Meg looked dubious. “Okay,” she said after a moment. “I assume you want me to design questions for potential jurors—were they stationed in Iraq, have they lost family or friends in combat, et cetera, et cetera.”
“Exactly. Sometimes the judge will ask them for us. But we also get to question them individually. That’s when you and I decide who to keep and who to challenge.” Terry nodded at the questionnaires. “Out of all those people, we’ll end up with our members and an opinion on how we did. But we won’t really know until they vote.”
Meg reached for a questionnaire and began reading it intently.
THE NEXT TWO DAYS were a battle of wits and nerve.
Judge Hollis cleared the courtroom of spectators. Then he convened the fifteen potential members of the court, all with the rank of captain or above. Within three hours, questioning by the judge and lawyers had winnowed them to eleven, a number more satisfactory to Terry than to Flynn.
“Trial counsel would like to question Colonel Lukehart,” Flynn announced. The chess match had begun in earnest.
LIEUTENANT COLONEL JACK LUKEHART was a slender man with prematurely white hair and the serious mien of an officer who left no detail to chance. “What’s Flynn’s problem with this guy?” Meg whispered.
Terry glanced at Brian, who, from his faint smile, seemed to have guessed. Under his breath, Terry said, “Six to one he knows your father.”
“Prior to your current posting,” Flynn asked Lukehart, “did you serve in the Pentagon?”
“I did, Major Flynn. As an aide to General Carstairs.”
Flynn nodded. “What were your duties, sir?”
“Several. But my principal duty was to help General Carstairs review and revise training procedures for the infantry.”
“And to whom did the general report?”
Briefly, Lukehart glanced at Brian before turning back to Flynn with self-conscious attentiveness. “General Anthony McCarran.”
“During this time, did you form an impression of General McCarran?”
Lukehart hesitated, then answered firmly: “Like others who served with the general, I thought him to be a model senior officer—intelligent, incisive, inclusive, as skilled at listening as he was at asking questions. He seemed to have no ego. One of his outstanding traits was to give everyone a fair hearing.”
“Did he give your views a fair hearing?”
“Always. On several occasions, in spite of some initial misgivings, he adopted General Carstairs’s suggestion for significant changes. When he disagreed, his reasons were sound and clearly stated.” Lukehart nodded in self-affirmation. “One of the many reasons why General McCarran commands respect is the respect he grants to others.”
This endorsement caused Flynn to cock his head, scrutinizing Lukehart closely. “Did you also form an opinion of General McCarran’s integrity?”
Lukehart pondered the question. “Before I met General McCarran, I knew by reputation that his integrity was beyond question. What I learned was that General McCarran spoke with total candor. He never kept us in the dark about what he knew or thought. In all of our dealings, he was a completely honorable man.”
“And,” Brian murmured wryly, “overdue for canonization.”
“That’s the problem,” Terry scribbled on his notepad.
“In your observation,” Flynn asked, “can integrity be passed from father to son?”
Once again, Lukehart gave Brian a swift, surreptitious glance. “I think so. Yes.”
“On what basis?”
“My own father. He, too, was a colonel, and believed in our code of honor. For him, there was no sin worse than dishonesty. I may not have always lived up to that, but he set a powerful example.”
“The man’s a goner,” Brian wrote. But whether he meant mired in hero worship, or gone from the jury, Terry could not tell.
“That’s all I have,” Flynn told Hollis.
Terry stood, appraising Lukehart with an air of puzzlement. “From your questionnaire, I gather you’ve never met Brian McCarran?”
Lukehart nodded, touching the bristles at the side of his head. “I have not.”
“Outside this case, do you know anything about his reputation?”
“Nothing at all.”
“Do you feel that you can judge him without bias?”
“Absolutely.”
Terry paused for a moment, considering how to attack the problem of Brian and Kate D’Abruzzo. “Despite your father’s example, sir, have you ever lied to anyone?”
Lukehart blinked. “Yes. I have.”
