High Crimes (28 page)

This was, Claire realized, one of the worst crosses she’d ever conducted, and not for want of preparation. She could see how moved the jury was. General Marks was a terrific witness, and an extremely well prepared one. It should not have surprised her.

But it was not over yet.

“General, a few moments ago you referred to the unarmed civilians. But is it possible that Sergeant Kubik believed they were in fact armed combatants?”

“No,” he replied flatly.

“Why not?”

“They weren’t in uniform, for one. They were lined up peacefully, and not making any hostile or antagonistic movements. And there were no weapons.”

“But isn’t it possible he might have
thought
he saw weapons?”

The question, she knew, would perplex the general. It seemed to point to a new theory of defense—that Tom had fired because he saw weapons. Whereas they had all along insisted that the entire incident was made up, implying that someone else must have done the shooting. She could see the general hesitating, and glancing furtively at Waldron. She stepped to the side deftly, placing her body in his line of sight.

So the general reverted to his customary arrogance. “No,” he finally said. “There were no weapons.”

“How can you be so sure?”

“Because, counselor, I had my XO inspect the bodies, and he found no weapons.”

“So you knew objectively, after the fact, that there were no weapons. But
at the time
, General, did you have any reason to believe the villagers had weapons?”

“None.”

“Your men saw no weapons.”

“Correct.”

“They saw nothing, no glint of metal, nothing that might make them even the slightest bit apprehensive that the villagers had weapons.”

“Nothing.”

“So they saw no weapons pointed at Sergeant Kubik, or any of your men.”

Waldron called out, “Asked and answered, Your Honor.”

“Sustained. Move on, counselor.”

“My apologies, Your Honor. Just wanted to be absolutely sure we were on the same page. General Marks, early on the morning of June 22, 1985, you sat down and wrote out an MFR, a memorandum for the record, isn’t that correct?”

“That’s correct.”

“Isn’t that unusual?”

“How so?”

“Well, sir, isn’t the usual thing to do to file an After Action Report?”

“Yes, it is. But this wasn’t a ‘usual’ incident, counselor. One of my men had just waxed an entire village full of innocent civilians.”

“In fact, unarmed civilians.”

“As I’ve said, counselor.”

“So why file an MFR? What’s the point in doing that?”

“Because I wanted to get the event on the record. I was sure that Sergeant Kubik would be prosecuted for this, and I wanted to begin preserving records.”

“You mean,
creating
records.”

“Your Honor!” Waldron shouted.

“I said preserving records, counselor,” the general said crisply.

“General, do you have a copy of the memorandum you wrote that morning?”

“Unfortunately, I do not. It appears to have been lost.”

“How could that have happened?”

He smiled. “Papers are lost all the time, counselor, especially in wartime. Believe me, I wish I had it. Even general officers can be victimized by a large and at times unwieldy bureaucracy.”

She returned the smile. “General, in the memorandum you wrote that morning, did you state that the villagers had weapons, and that was why you ordered your men to shoot?”

“Absolutely not,” Marks said, his eyes flashing.

“You didn’t write that?”

“No, I didn’t, because it wasn’t the case. I didn’t order anyone to kill those civilians, and the civilians didn’t have weapons.”

“Thank you, General.” She stepped back to the defense table, where Embry handed her several sheets of paper. Smoothly she came around to the prosecution table and dropped one in front of Waldron, then handed one to Judge Farrell. “Your Honor, may I approach the witness with what has been previously marked Defense Exhibit C for identification?”

“You may,” Farrell said, looking down confusedly at the document he’d just been given.

She gave the paper to the general. “General Marks, do you recognize this form?”

The general said nothing. For the first time, he appeared to have lost his composure. His face seemed to be going white.

“Is this your signature, General?”

Nothing.

“Is this your handwriting?”

The courtroom was silent, absolutely still, but she could feel all hell breaking loose. Waldron was scribbling something furiously, a note he was showing to Hogan. Out of the corner of her eye she saw a motion at the back of the room, and realized it was the general’s lawyer, Jerome Fine, making some sort of hand signal.

“We can take a recess if you like,” Claire said gently. “We can have a continuance. I have a handwriting expert standing by. We can ask you to copy this document and have it analyzed on the spot.” It was a bluff; she had no such handwriting expert. “I think you know this is your handwriting. Let me remind you, sir, that your immunity does not cover lying under oath, perjury, or false swearing.”

