The Spy Who Was Left Behind

by Michael Pullara

  The new lawyer was only nibbling at the edges of the prosecution’s case. Nevertheless, it was encouraging to me. This was advocacy.

  The panel called three roadway policemen from the Nerekvavi police post, a defunct railway car planted three hundred meters past the turnoff to the Old Military Road. They had been on duty the evening of August 8 when, a few minutes after 11 p.m., three drunk young men arrived in a Soviet-made compact car. All three were wearing military uniforms and one was holding a Kalashnikov assault rifle. They asked for gasoline and, because the police had none to share, for permission to stop cars to get some. A short while later a carload of military police arrived. They demanded to see the ersatz soldiers’ identification papers and proof that they were authorized to carry the weapon. An argument ensued. Just then Gogoladze appeared with two cars full of security officials. He accused the three young men of shooting an American and arrested them for murder.

  In addition, he arrested one Officer Agsabadze for failing to close the highway.

  According to the witnesses, Gogoladze claimed that he had driven by the Nerekvavi police post on his way to Tbilisi and had told a policeman standing outside that a man had been killed in his car. The chief bodyguard was certain that the policeman to whom he had spoken was Agsabadze. However, Officer Agsabadze could prove that he was not at the post when Gogoladze allegedly drove by. He and a colleague had been in western Georgia all day on official business and had only returned at 11 p.m.

  It was a stunning revelation. The arresting officer could not identify a policeman to whom he had spoken face-to-face two hours earlier, but could (allegedly) identify Sharmaidze, a nondescript young man he had seen in his headlights as he raced by at fifty miles per hour. The statements were completely incongruous. But neither of Sharmaidze’s lawyers seized on the discrepancy.

  According to one of the roadway policemen, investigators fired a test shot at the alleged murder site to see if anyone could hear it at the post. They could. However, none of the policemen remembered hearing a shot earlier in the night. This fact suggested three different possibilities to me: first, that the policemen simply missed the sound of the shot; second, that the shooting occurred at a different location; and third, that the weapon used to kill Freddie Woodruff had a silencer.

  One of the young men arrested with Sharmaidze was Genadi Berbitchashvili. He was a municipal policeman in the Chugureti District, a section of Tbilisi that included the Sheraton Metechi Palace. He testified that (with no prior arrangement) Sharmaidze and Gela Bedoidze had come to his house on August 8. Bedoidze put on one of Berbitchashvili’s military uniforms and the trio drove to the home of a friend named Baia.

  “Why did Bedoidze put on a uniform?” I wondered.

  After drinking for a while the foursome decided to visit the grave of Baia’s cousin. They were joined there by some guardsmen with whom they drank more alcohol and fired off an automatic weapon. Berbitchashvili was not pressed to explain where the weapon had come from; however, he was emphatic that Sharmaidze did not have a rifle when he first arrived at the house.

  The group adjourned to the home of Baia’s dead cousin, where they continued drinking. After a while, Sharmaidze suggested they visit his family. He was from Arakhveti, a ramshackle roadside village perched on the side of Mount Kazbek. The only way to get there was via the Old Military Road.

  I checked a map. Freddie Woodruff would have driven directly by the defendant’s home on his way to and from the village of Arsha. It was a curious irony.

  The intoxicated trio set out for the Sharmaidze family home in Bedoidze’s Jiguli sedan. Along the way they gave twenty liters of gasoline to an acquaintance. It was an unfortunate decision. Five hundred meters past the Nerekvavi police post they ran out of fuel. Bedoidze made a U-turn and pulled the car to the side of the road. He and Sharmaidze got out to flag down passing cars. Berbitchashvili stayed in the back seat of the Jiguli.

  The witness saw Sharmaidze fire a shot in the air and demanded to know why he had done it. According to Berbitchashvili, Sharmaidze said that a white Niva came close to hitting him so he got angry and fired the weapon.

  When no cars stopped to help, the young men drove five hundred meters to the Nerekvavi police post. A few minutes later the military police arrived and (after them) Gogoladze and the security officers. Berbitchashvili, Bedoidze, and Sharmaidze were arrested and taken to Tbilisi.

