“Hey D, you got a minute?” I looked up from behind my computer. I must have betrayed a look of impatience, because Justin looked back at me and said “What?”
“I’m sorry, man. Sure, what’s on your mind?” I pushed back from my desk and he leaned against the wall, all six-foot, two-hundred five pounds of him. Justin Constantine and I had gone to Naval Justice School together back in Newport, Rhode Island. All of the sea-services, the Navy, Marine Corps, and the Coast Guard, send their lawyers to NJS for ten weeks of training in military Administrative law, Criminal law, and Civil law, with a heavy emphasis throughout on practical application and trial advocacy. I hadn’t known Justin that well as he was a new First Lieutenant and I was a relatively senior Captain, a year or two away from being on the selection/promotion board for Major. Despite that, when we found out that we both had orders for Okinawa (as did another classmate of his) out of Justice School, I made an effort to take them under my wing. As it turned out, Justin and I both got orders for the Defense shop and we found out we had rugby in common. After some long days as brand new criminal defense attorneys, we also found our common love of drinking together.
“Well, you know I got detailed to those three anthrax refusals from up North, right?” I nodded in reply. ‘Up north’ referred to Camp Hansen, about an hour north from where we were at Camp Foster. While Camp Foster contained a lot of headquarters and support units, Hansen tended to have combat units like infantry battalions, an artillery regiment, and other front-line trigger-pullers. My assigned office was technically up there in the smaller Legal Services Support Team building, but I kept getting assigned cases in the south because of the fact that the Third Marine Air Wing was there and my boss always seemed to think me being a former pilot would somehow help the Marines who got into trouble in the Wing. It didn’t seem that way to me.
I knew all about the anthrax cases up north; in fact, I had lobbied our boss, Major John Woodworth to give them to Justin.
“J.R., I know Justin is new, but he’s solid, and I have the other anthrax cases. These are a great way for him to get his feet wet and we can work on them side-by-side.” I was sitting in the one other chair in his small office in the Defense wing of the Legal Services building. I presumed to use his first name in private because we had known each other on a first name basis when we had both been Captains; I was interning as a prosecutor at Camp Lejeune at the time, a couple of years earlier.
The vagaries of our different career tracks made him senior to me, although I had been commissioned the same year he had. In order to recruit lawyers, the Marine Corps, and all of the armed services, have to offer incentives because there I no way that the pay of an officer is comparable to what an attorney could get on the open market. One of the ways to make up that deficit is through a fiction known as “constructive service.” An attorney who signs up at the beginning of law school actually gets a reversion back to the date they signed up once they’ve completed training, which means that upon completion of Basic School and Justice School, a guy or gal with only months in service gets promoted to First Lieutenant and then is in zone for Captain, something that usually takes four to five years for the “normally” accessed officer. This occasionally creates friction within the Marine Corps’ rigid hierarchy because a Marine lawyer walking around with Captain’s bars may have 9 to 18 months of actual, real-life experience and time in the Corps, compared to a ‘regular’ line officer Captain who has been through two promotion boards, several deployments, and could have as much as eight or nine or ten years of service. After a few years it all irons itself out, but it’s a difficult row to hoe for new attorneys, too. They’re occasionally treated as ‘less than’ officers by those who know the system.
“Well,” J.R. had begun in his usual southern twang, “he’s gotta mind his clients, and you gotta mind yours, but these should all wind up as Summary Court, Board waivers anyway. Help him out and let me know how it goes.”
“Wilco, sir. Thank you.” I stood up to attention in front of his desk briefly, spun smartly on my heel and toe as if we were doing an about face on the parade deck, and marched out of his office in an exaggerated high step, to his snickering.
Now with Justin in front of my desk, I squinted to think of the case names.
“Stone-something, right? Not Stonehenge, but…?” I tried to remember from our last defense meeting.
“Stonewall,” Justin supplied, either missing or ignoring the joke. I knew something was on his mind. “I just got a call from one of my clients. You’ll never believe what happened.”
“Your guy confessed to the Kennedy shooting?” I didn’t even smile. He looked frustrated in return. “Okay, okay. I’m sorry. What happened?”
“All three of my guys got called into a meeting with the Commanding General for Third MarDiv.” I raised my eyebrows and sat forward. It wasn’t often that our clients got called into the Division Commander’s office for a chat. “So, of course, the Sergeant Major’s in there, the Division SJA—”
“Colonel Favors was in there?” I asked, incredulous. I was curious why the Staff Judge Advocate, a lawyer, for the entire Third Marine Division would need to be in there to talk to three anthrax refusers.
