“The USS Meecham.”
“And when was this taken?”
“No clue,” Captain Tucker said without even looking at the photo.
Jonathan held it even closer to the man’s face. “It has the time-stamp on it. What date does it show?”
“March 21, but I can’t be sure.”
Judge Breaux immediately butted in, telling the witness only to answer the question, not comment on whether or not the time-stamp was accurate. And he struck the captain’s words from the record.
“And where was this picture taken?”
“I don’t know.”
Jonathan was coming in for the kill. “Do you know that this picture was taken in Portsmouth harbor, on England’s southern coast?”
“No.” The captain began raising his voice. “I can’t tell by looking at it.”
“Taken on the 21st of March. And what is your vessel towing? Is that some sort of barge?”
“Look at the picture before you answer, Captain,” the judge said in a bellicose tone. “May I remind you, you are under oath.”
Jonathan held it in front of the witness for a few more seconds and then walked past the jury box as he returned to the podium. He felt an electrifying charge of confidence run through his body, almost enough to make him levitate. The witness was on the defensive, his testimony about to be torn to shreds—a man in uniform on the verge of being branded a liar.
His eyes not leaving the jury, Jonathan asked, “Captain, isn’t that a barge you are towing as you entered Portsmouth harbor? Isn’t that what collided with the Cajun Star? And isn’t that why your ship shows no signs of damage?”
“Objection, objection, objection!” Peyton stood up with his arms wide to his side. “He’s badgering the witness.”
The judge shook his head, but it was anybody’s guess what he was really thinking.
Another sanction, perhaps? Jonathan mused.
“Mr. Brooks, one question at a time, please.”
The captain’s neck had turned blotchy. Jonathan was eager for the coup de grace.
“Captain, is your vessel towing a barge in this photograph?”
After a long pause, the captain answered, “Yes.”
“Have you previously testified about a barge?”
“No, but I wasn’t asked.”
Jonathan was pleased with his answer. At best it would make the captain appear like a smart ass; at worst, it was an admission of guilt of devastating proportions. But the best was yet to come.
“Please read to the jury the time-stamp exactly as it appears on the photograph.”
“17:34, March 21, 1989.”
Luckily for Jonathan, the captain was not as quick on his feet. Jonathan had feared that in his defense he would have argued that the photograph time-stamp was off by a week, since the vessel had indeed been in Portsmouth harbor before sailing to the North Sea and colliding with the Cajun Star. Peyton would surely bring that up later, in redirect. But for now, the damage was done, and Jonathan gave Gary a wink.
Allen then handed Jonathan a few pages of testimony from the previous week. The judge allowed the witness to read from it.
The perfect posture the captain had kept throughout the trial had vanished. He was slouched forward, shifting his legs every few seconds.
Prompted by Jonathan, Captain Tucker read from the transcript. “On March 21, 1989, we were headed north about sixty-five nautical miles off the Scottish coast.” The captain read his own words as if he were ingesting arsenic. “We were headed 020 toward Norway.”
“Don’t you mean no way?” Jonathan asked off the cuff as he neared the first row of jurors.
The jury erupted in laughter. If they had gotten the joke, they had surely grasped the captain’s lies.
Slam dunk.
Jonathan laughed as well, as he imagined how spectacular the saying “No Way to Norway” would sound in his closing arguments to the jury, perhaps even rivaling the legendary “if it doesn’t fit, you must acquit.”
Jonathan slowly strolled back to the podium, feeling lighter than air.
“Captain, you’ve said it yourself in this courtroom: you can’t be in two places at the same time. So, were you near Portsmouth at that moment, or, as you’ve claimed, hundred of miles north sailing to Norway?”
Jonathan glanced at Peyton, who was looking down at his notes, his hand covering his forehead.
“We were at sea.”
“Meaning?”
“We were headed to Norway.”
