Wrongful Death (5 page)

Sloane watched a ferry crossing Elliott Bay. “I thought about Joe Branick yesterday.”

“Listen, what Joe did he did as much out of guilt as he did out of altruism. Both of us felt responsible for what had happened to you. He was trying to right a wrong and he died doing it, but that doesn’t mean you have to try to right every wrong to honor him.”

“She needs help. I’m thinking maybe my reputation might, you know…”

“Get the government to pay her some money to get rid of her.”

“It’s better than nothing.”

Jenkins picked up the statements. “You want me to find these guys?”

“They should be back stateside by now.” Sloane’s cell phone rang. He considered the caller ID window. “It’s Carolyn.”

“That woman scares me,” Jenkins said. “Why doesn’t she like me?”

Sloane flipped open the phone. “She loves you.”

“Can you and the Jolly Green Giant take a break from checking out the eye candy for a minute to work?” Carolyn asked.

Sloane chuckled. “Charles says he loves you too.”

Jenkins looked genuinely concerned.

“Right,” Carolyn said. “I found you a military lawyer. Don’t know anything about him, but you said pronto, so this is pronto. You get what you get.”

Sloane took out a pen and turned over the napkin. “Thanks. Go ahead.”

“He’s a solo practitioner in Pioneer Square. Says he has to be in court at two-thirty for a DUI hearing—not sure if he’s the defendant or the lawyer. Otherwise, he starts an assault and battery trial tomorrow and won’t be available for the next four to five days. So it’s today or two weeks, unless he’s convicted and gets sent to jail.”

“Carolyn, do you know Henny Youngman?”

“Who?”

“Never mind.” Sloane considered his watch. “Call him back and tell him I’ll meet him at his office at one-thirty. Anything else going on?”

“I’m getting my nails done at two.”

“Good for you. Tell you what, bring me the bill. We’ll call it a perk for the Gonzalez verdict.”

“Big spender. I should have told you I was shopping for a big-screen TV.”

PIONEER SQUARE
SEATTLE, WASHINGTON

SLOANE PARKED IN
the triangular garage at First Avenue and walked down Washington Street looking for building addresses. Pioneer Square was Seattle’s other downtown tourist attraction, with maple trees and low-rise, red-brick buildings that harked back to a different era. The entrance to John Kannin’s building was near Occidental Square, a haven for the homeless and mentally ill. Shopping carts stuffed with plastic bags circled a bronze monument to Seattle’s firefighters that pigeons had defaced a gray-white.

Sloane walked into a small lobby and considered a display case identifying the building tenants. He ascended an interior marble staircase and pushed through a smoked-glass door stenciled “John Kannin Law Firm P.S.” Legal books, binders, and files cluttered a desk in a small reception area with shelving along three walls. Narrow windows emitted slats of dull light in which danced floating dust motes.

“Are you David Sloane?” The man who appeared in the doorway to Sloane’s left looked younger than Sloane had, for some reason, expected. “I’m John Kannin.” He had a deep baritone voice, befitting a trial lawyer.

“Thanks for seeing me,” Sloane said.

“You’re interested in military law?”

“My secretary said you don’t have much time.”

Kannin gestured to the desk. “My secretary didn’t come in today. If she had, I would have known that my two-thirty hearing has been kicked over a week. Come on in.”

Kannin led Sloane into an interior office with the same dark wood shelving along one wall. The other walls were brick. A book wedged in the sash propped open a window behind a large desk, allowing in the sounds of passing cars, the trolley, and men arguing on the street below.

“Fresh air,” Sloane said. “You don’t find that inside buildings too often anymore.”

Kannin looked to the window. “It helps clear my brain.” He removed a file from one of two chairs. “Take a seat.” There was a round table in the corner, covered with stacks of paper—obviously the overflow from the neat stacks on the floor lining the brick wall. Post-its atop the stacks served as to-do lists. Kannin looked to have a thriving practice. Diplomas hung from the picture molding by fishing line. He had graduated from the U.S. Air Force Academy and the Willamette University College of Law in Oregon. Both were good schools.

