Treason

by Don Brown

  Although DeBenedetto is now a commissioned officer, if an affair occurred with Brewer while she was enlisted, several former JAG officers interviewed say such a relationship would violate military law, demanding discipline against Brewer ranging from a private reprimand, to captain’s mast, to a general court-martial.

  The Reverend JamesOn Barbour, reached at SARD headquarters in Chicago, called for an immediate investigation, and if the charges prove to be true, said Brewer should be prosecuted.

  “This is a continued example of the Navy’s double standard. They prosecute a young, innocent man for rape, and now it appears the prosecutor should be prosecuted,” Barbour said.

  Zack tossed the newspaper on his desk, his jaw visibly clenching. “Aside from the fact that this is a bald-faced lie, I can’t afford to get distracted by Levinson’s garbage. Not now. We’ve got far bigger problems in this case than this, Diane.”

  “What are you talking about?”

  “It’s not what I’m talking about; it’s who I’m talking about.”

  “Okay, who are you talking about?”

  “Special Agent Harry Kilnap, Navy Criminal Investigative Service. That’s who. The guy’s a worm.” Zack dropped into his chair and motioned Diane to have a seat.

  “I thought his testimony went okay yesterday. Sure, Levinson crossed him, but we got the tapes in and scored some points.”

  “That’s the problem, Diane. It went too well.”

  “I don’t understand.”

  “Something didn’t add up about how he just ‘happened’ to be in Shoney’s restaurant with his tape recorder.”

  “What are you saying?”

  “What I’m saying is that something didn’t sit right. So I called him.”

  “You called Kilnap?”

  “Right. I ran him out of his comfortable government-paid-for nest at the Harborside Marriott at four o’clock in the morning.”

  “And?”

  “After I pressed the matter a few times, he admitted something to me that he hasn’t revealed to anybody else.”

  “Go on.”

  “An hour or so before he got the recordings at Shoneys, Kilnap found al-Aziz’s car parked in the base parking lot at Oceana Naval Air Station. Without a warrant, and without probable cause, he planted a bug in the car and waited for al-Aziz to get off work. When al-Aziz climbed into his car, Kilnap’s bug picks up a cell call with Reska. Al-Aziz says they will meet at Shoney’s. Kilnap follows them there. Or goes there based on information he has learned from bugging al-Aziz’s car.”

  Their eyes locked for a few seconds. “What are we going to do?” she said.

  “You were just a defense counsel. Tell me. What’s the prosecutor’s duty when he or she discovers potentially exculpatory evidence?”

  “Oh dear . . .” Diane held her hand over her mouth for a moment, then removed it. “You’re thinking about disclosing this?”

  “I don’t know what I’m going to do. But you know as well as I do that a prosecutor, even a military prosecutor, has a duty to disclose exculpatory evidence.”

  “Zack, you know if you disclose this or if Levinson gets hold of it, our whole case could go down in flames.”

  “No joke.” He stood from his chair, folded his arms, and turned his back on her, gazing out his office window at the dark waters of San Diego Bay. “You know, if Kilnap had just come clean from the beginning, we could have dealt with this. Now I’ve got a real dilemma.”

  “You mean we’ve got a real dilemma.”

  “No.” He turned around and looked into her face. “I’m the lead prosecutor. I got you into this, and I’ll take the heat either way.”

  “Have you told Captain Rudy or Commander Awe?”

  “I’m not going to tell them.” Zack sat back down. His face was pale.

  She caught her breath. “Are you crazy? Zack, they’re your chain of command, and this case is being tried with the whole world watching. They say that the president has a personal interest in this case. So why wouldn’t you tell them?”

  Zack leaned back and looked up at the ceiling. “First off, they’ve detailed me as prosecutor in this case, and they’ve given me the reins to try the case as I see fit. If I tell them about Kilnap’s shenanigans, then what?” His eyes met hers. “What if they order me to conceal the information even though I consider it to be exculpatory? I’d consider that to be an unlawful order, and we’d all be in a predicament.”

