Wrongful Death (25 page)

“He’ll be fine,” Jenkins said. “Kids are resilient.” They started in the direction of the pond. “Just one question. How are we going to do this without a witness?”

“We still have one,” Sloane said.

Jenkins stopped walking. “Kessler? He won’t talk to you.”

“He won’t have a choice.”

“What are you thinking of doing?”

“It’s time to beat them at their own game,” Sloane said.

U.S. DISTRICT COURT
SEATTLE, WASHINGTON

T
he following Tuesday, Sloane stepped back through the metal detector into the lobby of the Federal Building. This time he wore a suit and tie. Different marshals gave him the same spiel about emptying his pockets.

He exited the black marble elevator on the fourteenth floor to find Tom Pendergrass standing in the lobby outside the courtroom in his dress-green uniform, several rows of medals adorning his left breast pocket. Next to Pendergrass stood U.S. Attorney Rachel Keane, wearing a navy-blue pantsuit and looking like she’d stepped from a St. John catalogue.

Pendergrass made the introductions. “This is David Sloane.”

Keane had a firm handshake. “Any chance your client will reconsider the government’s offer?” she asked.

Sloane shook his head, his demeanor reserved. Inside red flags waved furiously. Having the U.S. attorney present in court for a simple motion to dismiss was more than overkill—it was like shooting a squirrel with a cannon.

“I’ll let the clerk know we’re here.” Pendergrass turned toward the twelve-foot glass doors to the courtroom. Silver block letters on the wall to the right of the doors identified it as the courtroom of Judge Jo Natale.

“Tom?” Sloane said. Pendergrass stopped. “A word?”

Keane and Pendergrass exchanged a nod and Keane walked through the doors alone.

Pendergrass turned back

Sloane asked, “Did you ever stop to ask yourself why the government is willing to pay one hundred thousand dollars for a case they expect you to have dismissed this morning?”

Pendergrass shrugged. “My job is to convey the offer,” he said. “Your client should have taken it. You’re not losing confidence, are you, Mr. Sloane?”

“Then have you also considered that a hundred thousand dollars was well within your settlement authority?”

“What’s your point?”

“My point is, why didn’t the army convey the offer itself, before I filed my complaint?”

Pendergrass didn’t have an immediate answer. Then he said, “It’s irrelevant. Your client should have taken the offer. Everyone has to lose sometime.” He turned and walked into the courtroom.

Sloane’s cell phone rang.

“It’s done,” Jenkins said. “But it will be close. Stall.”

ATTORNEYS STOOD IN
an entryway checking the daily calendar for the order in which the court would hear their cases. Tracing his finger down the sheet of paper, Sloane found that the government’s motion to dismiss was last on the calendar, an indication Judge Natale intended to give it more time, which is what Sloane needed.

He pushed through an interior set of wooden doors and entered a cavernous courtroom with a ceiling sloped like the roof of an underground amphitheater. Narrow windows fifteen feet off the ground and recessed, incandescent lighting lit the room as if by the sun. At the front of the room Pendergrass talked to the judge’s clerk, who stood in the well area beneath the judge’s red oak bench, presumably to let her know that his motion would be heard. Then Pendergrass returned and took a seat in the front pew next to Keane.

Having never appeared before Judge Natale, Sloane had done what research he could. Natale had risen through the ranks of the U.S. Attorney’s Office at roughly the same time as Rachel Keane, though handling mostly criminal matters. Unlike Keane, she had forged her reputation in the courtroom rather than the newspapers. Quiet and reserved, she never discussed her cases with the media. She used a relentless and well-orchestrated plan to bring criminals to justice. Since ascending to the bench, her demeanor had not softened.

At nine o’clock sharp the judge’s staff filed out the door to the left of the bench, and the clerk called the courtroom to order. Judge Natale took the bench, sitting directly beneath a large, brushed silver coin replica of the United States eagle, an olive branch clasped in one of its talons, arrows in the other. Natale wore her raven-colored hair past her shoulders and a string of pearls to accentuate her black robe. She adjusted stylish black-framed glasses and set to work disposing of the first two matters quickly, asking direct questions. Though she gave counsel the opportunity to speak, she kept all on a short leash, and everyone was on best behavior. Stalling was not going to be easy.

The calendar took thirty-seven minutes before the clerk called, “In the matter of James Ford versus the United States of America.”

