Author's note - The following story received a 2009 award from the Pennsylvania Bar Association for short story fiction.

 

The Hearing

By Craig Trebilcock © 2009

 

He knew he had forgotten something the moment he awoke.  The certainty that something was wrong hung over his early morning routine, as he prepared to leave for the court house. A quick run and a shower before breakfast did not shake the uneasy feeling, nor did double-checking each box of exhibits as they were loaded into the vehicle. 

Experience had taught him to respect the subconscious voice that sometimes warned him all was not right.  It had served him well throughout his career as a trial attorney, often leading him to ask that one last seemingly harmless question, which uncovered a major weakness in his opponent’s case.  Now, as his vehicle droned along the highway, Greg Taylor could not quiet the voice that whispered he had overlooked something important.  Although this was only a preliminary hearing, its outcome could well determine whether his client spent the rest of his life behind bars, or walked away a free man.  I’m sure I covered everything, but still….

Trying not to obsess, he looked out the dirt smudged window to his right at the glow on the horizon.  Glad we got an early start today, he thought.  Gonna’ be a hot one. Tiny, dark houses in the distance were shadows against the horizon.  The river running beside the highway cast a silver reflection of the lush foliage along its banks, as birds darted along the surface, feasting on insects that would disappear when the sun inched over the horizon.

Turning from his reverie, Taylor addressed the junior counsel next to him on the rear seat.  “Tony,  I need you to make sure the arresting officer is available to interview before the hearing.  Can you do that?”

“Sure. Whatever you need, boss.  Where do you want him?” Tony Palermo replied easily.  Palermo had still been in law school last year at this time.  He was excited that he’d been asked to participate in a case of this magnitude, even if it was just doing the grunt work.  He knew Taylor was someone who could teach him a lot, if he didn’t screw up, so he was eager to please. 

“That small office outside the main court room will be fine,” replied Taylor.  “Try to get there early so the prosecutor doesn’t hog the space again.”  He knew the opposing counsel in this case was not the share and care type, and didn’t want to be stuck interviewing witnesses out in the parking lot.

Soon they would begin to see the first scattered buildings on the outskirts of the city, Taylor noted, observing the now familiar countryside.    I wanna’ get there early, so I can go through everything one more time. He still could not shake ‘the voice.’  We have the exhibits, the client is meeting us there…I don’t know…something is still missing.

Palermo noted that the usually unflappable Taylor was more tense and distracted than usual. “You look concerned,” Palermo offered.

Taylor smiled weakly.  “Just a feeling – that I’ve forgotten something.  Probably just nerves.”   Palermo was a new attorney, but he had already demonstrated the attention to detail that foreshadowed future success.  Taylor had asked for him to be on the case to further evaluate if he was ready to take on first chair responsibilities. It’s good he pays attention to subtle body language, Taylor noted

“I think you’ve got it all, boss.  The exhibits are packed in the back.  They’re pre-marked.  The motion is in your notebook.  It was served on the prosecutor and the court last week.  I called ahead and arranged a place for us to stay tonight where we can work.  Everything’s good to go.”

“I guess I’m just being anxious,” Taylor grinned.  This case had received a lot of press attention and the intensive preparation for this hearing had been interrupted repeatedly by requests for media interviews.  His client was accused of the rape and murder of a fourteen year old local girl. The ink on the charge sheet was barely wet before demands for his client’s head had flowed in from across the country.

The hearing today was a defense motion to exclude his client’s confession.  Without the confession, the chances of the Government proving the offense against his client dwindled significantly.  The forensics were shockingly thin for a case this serious, but one has to consider the jurisdiction, he weighed.  Not exactly a fat budget for lab work in these parts.

Taylor wanted to get to the courthouse in plenty of time  to establish some rapport with the chief investigator, who had taken his client’s statement.  Taylor learned soon after opening his York office that establishing rapport with an opposing witness was invaluable.  He subscribed to the school that someone is less likely to lie to your face if they have some small bit of relationship with you.  Although, everyone lies somewhat, he conceded.  Today he needed every angle possible to win this motion.  

“Crap!  I left my rules of evidence back in the office,” he declared suddenly, with a mixture of frustration and relief.  I knew I forgot something, he thought triumphantly. 

 “Got it right here,” Palermo smiled, pulling the manual from the bag between his feet.   “I saw it lying on your desk when we were leaving, and figured you might need it.”

“Great.  Thanks Tony.  That’s a big relief.”   Actually it wasn’t, he admitted inwardly.  The momentary sense of relief was gone.  He had been telling himself all morning that he had left something behind, and now he was certain it was something else.  Well, I guess I’ll figure it out when I reach for it and it’s not there, he shrugged inwardly.

