The Last Hour (50 page)

This morning, Colonel Martinez was all business. He opened the trial with a minimum of fuss, gave instructions to the board members, then called Elmore and the trial counsel up to the head of the room.

Everything you’ve ever seen on television about a trial? Forget that. Everything is different.
 

The trial counsel—or prosecutor—was pissing me off. Captain Frank Cox was a blonde haired, blue-eyed former Texas A&M fullback who had gone to law school on the Army’s dime and was now working off his sentence. I didn’t follow all of the legal arguments and mumbo-jumbo during the pre-trial stuff. But when it came time for peremptory challenges to the members of the court-martial board, he’d challenged the one and only real combat veteran on the panel. I didn’t tell Carrie how much that chilled me. But it did. Elmore had said, “Most of these guys have never had to deal with a real infantryman, Sherman, unless he was on an operating table. You scare the crap out of them. But you’ve still got the fact that you’re the one who reported this thing in the first place going for you.”

That just meant I went on trial first. Colton’s trial was scheduled to start in three weeks, followed by the others, who were accused of lesser charges.

The first witness called was Major Janice Smalls. When she was called to the stand, Captain Cox stood in front of her and said, “Raise your right hand. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?”

“I do.”

I leaned close to Elmore and asked, “Why is the prosecutor swearing her in?”

He whispered back, “That’s how we do it in courts-martial.”

I guess it didn’t matter. Captain Cox asked Smalls a series of questions to establish her identity and expertise as a criminal investigator. That out of the way, he started in on the real questions.

“Major Smalls, can you describe how you first became aware of the subject of your investigation.”

“Yes,” she replied. “Right before Thanksgiving, I was contacted by the Chief of Staff to General Buelles of the Military District of Washington. He reported that the Inspector General’s office had received, via U.S. Mail, a package that reported a crime in Afghanistan. I was asked to conduct a preliminary investigation.”

“What date was this, Major Smalls?”

“November 19, 2012.”

“And what did you do at that time?”

“On the morning of the 20
th
I drove to the Pentagon to personally take charge of the evidence. I secured the evidence, which consisted of a handwritten report and a thumb drive, then returned to headquarters at Fort Belvoir. At that time I made witnessed copies of the report, and we made a duplicate of the thumb drive. The originals were then secured in an evidence locker.”

Cox walked to a table near the prosecutor’s table. This was all unnecessary—I’d written the damn report, and I’d conceded that. He held up a plastic envelope containing the thumb drive, and another containing the report, and showed them to Smalls.

“To the best of your knowledge, is this the report and thumb drive in question?”

“It is.”

“Please describe the contents of the report, Major.”

“The report was written by someone claiming to be Sergeant Ray Sherman. It described an incident, which took place on March 24
th
of 2012, accusing Sergeant First Class Benjamin Colton of committing murder, then Colton’s platoon conspiring to keep the murder secret. The thumb drive also contained several documents, which appeared to be copies of emails that described the shooting. Finally, it contained six photographs.”

“Thank you, Major. Colonel Martinez, with your permission, I’d like to enter these items in evidence as exhibit 1 and 2, which we will return to several times in the course of the trial.”

“Proceed, Counsel.”

“Major Smalls, please direct your attention to the screen on the south wall. Assistant trial counsel is about to display a series of photographs. Please identify them for the court.”

The stir in the audience was sudden, a loud murmuring as reporters shifted in their seats, realizing they were about to see photos. My stomach twisted. I didn’t want to see this. I saw it every night in my dreams as it was.

A photograph flashed on the screen, huge, eight feet by five feet, at least. It was Speedy. He lay on the ground in the mud. A bullet hole marred his forehead, and the ground around his head was stained nearly black. His eyes were open, in shock and fear, and his face had gone pale.

I closed my eyes and lowered my face in my hands. A second later, I felt Carrie’s hand on my arm.
 

Elmore, sitting beside me, whispered, “Look up, Ray. The board is going to think exactly the wrong thing if you hide your face right now.”