Sloane stood and looked to the doors behind him but did not
see Jenkins. He pushed through the swinging gate, turned, and held it open for Pendergrass and Keane. As he let the gate swing shut and turned to the bench, he noticed Judge Natale raise her head and watch Keane take her place beside Pendergrass at the government’s table. Apparently Sloane was not the only one surprised by Keane’s presence in the courtroom.

The government’s table faced the judge’s bench, the defense table perpendicular to it, facing the jury box across the room. Each table, the judge’s desk, the witness stand to the judge’s immediate right, and the jury box to the right of it, were all equipped with computer screens.

Positioning himself at counsel table, Sloane opened his briefcase and removed Ford’s file and the opposition to the government’s motion. He heard the courtroom doors open, turned, and to his considerable surprise Beverly Ford walked in, followed by her four children, Lucas carrying Althea. He looked like a prep school student in a blue-and-gold-striped tie, blue blazer, and khakis. His brother and sisters were equally well dressed. They stopped, uncertain where to go or what to do. Judge Natale looked out over the top of her glasses.

“Your Honor, may I have a moment?”

Natale nodded.

Sloane walked to the back of the courtroom.

“It was Lucas’s idea.” Beverly Ford nodded to her son. “He thought you could use some support.”

“He was right.”

Sloane led the children to the pew just behind counsel table. Beverly Ford took a seat next to him at counsel table. Sloane remained standing.

All were in place. Pendergrass faced the bench and stated his appearance. Keane followed, then Sloane, who asked the court to note the presence of Ford and her children.

Wasting no time, Natale turned to Sloane. “Mr. Sloane, how do you expect to get past the exceptions to the Federal Tort Claims Act or the Feres doctrine? Your complaint alleges that Mr. Ford was a member of the Washington National Guard shot and killed during combat in Iraq. As tragic as that is, and this court has great sympathy for the sacrifice our soldiers and their families continue to make, do not both preclude this claim?” Natale did not wait for an answer. “I could dismiss your complaint as premature, given that the government contends the claim remains open, but what would be the point? What evidence can you marshal to overcome those hurdles?”

Sloane needed time. “Your Honor, we are well aware of the hurdles posed by the Feres doctrine. The application of that doctrine, however, has far exceeded the spirit and the intent of the original position espoused by Justice Jackson. The government now uses it as both shield and sword. The question in applying the Feres doctrine is whether the service member incurred his injuries while acting incident to his or her service. We’ve cited authority in our brief to support that position.”

“Be that as it may,” Natale said, cutting through Sloane’s hyper-bole. “I’m obligated to apply the law. What evidence exists that Mr. Ford’s injuries were not incurred incident to his service?”

“Your Honor, we just filed this case. According to the government, Private Ford was killed in an ambush that took place several miles away from the rest of a convoy.”

“So?”

“So at this point we don’t know if that was because his squad was on a planned combat mission, which seems unlikely, or was ambushed while doing something not incident to their service. We don’t have enough facts.”

“How does the government explain it?”

Pendergrass started to answer, but Sloane cut him off. “The
government has withheld documents pertinent to Mrs. Ford’s claim in the interests of national security,” he said. “In fact, their decision to reopen the claim prevents us from conducting discovery, further impeding our ability to determine exactly what Mr. Ford was doing the night he died.”

Natale turned to Pendergrass. “Mr. Pendergrass?”

Pendergrass did not answer the question. “It is undisputed that Mr. Ford was a member of the Washington National Guard deployed in Iraq. It is undisputed that the United States is at war. It is undisputed that Mr. Ford was shot during that war and that he died from those wounds. What additional evidence do we need? I would suggest that counsel is stalling to avoid the inevitable. And the government did not classify
all
of the documents.”

Sloane waited, silent.

“We provided counsel with witness statements taken from each of the soldiers serving with Mr. Ford the night he was shot,” Pendergrass continued. “Those statements are conclusive evidence that he was shot incident to his service.” Natale looked to be turning to Sloane for a response when Pendergrass quickly added. “I would like to submit those statements at this time.”

He picked up the statements and stepped toward the judge’s clerk. As he did, Sloane noticed Keane subtly reach out for his arm, then stop herself. Pendergrass handed the documents to the clerk and moved to introduce them.

