A Young Lawyer's story

by John Ellsworth

  Agent Chin was the first witness to take the stand the second morning of trial. Thaddeus looked him over, deciding where he was going to find a hole in the man's story based on who the man appeared to be. As the direct exam proceeded, then Thaddeus' inquiry shifted from the man's appearance to the man's context--what he had to say about his investigation and role in the investigation of Franklin J. Broyles. From this he would come to know where to chip away. The young lawyer was learning as he went.

  Agent Chin testified he had worked hand-in-glove with Agent Ranski in investigating Broyles. He had been recruited by the Chinese to acquire U.S. Intelligence papers and sell them, according to Chin. He had performed admirably--for a traitor and an enemy of America. Was he possibly working as a counter-agent--a double agent as suggested by defense counsel?

  No, Chin testified vehemently, no such thing. He was a traitor and had been from the very start. He had been arrested only when his usefulness to the government dried up. But what about the security secrets he sold to the Chinese? Wasn't that a terribly dangerous criminal act? The security secrets were all disinformation, Chin said with the hint of a smile. Secrets and tales and data concocted to mislead the Chinese into thinking it was legitimate, reliable, and actionable intelligence China could draw from to improve its own security and offensive capabilities.

  Then it was Thaddeus' turn to cross-examine. He made his way up to the lectern after a fifteen-minute mid-morning rest and restroom break.

  "Now," he said to Chin in a friendly voice, "Mr. Chin, your ethnicity is Chinese?"

  "Yes."

  "But you were born in the U.S.A.?"

  "Every bit as American as you, Mr. Murfee."

  "Thank you. I appreciate that, and your nationality and patriotism were never disputed, sir."

  Chin nodded without smiling.

  "But what I don't understand--and what maybe the jury is also not understanding--is why a sitting United States Attorney would turn sour. Why would a loyal American suddenly agree to turn bottom-up and start betraying his country? Can you explain how that happened in this case? I mean, your whole case depends on the jury believing your story that the Chinese turned the guy from a patriot to a traitor. How did this work, exactly?"

  Chin looked over at the jury.

  "The power of money should never be underestimated. Its allure is a story as old as the shiny stones that were first exchanged by our progenitors who lived in caves and marveled at fire. Acquisition is the national pastime in the United States, not baseball. The defendant was no different from any other American whose soul is defined by bank balances. That's your client, Mr. Murfee. We didn't make him that way; we only tapped into it."

  "So he was by nature a thief? Is that it?"

  "Yes."

  "But this never showed up anyplace in his entire life before. He has never been accused of cheating on law school or even college examinations. He has never floated a bad check, never knocked a little old lady down and made off with her purse, never cheated on his taxes. The tax thing is even vetted by the FBI before a U.S. Attorney gets sworn in. Your own employer vouched for his honesty. Yet here you are, swearing before the jury that Chinese agents were able to inoculate him against his own honest character and produce a traitor willing to do their will for a dollar. Is that it?"

  "Nice speech, counsel," Chin replied with the hint of a smile. "Did you really want me to take a shot at that?"

  Thaddeus managed to exude frustration. "Of course. That's why I asked the question, sir."

  "In answer to your speech, yes. The Chinese were able to inoculate him against his honest character, as you so eloquently put it. They turned him, in agent-speak."

  "Who of the Chinese first approached Mr. Broyles?"

  “A man whose name doesn’t matter. A Chinese national.”

  “Now, how do you know this?”

  “I had penetrated their cell. I was a double-agent.”

  “When was he first approached by this no-name man?”

  “Three years ago. At a state function in Washington."

  "Tell us what happened at that function."

  "He was with his wife that evening. It was at an orchestral performance of some kind. At intermission he excused himself and went to obtain a drink for his beautiful wife and himself. As he was turning away from the cash bar, two wineglasses in hand, I introduced myself to him."

  "What, as Agent Chin of the FBI?"

