I sent out the judge’s ruling in Corporal Stonewall’s case to a list of people the same night the judge issued it. I was in despair. Now what would I do?
Major Tom “Buzz” Rempfer, USAFR, was an Air Force Academy graduate, former F-16 pilot, then A-10 pilot, and flew for one of the major airlines in his day job. He was the poster boy image of an Air Force pilot. He also had been appointed by his Reserve Squadron Commander to a “Tiger Team” to investigate some of the “rumors” that were going around about the Anthrax Vaccine. His Team’s investigation would get him thrown out of his unit and publicly branded a coward by his CO. Tom and Major Russ Dingle, another member of the Tiger Team, were on the leading edge of the anthrax program’s problems. The “rumors” about which their CO was concerned began with the first Reserve squadron to receive the vaccine, based in Dover, Delaware. Most of the Reserve Air Force pilots who got the vaccine were also airline pilots in their day jobs. Thus, when some pilots started having adverse reactions, it meant they also lost their flight status in their civilian jobs because they were medially grounded. Colonel John Richardson, USAFR, was involved early on, as were Major Sonnie Bates’ attorneys, Lou Michels and Bruce Smith.
Someone in that group mentioned the name of an attorney in California who was filing an extraordinary writ in an anthrax refusal case. The writ asked the intermediate appellate court, the Navy-Marine Corps Court of Criminal Appeals (NMCCA), to find that the judge had erred by ruling that the order to take the vaccine was not just lawful, but unquestionably lawful. California was seventeen hours behind Okinawa.
I looked at my watch. I was on the phone at 12:30 am, or 0030 military time, 9:30 PST.
On August 9, 2000, I made the same arguments I had made in Jason Stonewall’s case in David Ponder’s case. It was even more surreal because the judge had already ruled in Jason’s case and we both knew it. I tried my best to pretend that we both didn’t already know the outcome, but what was the point? It was the same judge. What were the odds he was going to arrive at a different conclusion in David Ponder’s case? I gave it my best effort, but most of my energy was being spent working on the extraordinary writ appealing the judge’s rulings on our motions in Corporal Stonewall’s case.
I pounded the table, addressed his four findings specifically, probably even stepped over the line in calling his logic “ridiculous” that one could not plead a federal law in defense at a court-martial. I was heated and I wouldn’t have cared if he threw me in jail for contempt. We finished at 3:25 p.m. Wednesday afternoon.
At 4:00 p.m. I was right back in court on Jason Stonewall’s case. We set dates for our next session of court, which would be the trial. We would have to listen to Stonewall’s legal officer say that he gave the order, it wasn’t followed, and then case over. Time was running out on us.
On August 18, I got tricked, bamboozled, swindled, hornswoggled, whatever name you can use to describe being duped. It really happened sooner, right after our prior session of court, but the trap wasn’t sprung until the 18th. I walked right into it.
The prosecutor had asked me a few days after our oral arguments in Ponder’s case if we could have a “quick” session of court in order to take the testimony of the officer who had actually given David the order to take the shot. The officer had flown in from the mainland or Korea and was there any reason we couldn’t preserve his testimony now while he was here? I had just come off of the rifle range a day early and the request seemed fairly benign. After all, it was a Friday afternoon at 1:30, what could happen? The prosecutor had asked me if I would mind letting him proceed with his witness and then he wouldn’t oppose a continuance request by defense. It seemed reasonable to me and the collegial thing to do was accommodate the request. On such minor accommodations do the courts continue to function and without which they simply would not.
By then, I had already filed my extraordinary writ with the appellate court, which was ‘extraordinarily’ rough because of the time constraints, but it was filed with the court. I was also worried, but optimistic by then. NMCCA had issued a stay in the case of Ocean T. Rose, another Marine who had refused the vaccine in California. Rose’s case had proceeded a little ahead of our cases, but they were all essentially mirror image cases. The stay meant the court-martial below was stopped while the accused got a hearing in front of the appellate court on the judge’s denial of his motions. I was in steady contact with his counsel about potentially joining our cases for purposes of the stay. I figured the stay would issue within a week, maybe two. Sure, Chris we’ll take the government witness’ testimony, continue the case, and then boom! I’ll get my stay. I had even come out of the funk of depression I had been mired in for weeks.
Imagine my surprise when the prosecutor stood up in court and objected to my continuance. When I stared over at him, less than two feet away, my eyes bored into him. He wouldn’t look at me and that was probably wise on his part. A lifetime of playing hockey did not make me forget being wronged or improve the gentlemanly disposition I was supposed to display in court. I felt like I had just gotten a proverbial slash on the back of the legs. I was ready to drop the gloves and punch his teeth down his throat on the spot.
“Sir, an extraordinary writ is currently pending before NMCCA,” I began in response to the Judge’s question about why I wanted a continuance. “It has been served on that Court. In light of that Court’s issuance of a stay in the case of United States versus Rose, we believe there are good grounds to request a continuance, especially where there have been no continuances requested by defense up to this point. This would be our first and it’s not an undue burden on the government to ask for one. Finally, sir, we are willing to stipulate to the government witness’ testimony, or allow that witness to be heard and then have the case continued, or we could even depose the witness. Additionally, sir, you haven’t even officially ruled in this case on the record. Normally, the rules for appellate procedure allow the defense twenty days to appeal an adverse ruling.”
Judge Stone seemed to think for a moment.
“Have you made a forum election in this case?” I wondered what that had to with anything and I went through my own mental checklist.
