Enemy Combatant

by Ed Gaffney

  To be fair to Mr. Gomez and to Steve Temilow’s filing system, even if I had found what I was looking for, it would have been impossible for me to do anything useful with it. My brain was going a hundred miles an hour, in about fifty-three different directions.

  It turns out that none of that mattered, because soon after the prosecutor began to speak, my attention was completely committed to him. He was a stocky, rather short man, with salt-and-pepper hair and a mustache. In another era, you might have expected to see him with pince-nez and a pocket watch. His name was Preston Varick. He’d started as a prosecutor in Chicago, but moved to Phoenix over ten years ago. My dad never particularly liked A.D.A. Varick, but even Henley would have admitted he sure was good in that opening.

  “Ladies and gentlemen of the jury, May sixteenth of last year was supposed to be a very joyful day for twenty-seven-year-old Jill Henniker. You see, Jill had an appointment to see her obstetrician that day, because she suspected that after almost a year of trying, she and her husband, Daniel, were finally expecting their first child.

  “But Jill Henniker never made it to that appointment.

  “May sixteenth was also supposed to be a very happy day for fifty-eight-year-old Rodrigo Vargas. Mr. Vargas was retiring after thirty years of employment at the Denver Department of Public Works, and it was his last day on the job. A big celebration had been planned.

  “But Rodrigo Vargas didn’t make it to the party. The special photograph and plaque signed by all of his coworkers—all the people Rodrigo touched in three decades of service—was never presented.

  “Over four hundred people did not get to where they were going in Denver on that May sixteenth, because they were viciously attacked. Jill Henniker and Rodrigo Vargas didn’t get to where they were going because they were two of the one hundred thirteen who were murdered in that attack.

  “You will hear testimony from experts who will describe the assault that was carried out on that day—the meticulous planning, the careful choices made to maximize the deaths and the suffering of the victims.

  “The Marion C. Perkins Tunnel runs under an outcropping of rock for about one quarter mile along Interstate 25, approximately four miles north of downtown Denver. Two lanes of traffic run north in the easternmost of the two tunnel tubes.

  “On May sixteenth of last year, at eight forty-three in the morning, traffic in the northbound tube was fairly heavy, but flowing at or near the speed limit of fifty miles per hour.

  “A man named Esteban Cruz approached the tunnel from the south, driving a tanker filled with approximately eight thousand gallons of gasoline. When Mr. Cruz was about one thousand feet from the entrance of the tunnel, he activated a small device that had been installed on the tanker’s dashboard, opening a hole in the underside of the storage compartment, allowing gasoline to begin spilling onto the roadway at a rate of several dozens of gallons per second.

  “As Mr. Cruz approached the tunnel in the left lane he began to slow down, and as he actually entered the tunnel, he positioned his truck so that it occupied parts of both the left and the right northbound lanes. Now remember—he was spilling vast quantities of fuel all over the road as he did this.

  “His actions created a tremendous backup of cars behind him as he slowly went into the tunnel. By the time that Esteban Cruz reached his predetermined destination, about halfway into the tunnel, there was a traffic jam comprised of cars, buses, and trucks extending almost one half mile behind him. Many of these vehicles were now positioned over the gasoline Mr. Cruz had just spilled.

  “And then, Mr. Cruz abruptly swung his tanker truck over to the right. And then, just as abruptly, he veered hard left. He pulled the front of his tanker across both lanes of traffic, effectively blocking all travel in the tube.

  “At that moment, he activated a second device that had been installed in his tanker. The device detonated an explosive charge in the fuel compartment of the truck.

  “The resulting blast was phenomenal. The fuel in the truck burst into flames, immediately engulfing the trapped vehicles in the tunnel in flame, causing many of them to explode into fireballs, creating a chain of explosions both north and south in the tunnel, involving dozens of vehicles, including a commuter bus, killing and maiming first dozens, and then hundreds of people.