“On more than one occasion?”
“Yes.”
“I assume you had your reasons.”
Lukehart paused. “It never feels right. But, yes, I had my reasons.”
“Despite this, do you consider yourself to be an honorable man?”
“I try to be,” Lukehart answered softly. “Most days I succeed.”
Turning to Hollis, Terry said, “I have nothing more for Colonel Lukehart.”
“You’re excused,” Hollis told Lukehart. “Please join the others.”
“What’s your guess?” Meg scribbled as Terry sat down. In answer, Terry wrote, “I’m okay with this guy. But Flynn will try to dump him.”
When Lukehart was gone, Flynn whispered briefly to Pulaski, then stood to address the judge. “We challenge Colonel Lukehart for cause.”
Hollis cupped his chin in one palm. “On what grounds?”
“His deep admiration for General McCarran. It might be difficult for him to find the general’s son guilty of a serious crime. More generally,” Flynn continued, “if Colonel Lukehart knew the accused, he would be automatically disqualified. Given the reputation of the McCarran family with the army, this court should exclude anyone connected to the general or his son.”
Briefly, Hollis considered this. “Any argument, Captain Terry?”
“Absolutely, Your Honor.” Quickly, Terry stood. “Major Flynn’s argument seeks to repeal human nature. How many colonels are going to say in public that the army’s chief of staff is less than an admirable figure? This is the military, sir.” With an edge of humor, Terry added, “Both Major Flynn and I have the highest respect for this court. But even if we did not, we’d be well advised to lie.”
A hint of amusement flickered in Hollis’s eyes. “I take your point, Captain. It’s a comfort that your respect for the court doesn’t seem to have crippled you.” He sat back, surveying the courtroom. “Nonetheless, I’m granting trial counsel’s challenge. Personally, I have no doubt of Colonel Lukehart’s impartiality. But this court-martial should be free of bias not only in fact, but in appearance. Particularly when, as Major Flynn points out, the prominence of General McCarran is a fact we all must live with.”
When Terry returned to the table, Brian had scribbled, “No kidding.”
THE NEXT VOIR DIRE belonged to the accused. Checking their list, Meg inclined her head toward Terry. “I’d go after Clair,” she murmured. “Let’s try to get rid of him for cause.”
Standing, Terry told Hollis, “We request voir dire on Colonel Robert Clair.”
The officer who appeared had curly gray hair, a gaunt face, and a closed expression that lent him an air of certainty. Hands in his pockets, Terry asked, “Are you familiar with the condition known as post-traumatic stress disorder?”
Clair pursed his lips. “I’ve heard the term,” he said in a dubious tone.
“What does it mean to you?”
Briefly, Clair considered the question. “A soldier claims that he can no longer function, especially in combat. Essentially, that his nerves are shot.”
“Do you know anyone who has been diagnosed with PTSD?”
“I do not.”
“Are you familiar with the symptoms associated with PTSD?”
“Not specifically, no.”
“Nor have you served in Iraq.”
Clair frowned. “Not at this time.”
Terry gave him a curious loo
k. “Do you believe that PTSD is a genuine condition?”
As Clair paused again, Terry sensed him choosing a politic answer. “I have an open mind, Captain. I’ll listen to the evidence before deciding if this is real.”
Though Terry doubted that, he decided to switch subjects. “You currently serve as the commanding officer of a battalion, is that correct?”
“It is.”
“In that capacity, have you ever referred any soldier in your command for criminal charges?”
“I have.”
Knowing the answer, Terry asked, “How many times?”
Clair’s eyes narrowed, as though trying to remember. “Three. The charges were assault, theft, and insubordination.”
“Were those three soldiers subsequently court-martialed?”
“Yes,” Clair responded with a touch of satisfaction. “And convicted.”
“Did you believe those verdicts were appropriate?”
Annoyance briefly surfaced in Clair’s eyes. “I did,” he said firmly. “Otherwise I wouldn’t have referred them.”
