“This court will come to order in the case of United States versus Petty Officer David M. Ponder, United States Navy, at Marine Corps Base Camp Foster, Okinawa, Japan.” I’m a little nervous, like I am at the beginning of every trial, but I don’t show it. It’s just an arraignment anyway. We’re mostly here to arrange dates for trial and I’ve already talked to the prosecutor, known as the “trial counsel” in military parlance, a professional Marine Captain by the name of Chris Kolomjec, and we’ve agreed to push the dates out a bit on this case. Like me, he had another specialty in the Marine Corps before becoming an attorney, so we have a collegial relationship. Chris is going on temporary duty to an exercise in Thailand called “Cobra Gold” and I’m in the beginning stages of a plan to plead this case out under very favorable terms if I can get in to see the Convening Authority – my client’s Commanding Officer – while he’s out of town. In courts-martial, the prosecution has one-hundred twenty (120) days to be ready to go to trial and the arraignment stops that clock from running.
In David Ponder’s case, stopping the clock is mutually agreeable, but we have to coordinate our plans with the judge’s trial schedule.
I put on the required lawyerly mask of indifference, but inside, my guts still twist a little. A trial is like the start of a “big” game in sports, except the stakes are a whole lot higher. I am, as one might expect, extremely competitive, particularly in sports, but I’ve played and lost enough games to have perspective – at the end of a game, even after a loss, nobody goes to jail, gets busted, kicked out of the service, or loses their pay. On the other hand, as a defense counsel I also have a standard line to my clients: “At the end of the day, I’m not the one going to jail. I’m going home to my wife and four daughters.” Notwithstanding this shpiel, I’m a bit new at this and keenly feel the punishment hanging over my clients, the mythical sword of Damocles hanging there, waiting to fall. One mistake on my part…. On the Defense side of the courtroom, it is your intellect, initiative, imagination – and a ball point and legal pad – against the resources of “The United States of America.” While it can be a unique intellectual challenge, it is also daunting because I am gambling with another person’s liberty. Anyone who ignores that is either another class of lawyer than I am or a fool.
I edge a little closer to Petty Officer Third Class Ponder, a sailor who refused the controversial anthrax vaccine. My move closer might appear to outsiders as a sign of my solidarity with my client; and in David’s case, it’s got some truth. We’ve only just met, but I like him. In most cases, however, being proximate to my client makes me feel less alone. I am six months removed from Naval Justice School, nine months from passing the Bar, eleven months from law school graduation, and a lifetime away from my former occupation in the Marine Corps as a Cobra attack helicopter pilot.
Captain Kolomjec finishes reciting his bona fides and how the court came to be created by the Commanding Officer of Naval Mobile Constriction Battalion Seventy-Four, Petty Officer Ponder’s C.O. This part really was boring, scripted, and I waited for my turn to speak.
“Captain Saran?” the military judge, Lieutenant Colonel Tim Miller, looked up from his Military Judges’ Benchbook in my direction, my cue to do my part.
“Sir, I have been detailed to this court-martial by Major J.R. Woodworth, Senior Defense Counsel, Legal Services Support Section, Third Force Service Support Group, Camp Foster, Okinawa, Japan. I am qualified and certified under Article 27(b) and sworn under article 42(a) of the Uniform Code of Military Justice.” I don’t need to look down at my trial guide for this, which is a script for Navy and Marine Corps trial proceedings for the repetitive parts in the process. It keeps everyone tracking where the trial is, but the real reason for it is to make for better records of trial. Anyone who receives a punitive discharge in the military gets an automatic appeal up to their service specific appellate court. Given the number of courts-martial in the military, this helps the appellate courts do their jobs. Arguably, it also helps the accused get a better, cleaner trial. The familiar recitation helps my nerves dissipate; I suspect it has something to do with being raised Catholic.
“I have not acted in any manner which might tend to disqualify me in this court-martial and no other defense counsel, either military or civilian, have either been detailed to or are on this case.” I start to sit down and then stay on my feet in anticipation of my client standing up when the judge speaks to him for the first time – just as I instructed him to do.