“Any objection?” Natale asked.

“Your Honor, evidence submitted during a motion to dismiss turns it into a motion for summary judgment,” Sloane responded. “If the government had intended to submit the witness statements, it should have provided us twenty-eight days’ notice to provide a response. I would request that the court continue this matter to allow us to consider the additional evidence.”

“Are you claiming prejudice?” Natale asked. Before Sloane
could answer, she turned to Pendergrass. “When did the government provide these statements?”

Pendergrass remained smug. “Mrs. Ford was given these statements months ago. Presumably she gave them to her counsel. In fact, Mr. Sloane and I discussed them last week. Furthermore, Your Honor, the statements can be admitted to support our motion that the plaintiff’s case is premature without the necessity of providing the plaintiff twenty-eight days’ notice.”

Natale looked to Sloane. “Mr. Sloane?”

Sloane heard the courtroom door open behind him. Charles Jenkins walked in and gave Sloane a slight nod. If he had been waiting to time the moment he could not have stepped through the doors on better cue.

Sloane tried to sound resigned. “Captain Pendergrass is indeed correct, Your Honor. The witness statements are admissible. I withdraw my objection.”

“Very well,” Natale said. “The documents are admitted into evidence.”

“In which case,” Sloane continued, “the plaintiffs wish to call a witness.”

Pendergrass’s head snapped in Sloane’s direction.

“A witness?” Natale asked, looking up. “To testify about what?”

“About the statements that the government just introduced.”

Natale sat back, considering Sloane. Obviously sharp, she had likely just realized that Sloane had set up the young government attorney, but with her hand obscuring her mouth, he couldn’t tell from her expression if she was impressed or annoyed.

“Whom do you wish to call?” Natale asked.

“We wish to call Captain Robert Kessler.”

Keane stood. This time she did not hold back. “Your Honor, the government objects. We were given no notice of a witness being called this morning.”

“My investigator served Captain Kessler with a subpoena this morning,” Sloane replied. “We were unable to serve him earlier. I’m told he’s in the building and on his way to this courtroom as we speak.”

“Your Honor, this is inappropriate,” Keane said.

“It was counsel for the government who represented to the court that the witness statements are relevant to this hearing,” Sloane said. He had baited Pendergrass into introducing the statements when they met on the observation deck of the Federal Building, suggesting that Pendergrass could not get them into evidence. Pendergrass struck Sloane as smart, but inexperienced. His ego had taken the challenge. Now the door was open to put Kessler on the stand.

“Which makes the testimony of Captain Kessler relevant,” Sloane continued. He held up all of the witness statements. He had a second reason for baiting Pendergrass into introducing them. He placed them on the table as he said each name. “I would have also subpoenaed Phillip Ferguson but he has died since returning stateside. Dwayne Thomas has also died after returning home.” Sloane looked to Pendergrass. “Michael Cassidy? Also recently dead. It seems Captain Kessler is the only member of the squad still alive.”

Judge Natale looked to Pendergrass, but it was Keane who spoke. “Your Honor, we would ask the court’s indulgence to speak with Captain Kessler before he takes the stand.”

“We have no objection,” Sloane said. “We’re happy to accommodate the government.”

KESSLER SAT IN
his wheelchair at the witness stand looking anything but pleased to be there. Jenkins had caught up with him in the driveway of his Tacoma home, where he had camped out
early that morning. Sloane and Jenkins both concluded that once Kessler got onto the Argus compound, they would never get the chance to serve him with the subpoena to appear in federal court that morning.

During the break, Jenkins had advised Sloane that although polite, Kessler had voiced his annoyance that the subpoena required his immediate appearance. Sloane had instructed Jenkins to not serve Kessler until the morning. He did not want the government to have advance notice that he intended to call Kessler as a witness. Meanwhile, Sloane had spent the better part of the prior day working on a direct examination of the captain.

Once Kessler settled behind the microphone, Pendergrass stood and requested that the hearing be closed to the public, and that the court reporter’s transcript be sealed in the event Captain Kessler discussed information sensitive to national security. Again Sloane raised no objection. By closing the courtroom and sealing the transcript, the government would be hard-pressed to make any valid objections to Sloane’s questions. Besides, other than Ford and her children, who had a right to be there, the courtroom was already empty, theirs being the last matter of the morning.