I left the courtroom before the judge announced his sentence. I couldn’t watch. It wasn’t technically my client, but I still couldn’t watch.
When my turn came, I tried everything. I objected every time the prosecutor gave me a reason to. I grilled the government witnesses until the judge made me stop. I was on the phone to John Richardson back in the States. When the judge stopped my cross-examination of a witness because of something he read in a personal email, I was all over him, too.
“Sir, I don’t think you can consider personal emails in this court in limiting my cross-examination of a witness?” I was fuming. I had just asked the witness if he knew that the anthrax program was essentially shut down because of failures of the manufacturer. The judge had interrupted me.
“I can’t allow you to ask a misleading question of the witness if I have information that tells me different,” the judge said to me.
“Sir, are you saying that the program has not been shut down?” My voice was not very respectful.
“Captain Saran, someone forwarded me an email which was an article in which a DoD official asserted that the program would be starting back up in October of this year.”
“Sir, you absolutely can not consider that extra-judicial information, and as a side note, the DoD says every three months the program is going to start back up and then they have to come back and take their foot out of their mouth because the manufacturer fails another inspection!” I sat back down and shuffled through some papers. Justin was reading my mind and handed me the most recent letter from the Assistant Secretary of Defense for Health Affairs that directed another slowdown in the program.
“Thanks,” I said. As I leaned over, Lance Corporal Stonewall whispered in my ear.
“Who is sending him emails about this case or the program?” Sharp kid.
“Sir, at this time we would like to have this document marked as the next appellate exhibit.”
“Please do,” he said, leaning back in his chair. “I presume you’re going to tell us what it is?” I handed a copy to the prosecutor. Chris knew that the conviction was guaranteed; he barely looked at it. He wanted to get these cases done.
“Sir, this is the most recent official memorandum, directing the Service Chiefs to limit who gets the anthrax vaccine. This is dated November of 2000, just two months ago. So whatever email you may have received, whatever the DoD’s PR department may be cooking up, only troops in Southwest Asia for more than 30 days are now required to take the vaccine. And, sir, could we ask the military judge who he received these emails from?” I had stepped off into it now. I knew the judge pretty well. He got tight-lipped when he was angry and he would look down a lot. I could tell he wanted to throttle me.
“I received a personal email, as I often do, from my father. He knows that I am handling these cases and forwarded me the email, knowing that I might be interested in it.” He was about to get even madder.
“Sir, your father is or was a senior Marine Corps officer?”
“A Colonel in the Reserves.”
“Might we have a recess, sir?”
“Court’s in recess.” Before Kolomjec could say all rise, the Judge was out of his chair and out of the door.
Back in my old boss’ office, Lieutenant Colonel Carol Joyce was calling the Chief Defense Counsel for the Marine Corps on the phone. I had worked for Lieutenant Colonel Joyce three times now through a strange series of coincidences. My first summer at law school I worked at Camp Lejeune when she was a Major and the Chief Trial Counsel, head prosecutor, for the Base. I worked for her the next summer and then when I came to Okinawa she was the Regional Defense Counsel for the entire Pacific Region, covering Hawaii, Mainland Japan, and Okinawa. By strange coincidence, her husband, Lieutenant Colonel Frank Joyce, was a CH-46 pilot, and had been the Executive Officer of the squadron I had deployed with to the Mediterranean Sea. He showed up not long after I left the squadron to go back to my parent squadron in 1995. It was indeed a small Marine Corps.
After conversing with the CDC, I went back into court, challenged the judge and was shot down coldly.
“Captain Saran,” Major Stone replied icily, “I do not appreciate such a spurious challenge of the military judge! Now, let’s move on.” I had never actually heard him raise his voice in court. We stared at each other. I smiled, but the way my wife said annoys her and that she wants to slap me. It occurred to me that this might not help my client on sentencing, so I looked down and shuffled some meaningless papers.
I could feel my face flush. I bit down on the inside of my cheek until it broke the skin slightly. Lawyer on.
When Court ended that day, I knew that either we got a stay by the next morning or David Ponder and Jason Stonewall would be going to jail. Private First Class Arroyo was sentenced to 105 days in the Brig, reduction to the lowest enlisted paygrade, and forfeitures of $600 pay per month for three months. He requested a Bad Conduct Discharge which, if awarded by the judge, meant his case would get automatic direct, appellate review. The judge did not give him one. That meant there would be no review by an appellate court, not even a verbatim transcript of the proceedings. Only a summarized record would be prepared. No anthrax refuser had received more than 45 days from a judge or jury prior to that case. I had pleaded Marines guilty to some pretty good assaults and gotten less than what he gave Arroyo. I wondered if I had helped to get Arroyo whacked by my actions. I didn’t sleep that night and it had nothing to do with jet lag.
Lieutenant Colonel Carol Joyce and her husband took the defense shop out to dinner the next night. We ate at a nice restaurant and I talked with “Mister” Colonel Joyce, as I mentally referred to him, about flying. Frank Joyce, as the XO of the squadron I had been with, had also served as a member of the Aircraft Mishap Board that investigated the crash of Clark ‘Swab’ Cox and ‘Cletus’ Boggan, two of my former squadronmates who died in a crash at sea.
