“Yeah, but, if they’d called those witnesses in, if they’d heard them live, with Art there to exam, cross examine, create a real record for Christ’s sake, and then said ‘sorry Artie,’ his goose’d be cooked. But they didn’t, didn’t give him the time of day, he didn’t get to examine one single witness, treated him like he was some crazy. He’s got to be given an opportunity to be heard, plain and simple.”
Mitch stood up and stretched his arms. “Isn’t the judge going to reach the same conclusion? He’s bound, after all, only by the thin evidence the Board worked with. The Board was the... the fact finder, and he’s stuck with those facts. That’s Agency Law 101. The witnesses, if they can still remember, won’t say much more than what they told the interrogators at Panmunjom, thirty years ago, when it was fresh. How much better will it sound now, thirty years later?”
“Right, Mitch, but that’s where this gets interesting. We’re asking for a trial de novo, in other words we want the judge to assume the role not of an appeals court, which looks at only the facts developed below, but as a trial court, developing its own evidence. And the dilemma for the government and the beauty of all this is that for the judge to determine if the Board was arbitrary and capricious, he has to hear all the evidence we present, old and new. Now, if— and it’s a big if— if he accepts the proposition that the evidence we bring to him was available to the Board, but they ignored it, in the process of this consideration, he’ll have given us the trial de novo we’re looking for.”
Mitch sat back down. “So, we are claiming ‘arbitrary and capricious’ and we’re allowed to prove it by presenting evidence the Board did not look at?”
“And if after the judge hears the ‘new evidence’ and decides, hopefully, the Board was unfair, then what? He’ll remand it to the Board for further consideration?” asked Kathy.
Nick thought about what Kathy had said, because that also had occurred to him. “Maybe, but I doubt it. I think with all the evidence before him, he’ll just rule on his own, and it’s over.”
“Unless the government wants to run this up to the Second Circuit,” Mitch added.
“That’s always a possibility,” Nick conceded.
***
The morning of the trial Nick carried the boxes of evidence to his car, but before he even reached it the white, starched shirt his wife had pressed the evening before had gray sweat spots around his armpits and a wide wet line down the middle of his back. As he walked up the courthouse steps, Kathy materialized at his elbow, carrying a large leather trial brief case in one hand and a coffee in the other.
“Good morning, Nick. Ready?”
He snapped out of his daze and smiled, comforted that he wasn’t walking into court all by himself. “Kathy, you surprised me. Yeah, I’m ready. Let’s take no prisoners.”
One of the two guards checking IDs at the entrance waved Nick and Kathy by, a courtesy extended to the attorneys he’d come to recognize by their black briefcases, pinstriped suits and swagger. Unlike Nick’s other forays into this forum of nonphysical violence, today, dozens of people lined up along the hallway, calling to mind boxing fans with cheap tickets waiting for the main event. Marshal Picolillo, a man who in his younger days fought Joey Pepe to a draw in the Bridgeport Athenaeum, saw Nick struggling with his bags. He rushed to hold open the twelve-foot door that led to the ring where men fired off words in lieu of jabs, where round by round standings would advance on the blows of proffered evidence, where truth would battle the deception of grudges, and unsportsmanlike conduct.
“Morning, Marshal. The heat never keeps the gadflies away, does it?”
“That’s right, Mr. Castalano, heard they drove in from New York and Boston.”
Among the spectators were the national press and plainclothes functionaries from the army and the CIA. Most of those assembled had been sitting quietly for at least a half-hour before Nick’s 9:30 a.m. arrival.
Castalano shouldered people aside with his leather bags as he moved to open the gate to the well. Huffing, he dropped his bags with a resounding thud next to Art Girardin. Art had already hung his sport jacket over the back of his chair and put his beefy freckled hand on the long, oak table in front of him. He was nervously leaning his chair back to reveal light spots at the knees of wrinkled pants, an un-starched white shirt with sleeves barely above his wrists, and a red-plaid, clip-on tie fixed to a tight collar around a bull neck.
“Mornin’, Nick,” Art said, looking away.