“Are you Petty Officer Ponder, the accused in this case?” David Ponder stands up to the position of attention.
“Yes, sir.” Firmly, not too loud, perfect. He looks good in his uniform, as well. I know because I inspected him myself before we came into court. The defense shop keeps an extra set of uniforms, spare ribbons and devices, and whatever else we can scavenge for when our clients are brought in by the chasers – military escorts – from the brig. They come over in those ubiquitous orange jumpsuits in shackles; while their units are supposed to provide the uniforms for them, we always wind up with clients missing ribbons and sundry uniform items, so we have a small stock available.
“Okay, Petty Officer Ponder, you may take a seat, and you may remain seated unless I otherwise direct you to stand.” Lieutenant Colonel Miller nods gently from behind his glasses. I notice he’s still rubbing his hand as he continues, a habit since the pins were removed. The judge flipped over the handlebars of his bike and busted his wrist up pretty badly and I knew the scar must itch where the pins had come out. Reconstructive shoulder surgery at 15 left me with an intimate understanding of that feeling.
We finish with the preliminaries; I rattle off all of the awards which David Ponder had earned during his three years as a Navy Seabee. The judge goes through my client’s rights to counsel, military and civilian, and then his own qualifications. He then gives us a chance to challenge him or ask any questions if we think he might be partial for any reason, a formality at this point, because I’m pretty sure that Lieutenant Colonel Miller isn’t even going to hear this case if we go to trial. He’s likely to pass it to Major Eric Stone, the other military judge on Okinawa, because of some scheduling conflicts with other cases in the Pacific region, which includes mainland Japan and Korea. We all do a good bit of traveling because of the odd and disbursed units that have occasional courts-martial, but the bulk of the work is on Okinawa.
I look over at my client; David Ponder looks young to me – and I just turned thirty. He has the beginnings of a moustache, but it’s just that, the beginnings. The good thing is that he likes to keep his hair short by Navy standards, which helps in a Marine court. He’s also a genuinely squared-away sailor. I liked him, which is supposed to be irrelevant to attorneys, but it’s not. Everyone gets the same level of representation; it’s just a question of whether you like defending them or not and whether or not you’ll feel badly if they’re convicted. It also helps in generating the emotional energy to work late nights and long hours cheerfully, as opposed to drearily.
“Petty Officer Ponder,” the judge breaks into my thoughts, “I now ask you how do you plead, but before accepting your pleas, I advise you that any motion to dismiss or grant any other relief should be made at this time. Captain Saran?”
I stand up, my stomach now fully settled, which is great because we’re just about done; we have our dates for trial, but I’m thinking this gets pled to a Summary Court martial, where my client can get no more than 30 days in the brig and no punitive discharge, but he’s probably going to have to waive his right to an Administrative Discharge Board and they’ll kick him out with ‘bad paper’ – an ‘Other Than Honorable’ discharge, which is like being fired from the military.
“Sir, at this time Petty Officer Ponder requests to defer entry of pleas and motions in accordance with the schedule the court has already set forth.”
The judge goes through the dates Kolomjec and I have already picked for motions, responses, witness requests, and discovery. All parties are agreed.
“Anything else from either party before we adjourn?”
“No, sir,” both Kolomjec and I answer after glancing at each other.
“Then this court is in recess.”
“All rise!” Kolomjec intones. I’m already on my feet and David joins me as the judge passingly says “Carry on” and departs.
As my client and I walk out, we almost bump square into David Allen, a reporter from the Pacific “Stars and Stripes.” I’ve only been on the island for a few months, but my reaction is immediate – I step in and tell David Allen we’ll give a statement at some point and he’ll be the first to know. Blah blah blah.