Sloane estimated Kannin to be six foot three and well built through the shoulders and chest. He had coal-black hair with traces of gray and eyes the same color. He wore a white dress shirt and a blue tie, though he’d lowered the knot and unbuttoned the top button. Slipping behind his desk, he said, “I’d offer you coffee, but the way I make it, you might as well lick the asphalt.”

Sloane sat. “Then I’ll pass, thank you.” He pointed to the diplomas. “You graduated from the Air Force Academy.”

“I played a little football there.”

“Linebacker,” Sloane guessed.

“Offensive line. Players weren’t as big back when I was playing. What I really wanted to do was to fly jets, but I was too big for the cockpit.” He laughed. “After that I lost interest. I graduated with a degree in engineering.”

“How’d you make it to law school?”

“I decided I liked arguing with people better than math. How about you? What’s your story?”

“Marines out of high school, saw some combat in Grenada, but lost interest too. I decided I better get an education and moved to San Francisco based on a picture I’d seen in a magazine.”

“Pretty spontaneous.”

“I’ve been known to do that,” Sloane said, thinking of the military psychiatrist’s assessment. “Eventually I graduated from Hastings and had a practice for about a dozen years in the city before moving here a couple years ago.”

“What brought you to Seattle?”

“My wife took a job here as a partner in an architecture firm with a friend. If I wanted to marry her, I had to move.”

Kannin nodded. “Ah. Love. How do you like Seattle?”

“The summers are easy. It’s taken a bit to acclimate to the winters. Bought my Gore-Tex and waterproof shoes.” Sloane pointed to one of the framed diplomas. “Are you in the reserves?”

This brought another laugh. “When I realized I wasn’t going to fly jets, I pretty much decided the military wasn’t my mug of beer. I did my four years and got out.”

“So I take it you weren’t a JAG,” Sloane said, referring to a judge advocate general, a military lawyer.

“I’m a JAG’s worst nightmare. I represent families trying to obtain their military benefits. As you might imagine, business has picked up with the war. The JAG lawyers think I’m a nuisance, but so do the prosecutors I try cases against, so at least I’m consistent. I like to shake things up—lets me know I’m doing my job.”

Sloane laughed. He got a good feeling about Kannin. “Have you ever sued the military in a non-benefits case?”

“Once,” Kannin said. He sat up. “Private Jasmine Evans was living in military housing on base. One Friday night there’s a knock on her door. Three off-duty soldiers stand on her porch with a bottle of Jack Daniel’s, a case of beer, and a deck of cards. She knows them. They’re all friendly, so she lets them in. They start playing cards and drinking. Things are okay until one of the guys suggests they play strip poker. She declines, but the others think it’s a good idea and start removing their clothes. Private Evans starts to
feel uncomfortable and asks them to leave. They start calling her names: ‘tease,’ ‘bitch,’ ‘whore.’ She tells them to go fuck themselves. The soldiers beat and rape her.”

“Horrible,” Sloane said.

“I’m just getting started. She goes to the military hospital and shortly thereafter an officer pays her a visit. Ostensibly he’s there to take a report. Only she notices he’s more interested in her blood alcohol level than the rape. He tells her it would be best to drop the matter, that it will only make her an outcast among the troops.”

“What did she do?” Sloane asked.

“She told him to
also
go fuck himself. Then she filed a grievance. The military court-martialed the three soldiers, but none were convicted of rape. They all stuck to the same story: Private Evans was a willing participant; the bruises and cuts were because she liked it rough. When her administrative action finished, she found me. I did some research, came to the conclusion she was shit out of luck, and filed a claim in federal district court against the government, the army, and the three soldiers.”

The latter two sentences didn’t make sense. “She was shit out of luck, but you filed the complaint?”

Kannin shrugged. “Like I said, I like to shake the trees and see what falls out. I’m not afraid to lose, but I hate rolling over. I learned playing football that things can turn around quick. I was hoping that would happen in Private Evans’s case.”

“Did it?” Sloane knew it was likely or they wouldn’t be discussing the case.

Kannin nodded, still smiling. “During discovery I learned two of the soldiers had a propensity for violence against women, and one had earlier confided to the same investigating officer that, given the chance, he’d, quote, ‘like to fuck the shit out of Private Evans,’ end quote. But this officer is a wannabe, a weenie. You know the type? He’s trying to be one of the boys. So he says
nothing about it. Then they go and do it. Now his ass is on the line.”

