Enemy Combatant

by Ed Gaffney

  “Mr. Redhorse, as you know, in order for me to admit any documents into evidence, you’ll need to lay a foundation for their admissibility. Before we get to that, however, have you shown this material to Mr. Varick?”

  “No, Your Honor,” Cliff said. “But I can show it to him now.” He handed the folder over to Varick. “I only received these papers this morning, so I haven’t had a chance to make copies.”

  While Cliff spoke, Varick looked down at the documents, and underwent a frightening metamorphosis.

  When he first opened the folder, the stocky prosecutor had smirked openly, as if to assure whoever might be watching that the contents were manifestly unimportant.

  But after reading only the top portion of the first page, he flipped it over swiftly, and began scanning the second one. By the time he’d reached the third page, his expression had transformed itself into a fierce scowl. And after skimming through the rest of the folder quickly, he slapped it shut, turned to Cliff, and barked loudly, “Where did you get this nonsense? Do you realize that this folder is full of very dangerous lies that could seriously compromise national security?”

  I hadn’t expected that reaction, and neither, obviously, had Cliff. But happily, Judge Lomax was on the bench, not Judge Klay. He knew that just because one lawyer gets angry, the other lawyer isn’t wrong. “May I see the documents, please?” he requested.

  That was not what Preston Varick wanted to hear. He didn’t want this stuff anywhere near becoming public information. “Your Honor—” he began.

  “Is there a problem, Mr. Varick?” Judge Lomax interrupted.

  “Quite frankly, yes, Judge,” Varick responded. “This folder’s contents are prejudicial, to say the least. It seems to me that they are so one-sided, and false, may I remind you, that to have the court even read them would risk prejudicing the court’s opinion of the facts of this case.”

  I had never heard anything quite like that before in my professional life. Preston Varick was essentially saying that Judge Lomax couldn’t so much as look at the folder and remain impartial.

  Judge Lomax saw it for what it was—a desperate move. “Mr. Varick. I assure you that I will be able to continue to perform my duties without prejudice, regardless of what is contained in that folder. But putting that aside for one minute, and without waiving your objections to the foundation issues that may face Mr. Redhorse, do you have any other objections to the documents themselves?”

  It took a second for Varick to process the fact that at least for the short term, he had managed to keep the information out of Judge Lomax’s hands. He relaxed his grip on the folder slightly, so that now it didn’t look quite so much like he was trying to strangle it.

  “Yes, Your Honor, I do. From what I can tell, these papers are principally the writings of a third party, although there are some copies of forms, as well. In any case, the contents of the folder are entirely hearsay. Out-of-court statements—in this case, written statements—made by a person who is not testifying. The defense is trying to introduce them to prove what is contained in the documents. That is textbook hearsay. And it is inadmissible.”

  Cliff looked at me with an apologetic expression on his face. He had absolutely nothing to say.

  It wasn’t that Cliff was entirely ignorant of what Varick was talking about. Every lawyer takes evidence in law school—it’s a required course. And in order to pass the bar exam in the state of Arizona, candidates for admission must prove some familiarity with the rules of evidence.

  But that doesn’t mean that real estate lawyers like Cliff, who haven’t given the hearsay rule so much as a friendly nod over the past decade, could be expected to argue, off the cuff, at a murder trial, about the admissibility of handwritten documents by a non-witness. The rule and its seemingly infinite exceptions presented some of the most treacherous terrain for those of us who spend our lives trying to climb the mountain of jurisprudence. The excited utterance rule, the business record exception, past recollection recorded, present sense impressions, statements against interest, prior sworn testimony, fresh complaint, medical records—the list goes on and on.

  And there Cliff stood, bearing neither shield nor weapon, in the very center of the arena, facing off with a seasoned and armored gladiator. It was going to be a slaughter. I watched, frozen, wishing desperately that we had gone to summer camp together.

  Judge Lomax was tired of waiting. “Mr. Redhorse?”