  “But perhaps the most devastating—the sickest—part of this horrendous plot was that the fire from the exploded tanker truck also ignited the long and deadly trail of gasoline that Mr. Cruz had spilled in the tunnel and on nearly an eighth of a mile of the interstate leading to the tunnel. Two hundred forty-six cars, trucks, and buses had come to a stop by that time, gridlocked into position by the traffic jam that the tanker had created. All two hundred and forty-six vehicles idling on a road that had been doused with a highly flammable liquid. And as that gasoline burst into flames beneath the undercarriages of those vehicles, all two hundred and forty-six burst into flame. Some exploded into fatal infernos, some crippling and maiming the trapped and panicked drivers and passengers victimized by this unspeakable horror.”

  By this stage in the prosecutor’s opening, it seemed that the entire world had gone still. Preston Varick had the jury—shoot, he had the whole courtroom—in the palm of his hand.

  As the defendant’s attorney, I knew that I was supposed to be analyzing the statements the prosecutor was making for compliance with the rules of procedure—not to mention preparing my own opening statement—but I was completely taken in by this description of the atrocity in Denver. Of course the tragedy had been reported endlessly and thoroughly in the press, and of course everyone was intimately familiar with what had happened. But there was something about hearing it in a courtroom filled with the victims, their family members, the man accused of planning it, and the jury chosen to decide his fate…. I was riveted.

  And then Varick shifted the focus of his address to my client. He described the investigation into the attack, the discovery of Cruz’s involvement, the connection between Cruz and Gomez, and finally, the raid on Gomez’s apartment, and all of the evidence which directly implicated him in the planning of the devastation in the Marion C. Perkins Tunnel, and in the conspiracy to generate another.

  “I will not go over each and every one of the hundreds of crimes charged against this defendant, this man to whom our government has affixed the label ‘enemy combatant.’ It is not necessary at this moment. But there will come a time, at the end of this trial, when you will know, beyond a reasonable doubt, that this man is responsible for all of them. And at that time, I will confidently ask you to render verdicts of guilty on each and every count of each and every crime—conspiracy, assault with intent to commit murder, and the murder of one hundred and thirteen people—including Rodrigo Vargas, who never got to his retirement party, and young Jill Henniker, who never got to hold her first child in her arms. Thank you.”

  No one made a sound in the courtroom as Varick returned to his seat behind the prosecution table. And then the air stirred, as if everyone in attendance suddenly remembered to exhale. The jury, fourteen people ranging in age from twenty to sixty-four, looked deadly serious. The spectators in the gallery behind me began to murmur. And I again started to sift through the papers on the defense table, looking for some miracle, I suppose, when Juan Gomez whispered something in my ear. With hindsight, I know now that what he probably said was, “Don’t forget to say I’m innocent.” Unfortunately, what I heard was, “Don’t forget that Sadie M. is a saint.”

  This miscommunication was, I suppose, unavoidable. Mr. Gomez couldn’t possibly have known that I have suffered from partial hearing loss since birth.

  It isn’t really that big a deal. Since I was a kid, I’ve always been able to compensate, usually quite simply by paying very close attention when someone spoke to me. Sometimes I wore the new, small hearing aids that fit right into my ear, as I was doing at the Gomez trial. But even with the aids, certain background noises, like those of the hum of the gallery and the rustling sound of the docume
nts in my hands, tended to mask parts of human speech, especially when whispered.

  Any confusion over my new client’s message was short-lived, however. Because long before I was anywhere near ready, Judge Rhonda Klay turned to me and said, “Mr. Carpenter? Your opening statement, please.”

  THREE

  ON AN EARLY–summer evening in 1989, when I was just twelve years old, my father came into my room as I was doing my homework, and said, “Hey, Tommy, I want to show you something.”

  Despite my parents’ countless requests for me to sit at my desk, I was still doing my homework on my bed. My math book, my backpack, tons of worksheets, and the latest issue of Sports Illustrated were scattered all over the bedspread.

