“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 Justin dropped all of his six-foot, two-hundred five pounds into a chair. 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 single, brand new First Lieutenant, and I was a relatively senior Captain, married with four kids, 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 ours) out of Justice School, I made an effort to take them both under my wing. As it turned out, Justin and I both got orders for the Defense shop and after long days as brand new criminal defense attorneys together, we also found out we shared a common love of rugby – and drinking beer – which appear together often enough to seem like co-dependent gene alleles.
“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 privately lobbied our boss, Major John Woodworth to give them to Justin because to that point the Boss was only giving him Administrative separation boards, no courts.
“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 had been 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 we had been commissioned around the same year. In order to recruit lawyers, the Marine Corps, and all of the armed services, have to offer incentives because there the pay of a typical Marine officer is in now way comparable to what even a new attorney could get on the open market. One of the ways the military made up that deficit is through a fiction known as “constructive service.” A law student who signs up to be a judge advocate 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 typically 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 the new attorneys, too. They’re frequently treated as ‘less than’ officers by those who know the system. JR had come in the same way, but he now had something like 8 years of actual time in, same as me, but his JA “reversion back” made him now a Major.
“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 and checked out his story with some other sources. 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 very 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. I was curious why the Staff Judge Advocate, a senior lawyer, for the entire Third Marine Division, would need to be in there to talk to three anthrax refusers. Justin nodded and went on. “—the regimental or battalion surgeon, and maybe one other CO, either Battalion or Company CO.” He 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?”
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 created by a General officer – but instead 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 could award any punishment authorized for the particular offense, up to and including death. Refusing a direct order or a general order would have carried ‘a nickel’ for our guys – 5 years – but the statutory cap for all special courts-martial limited their exposure.
“And get this,” Justin went on, “I heard from 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 finally agreed to take the shot, so the surgeon took him right then, 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 it meant, but more importantly, I was trying to find an angle that would help Justin’s clients. Or mine. I was stumped. I genuinely enjoyed these sessions we had in defense, frequently bouncing ideas off of one another to help focus our thinking, as long as we didn’t have conflicting cases. Justin’s thought process, I 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, as I had. Okinawa was his first tour as a lawyer, but he had been a defense attorney there for two years. He had a phlegmatic personality, utterly unflappable in every experience I had with him. He was also one smart cookie and he and I had become friends of a sort, especially after we talked and I found out he played ice hockey at Norwich; he also had discovered a local pickup league in Naha and got me on the team. Given that we were peers, more or less, even though he had pinned on Major already and was now 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 also looked like a linebacker, but 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 some ‘beef.’
When I brought John back into 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 had first moved into the office next to his, I put up my framed print of an AH-1W attack helicopter my squadronmates had signed for me as a going away present. On the plate it had my name, call-sign, and a quote: “Shakespeare was Right.” Either the prosecutors or the clerks later put a picture on my office door at Camp Hansen of Fred Flintstone and Barney Rubble, with “Hitesman” and an arrow pointing to Fred and “Saran” with an arrow pointing to Barney. I thought it was funny and left it up.
“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, holding the styrofoam cup that he occasionally used to spit some tobacco juice into from the wad occupying the left side of his mouth.
“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, then held up his hands, “…that’s why I asked.”
“I can think of a few,” I piped up. “He’s already represented, there are charges pending, the CG is the convening authority’s direct superior, and it all-around stinks.” Hites gave me a quick glance.
“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. He spit again, then went on.
“I suppose you could write a letter to the SJA’s state bar because I think there may be 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 Commanders, and same for the rules of professional conduct. Why couldn’t a Commander have his attorney in there as a witness? Did she ask any questions of your clients?” Hites now directed a question at Justin.
“No, sir, I don’t think so. I think she was just in there.” Justin looked 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 about the shot under what seemed like pretty coercive conditions. The Sergeant had less than a year before he was getting out and likely decided that the hassle, and risk of losing his veteran’s benefits, probably 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 really need them. I’m sure they can prove your guys were given the order and didn’t take the shot, and they 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 frigging tears! That just can’t be right.” I wasn’t sure where I was going, but it all felt wrong to me.
“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 just love the Marine Corps!” he said in a drill instructor voice. I hated that I didn’t have any answers.
“Well, how’s Petty Officer Ponder’s case going?” Justin finally asked. “Did his CO ask him to come in and have a chat?” I chuckled slightly at that. But an idea had come 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 then use what we do on that one for our other two separate cases?” Justin nodded.
“Sure. Would likely save us time individually and let us pool our efforts. Is any of the information helpful?”
“Yeah, I mean, it looks… thorough, but I’m not going to get my hopes up yet. I have to research what an ‘investigational drug’ is and really dig in on the statute, but it worked for Sonnie Bates, so… I don’t know, 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.