“In this case, the charges were referred by General Heston, commander of Fort Bolton. What do you conclude from that?”
Clair looked to the side, seeming to parse the implication of the question. At length, he said, “That General Heston believes that the evidence justifies a court-martial.”
Terry gave him a probing look. “In light of your own experience, Colonel, what does that say to you about the guilt or innocence of the accused?”
“That there are significant grounds to believe a crime has been committed.” Clair seemed to play back the answer in his mind, then added, “After that, our job is to exercise independent judgment.”
“In your mind, does that require you to presume that Lieutenant McCarran is innocent unless proven otherwise?”
“Of course,” Clair said curtly. “That’s the law.”
“All right, Colonel.” Terry moved closer to the jury box, standing a few feet from Clair. “In your role as commanding officer, do you write fitness reports for any member of the court?”
From his nettled look, Clair knew where the question led. “I do. For Lieutenant Colonel Alex MacDonald.”
“Suppose that during your deliberations, Colonel MacDonald vigorously disagreed with your conclusions as to the innocence or guilt of Lieutenant McCarran. Would that affect his fitness report?”
“Absolutely not,” Clair said in an offended tone. “I’d completely erase that from my mind.”
“But is it possible that the colonel might fear otherwise?”
“No. It’s not possible.”
Terry smiled faintly. “So your reputation for fairness precedes you?”
“Yes,” Clair said firmly. “Based on my willingness to encourage dissenting voices. Including, on at least two occasions, Colonel MacDonald’s.”
Terry knew better. By reputation, Clair did not brook disagreement, and those who challenged him paid the price. But there was no way he could call witnesses to discredit this man’s self-concept. Mildly, he said to Hollis, “With thanks to Colonel Clair, that’s all I have.”
Returning to the defense table, he saw Flynn shoot him a knowing smile. “Does trial counsel have anything?” Hollis asked.
“Just one question.” Without standing, Flynn asked Clair, “Knowing the charges and the identity of the accused, could you judge this case impartially?”
Clair nodded briskly. “Absolutely. That’s what makes our system of military justice work the way it should.”
Terry caught Meg’s brief shake of the head. On his notepad, Brian wrote, “Sure wouldn’t want him for my CO.”
Terry touched his arm, a signal not to worry. As soon as Clair left the courtroom, he stood. “Your Honor, we challenge Colonel Clair for cause.”
“On what grounds?”
“Several. He’s preferred charges three times and, in his view, was right each time. That suggests a belief that a referral of charges equals guilt—”
“Does it, counsel? All this tells me is that three separate courts agreed with him. I might be more worried if they hadn’t.”
Terry paused, frustrated that he could not reveal his intelligence on Clair. “Beyond that, Your Honor, his responses on PTSD are troubling. He’s never been in combat—to him, PTSD is just a rumor. In fact, he came perilously close to equating it with malingering.
“Finally, the colonel may think that a subordinate officer could feel free to challenge him—in fact, his refusal to entertain any other possibility is unnerving in itself. But the possibility exists with respect to Lieutenant Colonel MacDonald, and it could taint these proceedings. In fairness to the accused, Colonel Clair should go.”
Hollis looked inscrutable. “Major Flynn.”
After standing, Flynn said evenly, “As the court suggests, three courts-martial have confirmed the soundness of Colonel Clair’s judgment. As to PTSD, the man says he has an open mind. It’s not like he professed neutrality on some matter of proven fact—like that the earth orbits around the sun. As for Colonel MacDonald, counsel can always ask him if he’s intimidated by Colonel Clair. But in my judgment, Colonel Clair is the kind of juror the accused should want.”
Glancing at Meg, Terry saw her mouth the word “Bullshit.” Swiftly, he stood again—in his gut, he knew that Clair was a prosecution juror and sensed that Hollis must know this, too. “That may be Major Flynn’s belief, Your Honor. But we represent the accused, and the Uniform Code of Military Justice provides that challenges for cause should be liberally granted. With respect, nothing in his responses suggests that Colonel Clair has ever felt doubt about anything—reasonable or otherwise.”
