Enemy Combatant

by Ed Gaffney

  CONTENTS

  TITLE PAGE

  DEDICATION

  ACKNOWLEDGMENTS

  PROLOGUE

  CHAPTER ONE

  CHAPTER TWO

  CHAPTER THREE

  CHAPTER FOUR

  CHAPTER FIVE

  CHAPTER SIX

  CHAPTER SEVEN

  CHAPTER EIGHT

  CHAPTER NINE

  CHAPTER TEN

  CHAPTER ELEVEN

  CHAPTER TWELVE

  CHAPTER THIRTEEN

  CHAPTER FOURTEEN

  CHAPTER FIFTEEN

  CHAPTER SIXTEEN

  CHAPTER SEVENTEEN

  CHAPTER EIGHTEEN

  CHAPTER NINETEEN

  CHAPTER TWENTY

  CHAPTER TWENTY-ONE

  CHAPTER TWENTY-TWO

  CHAPTER TWENTY-THREE

  CHAPTER TWENTY-FOUR

  CHAPTER TWENTY-FIVE

  CHAPTER TWENTY-SIX

  CHAPTER TWENTY-SEVEN

  CHAPTER TWENTY-EIGHT

  CHAPTER TWENTY-NINE

  CHAPTER THIRTY

  CHAPTER THIRTY-ONE

  CHAPTER THIRTY-TWO

  CHAPTER THIRTY-THREE

  CHAPTER THIRTY-FOUR

  CHAPTER THIRTY-FIVE

  CHAPTER THIRTY-SIX

  CHAPTER THIRTY-SEVEN

  CHAPTER THIRTY-EIGHT

  CHAPTER THIRTY-NINE

  CHAPTER FORTY

  CHAPTER FORTY-ONE

  CHAPTER FORTY-TWO

  CHAPTER FORTY-THREE

  EPILOGUE

  ABOUT THE AUTHOR

  ALSO BY ED GAFFNEY

  COPYRIGHT

  This book is dedicated

  To Suz—

  To Melanie and Jason—

  To Bernard and Mary—

  To Grace, Mary Anne, Eileen, Bernadette,

  Steve, John, and Beth—

  And to Eric, Bill and Jodie, and everyone

  in the Tribe.

  Thank you for choosing me.

  ACKNOWLEDGMENTS

  Thanks to Kate Miciak and the team at Bantam Dell for their expert work. Continuing thanks to my agent, Steve Axelrod. Thanks to Eric Ruben for the research, and for his creative inspiration. Thanks to the brave first-draft readers: Steve Axelrod, Deede Bergeron, Lee Brockmann, Suz Brockmann, Scott Lutz, and Patricia McMahon. And thanks always to Suz, whose hard work has done so much good for so many.

  PROLOGUE

  MY PROPERTY LAW professor, J. Keenan Bowles, used to get angry with me whenever I used the phrase “with all due respect,” because he thought it was code for “you don’t know what you’re talking about.” He also loved to say that peace was nothing more than a state of mutual cowardice.

  And my best friend, Cliff Redhorse, recently told me that according to traditional Navajo teachings, my arrest for murder in the middle of the Juan Gomez terrorism trial was merely the universe trying to put itself back into balance.

  With all due respect, Professor Bowles and the Navajos don’t know what they’re talking about.

  The only thing that was out of balance on the first day of the Gomez trial was me. I was exhausted because a cold front had rolled through central Arizona the night before, and Dad can’t sleep through thunderstorms.

  Right up until his stroke, my father, Henley Carpenter, had been the top assistant district attorney in Maricopa County. He prosecuted all the big criminal cases in Phoenix. He was a quick-thinking, fast-talking, high-energy lawyer in a town where everything seemed to run about two speeds slower than he did.

  But by the time that Juan Abdullah Gomez was charged with plotting the infamous Denver Tunnel Bombing, my father had been retired for years, and I was taking care of him in my parents’ house up on Payson’s Ridge. The injury to Dad’s brain had left him unable to speak, unable to move around without a wheelchair, occasionally forgetful, and terrified of electrical storms. So I spent most of that night with him in the living room, listening to Barry White’s Greatest Hits—my father’s favorite CD.