Taylor leaned forward so his voice could be heard by the driver over the engine.  “Bob, how much further?” 

“About ten minutes, sir.  The courthouse is five kilometers ahead, just across the river.”  The driver made a smooth lane change as he spoke, to avoid the dead dog in their lane of traffic.

Taylor turned around to see if the vehicles behind them were still keeping up. This allowed him to see the white Chevy Suburban at the instant it erupted skyward in a ball of orange flame.

“Jesus Christ,” Captain Taylor breathed.  The SUV had been struck by an improvised explosive device hidden in the dog’s carcass.  The officer was mesmerized as he watched the heavy vehicle complete a mid-air flip and crash onto its roof.  No one’s walking away from that.

Taylor’s Humvee was leading the four vehicle convoy to the provincial capital of Al Nassariyah this morning.  After the now-stricken SUV, a large dump truck came next, followed by a military police Humvee, mounted with a 50 caliber heavy machine gun to protect the rear. The Suburban was filled with State Department personnel from the Coalition Provisional Authority regional office, traveling to a meeting with the Iraqi provincial governor.  By virtue of rank, Taylor was the convoy commander today, responsible for security until they reached their respective destinations in Nassariyah.

First Lieutenant Palermo turned toward the blast, color leaving his face.  The driver, Specialist Britt, steadied the vehicle from the skid into which the blast had thrown them.

“Sir, what should we do?”, Sergeant Wolf, Taylor’s paralegal, called over his shoulder.  Wolf occupied the front right seat of the vehicle today, to allow the two defense attorneys some preparation time on the 45 minute trip from their base camp to the court house. 

Before Taylor could reply, the radio speaker mounted above the windshield crackled to life.  It was their MP escort, calling Taylor.  “Sierra 74, this is Dragon 1.  Enemy  vehicle at two o’clock.  Request permission to engage.”

Lacking orders to the contrary, Specialist Britt had continued driving, so that Taylor had to twist around again to see.  Behind them and to the right, a white Toyota pick-up truck was accelerating rapidly away from the blast area, kicking up a cloud of dust as it fled.

“Sierra 74, enemy is breaking contact.  Request permission to engage,” repeated the MP, more insistently.

Taylor could feel matters spinning out of his thin control.   Too much was happening at once.  The State Department personnel were either dead or wounded – certainly in need of emergency medical response.  The MPs were requesting to open fire on a possible civilian truck.   And, Taylor’s Humvee was still speeding away from it all.  “Stop the damn vehicle!”  Taylor ordered, finding his voice.  His failure to react more quickly had allowed a quarter mile to grow between his position and the rest of the convoy, which had assumed defensive positions around the stricken SUV.  Taylor felt sweat streaming inside his flak jacket, as the Humvee came to an abrupt stop.

“Security perimeter,” Captain Taylor ordered, directing his team to assume defensive positions surrounding their vehicle.  His heart pounded against the inside of his flak jacket.  He felt as if he couldn’t get enough air, but knew this was not the time to loosen his twenty five pound body armor.  The white Toyota was speeding parallel to the highway, away from the blast scene, and in the general direction of Taylor’s Humvee.  He could see the truck’s front seat was crowded with men, with perhaps a couple more in the cargo bed.  No weapons were visible.  He was not sure where the Iraqi vehicle had come from, but dirt mounds still paralleled the highway, originally created as defensive positions by Saddam’s Army. The truck could have been hiding behind any one of those without being seen, the officer realized. 

The world was in slow motion now for Taylor.  Although he had been in the Army for nine years this was his first taste of combat.  Being in a war zone, and being under fire  are two different things.  He was a JAG officer in the Pennsylvania National Guard, not an infantry officer. As his job was primarily to represent soldiers who got into trouble with their commander, he sometimes felt like an extra in a war movie – around the action, but never really in it. Failure to resign his commission after leaving active duty four years ago, rank, and coincidence had all conspired to bring him to this moment.  When Pennsylvania’s Stryker Brigade had been ordered to Iraq, he was mobilized to head the unit’s new Trial Defense office.

Taylor saw the situation before him clearly, as if he were sitting through another field exercise back at Fort Indiantown Gap.  The MPs, the white truck, and his HUMVEE formed three equidistant points on a triangle.  The Toyota was fleeing from the MPs and in the direction of his position, trying to reach the cover of a thicket of date palms several hundred yards from Taylor’s position.

  How do I know these are the ambushers? Taylor agonized.  Because they’re running away?  Hell, I’d run away too if I were an Iraqi.  The local civilians had learned early in the war that it was unhealthy to be around the Americans when shooting started, as insurgents and civilians all looked alike to the westerners. These could be fisherman or even friendly local tribal militia.  The bad guys could still be snuggled down behind those dirt mounds, waiting for us to grease a truck load of farmers.  The enemy in this region was smart, and had set up American troops to fire upon civilians before, intermingling with innocent passers-by during an attack to maximize civilian deaths.