  He slammed his fist against the filing cabinet beside his desk. “Kilnap!”

  “Zack, calm down a second.” She spoke in a calm, reassuring tone. “Maybe it’s not really exculpatory. Maybe you’re not required to reveal it. Think about it. First off, is this really exculpatory evidence? I mean, just because Kilnap acted like a cowboy and bugged al-Aziz’s car without a warrant doesn’t really have anything to do with whether these defendants committed the crimes we’ve charged them with. It’s not like it’s evidence of an alibi or mistaken identity. These three guys were in on these crimes, and we both know it. So I don’t see how Kilnap’s bugging the car has anything to do with whether these guys are murderers.”

  “A good point, Diane. And one I’d certainly argue to the judge if we decide to disclose. But let me ask you this . . .” Zack’s voice was calmer.

  “Shoot.”

  “If you were the defense attorney in this case, would you want to know about the government’s lead investigator bugging your client’s car without a search warrant?”

  She considered the question. “Of course.”

  “Okay. Tell me why.”

  “The basis for a possible motion to suppress,” she said.

  “Bingo.”

  “I see your point.”

  “Levinson would argue that because the first search was contaminated, all other evidence gathered, including all the tape recordings at the heart of our case, should be thrown out. Gutting our case. Making a conviction impossible.”

  “Fruit of the poisonous tree?”

  “Precisely.”

  “But in this case, a large part of the evidence has already been heard by the members.” Diane leaned forward. “It would be too late to suppress.”

  “Right.” Zack thumped the dimple on his chin. “So Levinson moves for a mistrial, maybe gets it granted, gets a new trial, and then moves to suppress. And then it’s over. Unless, of course, our argument can persuade Judge Reeves that discovery was inevitable.”

  “Our argument? You mean your argument.” She smiled, trying to lighten the mood.

  “Okay. My argument. Like I said, I’ll take the heat for disclosure if it comes to that.”

  “But, Zack, think for a moment about the national security implications if these guys get away with this.” She stood up. “This case is about terrorists infiltrating the officer corps, for goodness sakes. If there’s ever an instance to justify an exception to the full-disclosure rule, this is it.”

  “I’ve had that very thought already a dozen times this morning, Diane.”

  “Then why not just let it go?”

  “Maybe I will. Maybe I won’t. I don’t know.”

  He turned around and gazed out the window again. A faint light was pushing the black night back. “But you know what? Levinson did make one good point yesterday. Oh, I know his argument was perverted and twisted to his own ends. But we are naval officers. And we do take an oath to defend the Constitution. And if we get to the point that we’re more concerned about fighting terrorism than preserving the Bill of Rights, haven’t the terrorists already won?”

  Oh, dear God. He’s going to do it. He’s going to disclose this. He actually thinks he can beat Levinson with one hand tied behind his back.

  “Whatever you decide, I’ll support you.”

  CHAPTER 58

  Navy-Marine Corps Trial Judiciary

  Building 1

  32nd Street Naval Station

  San Diego

  Day 2

  As the white Ford Taurus carrying the prosecution
team rounded the last corner, the yellow stucco building came into view. The media positioned themselves around Brewer’s reserved parking space like a human horseshoe. The Marines, again sporting combat fatigues and rifles, guarded the inside perimeter, carving out just enough free space for the car.

  “Good thing the Marines are protecting the press from my gas pedal this morning,” LN2 Cisco grinned.

  Brewer managed a chuckle. “Thank God for the Corps.” The levity in his voice was a stark contrast to the heaviness in his heart caused by the Kilnap dilemma.

  “I can’t imagine what they want to talk about this morning,” Diane said from the backseat.

  As Cisco eased the car into the parking place and cut the engine, Zack glanced over his shoulder and met her eyes. Her hair wasn’t in its customary bun this morning, but was down, resting just above her collar, almost, but not quite, too long for regulation. The stark red against the white uniform was amazing. A nice distraction from the storm waiting outside the car. “Probably about the amazing opening statement you made yesterday.” He gave her a reassuring smile.