The first thing any decent defense attorney wants regarding his client’s talking – to anyone, but particularly law enforcement and the press – is to STFU and let the lawyer do the talking. The cop shows and movies are dead-on in one respect: anything you say can and will be used against you. Plus, offhand I can’t remember either the Code of Professional Responsibility or the more stringent Navy Instruction for all Judge Advocates on speaking to the press. I know generally it’s frowned upon, if not outright verboten, to speak to the press. Add to that my natural aversion to the media as a military officer and I’m curt, but polite.
Oddly enough, this is one of the few times it likely won’t matter. It’s not as if David could say anything damning – he had refused a direct order to take the anthrax vaccine and even talked about it in interviews with local media in his homeport of Biloxi, Mississippi. There isn’t a whole lot of dispute factually. I don’t want to give the government any additional ammunition for sentencing, however, should we ever get there. A jury or military judge would probably not look kindly on someone who was bashing the military in the local paper. So, we pass on the “exclusive.”
Back in my office, I drop into my chair.
“Sir,” Petty Officer Ponder begins, “what happens now?”
“Well, you heard the dates for motions. That’s the next big milestone. It’s likely that the prosecutor will file a motion asking the judge to find the order to take the vaccine lawful. That’s been the standard in the few other anthrax cases that have gone to trial. The good thing is that Captain Kolomjec leaves for Thailand the day that our response is due. Likelihood is he won’t be around in the afternoon when I drop the response off on the prosecution. He also won’t be back until right before the motions session and I’m betting no one else is going to pick up our response and run with the ball. So, it may not win the day, but it will certainly limit his time to be ready to answer our motion.” David Ponder nods, but I can tell he’s nervous. I would be, too, if I were in his shoes.
“Sir, did you get in touch with Major Bates’s attorney, Mister Smith, at that number I gave you?” David Ponder put me in touch with an attorney in the States named Bruce Smith, an administrative judge in North Carolina and Major in the Air Force Reserve. He defended Air Force Major Sonnie Bates, the highest ranking officer to refuse the anthrax vaccine. He had been discharged with ‘good paper’ as a result of a plea negotiation.
“Yeah. I talked to him. Interesting conversation.”
When I spoke to Bruce Smith, he calmly asked me if I could consider that the order to take the anthrax vaccine was unlawful. Not quite expecting the question, I had said, sure, albeit hesitantly. In my own mind, I figured he was a loon, a conspiracy theorist, but he had gotten a good result for Major Bates, so what did I have to lose by listening to the guy? He told me to look up a particular federal statute and then said he would send me some other materials and asked if I would I please keep them “close hold.” His manner was so cordial, I casually agreed, thinking nothing of it.
My boss, Major John Woodworth, figured he had done me a favor by assigning me – a brand new judge advocate – three of the four anthrax refusal cases on the island of Okinawa. The assumption was that these were guys looking for an excuse to get out of the military and the units would likely agree to Summary Court deals with a Board waiver and these would be over in short order. Like Tom Cruise in a “Few Good Men” I came to David Ponder’s case with the goal to get him the best deal possible, and do it quickly and quietly. I also have several major cases pending, including a rape defense.
I got the first three of my anthrax shots just before coming to Okinawa. I took them somewhat reluctantly, as I had read an article in a major news magazine about the possibility of some experimental substance called squalene being in the anthrax vaccine given to soldiers during Desert Storm. I had sat in the medical clinic at Naval Justice School in Newport, Rhode Island, discussing the matter with another Marine attorney. Both of us had served previously as officers in the Fleet Marine Force and while we tended to think that squalene had been used in the anthrax vaccine, our leaders wouldn’t allow it to be used now. Quite simply, we trusted our chain of command, our senior officers.
David breaks into my thoughts.
“Do you think my CO might consider not court-martialing me or something if you explained this to him?” David Ponder’s question was laden with ethical implications that I was glad I explained to him. While the anthrax vaccine was getting a lot of attention in the press back in the States, and the issue was very interesting legally, I couldn’t let that interfere with my duty to my client, which is to advocate his interests. If he wanted to deal, to plead guilty, no matter how much I might like to litigate the issue, it was his ass on the line. I explained as much to him from the start. David Ponder didn’t have a Juris Doctor, but he was sharp and understood the bottom line.