At a table of the exact dimensions, style and quality as Nick’s, U.S. Attorney Bertram Harris rubbed his delicate, nearly see through hands. From a distance, Harris’s overweight mass looked off-balance, because his completely bald, smallish head seemed oddly attached to his large shoulders. Harris wore a three-piece pinstriped suit, complete with a chain strung from a buttonhole on his vest to a pocket watch he would lift from his trousers to check the time every fifteen minutes. In addition to Foster, the Pentagon had assigned another JAG Captain, Jeffery Townsend to help Harris. He wore Army dress greens to court. Nick walked over, hand extended.
“Bertram, I see you’ve got some help.”
The lawyer ignored Nick’s hand, “Nick. This is Captain Townsend and you know Foster.” The two sandy-haired, crew-cut Germanic men did not budge, but almost on cue, they pursed their lips.
“You guys gonna appear before the court?”
“No, these men are just assisting.”
Harris did not tell Nick that in executing their official duties, the captains, helpers or lawyers would report to Russell at the Pentagon several times a day. In turn, Russell would report to an interested constituent, one who would take the matter under careful consideration.
Walking back to his table, Nick nodded to Amy Dusseldorf, a reporter with the Bridgeport Post, who sat in the open jury box— since a judge, not a jury, would be hearing the case. She proudly sported the crabby newsroom scowl that comes with working a deadline until the wee hours of the morning. For weeks leading up to the trial, she’d fed information to veterans organizations interested in MIA/POW issues who in turn fueled national interest in the first-ever POW-MIA trial. Today, plain white blouse, gray knotted hair, she disappeared between two television reporters. Sitting at the far end of Amy’s row were media artists from three national TV networks.
“Hear ye, hear ye, in the U.S. District Court for the District of Connecticut, the Honorable Joseph Lindquist presiding.”
“All rise.”
The echo from the marshal hadn’t died down before Federal Judge Lindquist entered from a door behind the bench. At sixty-two, he had grown into a large, robust (his doctor would say overweight) body. His longish white hair accentuated his naturally tanned skin, giving him the appearance of a royal Spanish magistrate, but one that clipped his words like a Vermont Yankee and hinted at French Canadian when he let his guard down.
The raised platform and black robes gave Lindquist a larger-than-life appearance. Nevertheless, the first impression of those who stood before his Eminence was that of a wizard with a disdain for toadying lawyers. He surveyed the place where the polity obeyed his rules and paid rapt attention to what he said, how he said it, and where he fixed his flinty eyes. A place where, without pity or passion, men were vindicated or punished according to the law and the predilections of the man who appeared to see, hear and, eventually, came to know all. His eyes fell on Nick for several seconds.
Lindquist sat down and addressed the occupants as if he were master of ceremonies. “Ladies and gentlemen, air conditioning does not seem to be workin’ today, so occasionally I may ask the marshal t’open the doors in the rear of the courtroom. His gaze fell on Nick a second time. Nick folded his lips between his teeth and pulled his cuffs out from his jacket sleeves. Sweat poured down his chest, further sweat soaking the shirt that hadn’t dried from the walk to the courthouse.
“Counsel, are you ready?”
The judge already knew the contours of the case, so the attorneys did not need to mak
e opening statements. Lindquist wanted to see how Nick would prove his bizarre claim that Roger hadn’t been MIA, but the victim of a stubborn Army bureaucracy that refused to acknowledge him as a POW. And that he might still be alive after thirty years.
Nick picked up a pad from the table and fumbled with it. “Yes, your Honor.”
“Call your first witness!” Lindquist bellowed.
Art Girardin lumbered to the witness stand tugging on his lapels. He turned toward the assembly of busybodies that waited to be entertained by the telling of tragic events. The clerk shuffled over to Art and completed the first of many steps in the ritual of testifying, asking him in a high voice to swear to tell the truth. Art nodded, “Yes sir, I do.”
Nick, standing behind a blonde oak lectern threw down a cache of notes and pushed his fingers through his longish, brown hair.
“Mr. Girardin, may I call you Art?”
Art ran his tongue over his lips. “Yes, sir.”
