As Terry expected, Flynn’s next challenge for cause was also a likely winner: a major who admitted hearing that Brian McCarran was a superb platoon leader in Iraq. Terry barely had time to wonder how Flynn had known that when Hollis excused the major, trimming the pool to seven.
Hollis glanced at his watch. “It’s now four o’clock, counsel. Is our work done here or is there more to do? Major Flynn?”
Briefly, Flynn conferred with Pulaski. Turning, he said to Hollis, “We respectfully request a brief recess, to review our options.”
“Captain Terry?”
Terry smiled agreeably. “I’m with Major Flynn, Your Honor. Except that we’d prefer breaking for the night.”
“Done,” Hollis responded with the barest hint of amusement. “I’m sensing that this process hasn’t quite played out. You might want to sleep on that.”
MEG AND TERRY DINED on pizza at his kitchen table. For hours, they studied the chart and questionnaires, refining voir dire questions for each remaining pool member, imagining Flynn’s next move, designing counterstrategies, and, at length, picking their ideal five-person jury. The complexities were many: both sides had their one peremptory left; both wanted a different number of jurors. Flynn’s number, six, would require one successful challenge, whether peremptory or for cause. Terry’s preferred jury, the minimum of five, required two. This meant that Terry must force Flynn to challenge a juror for cause, or to use up a peremptory. This would not be easy, given that Terry felt certain that Flynn had guessed how they would use Brian’s peremptory.
Approaching midnight, Meg said, “You’ll have to dangle Captain Leeds in front of Flynn. Leeds is the only Iraq War veteran left.”
Slowly, Terry nodded. “I think that’s right. The problem is that I’m not sure we want him, either.”
They went to bed. But neither slept well. At around two A.M., the bedroom still dark, they began rehearsing the voir dire questions for Captain David Leeds.
three
WHEN THE COURT RECONVENED THE NEXT MORNING, TERRY requested voir dire on Captain Leeds.
Sitting in the jury box, Leeds fit the stereotype of the evangelical Christian Terry knew him to be. His gaze through unfashionable flesh-colored glasses was serious and sincere, his sandy hair was cut short, and his pale, lineless face—more suited to a seminary student than a soldier—looked untouched by sin or even impure thoughts. But Leeds was a soldier and, by all accounts, a brave and resourceful combat leader. That he had proven this in Sadr City had implications for both the prosecution and the accused.
Terry got to this at once. “In 2004,” he said, “you served as the executive officer of a company based near Sadr City.”
Leeds folded his hands. “Yes, Captain. I did.”
“How would you describe the conditions encountered by your soldiers?”
Leeds hesitated, then answered simply, “I’d say it was hard duty.”
“In what respects?”
To judge from his expression, Leeds was reluctant to imply criticism of his superiors, or the war itself. The struggle to be honest was written on his face. “The mission was extremely dangerous,” he said at last. “The population was hostile, and we didn’t have enough troops to control the area. In the first six months, our platoon took a lot of casualties from snipers and rocket-propelled grenades and IEDs.” Speaking more quietly, he added, “A lot of dead, a lot of wounded. Several were maimed for life. It’s something you don’t forget.”
At the corner of his vision, Terry saw Brian’s body tense. He seemed to take a deep breath and then, quite visibly, detach from his surroundings. “Were there other difficulties?” Terry asked.
Leeds slowly nodded. “Among the civilians, we couldn’t tell our friends from enemy combatants. The Iraqi soldiers were undertrained and unreliable, and the police were infiltrated with Muqtada al-Sadr’s people. We were pretty much on our own.”
Encouraged, Terry asked, “How was the morale of your men?”
Again, Leeds weighed the question. “Their performance was excellent,” he said in a quiet, firm voice. “But as time went on, morale gradually declined. The feeling grew that we were taking heavy losses without achieving much. After a while they started calling it ‘Mission Improbable.’ ”
“During this experience, did you form any opinion regarding what is commonly known as post-traumatic stress disorder?”
Leeds’s expression grew more troubled. “I did.”
“What was that opinion?”
“That PTSD is very real. Some men who managed to function well in combat couldn’t seem to leave Iraq behind.”
