The Accused (17 page)

“Are you right-handed?”

“Yes, sir, I am right-handed—yes.”

“And you shoot—trigger finger and aiming hand—all on the right side?”

“Well…I'm right-handed—and I fire right-handed—yes, sir.”

Then the colonel got ready to launch his final volley.

“That bullet in your left shoulder didn't stop you from emptying the entire clip of your M16 into the house after you were shot—is that correct? You were still capable of precision shooting?”

Thompson grimaced a little bit and then answered.

“Yes—I suppose. I did get all my rounds off…that's right, sir.”

Stickton stepped down from the podium, seeming satisfied.

But Will bounded back to the podium for re-cross-examination.

“About your firing that M16—” he began, “how were you able to fully expend your ammunition? Did your M16 have a bipod support?”

Thompson smiled at that.

“No, sir, but I was able to use the grenade launcher as a prop and get off a full clip even though I had been shot in the left shoulder. I could get away with using just my right arm because the grenade launcher provided the necessary support.”

“But would that system of support have been adequate for more precise shooting—like a single shot to the head of that lookout?”

“No, sir. No marksman would want to use a sloppy kind of prop like that for a sniper shot—especially if he were already injured.”

Will had planned to stop there. He felt he had done some moderate damage to the prosecution's proof. But he decided to ask one more question.

“Do you know how that lookout was able to detect your position, considering the fact that you had approached the house with stealth and under cover? Did it appear to you that the lookout was expecting you?”

Thompson leaned forward, seeming ready to answer quickly and eagerly, but he was interrupted by Colonel Stickton, who jumped to his feet.

“Objection—will the investigating officer please note prosecution's objection. Not only is the question improper as to form, but it's also asking this witness to comment on the state of mind of a man who is now dead.”

“Noted,” Colonel Rogers fired back. Then he turned to Will Chambers.

“Counselor, there was no way, from his position and based on his limited capacity for observation, that the corporal could have reasonably formed an opinion on
why
that lookout fired at his position. Mr. Chambers, you're finished with this witness.”

Will managed a smile and a polite nod, and he resumed his seat at counsel table. The IO's rebuke had some bite to it, but like the sting of a wasp, it was not likely to cause any real damage. He still felt confident that he had kicked some of the props out from under the trial counsel's use of Corporal Thompson.

Yet he knew there was still a major problem. The evidence from each succeeding witness would prove to be increasingly more troublesome to his client's defense. Considering the fact that he could not risk calling the colonel to testify at this early stage of the case, aggressive cross-examination of the prosecution's case was his only weapon. But that was not going to be easy—because Marlowe was refusing to disclose everything he knew. It was beginning to look as if Will Chambers would have to perform a marksman's job—while wearing a blindfold.

25

“C
HIEF
D
ORFMAN, PRIOR TO
Colonel Marlowe's giving you the order to open fire, did you see or hear any weapon fired from the inside of the house out to your position?”

“No, sir—I guess what you're asking is…whether anyone was shooting at me before we started shooting at them. The answer is no. There were no shots fired from the inside of the house—at least nothing I could see toward
my
position—before I commenced firing. I had heard shots coming from the front of the house. That's when Thompson was hit.”

“And was there a window near your position—where you were lying due north of the building?”

“Yes, there was a large square window to the right of the back door.”

“And when Colonel Marlowe gave you the order to fire, what was your target?”

“I fired through the window, then through the door, and then I sprayed the rest of my round in a horizontal, zigzag line from side to side along the house.”

“And the M240G you were carrying is a large-caliber gun?”

“Yes, sir. Large-caliber.”

“And that weapon sends a very punishing fire, capable of taking down four or five targets in quick fashion?”

“Sir, if you hit your target with the M240G, it's not going to be standing very long.”

“One last question, Chief Dorfman…” the trial counsel said. “If you've got a group of terrorists who are holding civilian hostages in a small room—in the same room as the terrorists themselves—and you're shooting blindly into a window that opens into that room—is the M240G machine gun the best weapon to use?”

Major Hanover rose to his feet and objected on the grounds that Chief Dorfman had not been the commanding officer of the mission—nor had he been qualified as an expert in making command decisions in that kind of a mission.

Colonel Rogers noted the objection but directed that the question be answered.

Dorfman thought for a moment, then cocked his head slightly to the side as he began answering.

“Sir, I suppose…if you've got a small room with hostages and terrorists and they're all together within your target—the M240G doesn't really discriminate. It doesn't have the precision of some of the smaller-caliber automatic weapons. So let me say that we didn't know there were hostages—”

“Nonresponsive. I ask that the investigating officer note the nonresponsive nature of the witness's answer. That is all, Chief Dorfman,” Colonel Stickton said as he walked to the prosecution table.

On cross-examination Hanover quickly established that Dorfman had had no idea that there might be civilians in the house. Then Hanover moved to his second line of questioning.

“Was the house darkened?”

“Yes, that is correct, sir. There weren't any lights on that I could see.”

“And did it appear that there was a curtain drawn over the window on the north side—the side where you were positioned?”

“Yes, sir—it looked like there was some kind of a drape across the window. I couldn't see through it.”

Stickton stepped back to the podium.