  Dad was holding in his hand a picture that he had cut out of a magazine. The photo was taken at some distance, from an upper-story window behind and to the right of the person who was the centerpiece of the image—a solitary man standing in the middle of a road. He was dressed in a white shirt and dark pants, and seemed to be holding a briefcase of some kind in his left hand. And it also looked like he might have been leaning forward at the waist, just a little bit.

  But what made the photograph so extraordinary was that the man wasn’t just standing in the middle of the road.

  He was single-handedly facing down a row of oncoming tanks.

  In a place I’d never heard of before, called Tiananmen Square.

  My father came to believe that photograph was the single most important one taken in the twentieth century. He said anytime I needed to be reminded about personal strength, about the power of one individual, about how to behave in times of adversity—at those moments when it seemed that I was faced with my own line of approaching tanks—I should remember that picture.

  Thereafter, the date on which that remarkable act of bravery took place became something of a family holiday for us. At Henley’s insistence, over the next several years, on June 5, our family all attended a criminal trial together, because, as my father explained, our system of criminal justice was one of our country’s best ways of ensuring that there would never be a Tiananmen Square in America.

  So on that June 5, as I rose from my seat behind the defense table in Phoenix Superior Courtroom Number One-B, and faced the Juan Gomez jury, I thought of my father, and I thought of that anonymous Chinese man standing in the center of the road—that symbol of individual courage.

  And then I started to speak, and totally screwed it up.

  The problem, of course, was that I barely knew anything I needed to know to be the defendant’s trial attorney. Thanks to the news media and the prosecutor’s opening, I knew all about the Denver Tunnel Bombing, and I had a general sense of the evidence against the defendant.

  But I had no idea what the defense was.

  Except, of course, that Sadie M. was a saint.

  So, foolishly, I attempted to employ a strategy which has been turned to by legal professionals for centuries. I opened my mouth, and made a noise like a lawyer.

  “If it please the court, ladies and gentlemen of the jury, my name is Tom Carpenter, and I represent the defendant in this case, Juan Gomez.”

  And so began one of the most embarrassing oratorical journeys of my professional life.

  Sure, I had had almost no sleep the night before, and I was still reeling from my surprise appointment by Judge Klay. But come on. Any lawyer worth a box of cheap business cards knows that defense attorneys don’t have to make opening statements at the beginning of the trial. So what was I doing?

  My strategy, such as it was, went something like this. I had no clue of what the jury thought of my rather unorthodox entry into the case. But first impressions in criminal trials were vital. By making an opening statement, I thought I would give myself a chance to reintroduce myself to the most important people in the room in a more positive light.

  It wasn’t long before that strategy became problematic.

  “The defense in this case is not that the Denver Tunnel Bombing was not a tragedy. There is no question of the unspeakable violence and destruction that took place on that day.

  “The defense is also not that law enforcement officials did not find evidence of plans for the Denver Bombing in the defendant’s apartment.”

  When Dale and I were just kids, my parents took us to Flagstaff one winter. My dad thought it would be fun for us all to learn how to ski. The most vivid memory I have, aside from when we were returning home and Dale fell down the stairs outside the lodge and broke his wrist, was the first time I started down the hill under my own power. At the beginning, there was exhilaration—I was flying down the slope. And then exhilaration was replaced by terror, because short of a fatal collision with a tree, I had no idea how I was going to stop.

  As I paused and looked at Juan Gomez to consider my next line, that terror came rushing back. I had started my opening statement without any notion how I was going to end it. And the hill I was flying down that day was thick with some very large trees.

  First of all, for reasons that I am at a loss to explain, I seemed strangely committed to using only sentences loaded with double negatives. That’s always risky—it’s easy to get mixed up and say precisely what you don’t want to say. But more important, by telling the jury all about what the defense was not, I was making an implied promise that very soon, possibly preceded by a trumpet fanfare of some kind or perhaps a shower of confetti and balloons, I would reveal to them what the defense actually was.

