Standing ramrod straight at attention, Sergeant Lonetree listened to the verdict. Not only had all eight officers agreed on his guilt, they convicted him of every offense on the charge sheet.
Immediately after the verdict was announced, the counsels for the defense held a press conference in front of the television cameras outside the courthouse.
“As we’ve told you before, this judge did not let us have a fair trial,” Mike Stuhff said. “We don’t think this conviction will stand. We are going to appeal.”
“Marine justice failed him,” Kunstler told reporters. “Corps pride, Corps pressure had a lot to do with this verdict.”
At that moment Lonetree appeared with his military guard escort walking toward the van that would take him back to the brig. The defense team and several supporters began to applaud. “Innocent,” his mother, Sally Tsosie, shouted.
“How did Sergeant Lonetree take it?” a reporter asked.
“I put my arms around him and he was shaking,” Kunstler replied, “but he took it like a Marine.”
14
When Mike Stuhff announced in his opening statement that the defense intended to prove that Sergeant Lonetree had been acting as a do-it-yourself double agent, Major Henderson had been dumbfounded. They had discussed that approach to trial and he thought it had been rejected because there wasn’t enough there. No supporting evidence, and Sergeant Lonetree never said he’d thought of himself as a double agent.
Henderson was not opposed in principle to throwing out red herrings as a defense strategy, particularly when you were saddled with a confession case. But if that was what civilian counsel had in mind, he felt the way they then went about presenting it was backwards. If you were going to try to sell a jury on a theory for which there were few if any facts, you didn’t promise something in your opening statement you were not going to be able to prove. That was a killer. Not only did you give the prosecution a chance to bring in rebuttal witnesses, you’d also given them their closing: “Gentlemen of the jury, our opponent said he was going to produce X, and he didn’t do that.” What you were supposed to do was build your case through cross-examination, asking proper questions at the proper time of the proper people, laying the groundwork and getting evidence into the record so you had something legitimate to work with at closing, when you argued an interpretation of the facts that you hoped would confuse the jury enough to create reasonable doubt.
That wasn’t the only problem Major Henderson had with the defense put on by civilian counsel. Stuhff and Kunstler seemed unable to make up their minds what they wanted the jury to believe about Sgt. Clayton Lonetree. That he was someone who circumvented the rules in an effort to do something grand for his country? That he was a naive, hapless chump bamboozled by a KGB swallow? That he was a victim of CIA dirty tricks? That he was a scapegoat for the excesses and oversights of superiors? During the course of the trial they had sampled some of each explanation but had developed no one explanation in a way that would stand up to the prosecution’s evidence.
The trial had been a frustrating ordeal for Major Henderson. Not only was he unaccustomed to being relegated to a backseat role, whenever he’d tried to make a contribution, he’d been slighted. Once, when he had detected an inconsistency in a witness’s testimony on cross-examination, Henderson had written a note to Mike Stuhff suggesting a question he should ask, only to be given a backhanded wrist wave that said, Leave me alone, I’m doing this my way.
But that insult was not what brought Major Henderson to the decision that he could no longer sit idly by and grit his teeth. Nor was it the way civilian counsel continued to pursue legal issues he thought lacked promise, sniped at witnesses contemptuously, and were contentious with the judge—all of which he did think were destined to work against them. It was when he realized that civilian counsel appeared to have given up on the idea that the military justice system was capable of rendering a just and fair verdict, and to have stopped aiming their case to the jury and pointed it elsewhere. To the press, to whom they would make statements critical of military justice during recesses. And to an appellate court, where they seemed to think the errors of the current proceedings would be cured if they did not get an acquittal.
Major Henderson thought this was a major miscalculation. Whether civilian counsel liked it or not, the eight Marine officers in the jury box were going to decide the fate of their client. These were mature, educated, professional military people who took their responsibilities seriously. When the time came for them to deliberate, their desire would be to see justice done. If they felt an accused was wrongly charged and an injustice was taking place, that would mean a lot more to them than caving to the desires of a higher authority, which was what civilian counsel seemed so concerned about. To think they would do less demeaned them and insulted the process. For the jury not to follow their consciences would harm the system they were sworn to uphold.
And so to counter the negative impression civilian counsel was making before the jury, Major Henderson had made a decision to begin sending private messages their way. Ethically he was walking a fine line. As an officer of the court there were rules he had to obey and conduct that had to be observed. But there was nothing in the books to prevent him from getting up and leaving the courtroom at key times, indicating he did not consider a particular area of inquiry to be important. Nothing to stop him from signaling through body language his restlessness with a nitpicking cross-examination on the part of civilian counsel. And when he pulled out a pocketknife and began whittling at his fingernails, it was done to let the members know this was Bill Kunstler’s show, and had little to do with him or their client.
What happened when final arguments were given had been the final straw for Major Henderson. At the start of the trial Mike Stuhff, in his role as lead counsel, had told Henderson that since he was the one most familiar with the military community, he would be giving the closing argument for the defense. Throughout the proceedings Stuhff had assured Major Henderson the closing was his, so Henderson had thought a lot about what he was going to say and how he was going to say it. Then, two days prior to closing, Mike Stuhff came up to him and said, “Dave, I’m sorry, but I’m going to let Bill do the closing.”
“You’re shitting me,” Henderson said. “I don’t believe it. He doesn’t have the foggiest idea how to sell this case to a military jury. He hasn’t even been here for the entire trial. How can you do this?”
Even as he asked the question, Henderson knew the answer. Throughout, Stuhff had deferred to William Kunstler. Whenever Henderson had voiced a different opinion, Stuhff had sided with Kunstler. Stuhff seemed to assume that if it was important, then Kunstler would pick up on it.
Mike Stuhff shrugged. “He wants to do it. I’ve got to let him.”
Henderson was livid. “What’s more important? Your relationship with Bill Kunstler or your client?”
Kunstler’s closing argument made Henderson cringe. At one point Kunstler deliberately brought in information that had been ruled inadmissible, so inflaming the judge that Roberts threatened to end the summation if Kunstler did it again.
In a military court-martial the jury also determined the sentence, and immediately after the guilty verdict was announced, Henderson cornered Mike Stuhff. “Okay, you guys have had your shot, and if you want my opinion, you’ve lost all credibility with the jury. I’m going to handle sentencing.”