“Sierra 74, I need permission to engage,” demanded the radio speaker.

“Sir?” prompted Sergeant Wolf, holding the radio handset to his mouth, anxious to respond.

Taylor’s mind raced. If I order them to fire and those aren’t the attackers, there’s gonna’ be hell to pay.

“Sierra 74, the enemy is breaking contact,” crackled the radio impatiently.  Taylor flicked his eyes down the highway to the military police vehicle, where one of the MPs was waving his arms, as if Taylor might not know what was going on.

And if I don’t give the order, somebody else probably gets whacked tomorrow, he countered, returning his focus to the approaching Toyota. 

The small white truck was now even with Taylor’s HUMVEE, approaching a turn in the dirt road next to the highway that would take it back into the relative safety of the date palms; so close that he could see the driver’s deeply tanned complexion and blue shirt through the side window. They’re not shooting at us, weighed the Captain.  There’s no way I can give the order to fire.

Two men seated in the bed of the truck were staring at Taylor.  No weapons were visible.  One of them was likely a teenager from his lack of facial hair. The other wore a dirt smudged turban.

A turban, Taylor said to himself.

“Hit ‘em!” Taylor quickly ordered over his shoulder to Wolf.

 “Engage,” Sergeant Wolf repeated into the handset. “Permission to engage granted.”

 Taylor raised his M16 to shoulder, and pressed his cheek against the rifle stock, sighting in on the truck’s driver, who was now a mere hundred yards distant.

Click.

What the hell...? Taylor looked at his rifle. No magazine was loaded.  A sick feeling hit his stomach. In his complete focus on preparing for the hearing, he had made the most basic rookie mistake. His weapon wasn’t loaded.

Around him a fury of noise erupted.  The heavy bup, bup, bup of the MP’s machine gun coughed into action.  At the front of his own vehicle, Lieutenant Palermo and Specialist Britt were also firing into the fleeing truck.  Caught in the cross-fire, the truck driver nervously cut the wheel too rapidly and lost control.  The small truck fishtailed and rolled, as dozens of rounds tore through the thin metal sides of the truck.

A wall of dust thrown up by the crash obscured the target.  The soldiers continued to pour fire into the cloud. Taylor fumbled to open the ammunition pouch on his belt.  He drew out a twenty round magazine and slapped it into the rifle; the officer quickly chambered a round and brought the rifle back up to his cheek.  As he  squeezed the trigger, the wind blew the cloud away from the truck, displaying a scene of complete carnage.  Several bodies lay about the truck. The top half of the driver lay several dozen yards in front of the vehicle. 

Captain Taylor lowered his rifle without firing, staring in awe at the consequences of his order.  “My God,” he whispered to himself.   The MPs heavy machine gun, which had been momentarily silent, began to fire again, churning up dirt around the bodies.

“Cease fire, cease fire!” Taylor yelled, his voice choking at the end.  Sergeant Wolf repeated the order into his handset, and the firing from the MPs soon stopped.

 Taylor looked over at Lieutenant Palermo, who bent over, was depositing his breakfast onto the Iraqi soil.  The quiet, after the storm of noise, felt like an accusation to Taylor.

“Sergeant Wolf,” Captain Taylor ordered, trying to calm the tremor in his voice, “Go check out the truck.  Let me know if you find any weapons or explosives.  Anything.  Take Britt.”

“Yes sir,” replied the Sergeant, signaling for the young troop to follow him.

Taylor watched the two men slowly walk toward the truck. They moved cautiously, alert, as Iraq was a garden of minefields, many of which were still unmarked.

Taylor felt the adrenalin leaving his system, as the shaky, nauseous feeling that follows a fight swept over him.  I hope to hell they find something, or its going to be a very bad day, he thought.  “Pennsylvania Guard Captain Kills Iraqi Civilians,” the headlines would declare back home.

No due process out here, he mulled ruefully.  Guilt and punishment are dispensed on thin threads of information, with no appeal. He watched Wolf and Britt pick their way around the truck, the Sergeant carefully checking each body for life signs. Taylor could tell from the movement of the two soldiers that they were not finding anything significant.  C’mon.  Bend over and pick up an AK 47.  Yell “they’re all armed, sir.” Anything.

But nothing happened. 

The two enlisted men did another circuit of the truck and began slowly walking back to the Captain.