Hollis frowned. “That may be your suspicion, counsel. It may also be unfair. With respect to Colonel Clair, absent something more, it’s you who’s failed to raise a reasonable doubt. Do you have anything else?”
Nothing I can reveal, Terry thought. In the lightest tone he could manage, he answered, “Only that I’m right, Your Honor.”
“I’ll just have to live with that,” Hollis answered dryly. “Challenge denied.”
At the corner of his eye, Terry caught Meg’s troubled gaze. Terry felt equally worried. He had expected to get rid of Clair, and this failure skewed his calculations. There were still ten jurors—a number better for Flynn than Brian. Worse, as matters stood, Clair, as senior officer, would be president of the court. The question now was what Flynn—who, like Terry, had not yet used his peremptory challenge—would choose to do. Terry imagined Flynn’s own calculation: no doubt Terry would use further challenges to reach a number better for Brian. And the number created by the next successful challenge, nine, was still to Flynn’s advantage.
Pulaski whispered something in Flynn’s ear. Briefly nodding, Flynn announced, “We request voir dire on Lieutenant Colonel Boyer.”
BOYER WAS BLOCKY, CREW-CUT, and clearly battling a problem with his weight. From the moment he sat in the jury box, he looked unhappy to be there.
Quickly, Flynn established why. “This case includes a specification of adultery. Do you have any experience in the army relevant to that charge?”
“Yes, sir.” Boyer looked up at him, abashed. “Six years ago, I was briefly involved with the wife of an enlisted man.”
“Please elaborate, Colonel.”
Boyer seemed to steel himself. “I was his company commander. She came to me for help with their marital troubles, hoping I could counsel him. Instead, I took advantage. Eventually she confessed our involvement to her husband.”
Brian, Terry noticed, frowned at this. “What was the result?” Flynn asked.
“I lost my command, and was admonished by the battalion commander.” Boyer paused, then said defensively, “There was no repetition of the conduct. My life got back on track.”
“Thank you, Colonel. That’s all I have.”
Terry stood, saying in a sympathetic tone, “This was obviously a painful experience, Colonel. Will it affect your ability to
judge the accused fairly?”
Boyer seemed to search his conscience. “No,” he said softly. “Every situation is different. And Lieutenant McCarran is innocent until proven guilty.”
Terry liked the answer. But what he could not say, and could not escape, was that—with respect to adultery—Brian was guilty as charged. “Thank you,” he said, and sat down, uncertain of whether he should challenge this man.
Flynn had no such doubts. When Boyer was gone, he stood. “Challenge for cause, Your Honor. Colonel Boyer’s experience is too close to the facts of this case. We can’t expect him to sort that out.”
Flynn, Terry saw, feared that Boyer would sympathize with Brian. But there was no way to argue Flynn’s point. When Hollis granted his challenge, the jury pool stood at nine.
At Terry’s request, the judge called a fifteen-minute break.
HASTILY, MEG AND TERRY huddled with a chart that listed the pool, the possible grounds for further exclusions, and the peremptory challenges that remained. Brian ignored them, his spectral gaze directed at the judge’s empty bench.
“You’ll have to use up an easy challenge,” Meg urged. “Get the pool down to eight, then see what Flynn does next. He’s still sitting on his peremptory.”
This move seemed sensible, Terry concluded, likely forcing Flynn to expose more of his strategy. When the judge returned, Terry asked for voir dire on Major Tom Mazzili.
As he readily acknowledged, Mazzili had served on a jury that voted to find Corporal Carlos Maldonado guilty of adultery. But what clinched Terry’s challenge was the severity of the sentence leveled during the guilt phase—six months in prison followed by a dishonorable discharge—and Mazzili’s insistence that this result was, if anything, lenient. Within ten minutes, the jury pool numbered eight.
In the Name of Honor Page 21