“If Colonel Marlowe knew there might be one or more civilians inside that house, prior to his order for your unit to commence firing into it—if that was true, apparently Colonel Marlowe never let you in on that fact, is that correct?”

Dorfman stared down at his hands, which were folded in his lap. After a moment of reflection he answered.

“I suppose that would be right…yes, sir.”

26

W
HILE PREPARING FOR THE
A
RTICLE
32 hearing, Will had asked Colonel Marlowe what kind of witness Staff Sergeant Billy Baker would make.

Marlowe chuckled a bit and then described Baker as “Mr. Gung-Ho.”

That description was right on target.

As the trial counsel led Baker through his questioning, the witness sat steel-spine rigid in the chair and snapped his answers out with military precision.

Colonel Stickton asked the sergeant to describe the rules of engagement as articulated by Colonel Marlowe immediately before hitting the drop zone that night.

“Sir, the rules of engagement, as explained by our commanding officer, Colonel Marlowe, were threefold.”

“Why don't you describe for us what those three rules were?”

“Sir, those three rules of engagement were as follows—first, no shots were to be fired until and unless commanded by Colonel Marlowe. Next, if we met any resistance, and on Colonel Marlowe's command, we were to use absolute and unrestrained deadly force. Third, we were to be on the alert for the presence of hostages or civilian noncombatants. In the event that we had a positive identification of any such hostages or civilian noncombatants, we were to avoid casualties.”

“In other words,” Stickton asked, “the third rule—to avoid civilian losses—that rule was to trump the other two, is that right?”

“I'm not sure I understand the Colonel's question, sir—perhaps the Colonel could more fully explain it.”

“Well, Sergeant Baker, here's my question—if you, or any other member of your team, determined there might be civilians in that house, then you were to refrain from the use of force even if Colonel Marlowe commanded you to use force—is that right?”

“Negative, sir. Colonel Marlowe was in complete command of the mission. He gave the orders—we followed them. We were to fire down on that house only on his command, and when his order came, we had to follow it.”

“Well, what if you spotted some civilians there in the house—then what would you do?”

“That decision, sir, was to be made by Colonel Marlowe. We were to report the presence of any civilian noncombatants to him, and then he was to make the command decision.”

“And these rules of engagement were clearly described by the colonel to you in your mission briefing prior to your descent into the drop zone, correct?”

“Yes, sir. That's correct. Colonel Marlowe clearly outlined the rules of engagement. He always made his orders crystal clear to all of his team.”

“So, according to what Colonel Marlowe told you before you reached the house on the outskirts of Chacmool, he was the one to make the decision about authorizing deadly force if someone raised an issue concerning the presence of civilians at the scene, is that right?”

“Sir, the decision about civilian noncombatants was Colonel Marlowe's decision. He was in command. He made the decision.”

“Now, Sergeant Baker, did you see or hear any signs of the presence of civilians in or about that house before Colonel Marlowe gave his command to commence firing?”

“Negative, sir—I saw and heard no signs of civilians.”

“But someone else raised the issue of civilians inside the house—is that correct?”

Baker had maintained his rigid posture in the witness stand so far throughout the questioning. But with this last inquiry from Colonel Stickton, the witness's shoulders slumped slightly. His head did a small, momentary bob up and down.

“Would the Colonel repeat the question, sir—I'm not sure what the Colonel is getting at.”

“Sergeant Baker, did someone else in your mission mention to Colonel Marlowe that there might be civilians inside that house?”

“Affirmative, sir. Someone did.”

“And who was that?”

Will and Major Hanover both jumped to their feet simultaneously. Hanover recited the objection that the question was based on hearsay and asked the investigating officer to note it in the record.

But Colonel Rogers directed that the question be answered.

“I do not recall the question—I need the question repeated, sir.”

The trial counsel repeated the question.

“Sir, the fact is,” Baker replied, “someone did make a reference to civilians before Colonel Marlowe gave the order to fire.”

“And please tell the investigating officer who that person was.”

“Sir, the person who made that remark—it happened just before Colonel Marlowe gave the order to open fire. I heard it on my headset. But I also was looking at that person at the time the comment was made because he was on the south side of the house to the right of my position. When I heard the voice, I looked over—and I saw who it was. It was Master Sergeant Rockwell making that comment to the colonel, sir.”

“So your testimony at this hearing,” Stickton said, jabbing his finger in the air toward Baker, “is that
after
Master Sergeant Rockwell raised the issue of civilians, Colonel Marlowe nevertheless gave the order for all of the members of your team to commence firing—that is, use deadly force—is that what you're saying?”

“Sir, I'm not sure I'd put it that way—”

“Staff Sergeant Baker, yes or no—is that what you're saying—is that what happened?”

Baker straightened up in the stand, glanced over at Colonel Marlowe, then refocused on Colonel Stickton.

“Sir, that is what happened.”

Major Hanover's cross-examination was deliberately short and confined.

“You did not see any civilians, is that correct?”

“Yes, sir, that is correct. I saw zero civilians before we opened fire.”

“You were standing close to Master Sergeant Rockwell, is that correct?”

“We were only ten or fifteen feet apart.”

“And did Master Sergeant Rockwell indicate to you—or to anyone—before he made that comment to Colonel Marlowe—that he saw, or perceived in any way, the presence of civilians at that scene?”