  We have never discovered where Dad got his taste in music.

  Anyway, from about midnight to a little after four in the morning, over the background of an alarmingly deep voice musically seducing dozens of sensuous women, I reassured my father that despite the intermittent flashes of blinding light and air-cracking explosions that rattled our windows for hours, we were completely safe, and everything was going to be all right.

  Less than a week would pass before I realized just how pathetically wrong I was on both counts.

  To this day, my naivety embarrasses me, depresses me, and really pisses me off.

  I should probably apologize in advance for my tone. Until recently, I did not consider myself to be an angry person. In fact, before the Gomez trial, I would have told you that I had big plans for a very bright future. I saw the world as a treasure chest of promise, a complicated but beautiful origami of unfolding opportunities. The perfect day was one filled with discoveries.

  My favorite word used to be threshold.

  I don’t have a favorite word anymore.

  A perfect day for me now consists of a few chores, a bit of writing, and spending time with the remaining members of my family. I have been told that after a while, my feelings of betrayal and suspicion will pass, and my old self will reemerge, but I’m afraid that I have developed some rather severe trust issues. I wouldn’t be surprised to learn that my old self was long gone, and hadn’t left a forwarding address.

  I guess we’ll see.

  ONE

  IT WAS A FLUKE that I was in the courtroom at all.

  The Juan Gomez trial was sensational by any standard, but for the scandal-starved Southwest, this trial was a thrill-seeker’s ambrosia, and the good folks of Arizona were dying for a taste. Phoenix Superior Courtroom Number One-B was jammed with the curious and the vengeful as the trial opened on that fateful June 5. The defendant was being prosecuted for plotting two attacks: one in Houston, which, thank God, had been thwarted in the planning stage, and the one in Denver on that terrible May morning that killed one hundred thirteen people, and injured three hundred twenty-eight more. Gomez was the biggest terrorist suspect to be tried in the U.S. since Timothy McVeigh and Zacarias Moussaoui.

  The only reason I got to see the trial in the first place was because Sarge, the chief court officer, had saved a seat for me.

  Sarge was a former Marine, and the most physically intimidating sixty-five-year-old man I knew. He had started as a court officer at around the same time my dad began his career as an A.D.A. As a child, whenever I accompanied my father to the courthouse, I would always spend a considerable amount of time staring at Sarge’s terrifying but mesmerizing flattop haircut. It didn’t hurt that he’d sneak me some Reese’s Pieces every time he saw me.

  My weakness for junk food dried up around the time I became a lawyer myself, but Sarge’s affection for my family never did. And he knew that on the fifth day of every June—except for 1995, when my mother’s appendix demanded an immediate detour to Phoenix General—my parents, my older brother, Dale, and I would attend whatever criminal trial was taking place at the superior courthouse.

  It is the one family ritual I continue to honor even after everything that happened. But more about that later.

  At the time of the Gomez trial, Sarge was well aware that my mom and Dale were no longer alive, so it was a real long shot that my father would have the energy to endure the wall-to-wall mob sure to make life in the wheelchair even harder than it already was. But that didn’t stop the big court officer from saving a place for us anyway, just in case.

  And so the stage was set for my spectacular and ill-advised pratfall into the unique limelight reserved for mass murderers.

  I was in the third row, shoehorned between re
porters from USA Today on my left and The New York Times on my right. All the big press outlets had swept into town like an Old Testament plague when it was announced that Gomez would be tried here in Phoenix. Fifty of the nearly three hundred seats in the gallery were reserved for them. They complained—hundreds of them were shut out—but they weren’t the only ones clamoring for a firsthand view of terrorist justice, Arizona-style. Thousands of ordinary citizens competed for the remaining opportunities to witness what Governor—and current senatorial candidate—Atlee Hamilton had promised would be a demonstration of “good old-fashioned American West jurisprudence,” whatever that was supposed to mean. And in a particularly opportunistic move, even for someone as publicity-hungry as Hamilton, he had pledged to attend a portion of every day of the trial.