“Sounds like a pretty good case. Why would you be shit out of luck?”

Kannin put up one finger. “You’re thinking like a civil lawyer. Remember this is military law. The assistant U.S. attorney brought a motion to dismiss, arguing that the Feres doctrine barred the claim.”

“The Feres doctrine?”

Kannin’s smile now had a bit of the Cheshire-cat grin. “And you were a marine. The first rule of military law is understanding the hurdles, and the Feres doctrine is about a ten-foot hurdle. This is where you might want to take notes.”

Sloane took out a pad of paper and a pen from his briefcase. Kannin spoke in a rote tone, as if reciting a legal treatise from memory. “When an inductee takes the oath of enlistment, he swears to protect the Constitution of the United States against all enemies both foreign and domestic.”

“I remember it well,” Sloane said.

“But I’ll bet you didn’t know that at that very instant you also forfeited your right to sue the government, the military, and your superior officers for injuries incurred ‘incident to service,’ even if you could prove those superior officers acted negligently or deliberately to deprive you of your constitutional rights.”

“Incident to service. What does that mean?”

Kannin shrugged. “Hell if I know. Hell if the courts know. But there’s a case directly on point that says getting raped on base fits the definition.”

“You’re kidding?”

“There’s also precedent that says having the wrong leg cut off by a military doctor, or having surgical tools left inside your stomach is ‘incident to service.’ So is being unwittingly exposed to nuclear radiation during atomic testing, or to chemical weap
ons, LSD, and electroshock treatment as part of a military test program. I could go on, but I think you get my point.”

“This all developed from one case?”

“Three, actually. In 1950 the Supreme Court consolidated three cases with a common thread—families of soldiers suing the government and members of the military for their deaths. The family of Lieutenant Rudolph Feres claimed their son died because the government negligently quartered him in barracks it knew had a defective heating unit. The barracks burned to the ground.”

“How have the courts rationalized the doctrine?”

“Not well. But you have to remember that 1950 was not long after the end of the Second World War, which meant the Supreme Court was faced with the potential of hundreds of thousands of civil claims by soldiers and their families. The justices opined that military benefits rather than lawsuits were the appropriate remedy.”

“Makes sense in theory,” Sloane agreed.

“It did. But obviously, the courts didn’t anticipate that civil jury awards would eventually dwarf military benefits, or that lower courts would extend the doctrine as far as they have.”

“I take it people have challenged it?”

“Some,” Kannin said. He lifted a thick black binder from his desk and handed it to Sloane. “I took the liberty of pulling this off the shelves when your secretary called. These are the highlights. I think my research pulled up around three thousand total cases.”

“Three thousand? And nobody’s punched a hole in the rationale?”

“The rationale changes, but the most frequent explanation is that claims by soldiers could subvert the chain of command and make officers hesitant during combat.”

“That’s ridiculous. No officer is going to be thinking of a lawsuit in the middle of a battle.”

“I agree, and the Supreme Court was leaning that way too the last time it heard a Feres case. The justices split five to four. Justice Scalia wrote that Feres was wrongfully decided then and remained wrongfully decided.”

“But they didn’t overrule it.”

“It was the wrong case for a reversal. You think you got a better one?”

“I don’t know. Sounds like you didn’t.”

“We never got that far.”

“What happened?”

“The morning of the hearing I’m standing in the hall with my ass in hand when I get a gift handed to me. My investigator calls to tell me that a certain army officer who visited my client in the hospital is the nephew of a prominent politician whose name I am not at liberty to divulge pursuant to a confidentiality order I would never deliberately violate—Jack T. Miller.”

“The senator?”

Kannin put up both hands. “I can’t say. But when I bring this up in the hallway with the assistant U.S. attorney, along with my intent to tell the media, she’s suddenly willing to kick over the hearing. Two days later I have a settlement offer on my desk, which, of course, I rejected. Two offers later we’re in the six-figure range and the first figure, which I am also forbidden to reveal, was not a one, or two, but comes before four.” Kannin sat back. “Enough of my war stories. Tell me about your case.”