  “If they ran out of gas on the Old Military Road, how did they drive to the Nerekvavi police post?” I wondered. Apparently, this paradox did not trouble the court.

  Notwithstanding his accusation that the defendant had fired the rifle, Berbitchashvili gave testimony potentially helpful to Sharmaidze. The witness had described a very busy day. However, the defense lawyers made no attempt to establish the exact time when each of the identified activities had occurred. In the absence of those details, it was impossible to prove that Sharmaidze had not arrived at the murder site in time to kill Woodruff. The impression had been created, but the fact had not been established.

  At the conclusion of this testimony the chief judge read a jailhouse letter from the witness to Sharmaidze. In it Berbitchashvili begged the defendant to confess. “It is pointless for you to hide the facts and it will get us all killed,” he wrote. “You must tell them that you alone fired the gun. You must tell them that I was asleep in the back seat and that I was not involved.”

  The chief judge noted that the letter had been confiscated from Sharmaidze in jail; that he had sewn it into the waistband of his trousers; and that it had been discovered by vigilant policemen. But to me it all seemed highly improbable. Where did the imprisoned Berbitchashvili get pen and paper? How did he smuggle the correspondence from his cell to Sharmaidze’s? How did Sharmaidze sew the letter into his waistband? And why did he retain such a damning letter?

  These were basic authentication and chain of custody questions. Regrettably, no one asked.

  The new defense lawyer requested that the panel recall the ballistics expert. His reexamination focused on the distance between where Sharmaidze was allegedly standing and the location where the FBI found a shell casing linked to Sharmaidze’s rifle.

  “How far would an empty shell casing fly upon ejection from an AK-74?” the lawyer asked.

  It was a shrewd question. The distance between the shell casing and Sharmaidze’s alleged location had been measured by the FBI. It was 12.8 meters or about 42 feet.

  The ballistics expert equivocated. Distance could depend on a number of factors—the type of steel in the bullet, the angle of the shot, the terrain, the weather conditions.

  But Sakvarelidze persisted. “How far?”

  “Between three and eleven meters,” the expert said.

  Sakvarelidze now had a specific opinion that could be objectively tested with a simple demonstration. Investigators could fire the rifle (repeatedly and in different conditions) and see how far each shell casing traveled. If the ejected casings flew a distance substantially shorter than forty-two feet, then Sakvarelidze would have circumstantial proof that the shell casing in evidence had been planted.

  And the shell casing found by the FBI was the only physical evidence tying Sharmaidze to the murder.

  But the chief judge refused to permit the demonstration. He claimed that there were too many variables and it would be impossible to get an accurate result.

  It was a disturbing decision.

  Ordinarily the existence of variables affects the weight that is given to a result and not a defendant’s right to perform a demonstration. The defendant performs the demonstration, and then the parties argue whether the circumstances of the test were sufficiently similar to the original event to make the results meaningful. In this case, the chief judge refused to allow any attempt to compensate for the variables. He was taking sides, protecting the prosecution from potentially embarrassing evidence. It was unfair.

  I felt a cold and unfamiliar chill. What’s a smart Texas trial lawyer supposed to do when the
whole judicial process is a charade?

  Gogoladze, the driver of the car, was recalled to the stand. Sakvarelidze quizzed him about the clothes he was wearing on the night of the murder. According to the security chief, his jacket was bloodstained but none of the investigators inspected it. The testimony highlighted a significant deficiency in the official investigation: Examination of the spatter patterns could prove whether Gogoladze was sitting in the front seat at the time of the shooting. If the spatter did not confirm it, then the murder did not happen in the manner claimed by the government.

  It was an astute attack on the heart of the prosecution’s case. But it didn’t seem to matter to the panel. I began to suspect that this trial was little more than theater. Sakvarelidze could go off script, but it would not change the final act.