Brian, Terry noted, looked away. “How did this manifest itself?” Terry asked.
“A number of ways: marital discord, excessive use of drugs or alcohol, bar fights that—near as I could tell—weren’t about anything. A lot of my guys seemed depressed.” Leeds compressed his lips. “I’m praying for these men. I’m no psychologist, but I don’t think we’ve seen the worst.”
Terry saw Flynn making notes, his expression nettled: uncertain of whether he could eliminate PTSD from the trial, he was forced to factor it into his choice of jurors. “Is it fair to say,” Terry inquired of Leeds, “that you believe that PTSD can contribute to violent behavior outside of combat?”
Leeds frowned. “I don’t know. But some of my guys have a hair trigger I didn’t see in them before.”
Terry moved closer. “Are you willing to consider the possibility that, at the moment of the shooting, PTSD could have caused Lieutenant McCarran to relive his combat experiences in Iraq?”
Eyeing Brian, Leeds waggled his head, miming doubt. “Put that way,” he said slowly, “it seems kind of far-fetched. But like I said, we saw some bad things, and you can’t just make them go away.”
Even Hollis looked intrigued by Leeds’s responses: through this witness, Terry had managed to further plant the subject of PTSD in the judge’s mind. Satisfied, he decided to explore another delicate subject. “You mentioned praying for your soldiers. Do you think of yourself as a religious man?”
A look of calm came over Leeds’s face, perhaps relief at returning to safer emotional ground. “I do,” he said firmly. “Since I was seventeen, I’ve placed Jesus Christ at the center of my life.”
“Does that commitment help shape your personal morality?”
“Without question.”
“Including on the subject of marital fidelity?”
For an instant, Leeds looked defensive. “You’re wondering whether I can be fair to the accused on account of my beliefs.”
“I respect your beliefs,” Terry said easily, “just as I respect your candor. So let’s discuss this a little more. As one example, how do you feel about divorce?”
Leeds steepled his fingers. “I believe that it’s a great moral failing, all the more so when children are involved. My wife and I believe that we have a covenant with each other, and with our son and daughter.”
“Given that, how do you view adultery?”
“As a sin,” Leeds said with certainty. “For me, that infidelity violates military law is the least of it. Adultery flouts God’s law, and the compact two people make when they enter into marriage.” Leeds paused to consider his own answer. “In extreme conditions, like where the husband becomes a danger to his wife or children, divorce may prevent an even greater tragedy. But adultery is not a substitute for divorce. There is never a good excuse for that, and only harm can come from it.”
Brian, Terry noticed, had a smile so faint and enigmatic that it was almost undetectable. Terry focused on Leeds, hoping to achieve an unspoken compact with this man. “Lieutenant McCarran is charged with murder and adultery. Do you believe that you can judge him fairly on each charge?”
Leeds met Terry’s gaze. Without hesitating, he answered, “Yes. I do.”
“Specifically, given your feelings about adultery, can you separate your judgment on that charge from your judgment on the charge of murder?”
“Yes.�
�� Leeds smiled a little. “There’s only one God, Captain Terry, and one Judgment Day. In this court-martial, I will do my duty as an officer. That includes trying to be as fair as any fallible human can.”
“Thank you, Captain,” Terry said. Nodding to Flynn, he sat down. When Meg slid her notepad across the desk, Terry read the words “Keep him.” Leaning closer, Brian whispered to Terry, “The man has been there. Be nice if someone in this trial knows what it’s like.”
Flynn was already up. “With respect to so-called PTSD, Captain, are you claiming that it caused the behaviors you described—drinking, volatility, depression, and the like?”
Leeds shook his head. “All I’m saying is that several of my men behaved very differently after serving in Iraq. See enough of that, and you’ve got to think there’s some cause and effect going on.” His voice softened. “Put it this way, Major. None of my guys are better off on account of going to war.”
Brian’s smile seemed bitter now. Perhaps, Terry thought, he was remembering the soldier who had hanged himself. Flynn moved closer to the jury box, asking, “Do you believe that you’re different because you served in Iraq?”
