Treason

by Don Brown

  “Very well.” Captain Reeves turned to the court reporter. “Madam Court Reporter, let the record reflect that the defense has moved to dismiss, or in the alternative, for a mistrial at 0905 hours, local time.” Reeves looked back to Levinson. “Mr. Levinson, would you care to state your grounds?”

  “Yes, Your Honor.” Levinson flattened his tie and buttoned his suit jacket. “As the court is aware, the United States Supreme Court has held, in the landmark case of Brady versus Maryland, that the right to a fair trial means the government has a responsibility to provide discovery to an accused, and must reveal exculpatory evidence which may lead to an acquittal. In this case, we served discovery on the government demanding all such information, and we did so prior to trial.” Levinson scowled.

  “And while I’m no expert in military law, I do know military courts are subject to the United States Supreme Court, and the full-disclosure and discovery principles of Brady versus Maryland apply to cases tried under the Uniform Code of Military Justice.”

  “You are correct about that, sir,” Reeves said.

  “Having said all that—even if there is no prosecutorial misconduct in this case”—Levinson stared at Brewer as if he was lying about the belated discovery—“this information was clearly in the government’s control. It was in the control of a government agent and was hidden, illegally, by a government agent. It isn’t the fault of my clients that this Mr. Kilnap chose to kidnap his information and not make it available—”

  “Mr. Levinson,” Judge Reeves interrupted, “even if you had this information before trial, how would it have helped your clients?”

  “Fruit of the poisonous tree. Kilnap bugged my client’s car without a warrant. Without probable cause. He learned of the meeting at Shoney’s as a result of this illegal search. Therefore, because the first search was illegal, the tape-recorded conversations at Shoney’s were illegal, and everything else from that point should be thrown out of court. We wouldn’t be here today without those tape recordings, Your Honor, and they all stem from this illegal search. You should throw the government’s case out. Alternatively, you should grant a mistrial. But even if you do that, my clients’ right to a speedy trial would be violated, and you should still dismiss.”

  Reeves turned to Zack, who felt a cold sweat beading in the palms of his hands.

  “Lieutenant Brewer, I must confess that I am troubled by Mr. Kil-nap’s actions. Tell me, why should I not grant Mr. Levinson’s motions?”

  Zack rose to his feet. “Two words, Your Honor. Inevitable discovery.”

  “Want to be heard, briefly, on that?”

  Lord, help me.

  “Yes, Your Honor. As you know, the United States Supreme Court has also held that even if certain evidence is tainted, the fruit of the poisonous tree doctrine will not apply if there would have been inevitable discovery of the evidence.”

  “And you’re saying that’s the case here?”

  “Yes, Your Honor. Because the undisputed evidence shows that Kil-nap started following al-Aziz before he intercepted the phone calls and that he kept al-Aziz in his sight the entire time. From the time he left base till the time he arrived as Shoney’s. Kilnap would have followed alAziz into the restaurant, a public place, and would have conducted surveillance whether or not he overheard the first telephone call. In other words, discovery of the conversation at Shoney’s, where Reska acknowledged this glorious mission for Allah, would have occurred even without first interception.”

  Reeves leaned back and crossed his arms. “So by arguing inevitable discovery, are you in essence conceding this initial search was illegal, Lieutenant Brewer?”

  Zack stood behind the counsel table and carefully weighed his response. “Your Honor, we do not concede. Whether the search was illegal or not is for the court to decide, not us. What we are saying is given the posture of this case, even if the court finds a problem with Mr. Kil-nap’s initial activities, the tape recording at Shoney’s would have been made anyway. And Shoney’s is a public place, where there is no reasonable expectation of privacy, and where a warrant is not required.”

  Captain Reeves, his arms still crossed, turned to the window for a moment, his expression showing deep contemplation. He seemed unaware that his image was being beamed all over the world via satellite. After thirty seconds or so, he turned back. “Here’s what I am going to do, gentlemen. First, we are going to bring Mr. Kilnap back in here, and I am going to question him about what happened, outside of the presence of the members. Then Mr. Levinson will be allowed to ask questions, followed by Lieutenant Brewer.”

