“You didn’t shoot at them, did you?”
“Didn’t have to. They were scared. They were old men and women, and mothers with babies and little kids. They cooperated right away.”
“Did you see what Sergeant Kubik was doing at that time?”
“Yes, I did.”
“What was he doing?”
Hernandez drew himself up and turned toward the jury. Claire’s attention quickened. When a witness turned toward the jury, or the judge, he was often about to say something that he expected would elicit a reaction.
“He-well, he was doing sicko things.”
“Would you use the term ‘sadistic’?”
“Objection.” Claire shot up. “The witness isn’t a psychiatrist or a mental-health professional, to my knowledge. He’s not qualified to render diagnoses.”
“Your Honor,” Waldron said, clearly annoyed that she had broken his rhythm, “the witness is permitted to characterize actions using words he’s familiar with.”
“Overruled,” Farrell said.
“Go ahead,” Waldron prompted Hernandez. “Did he do things you’d characterize as sadistic?”
“Yes, sir.”
“Can you tell us about those things?”
“Well, one old man tried to escape through the back window of his hut, and Sergeant Kubik, he says, ‘You want to flee? I told you to go out the front door.’ And he hamstrung the guy.”
“Hamstrung?”
“He cut the old man’s Achilles tendon. One slash of his knife. He said, ‘There, now you’ll never walk again.’”
Claire turned to Tom, who shook his head, compressing his lips. “Did you hear any of this before?” she whispered.
He continued shaking his head. “It’s a total fabrication, Claire.”
Waldron continued: “And what did you do when you saw Sergeant Kubik do this?”
“I told him to stop it.”
“And did he?”
“No, sir. He said, if I ever told anyone about it, he’d kill me.”
“Did he do anything else?”
“Well, yes, sir. It was so horrible.” Hernandez looked genuinely stricken. Either he was telling the truth, Claire thought, or he was a remarkable actor. “This boy-he couldn’t have been much more than ten-this boy was throwing rocks at him. Shouting obscenities. And Kubik forced him to the ground and took out his knife and sliced his belly.”
“Sliced how?”
“He made this quick Y shape on the boy’s belly with his knife. Real quick. Not deep.”
“What was the point of that?”
“Well, sir, it was so horrible.” Hernandez’s lips curled up on one side. His face was contorted as if he were about to be sick. “When you do that-well, the boy’s insides came out. His-his intestines popped out. When that happens, the victim dies a slow, agonizing death. I shouted-screamed at Kubik-but it was like he was enjoying himself.”
Claire whispered to Grimes, “Did this guy say any of this before?”
Grimes shook his head. “Nowhere I ever saw.”
“What about his original CID statement?”
“No way. You think I’d forget it?”
“We gotta object.”
“Ask for a 39(a) session, with the jury out,” Grimes said.
Claire stood. “Your Honor, this is the first we’ve heard this testimony. We claim surprise. We request a 39(a) session.”
“Is that really necessary?” Farrell asked.
“Sir, this is outrageous. The witness is introducing new material he never gave before, not in his CID interview, or his interviews with the prosecutor, or with us-”
“All right,” Farrell said, cutting her off. “The members will be excused.”
Everyone in the courtroom rose as the bailiff escorted the jurors out.
“Your Honor,” Claire said when the jury was gone and the witness temporarily excused, “this witness has been interviewed countless times about the incident in question, by army investigators, by prosecutors, and by ourselves. Not once did he make mention of all this alleged sadism by my client. Now, if the government is going to try to tell us that the witness has been hypnotized, I want to hear it now. Because the courts have recently been taking a pretty dim view of hypnosis-induced prior recollection-”
“Your Honor,” Waldron said, “this incident took place thirteen years ago, and, given the horrific nature of Sergeant Kubik’s actions, it’s only natural that the witness has tried to forget it.”
Claire gave Waldron a look of astonishment. “Is trial counsel trying to say that the witness didn’t recall these alleged actions immediately after they took place, when the CID interviewed him in 1985?” Claire snapped. “Your Honor, in light of the new testimony being presented, we request a reinterview of this witness, as well as time to confer with our client and among ourselves.”
“Your request is granted,” Farrell said. “We will resume after the lunch hour, at fourteen hundred hours.”
Waldron brushed by Claire on his way out and remarked casually, “Saw your name in the paper.”
She looked up, but before she could think of a response, he was gone.
They interviewed Jimmy Hernandez in a small conference room within the classified facility.
He sat uncomfortably at the conference table, his eyes hooded and darting uneasily.
“So,” Grimes said. “Sudden rush of memory, huh?”
Hernandez scowled, twisted in his seat.
“Have you been hypnotized?” Grimes asked.
His scowl deepened. He rolled his eyes.
“Cat got your tongue? You got anything to tell us you forgot to tell us before?”
Hernandez said nothing. With his index finger he stroked the scar under his right eye.
“Lemme ask you something,” Grimes went on. “You and Marks-how far back you guys go?”
Hernandez furrowed his brow, shrugged.
“Colonel, look,” Claire said. “We have copies of the citation and the statements from when you got your first Bronze Star, at the end of the Vietnam War. One of the eyewitness statements that supported your citation was a William O. Marks. So you two obviously go back quite some time. What I want to know is, how many times did you serve with him?”
“A lot,” Hernandez finally said. “Many operations.”
“A lot,” Claire echoed. “Care to be more specific?”
Hernandez shrugged again.
The reinterview went on for almost an hour.
When Claire, Embry, and Grimes entered the conference room where Tom had been sitting, his chasers standing post outside, Tom got to his feet. “Every time I think they can’t sink any lower,” he said, “there’s a new low.”
“I take it you deny it,” Grimes said, handing him a cardboard-encased double cheeseburger and large fries.
“I hope you’re kidding me,” Tom said, taking them. He unwrapped the burger ravenously and took a large bite.
“I’m not. These are serious accusations, whether they come out of left field or not.”
Tom chewed quickly, shaking his head. His reply was muffled. “Of course I deny it. I deny them all. How can you seriously ask?”
“It’s my job, man.”
“Claire, you don’t believe that crap, do you?” He put down his burger.
“No, I don’t believe it,” she said. “The way it was introduced is totally suspicious. I don’t believe he’s suddenly an honest man.”
“That isn’t what I’m asking,” Tom said. “I’m talking about me. Forget about the legal junk. You can’t possibly believe that about me.”
She felt her stomach tighten. “No, Tom,” she said. “Of course I don’t. Terry, do you think you can try to turn up Hernandez’s medical records?”
“Sure,” Embry said. “I mean, I think so.”
“But quietly, okay? I don’t want Waldron to know-he’ll make us show relevance.”
“No problem. But what are you looking for?”
“Well, correct me if I’m wrong, but isn’t it true that psychiatric records aren’t privileged in the military?”