  But my friend Cliff wasn’t going to go down without a fight. Over the next several minutes he gave a stammering, impassioned, but quite futile, plea for justice, conspicuously light on specifics with respect to the hearsay rule.

  While Cliff was speaking, a serious-looking young woman entered the courtroom from the double doors at the back of the gallery. She walked right down the center aisle, and handed the governor a folded slip of paper. Then she continued over to A.D.A. Varick, and handed him another.

  By that time, Governor Hamilton had read his note, stood, and walked out of the courtroom. The messenger followed him. The governor had clearly decided that whatever was on that paper was more interesting than a bunch of nerds dickering about hearsay.

  When Cliff was done, Judge Lomax turned to me, and asked, “What happened to this Lieutenant Meadows?”

  “I’m sorry to say that he was shot and killed in my presence late last night,” I answered.

  That certainly woke up the gallery. Reporters started scribbling furiously.

  “In your presence?” Preston was on his feet again. He had relinquished his death grip on the blue folder, and was now holding the note he had just received. “May I remind the court that many of the difficulties being faced by the defense team this morning stem from their own actions. Mr. Carpenter and his friend, Mr. Redhorse, are struggling to get around the hearsay rule, but the reason they can’t is because they cannot produce the alleged writer of these documents. That is no surprise, however, as I have just been handed a note which informs me that the only Army lieutenant in the past thirty-five years who was named Joshua Meadows died in Afghanistan, five years ago.

  “More to the point—I have also just been informed that we all should assume that everything Mr. Carpenter says is a lie. That oath he swore on the Bible means nothing to him. That is because he himself is a godless terrorist. An enemy of this country. An enemy of America. He is already wanted for murder and for arson, and I have just been informed that he has been plotting with known terrorists to make large-scale biochemical attacks on targets within the U.S.

  “This man has been declared an enemy combatant, Your Honor. United States marshals are on their way to take him into custody in a secret location, where he will be aggressively interrogated until he gives up the location of these future attacks. Until that time, he should be considered most dangerous, and he should be removed from this courtroom immediately.”

  THIRTY-NINE

  I REMEMBER thinking how absurd Varick sounded at that moment, but then the words of Juan Gomez came back to me. When they call you an enemy combatant, it doesn’t matter if they’re right or if they’re wrong. They do whatever they want. They drowned me…And I confessed to everything…And I didn’t do nothing wrong.

  Before Varick announced that I was to be hauled off to a secret prison, I had been wrongly accused of multiple felonies, and I faced a life without Amy and my family. I thought it was as bad as it could get. I was mistaken.

  And as if the specter of imminent torture weren’t quite enough, while Preston made his vile little speech, the door at the back of the courtroom and the doors on each side of the courtroom opened, and three uniformed individuals entered.

  Each of the three was dressed in a dark blue police uniform covered by a light jacket. Each of the three positioned himself in front of the door he had just used to enter the courtroom. And each of the three was immediately recognizable.

  Because they were Kappa, Gamma, and the third, short man, who had ambushed me at Cactus Curt’s Steakhouse.

 
; Suddenly, in the sweepstakes to control my future, immediate execution was giving secret imprisonment and torture a run for its money.

  I needed to get a plan. Quick.

  But it didn’t seem like anyone else in the courtroom had noticed the three hit men’s entrance. Instead, the prosecutor’s latest message had really fired up the crowd. The entire room seemed to burst into conversation at once. Sarge instantly rose from his seat, and Judge Lomax hit the bench with his gavel. “Ladies and gentlemen. If there is one more outburst like that, I will clear this court.”

  The threat worked like a charm. Nobody wanted to leave now. Heck—one of the lawyers looked like he’d been mauled by a pack of wild animals, and the other one was calling him a godless terrorist.

  “Mr. Varick.” Judge Lomax spoke quietly, obviously in an effort to release some of the energy from the room. “Kindly contain your remarks to the evidentiary issue at hand. Mr. Carpenter’s status should be no part of the jury’s considerations in this case.”

