Treason

by Don Brown

  “What did you find at the hedgerow?” Zack asked.

  “That’s when we saw the ensign,” number two said. “She was crying. Crumpled on the grass, just crying.”

  “What was she wearing?”

  “She was wearing the officer’s white uniform with the white skirt. Like the one the Lieutenant there’s got on.” The shore patrolman pointed to Diane. “Only it was real messed up. Grass stains and all.”

  “I’ll show you what we’ve marked as Prosecution Exhibit 1, Petty Officer,” Zack walked from the counsel table to the witness stand. “Do you recognize this?” He held up Marianne’s articles of clothing, one by one, and the shore patrolman identified them.

  “Thank you,” Zack said and walked back to his chair.

  “Lieutenant Colcernian? Cross-exam?” Judge Reeves asked.

  Diane stood. “The ensign never actually told you she had been raped, did she, Petty Officer?”

  “No, ma’am. She was just crying.”

  “And it’s possible, is it not, that she was crying because she was embarrassed you caught her in a compromising position with an enlisted man?”

  Zack shot to his feet. “Objection! Calls for speculation.”

  “I reckon,” the petty officer said before Judge Reeves could speak.

  “Sustained,” Judge Reeves said.

  Diane fixed her gaze on the witness. “You don’t know whether Ensign Landrieu consented to relations with Petty Officer Blount or not, do you?”

  “No, ma’am.”

  Zack’s last witness was a PhD forensics expert from the NCIS crime lab in San Diego. The technician, professorial and timid-looking in his yellow polyester-blend shirt and wire-rimmed spectacles, said that analysis proved “with a virtual 100 percent certainty” the stains found on the clothing in evidence matched the DNA of BT3 (SEAL) Antonio Blount, United States Navy.

  At the end of his testimony, silence filled the courtroom, but the echo of Brewer’s footsteps as he crossed the hardwood floor between the witness stand and the jury box was strangely deafening.

  Diane declined cross-examination. She gave Zack a smug look as she settled back in her chair, arms crossed. She obviously had something up her sleeve.

  “Your Honor, the government rests,” Zack said with more confidence than he felt.

  Judge Reeves fixed his gaze on Diane. “Lieutenant Colcernian, will the defense be putting on evidence?”

  Diane rose. “The defense calls Mr. Willie Garrett of Metairie, Louisiana.”

  “Objection!” Zack jumped to his feet. “Your Honor, this person is not on the witness list.”

  Reeves rifled through some papers on the bench, then glanced at Diane. “Lieutenant, I don’t see this witness on your list.”

  “Your Honor, Mr. Garrett will testify—”

  “Your Honor,” Zack interrupted. “I request an Article 39(a) session outside of the presence of the members.”

  “Lieutenant Colcernian”—Reeves glared at Diane—“don’t say another word until we have sequestered the members in the deliberation room.”

  “But, Your Honor,” Diane persisted, “I was just going to say that Mr. Garrett—”

  “Lieutenant!” Reeves snapped. “One more word before the members leave and I’ll hold you in contempt and have the master-at-arms escort you to the brig. Is that clear?”

  Diane flushed crimson. “Aye, sir.”

  As the members filed out of the courtroom in silence, Zack smirked across the aisle at his red-faced rival.

  Chalk up one for the prosecution.

  “Now then,” Judge Reeves said as the bailiff closed the door to the jury room. “Lieutenant Colcernian, you’re aware of the court’s rule that we do not have substantive discussions about prospective testimony from a witness in front of the members, are you not?”

  “Yes, sir,” Diane said.

  “Because to do so may result in them hearing testimony or evidence that I may later deem as inadmissible. You wouldn’t want that to happen, would you, Lieutenant?”

  Zack snickered as Diane, still rocking from the admonishment, said, “Of course not, Your Honor.”

  “So there will be no more stunts like that from you during the course of this trial. Understood?”

  “Yes, sir. My apologies.”

  “Tell me about this surprise witness. What’s his name?” Reeves looked down at the note he had scribbled on his legal pad. “A Mr. Garrett?”