  "Not at all. Under an assumed name. Mr. No-Name was with me. Talk then progressed. We moved over against the wall beside a twisting staircase. In its shadow we proceeded to talk for a good ten minutes until the lights blinked, signaling the start of the second half of the show. He gave me his private phone number and agreed that I could call him. After that, we met three times more, always in broad daylight at some location or other either at or within a stone's throw of the National Mall."

  "What was discussed at those meetings?"

  "At first we talked politics. Then government rights and wrongs. He was very upset with the U.S. Incursions into Iraq and Libya and Afghanistan. Thought the U.S. was far exceeding the War Powers clause of the Constitution. He thought the government was out of control, which is where I found my opening."

  "Which was?"

  "He believed the president, in going into Iraq and Afghanistan, and in killing people with drones, had acted far outside his Constitutional powers. He believed the government had been betrayed by two administrations. This made him susceptible to the suggestion that other governments wouldn't dream of warmongering. Such as China, for example. Turns out he had minored in Asian History in college. He loved Asia and was extremely knowledgeable. The next step was not that far from the others."

  "Which was?"

  "Suggesting he should help an Asian country prepare to defend itself from the coming U.S. incursion. He really believed--maybe still does--the U.S. has its sights next set on China. That the U.S. will find some rationale to invade there before twenty-twenty-five."

  "Why would the U.S. do that? Why would he even think that?"

  "Simple. The United States' future is mortgaged to the Chinese. They hold almost twenty trillion in U.S. tax dollars that haven't even been collected yet. The national debt is horrifying to many Americans, counselor. Especially conservatives."

  "So he agreed to sell national secrets?"

  "He agreed to procure and sell U.S. war game planning. The Chinese are strategizing in response to U.S. invasion strategies of the Chinese mainland. The U.S. plays war games all day long against everyone. Especially the Asians. As economies change, as the weather kills off certain crops and tsunamis annihilate coastal populations, so do U.S. needs and interests change along with them. So the war games are constantly in flux. Our friends in China pay top dollars for the latest iteration. With this information they strategize their responses. It's all gamesmanship, counsel, and your client accepted millions of dollars for selling these games to the Chinese. Did I answer that?"

  "You did. War games for money. Except?"

  "Except the games we provided him to sell weren't real. They were skewed as far from reality as we thought we could skew them without anyone catching on."

  "And where did the war games come from? Surely a U.S. Attorney wouldn't have access to them."

  "No, but a certain worker in the Department of Defense did. A low-level computer scientist against whom the U.S. Attorney's office had threatened prosecution. Broyles threatened the man and the man coughed up disinformation. We were there pulling strings every step of the way. Brilliant, yes?"

  "It's brilliant thus far, nobody disputes that. But what if Broyles testifies that he knew all this and that he was in on it, that he was actually a double agent?"

  "I moved him from a conversation with me to a conversation with real Chinese spies. This was done in a manner I cannot disclose. But make no mistake. Your client believed he was a traitor. Everything he did points to that, from how he slunk around and covered his tracks to how he used satellite p
hones to make his calls. It was all very hush-hush and he played like only a real spy would."

  "Agent Chin, my client's movements and behaviors could just as well have been those of the double agent, am I correct?"

  "If you mean would a double agent do certain things to make it look like he was a real traitor, then yes, I have to give you that."

  "Thank you. So, we are left with your word and the word of Agent Ranski as the only proof my client was a traitor, isn't that the bottom-line?"

  "That, and his threats against the DoD employee."

  "Will he or she be called to testify?"

  "National security forbids that. It will not happen."

  "So my point is well taken. This case you've brought against Frank Broyles directly rests on the testimony and claims of you and Agent Ranski, correct?"

  "I suppose so."

  "And if the jury disregards your testimony or finds it suspect or just doesn't believe it, then this case against Frank Broyles must fail, correct?"

  "Yes. Correct. With one minor reservation, of course."

  Thaddeus paused. His eyes bored into the witness. He decided to take the chance. He was about to learn about asking open-ended questions where the answers weren't known beforehand.