  One thing that was definitely not old-fashioned, however, was the trial’s television coverage. That entire aspect of the case was being managed by the new, federally run Judicial Broadcasting System. The idea was to balance the public’s right to view criminal trials with the limitations of space by setting up a single camera in the courtroom. That source would then provide a live video and audio feed of the proceedings to any television network or station that requested it.

  And according to what I’ve heard, the system worked very well. Tens of millions watched as Judge Rhonda Klay presided over jury selection on that historic opening day of the trial.

  I was sorry to see that Judge Klay had been assigned to the case—not because she was one of the meanest judges in Arizona, but because she was one of the worst.

  The trouble was not that the small, lizardlike woman lacked the brains for the job. It was, instead, that Rhonda Klay used her considerable intelligence to twist the rules to make it almost impossible for any defendant to get a fair trial.

  I realize that last statement sounds like it was written by a defense attorney, and, well, it was. But for several years before the Gomez fiasco, aside from a handful of very mediocre trial performances, I had made my living almost exclusively as a court-appointed criminal appeals attorney. It was my duty to review trial transcripts, and to spot judges who didn’t follow the rules. I was pretty good at it, too. Usually, when I found a problem, it was because a judge didn’t know or understand the relevant legal principle.

  What made Judge Klay unique was that she knew and understood all the relevant legal principles. She just slithered her way around and through them so that virtually all her criminal trials ended in guilty verdicts. Often in ways that were not ethical.

  Or at least they seemed not ethical. No one could prove anything, of course.

  For example, the pool of potential jurors for the Gomez trial looked almost exclusively Anglo. Considering that the defendant was Hispanic, and that about one quarter of the population of Arizona is Hispanic, anyone in Gomez’s position might well have wondered how twelve individuals culled from an all-white group of people could comprise a jury of his peers.

  And anyone in Judge Klay’s position might well have been concerned, or at least puzzled, at the unusual racial composition of the jury pool.

  But the woman with the slicked-back hair and the skinny nose, seated at the head of the courtroom, looked like everything was just dandy. She knew that potential jurors were supposed to be randomly divided into different groups for different cases behind closed doors, by officials sworn to act in accordance with evenhanded rules. So she also knew that it was virtually impossible to prove that she’d tampered with the selection process to ensure a racial imbalance favorable to the prosecution.

  Why was I so sure that Judge Klay had stacked the deck? Because in every one of the major criminal cases that she presided over where the defendant was Hispanic, the jury pool was always disproportionately Anglo. You do the math.

  From her perch behind the bench, the judge glanced at the assistant district attorney. Then she turned and smiled in the direction of the defense table, and said in her pinched soprano, “There being no objections to the jury pool, the defendant may exercise his first round of peremptory challenges.”

  It was a classic Rhonda Klay move—cheat, and dare anyone to call her on it. What was a lawyer supposed to do? Accuse her of manipulating the composition of the jury without any proof?

  And then, a surprise. This defendant did.

  Or at least he tried to. At the judge’s words, the short, brown-skinned man with the curly beard and the wire-rimmed glasses began whispering intently to his lawyer, stabbing his finger at the potential juror pool, then pointing to himself, then shaking his head. Finally he motioned to his lawyer with both hands, as if urging him to stand up and say something.

  But Gomez’s lawyer did neither. Which, sadly, was not a surprise. Because Gomez was being represented by Silent Steve Temilow, another disgrace to the criminal bar. Temilow didn’t belong in the courtroom for any number of reasons, high on the list being that he couldn’t lawyer himself out of a bad parking ticket. But Judge Klay had appointed Temilow to the case because Gomez had complained twice during the five months he’d awaited trial that he wasn’t being represented adequately.

  It wasn’t particularly unusual for indigent defendants in capital cases to doubt that the same government that was trying to have them executed was going to provide them with an attorney who was really going to do battle for them. And Gomez was not exactly your run-of-the-mill indigent defendant in a capital case. Because he was suspected of a terrorist attack, he was treated by the government when he was first arrested as an “enemy combatant,” which is another way of saying that he was held for the better part of six months without the most basic of civil rights, and regularly tortured for information about future terrorist attacks.