“Yes,” he said at last, staring at her with hatred. His tone, however, was even. “I believe it is my handwriting.”

“Your Honor,” she said, turning pleasantly toward Farrell, “at this time I’d like to offer Defense Exhibit C for identification, and ask permission to publish it to the jury.”

“It is admitted,” Farrell said, “and the words ‘for identification’ will be stricken. You may publish it to the jury now.”

She handed six copies of the document to the president of the court, who took one and passed the others out. Turning back to the general, she said, “Please read that to the court.”

He hesitated, turned to the judge. Annoyed, he asked: “Do I have to?”

“Yes,” Farrell said, “I’m afraid you do.”

Marks compressed his lips into a thin line, then turned back to Claire and gave her a poisonous look. Donning a pair of reading glasses, he began to read: “‘In the early-morning hours of 22 June 1985, I was informed by Major James Hernandez that armed villagers in La Colina, El Salvador, had been observed acting with apparent hostile intent toward Detachment 27.’” He cleared his throat. His face was flushed. “‘I ordered free fire based on presence of armed hostiles. My orders were executed, and eighty-seven aggressors were terminated with prejudice. The detachment retired from the scene of aggressor contact and returned to Ilopango. Signed, Colonel William O. Marks, Commanding Officer, Detachment 27. Ilopango, El Salvador.’” He looked up slowly, his eyes flashing with anger.

“General Marks,” Claire said, “is every word of what you just read the truth as you remembered it on 22 June 1985? Or is there anything you want to change?”

For several seconds they glared at each other.

Then General Marks turned to the judge. “Your Honor,” he said, “I’d like to speak with my attorney before I answer that question.”

“Your Honor,” Waldron said, standing, “we need a recess for the witness to consult his attorney.”

“Members,” Farrell said, “will you excuse us?”

As the members were escorted out by the bailiff, the courtroom exploded in a maelstrom of voices.

CHAPTER FORTY-SEVEN

“
Your Honor
,” Waldron demanded, “I’d like to have the defense counsel state for the record, as an officer of the court, how long she’s had this memorandum, and where she got it.”

“No, Your Honor,” Claire said before Farrell had a chance to respond. “I don’t have to do that, and I’m not going to. The prosecution isn’t entitled to a preview of my cross-examination. For God’s sake, we put this exact MFR in our discovery request—we named it specifically!—and the government, in effect, made a written denial that it even existed! I got this after their written denial; this document is a photocopy from the CIA operational files, fully marked with a complete chain of custody, and that’s all I’m going to say.”

“The
CIA
!” Waldron stammered, looking at Claire. Why was he so astonished? she wondered.

Farrell was clearly taken aback by the whole business, by how quickly the tables had turned, by the spectacle of an entire courtroom watching a four-star general lie under oath. Everything the judge said on the record was going to be scrutinized minutely. He had to tiptoe, and he knew it. He popped open a Pepsi and swigged long and hard.

“Mr. Trial Counsel,” Farrell said, “it’s your witness, and it was your job to find that document, so I’m not inclined to help you out here.”

In the meantime, Jerome Fine, the general’s counsel, had moved a chair right next to the general’s on the witness stand, and the two of them were conferring in whispers.

“General,” Claire said, approaching him, “is that your attorney there?”

Marks seemed vaguely amused. “Yes, it is.”

“And what’s his name?”

“Jerome R. Fine. He’s the army general counsel.”

“Hmm. Interesting, General, that you have your attorney sitting right next to you. Do you feel you have something to hide?”

He smiled and said with a low chuckle, “Not at all.”

“Now, General, prior to your testifying here today, did you review the testimony you gave before Congress when you were confirmed as chief of staff of the army?”

Marks hesitated but a moment. “Yes.”

“Your attorney advised you to do that, didn’t he?”

“Ms. Chapman,” the general said hotly, “I don’t have to tell you anything that my attorney and I discussed.”

“Ah, but I’m afraid you do.” She glanced at Jerome Fine, who looked uneasy. “You see, General, we can call Mr. Fine to the stand right after you—nothing you two have talked about is privileged, since he works for the United States of America. Not for you.”

The general looked at his lawyer, who gave a tiny nod.

“So perhaps you can answer my question, General. Did your attorney advise you to review your congressional testimony?”

