by Kenneth Eade
“Yes.”
“Would it surprise you, doctor, if that number were a lot lower?”
“Why, yes, it would.”
“Your honor, I have marked for identification as Exhibit 77, a list of all the federal and state cases in which Dr. Lester has testified. Its companion, Exhibit 78, is a spread sheet, showing those cases in which Dr. Lester has been hired by the plaintiff, and those in which he was hired by the defendant.”
“Objection, Your Honor, I have not been provided with a copy of these exhibits in discovery,” said Nagel.
“Counsel, please approach the bench.”
“Mr. Marks, why has the defense not been provided copies of these exhibits?” asked Henley.
“They are for impeachment, Your Honor. They weren’t relevant until he testified today.”
“What is your offer of proof?”
“Dr. Lester testified that 35% of his cases were plaintiff’s cases. The real number is a little less than 2%.”
“Your honor, this is not relevant. I move that the exhibits be excluded per rule 403. It’s too prejudicial,” said Nagel.
“Motion denied, Mr. Nagel. It shows possible bias.”
“Dr. Lester, please examine Exhibits 77 and 78.”
“Very well.” Lester got out his reading glasses and looked through the exhibits. Then, he indicated he had finished his review.
“Dr. Lester, does Exhibit 77 appear to be a list of the federal and state cases in which you have testified?”
“The cases look familiar. I’m sure they are mine, but what I’m not sure of is whether it is a complete list.”
“My investigator, Richard Penn, compiled this list from a complete record of all the cases you have ever testified in, be it federal or state courts, since the beginning of your practice. Would it surprise you that the percentage of plaintiff’s cases in which you have testified is considerably less than 35%?”
“Yes, it would.”
“In fact, Exhibit 78 is a spreadsheet of the cases in Exhibit 77, and it shows that a little less than 2% of the cases in which you testified were plaintiff’s cases.”
“Is that right?”
“Move to strike,” interjected Nagel, “Argumentative, and no question is pending.”
“Sustained. The jury will disregard the answer.” Nagel was right. There was no question. But the jury also would not disregard the fact that Lester was beginning to look biased.
“Dr. Lester, in formulating your opinion, you testified that you evaluated all peer-reviewed studies on the subject of the effects of solitary confinement, sensory deprivation and overstimulation on suicidal impulses, is that correct?”
“Yes, I did.”
“And, based on those studies, you formulated an opinion, within a reasonable degree of medical certainty, is that correct?”
“Yes, that’s correct.”
“Would you say, doctor, that it is more likely than not that your opinion is correct?”
“Yes, I would.”
“So then, it would follow, would it not, that at least 51% of that data supports your opinion?”
“Yes, I would comfortably say that it does.”
“Would it also follow, Dr. Lester, that, if 51% of the data supports your opinion, 49% of it does not?”
“Objection, calls for a legal conclusion,” said Nagel.
Lester looked like he had just gotten a whiff of some rotten meat. He paused, and then answered. This was not his only case, or his only client.
“It would appear so.”
Nagel took Lester through a thorough redirect in order to rehabilitate him, but, if the jury had been paying at least 50% attention to Brent’s cross-examination, it had to have made an impression.
“The defense rests, Your Honor.”
The next day would be devoted to final argument and instructions to the jury on what law to apply to the facts they were to determine. Brent and Rick high-fived each other outside the courtroom, in the corridor, but both of them knew full well that, even though Brent had ripped Dr. Lester a “new one,” the game was far from over.
As they spoke to the press outside the courtroom, they were unaware that a little Marine with a huge chip on his shoulder was following them.
CHAPTER FIFTY-FIVE
There would be no interruptions of Brent’s concentration the night before final argument. He had made a long outline of the points he wanted to cover, knowing full well that, once the argument got flowing, he would break from the outline and it would come from the heart. Still, he had to be prepared and that meant going over every small detail and thinking how to emphasize the details to the jury. Brent refused all of Rick’s overtures to get together and discuss the case. Sitting in a bar or outdoor café was not his idea of final argument preparation. Brent and Rick drove together back to Santa Barbara, which gave them time to catch up.
“So, bring me up to date on the creepy Marine.”
“I talked to him, but he doesn’t scare easily. Think I just pushed his buttons.”
“Oh, great. Do you think he has anything to do with the case?”
“Don’t know, but he sure does have an abnormal interest in it.”
“I know. I see him smirking every time Nagel scores a point in trial.”
“He did a tour in Iraq. Saw some fucked up shit, apparently. Hates Muslims. He blames them for the deaths of several of his buddies who were blown up by insurgents.”
“So, he’s got a bone to pick. But why this case?”
“Nearest I can figure, he was part of the Marine guard at Gitmo. No connection to the jail. I guess he just heard stuff on base that got his dander up.”
“So, no connection to the case in any real sense?”
“Not that I can see. He’s just a nut. I alerted the U.S. Marshal’s Security Service and the court staff about his background. They have no right to keep him out of the courtroom, but I thought they should be aware.”
The conversation made the long drive home seem shorter. Brent gave Rick his last minute assignments and reminders, but at this point, he knew there wasn’t much more that an investigator could do to help the case. It was all up to him now. When they got to Brent’s house on Harbor Hills Lane, Rick insisted on coming in.