“Well, I’m going to set up a meeting while Kolomjec’s away and see if the C.O. won’t listen to what we’ve got to say. I’ll get back to you as soon as I get out of that meeting, okay?” I smiled at him.
“Okay, sir. I’m going to change up. Where can I go to have a smoke?”
“Out on the stairs at the end of the building.” I nodded toward the general direction. When he left, I went back to work. I was concerned with the other fifteen other clients who were counting on me to keep them out of jail. At the time, I had no idea that David Ponder’s case would take us both from Okinawa to the highest military court of appeals, to the doorstep of the Supreme Court, and eventually to testifying in front of Congress. It would also eventually cost me my active duty career, but that was a long way off.
Ummm….Holy shit, what an article!
This is gonna be a helluva ride, methinks.
Uhh is this fiction or non fiction ?
Shut , either way it reads like some extreme well written non fiction.
Can’t wait for episode 2.
Welcome aboard Ozymandias.
I think this is all, or, in part, public record. Figuring that, I’m going with “Real”.
Also, agree with extreme(ly) well-written.
Hats off to Ozy.
Thanks, Sir Digby. And yes, public record (mostly) and the names have not been changed. My client gave me permission a while back to publish it although I didn’t take him up on it back then for reasons that will become clear as I continue the tale.
ehm… interesting story. Were then names changed to protect the people?
Although there is something strange going on. No comments – there are always comments in the morning from overnight – at all and seems to many posts for last night. Anyway good morning I guess…
Test
Why is the Anthrax vaccine required? Is there really a significant risk of being exposed to it?
https://en.wikipedia.org/wiki/Anthrax_Vaccine_Immunization_Program
Mrs. A and I received an anthrax vaccine when staging to deploy to SWA in 1990.
Because
FYTW
That’s pretty much it, but let’s not spoil the story!
It’s 12:30 in the morning here and something that looks heavy drops and I’m kind of drunk from the debates and well, just life.
The debate post dropped unexpectedly in the middle of the usual schedule and sucked the comments from the posts on either side.
Anyway good choice of names they sound realistic.
Naval Mobile Constriction Battalion – is this a typo or something to indicate fiction?
Although there is a 74 Naval Mobile Construction Battalion.
All real, Pie, unlike vampires and Romania…
Wooooo late nite wut?
Yeah, I can’t even.
As as recipient (of a partial series) of the anthrax shots, this is starting better than I feared. Good thing because I have to get up early tomorrow morning.
Sober up Globs.
Ewe have just had a bomb dropped on us.
True or not it is excellent writhing.
I vote for true from someone who is an excellent writer but no longer active duty service.
?
This feels like another scheduling glitch. Cancel my subscription!
As Buckwalt said.
Cancel your own damn subscription.
I suspect something like that as well. Or it is an attempt to keep us on our toes.
Well it is 7 in the AM and I am at work after 7 hours sleep, so no problems.
SugarFree took the credit, which means you can’t. No one escapes Subaru Horror Theatre alive with their insanity intact.
Ozy, you need to ask for a repost. No way releasing this late was intentional.
+1
When I said I can’t even, I literally can’t even.
Yes! I’m reading this in the AM. Thank you!
I got home too late to watch the debates. How many of you watching it live did a spit take when this happened?
https://twitchy.com/dougp-3137/2019/07/30/what-a-joke-yes-this-was-an-actual-question-from-a-cnn-moderator-at-the-demdebate-what-media-bias/
I missed that bit but I noticed the bias. And I didn’t know that was Don Lemon. Because… I don’t watch CNN.
Now, now–hold on. Some of us appreciate late-night glibs reading.
OK: one of us appreciates it.
/not speaking for others–do your own damned advocating…
I worked plenty of overnights in my day. Of course, that day was when the internet did not exist, and my boss carried a “cellular phone” the size of a breadbox.