  Zack and Diane locked gazes.

  “Then, unless the defense objects, I will require that the government recall Mr. Kilnap in the presence of the members. Questions will be limited to the subject we have just been made aware of, namely the search of al-Aziz’s car and his following al-Aziz to Shoney’s. Mr. Levinson may cross-examine Mr. Kilnap on the subject if he so desires. If the defense objects, I will not require that Mr. Kilnap be called for more testimony in the presence of the members. In other words, Mr. Levinson”—Reeves looked directly at the famous defense counsel—“it will be your choice as to whether Mr. Kilnap will be recalled for more testimony in the presence of the members. Finally, I will let the government proceed with its case and finish its case today if that is possible.”

  Zack heard reporters and spectators whispering behind him as the captain continued. “I am going to hold Mr. Levinson’s motion in abeyance overnight and render a decision in the morning.

  “If I grant the motion, this case will be over.” Louder mumbling rose from the gallery. “If I do not grant the motion, we will proceed. In any event, be prepared for closing arguments tomorrow. Any questions?”

  “No, sir, Your Honor,” Zack said.

  “No, Your Honor,” Levinson said.

  “Very well, court is in recess.” Two whaps of the gavel followed.

  “All rise.”

  CHAPTER 59

  Council of Ishmael headquarters

  Rub al-Khali Desert

  250 miles southeast of Riyadh, Saudi Arabia

  Fourteen hours later

  Abdur Rahman stepped into the intelligence room at the Council of Ish-mael headquarters. There were no windows in the huge tent. Fluorescent bulbs were lit by a portable, solar-powered generator. The compound’s powerful air-conditioning system was most effective here, making the room chilly most of the time. About a dozen or so turban-clad Arab brothers, functioning as council intelligence officers, manned their monitors, collecting data on Council operations around the world. Others fed classified paperwork into shredders and burn bags.

  Abdur watched as the laser printer spat out the Internet report he had come for. He waited for the final page to land in the printer bin, then grabbed a stapler and attached the three pages in the upper right corner with a single squeeze, transforming the pages into a single document. A moment later, he stood in the doorway of the leader of the Council of Ishmael.

  “Brother Abdur.” Hussein al-Akhma spoke in Arabic, looking up from behind his desk. “You bring news of the legal and religious persecution of our brothers in America?”

  “Leader,” Abdur said giddily, “our Jew lawyer has them twisting in the wind. Now the American Navy judge speaks of dismissing the case. Read this, my leader.” Abdur slid the Internet news report across Hussein’s desk. His leader read the report, smiled, and burst into hearty laughter.

  “Who can understand these foolish Americans?” Al-Akhma chuckled. “Even their military justice system is rife with confusion.”

  “Perhaps Allah throws confusion into their system, leader. Your vision of beating them with their own rules seems at hand.”

  “I cannot take all the credit, Brother Abdur. After all, you suggested hiring the Jew lawyer. You personally negotiated our contract with him. We appear, as the Americans say, to be ‘getting our money’s worth.’”

  The rare compliment made Abdur’s heart swell with pride. “
The moment of victory is close at hand, my leader. All credit given to me is bestowed on Allah.”

  “Spoken as a true Muslim.” Hussein al-Akhma looked at his watch. “Isn’t it about time for that American nightly news show?”

  Abdur motioned his leader into the Council’s communications hub, where several dozen computer monitors were logged on to Internet sites from around the world. He typed in the Web address for the show. A moment later, the face of the American anchorman appeared on the screen.

  “I’m Tom Miller reporting from San Diego, and this is NightWatch.

  “A double whammy was delivered today in the Navy court-martial of three Muslim chaplains accused of treason, murder, and conspiracy to commit murder, and the whammy was delivered against the government.

  “First, newspaper reports surfaced disclosing that the Navy’s lead prosecutor, Lieutenant Zack Brewer, may have had an affair with an enlisted woman, which if true, is in violation of the military’s prohibition against officer-enlisted fraternization.