I groaned just slightly and looked up.
 

Major Smalls was talking. “That appears to be one of the photographs I found on the flash drive. On examination I concluded it was an Afghan boy, somewhere between ten and fourteen years old, who appeared to have been shot.”

“And this one?”
 

The view switched to another photo, taken from a different angle. In the photo, I could see a pair of boots and the distinct pixelated camouflage pattern of the lower legs of someone wearing an Army Combat Uniform.

Smalls verified the photo. Cox led her through each one, taking nearly fifteen minutes to go through them all. He was going for maximum emotional effect on the board members, most of whom were doctors or staff at Walter Reed. And based on their expressions, which ranged from nausea to horror, it was working.

I knew for sure it was working on me. Because one thing was certain—no matter how off the reservation Colton had gone, no matter how upset he was about Weber getting killed, no matter what the circumstances around the incident, the fact was, that little boy deserved nothing but our protection. And that was the one thing he didn’t get.

Finished with the photos, Cox walked out to the middle of the floor, and said, “Please tell us what you did next, Major Smalls.”

“At that point we didn’t even have verification that the report had come from the accused, so our first goal was, based on the report we’d received, identify who may have been involved. We searched unit records and came up with an initial list of names of people to interview, all of which were still on active duty, with the exception of Sergeant Sherman. At that time, since Sergeant Sherman was in an inactive reserve status, we contacted the Federal Bureau of Investigation and enlisted their assistance with the investigation.”

The questioning went on, in detail, for hours. Who did she talk to next? What evidence did she collect? And the thing was, the whole investigation came down to two things. My report. Colton’s and Hick’s testimony. And that was ... it.

Finally Captain Cox stepped back. “Those are all the questions I have for the witness, your honor.”

Elmore was on his feet in a second. “Major Smalls. Can you please tell me what the coroner’s report said about the cause of death?”

Smalls looked confused, and she shook her head. “There was no coroner’s report.”

Elmore paused. Then he said, “Well ... what about the death certificate?”

“We ... have no death certificate.”

“I see,” Elmore said slowly. “I’m going to ask you another related question then, Major, and I hope you can answer this one. Did we at least send a team to Afghanistan? Did anyone examine any physical evidence at all in this case?”

Captain Cox stood up and said, “Your honor, accused counsel is…”

Martinez interrupted Cox. “Asking appropriate questions.” He waved a hand at Elmore. “Please answer the question, Major Smalls.”

Smalls looked uncomfortable and said, “We attempted to send a team, but the Afghan government denied the request to exhume the body.”

“I see,” Elmore said. “Well ... let me ask you one final question. Is there any physical evidence, of any kind, that a crime actually took place?”

“The photos…”

“Are not physical evidence. Have you employed any experts to determine if the photos were photoshopped?”

“No. We have not.”

“Do you have any reason to believe the photos are real?”

“The accused, in several interviews, described the circumstances of the killing and verified the report was his.”

“Yes,” Elmore said. “Let’s get to that now, shall we? On what date did you first interview the accused?”

“December 10, 2012.”

“I see. And was his attorney present?”

Smalls swallowed.

“Major Smalls, this is not a difficult question. Did the accused have counsel present during that interview?”

“No.”

“Why not?”

“Sergeant Sherman wasn’t considered a suspect at the time.”

“I’m confused, Major. On January 1, Sergeant Sherman was forcibly uprooted from his civilian life and recalled back into the Army. Is this correct?”

“Yes.”

“Who signed the order for his recall?”

“Major General Buelles.”

Elmore walked away from Smalls. Back to the judge and court-martial board, he took several gulps from a bottle of water at our table and turned around. “Major Smalls, I need you to answer this question very clearly. At what point did my client change from being considered a
witness
to a
suspect?
”

Smalls looked down and said, “We questioned Sergeant First Class Benjamin Colton on December 15
th
. He made the accusation against Sherman at that time.”

Elmore sighed. “Major Smalls, at what time were charges formally referred against Sergeant Sherman?”