  “I apologize, Your Honor.” Preston didn’t look contrite in the least. “But the defendant chose to put Mr. Carpenter on the witness stand, and whether the witness likes it or not, he’s wanted for three murders, including that of his father. He’s a dangerous man, and the jury is entitled to know—”

  Cliff couldn’t stand it anymore, and bolted up from his chair. “He just told you he saved his father’s life!”

  Preston shot back, “We only have his word for it, sir. I, personally, have no idea what happened to Mr. Carpenter’s father this weekend.”

  Simultaneously, three things then happened. Cliff said, “Well, I do,” I pulled down the collar of my bloody shirt, exposing the burn on my neck, saying, “How do you think I got this?” and Judge Lomax hit the bench again with the gavel.

  But Preston was not to be sidetracked. “Your Honor, I demand that this terrorist be taken from the courtroom immediately. Not only is he a distraction in this case, but he is a danger to you, to everyone in the courtroom, and to our entire country.” The A.D.A. stabbed a finger in the direction of Baldy, who stood at the back of the room, then at the two other goons standing at the side courtroom doors. “These men have the authority to seize him, Your Honor.”

  Despite the apparently imminent threat I posed, Judge Lomax managed to remain calm. “Mr. Prosecutor, until I am presented with an official document that says to the contrary, Mr. Carpenter is currently in the custody of the Superior Court of the State of Arizona. No one will seize him, or anyone else in this room, without my express consent. I assume full responsibility for him, as well as for the safety of him, and of anyone else here.”

  “That document you mentioned will be coming to you any minute, Judge,” Preston replied.

  Judge Lomax nodded. “Fine. In the interim, I’ll see both lawyers at sidebar, immediately, on the question of the hearsay objection.”

  Less than a minute passed before Varick and Cliff walked back to their posts behind their respective tables. Gomez passed a note to Cliff, who took a deep breath, and wrote one back.

  “I have heard from both parties on the issue of the admissibility of the writings produced by the defense,” Judge Lomax told the enthralled room. “The documents are hearsay, and the defendant has satisfied none of the exceptions to the rule prohibiting hearsay from being admissible. Accordingly, the prosecution’s objection is sustained. The contents of the folder will not be made available to the jury.”

  Of course, the judge was right. The legal system believed that it was okay to believe the dying accusation of a murder victim, but that it was not okay to believe anything else that he or she might offer as an exit line. As I stood there, watching the last chance to save my life vanish thanks to that absurdly arbitrary distinction, a parade of hypothetical final statements came to mind, each as likely to be true as an accusation of murder. “I always loved you.” “The key to the safe-deposit box is in my sock drawer.” “I never said that Cousin Louie went to college.” “The money wasn’t lost—I stole it.” “The only crime I ever committed was breaking a taillight, fifty years ago.”

  The only crime I ever committed was breaking a taillight, fifty years ago.

  And just then, I got my plan.

  FORTY

  WHILE THE reporters wrote furiously, the judge looked at Cliff. “Mr. Redhorse. Is there anything further from this witness?”

  “Um, if I could just have a moment, Your Honor.” Cliff looked down at the papers on the table before him. He was obviously stalling. Then he looked up. “Your Honor, just before he died, Lieutenant Meadows told Mr. Carpenter that he was a member—”

  But Preston Varick was too quick, and started speaking over Cliff almost as soon as he opened his mouth. “Objection, Your Honor. Mr. Redhorse may not make speeches in an effort to ignore the rules of evidence and sidestep the authority of this court.”

  There was no reason to leave Cliff twisting in the breeze, and I jumped in. “Your Honor, the statements made to me by Lieutenant Meadows—and it was Lieutenant Meadows; he did not die in Afghanistan—were dramatic admissions of several serious felonies by Meadows, and are admissible as statements against interest.”

  The sad case of Charles Jackson and his father, Henry, had taught me that while the judicial system was not willing to accept what you said on your deathbed as true unless it was an accusation against your killer, it was perfectly willing to accept as true anything you said, whenever you said it, if you knew that what you were saying could get you into legal trouble, or could lose you money.