  “But the big bomb, delivered by Lieutenant Brewer himself, revealed information that the government’s lead investigator, Special Agent Harry Kilnap of the Naval Criminal Investigative Service, may have illegally bugged a car, which was not revealed to the defense until yesterday. The government finished its case today. But tonight, Captain Richard Reeves, the Navy judge overseeing the trial, is seriously considering a motion to dismiss all charges against the chaplains. When we come back, our two legal experts, Jeanie Van Horton and Bernie Woodson, will help us make sense of the new developments.”

  “Praise be to Allah,” Abdur said as the commercial break started.

  “Blessed be the prophet,” said a voice from over Abdur’s shoulder.

  “Peace be upon him,” said another.

  Abdur looked around at the dozen or so Council operatives, wearing white turbans and desert garb, who had gathered behind him, their eyes on the monitor. Several other monitors were logging on to the broadcast as the operatives took their place in front of the screens.

  Tom Miller’s face reappeared.

  “Will Navy Captain Richard Reeves, the military judge in this case, dismiss all charges against three Navy chaplains in the most publicized court-martial in history? That is the question hanging over America tonight, and that is the question we pose to our two legal experts, Jeanie Van Horton and Bernie Woodson.

  “And we’ll start with you, Bernie. Will Judge Reeves really throw this case out?”

  The screen switched to an African-American correspondent, who adjusted his earpiece and, with his characteristic stone face, looked into the camera.

  “Good question, Tom. The United States Supreme Court has held that a right to a fair trial is a fundamental right to our system of government. A fair trial means the government cannot hide information from the defense that may exonerate the defendant. This whole business of bugging the car was concealed from the defense until the middle of the trial. And the government just can’t do that.

  “This is where the prosecution’s case, at least in my judgment, is vulnerable, Tom. Judge Reeves appeared visibly upset by the revelation that Kilnap planted a bug and didn’t reveal it, although he let evidence progress and will make his ruling in the morning. Mr. Levinson is arguing ‘fruit of the poisonous tree,’ a doctrine upheld by the Supreme Court which says evidence discovered because of tainted evidence—in this case, the audiotapes we’ve heard so much about—should be thrown out.”

  The picture on the screen split with the blond former federal prosecutor on the left and the wise-looking, stone-faced African-American journalist on the right.

  “Jeanie Van Horton, can the prosecution counter this fruit of the poisonous tree argument?”

  “Tom, the prosecution counters that with another Supreme Court doctrine, the ‘inevitable discovery doctrine,’ which says even if you have some evidence that has been illegally obtained, you don’t have to throw out the baby with the bathwater, for lack of a better term.”

  The screen switched to Miller. “Jeanie, is the Navy upset Brewer revealed this information?”

  The blond reporter reappeared. “Tom, the Navy issued a statement late this afternoon expressing its confidence in Lieutenant Brewer. If high Navy officials are upset that Brewer revealed this, they’re not saying. I’m sure they’re not happy about it, but he did have this duty as prosecutor.”

  “Bernie, assume the judge denies the defense motion. Based on the quality of today’s evidence, how’s the government doing?”

  Another head shot of Woodson appeared. “Fairly well, Tom, although perhaps not well enough to secure a conviction. Today the prosecution called a parade of witnesses, but perhaps the most significant was a voice recognition expert who gave his opinion that all the voices on the tapes were those of the three defendants.

  “Of course, Levinson was effective on cross-examination when he got the expert to admit he couldn’t say with ‘100 percent certainty’ the voices were those of the defendants. And, of course, Levinson scored a direct hit when Agent Kilnap was recalled to the stand. Levinson pounded him repeatedly, suggesting Kilnap had lied out of his zeal to secure a conviction.”

  “Jeanie, does this case remind you of any other high-profile cases we’ve ever seen?”

