“He was a member of my squad, correct.”
“As his captain, you expected him to follow any order you gave.”
Kessler nodded. “To the extent it was a lawful order, yes, I expected him to follow it.”
“Well, did you ever give Specialist Ford an unlawful order?”
Pendergrass was on his feet. “Objection. ‘Unlawful’ is vague and ambiguous.”
“I disagree,” Natale said. “The witness used the term. I assume he understood what he meant. He can answer.”
“No,” Kessler said, “I did not.”
“So we can assume that James Ford never disobeyed an order that you gave him.”
“I can’t think of any.”
“He would have trusted that any order you gave was a lawful order, correct?”
Again Pendergrass stood. “Objection, Your Honor. The question is asking the witness to speculate about James Ford’s state of mind.”
“I’ll rephrase,” Sloane said. “Did James Ford ever object to any order that you gave?”
“No,” Kessler said.
“And you would have never given an unlawful order, would you, Captain?”
“No, I would not.”
“So we can all conclude that James Ford would have trusted that any order you gave was a lawful order and followed it without question.”
“Your Honor…” Pendergrass said, raising his arms in exasperation.
Natale looked over her reading glasses at Sloane, admonishing him. “Mr. Sloane, I think we all get the point you’re trying to make.”
“Then I’ll move on. Captain Kessler, on the evening James Ford died, your squad was returning from escorting a convoy of supplies back to forward operating base Kalsu, correct?”
“Correct.”
“And in the course of those duties, your convoy was struck suddenly by a sandstorm so intense you could not see the truck in front of you, nor could you communicate by radio with the other trucks in your convoy.”
“That was the case, yes.”
“And where in the convoy was your squad located?” Sloane asked.
“Rear support.”
“The last vehicle?”
Kessler nodded. “Yes.”
“How was that position determined?”
“It came down the chain of command before the mission.”
“When you say the chain of command, who specifically do you mean?”
“My commanding officer was Colonel Bo Griffin.”
“So with the sandstorm raging and your vehicle being last in the convoy, no one would have known if you had driven off in another direction.”
“No. They likely would not have.”
“Captain Kessler, during your time in Iraq, have you ever known any soldiers to take items from a supply convoy for their own personal use?”
Kessler shrugged. “Maybe a pack of cigarettes or an extra MRE.”
“So it was possible for a soldier to do that and to get away with it.”
Kessler frowned. “He wasn’t getting away with it. The supplies were for the soldiers.”
“But if those soldiers took those supplies for other purposes, say to trade them on the black market for alcohol or Iraqi pornography, it would be improper, would it not?”
Pendergrass nearly jumped from his chair. “Objection, Your Honor. Calls for speculation. There’s no evidence to support that hypothetical. Nor is it relevant.”
“I’ll allow it,” Natale said. She looked to Kessler. “Answer the question if you can.”
“It would be improper, yes.”
“Did you ever do that, Captain Kessler?”
“No,” Kessler said, adamant.
“Did you ever order your men to do it?”
“No,” he said, equally adamant.
Sloane picked up Kessler’s witness statement, flipping through it. “And according to your witness statement”—Sloane paused as if reading—“you suffered a spinal injury in the same engagement in which Specialist Ford lost his life. Isn’t that true?”
“It is.”
“Can you tell us what happened that night?”
Kessler sat back and cleared his throat. Beads of perspiration shimmered on his forehead.
“Captain?” Sloane asked.
Pendergrass put his palms on the table, started to stand, hesitated, and remained seated.
“Captain, please answer the question,” Judge Natale said.
“No, I’m afraid I can’t.”
Sloane asked, “You can’t provide us any of the details of what happened that evening, about how you were shot and James Ford died?”
Now Pendergrass stood. “Your Honor, the witness statement can be used to refresh the witness’s recollection.”
Sloane never took his gaze from Kessler. “Only if the witness had a recollection to begin with. Otherwise, there is nothing to refresh.”
“Overruled,” Natale said. “Repeat the question.”
“You can’t provide any details about what happened that evening, about how you were shot and James Ford died?”
“No.”
“Because you don’t remember what happened that night, do you, Captain Kessler?”
“No. I mean…correct. I don’t remember what happened that night.”
“Keep your voice up for the court reporter, Captain,” Judge Natale instructed.
“You’ve never remembered what happened that night?” Sloane asked.
“I never have.”
“According to your statement you were knocked unconscious by an air strike that blew up the building you and your men were directed to reach as your landing zone. Isn’t that correct?”
Pendergrass flipped rapidly through the witness statements, perplexed by where Sloane was getting his information. Cassidy had provided it, but with a bullet in his head and his body incinerated, he couldn’t testify to any of it. Sloane knew he had to get it from Kessler. The game had changed, but that had not meant the game was over. Sloane just had to find a different way to get the information into evidence.
Kessler lowered his head. “That’s correct,” he said.
Natale looked over at him. “You’ll have to speak up, Captain Kessler.”
Kessler cleared his throat. “That’s correct. I don’t recall.”