  “Your Honor, Mr. Garrett is a young man from Louisiana that Ensign Landrieu dated when she was in high school and also some while she was at the Naval Academy.”

  Zack shot to his feet. “Your Honor—”

  “Hold on, Lieutenant Brewer,” Reeves said, holding up a hand, palm out, in Zack’s direction, but keeping his gaze on the defense counsel. “Lieutenant Colcernian, can you explain to me how who Ensign Lan-drieu may have dated has anything to do with whether your client raped her?”

  “Your Honor, we’re raising a consent defense. In other words, that Petty Officer Blount is not guilty of rape because Ensign Landrieu consented to relations with him. Now this, as you know, is an alleged rape that not only crosses the officer-enlisted boundary, but also crosses racial boundaries. In this case, the alleged victim is a white officer, and the alleged perpetrator is a Filipino American, a former enlisted man who was a Navy SEAL—and a rather athletic one at that.”

  “So?” Reeves whipped his wire rims off.

  “So just like Petty Officer Blount, Mr. Garrett was an enlisted Navy SEAL.”

  So this was the surprise stunt he had expected from Diane. “Your Honor, may I address that, please?”

  “Very well, Trial Counsel.”

  “Judge Reeves, despite the fact that the defense withheld notice of this surprise witness—and despite the fact that the witness should be excluded for violation of the rules alone—even if she had given us the requisite notice, this proffered testimony is a violation of the rape-shield statute. You simply can’t bring in evidence of a victim’s past sexual history, including evidence of who she’s dated, for the purposes of proving consent in a rape trial. This is a classic rape-shield situation. Victims are by law entitled to protection in court. You should disallow this testimony.”

  “Lieutenant Colcernian, Lieutenant Brewer raises a couple of good points. First, you did not comply with the rule requiring you to disclose this witness to the prosecutor. And second, he raises a good point about the rape-shield statute. How do you address that?”

  “Your Honor, we did not learn of this witness and others like him until over the weekend, when a private detective we had employed in Louisiana found him. So there wasn’t time before trial to disclose his existence. And if I haven’t complied in a timely manner, it’s unfair to hold my incompetence against my client. He’s facing life in prison, and he’s entitled to call witnesses to his defense. As you know, the Armed Forces Court of Military Review routinely reverses convictions for ineffective assistance of counsel. So I’d ask you, Judge, please don’t hold my incompetence against my client.”

  She was using the oldest trick in the book: try a dirty trick and blame it on incompetence.

  “And the other point I’d like to make is this: we aren’t calling this witness to testify about specific promiscuous acts by the ensign. We have no interest in the details. But in a consent defense, Petty Officer Blount is entitled to ‘blunt’ the notion that the officer-enlisted nature of this alleged offense makes it more likely the act was nonconsensual.”

  “That’s ridiculous, Your Honor.” Zack waved his hands in the air. “The rape-shield statute contains no such exception to it. Whether Mr. Garrett is or is not a former SEAL, the law does not allow him to get on the witness stand and talk about his relationship with Marianne Landrieu.”

  “Maybe not,” Diane shot back with that eye-of-the-tiger look she had. “But there is a constitutional right to a fair trial. And even though we are in the twenty-first century, there is still the notion floating around that a Nav
al Academy graduate, the daughter of a powerful United States senator, would never date an enlisted man, especially one in a lower socioeconomic class. So these witnesses are being called simply to rebut that notion. That’s all.”

  “Did you say these witnesses, Lieutenant?”

  “Your Honor, in addition to Mr. Garrett, our investigator has located two other young men. All witnesses are former Navy SEALs. All will testify to having dated Marianne Landrieu on numerous occasions.”

  Zack felt the hair rising on the back of his neck. “Your Honor, this is an outrageous, below-the-belt smear tactic. I hope the court won’t allow any of these witnesses to testify.”

  Reeves put his glasses back on and stared at Diane. “Any more surprises, Lieutenant?”

