High Crimes

“Yet the government has reason to believe that the defense may attempt to ‘graymail’ the government,” Waldron continued, “by threatening to leak classified information, in order to obtain an unfair advantage in this court. Or they may even be planning to selectively leak information to try to sway public opinion in their favor — which would be a total violation of the nondisclosure forms they have signed. I’d like to request that, in the interest of the fairness of this proceeding, you order the defense counsel not to make any leaks to the press.”

Claire and Grimes stared at each other, astonished. How much did Waldron know about their intentions — and was it Embry who had told them? Who else could it be?

“Uh, yes,” Colonel Holt said. “Counsel, you are reminded that this is a classified proceeding and you are counseled not to make any statements to the press.”

Claire stood up. “Sir, I appreciate your admonition, but as you well know, my cocounsel Mr. Grimes and I, as civilians, are not subject to your orders. I’m sure my military cocounsel, Captain Embry, will abide by your orders. But we have all signed a nondisclosure-of-classified-information form, and we intend to abide by that agreement. Anything else concerning this matter that you choose to instruct us with, sir, we will take for informational purposes only.”

The investigating officer glowered at her. After a significant pause, he muttered, “So noted. Does government counsel have, at this time, a list of prospective witnesses they intend to call?”

Captain Phil Hogan replied, “Mr. Investigating Officer, at this point the government anticipates calling Colonel James Hernandez and Chief Warrant Officer Four Stanley Oshman.”

“Who’s that last one?” Claire whispered to Grimes.

Grimes shrugged. “No idea,” he said.

“Okay, Captain Hogan, Major Waldron, would you like to begin your case in chief?”

Waldron stood. “Sir, the government offers Investigative Exhibits 2 through 21, copies of which have been provided to defense counsel for inspection and possible objection, and requests that they be considered by the investigating officer.”

“Defense counsel?” Colonel Holt asked.

“Uh, yes, sir,” Grimes said. “We object to the admission of Investigative Exhibit 3, a CID statement regarding my client’s alleged misconduct involving a neighbor in North Carolina in 1984.”

“On what grounds?”

“On the grounds that it deals with uncharged misconduct that’s not relevant to this case. It’s also improper character evidence. No charge was ever filed over this alleged incident — which we dispute anyway — and the statute of limitations has expired. Therefore, we object under Military Rule of Evidence 404(b) and 403. This uncharged misconduct has no relevance whatsoever on whether my client murdered eighty-seven civilians in El Salvador. The government is simply and obviously attempting to admit this phony evidence for the sole purpose of impugning my client’s reputation at this hearing.”

“Trial counsel, how is this relevant?” Holt asked.

“Sir,” Waldron replied, “we’re offering this other act of killing, the killing of a dog, not to show the accused’s propensity—”

“Hold on,” Holt said. “The killing of a dog?”

“Alleged,” Tom whispered. Indeed, Devereaux had been unable to get any information on the incident, or on the alleged neighbor.

“Yes, sir,” Waldron continued. “Not to show the accused’s propensity to commit murder, but that the accused is able to form a premeditated design to kill.”

Whatever that means, Claire thought.

There was a long silence.

“I’m going to agree with defense counsel,” Holt said at last. “This is an extrinsic act of misconduct that’s not relevant to any of the elements of the charged offense, and I am not going to consider them. Trial counsel, you may not present that evidence.”

“Yes, sir,” Waldron said neutrally, betraying no disappointment.

Grimes smiled. “We also object to Investigative Exhibits 6 through 11,” he said. “The sworn CID statements allegedly given by six other members of my client’s Special Forces unit, Detachment 27. It ain’t easy to cross-examine pieces of paper. Where are these other six men?”

“Trial counsel?” Holt said.

“Sir, several of these men are deceased. As for the others, we are only required to produce witnesses who are ‘reasonably available,’ that is, located within one hundred miles of the site of the hearing. The others are at the moment unavailable under Rules of Courts-Martial four oh five golf one alpha.”

Holt hesitated. “All right. I’m willing to consider these sworn statements alone. If there are no further objections, trial counsel, you may call your first witness.”

Waldron called out — sang out, really: “The government calls Colonel James Hernandez.”

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