For the first time, Leeds appeared distressed. He inhaled visibly before responding, “I’m not myself. I’m less patient and less forbearing. But we’ll get through. My wife is patient and forbearing, and we pray together on it every night.”
For a moment, Flynn was quiet, taken aback by Leeds’s apparent anguish. “Thank you, Captain. That’s all I have.”
“You’re free to rejoin the others,” Hollis said to Leeds. Leaving, Leeds appeared more unsettled than the jurors who’d preceded him.
“Captain Terry?” Hollis asked.
Terry paused for a few seconds, studying Flynn as he quelled his remaining doubts. Then he said, “Captain Leeds is acceptable to the accused.”
“Major Flynn?”
Flynn was deep in thought he did not bother to conceal. Terry could read his calculations. If he failed to challenge Leeds and Terry exercised his peremptory, the number of jurors—six—would be favorable to the prosecution. The questions were how David Leeds would affect the chemistry of the jury; whether his status as a combat veteran would enhance his influence; and whether, conversely, his moral beliefs might be helpful to Flynn’s chances. Flynn turned to Pulaski, who silently shook his head.
Standing, Flynn said, “Challenge Captain Leeds for cause, Your Honor.”
“On what grounds?”
“His predisposal to accept a PTSD defense without sufficient skepticism.” Flynn’s tone took on the faintest edge. “Given that we don’t know what testimony the accused will come up with, or whether it will be part of the trial, we have to consider that in assessing a juror’s fairness. Captain Leeds’s responses suggest a belief that service in Iraq—at the same time and place as Lieutenant McCarran—is ipso facto traumatic. That is prejudicial to the government.”
Promptly, Terry stood. “What is prejudicial, Your Honor, is impaneling a jury without any combat veterans, and therefore anyone with experience relevant to Lieutenant McCarran’s service. And nothing in Captain Leeds’s responses suggests that he will be anything but fair, or that he would fail to heed the instructions of the court.”
Hollis gave Terry a keen look. Plainly he knew the gamble Terry was taking and its implications for the jury. He also might be pondering, Terry guessed, whether he owed Brian a make-good for denying the challenge to Colonel Robert Clair.
At length, Hollis turned to Flynn. “The court denies your challenge, Major Flynn. I agree with Captain Terry that combat experience is a qualification. Nor have you shown that Captain Leeds’s perception of that experience will prevent him from following the law. The only question remaining is whether you wish to exercise your peremptory challenge.”
A split second of annoyance flashed through Flynn’s eyes, followed by a complex mix of unhappiness, calculation, and, in the end, resignation. He stood, saying simply, “We exercise our peremptory challenge to excuse Major Leeds.”
Turning to Terry, Hollis asked, “Do you question the legality of the challenge, Captain Terry?”
“We do not.”
The jury stood at six, Flynn’s number. “Does the accused have a peremptory challenge?” Hollis asked Terry.
“We do,” Terry said with a casual air. “The accused wishes to excuse Colonel Robert Clair.”
The glint in Hollis’s eyes suggested his appreciation of the tactical war that Terry had now concluded. “Do you question the legality of the challenge, Major Flynn?”
“No, Your Honor,” Flynn answered.
“Then we have our members, gentlemen.”
Flynn smiled sourly at Terry. Flynn had a jury free of Iraq War veterans. But Terry had reduced the jury to a number—five—from which he needed only two votes for acquittal.
Hollis instructed the bailiff to return with the members of the court who would render judgment on Brian McCarran. As they filed back inside, Terry considered them.
By virtue of Clair’s exclusion, his subordinate, Lieutenant Colonel Alex MacDonald, was now president of the court. A stocky, placid-appearing man with bright red hair, MacDonald had a service record devoid of combat. Next to him sat Major Randi Wertheimer, an attractive woman with dark attentive eyes, who served as an internist at Fort Bolton Hospital. Partly because of Meg’s intuition, Wertheimer was one of two jurors Terry would target. The other was Major Bobby Wade, a soft-spoken African-American with gold-rimmed glasses, recently divorced, who had stated his willingness to consider the effects of combat experience on a soldier’s reflexes and perceptions. The last two jurors were both captains: Doug Young—slender, serious, and hard to read, the commander of a company in training for a tour in Iraq; and Adam Chase, of the supply corps, a southerner with an air of laconic good humor. All had one thing in common: as survivors of the selection process, they had not given either party a concrete reason to doubt their objectivity. But Terry knew that Flynn’s spadework and guesswork, like his own, suggested that these five jurors were persuadable. The difference was that Flynn now needed four of them.
