat in wide-eyed shock and disbelief, Judge Natale explained that despite the evidence, under the Feres doctrine, as currently interpreted by the U.S. Supreme Court, Beverly Ford’s complaint was barred, and Natale was duty-bound to apply it.
God bless her! It was the only time Sloane could have kissed a judge for ruling against him.
Wrongful Death: A Novel Page 32