“Art, this case is about your brother, Roger Girardin, a soldier who fought during the Korean War, correct?”
The witness put his hand to his mouth and turned in the direction of Lindquist, “Yes, sir.”
“Tell us about your brother.”
Art remembered the last time he had spoken to Roger: it was his eighteenth birthday and he had called from boot camp. The boys were four years apart, but they were always close. Art was in the kitchen, standing anxiously by until his mother handed him the phone. The subject of the brook behind the house overflowing came up, and Roger recalled spending summers as a kid on Lake Memphremagog, Vermont, where they had caught pollywogs. These were parts of the conversation Art would spare the court. Instead, Art gave the court a brief history of Roger’s boyhood, where he went to school and where he worked before being drafted. He testified to the letters his family had received before he shipped out to Japan and the last letter sometime in mid-September 1950, with the address, APO, Pusan, Republic of Korea.
Walking in Art’s direction, Nick said, “Art, I asked you to bring the correspondence your parents received from the Army.”
“Yes, sir.” Art reached down to pick up a folder.
“Let me have them, please.”
Art removed the two letters his parents received from the Army, wrinkled and marred, a white shock of hair falling to the floor. Art resisted the urge to pick it up.
“These were the notices my parents got that Roger wasn’t coming back. I promised my Dad... I wouldn’t stop looking.”
Art testified to the unexpected finding of a Congressional Resolution in the U.S. Archives, where Roger’s name appeared along with hundreds of men that were unaccounted for, but had been listed as POWs, and how Congress never again considered the subject of Korean KIAs, MIAs, POWs. He told how he’d contacted the men mentioned in U.S. Army Intelligence reports from Panmunjom, North Korea, in 1953 and those named in reports the International Red Cross recorded after visiting POW camps.
When Nick completed his examination, Harris stood up to say he had no questions. The judge looked in Art’s direction, “Sir, you’re free to go.”
Art lifted himself from the witness stand feeling worn. For six years he had shoveled the past into banker’s boxes labeled A through Z, had spoken to scores of people from veterans to senators, lawyers to archivists, privates to generals, and it had all come down to two short hours, a hundred plus spectators, a cabal of government lawyers and a judge who, from what Art could sense, was skeptical of a man dragging in skeletons and relics from halfway around the world.
The clock on the wall ticked past 11:50. Lindquist looked at the crowd, “Let’s take a five minute recess.”
The marshal cried out, “All rise.”
***
At the precise moment when both hands on the clock pointed to twelve, Lindquist, for the second time, addressed the occupants, “Ladies and gentlemen, air conditioning still not working. I’ve asked the marshal t’open the rear doors. Counsel, you ready?”
“Yes, your Honor,” Nick said rising from his chair. “Your Honor, if you recall six weeks ago, you handed down your ruling that, with considerable redactions for national security reasons, the Broadbent report was to be turned over to us by the government. The report, dated April 24, 1953, summarized the interrogations of several individuals who in one way or another mentioned the name Roger Girardin. Only after receiving the report did we speak by telephone to David Bradshaw and Harry Sheer, two men we plan to call as witnesses, and until two weeks ago were not included in our witness list. We ask the court to grant us leave to proceed with these witnesses.”
“Proceed, Counsel, I am aware of the late production of the document.”
“Your Honor, I call Mr. Harry Sheer to the stand.”
From the box unoccupied by a jury, Ed Armstead, the newscaster from CBS, watched a man in the second row of benches make his way to the aisle. While the man shuffled along, Armstead whispered to the fellow next to him, “About six feet two.” The man, a CBS sketch artist who earned his living capturing faces, drew the outline of a countenance creased and drawn. He started to draw, a thin face, aquiline nose, fair hair parted to one side, and as he immersed himself in his work, he felt that his subject had spent considerable time in the unforgiving outdoors.
