Now it was their turn to call witnesses who presumably would buttress their contentions, and expectations ran high. You needed a lot of evidence to sell a theory like that, and court observers were anxious to see how the defense intended to go about making its case. In the halls outside the courtroom people were whispering excitedly, “Now, we’re going to find out what Kunstler has up his sleeve.” Even Dave Beck was nervous, because in the military the defense did not have to declare its witnesses ahead of time, so he had been unable to prepare for what was coming. Having heard it alleged that Lonetree was a pawn in an intelligence scheme involving Uncle Sasha, he assumed the defense had a hole card it was going to play to back up that charge. And he certainly expected that Sergeant Lonetree would get up on the stand and present a version of his actions that supported what his defense attorneys had been saying. But for more than that he would have to wait.
When the defense submitted a list of five names that included two Marines friendly with Lonetree who would testify that he expressed pro-American sentiments in conversations with them, two expert witnesses who were going to testify about interrogation abuses and how they led to false confessions, and the former CIA employee and author Philip Agee, those books had publicly listed the names of hundreds of CIA agents, whom they expected to testify that it was easy for the Soviets to determine the identity of intelligence agents through a variety of methods, those in attendance were puzzled. Surely the defense had more than that going for them.
Rapidly it became clear they did not. When Judge Roberts denied permission to call all but the two Marine character witnesses, saying their testimony would be irrelevant to the charges against Sergeant Lonetree, Mike Stuhff made a motion for a mistrial on the grounds that the judge had “foreclosed our opportunity” to effectively present a defense before the jury. Roberts denied the motion with a rare public rebuke—“Counsel, you have with typical hyperbole expressed outrage at the rulings of the court [when] the notions of relevance you bring, quite frankly, take the breath way…. The court would not dream of reopening the case for the reasons stated”—and moments later the defense announced it would rest its case.
The silence in the courtroom was resounding. No one said anything, but everyone felt cheated, and the same thoughts ran through everyone’s mind: What? Wait a minute. I thought…
Outside the courtroom civilian counsel explained themselves.
“We’ve had a rough set of rulings on what the judge considers proper and relevant to bring to this jury,” Mike Stuhff told reporters. “He has very clearly restricted us from putting on a case. We think that he’s way out of bounds and clearly not allowing us to tell Sergeant Lonetree’s story.”
William Kunstler went even further. “This judge, who is totally programmed, is determined to convict the defendant if he can…. He is a disgrace.”
Asked why he did not let his client testify, Kunstler replied, “To ask him to make an emotional plea on behalf of himself subjects him to cross-examination. I don’t think he’s capable of handling that. If we put him on, I think Clayton would collapse under cross-examination.”
Despite putting on no witnesses, Stuhff said they were not conceding defeat. “Even with the hanging of the ball and chain the judge put on us, I think we put on a pretty good case.” When reporters asked him to elaborate, he said they scored numerous points for Lonetree during parts of the trial that were conducted behind closed doors.
Asked what verdict he expected his client to receive, Stuhff shrugged. “If indeed there is not an acquittal, the kind of record we have now is certainly the kind of record that any appellate lawyer would find many, many issues on which to base an appeal.”
Closing summations were given on Friday, August 21, and Major Beck led off. “The issue in this case is quite simple,” he said, “and from the evidence presented, the government contends the answer is equally clear…. Sgt. Clayton Lonetree violated his oath and the special trust and confidence that was placed in him, and sold out our national defense and intelligence interests to a nation which has since the early 1950s declared our country public enemy number one.”
The defense, Beck said, “has come up with more theories, changed their theories more times, showing that all they have is a smoke screen, trying to hide the obvious fact of this accused’s guilt. The accused was unwitting, they said at first. And then they said, Well, no, the accused was very witting, he was out on his own, he was trying to set up the KGB, he was going to haul them in. When it became obvious, the hollowness of that defense, then they said, No, no, no, Sasha was a double agent for the United States. You know, gentlemen, from the evidence presented, that all of those claims are preposterous…. There is no evidence before you [in support] because there’s absolutely no basis in fact for such claims.”
Major Beck liked to finish as strong as he started. “A message needs to be sent, a punishment needs to be made, that crimes like this will not be tolerated.” After a lingering look at the defendant, he turned to the jury. “The defense would have you believe that Sgt. Clayton Lonetree is an innocent Walter Mitty type. He’s not. While he wore the uniform of a United States Marine, he betrayed his country. He is a real-life Benedict Arnold.”
William Kunstler delivered the closing statement for the defense, and after disputing the prosecution’s claim that this was a simple case, he tried to show just how complex a case he considered it to be by going over the facts once again, only this time turning the testimony and the evidence in such a way as to present an interpretation of Lonetree’s motivation that favored the defense. Lonetree was immature, Kunstler admitted. He was naive and stupid and a victim of his own fantasies. But he never intended to betray the United States. He was a scapegoat who was being tried to shield the Marine Corps from the embarrassment of a larger failure in its security guard system.
Straining for an equally powerful finish, Kunstler also looked from his client to the jury, before challenging them to be absolutely certain when they decided whether Sergeant Lonetree was guilty of espionage, because if they failed to render justice it would later haunt them. In conclusion he promised them that if they found Sergeant Lonetree guilty, “Then I tell you that some night, somewhere, sometime, you will wake up screaming.”
After receiving instructions from the judge, the jury retired to deliberate. To convict Sergeant Lonetree two-thirds—six of the eight members on the panel—would have to agree on his guilt and vote for a conviction. Since it was Friday afternoon, it was expected that they would reach a decision sometime over the weekend, but three hours and forty-five minutes later they returned, and their decision was a unanimous one.