“—the regimental or battalion surgeon, and maybe one other CO, either Battalion or Company CO.” Justin finished and let that sink in.
“Okay, you got me, I give up, why the fuck was the CG, Third MarDiv talking to one of your anthrax refusers?”
“Get this, they all were sitting out in the hall or waiting area and they get called in and have a talking to from the CG about why this vaccine is completely safe, and why won’t they take this? and all this dis-information out there on the internet is just hype and conspiracy theorists and, now for the money ball, if they’ll just take this shot, all will be forgiven. No court-martial; no NJP; nothing. The whole unfortunate incident will be put behind them.” Justin had a deep, gravelly voice and everything he said tended to come out flat and monotone. A long time of hanging around him had taught me the subtle nuances of that monotone. I saw where he was heading.
“And no one ever called you, their lawyer?” He shook his head slowly from side-to-side. I whistled slowly and rocked back in my chair. “They’ve got charges preferred already, right?”
Justin nodded.
“Yep.”
There were several troubling things about that scenario from a defense counsel’s perspective. First, Commanders of units are the persons who actually create the courts in the military. They have incredible discretion to either prefer (bring) charges against a member of their unit or not, based on how they see the particular offense, after an appropriate investigation has been done. Convening Authorities also grant search warrants, select the jury pool, can grant clemency after a court-martial and lessen the sentence a judge or jury awards, although they cannot increase the punishment. As a result, charges and dispositions can vary widely from unit to unit, depending upon how serious the particular commander views the offense. Prosecutors (known as ‘trial counsel in the military) and staff judge advocates provide advice to commanders and tend to buffer some of the differences out, but there can still be wide divergence on particular charges.
That all said, Commanders generally stay out of the process once charges have preferred in order to avoid the appearance of impropriety and subject themselves to an unlawful command influence motion or make themselves into witnesses at a motions session. There are also, for all lawyers, some fairly strict rules of professional conduct for dealing with persons who are already represented. The general practice is generally do not talk to a criminal defendant who is already represented without consulting his attorney first. It just invites trouble.
I was a bit shocked to hear that the SJA for the Division was present while the General talked to a criminal defendant about the charges he was currently pending, without even notifying his attorney. Furthermore, the charges in the anthrax refusal cases were not even convened by a General court-martial – that is, a court convened by a General officer – they were brought at a Special court-martial, a lower forum convened by the Battalion commander, where the accused could receive no more than 6 months confinement, forfeiture of 2/3 pay per month for 6 months, reduction to the lowest enlisted paygrade, and a bad conduct discharge. A General Court-Martial can award any punishment authorized for the particular offense, including death.
“And get this,” Justin went on, “I heard from some of my sources that the CG was basically asking them ‘why don’t they trust him’ and shit like that. One of my guys is a Sergeant and finally caved in, crying or very upset, after this long heart-to-heart and agreed to take the shot, so the surgeon took him right on the spot to medical.” Now Justin’s voice had a real edge to it. “Do you believe that?!”
“Curiouser and curiouser,” I answered. Justin looked at me and then caught on.
“Alice in Wonderland?” he mouthed. I nodded.
My mind was trying to process what this meant, but more importantly, I was trying to find an angle that would help Justin’s clients. I was stumped. I enjoyed these sessions we had in defense, frequently bouncing ideas off of one another to help focus our thinking. Justin’s thought process, I had found, frequently mirrored my own. “Let’s ask Hites,” I said finally. Although I had over eight years on active duty, I was as new as Justin as a lawyer, and I couldn’t think of a rule or regulation that had technically been violated, so it was time to ask someone with more experience.
Major John Hitesman graduated from the Norwich Military Academy a year before I graduated from Boston University. Like me, Hitesman had a “life” before becoming a lawyer. He had been a “grunt”, an infantry officer, stationed in Hawaii before getting picked up for the Funded Law Program. Okinawa was his first tour as a lawyer, but he had been a defense attorney there for two years straight. He had a phlegmatic personality, utterly unflappable in my experience with him. He was also one smart cookie and he and I had become fast friends, especially after we talked and I found out he played ice hockey at Norwich and had found a local pickup league in Naha.
Given that we were peers, more or less, even though he had pinned on Major already and become a field grade officer, we would alternate driving to play ice hockey together every Thursday night. I enjoyed the conversation on the rides with him almost as much as playing ice hockey. At six-foot-two, two-hundred and fifteen or so pounds, Hites looked like a linebacker, but he was an agile skater and good stick-handler. At five-six (on a tall day), I was shorter than most of the Okinawans we played against and I always appreciated playing on a line with a little beef.