  On the eighth day of trial Gela Bedoidze was called to testify and the drama veered dangerously close to farce. The witness confirmed Berbitchashvili’s account of the day’s activities and was then interrogated regarding his exact location when Sharmaidze fired at the Niva.

  “Can you show us on this photograph exactly where you were standing at the moment the defendant fired his rifle?” asked the chief judge.

  “There,” said Bedoidze, pointing to a nondescript stretch of roadside in the photograph.

  “And how do you know that’s where you were standing?” asked the chief judge.

  “Because that’s where I was told to say I was standing,” said Bedoidze.

  It was a blunder. The chief judge had violated a basic rule of cross-examination—he asked a question to which he did not already know the answer. Bedoidze’s childlike candor had revealed a conspiracy to manufacture evidence of guilt. However, instead of vigorously exploring this prosecutorial corruption, the chief judge ruled the testimony inadmissible. It was improper and impossible for a witness to suggest that the authorities had instructed him what to say.

  I paused to consider the implications of the court’s ruling. How could I hope to reverse Sharmaidze’s conviction if proof of fabricated evidence and official misconduct were per se inadmissible?

  This was the beginning of my Georgian education. It was not enough to be a good lawyer and it was not enough to be right. Something more would be required.

  The trial was drawing to a close, and Sakvarelidze played his last cards. He reexamined Sharmaidze, and this time the defendant told a different story. He completely repudiated his confession. He did not run out of gas on the Old Military Road, he did not fire his rifle, he did not kill Freddie Woodruff. He told the panel that he had been brutally tortured several times and that the police had threatened to kill his entire family. The chief judge asked why he had waited until the end of the trial to tell the truth.

  “Because I was beaten every time I tried to speak up,” said the defendant.

  Sharmaidze said that the trio stopped at the Jvari Monastery, and while they were there, people in two cars asked them for gasoline. An acquaintance, Tamaz Zakaidze, was a passenger in one of the cars and suggested that they all drive to Natakhtari to get fuel. When they arrived, Sharmaidze met another old friend, a military policeman named Gia Chokheli. They drank vodka together, and after a while, Chokheli advised them to drive to the Nerekvavi police post because it was easier to get gasoline there. At the Nerekvavi police post they were immediately confronted by the military police and (a little while later) arrested by Gogoladze.

  Sakvarelidze reinterrogated Berbitchashvili. The witness confirmed Sharmaidze’s new chronology and the identities of his alibi witnesses. The defense lawyer attempted to establish the timing of specific events and the distances between the locations at which they occurred. I was elated that finally someone was trying to prove that Sharmaidze could not have arrived on time to fire the fatal shot. He asked the court to order a reinvestigation or (at the very least) to interview the alibi witnesses. He claimed that the prosecution had failed to disclose that someone else had been arrested for the murder, a drug addict and car thief named Inaurai.

  It was a startling allegation. Nevertheless, the chief judge rejected the accusation and denied the request. Instead, the panel permitted the prosecution to present rebuttal evidence—the videotape of Sharmaidze’s original confession. Although it was obvious in the video, neither the prosecutor nor the chief judge mentioned the bruise on the side of the prisoner’s face. It was the size and shape of a rifle butt.

  And with that, the prosecution and defense rested their cases. There had been ten days of trial and nineteen witnesses. Oral argument was scheduled for February 2, 1994.

  The prosecutor’s summation was perfunctory. He reviewed the relevant statutes and reread the official chronology. He argued that testimony by Berbitchashvili and Bedoidze confirmed testimony by Gogoladze and the women (and vice versa). He insisted that the shell casing found at the scene proved that Sharmaidze had fired his weapon at that location. And he concluded by asking the panel to sentence Sharmaidze to fifteen years, five years in prison and ten years in a work colony.

  I was surprised by the restraint manifested in the sentencing request. “Why didn’t he ask for the death penalty?” I wondered. If he believed his evidence, then it would have been an appropriate remedy.