“No, sir, we have not,” I answered evenly. Already the wheels were turning in my head. I had ridden an emotional roller-caster in this case, into hopelessness after the Judge’s ruling on our motions and back out with the Rose stay. I was not going to plummet back down again. Worst of all, I had violated my own rules, and I had given David Ponder – and his wife – my solemn word that he would not be going to jail tonight. I should have been tipped off when he told me that the command had him inventory his gear and was acting like he was. I should have put it all together then, but I hadn’t.
“I am going to need a moment to reflect upon your proposal and the government’s opposition.” The judge sat back, pensive.
“Sir,” the prosecutor began, while I fantasized of having a hockey stick in my hands, “the defense has just raised an issue. If you haven’t ruled yet, then what are they appealing at this point –” I was on my feet instantly.
“Let’s talk about that for a moment,” the judge said. He turned to me. “Did you receive my electronic mail with regards to my anticipated ruling?”
“Yes, sir, and that was the basis for sending the writ up to NMCCA.”
The judge sat for a moment longer.
“I’ll tell you what. What I am going to do is put my ruling on the record in a minute and then we’ll take up the matter of what, if anything we’re going to do today. My current inclination is to proceed through arraignment and the taking of the government’s evidence and possibly ask you for evidence. Is that fair enough?”
“Yes, sir,” I replied warily.
“This court stands in recess.” I started to leave the courtroom, but the Judge indicated he would be right back and motioned for us to stay. He exited out his side door. I stared at the prosecutor. He still wouldn’t look in my direction.
The judge came right back in and hopped into his chair.
He read through the identical findings he had made in Stonewall’s case on the motions. It still made my stomach sink to hear it in open court.
“Now, at this point I’ll take the accused’s forum election.” I had a bad feeling about this.
“Sir, if we could, we’d like to get a ruling on our request for a continuance before the accused elects his forum.” I no longer cared what the judge thought. I was completely out of pretense. If he didn’t grant our continuance, I was going to tell David to elect a jury with enlisted members as his forum. If the trial counsel was going to lie to me in order to get me into court, I was more than willing to go back on an email I had sent that I anticipated we would elect judge alone as our forum. Fuck ‘em both. The gloves were now off.
“Well, you’ll have to give me a better reason than that… Or provide me with some law.” The judge looked at me and I knew he had every intention of finishing this case today. I had no lawyerly pretense left in me.
“Sir, if this court does not grant a continuance, that means that if the accused elected judge alone as his forum, we could proceed through the entire case today. The government has one witness. In all likelihood, there is no question about whether or not the order was given. It is quite possible then that this case could conclude with an adverse finding against the accused with a writ pending before NMCCA where a stay is likely to issue. Sir, in the Rose case, the writ was served on NMCCA on 4 August and the stay was issued three days later on 7 August. We served our writ on the court on Wednesday afternoon, eastern standard time. That means tonight it will have been two days. I start a contested trial on Monday in another case. What harm is there to the government’s case to grant a six day continuance? If the stay doesn’t issue in that time, then we go forward. This is a miniscule request, sir. If the judge denies that continuance request, then the accused will elect enlisted members in anticipation that the stay will be granted. We will need time to get the members’ questionnaires, prepare voir dire, et cetera. So, quite frankly, we’re using the procedure to give us the time we need for a stay to issue. Straight up, that’s what we’re going to do.” I didn’t know if I had just violated a half dozen rules in the code of professional conduct or the JAG Instruction and at that point I didn’t care.
The judge paused. He wasn’t angry, but he certainly didn’t seem too pleased.
“I appreciate your candor, counsel. Nevertheless, I would imagine it’s an improper reason. Actually,” he paused for a moment, “there is no improper reason. If the accused wishes to be tried by members, that is a perfectly fine selection as far as the court is concerned. I do appreciate your candor. I hate to put the accused in a bind of forcing him to choose trial by members solely to for the purpose of getting delay in the case.”
“Do you have anything?” he turned to the prosecutor.
“Basically, sir, they’re threatening members if they don’t get their continuance because their sole purpose of requesting members is for a delay tactic.” If I had accomplished little else, I had gotten the prosecutor pissed and that alone made me feel better. “And we believe that to be improper. However, that’s within the discretion of the court.”
“You know as well as I do that defense may and has every right to select trial by members. Would you like a few moments?”
“Yes, sir, we’d like a brief recess.” The prosecutor stormed out of the courtroom. I turned to David Ponder, who really looked nervous now, the first time I had seen him visibly shaken in the entire case. It had come home to him; he could be going to trial and likely jail in no time at all. He turned to me.
“I’m not going to the brig tonight am I, sir?” I leaned over and looked at the back of the courtroom, out the door where Captain Kolomjec had gone.
“Not tonight,” I whispered back. I said it with a confidence that I didn’t really feel. I had never promised a client anything, but overcome by my own confidence and trusting in the prosecutor’s promise, I had given David and his wife Jennifer my word that he was not going to the brig that night because there would be no trial.
When Kolomjec returned, the judge allowed us to argue on why a continuance should be granted. I didn’t want to have David elect members, but I was willing to try anything at that moment. David’s freedom, Jason Stonewall’s, PFC Arroyo’s, everything hinged on a stay being issued.
After we argued, the judge denied the continuance, despite the judicial mandate that continuances should be granted liberally. Worse yet, because I was starting a contested general court-martial in an officer case on that following Monday, the judge ordered that we would start the trial tomorrow, on a Saturday morning. I noted my objection three times, but we were sunk. If the writ didn’t come by the end of the work day east coast time, David Ponder would be going to the Brig the next day.