Taylor considered how he would explain his ‘engage’ order to the inevitable court-martial.  “Sir, one of the men in the truck bed had a turban and none of the locals wear them. From his proximity to the blast I concluded he was a foreign fighter.”  He also knew the withering cross-examination he would suffer based upon that supposition.  Decisions  instinctively made in the heat of a firefight don’t fare well when picked apart moment by moment in an air-conditioned courtroom.  By the time they’re done with me I’ll look like a trigger happy nut.  The fact that an SUV full of State Department personnel were smeared across the highway will be used to show I was out for revenge.  He swallowed hard. Well, what’s done is done.

Sergeant Wolf trudged back up the small slope to give his report.  Taylor could wait no longer.  “Any weapons?” he blurted.

“No sir, nuthin’,” Wolf reported in a subdued tone, unable to make eye contact with his boss.  “Just a buncha’ very dead Hajis.”  Although Wolf agreed with his officer’s decision to open fire, Wolf had been around the Army long enough to know that someone’s signature had to be on the blame line for this, and it would be Taylor’s.  Specialist Britt walked slowly up behind Wolf, red-faced and panting from the growing heat.  

Taylor felt numb.  I’ve got to take the blame for this, he realized.  The rest of these guys were just following my orders. It was a no-win situation and I guessed wrong.  Now it’s time to pay up.

Taylor took a deep breath, and turned toward Lieutenant Palermo.  “Tony, I need you to call in a serious incident report to the operations center.  Tell them that we have a truckload of dead civilians from coalition fire.  Also, have someone call the courthouse and let Judge Jacobsen know why we’re not there.”  As the senior officer, Taylor knew he should normally make the call to the operations center; but, he also recognized as a likely defendant that he needed to pass command of the convoy to Palermo.

  Captain Taylor glanced back up the highway toward the State Department SUV.  He could see bodies being pulled out the windows of the shattered vehicle.  “But first get a call in for a med-evac, ASAP,” he amended his order.  Any surviving wounded  would be evacuated to nearby Talil Air Base by helicopter, where a combat surgical hospital was stationed.

“Yes sir,” replied Palermo.

“Sir?” asked Britt quietly, from behind Wolf.

I imagine those are the last orders I’ll ever give, Taylor realized coldly.  He looked back out at the Toyota’s destroyed hulk.  Several large birds had already settled around the bodies, flapping their wings excitedly.  This picture’s not getting better with the passage of time, that’s for sure. 

  “Sir, is this anything?”

Drawing his attention away from the dead, Taylor saw Britt cradling a small square object in his hands.  There were two wing nut screws on the top, with a round hole in the middle of the object. 

“Where’d you get that?” Captain Taylor asked breathlessly.

“It was in a sack laying on the far side of the truck, sir.  Has some funny markings on it, so I thought maybe I’d keep it for a souvenir,…or something.” Britt’s voice trailed off, embarrassed to admit he’d been hunting for war trophies.  

“Lemme’ see that,” ordered Taylor, extending his hand.  It was surprisingly heavy for its size.  The ‘funny markings’ Britt had noticed were Cyrillic letters.  Russian, possibly Serb, Taylor recognized.

“Sergeant Wolf?” Taylor asked, seeking confirmation for what he already knew.  “What’s this?”

Wolf looked blankly at the object for a second, and then a grin spread over his face.  “That sir, is a detonator,” he replied brightly.  “Only thing missing is the handle that fits in the hole.”    

Relief washed over Taylor.  He had been right, after all.  My God, the difference between being a war criminal or a hero is a razor’s edge out here. 

Taylor interrupted Palermo, as the younger officer, now seated in the front of the HUMVEE, completed his medical evacuation call.  “Tony, change of message. Tell Ops that we’ve been engaged and have five enemy KIA and four State Department casualties.”

“Roger, sir,” replied Palermo, grinning at the change of message.

 “Also, to the military judge,…” Taylor continued.  Report we have been engaged, and due to the need to evacuate the wounded, we’ll be there at 1400.”  Taylor wasn’t going to give the brigade prosecutor the satisfaction of continuing the hearing, and he knew the military judge, an Army ranger before joining JAG, would probably give him a little extra latitude in the proceeding, under the circumstances. Maybe - gotta play every angle I can.

“Yessir,” responded the Lieutenant.  The Cap’n doesn’t miss a trick, Palermo recognized.

“And Tony, don’t forget to get me that investigator to interview.”

“Roger, sir.  I’ll get it done.”

“SGT Wolf, make sure everyone’s weapon is back on ‘safe’, and then go see what help the MPs need,” the Captain ordered, trying to think what else needed to be done.

“Yes, sir!” Wolf replied.

Taylor placed his own weapon onto ‘safe.’  He noticed that the nagging sensation  he had forgotten something was gone.  Replaying events in his mind, he reflected on failing to load his weapon earlier, with mild embarrassment.  Oh well, at least it wasn’t anything important.

 

 

 

 

 

 

 

 

© Craig Trebilcock Esq.