As Hollis explained their duties, Brian regarded the five officers with open curiosity. Terry could imagine his thoughts—which of them, driven by unfathomable sympathies and motives, might tip the delicate balance between a life of freedom and, perhaps, a lifetime in prison. Terry felt his own ambivalence about Brian overcome by sympathy and deep worries of his own. It was harder, he had learned, to defend the brother of the woman he had come to care for more than he had thought possible.
“The court will adjourn until Monday morning,” Hollis announced. “At that time counsel will give their opening statements.”
“All rise,” the bailiff called, and jury selection was done.
Across the courtroom, Flynn gave Terry an ironic salute. Seeing this, Brian murmured, “I’m glad you stayed, Paul. Like my sister, I know you gave up a job you really wanted.”
Terry turned to him. “There are other jobs,” he answered. “Are you doing okay?”
Brian gave a wry smile. “As okay as ‘the accused’ can be. But right now I’m going sailing. Storing up memories, as our Aunt Rose used to say.”
He kissed his sister on the forehead and was out the door. For a moment Terry wondered if Brian would have gone to Kate had he not forbidden him to see her.
TERRY AND MEG SPENT the next few hours in bed, a release from tension that made their coming together even more abandoned and intense. When, for the second time, they had satisfied each other, Terry looked into her face, softened by lovemaking, and brushed a damp strand of hair from her forehead.
“You know,” he said, “I’ve never seen eyes this big and this blue. At the risk of sounding flowery, it feels like I could swim in them.”
Meg grinned. “And I’m feeling like I could swim in you,” she answered. “Sometimes it’s hard to set aside how I feel about you, even for Brian’s sake. Nonetheless, I’m grateful.”
“For
what?”
“That you’re also good in court. Again with my help, of course.” She laughed softly. “We kept Flynn from blocking a PTSD defense. And we picked Brian the right jury, I think.”
Terry smiled. “Actually, I’m hoping it may be a little better than Flynn knows.”
“In what way?”
“Colonel MacDonald, our new president, is up before the promotion board. He’ll hear sometime during the trial. For him, it’s either up—to full colonel—or out.”
Meg looked puzzled. “And so?”
“I got a call from a friend this morning. Nothing certain, but the rumor is that our friend Colonel Clair has shafted the poor guy.” Terry’s tone mingled sympathy with satisfaction. “Bad for MacDonald, good for Brian. A juror who’s angry at the army is one we want.”
“That was part of your calculation?”
“All along.”
To Terry’s surprise, Meg looked more disturbed than pleased. “It’s so hard to believe that Brian’s entire life may turn on quirks like this. What if MacDonald gets promoted?”
As to this, Terry had nothing to say.
four
AT NINE A.M. ON MONDAY, THE COURT-MARTIAL COMMENCED. In that last pregnant moment before Hollis took the bench, Paul Terry sat at the defense table with Brian and Meg. Across the courtroom, Flynn glanced at Brian and whispered something to Pulaski. The bailiff stood ramrod straight; the court reporter sat poised at his machine. MPs were stationed at the rear of the courtroom, prepared to quell any disruption among the reporters and spectators who had filled all the available seats. In the first row were Joe D’Abruzzo’s parents—a large, rough-hewn man with iron-gray hair and dark, wounded eyes; his wife, small but plump, staring fixedly downward into what, Terry thought, must be a bottomless well of grief and anger. General Anthony McCarran was absent—even were he not a potential witness, Terry had warned that others might perceive his presence as a calculated reminder of his influence. Beneath the table, Terry saw Meg touch her brother’s hand. His blue-gray eyes troubled, Brian acknowledged this with the glimmer of a smile.
In the Name of Honor Page 22