“So your witness statement does not reflect your recollection.”
“It does not.”
“It was drafted for you by someone else.”
“Yes.”
“And you signed it.”
Kessler nodded. “Yes.”
“Would you consider that an honest act, Captain Kessler?”
“Objection,” Pendergrass said, but it lacked fervor.
“It goes to this witness’s credibility,” Sloane said.
“No,” Kessler said, not waiting for the judge to rule. “I would not consider it an honest act.”
“The other men in your squad that evening—Phillip Ferguson, Dwayne Thomas, Michael Cassidy—they all signed witness statements that have been submitted to this court as evidence of what happened that night. Did you ever speak to any of them about the substance of their statements?”
“No, I never did.”
“Have you read their statements?”
“Yes.”
“Would you consider them similar in substance to the statement you signed but did not write?”
“I guess I would.”
“More than similar?”
“I don’t understand?”
“Would you agree that the statements are nearly identical in terms of their content?”
“They’re similar, certainly.”
“Very similar?”
Pendergrass stood again. “Vague and ambiguous.”
“Your Honor, the witness agreed the statements were similar. I’m trying to determine whether he has ever considered how similar those statements are to one another.”
“I’ll allow it,” Natale ruled.
“I don’t have an opinion othe
r than that the statements are similar,” Kessler said.
Sloane went back to his table and picked up the four highlighted statements. “Your Honor, I’d like to submit into evidence the same four statements, but these with highlights I will represent I added.” He handed Pendergrass a copy and gave a set to the reporter.
“Any objection?” Natale asked.
Pendergrass flipped through them, considering the highlights. Keane leaned over and whispered something in his ear. “No objection,” he said.
The clerk stamped the documents as exhibits and handed them to Kessler.
“Captain Kessler, would you take a moment to consider the highlights I’ve made on your statement?” Sloane said. Kessler did. “Now would you take some additional time to consider the highlights I’ve made on the other three witness statements?”
Again Kessler did as instructed. More important to Sloane, so did Judge Natale and Tom Pendergrass.
Sloane asked, “Would you agree, Captain Kessler, that each of the words highlighted on each of the statements is repeated at least once in the other three statements?”
“I can’t say for certain. It does appear that the same words appear on each of the statements. Yes.”
“In fact, I found forty-two words, not including conjunctions, prepositions, and pronouns that were repeated, substantive words used to describe the events. Would you agree?”
“I didn’t count them,” Kessler said. “I’ll take your word for it.”
“And you already testified that you did not provide the words that are included in your statement, correct?”
“No, I did not.”
“So…who did?”
THE IMPLICATIONS OF Sloane’s question hung in the courtroom. All eyes were now fixed on Kessler.
“Colonel Bo Griffin,” Kessler said.
Sloane paused as if to consider his notes, letting the captain’s answer reverberate with the implications. “And since you don’t remember what happened, you don’t know if the content of the other statements is accurate, or whether Colonel Griffin made them up as well—”
Pendergrass shot out of his chair. “Objection, Your Honor.”
“Sustained.” Natale shot Sloane a glance, clearly unhappy.
“Captain, are you aware that Phillip Ferguson, one of the men in your squad that night, is dead?”
“I’m aware that Fergie committed suicide. I attended his funeral.”
“And are you aware that Dwayne Thomas is also dead?”
Another nod. “I read it in the paper. There was no service for him.”
“So you’re aware that Mr. Thomas was shot in the back of the head and that the Tacoma police suspect he was killed during a drug deal, except Mr. Thomas wasn’t known to deal or use drugs, was not a known member of a gang, and there has been no indication of a drug war among gangs in that area?”
Sloane watched the captain’s reaction closely. “No, I didn’t know that.”
Sloane held up a copy of the paper. “And are you also aware that Michael Cassidy, the last surviving member of your squad that night, besides you, died last week when his methamphetamine lab in Maple Valley exploded?”
Kessler shook his head.
“You need to answer audibly,” Judge Natale said.
“No,” Kessler said, looking dazed. “I was not aware of that.”
“How many men under your command did you lose in Iraq, Captain?”
“James Ford was the only one.”
“And that occurred during an ambush, a firefight involving several dozen insurgents, correct?”
“Correct.”
“And yet, it seems, every other man who served in your squad the night James Ford was shot and killed, and who managed to survive that peril, has died since returning to the States. Do you find that a bit odd?”
“Objection, Your Honor,” Pendergrass said, though it sounded obligatory and without enthusiasm. “It’s irrelevant what the captain believes.”
“I’ll withdraw the question.” Sloane had made his point. “Captain Kessler, did you ever order your men to steal supplies from the convoy they were guarding and sell or exchange those supplies on the streets—”
“Objection,” Pendergrass interrupted. “Your Honor, there is no—”
“—of Iraq for alcohol, narcotics or pornography—”
“—evidence to sustain such an unfounded accusation.”
“—and would that not have constituted an unlawful order?”