  So it was hardly a shock when it was reported that after meeting his first lawyer, Gomez couldn’t bring himself to trust the man, and promptly requested another one.

  Gomez’s complaint about Attorney Number Two—a decent lawyer named Bruno Smithson—was that after months on the case, the attorney refused to do anything except advise Gomez to plead guilty and thereby hope to avoid execution. Bruno actually called me twice while he was on the case. The first time, it was because he couldn’t figure out a way to convince his client Gomez that they needed a lot of time to prepare. Gomez thought they should go to trial four days after Bruno was appointed.

  The second call, several weeks later, was much more serious. Gomez was insisting that he was innocent, and refused to plead guilty. The problem with that was Bruno had never seen such an airtight case. Gomez had clear connections to the man who actually detonated the Denver bomb, as well as file cabinets full of other thoroughly damning evidence found when the government had searched Gomez’s home. Bruno couldn’t accept that it was in Gomez’s best interests to force a trial, and their inability to get over that disagreement led to his dismissal.

  Enter Silent Steve Temilow, the human doormat.

  Now Gomez’s gesticulations were getting more exaggerated, so the lawyer with the thinning hair and the prominent Adam’s apple appeared to take yet another tack—to pretend that the heated whispers and the flailing arms of the man on his left were nothing more than the products of a curious phantasm, best ignored. Stiffly, Steve shuffled through some papers on the table before him, ignoring his client and clearly stalling.

  Judge Klay preferred a more direct approach to the situation. “Mr. Gomez, kindly control yourself—this is a court of law. And Mr. Temilow? Is there a problem? May we have the defendant’s first set of peremptory challenges, please?”

  There would, however, be no denying Juan Gomez. As Temilow rose to address the judge, the defendant rose, too, unwilling to let his attorney off the hook. His increasingly insistent body language demanded eye contact. But Silent Steve soldiered on, bravely disregarding his client’s sleeve-tugging and table-banging by repeatedly adjusting his glasses, and by adopting a robotic posture. His neck, shoulders, and upper body were so rigidly held he seemed almost physically incapable of turning and acknowledging the desper
ate pantomime taking place to his left.

  Staring ahead at Judge Klay, he finally spoke. “Um, Your Honor, I’d first like to personally apologize, and to apologize on behalf of the defendant as well, both to you and to the ladies and gentlemen of the jury pool for, well, for any impropriety that may have taken place over the last few minutes at the defense table.”

  Gomez looked dumbfounded. Could this get any worse? The answer, incredibly, was yes.

  “And with further apologies for any delay, and for any inconvenience caused by such delay, I would like now to address the court’s inquiry regarding the composition of the jury.”

  As he realized that his attorney was finally, finally going to confront the extremely non-Hispanic-looking elephant in the room, Gomez seemed to relax a bit. The expression on his face became somewhat expectant. That expression would soon disappear.

  Temilow continued. “First, Your Honor, the defense specifically waives any objection to the composition of the jury pool, it being well understood that the process by which these candidates were selected as potential jurors for this case was a random one.”

  When Gomez processed this capitulation, he began shaking his head back and forth, looking at the judge, and pointing at Temilow, in silent, negative commentary.

  The lawyer twisted his body so that although he was still facing the judge, his back was now fully to his client. He seemed to hope that by maneuvering Gomez out of his field of view he might make the distracting little man disappear from the courtroom entirely. “And further, Your Honor, the defendant will also waive all peremptory challenges. The defendant is confident that any member of the community will render a fair and just verdict in this case.”

  It was at that point that Gomez could no longer restrain himself. “Oh, no,” he said, continuing to shake his head, but now raising his shackled hands above his head as if Temilow had just scored a touchdown for the wrong team. “No, no, no. I am not waiving anything. And I am not apologizing for nothing, neither. I am firing this man. Right now. I want a new lawyer, Judge. This one is not working for me. He is waiving everything, and apologizing, and he is not listening to me at all. I ain’t waiving nothing. I want a new lawyer.”