  Inashvili, the court-appointed defense lawyer, argued for acquittal or reinvestigation of the murder charge. He focused on the key fact that there was no evidence that the bullet that killed Woodruff had been fired from Sharmaidze’s weapon. Admittedly, a shell casing from Sharmaidze’s rifle was found at the scene; however, the fact that a shell came from the defendant’s weapon did not prove that Sharmaidze fired the shot or that the shot killed Woodruff. And none of the other evidence presented filled this important gap in the prosecution’s proof. The witness testimony was unreliable, and there was good reason to believe that Sharmaidze had been tortured and made to confess falsely.

  It was a credible performance—clever, nuanced, and insightful. Inashvili had given the panel a legitimate basis to exonerate Sharmaidze without having to adjudge the police and prosecutor guilty of misconduct. He had invited them to do justice in half steps: If they could not stretch themselves to find the defendant not guilty, then they could at least order a reinvestigation and revisit the case in the future.

  I was forced to reevaluate Tamaz Inashvili. It was clear that he understood better than anyone the panel’s agenda and its limited tolerance for justice. A good lawyer knows the law, a great lawyer knows the judge. And Inashvili had revealed himself as a great lawyer.

  By contrast, Sakvarelidze, the new defense lawyer, showed himself to be a competent journeyman. He claimed that Sharmaidze had been tortured and that he had confessed only after the police threatened to kill his family. He argued that the timing of Sharmaidze’s activities on August 8 proved that it was impossible for him to have arrived at Natakhtari in time to kill Woodruff. He contended that the investigators and the court had violated Sharmaidze’s rights and that the defendant should be found not guilty.

  It was an all-or-nothing approach: Sharmaidze was innocent and the panel should say so. But if the panel of judges accepted his arguments then they would implicitly accuse the police and prosecutor of serious crimes and gross violations of human rights—and they were never going to do that. They would kill Sharmaidze before they would let that happen.

  Meanwhile, attorney Sakvarelidze had spoken the truth, but not in a way that would help his client. It was sobering and more than a little deflating to realize that I would have done exactly the same thing, and thereby assured my young client’s execution. I was going to have to learn a whole new set of skills if I wanted to succeed in my quixotic quest without getting someone killed.

  On February 7, 1994, the panel returned with a verdict. Sharmaidze was guilty of murder. He was sentenced to fifteen years in a labor camp and confiscation of all property. Pursuant to court order, the defendant was denied the right to appeal.

  Eight days later the FBI issued its final report regarding the murder: Freddie Woodru
ff was killed “by person or persons unknown.” The report did not implicate or accuse Anzor Sharmaidze and did not recommend that he be extradicted to the United States to stand trial. The case would remain open but unassigned pending new developments.

  And it didn’t take long for something new to develop. On February 21, 1994, the FBI arrested Aldrich Hazen Ames on suspicion of spying for the Soviet Union and Russia.

  The follow-up investigation of Ames’s espionage would lead the Bureau straight back to Tbilisi and the murder of Freddie Woodruff.

  CHAPTER 4

  * * *

  AN OBSCURE HINT

  In 1985, eight years before the murder of Freddie Woodruff, the CIA suffered an unprecedented loss of human intelligence assets related to the Soviet Union and Eastern Europe. As one CIA officer put it, the KGB was wrapping up American intelligence operations “with reckless abandon.” Forty-five cases and two technical operations were compromised or developing problems. Each of these cases represented a foreign national who, at the risk of his or her life, was providing useful information to the United States. The loss of these human sources resulted in a virtual collapse of CIA Soviet operations.

  Initially, the Agency suspected that the KGB had penetrated its communications with the field, using either technical means or a human source. To determine whether this hypothesis was accurate, the CIA ran a series of probes; however, none of these tests elicited any discernible response from the Soviets. There was no evidence that CIA communications had been breached.

  William Casey, then the director of Central Intelligence, requested a review of the compromised cases and an analysis of the reasons for the failures. In a ten-page memorandum, the reviewer concluded that each of the compromised operations could be attributed to problems evident in that operation. This myopic deduction was due in part to a reluctance to think the unthinkable—that one of the elite professionals in the Directorate of Operations (DO) was engaged in espionage.