It wasn’t until she had a late-night breakthrough conversation with her daughter that Genrietta understood what was going on. As Violetta explained it, even though she believed that anyone in her place would have made the same decisions she had, and even though Clayton had understood the implications and risks inherent in their relationship, she knew that he’d done what he had to keep their relationship going, and she felt such regret and guilt and personal responsibility for his misfortunes that she had to find a way to stay faithful to him. She did not believe there was anything she could do to help him get out of prison, so she had sworn before his memory that as long as he was in prison, she would never marry, she would never have a child, and she would confine herself to her room because it was the closest she could come to sharing a cell with him.
A year passed, then another, and Violetta honored her vows, bearing the burden of her grief in lonely privacy like someone under a decree of eternal damnation. Outwardly the circumstances of her life continued to resemble Clayton’s in an uncanny way, as her self-imposed sentence of solitary confinement remained inviolate. Inwardly, she had no way of knowing how he was feeling—for all she knew he was bitter and thought of her as his betrayer, not his beloved. But every day she looked at the picture of him standing in Red Square and recalled his parting words, “Whatever happens, I will come back for you.” And when the day did come that he was a free man again, whether he returned to her or not, she knew in her heart that she would be able to say, “I too have served time in prison, I have made peace with myself, and my soul is clean before you.”
FROM RUSSIA WITH LOVE
22
Clayton Lonetree’s legal appeals were handled by a Washington, D.C., attorney who had been part of the military team that investigated the 1968 My Lai massacre, which led to the conviction of Lt. William Calley, Jr., for participation in the murder of 102 unarmed Vietnamese civilians. Lee Calligaro, a congenial, chain-smoking, forty-five-year-old, had become Lonetree’s attorney when Lawrence Cohen, a longtime acquaintance of his, phased out his involvement to become a judge in St. Paul. Although his specialty was in the health-care field, he took the case because he had a background in military law and he liked to have at least one pro bono case going on at a time. Before he’d even read the trial transcript, based solely on his reading of the news accounts, he had concluded that the court-martial had been conducted in such a way as to exaggerate public fears, which, in turn, had led to an unfair and excessive sentence.
Calligaro took a decidedly less contentious approach than that adopted by Lonetree’s former civilian attorneys, who had repeatedly criticized the military justice system before, during, and after the court-martial. Believing that the military was basically fair and well suited to correcting mistakes, and working closely with a bright appellate military defense counsel, Lt. Comdr. Lou Saccoccio, who was a graduate of Harvard Law School, he prepared a brief that argued that a number of serious legal errors had been committed in the court-martial. But there were three areas in particular that they felt held the greatest promise for a retrial, reversal, or reduction in sentence.
The first was the one that Stuhff and Kunstler had banked so heavily on: that Lonetree had been promised confidentiality in connection with the statements he gave to the CIA, and therefore those statements should not have been used against him at trial. The second was that Lonetree’s Sixth Amendment rights were violated when his attorneys were denied the right to fully cross-examine the pseudonymous witness, John Doe. And the third was that Lonetree had been ineffectively represented by his civilian counsel, who ignored plea-bargaining overtures so they could continue the case as a forum for publicity to further their own political agendas.
The appeal was filed in mid-1989 with the U.S. Navy-Marine Corps Court of Military Review (CMR), which was made up of nine military officers, Marine Corps colonels and Navy captains, people who for the most part had spent twenty years as lawyers. Delays piled up, so it was a year before the CMR rendered its decision, which was a virtual strikeout for the appellate team. The CMR judges wrote that when Lonetree approached the CIA in Vienna he “knowingly stepped outside of his military chain of command,” the Agency’s debriefings had been conducted for its own damage-assessment purposes and were entirely independent of the military’s criminal investigation, and “the two sets of investigators were at all times fulfilling their own unique duties and that neither side became the agent of the other.”
As for the legality of the “hooded witness,” the CMR ruled that “mindful of the dangers inherent in ongoing undercover work in a foreign country,” and recognizing “a compelling government interest to protect the identity of the undercover agent and the intelligence resources and methodologies used by that agent which could lead to his exposure,” the military judge had not erred in setting limits on the defense team’s right to cross-examine John Doe. Going one step further, it said that John Doe was only a “corroboration witness,” and after conducting its own review of John Doe’s background as contained in a top-secret affidavit, the court said it would not have been “a fertile area for cross-examination” and “would not have negated the guilt of the appellant which was overwhelmingly proven at trial.”
In the argument Calligaro made for “ineffective assistance of counsel,” he argued that the schism between the civilian counsel and the military defense lawyers went beyond a difference of opinion as to trial tactics and strategy, whether a pretrial agreement should be negotiated, and what was an acceptable amount of confinement. Calligaro asserted that Stuhff and Kunstler not only failed to adequately explore the possibilities of a pretrial agreement, negotiate with the government in good faith, and present a potential agreement to Lonetree for his consideration, they deliberately sabotaged his relationship with Major Henderson by maligning his motives and loyalties, and oversold to Lonetree the idea that the outcome of a court-martial would be favorable to him.
The Court of Military Review rejected the argument, but in a revealing footnote to its decision conceded that part of its consideration was the “unfortunate effect it may have in future cases.” In short, the CMR did not want to set a precedent that would allow for a situation where the government could prosecute a perfectly good case, only to have it reversed on appeal because of a defense counsel’s incompetence.
The U.S. Court of Military Appeals (COMA) was the court of last resort in the military justice system. It was a five-judge court, and the judges were all people with civilian rather than military backgrounds. So that they would bring a completely civilian perspective to the review process, they were not even permitted to be retired military officers.
As it turned out, that didn’t make any difference when it came to COMA’s evaluation of most of the defense’s arguments. They upheld the decisions of the CMR in every instance—save one. They concluded that Stuhff and Kunstler’s failure to seek a plea agreement potentially deprived their client of his constitutional right to competent counsel.
In a majority ruling the COMA judges wrote, “Lonetree offers us colorable claims… that civilian counsel offered him bizarre and untenable advice, consistently attempting to instill in him a distrust of his military counsel and consistently inducing him away from a plea bargain assuring him substantial leniency in the face of overwhelming evidence of his guilt.” They recommended one of two remedies: a hearing by a lower court to determine if civilian counsel’s level of advocacy fell “measurably below the performance ordinarily expected of fallible lawyers,” or a rehearing on the sentence to determine if Lonetree had been punished more severely than he deserved because of the conduct of William Kunstler and Michael Stuhff.