  The screen switched to a smiling, nodding Jeanie Van Horton. “The one coming to mind is the Simpson murder trial, where the lead government investigator in the case, Detective Mark Fuhrman, was pummeled in the middle of the trial when allegations of racism suddenly surfaced. The defense in that case successfully turned the trial into a referendum on Fuhrman’s credibility. If Judge Reeves does not throw this case out, you can bet that Wells Levinson may try a similar tactic with Kilnap.”

  “All right,” Miller said, “we’ve got to take a break. When we come back, we’ll look at official reaction from Washington about today’s events.”

  “On your knees, oh brothers of the Council of Ishmael!”

  Abdur turned. Hussein al-Akhma stood in the middle of the room, holding his arms in the air.

  “To your prayer mats! On your knees to Allah! Let us praise him for his beneficence! Let us plead with him for justice!”

  Computer monitors shut down as prayer mats were rolled out all over the floor. Moaning wails, the sweet sound of Arabic prayers, soon filled the Council of Ishmael headquarters.

  CHAPTER 60

  Navy-Marine Corps Trial Judiciary

  Building 1

  32nd Street Naval Station

  San Diego

  Day 3, 0915 hours (PST)

  The ticking from the ornate nautical clock, hanging on the wall behind the still-empty bench, echoed through the courtroom. From his chair at the counsel table, Zack passed the time exchanging an occasional “What’s going on here?” glance with Diane and jotting notes on his legal pad for his closing argument. If there was one.

  Captain Reeves had already kept the crowded gallery waiting forty-five minutes beyond the announced start time for this morning’s session. Thirty minutes ago, the courtroom bailiff sent word to the attorneys and the press that Reeves was in the building, in his chambers working on his order. After that, nothing.

  Zack’s command had been eerily silent about the Kilnap disclosure. As well they should. No point in raising allegations of unlawful command influence. Still, it would be nice to get a “You did the right thing, Lieutenant” from somebody. Commander Awe. Captain Rudy. Anybody.

  “All rise.”

  Zack inhaled deeply as Reeves walked in.

  “Please be seated and come to order.”

  I don’t mean to put pressure on you, son, but we cannot lose this one. Understand? Captain Rudy’s words raced through Zack’s mind for the hundredth time since yesterday morning.

  Diane gave his hand a warm squeeze, shot him a smile, then quickly let go.

  “The record should reflect that the court has made a decision with regard to the defense motions to dismiss, or in the alternative, for a mistrial.”
Reeves spoke slowly, without emotion. “Before I announce my decision”—Reeves paused and removed his glasses—“I remind our guests and members of the media that this is a court of law, and whether you agree or disagree with my ruling, I caution spectators against any type of verbal or physical reactions or displays in the courtroom. The time and place to react, if you feel compelled to do so, is outside. United States Marines will remove anyone disrupting the court. Enough said.”

  This did not bode well. Zack leaned forward in anticipation.

  “Very well.” Reeves put his glasses on and tilted a legal pad slightly upward. Zack knew it contained the handwritten order he was about to read.

  “Madam Court Reporter, in the general court-martial of United States versus LCDR Mohammed Olajuwon et al., the defense has made a motion to dismiss, or in the alternative, for a mistrial based upon certain actions of the government’s principal investigator in first planting a recording device in the car of a naval member, receiving and taping transmissions from that car, and then failing to inform the defense in a timely manner.

  “Defense counsel points out, correctly, the premise set forth by our Supreme Court in the landmark case of Brady versus Maryland that law enforcement officials and prosecutors must divulge exculpatory information to the defense, and must do so in a timely manner.

  “In the military justice system, there is an even broader right to discovery available to defendants than in civilian federal courts under the Brady decision. The Court of Military Appeals has reaffirmed this principle in several decisions, including United States versus Eshalomi, United States versus Dancy, and United States versus Simmons.

  “Article 46 of the Uniform Code of Military Justice allows the trial counsel and the defense counsel to have equal access to obtain witnesses and other evidence. This requirement is also found in the Rules for Court Martial, and Rule 701(a)(6) requires the trial counsel to disclose any evidence that would negate the guilt of the accused, reduce the guilt of the accused, or reduce the punishment.