When John came in to the office, he looked at Justin.
“What’s going on? Barney told me your clients got pistol whipped this weekend.” John was one of the few people who addressed me by my call sign from when I was a pilot. When I first moved into the office next to his, I put up a framed print of an AH-1W SuperCobra attack helicopter that most of my squadron had signed for me as a going away present. On the plate it had my name, call-sign, and a quote from my fellow pilos: “Shakespeare was Right.”[1] I later got a picture nailed to my door in my office on Camp Hansen that was a picture of Fred Flintstone and Barney Rubble, with “Hitesman” and an arrow pointing to Fred and “Saran” and an arrow pointing to Barney.
“Sir, I don’t know if Captain Saran told you, but something weird happened this weekend with my clients and I’m not sure what to do about it.” Justin related the story quickly and Hites listened with his hands laced in front of his face, moving his head only to spit some tobacco juice from the wad occupying the left side of his mouth, into a Styrofoam cup.
“Well, I’ll play devil’s advocate, here. Why can’t a CO call in one of his Marines and talk to him? What’s wrong with that?” Justin seemed a little put off by the question. I was, too.
“I’m not sure,” he began, “that’s why I asked.”
“I can think of a few,” I piped up. “He’s already represented, there are charges pending, he’s the Convening Authority’s direct superior, and it all-around stinks.” Hites barely looked up at me.
“I might agree, but what kind of relief are you going to get? I mean, how do you frame this in a motion and what do you think one of our judges is going to say? What would you ask for?” Hitesman’s pragmatism stung me into silence. He was right. There was a long pause.
“I suppose you could write a letter to the SJA’s state bar because I think there is an ethical problem that she should know about with her being in there and allowing the CA to question your clients. But then again, the JAG Instruction is only for attorneys, not to Commanders, and same for the rules of professional conduct. And why wouldn’t a Commander have his attorney in there as a witness? Did she ask any questions of your clients?” Hites turned to Justin.
“No, sir, I don’t think so. I think she was just in there.” Justin stood against the wall with his hands behind his back looking at the rug. I was still mulling over John’s point. Something about it didn’t smell right, particularly given the fact that Sergeant Terveen, one of Justin’s clients, had changed his mind under what seemed like pretty coercive conditions. Terveen, Justin had told me, had less than a year before he was getting out and decided the hassle wasn’t worth it. The other two, a Lance Corporal and a Private First Class, had stuck to their guns. That was probably more impressive than anything else about the story.
“The only other issue is whether or not they were warned of their rights.” Hites looked at Justin who shrugged his shoulders. “If they weren’t warned, none of their statements are coming in at court, but the prosecution probably won’t use them anyway and doesn’t need them. I’m sure they can prove they were given the order, didn’t take the shot, and don’t need any subsequent statements your guys might have made in this meeting. Arguably, they knowingly violated his rights if they didn’t read him his rights and that’s an offense under the UCMJ, but that’s a stretch.” Hites waited a minute and then took a step toward the door.
“It’s just so fucked up, though,” I said. “I mean, how coercive an environment is that? The CG himself is there telling you that everyone else is full of shit, along with the Sergeant Major, the CO, the Doc. And then the guy caves and he’s immediately given the shot while he’s still in friggin’ tears. Something somewhere tells me that’s not right.” I wasn’t sure where I was going, but it just didn’t sound right.
“It sucks, gents, but welcome to criminal defense in the USMC on the island of Okinawa.” Hitesman slapped me on the shoulder as he went by. “See ya’ Thursday, Barn. You driving this time?” I nodded a couple of times in response and murmured “mmhmm.”
Justin looked at me after John was gone. He let out a long breath.
“God, I love the Marine Corps,” he said in a drill instructor voice. I was bothered by it all, but I didn’t have any answers.
“Well, how’s Petty Officer Ponder’s case going?” Justin asked. “Did his CO ask him to come in and have a chat?” I chuckled slightly. Suddenly an idea came to me.
“Hey, you know what. I’ve got a bunch of anthrax info from Sonnie Bates’s attorney that I’m supposed to look through. Why don’t you have one of your guys submit an Individual Military Counsel request for me? Then, we can put our heads together on one case and use what we do there on the other two cases individually?” Justin nodded.
“Sure. Is any of the information helpful?”
“Yeah, it looks pretty good, but I’m not going to get my hopes up yet. I have to figure out what an ‘investigational drug’ is and research this statute, but it worked for Sonnie Bates, so… maybe it’ll work for our guys.”
“Sure it will,” Justin deadpanned. This time I couldn’t tell if he was being sarcastic or earnest.