Judge Natale banged her gavel. “Enough. Enough. Mr. Sloane, do you have any evidence to back up a question like that?”
“Any evidence I would have had, Your Honor,” he said, locking eyes with Kessler, “died with those other three men.”
OUTSIDE THE COURTROOM, Sloane huddled with Beverly Ford and her four children. After the hearing, Judge Natale had called counsel into chambers, though Rachel Keane had not attended. Sloane was explaining to Beverly that Judge Natale had dismissed their case.
“That’s the bad news. The good news is she dismissed it as premature.”
Judge Natale had no choice once Pendergrass submitted the witness statements. The difference, Sloane explained to Beverly, was that he could re-file the complaint if he found evidence that James Ford was not acting incident to his service.
“Is there any?” Beverly Ford asked.
“That’s what I hope to find out,” Sloane said.
“They’re all dead?” Beverly Ford asked. “All those men who served with James?”
“Not all of them,” Sloane said. To his right, Captain Robert Kessler wheeled himself to the bank of elevators, Pendergrass at his side. Kessler looked demoralized. As the elevator door opened, he turned his head and looked at Sloane, then wheeled his chair inside.
A few minutes later, Sloane rode the elevator with Beverly and her children to the lobby and escorted them to the pay parking lot across from the courthouse. He told Beverly he would keep her advised of anything that happened. After they drove off, he walked back to the courtyard. Charles Jenkins stood near the cast aluminum fist sculpture.
“He took the bait,” Jenkins said, referring to Pendergrass.
“His ego took the bait.”
“How did you know Kessler’s statement was false?”
“You remember that day in his office when I handed it to him?”
“He never looked at it,” Jenkins said.
“And if someone wanted to coordinate statements to reflect not what happened, but his version of what happened, wouldn’t he start with the commanding officer’s statement?”
“If you’re right about this, Argus will come at you hard.”
Sloane nodded. “I’m counting on it.”
CHAPTER FIFTEEN
Tom Pendergrass sat behind the desk that wasn’t his, in the office that wasn’t his. His had been a single assignment—get the court to dismiss Beverly Ford’s claim—and he had succeeded. Judge Natale had dismissed Ford’s claim as premature. She didn’t have a choice. She couldn’t rule on the merits, not after he had boldly admitted the witness statements.
Stupid.
It had been a stupid mistake, a move blinded by his ambition. Worse, Sloane had set him up, and he’d been so confident that Pendergrass would fall for it, he’d gone so far as to subpoena Kessler to the courtroom. It was embarrassing, and had likely ruined any chance Pendergrass had of joining the U.S. Attorney’s Office after his commitment.
But what bothered Pendergrass most was he could not figure out how Sloane could have known what Kessler would say.
Pendergrass distinctly remembered Sloane telling him that Kessler had refused to talk to him once the claim had been reopened. So how had Sloane known that Kessler didn’t prepare his own witness statement? Where had he obtained all the information about soldiers stealing supplies from convoys? And those were not even close to the most nagging question Sloane had skillfully left for all in the courtroom to ponder: What were the odds that all of those men in James Ford’s squad woul
d die after returning stateside and all within six months of one another?
About the same as the odds that four witness statements could be so similar, particularly when one witness had no recollection of the events. Pendergrass opened his file and reconsidered the highlighted statements. If Colonel Bo Griffin had written Captain Kessler’s statement, then he had also coordinated the other statements. There was no other logical conclusion.
But why?
“Those were some fireworks this morning.” Pendergrass closed the file as Rachel Keane entered his office, closed the door, and took a seat. “I thought you conducted yourself well.”
“I don’t know about that,” Pendergrass said. “It was a mistake to admit those witness statements. It opened the door for Sloane to put Captain Kessler on the stand.”
Keane shrugged as if unconcerned. “Maybe, but what did it get Sloane in the end?”
“That’s what I’ve been sitting here trying to figure out,” he said. “What did you make of it?”
“Make of what?”
“Sloane’s suggestion that the soldiers were stealing supplies and selling them on the black market?”
Keane shrugged. “I’d say Mr. Sloane was trying to create a hypothetical set of facts so Judge Natale wouldn’t dismiss the claim. Personally I think he could have picked a better story—it bordered on the fantastic, don’t you think? Jo knows that. She just didn’t want to embarrass him in front of his client. You’ve been through the files. You prepared the litigation report. Did you find any evidence to support such a theory?”
“No, I didn’t,” Pendergrass said.
But he had not conducted the investigation. Command had done that, Colonel Bo Griffin, to be precise. The file to which Pendergrass had been given access was limited.
“Sloane was desperate,” Keane continued. “He knows he can’t prove his case, so he slung mud hoping something might stick. He overreached and Jo shot him down.”
Pendergrass nodded.
“Something else bothering you, Captain?”
“What about those other three men?”
“What about them?”
“They’re all dead. What are the odds of that?”
Keane leaned forward. “Higher than you might initially expect.”
“I don’t—”
Wrongful Death: A Novel Page 25
