High Crimes

“You won’t find ’em all,” Grimes said. “These guys disappear, sometimes.”

“Ray’s good,” she said.

“They’re better.”

“You think we can trust them in the discovery process?” Claire asked. “To give us everything we ask for?”

Embry hesitated. Grimes said, “Can you ever trust your opponent in discovery? In the real world, I mean?”

“Not always,” she admitted. “It’s always a question.”

“There you go,” Grimes said.

“But the Brady rule requires them to give us all exculpatory evidence, anything that might indicate Tom’s innocence,” she said.

Grimes chuckled.

“You don’t trust them,” Claire said.

“It’s why I have a job, baby,” Grimes said. “It’s what keeps the big bucks rolling in.”

“If we don’t get everything the prosecution has,” Claire said, “we got ourselves a mistrial.”

“If we can prove it,” Grimes said.

“Terry,” she went on, “I want you to do a complete search through the Iran-Contra hearings and the United Nations reports on abuses in Central America in the nineteen-eighties. See if there’s any mention of the massacre at La Colina.”

Embry jotted a note.

“All right,” she said, “we’re going to request that all charges be dismissed. We’re going to argue that the government has no jurisdiction, since we were in an area we weren’t supposed to be in. The government, in effect, has unclean hands.”

“But what about the desertion charges?” Embry said. “You’re not going to contest those, are you? I mean, he destroyed his military uniform and his IDs — he obviously had no intent to return.”

“Least of our problems,” she replied. “Our defense is duress.”

“Duress?”

“Desertion is a specific-intent offense. That means his intent counts, right? Well, he feared he’d be killed — whether he would have been killed or not, it’s a valid defense, as long as we can show the defendant had a good-faith belief he’d be killed. Maybe we can get it dropped to ‘unauthorized absence.’”

“It’s not the ‘defendant,’ it’s the ‘accused,’” Grimes said. “It’s not the ‘prosecutor,’ it’s the ‘trial counsel.’ You’ll get the hang of the lingo.”

Claire flashed Grimes a sulfurous look of annoyance. “Thanks. Basically, we’ll prove that the U.S. government is trying to make Tom the fall guy for a gruesome government-sanctioned massacre.”

“Baby, you can argue all you want,” Grimes began, back to inspecting the ceiling.

“You say the 32 hearing is for scoping out the government’s case,” Claire said. “Well, here’s how we’re going to use it. To let them see we know how to play the hard way, that we intend to play the hard way. That if they go ahead with this kangaroo court-martial, we’re going to bring out the shit they never want out. We plan to embarrass the hell out of them. We’re going to graymail them. Bring out operational info, stuff they don’t want out in the daylight.”

“It’s a closed proceeding,” Embry objected. “Both this hearing and the court-martial that may or may not follow. Totally sealed.”

“Closed?” Claire said. “We leak. No such thing as an airtight trial.”

Grimes chuckled dryly.

“Leak?” Embry asked, horrified. “But we signed a nondisclosure agreement. If we leak, they’ll do an investigation, and we’ll all be up on charges—”

“Hey, you wanted the case, right?”

“Well, no, ma’am, as I told you—”

“Claire.”

“Ma’am?”

“Call me Claire. And don’t sweat it. Leaks are almost impossible to prove, as long as you’re careful about where you call from. And if they can’t prove it, it goes nowhere. Anyway, then we’re going to argue against this closed-courtroom bullshit. We’re going to argue Tom’s Sixth Amendment right to a public trial, and the public’s right to a public trial.”

“And they’re going to argue national security,” Grimes said, now sitting up, drawn into the game.

“So we file an extraordinary writ for an open trial. We go to the federal district court.”

“They’ll say, ‘We’re not going to intervene in a military matter,’” Grimes said.

“So we file an extraordinary writ for an open trial with the Army Court of Criminal Appeals. And the Court of Appeals for the Armed Forces. And then the goddamned Supreme Court. And let them try to argue national security — I’m going to argue that the operation is no longer ongoing, hasn’t been for years. That they’re just trying to protect the reputation of the Pentagon. Where’s the national-security interest? They want to have it both ways — protect the national security, yet prosecute my client.”

Grimes nodded slowly, rhythmically. A smile crept across his face. Embry watched her, panic-stricken.

“And you see if the government really wants to go ahead with this court-martial,” Claire said. “I’ll bet they lose their enthusiasm.”

“Claire,” Grimes said, “do you really want this trial open?”

She considered for a long moment. “I don’t, do I? In a sense, we’re trapped. I don’t want Tom’s name smeared. Once the charges are out in public, that’s it. They’re accepted as true.” She nodded. “You may have a point, Grimes. But I’ll tell you something else. We’re going to call General Marks to testify.”