“Dude, I don’t have time to socialize,” Brent said, irritatingly.
“Relax, I’m just doing my security thing.”
Rick gave the house the once over for security, and then left Brent to his preparation. He got in his car, drove the neighborhood looking for anything suspicious, and, finding nothing out of order, parked his car far enough from Brent’s house so he could see it, but could not be seen himself. It was going to be a long night.
Brent fed and pet the cat, took a shower and, being proactive, called Debbie Does Dallas to warn her that this would be one night he would have to spend alone.
“Are you sure?” she pleaded.
“Deb, I have to prepare.”
“Come over here and I guarantee you’ll walk into court with a smile on your face tomorrow.”
“A smile won’t win the case.”
“Suit yourself. Good luck tomorrow.”
“Thanks, Deb.”
Brent toiled over his final argument, pausing only for a “box lunch” he had grabbed on the way home for dinner. Outside in his car, Rick worked on his own box lunch dinner while he continued his stake out. He didn’t expect anything to happen, but if it did, he would be prepared.
***
At about 3 o’clock in the morning, Rick’s tired eyes came back to life as he noticed a beige Toyota Yaris pull up on the cross street, Harbor Hills Drive, and kill the lights. He got out his night vision binoculars to focus in on the occupants of the car. There was only one, but Rick couldn’t get a good view of his face.
The driver stayed in the car for a long time, drinking what looked like a beer or soda. Then, he put on a mask and exited the vehicle.
“Oh shit,” exclaimed Rick to himself, as he slipped out of his own car a
nd took a place behind the hedge of Brent’s next-door neighbor.
The suspect was wearing dark clothing, and was carrying a bag. Rick didn’t know if it was a burglar or what, but there was no way he was getting anywhere near Brent’s house. As the suspect crept up too close to the house, Rick popped out of the bushes, drew his gun, and shouted, “Freeze!”
The suspect turned and ran back toward his car with Rick in hot pursuit. Rick tackled him right as he reached the Yaris, and slammed him up against the car. The suspect wiggled out of Rick’s hold, took a few paces back and pulled a knife.
“Drop the knife, motherfucker. I will shoot you,” warned Rick.
“Go ahead,” said the little shit, in a gruff, obviously disguised voice.
“Drop the knife! I’m not going to tell you one more time!” Rick didn’t want to shoot this little fuck, but he would if he had to. The lights in the neighboring house went on, and Rick knew it would be only a matter of time before the police arrived.
Instead of dropping the knife, the suspect charged at Rick with it, and Rick moved out of the way to avoid being stabbed.
“You think I’m afraid of you, asshole?” asked the suspect, as he waved the knife in front of Rick.
Obviously not, thought Rick. I just may have to shoot this guy after all.
“The next time you charge me will be your last,” said Rick, matter-of-factly.
The suspect, either sensing that Rick would not shoot, or not caring either way, backed away from Rick slowly at first, then turned and ran. Rick ran after him, down the street, and through a neighboring backyard, which bordered on a vast chaparral.
Rick could see the suspect as he escaped into the hills, where he blended in like a coyote. There was no way he could find him, and it would be suicide to run into the darkness with a maniac lying in wait with a knife, so Rick went back to the car to wait for the police.
***
The Yaris came up as reported stolen. Rick thought to himself, if you’re going to steal a car, why a Yaris? The car was clean. Nothing was in it that would give away the identity of the suspect. The paperwork with the police took about an hour, and the cops stayed until the tow truck came to tow the car to the impound lot. Rick, exhausted, went back to his stakeout post in case the coyote came back.
CHAPTER FIFTY-SIX
Brent took the podium for his introductory argument. In this argument, he would put his case together for the jury. After Nagel’s final argument, Brent would take the podium again in rebuttal. Brent stood, silently for a moment, looking at the jury, then spoke.
“Ladies and Gentlemen, this case is about freedom. The defense will tell you that terrorism has threatened our freedom, and, in order to keep that freedom, we all have to come together and make sacrifices. But, in making the sacrifices that the Government asks us to make, we are not protecting our freedom. We are giving away our freedom in exchange for a false sense of security.
“I’m sure that all of you have heard about your “Constitutional Rights.” Actually, you don’t have any “Constitutional Rights.” In 1791, the first Congress, recognizing that we humans have certain inalienable rights that nobody has the right to take away, drafted ten amendments to the United States Constitution that we call the “Bill of Rights.” The Bill of Rights wasn’t enacted to give us any rights. It was enacted so the Government could not take away from us any rights that we already had.”
Brent scanned the faces of the jury to ascertain whether they were paying attention. He sensed that they were, and continued.
“When the United States military arrested Ahmed Khury and threw him into Guantanamo Bay Detention Camp, the Government denied him his right to counsel guaranteed by the Sixth Amendment. They also denied him his right to a speedy trial, to confront the witnesses against him, to a trial by jury, and the right to be informed of what he was charged with. They denied him his right to trial by jury, guaranteed by the Fifth Amendment, his right to due process of the law by holding him indefinitely with no charge, and his coerced confession violated his privilege against self-incrimination.