  "What would that reservation be, Agent Chin?"

  "You yourself witnessed Franklin J. Broyles passing secrets to the Chinese. You witnessed it and you said nothing about it."

  A flash of revelation exploded in Thaddeus' mind. So that was it! They were going to include him in Broyles' undercover scheme. He tried to think through this new miasma but his thoughts were scattered and fraught with enough threads to lead nowhere all at once if he paused to think them through. Not only that; there was seriously no time to reflect. The jury was waiting for him to contradict what had just been said about keeping quiet in the face of traitorous acts.

  Which contradiction never came.

  "I was instructed by Assistant U.S. Attorney Melissa McGrant and FBI Special Agent Naomi Ranski to follow Frank Broyles one night, it's true. But did they advise you that I was told to do these things in defense of the homeland? Did they advise you that I was told to do these things to help nail a traitor?”

  "Objection!" cried the U.S. Attorney, Ollie Anderson. "Sidebar, please, Your Honor."

  Judge Barnaby curled his index fingers at each attorney. "Come," he said simply. They joined him at sidebar. The U.S. Attorney went first.

  "Judge," he whispered, "counsel is evidently a witness in this case. It is unethical for an attorney to also be a witness in his client's case. The government asks for Mr. Murfee's immediate disqualification as attorney of record in this case."

  The judge looked down his long nose at Thaddeus. "Well?"

  Thaddeus was still shaken. How the hell could this have escaped him? He was, in fact, a witness. It had just never occurred to him what that meant in the real world of trials and judges. Until then.

  "Judge, it's true, I was instructed by my supervisor Melissa McGrant to follow Frank Broyles. And I did that. But the witness has said that was a traitorous act and he has testified about it. I have not been listed on the government's list of witnesses as a witness having knowledge of those things. So I did not consider myself a witness."

  "That's flaming bullshit, counsel," hissed the judge. "And you know it. You have committed a serious ethical violation here and I intend to report you to the bar and have your license to practice law revoked. I am also open to holding you in contempt of my court, but I'll reserve making that holding until morning. I don't want it said that I threw your ass in jail while I was angry. I'll wait until my anger has passed and then throw your ass in jail for a long time. But in the meantime, your client's interests are paramount here. We are continuing this trial. The attorney is not removed as counsel but he is certainly censured by the court. Return to your places, gentlemen, I have a trial to run."

  Thaddeus and the Assistant U.S. Attorney returned to their tables. Thaddeus leaned to Matheson and whispered something to him, something like, "Smile so the jury knows we're taking this lightly right now."

  Matheson did as he was told. He smiled. Thaddeus did as well. Meanwhile, Judge Barnaby was staring daggers at them, his rage barely concealed behind his stormy demeanor and pursed lips.

  Then Thaddeus took up where he had left off. It was time to close down the cross-examination and get the hell out of Dodge, he would later tell Nikki.

  "Thank you, Agent Chin. I have nothing further, Your Honor."

  Judge Barnaby looked up at the wall clock. Just before noon. He called a recess and nodded at the marshals. Thaddeus was again taken into custody, this time to spend his lunch hour incarcerated in the court's holding cell. Matheson promised to return with sandwiches and a thermos of coffee and the marshals made no objection.

  Thaddeus was left sitting offstage in the holding cell, alone.

  He opened his laptop and went to work.

  26

  After lunch hour, Thaddeus was moved by the marshals from the holding cell back into the courtroom. He took the remaining fifteen minutes before court started back up to confer with Matheson and Broyles. Both men agreed that the government would probably rest. A call was placed to Melissa McGrant's office to advise her she would be needed pursuant to subpoena as soon as court took up again.

  Sure enough, after getting underway, the government abruptly announced that it was resting its case. All eyes turned to Thaddeus. It was time for the defense to have its say.