Jonathan knew that the captain wanted to evade the answer as best he could. Perjury would not help his career. Granted, a legal scholar would probably agree that sailing to a British port for less than a day could still be deemed heading toward someplace else. But juries aren’t scholars. For laymen, a quibbler is a liar. And a liar in uniform is as good as hung.
“There is no way you could be headed for Norway,” Jonathan said with a grin, “if at the time you were pulling into the harbor at Portsmouth, isn’t that so?”
“All I can say is that we were at sea.”
Jonathan held the photograph in the air and gazed at the jury. “Wouldn’t you agree, Captain, that seeing is believing?”
Not surprisingly, Peyton objected, and the judge sustained it. But Jonathan’s shot across the bow had devastated the defense. And to really rub it in, he went through the motions of introducing into evidence the Royal Mail dispatch, showing that mail destined to the Meecham’s crew had been diverted to Portsmouth.
Jonathan re-examined the photograph, focusing again on the barge. Only part of it was visible, the rest cut off from the print. It appeared like any other barge, not much higher than a dozen feet above the waterline. But it was carrying something. Jonathan held it at a different angle, avoiding the glare from the lights above. A large tarp covered part of the barge’s cargo. But the judge didn’t give him more time. He had to move on with his questions. And he did. Questions about the barge: where the captain had picked it up, what cargo it was carrying and loads of other questions, each one prompting the captain to answer “I don’t recall.” It was the officer’s best possible tactic, as pleading the Fifth was not an option in a civil trial. His credibility was shattered beyond repair.
Finally, Jonathan was done. He’d get no more from this man, not now anyway. “Your Honor, at the moment we have no more questions for the captain, but we wish to retain his availability in the week ahead so that—”
“Granted,” said the judge before Jonathan could finish.
Jonathan took a close look at the jury. They appeared attentive. He hoped they would now give the testimony of Captain Glengeyer a hell of a lot more weight.
But Judge Breaux looked troubled. After announcing a thirty-minute recess, he turned his eyes to Jonathan’s table. “I want to see counsel in my chambers right now. And you too, Mr. Peyton.”
5
Waiting outside the judge’s chamber felt a little like being sent to the principal’s office. Peyton showed up a few seconds after Gary and Jonathan had entered the waiting room.
Jonathan had no clue what Breaux wanted, and now that he was on a roll, he didn’t appreciate the recess. He was eager to see if the defense would rest, since Captain Tucker was their last witness. This would give Jonathan a chance to bring Glengeyer back on the stand.
The judge’s assistant answered her phone and quickly got up and crowed her head into the demon’s office.
“Let’em in,” Jonathan heard the judge say. The assistant ushered the lawyers in.
Judge Breaux was standing behind his leather chair. It was a fairly large room but had very little floor space because of the crowded furniture. Bookcases lined every wall, and three stuffed chairs and a small couch encircled the judge’s cluttered desk.
“Gentlemen, please sit. Let me cut to the chase. I want the ship’s logbook and radar return data delivered to my office in the next forty-eight hours.” He then gazed at Peyton, nudging his reading glasses farther down his nose and as
ked, “Are you prepared to comply?”
With an irritable scowl, Peyton leaned back in his chair. “Your Honor. First, that’s short notice. Second, I believe the current redacted version is sufficient for—”
“Save it, Counselor. I think you should use your efforts at making sure your witness, Captain Tucker, is able to tell fact from fiction in my courtroom.”
Peyton looked like a man seated on a bed of nails.
“I will conduct an in camera, ex parte review of the logbook and radar data,” said the judge. “And it’s your responsibility to get the cooperation of the Department of the Navy.”
Peyton’s shoulders seemed to melt into his chest. “Would you be so kind as to allow counsel Tillerman to conference into this meeting?”
“Dial nine,” Judge Breaux said gruffly, pointing at the phone at the edge of his desk.
Peyton’s fingers trembled a bit as he dialed. Things were definitely going to heat up. Peyton had misdialed. He tried again and this time managed to reach Tillerman, informing him of the judge’s demand for the original records, and telling him plaintiff’s counsel were in the room.