“Finally, and most importantly, by beating him, treating him as less than human, depriving him of sensory input, overloading his senses, force-feeding and torturing him, the Government denied Ahmed his Eighth Amendment guarantee: To be free from cruel and unusual punishment.
“By breaking into her home without a warrant, eavesdropping on her private telephone conversations, emails, library and bank records, and social networking sites, the Government has also denied Catherine Khury her Fourth Amendment guarantee against unreasonable searches and seizures. The Government denied her this constitutional guarantee by using unconstitutional powers granted it by the USA Patriot Act. Ladies and Gentlemen, the twelve of you have a much more important responsibility than deciding this one case. This case gives not the just opportunity, but imposes on you the responsibility of safeguarding these important rights that have been taken away from all of us by the Government, which asserts that it has the authority to suspend the guarantees of the Constitution, so long as it does so outside of the United States. You must do this by declaring that the Patriot Act’s amendment to theForeign Intelligence Surveillance Act violated Catherine’s Fourth Amendment guarantees.”
By now Brent had broken from his outline, and was delivering his message from the heart. He pounded on the podium to emphasize his next point, with each phrase. “You have the responsibility to deliver a clear message to the Government that we, as human beings, in the United States of America, should be a beacon of freedom to every other country in the world, as we have been for the past 200 years, and that nobody, no matter what they are accused of doing, should ever be treated the way Ahmed and Catherine were treated. And you deliver this message with a verdict in favor of Catherine Khury and her children and against the Government.
“Not only was Ahmed denied his constitutionally guaranteed rights, he was also denied the rights that any enemy soldier captured fighting against the United States would get pursuant to the Geneva Conventions of 1949. Article 3 of the Geneva Conventions prohibits detention practices that are cruel, degrading, or humiliating.”
Brent outlined all the rights of prisoners of war guaranteed by the Geneva Conventions that had been denied to Ahmed. He went over the definitions of torture under the law and contrasted how the Government defined torture in their own illegal way. He summarized how the Government had denied Ahmed his constitutionally guaranteed rights. He went over the medical evidence in detail.
Brent paused, then went on to conclude how he saw the law as applied to each element of evidence in the case, pointing to a chart for each point of the case against the Government for Ahmed’s wrongful death, and the Patriot Act’s violation of Catherine’s constitutionally guaranteed rights.
“Ladies and Gentlemen, the medical evidence points to only one conclusion: That Ahmed Khury was negligently force-fed, which resulted in his aspiration of liquid nutrients. Because the Government failed to follow reasonable medical standards of practice, it resulted in his death, and the Government is responsible for that death. Do we know exactly every step of what happened? No, of course not. We were not there. But all you have to determine as jurors is that it was more likely than not that, because of the lack of physical evidence of death by hanging that the hanging was just a cover up made to look like Ahmed committed suicide.
“Let’s be logical about this. Ahmed was waiting for the ruling on his habeas corpus petition. If he had but one glimmer of hope that the key to his prison would be delivered to him, why would he commit suicide?
“And if you decide that a preponderance of the evidence does not point to death during the force-feeding, Ladies and Gentlemen, you don’t have to award a verdict to the defense. That is because there is overwhelming evidence that the cruel torture that Ahmed had been subjected to twenty-four hours a day during his indefinite detention, would have driven anyone to despair, and that despair was enough to create an irresistible impulse to comm
it suicide.
“How do you send this message to the Government with your verdict? There is only one way. You award enough money to Catherine to make it hurt and embarrass the Government for what it has done, in your name, to shame the United States. The terrorist attack on September 11th, 2001 was a terrible tragedy, and the terrorists responsible for it should be punished. But, in this case, the only ones who have been punished are citizens of the United States: Catherine and Ahmed’s lives have been destroyed for nothing.
“No amount of money will bring Ahmed back to Catherine and her two children. We can’t give Catherine back her partner. We can’t give Karen a father to walk her down the aisle at her wedding. We can’t give Cameron a father to play ball with or teach him how to drive. That is lost forever. . But we can make sure that the financial security that was ripped away from them is restored. We can only give them back this financial security that they have lost from the loss of their provider; to compensate them for the loss of his love and affection, and for the suffering that Ahmed experienced. It’s a shame that we cannot give them more than that.”
Brent took every second of his allotted argument time, then handed over the podium to Timothy Nagel.
CHAPTER FIFTY-SEVEN
Timothy Nagel took the podium, waving the flag and invoking patriotic religion.
“Ladies and Gentlemen, as you deliberate on the issues presented in this case, I ask you to remember the 3,000 innocent people whose lives were wiped out by a vicious terrorist attack on September 11th, 2001, and how many fathers, mothers, uncles, aunts, brothers and sisters were lost to so many innocent families.
“These terrorist networks are the most formidable enemy the United States has ever had. We are at war, Ladies and Gentlemen, and throughout history, in times of war, the Government has called upon us to gather together as a society and fight the enemy together. Some of your parents and grandparents made sacrifices so we could end the fascist tyranny of Nazi Germany in World War II. Now it is our turn to make sacrifices so we can win the War on Terror.