  "Defense calls Melissa McGrant," Thaddeus boomed loud enough for the bailiff to hear so that he could go outside the courtroom and retrieve McGrant to testify. Which he did. Just minutes later she was being sworn and took a seat in the witness chair. Her perfect bow of a mouth appeared stress-free and her violet eyes flashed friendly at the jury. She was ready and Thaddeus inwardly flinched at her cool calm. This was going to be an uphill battle.

  "State your name."

  "Melissa McGrant."

  "What is your business, occupation, or profession?"

  "I am an attorney with the United States Department of Justice, permanently assigned to the Office of the United States Attorney."

  "What is your job title?'

  "Trial Attorney One."

  "What are your duties?"

  "I head up a team of trial lawyers."

  "What kind of cases does your team handle?"

  "Right now? Espionage."

  "Would that include the case that we're here about today?"

  "Yes it would."

  "Why aren't you trying this case?"

  She smiled and looked over at the jury. She cooed, "Like you, counsel, I too am a witness in this case. However, unlike you, I have determined that fact disqualifies me from acting as trial counsel in the case. I believe it would be unethical for me to try the case. Evidently you believe otherwise."

  He turned very red above his white collar. She had nailed him fair and square. Point taken, time to move along.

  Deciding to jump right at her, he wasted no time with further preliminaries.

  "Attorney McGrant, isn't it true that you solicited me to make undercover sales to the Chinese for you?"

  "Objection!" cried the U.S. Attorney. "Sidebar, please."

  The judge again motioned both attorneys up to his perch.

  "Judge," Ollie Anderson sputtered, "this subject is a matter of vital national security. Whether Mr. Murfee was solicited to work undercover against the Chinese is a matter that pertains to vital national interests. I would have thought Mr. Murfee would have the commonsense to avoid this altogether!"

  "Mr. Murfee?"

  "Judge, national security claims are an attempt to silence me. The fact the United States solicits people to work undercover is the stuff of nightly TV drama. It has no place in a federal courtroom as an element to muzzle the defense in a case of this importance. This is a capital case, Your Honor. My client could be sentenced to death if convicted of the charges against him. I strongly oppose being
muzzled and told I can't bring to the jury's attention compelling testimony about what actually happened here."

  Judge Barnaby, to Thaddeus' surprise, didn't look askance at him this time. Nor did he threaten him with incarceration. Instead he said, simply, "The objection is overruled. Counsel you may inquire into this area. Just be damn sure it doesn't leak over into unrelated matters that involve national security. You could spend another night or two in jail if that were to happen."

  The attorneys returned to their places and Thaddeus again faced the witness. The judge overruled the objection on the record.

  "Well?" Thaddeus said to the witness, "isn't it true you solicited me to make undercover sales to the Chinese for you?"

  McGrant slowly shook her head. Later, upon reflection, Thaddeus would wonder whether she actually was feeling sorry for him at that point. Because he was about to make himself a clear and undeniable witness in his own client's case. Luckily, Matheson piped up.

  "Your Honor," said Matheson before McGrant could reply, "may I have five minutes with Mr. Murfee? An issue has come to my attention and we need to talk."

  "We're in recess fifteen minutes," said the judge.

  "All rise," cried the bailiff and the courtroom stood and stretched while Matheson led Thaddeus out into the hallway by the arm.

  Matheson's face was red and looked capillary-charged as he all but shouted, "What the hell are you doing, Thad? You're about to make yourself a clear and necessary witness in your own client's trial when she answers and denies that she ever solicited you to sell to the Chinese. If she gets to say that, you are left in a position where you yourself have to take the witness stand and tell all about what she did with you. You don't want that, son. You don't want to be a witness in your man's case. So far it's not looking all that bad for your guy--it's two FBI agents’ word against Mr. Broyles' word. That is pretty flimsy. Go with that and you just might save his ass. But go down this road and take the witness stand and you're cluster-fucked, friend. You'll never come back from where the U.S. Attorney will take you on cross-examination. You will virtually ensure your client goes to jail, or worse. Now get back in there and withdraw that question. Then you can go into her dealings with Broyles, but stay far away from her dealings with you. Capisce?"