Cletus had been a “new guy” when Clark and I returned from our 6 month deployment with a transport squadron aboard the USS Kearsarge. I didn’t know him that well, but I knew him well-enough to have mourned his death. Clark, on the other hand, I had known well. We had flown together in the Cobra training squadron, checked into the same Fleet squadron a few weeks apart, shot our first TOW missiles together, been deployed to Twenty-Nine Palms together, conducted an air-to-air Sidewinder missile shoot together, deployed to HMM-263 as the two junior guys together, lived on the same ship, got all of our instructor quals together, and lived four houses away from each other in base housing… And on a perfect day flying on the boat, blue skies over the Mediterranean Sea, just he and I trying to see how many “bounces” – landings on the ship – that we could do in an hour, Clark produced my favorite phrase about flying, after I had flown one of my best approaches to a perfect landing: “Oh, buddy, you flew that like Steve McQueen.”
Clark crashed into the ocean and died off of the North Carolina coast the day I left Camp Lejeune to go back to law school after my first summer there as a prosecutor. Had I stayed flying, that would have been my deployment cycle.
“But it might have been you, instead,” Colonel Joyce finished my thoughts for me. We had been discussing what he knew of Clark and Cletus’ crash over dinner.
I drained my Kirin and ordered another beer. Justin was into his third or fourth. After dinner, back in our rooms, we continued and had much more booze than two lawyers who are going to lose the next day in court should. I stayed up praying for a fax to come in until I dozed off, half-drunk, at 0430. I knew the magic hat didn’t have another rabbit in it.
“Accused and counsel, please rise.” I touched Jason briefly on the arm and rose slowly to stand at attention. Justin and I looked quickly at each other. “Lance Corporal Stonewall, this court-martial sentences you as follows: to forfeit five-hundred dollars per month for three months, to be confined for a period of ninety days, to be reduced to the rank of E-1.” Some would say a victory; no punitive discharge and therefore no “bad paper.” I knew it meant no appellate review. No court was going to get to second-guess the judge’s opinion. Our appellate writ had been denied in large part because of the high standard of review required to overturn a judge’s decision on motions in the middle of trial. On direct appellate review, the standard was much more favorable, although the Navy-Marine Corps Court’s opinion left me little doubt how they would rule on the anthrax program. They had found that the vaccine was not investigational because the Navy said it wasn’t in a Navy instruction. I was not sure when the Navy gained the authority to license drugs, but it didn’t matter.
Back in my old office, the two “chasers,” as we called the guards, waited outside the door to take Stonewall to the Brig in cuffs. He now had a federal conviction.
“Well, sir. I just want to say thank you. You and Captain Constantine did more than defend me, you took this on as a personal cause, you championed me, and Arroyo, and Petty Officer Ponder. We all appreciate that, sir. No one could have done a better job than you both did, sir.”
“Thank you, Jason.” Justin answered for both of us. I couldn’t find my voice. I’m not cut out for this, I kept thinking.
“Petty Officer Third Class David Ponder, this court-martial sentences you as follows: to be confined for a period of sixty days; to be reduced to the rank of E-2.” David’s wife and son had probably saved him from worse. His wife Jennifer’s iron will in lobbying members of Congress and keeping media attention on David’s case and his Command probably got him back from Okinawa. He was to fly back with his Platoon Commander the next day and be confined at Pensacola, Florida, a few hours drive from his wife and son in Mississippi. Stonewall and Arroyo, unknown, went to the Brig at Camp Hansen, Okinawa.
Justin and I tried to drink ourselves silly, but our hearts weren’t in it. We didn’t sleep that night. The next morning, our defense clerk picked us up. Slightly hung over and running late, we made him take us to Burger King for coffee and some grease.
Naha to Narita.
We sat in silence next to each other on the plane. I dozed for a while. At Narita, we pooled our yen to pay a tax for leaving the country. Justin considered it the ultimate insult. “Great,” he grumbled, “I’ve got to pay to leave this friggin’ place.” It was enough to make me laugh. There was a certain Monty Pyhthonesque humor to the final indignity.
On Saturday, January 13, 2001, Justin headed for the West Coast, where he was serving as the Deputy Staff Judge Advocate for the Third Marine Aircraft Wing. It had been ten months since we had both picked up our anthrax refusal cases. When Justin’s tram pulled away from the terminal he waved; I touched my hand to my forehead in a brief salute. In an hour, I had a flight to catch back to the East Coast, back to my job, of all things, as a prosecutor at Marine Corps Base, Quantico, Virginia. I could not stop thinking about Jason Stonewall sitting in the Camp Hansen Brig.
I had never believed Franklin’s adage: “better that one-hundred guilty men go free than that one innocent man spend a day in jail.” Now I had some inkling of what he was talking about. I was incredibly offended by Jason Stonewall, David Ponder, and Vitolino Arroyo’s convictions and incarceration. Talking to Jennifer Ponder on the phone was not going to be easy.