The language of the appeals-court decision was remarkable for its colorful bluntness. Courts rarely embarrass lawyers with the use of words such as “bizarre.” Asked by the New York Times to comment, William Kunstler said that as a matter of principle he would not dispute the claims of ineffective counsel. “If they can win their case by proving any dereliction on my part, it would be all for the good and I cheer them on.” Mike Stuhff was less charitable. In a letter he fired off to Lee Calligaro, he branded the complaint against his representation of Lonetree as a “cynical, dishonest and harebrained scheme” and demanded “you retract all the allegations of your brief.”
That didn’t happen. Instead, a rehearing on sentencing was held at Quantico on October 29, 1993, to consider whether Lonetree had been misled by his civilian lawyers, resulting in an excessive sentence. If such a determination was made, he was to be immediately resentenced.
Although the hearing was held in the same building and the very courtroom where the court-martial took place more than six years earlier, this proceeding bore little relation to what went on before. It was conducted before a military judge, Lt. Col. David Anderson, not a jury. There were no armed guards patrolling the grounds and no passes required for admission, removing the impression national security was at stake. In place of a media horde a mere three reporters showed up to cover the event, along with Lonetree’s parents. And in complete contrast to William Kunstler’s abrasive and combative style, Lee Calligaro epitomized reasonableness and sincerity.
“We are not here to decide questions of guilt or innocence; we are here to determine an adequate and sufficient sentence,” Calligaro announced in his opening remarks. And toward that end he had flown in two key witnesses to testify: Maj. David Henderson, who had since retired from the military and was now working for the U.S. Attorney’s Office, and Clayton Lonetree.
Lonetree went first. He had put on weight since his court-martial, his hair was longer, and the dark frame of his glasses lent a bookish aspect to his appearance. Entering Lejeune Hall, he had worn an E-1, or private’s, uniform, but for the hearing he was allowed to wear his sergeant’s uniform with the ribbons and stripes. After taking a seat on the witness stand, he was led through a highlighted recitation of the sequence of events that had resulted in his espionage activities in Moscow and Vienna. But while drawing out this information Calligaro tried his best to achieve a balance: He did not want to bring the offenses back to life too vividly, but he did want the court to see that Lonetree accepted full responsibility for his actions, was able to bring understanding to his “absence of judgment,” and was genuinely remorseful.
The second phase of Lonetree’s testimony left the distant past for the recent past, turning to the six and a half years he’d spent in the military barracks at Fort Leavenworth and the occupational skills he had developed in the print shop and woodshop during that time, the fact that he was pursuing his associate of arts degree, and the list of books he’d read by authors such as Stephen Crane, Herman Melville, and Jack London.
In his performance on the witness stand Clayton Lonetree continued to project the image of an introverted and reserved person, taking a customary moment to reflect on the questions before answering in a soft-spoken voice. And yet, clearly, he was a different person. The impression he made was that the enormity of his court-martial and sentence had hit him in a way that forced him to realize this was as low as it goes; and his intelligence was such that, finding himself in a situation where he could do one of two things—grow and mature, or despair—he appeared to have chosen the former, utilizing the enormous amount of time he had for introspection, and taking advantage of the opportunities around him. His records from Fort Leavenworth and the evaluations of the staff psychologist supported that notion. Calligaro read just a few excerpts, the ones that described Lonetree as a “model inmate,” someone in whom there was “surprisingly no bitterness or blaming of others or blaming the system,” someone “with a great degree of insight into how he was manipulated,” someone with “no orientation to the continuance of such behavior,” who had been “successfully rehabilitated and serves no current risk for future acts against the United States Government or other criminal behavior.”
When it was Major Henderson’s turn to testify, he put the Lonetree court-martial in context, describing in compelling detail the frenzied atmosphere of the time, when this case had been portrayed as the spy scandal of the century, and the impact those sensational allegations had to have had on the members of the jury who issued a thirty-year sentence. Henderson characterized his former client as a lightning rod for circumstances beyond what the facts of his offenses warranted, and maintained that when all was said and done, Sgt. Clayton Lonetree’s actions had had minimal impact on national security. In support of his opinion Henderson referred to a letter the defense had received from the commandant of the Marine Corps, Gen. Al Gray, within two years of the court-martial, wherein it was written, “Our review of post trial damage assessments satisfies us that [Lonetree’s] misconduct did not equate to the seriousness of other recent national security cases, and that his sentence is disproportionate to that of other convicted service members or employees of the Department of Defense….”
Finally, Calligaro addressed the question of where he expected Lonetree to go from here, and along those lines he played a trump card. His main client in the health-care field had recently signed a contract with the Navajo Nation to establish a substance-abuse program on the Reservation, and they had offered Clayton a counseling position. Obviously he was not going to provide clinical treatment and therapy himself, but he could be a buddy to those in the system. Someone who could put himself in the other guy’s shoes because he had made mistakes, and he knew what it took to overcome adversity. It would be employment that would permit him to turn some of the very problems that got him into trouble around to help others, make a positive contribution to society, and regain his self-esteem.
In his closing, Calligaro mentioned the Court of Military Appeals’ ruling on ineffective assistance of counsel, but purposely he did not dwell on it. His thoughts on the effective role of an advocate within the military system were that the judge was well aware of the ruling, the issue before them was appropriate sentence, and he had decided it would be more productive to focus on Lonetree and the progress he had made. But he did introduce an affidavit from former prosecutor Dave Beck that said, “Sgt. Lonetree deserved to be punished and a tough message had to be sent in sentencing. But the service of justice needs to be monitored… and in Sgt. Lonetree’s case the purpose of punishment has been served.” And referring to the fact that Lonetree, without asking anything in return, was cooperating with a study conducted by the FBI’s Behavioral Science Unit, which was trying to develop a psychological profile of individuals who had committed espionage, Calligaro reminded the court that his client had done everything you could expect of someone who had made a mistake, recognized it, and tried to make it right.
“Clayton doesn’t ask for forgiveness. He knows what it means to be a Marine. Those who serve with pride, honor, and faithfulness often take for granted what Clayton Lonetree knows in his heart: what it is like to lose that dignity, that uniform. He has said that the worst part of this whole thing is that he will never again wear the Marine uniform. If ever someone knows what that means, and regrets it, it is Clayton Lonetree.”