Had either man known Harry Sheer, they would have known that he lived alone on a farm in South Dakota, where on a typical summer day a searing sun could hastily disappear behind thunderheads that would heartlessly dump tons of wheat-flattening hail, or where in winter, winds blew snow horizontally— plunging temperatures into dead zones where the molecules that energized life forces slowed, thickened, and crystallized. And, along the latitudes and longitudes of this meteorological tempestuousness, his farm sat at the end of a rutted road, where every morning for the past thirty-odd years— save the years in Korea— Harry would put on a pot of coffee at four, milk his cows by five and by six head out to the fields. Yesterday, Harry had milked the cows and returned to the farmhouse and then did something he had never done before. He’d dressed in his holiday suit, drove his ’65 Ford pickup fifty miles over dirt roads to Valentine, Nebraska, and boarded a plane to Connecticut.
His scuffed cowboy boots now tapped against the oak floor, echoing off the twenty-foot walls enclosing the forum. Armstead turned to the artist and muttered, “A rancher or a farmer.”
Sheer met the clerk at the witness stand.
“Sir, please raise your right hand.” Sheer turned away from the lanky clerk and raised a thick, calloused hand toward the flag behind the bench, where he gave his present address and swore to tell the truth, the whole truth, and nothing but the truth.
“Mr. Sheer, you’re a veteran of the Korean War, are you not?”
Harry lifted his head, “Yes, sir.”
“Mr. Sheer, as I explained when we spoke by phone, we’re trying to determine the last location of Private Roger Girardin, a soldier listed as MIA during the Korean War. Did you know Private Girardin?”
“Yes, sir.”
“You learned that his brother Art was searching for the whereabouts of Private Roger Girardin, isn’t that true?”
“Yes, I would say almost a year and a half, maybe even two years ago.”
“Let’s say about two years ago. Did he call you?”
“Yes, he’d called me. Asked me straight out.”
“Alright. Did he tell you where he got your name?”
“No, told me his name, that his brother was lost in the Korean War. Asked if I knowed him.”
“Did he say right off, ‘Did you know Roger Girardin?’”
“When I heard him say he was Art Girardin, the name Roger popped into my head. He hadn’t mentioned the name ‘Roger.’ It was me saying ‘I think I knew a Roger,’ or ‘I knew a Roger Girardin.’”
“You’re absolutely sure of that? That he didn't say, ‘Did you know Roger Girardin?’”
“No, he asked me if I knowed his brother. I’m the one who came up with the name ‘Roger.’ Tel
l you the truth, didn’t know how I remembered that.”
“Had you thought about it since you first talked with Art Girardin?”
“Yes, sir, I have.”
“Please tell us what you later thought about that made that response likely?”
“I figure I remembered because I’d gotten orders from the Company Commander that the soldier was to get down to regimental headquarters in the morning, ASAP.”
“Any idea why they wanted Roger?”
“Nope, no idea.”
“Well, did he go to the regiment at that time?”
“No, it didn’t happen.”
“Why not?”
“We got nailed that night.”
“Would you tell us what happened? Why didn’t Girardin report to headquarters?”
As Sheer started to answer, the hundred odd spectators stopped shuffling and leaned forward. Amy Dusseldorf adjusted her glasses and muscled her way free from the bodies on either side of her to sit on the edge of her seat.
“Well, was November ’50, a few days after Thanksgiving. I was a Second Louie in charge of a squad in Company C, 19th Regiment, 24th Division, on recon patrol outside of Usan along the Ch'ongch'on River. We were retreating south, tryin’ to see if the way in fron’ of us was clear. Orders were to follow the river southeasterly and destroy any enemy we encountered. But we were more interested in runnin’ from the Chinese coming at us heavy from the north. Lots of us lacked seasonin’. Heck, I only had a couple of months in; I wasn’t lookin’ for a fight.
“You see we moved through the ravines and through the woods stayin’ clear of paddies. During the day we hid in irrigation ditches. So the night before Girardin was to find his way back to regiment, a message came down the line from our point man. It must have been two in the morning. Point man walked ahead of us so we didn’t bump into the enemy, you know, by chance. He’d spotted NKs or Chinese about 800 meters in fron’ of us. Maybe they were headed to eventually outflank us. Didn’t know.”
We Were Beautiful Once Page 5