Tillerman’s hollow voice echoed from the speakerphone. “Good morning, Judge, counselors.”
The judge leaned back. “I want the originals.”
“Your Honor,” Tillerman said, “with all due respect, you must first allow us to provide a new declaration or affidavit in response to your demand, as we’ve done before.”
Jonathan quickly chimed in to back the judge. “The Navy’s initial declaration, the one filed late last year, covered the contents of the logbook, and after Your Honor’s hearings on this issue, the Court ordered the redacted version, which we’ve shown today are falsified documents. Our client is now entitled to review the originals. We are prejudiced by any further delay. There’s something there that would clearly benefit us, and they don’t want us to find it. It’s all very fishy.”
“The conduct of the witness and the Navy is sanctionable as well,” Gary added.
“The declaration was submitted for different purposes and referenced the logbook in a different light,” Peyton argued. “This is an entirely new request.”
“What I heard in testimony only minutes ago shows me the information is false,” Judge Breaux said brashly, scratching his chin. “And remind me what the classification is for the logbook itself.”
“Your Honor, the files are Top Secret, Sensitive Compartmented Information, with a codeword that I am not privy to,” Tillerman answered.
“And the radar data?”
“Secret.”
“Uh-huh, that’s what I thought,” the judge said, sliding his chair back and slowly getting to his feet. “I’ve made my decision. I want those materials in my possession no later than four P.M. on Thursday.”
“Then I have no choice but to file an interlocutory appeal,” Peyton declared sulkily.
Jonathan wasn’t too worried. He knew it was a long shot for the Fifth Circuit Court of Appeals to put the brakes on the trial and deny the judge’s request.
“That’s entirely your choice,” said the judge. “But for now, my order stands.”
Tillerman mumbled something inaudible, but then cleared his throat and added, “Your Honor, in accordance with security requirements, classified Sensitive Compartmented Information may only be stored in a certified SCI Facility, and I don’t believe this court is such a facility.”
Jonathan knew he had a point. Documents of that nature had to stay in secured locations. All he wanted was for the judge to see the originals. He couldn’t have cared less where they would be kept. It was simply another delay tactic.
“I don’t care much for logistics,” Judge Breaux replied in a fatigued tone. “Just provide the documents on time. Forty-eight hours.”
Peyton shook his head and stood up.
* * *
The quietest lawyers are those who have just lost a battle. Peyton sunk into the far corner of the elevator, avoiding eye contact with Jonathan and Gary, silently choking on the ashes of what remained of his ego.
Jonathan had won a significant victory and had at the same time embarrassed the defense. But he had to plant his dagger in a little deeper into the lanky man. As the lawyers left the elevator in the lobby, Jonathan turned to Peyton. “The truth will come out.”
Peyton stopped and craned his neck forward, his face only inches away from Jonathan. “I wouldn’t be too brazen, if I were you. You’re playing with fire. There are some on my side of the aisle who scare the living daylights out of me. I’ll be glad when this case is over.” He turned and walked off.
Jonathan’s feet froze to the floor. He felt a cold sweat crawl over his chest. He had expected a smug response, or none at all, but not this kind of answer. It didn’t seem like Peyton was trying to frighten him, but rather warn him.
Gary leaned into his colleague and said in a sage voice, “Maybe he didn’t know.”
“What?”
“Perhaps the Navy didn’t tell him the truth. That Tillerman fella may be pulling more strings than we think.”
Jonathan watched Peyton pass through the glass doors. He replayed his adversary’s disquieting remark over and over again. He realized later that he should have pressed Peyton right then and there about what he had meant. It was Jonathan’s first grave mistake.