A pause. The lawyer nodded again. “Yes, he did.”

“Now, General Marks, did you tell your attorney that the memorandum for the record you wrote immediately after the incident at La Colina had been destroyed, as far as you knew, and that you didn’t remember its contents?”

Marks turned again to Judge Farrell. “Do I have to answer that, Your Honor?”

“Yes, you do,” Farrell replied.

“Yes, I did tell him that,” Marks replied, “but that was my recollection—”

“Thank you,” Claire interrupted. “General, did you ever tell your wife about the alleged massacre at La Colina?”

“My wife?” Incredulous, he turned back to the judge. “Your Honor, I don’t have to answer questions about my
personal
life, do I?”

“Yes, General, you do,” the judge said evenly.

Raising his voice a few decibels, Marks said tartly, “My wife and I never discuss this sort of thing.”

“Oh? And what sort of thing is that?”

“Covert actions—”

“And was the incident at La Colina a ‘covert action’?”

“Don’t twist my words,” Marks snapped. “That massacre was the most godawful tragic thing that ever happened during my—”

“And you mean to tell us you didn’t tell your wife about this most godawful tragic thing?”

He hesitated.

“Or did you lie to her, too?”

“
I have never lied about La Colina!
” Marks thundered.

“Oh, no? You lied to Congress, didn’t you? Isn’t it a fact that when you were asked about this incident by the Senate during your confirmation, you gave a version entirely contradicted by the MFR you wrote? You lied to Congress, did you not?”

“I do not have to take this!” Marks shouted. “I have dedicated over thirty years of my life to serving the Constitution of the United States and the people of this country—”

“General,” said his attorney, grabbing his arm.

“But you lied to Congress, General, did you not?” Claire persisted.

“I do not have to take that from someone like you!” Marks shouted, half rising from his seat. His face was crimson. “You’re out of line!”

“General, please!” his attorney said, tugging at Marks’s arm to pull him back into his seat.

“What does that mean, someone like me?” Claire asked with a faint smile. “A defense attorney doing her job? Protecting a client falsely accused of murders he did not commit? That you might have had a hand in as an accomplice—?”

“Objection!” shouted Waldron.

“This is an
obscenity
!” thundered Marks.

“Move on,” Judge Farrell said.

“General,” Claire said in a ringing voice, “you lied to Congress, did you not?”

There was a moment of silence.

The general’s lawyer cupped a hand in front of his mouth and whispered something to his client. General Marks, his composure regained, looked up and said blithely, “Upon advice of counsel, I decline to comment.”

“Wait a second,” Claire said. “Are you taking the Fifth?”

“Yes, I am.”

“Well, what—what are you taking the Fifth
about
?”

“About my testimony,” Marks replied evenly. “My lawyer has just advised me that I may have committed false swearing.” He turned toward Judge Farrell. “Your Honor, I haven’t seen that document in thirteen years. I testified here as to what I remembered of that document. And, frankly, I was ambushed.”

“Your Honor,” Claire said, “I move to strike the direct testimony of this witness, since we’re being denied the Sixth Amendment right to cross-examination.”

Farrell squinted at the general, then shook his head in disbelief. “Your motion is granted. The witness’s direct testimony is stricken.”

“Thank you, Your Honor. At this time, defense moves for a mistrial on the grounds that this witness’s testimony can’t be taken back. You can’t un-ring that bell.”

“Denied,” Farrell snapped with a red-faced scowl.

“In that case, Your Honor, we ask that you instruct the members that the chief of staff of the army is no longer a witness before this court, and the members may not consider any testimony he has given. I also ask that Your Honor inform the members that you, the military judge, believe that the chief of staff may have perjured himself, and that the members should put his testimony out of their minds, and that the military judge has advised the chief of his rights against self-incrimination under Article 31 of the Uniform Code of Military Justice, and the chief of staff has decided he will give no further testimony here before this court-martial.”

“All right,” Farrell said. He knew he had little choice. “You got it. I will so instruct the members. And, General, you’re excused, with our deepest apologies.”

Claire stared in disbelief as the general got to his feet, shrugged his uniform back into place, and strode off, attorney in tow.

“Uh, Your Honor,” Waldron said, “while we’re in this 39(a) session, I’d like to introduce our next exhibit, Prosecution Exhibit 4, for identification, which is a tape recording of the accused speaking on a tactical field radio on 22 June 1985, referring to the events he’s on trial for, as well as a verbatim transcript of that conversation.”