  The Marine first lieutenant tapped on the front passenger’s window. Zack read his lips. “Ready, sir?”

  “Let’s go.” Zack opened the car door.

  The questions came in rapid fire, like a machine gunner emptying his clip:

  “Lieutenant Brewer! Did you have an affair with an enlisted petty officer?”

  “Lieutenant Brewer, what about Petty Officer DeBenedetto?”

  “The Reverend Barbour says you should be prosecuted. How do you respond to that?”

  “They sound like a pack of mad dogs yelping in the pound, sir,” the squadron leader muttered to Zack as the Marines surrounded the prosecution team. The questions came so fast the voices all ran together.

  “Lieutenant, heads up.” Zack nodded to the squadron leader. “I’m going to make one statement before we go inside the building, from the front step of the courthouse.”

  “Aye, sir. We’ll keep it secure.”

  A moment later, Brewer, Cisco, and Colcernian stood at the top of the courthouse steps, separated from the yelping mob only by a thin, albeit sufficiently armed, line of U.S. Marines. Zack turned into the bright lights and raised his hand. In an instant, the cacophonous barking gave way to the cool Pacific breeze, the sounds of car horns from nearby Harbor Drive and bells ringing announcing the arrivals and departures of dignitaries on Navy warships down at the waterfront.

  “I know that you all have questions, and that’s part of your job,” Zack said. “And we have a job too, and that’s to finish prosecuting this case. So I’m going to make a brief statement addressing what I think you may be interested in. Because we are pressed for time, I will take no questions, at least not now.”

  He let his words sink in as newspaper reporters scribbled furiously on legal pads and as the radio and television types jockeyed to poke their microphones and handheld tape recorders toward his face.

  “First, we are pleased with yesterday’s court proceedings. I was delighted with the powerful and cogent opening argument made by my colleague, Lieutenant Colcernian. I believe that we scored points with the members, and I am confident that at the end of the day, we will secure a conviction.”

  Another brief pause.

  “Now, based upon the one thousand or so questions I have received in the sixty seconds since I stepped out of my car, I presume you have an interest in the story on the lower left front page of the San Diego paper this morning.

  “First let me say that I couldn’t care less what you—the respected members of the media—decide to say, or write, or think about me. I do, object, however, when some of you sully the name of another member of the naval service with a story that doesn’t even name the sources of the allegation. In this case, the person whose name you have sullied was a dedicated, loyal, enlisted member and is now a fine officer. I have the highest personal regard for this officer, and she has broken no laws of the naval service.

  “Anyone, whether you call them ‘a witness close to the situation and speaking anonymously’ or whatever you call them, who makes such an accusation aimed at harming people, but who doesn’t have the guts to give their name, is a spineless coward.”

  He paused again, watching the newspaper reporters furiously scribbling notes. “And kowtowing to such garbage is spineless journalism. This type of tabloid gossip is yellow journalism in its lowest form. You who report such waste should be ashamed of yourselves. That is all.”

  Zack turned and nodded to one of the Marines, who opened the front door of the courthouse. He snapped a salute as the two Navy JAG prosecutors passed into the building.

  When the prosecution team stepped into the courtroom for the morning session, Levinson was already at the defense table with his clients. A sly smile appeared on his face when he made eye contact with Zack.

  “His smirk tells all,” Diane whispered to Zack.

  “All rise!”

  With all that he had endured in the Blount prosecution, and now this, Zack had not felt a tinge of nervousness upon the opening of court.

  Until now.

  Judge Reeves, holding a file in his hand, walked to the bench.

  Maybe Diane was right. Maybe national security justified keeping quiet about Kilnap. What about the victims of this heinous terror? What of Commander Mark Latcher’s widow and children? They had names. Beth and Mary Blake. The twin girls in high school. And the little boy. Six-year-old Wesley. Didn’t he owe it to them and the families of the other victims to secure a conviction?

  “Please be seated.”