  “No, sir, Your Honor.”

  “Very well. Court is in recess while I take this matter under advisement. I will return with a decision on whether these witnesses may testify once I have had an opportunity to conduct some research.”

  “All rise.”

  The banging gavel echoed throughout the courtroom as press members furiously scribbled notes on their pads.

  CHAPTER 31

  The Oval Office

  The White House

  Washington, D.C.

  President Mack Williams leaned back in his chair and crossed his arms. Sunlight streamed through the three bulletproof windows just behind his leather chair, slicing a sharp, diagonal light across his desk. Outside the window, the South Lawn and the Rose Garden made a picturesque backdrop, a peaceful contrast to the heated debate taking place in his office.

  The debate was between Attorney General R. Wiley Hutchinson and Secretary of Defense Erwin Manuel Lopez, who sat in wingback chairs in front of his desk. White House chief of staff and the president’s chief political advisor, Wally Walsh, sat quietly to one side, more to observe than to contribute. His opinion would be sought later.

  Sitting in this room, listening to both of the arguments, President Williams imagined what Franklin Roosevelt must have felt when the Army and the Navy fought over who would be in charge of the war in the Pacific in the early 1940s. Or when J. Edgar Hoover’s FBI clashed with Bill Donovan’s Office of Strategic Services—later the CIA—over which agency would be responsible for foreign intelligence gathering. Whether it was MacArthur clashing with Nimitz, or Hoover clashing with Donovan, interagency turf wars in Washington were as old as the republic itself. In this case, the turf war was between the attorney general and the secretary of defense.

  The president had heard enough sniping between Hutchinson and Lopez. It was time to give each of the parties a last say and then make a decision. “You realize, do you not, Mr. Attorney General, that I began both my legal and my military career as a Navy JAG officer?”

  Attorney General Hutchinson, slim, silver-haired, and just shy of six feet two inches tall, unfolded himself from the leather wingback chair in front of the president’s desk. “Mr. President, with all due respect to the Department of Defense”—his tone was clipped, clearly impatient—“what’s happened here is a threat to the national security of the United States.”

  He hooked his thumbs under his suspenders and walked toward the presidential seal at the center of the Oval Office’s navy blue carpet. “I have great admiration for the JAG Corps. Most of our JAG officers are the best and the brightest of their law school classes. They are talented young litigators. But with all respect, Mr. President, because they are the best and the brightest, they often leave the Navy after a few years when they get recruited by big law firms paying big bucks, or, as you did, sir, they go into politics. The lawyers who stay in the service, the JAG Corps’ senior officers, so to speak, migrate into non-litigation areas, such as international law and drafting wills.”

  He frowned, pacing a few steps. “That means most of the JAG Corps’ criminal prosecutors, as you know, sir, are the junior officers with less than five years’ experience out of law school. Think about what we would be asking some junior JAG officer to do. Look at what these defendants have done. They ordered the Israeli ambassador to the United States to be shot by a United States Marine. They ordered a sailor to attack and murder innocent civilians in a church service. And they ordered the sabotage of a Navy fighter jet.”

  Hutchinson removed his thumb from his suspender and, with a courtly dignity, gestured with his right hand. “So it isn’t the intelligence of these junior JAG officers that concerns me. It’s their inexperience. And I mean no offense to the active-duty military lawyers, Mr. President, but many are relatively inexperienced in trial matters, having graduated from law school and having fewer than five years’ trial experience in the best-case scenario. In a case of this magnitude, we need experience. We cannot afford an acquittal for any of these chaplains. An acquittal would be an unacceptable victory for terrorism.

  “It is true, as the secretary of defense has said, that this does directly involve active-duty service members, but there’s more to it than that.” Hutchinson’s tone was forceful but respectful. “This type of infiltration of the military poses not only a direct threat to members of our armed forces, but to innocent American civilians. And that’s where the Justice Department comes into play. There is concurrent jurisdiction for prosecution here, sir. What we need here, sir, is a conviction.