Claire looked at Grimes, then Embry, then Tom. All of them looked as astonished as she did.

“Your Honor, I don’t
believe
this!” she said.

“And the worm turns,” Farrell said. “What is this, Surprise Evidence Day? Give the Judge an Ulcer Day? Trial counsel, you got the tape right here?”

“Yes, we do, sir,” Waldron said. He handed the black cassette to the judge, along with a small tape player.

“Well, let’s hear it,” Farrell said.

Grimes said aloud, “The hits just keep on coming.”

*   *   *

The tape sounded as if it had been enhanced, the static filtered out, and so Tom’s voice was crystal-clear.

And it was Tom’s voice, there was no question about it.

“It was unbelievable. Just fucking unbelievable. I mean, I was just so fucking sick and tired of those peasants lying to us, you know? I just picked up my M-60 and blew ’em away, and it was just fucking great. Fuckin-A right I did.”

There was silence, and then the judge clicked off the tape recorder.

“That’s not me,” Tom said to Claire in a low voice.

“Where’s this from?” Judge Farrell asked.

“Defense Intelligence Agency made the original recording, Your Honor,” Waldron said. “Their signals-intelligence section. The copy was provided by CIA after a search of their SIGINT archives.”

“When did you get this?”

“Just today, Your Honor. At lunch.”

“How long you know about its existence?” Farrell asked.

“I was called this morning, but I didn’t believe it until I actually heard the tape at lunch today.”

“Whadda we got here, CIA versus DIA?” Farrell said. “Civilian spooks versus military spooks?”

Waldron replied, “This conversation was overheard by signals intercept, 123rd Signals Battalion, down in El Salvador, on 22 June 1985. Their communications receivers were automatically sweeping between certain frequency ranges, between four and five hundred megahertz. The accused’s conversation was made in the clear on a tactical field radio with a range of up to twenty miles.”

Claire’s mind raced. This could be no coincidence, the surprise memorandum immediately followed by a surprise tape. What was going on here? She turned to Tom. “You never said those words?” she whispered. Her stomach ached.

“Claire, that’s not me,” he said.

“It’s your voice.”

“That’s
not me
,” he repeated.

She rose. “Your Honor,” she said, her voice loud and emphatic, “this is trial by ambush. That tape was covered in our discovery request, and we should have gotten it long ago.”

“Your Honor,” Waldron said, “defense counsel just heard me say we just received the tape today, at lunch.”

“The question,” she replied tartly, “is not when did trial counsel get it. The question is when did the United States
government
get it. This is covered by our discovery request, and trial counsel had a duty to cover the government and find out if
any
part of the U.S. government possessed any relevant information. I planned my case based on what the government disclosed—and now here we are, halfway through this case, and suddenly we have some seriously prejudicial evidence we haven’t had an opportunity to test! This is outrageous!”

“Sir,” said Waldron, “as defense counsel well knows, these things do happen. Evidence turns up at the eleventh hour—just as happened with this memorandum for the record.”

“Well, it’s true, Madame Defense Counsel, you can’t exactly complain, given you just pulled the same thing.”

“What we ‘pulled,’ Your Honor, was a rectification of prosecutorial misconduct. We were fortunate to have turned up, through our sources, a document that the prosecution should have given us quite some time ago. Now they’re trying the same trick again. ‘Suddenly’ they ‘happen’ to find a key piece of evidence, and now they’re attempting to introduce it into the court so late that they hope we won’t have a chance to have our experts examine it. If the Defense Intelligence Agency made this recording thirteen years ago, why has it taken so long to see the light?”

“Sir,” Waldron said, “it’s not impossible that this court-martial has provoked persons within the government to comb old files for things they might have otherwise assumed were lost.”

Tom said aloud, indignantly: “I don’t believe they’re trying this!” Then he raised his voice: “You check the tape, Claire! That’s not me!”

“Sergeant,” Farrell said, “you will refrain from talking. Counsel, you are advised that you are to keep your client under control. No further outbursts will be permitted. Now, counsel, I assume you want a continuance.”

“Absolutely, sir. We request one month in order to conduct a full and thorough examination.”

“
This is a goddamned frame-up!
” Tom shouted, rising.