* * *
Wednesday morning at the office had started with a message on Jonathan’s voice mail. It was welcome news. A clerk for Judge Breaux informed him that the judge had received a hastily prepared declaration from Navy counsel regarding the secret documents, had reviewed it and stood by his decision to see the original unredacted logbook and radar data. The government had attempted but failed to reassert a secrecy privilege, a legal tool that if approved by the court would block access to all documents falling within its scope.
This was followed moments later by a call from Peyton. He was brief and frosty. “We’re filing an interlocutory appeal with the Fifth Circuit today to halt the court’s request.”
Clearly, Peyton and his JAG cohort were going to fight this out to the bitter end. To Jonathan, the defense’s actions were indicative of some wrongdoing, something he was now determined to uncover.
Jonathan was called into the firm’s main conference room to review materials with Allen.
“What’s all this?” Jonathan asked him, who had been there a while.
“Just research files,” Allen replied. He had covered the conference table with stacks of trial documents.
“And that thing?” asked Jonathan as he gazed up at a poster-sized chart pinned to the wall. Names, dates and locations were scribbled in black marker ink, and various arrows connected some of them.
“Last known addresses of the sailors who served on the USS Meecham in 1989,” Allen said. “I’ve located one hundred-sixty so far. Another two hundred or so to go.”
Jonathan looked at Allen for a moment, guessing how much work he must have put into collecting the data—fifty hours over the last few weeks, perhaps. With little or no help from the Navy, he was sure.
Allen was a heavyset man in the making. Not quite obese, but heavier than chubby. Two things were as much a part of him as his pager: beignets and anything with Remoulade dressing. And whenever he sat down, got up, or did anything else that required more than a few bodily movements, he would sweat profusely. A pouring sweat, at times so abundant he would have to excuse himself to find the nearest roll of paper towels. But Jonathan had given up lecturing him on his diet. Allen was a good man who happened to have succumbed to the great culinary temptation that was New Orleans, and so, when he took a seat at the head of the table, his lungs wheezed an unhealthy cry for help. And his dress shirt was soaked, having labored on this assortment of documents for hours.
“How many are in Louisiana or in neighboring states?”
Allen sighed, wiped his brow with his handkerchief and opened a folder in front of him. “Looks like fifteen are in Louisiana, six in Mississippi and
twenty-four in Texas.”
“Good job,” Jonathan said, realizing, however, that Judge Breaux had yet to change his mind on whether they would be allowed to subpoena former or current sailors under the command of Captain Tucker. Gary and Jonathan had so far failed to convince Breaux that this was necessary, but now that the court had seen the boldfaced lies from Peyton’s witness, Allen’s grueling research was more likely to be admissible.
Jonathan took a seat and opened the folder with the photograph of the Meecham in Portsmouth. He hadn’t looked at it since he had impeached Captain Tucker in the courtroom. He gazed at it, examining every detail of the ship and the barge it had in tow. His eyes then migrated to a large tarp covering the barge and immediately saw something strange. He quickly headed to his office, dug into his desk, retrieved a magnifying glass and returned to the conference room, all the while feeling almost angry that he hadn’t spotted it earlier. He passed the loupe over the photograph, over the ten-foot-high tarp that covered whatever was being carried in the barge.
“Allen,” he said excitedly, “take a look at this.”
His colleague, comfortably slouched in his chair, did not seem to immediately gather the urgency.
“Come, come,” Jonathan insisted, staring at the photograph strongly enough to burn a hole through it.
As Allen leaned his head over the image, Jonathan tapped it hard with his index finger.
“I’ve already seen it,” Allen said, still not getting it.
Jonathan passed his pen along the outline of the tarp and said, “What does this look like? This part of the tarp that rises here and then slopes down?” Allen took too long to answer. “The tail of an airplane! And look at this very small portion that’s not covered. It’s dark, gently rounded.”
“You mean a plane’s horizontal stabilizer.”
“Whatever you call it,” Jonathan blurted. “Isn’t it? Don’t you think? Huh?”
Allen took the magnifying glass and leaned his face in front of Jonathan. “I’d say...you’re right.”
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