Like a boss.
Work or not, you are a welcome fixture at night. So, stick around. Or, don’t–I’m not your brick-phone boss-man.
I am interested in this since I received the entire series twice, plus some other weird shit like experimental rabies vaccine.
::inches away from dbl::
Oh; is that my phone? I should probably take this outside…
Forgot to bring your yellow shot booklet with you?
I think everyone makes that mistake once.
Nope. Got the series in the 90’s because I went to the ROK on a regular basis. On the run up to Iraq 2 “the WMD boogaloo” in 2003 the Army gave it me again. because. As a bonus I got the smallpox vaccine again. I asked they do it on top of my existing smallpox vaccine scar.
OMG, this article has me excited for the same reasons. My unit was on a 6 month alert rotation so twice a year we had to go through POM and get whatever new series of shots the sawbones had prepared; one hoped one was all caught up but they seemed to release a new Plague vaccine every few weeks. I think we were up to Plague XII by the time I got out.
All kidding aside, eagle and lobot, you should read this – and not because I want readers, but because I believe you will find it interesting and informative to your own situations.
Count me in, too, OZY. Its been a long time in the past but I’m waiting, waiting for the other shoe to drop
See this is how it should be, you take what they give you you don’t waste the military’s time with court martial and stuff
Damn.
One of the extremely few times I’m current with the posts and not lagging hours behind and just lurking.
And there are very few here*
*starts with a tear in one eye but then quickly breaks down into full blown sobbing**
**cut it out. None of you saw that. Quit laughing and go back to work
But, I am working…
No need to lurk. Well, if you actually want insightful commentary, maybe lurking is the way to go. If you’re OK with silly shit, wade in.
Well enjoy the moment and keep commenting
Is it OK if I cackle with euphoric glee?
OK, I honestly thought I was posting that in the last thread. Apologies to Ozy for OT-ing
Orwell is spinning in his grave.
For sure. This is just one more turn of the wheel.
Yes it is. I don’t know what motivated Snopes hard left turn but it’s a shame. Since it/they use their cachet to screw Babylon Bee, I hope they enjoy being on the receiving end of a lawsuit.
The original showrunners left. Thus, it was taken over by the left like any organization.
Is that right? I read about one of the founders getting kicked out (I think) for embezzlement. I didn’t know there was a large turnover.
Want to take a professional guess as to how it will play out?
I don’t know enough about the threatened litigation. If it’s something like intentional interference with prospective economic opportunity they may have a case since Snopes is a FB fact checker (or whatever they call it.) I don’t know enough about defamation to know if they have a shot.
Interesting enough. I hope it scares Snopes enough to re-think…
Sorry, laughing too hard to finish that thought.
Something something goose something gander.
https://www.dailycaller.com/2019/07/30/virginia-delegate-trump-bigot-anti-semitism/
My shocked face:
Did you catch it? Ah, well.
Also, when did someone, even in a position of power, telling a person to “go back” become the exact same thing as ‘sending them back’?
I would get the anger if he had made that threat, but that’s not what he said, Nor does it appear to be what he implied. You immigrate to a country, grow up, seek position of governmental authority, and proceed to cut down that country and fundamentally transform it by practically discarding its founding legal documents? Yeah, you’re gonna be told to go back, if you don’t like the country.
Enh, Ilhan was brought here as a child – she had no choice in the matter.
That’s the only benefit of the doubt she’ll get from me. Her politics are horrible aside from any of that background.
Duly noted. That said, she IS welcome to leave/go back, if she is so unhappy. I think we all draw the line at her having power of any of us.
She has power over the people who elected her, same as any other citizen.
Her background, though it may inform her positions, is not the problem. It’s her positions that are the problem. There’s no need to reference her background at all.
+1. If Donny Two Scoops kept his brass balls and focused just a little he might do some good.