“March 13
th
.”

“And how many times did you question Sergeant Sherman prior to that date?”

“Fourteen times total.”

“The trial counsel has entered into evidence your report of that investigation, correct?”

“Yes.” Smalls was dripping sweat by this point.

“And your recommendation was what?”

“Based on the testimony of Sergeants Sherman, Hicks and Colton, I recommended that an Article 32 investigation be convened.”

“Was my client ever once, during your investigation, advised that he could not be compelled to make any statements which might tend to incriminate him?”

“I told you, he wasn’t a suspect at that time.”

Elmore walked away, then turned around and faced the judge. “Your honor, based on the testimony we’ve just heard, Major Smalls’ investigation largely relied on the testimony of the accused, who was not advised that he was a suspect or of his right to remain silent. I’m requesting that the report be stricken from evidence as inadmissible.”

My heart was thumping. Elmore had ripped Smalls’ testimony to shreds.

Colonel Martinez leaned back in his seat and said, “Trial-counsel?”

Captain Cox stayed at his desk, but said in a loud, clear voice, “Your honor, the record reflects that charges were not referred against Sergeant Sherman until March 13
th
. At that time he was notified and counsel was appointed for him. I don’t see any problem with the report.”

Elmore spoke again. “My client is on trial for murder, based on the testimony of two accused soldiers, and conspiring to cover up that murder, based on the so-called evidence in this report, which was largely obtained under false pretenses—”

Martinez held a hand up, and Elmore stopped talking immediately.

“Major Elmore, I’ll take your objections under advisement. At this time the report stands. Your client voluntarily reported the crime. Based on that, it was reasonable for him to assume that he would be questioned at some point.”

Elmore sagged a little then nodded. “No further questions,” he said. He returned to his seat next to me.
 

I leaned close and said, “So ... what does all that mean?”

He shrugged. “It was worth a try. It means that if they get a conviction, you’ve got strong grounds for an appeal. At this point, with no physical evidence, it’s basically your testimony against theirs. So we have to shred their testimony every chance we get.”

I exhaled.
Grounds for an appeal.
An appeal would take years ... years when I would be in prison. I looked over my shoulder, back at Carrie who sat behind me in the front row. She reached out a hand, and I took it, in silence.

Over lunch, Elmore looked upbeat, so much so that Carrie challenged him.

“Maybe I just don’t know enough about how this stuff works,” she said. “But I’m really worried.”

Elmore looked over the table at her. We were eating in a small office that had been set aside for us. “The bottom line,” he said, “is you have to maintain hope. Smalls basically threw her testimony on your behalf, even though she was a prosecution witness.”

I shook my head. “I don’t understand.”

“She doesn’t believe you did it. That should be clear enough. She got your report, interviewed you, then went and interviewed the other guys, and they weren’t credible. But she can’t say that. You can bet your ass Colton was read
his
rights.”

“That’s crazy,” Carrie said.

Elmore shrugged. “Crazy it might be. But Smalls is too good an investigator for it to be anything else. So Colton’s up next, then Hicks.”

“Why are they doing Colton first?”

“I’m guessing it’s because he’s got the most to lose. Whatever he says, it’s going to look self-serving. Hicks can play the impartial witness.”

I swallowed. “Hicks and Colton have been friends for a decade almost. Will that matter?”

“We’ll address that on cross-examination.”

A knock on the door signaled it was time to go back. I felt my stomach tense up, and I stood. “I should have grabbed a smoke while I had the chance.”

“Ray,” Elmore said. “I’m gonna do my best to get you clear. All right?”

I nodded.

Ten minutes later we were back in the courtroom.

Colonel Martinez began the preliminaries, and a few moments later, the trial counsel called in Sergeant Colton. I tensed up, forcing myself to not look at the back of the room as Colton entered and made his way to the witness chair. The members of the court-martial board, arrayed at two tables on either side of Colonel Martinez, looked back and forth from Colton to me as he took his seat.