  Cliff took a deep breath and let it out. He looked as relieved as I’d ever seen him, with the possible exception of the day two years earlier when he and Iris received the news that the lump in her breast was benign.

  I turned to Judge Lomax, who was considering what I had just said. He looked first at me, and then at Cliff, but he said nothing. Then he faced the assistant district attorney, and asked, “Mr. Varick, what is the state’s position on this?”

  In the typical situation, the prosecutor would request a voir dire—a sort of dry run of the questions and answers that the defense was proposing to put into evidence. The examination would take place outside the presence of the jury, giving the judge a chance to make his ruling without exposing the jury to potentially inappropriate evidence.

  But this was far from a typical situation. Even though the jury wouldn’t hear it, Preston couldn’t afford to allow a voir dire. Because then the courtroom full of people would learn about all of the things that Varick was desperate to keep in that blue folder.

  “The state’s position is that the defense hasn’t offered anything new to the argument,” Varick began. “This is just Attorney Carpenter’s last desperate effort to deflect attention away from his own desperate situation. Perhaps he is hoping to make some kind of deal. I don’t know, Your Honor. But for the purposes of this case, he has no business marching in here and saying that he was told some supposedly relevant things by this mystery man, who so conveniently gets murdered right in front of his eyes. How gullible does he think we are? This court should summarily reject any testimony this enemy of the United States might offer, on grounds that it is an obvious fabrication, made up at the eleventh hour, in hopes of either confusing the jury, or somehow tricking them into acquitting this other terrorist, Juan Abdullah Gomez.”

  By the time he was finished, Varick was breathing rather heavily. The judge let him catch his breath before asking, “Putting aside for a moment the state’s characterizations of Mr. Carpenter and Mr. Gomez, what is your position on the evidentiary issue? It is argued that since the statements are against Mr. Meadows’s interests, they are admissible. Do you contest that, Mr. Varick?”

  “Absolutely, Your Honor,” the prosecutor spat back. “I absolutely contest it. As I said before, the defense has made no showing that the statements were against anyone’s interest.”

  Judge Lomax wasn’t biting. “Except, of course, for Mr. Carpenter’s assertion that they were.”
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br />   “That’s correct. The only thing this court has is the word of an accused murderer, an enemy combatant of the United States.”

  I couldn’t tell if Varick thought that was getting him anywhere. He was sounding a little shrill, at least to me. I snuck a peak at the jury, and I couldn’t read anything there except intense interest. I would have bet you two stacks of pancakes that at least one of them had already started writing a book.

  “Is that your only argument, sir?” The judge was obviously getting tired of that speech.

  “No, sir. I find it completely contrary to any notion of justice that the only reason the person who allegedly said all of these ridiculous things cannot testify himself is because this witness murdered him. I don’t believe that the defense should be allowed to benefit from its own misdeeds.”

  Cliff saw through the argument. “Your Honor, Mr. Carpenter is not the defendant, nor is he aligned with the defendant any longer. By this court’s own ruling, he had to step down as the defendant’s attorney because he had to become a witness. Therefore, even if Mr. Carpenter had done something to Lieutenant Meadows, which he did not, it wasn’t the defendant’s act. If the defendant benefits by having this testimony come in, so be it. But it wasn’t because of any wrongdoing by the defendant, Mr. Gomez.”

  I made a mental note to discuss with Cliff his possible future as a trial lawyer.

  “The evidence is admissible,” said Judge Lomax. “Mr. Redhorse, please continue.”

  “Mr. Carpenter, can you tell us when you first met Lieutenant Joshua Meadows?”

  As I began to describe my encounter with Meadows in the bathroom the day I got Judge Klay thrown off the case, I noticed that the television camera operator got a puzzled look on his face. He held his hand up to press the earpiece of his headset tighter, and then he whispered, “Right now?” A moment or two later he mouthed, “Okay,” and then he reached behind the camera, and the little red light blinked off.