Hmm. I got that vaccine…
Later that day an Lt that nobody liked approached me. I was a bit off. Like when you had a few beers and you’re in a mood to schmooze but you realize later you wouldn’t normally talk schmooze? It was one of those times. The Lt was a dude. Its not that kind of story.
But I’d like to hear more of this one.
Good for you. You were not petty like officer Ponder
The green weenie fucks everyone eventually.
green weenie?
Wikipedia says The Green Weenie was a green plastic rattle in the shape of a hot dog, which when waved at opposing players, purportedly put a jinx on them.
Urban dictionary says The giant dick of the united states army. Ramming home into every soldiers asshole
So it is one of the two
If this is rescheduled I hope the keep the comments with the original timestamp, but the timestamp of the post should be newer to create confusion.
#AgentOfChaos
Why didn’t anyone mention the most recent Glibs meet-up?
Go to sleep it is late on a school night
That’s what they pay for for–a semi-warm body in case something happens at school.
Oh and who are these they you speak of?
Well….I guess it’s the Chief of Police, and all of the District administrators. Or, at least, the District President.
Hurtful.
https://www.youtube.com/watch?v=Ui4NMWBuuv0
She should really be careful! Might jam her cock into the beam. Squish the balls… Any number of possible injuries to the lower extremities.
well okay then
That was a good article and I look forward to the rest of the story. Ozy, you got screwed with the time this got posted.
Sucks for Ozy, but it was nice having something fresh first time in the morning, I for one welcome out new overnight posting overlords.
First thing in the morning, also should have said great read thanks Ozy.
I tend to agree. I work overnights, so it was a nice treat to come home to a new article. And a fantastic article at that; I’m looking forward to more.
Are you challenging admin infallibility doctrine?
“Nope.”
/scared of rusty can lid collection.
Great read Ozy. It’s sad that this ruined your career, but excited to read about it.
Late reading this, great write up so far.
I had to take the anthrax series as part of our spin up for Iraq in 2004.
Never occurred to any of us to object.
PO Ponder has brass balls and I am looking forward to the next one.
He does, Ron. Great guy, too. A-J squared away sailor.
I was truly blessed to have had his case assigned to me. I haven’t talked to him in a while, but we’re friends on derpbook.
Here Ye, Hear Ye! O Glibertarian Commentariat!
To be clear:
(1) I was consulted and consented to the post times – Whoever reads it and comments is really not a huge concern of mine. I wanted to provide the content and the story and I’m honestly not sure that there’s a better place than here. SP and the site runners were kind enough to allow me the place to bare/bear my soul. If the consensus is to move the publishing time, that’s up to the Glibs editorial staff; it doesn’t matter to me when beyond being able to engage if people want to.
(2) It’s all true to the best of my recollection and it was originally written very close in time to the events in question.
(3) No names have been changed to protect anyone; my client(s) gave me permission to have it published, but at the last minute, some events intervened… (those events will be described here toward the end)
(4) A lot of people’s lives were ruined over that program and it’s something that has chafed at me for a long, long time. So, please, no credit for ‘courage’ and all of that nonsense – it’s been a long time, but “The Truth Will Out…” I think this history needs to be held somewhere and I think this Community is probably one of the few whose collective and individual minds are open enough to receiving it.
(5) If anyone knows someone in the publishing business, I’m happy to talk and it’s already written… 🙂
I think this will be an interesting series. I look forward to the rest of it.
Every week until the story is told!
Awesome!
As Ozy said, we deliberately selected the publication time so that it could have a dedicated slot every week. We feel this is an important series and we want people to know when and where to find it. As you know, the content in the regular 1100 and 1900 spots tends to vary widely… and somewhat unpredictably.
This is a long tale, as you will see, so needed to be handled differently than most.
I’ve added a link to the series in the front page sidebar so it can be found quickly even if one isn’t online when it drops each week.
Thanks, Ozymandias, for this great serialized non-fiction work.
Thanks Ozy. I just got time to read this and I am really looking forward to the rest. Sounds incredibly interesting.