  It was quite rash of me to make that promise, of course, since I didn’t have the faintest idea what the defense actually was.

  Back when he was advising Gomez to plead guilty, Bruno Smithson had informed me that the case against the defendant was airtight. And nothing I had been able to absorb in my frantic rush through Steve Temilow’s files had led me to believe otherwise.

  The truth was that as I was preparing to tell the jury about Mr. Gomez’s defense, it was my professional opinion that Mr. Gomez had no defense. And as I came to that realization, my brain chugged to a disgruntled halt. It was tired, it was pretty peeved at Judge Klay, and frankly, it wanted nothing more to do with the no-win situation I had dragged it into.

  Incredibly, however, my mouth kept going. “Sometimes, however, when a tragedy such as this occurs, there is a natural tendency to assign responsibility, to attach blame, especially to the person who at first blush seems like he or she might be the cause of the tragedy.”

  My brain, having abdicated responsibility, looked on with anticipation. The last time my mouth had flown solo was two years earlier, when I got a little drunk at a cousin’s wedding—maybe it was more than a little drunk—and declared that I thought my sister-in-law, Amy, was hotter than any bikini-babe supermodel centerfold I’d ever seen. It was true, but it really wasn’t appropriate for me to have said it. Especially at that volume.

  “And so, naturally, because there is a great deal of evidence that Mr. Gomez was responsible for planning the Denver Tunnel Bombing, he was accused of the crime.”

  The jury might not have known that at the very moment I said those words, I smashed face-first into the trunk of an oak. But thanks to my prolonged silence, they figured it out. I simply had nothing else to say. My opening statement had become the oratorical equivalent of walking my client to the edge of a cliff, and then shoving him off.

  I am not sure exactly how long I stood there, silent, wondering what was going to happen next. But then, miraculously, my brain, perhaps out of pity, rejoined the team, and I managed to stammer out something.

  “But even though it might have been natural to accuse Mr. Gomez of these crimes, in this situation, it was wrong.”

  That got some of the jurors’ attention.

  “It was wrong because you will see, as this trial unfolds, that Mr. Gomez is innocent.”

  That sounded pretty good, and since I really couldn’t think of anything else, I said, “Thank you,” and sat down.

  With a little perspective, I can now say with a g
ood degree of assurance that the opening statement for the defense in the Juan Gomez trial was the worst I’ve ever heard. The prosecutor had spoken for nearly twenty minutes, painting an emotional, vivid picture of loss at the hands of almost unfathomable evil and violence. And then he promised to share with the jury the mountains of evidence which established that to see the face of that evil, all you had to do was to look into the eyes of Juan Gomez.

  And I countered with exactly nine sentences—if you count Thank you as a sentence—lasting one minute and thirty-two seconds. Eighteen of those seconds spanning a very long and awkward silence. And in those nine sentences, all I managed to say was this: There sure is a lot of evidence against Mr. Gomez, but don’t worry—my guy’s innocent.

  It was not exactly my best work.

  Mercifully, it was late enough in the afternoon for Judge Klay to recess the case and send us all home. I made hasty plans to speak with Gomez before the beginning of the following day’s proceedings, and then my client was taken away by Sarge and another court officer, to be transported back to the jail where he was being held during the trial.

  It took me a few minutes to gather up the papers and files scattered all over the defense table. Naturally, I hadn’t brought a briefcase with me that day, so I had to track down Clerk Estrada in his office to borrow one for the evening. By the time I finally returned to the courtroom and filled the leather bag for my trip home, I was the only one there.

  I welcomed the change. For the first time in hours, I felt like I had a chance to think quietly about what I was going to do, rather than just make things up on the fly. I was anxious to talk to some friends, like Cliff, and Amy and Erica. I needed a little sanity. I even had a chance at making it home in time to handle dinner.

  I left the courtroom, walked down the deserted hallway, and headed for the front entrance. That was the closest one to the garage on Second Street, where I had parked.