  “Followed by swift punishment.” The attorney general had a well-known habit of repeating himself for emphasis. The president waited. Sure enough, Hutchinson said, “Swift punishment.”

  Hutchinson walked across the presidential seal, seated himself, and leaned forward earnestly. “The Justice Department’s well-seasoned career prosecutors are accustomed to dealing with such complex matters, with years of experience under their belts. Why gamble on a conviction here? These defendants could still have military lawyers defending them. I believe they’re entitled to that. But let’s put this in the hands of the best prosecutors the government has at its disposal. Thank you, sir.”

  A brief period of silence followed as Mack Williams took a swig of coffee, then set the mug back on the desk and recrossed his arms. He pivoted the big chair about thirty degrees to his left, aiming his gaze in the direction of the forty-eight-year-old Erwin Lopez, secretary of defense. “Mr. Secretary, the attorney general makes a persuasive argument about the need to avoid an acquittal here. Does it really matter to the Defense Department who prosecutes this case?”

  Lopez took a sip of ice water from the crystal glass on the silver tray held by the white-jacketed Navy steward. “Mr. President, I congratulate my friend and colleague, the attorney general, for his passionate and cogent argument. He represents the Justice Department with the highest degree of professionalism, and this nation is fortunate to have him, sir.

  “But with all respect, I disagree with his assessment of the military’s capability to prosecute these cases and also with his view that the national security is best served by having the Justice Department prosecute. To the contrary, sir, the national security is best served by having the Navy prosecute these cases.”

  The president leaned forward. “All right, let’s hear your national security argument first.”

  “Yes, Mr. President,” Lopez said. “As you know, the need to maintain good order and discipline within the military is also essential to national security. Since the days of George Washington, there has been a longstanding tradition that the military takes care of its own, and that the military punishes its own. The court-martial is the process by which the armed forces dispense with discipline. In this case, the alleged offenders, these three chaplains, are active-duty service members, which gives the Navy the primary jurisdiction over the prosecution and defense of these cases. Not only that, but two of the three crimes, shooting the ambassador and planting the bomb on the plane, were committed on United States Military installations.

  “The remedies available to a military tribunal are swift and effective. My advisors tell me, for example, that the Uniform Code of Military Justice provides the death penalty for ce
rtain offenses, including treason and murder.” He narrowed his eyes, his expression intense. “Mr. President, our national security depends in large part on the strength of our military. To have a strong military, we must internally”—Lopez made a karate-chop gesture—“maintain good order and discipline. This is a military matter. That means, sir, we must prosecute our own, without interference by outside agencies. The military’s ability to police itself is at stake here.”

  When the whiz kid paused for another sip of water, the president uncrossed his arms and leaned back. “Secretary Lopez, I agree with everything you say about good order and discipline. And ordinarily, I agree—the military should prosecute its own. But what about the attorney general’s concern over the perceived lack of experience of the junior officers in the JAG Corps?”

  “Mr. President,” Lopez shot back. “You used the right word, in my opinion, when you said ‘perceived.’ Mr. President, you served in the JAG Corps, and the attorney general, despite his distinguished career, never did. Therefore, the attorney general may not be in a position to fully realize the true level of experience that our JAG officers have. While it’s true that in the Navy, most prosecutors are at the junior officer level, it’s also true that the sheer number of cases they have prosecuted greatly exceeds that of most DOJ prosecutors.

  “In other words, a Navy prosecutor at the senior lieutenant or lieutenant commander level, according to my research, has ordinarily prosecuted hundreds of trials, including dozens of jury trials. Our prosecutors, while generally younger than their DOJ counterparts, have better jury experience than many DOJ attorneys who’ve been practicing law twice as long.”

  Mack glanced at the attorney general, still bristling at the Lopez comments, then looked back to Lopez.

  “And that’s characteristic of military experience in general, sir.” Lopez took another sip of ice water. “So, Mr. President, I close by saying the military justice system is more than capable of handling these prosecutions, and I urge you, sir, to let the military justice system do its job.” He leaned back and folded his arms.