  Zack ignored the order and remained standing.

  The moment of decision was at hand.

  “Your Honor, before we begin, there is a matter the government feels compelled to bring to the court’s attention this morning.”

  “Very well, Lieutenant Brewer.” The affable Reeves peered over his gold wire rims.

  From his right, across the five-foot passageway separating the prosecution and defense tables, Zack felt the glare of Wells Levinson.

  “Your Honor, while we feel the information we are about to bring before the court, under these circumstances, will not have a significant impact in the disposition of this case, in the interest of full disclosure, I want to reveal the following.”

  Zack reached for his glass and took a sip of ice water. “After we completed yesterday’s session, I was on the telephone with one of the government witnesses, NCIS Special Agent Harry Kilnap, who, as you know, testified yesterday.”

  Captain Reeves nodded his head and also took a swig of water.

  “During the course of my conversation with Special Agent Kilnap, I learned last night, for the first time, certain information about the arrest of Lieutenant Commander Reska which Mr. Kilnap did not testify about yesterday, in part, simply because he was not questioned about it.”

  “Very well.” Judge Reeves nodded.

  “I learned, Your Honor, that several hours before Mr. Kilnap recorded the conversation between Lieutenant Commander Reska and Petty Officer al-Aziz in Shoney’s restaurant, a public place, Special Agent Kilnap was conducting surveillance of the petty officer’s car, which was parked in the parking lot at the Oceana Naval Air Station. Agent Kilnap, in the dark hours of the morning, placed a listening device in al-Aziz’s car, which transmitted signals and communications to Kilnap’s car.

  “When al-Aziz drove out of the parking lot, Mr. Kilnap, in his car, followed, maintaining constant visual surveillance. During that time, the transmission device picked up part, but not all, of a conversation between Petty Officer al-Aziz and Commander Reska. Mr. Kilnap, who was already in pursuit, heard al-Aziz say they would meet at Shoney’s on Dam Neck Road in Virginia Beach. Kilnap never lost visual contact with al-Aziz’s car and followed it to Shoney’s, where he recorded the conversations already entered into evidence.”

  “That is all, Your Honor.” Zack sat down, his heart pounding.

  There was light mumblin
g in the gallery. Light because, Zack figured, only a handful of the reporters understood the significance of what he had just said. One rap from the judge’s gavel instantly quieted things.

  The military judge leaned back in his chair, pulled his glasses off, swiped them quickly with a handkerchief, and looked back to Zack.

  “Let me see if I understand you, Lieutenant Brewer. Are you saying the prosecution just learned of this last night?”

  Zack stood to address the court. “Correct, Your Honor.” He sat down again.

  Reeves moved his gaze to Levinson. “Mr. Levinson, do you have anything to say about this?”

  Levinson rose slowly with his mouth open, as if aghast, and dramatically turned to the gallery, making eye contact with several prominent media members before turning back to face Captain Reeves. “Your Honor, rarely am I so shocked to be at a loss for words, but I must confess I am on the precipice of such an occasion at this very moment.”

  “Well, Mr. Levinson,” Reeves said, “I suggest you find your words in fairly short order, because if you don’t, I’ve got a panel of members sequestered back there I’m about to call back in here to finish the case. In other words, the ball’s in your court. Speak now or forever hold your peace.”

  Levinson nodded, then seemed to find a miraculous cure for his speechlessness.

  “First off, Your Honor, I have a hard time believing the prosecution, in a case of this magnitude, discovered this information just last night.”

  “Mr. Levinson,” Reeves said, “I’ve known Lieutenant Brewer for several years, and if he represents to the court that he was not aware of this until last night, unless you have evidence to the contrary, I have no reason to disbelieve him. Now if you have any motions to make, I will entertain them. If not, we’re moving forward.”

  Levinson displayed a bit of a scowl, as if irritated that Judge Reeves wouldn’t tolerate his grandstanding. “Your Honor, the defense moves to dismiss all charges and specifications against my clients at this time. In the alternative, we move for a mistrial.”