“Well, if they’re going to issue the stay at all, now would be a good time! I mean, if no stay today, by tomorrow night my guy is eating with the big metal spoon, if you know what I mean.” I’m on the phone to appellate defense in Washington, D.C. I look at my watch. The digital face reads 00:31. Ten-thirty in the morning east coast time.
“Alright, bye.” I hang up. I’m looking at documents, but I’m not really seeing anything – David Ponder’s record book, letter from his wife, character statements, and I’m trying to imagine how I’m going to defend him tomorrow. I’ve got one last motion that I’ll bring at the close of the government’s case. One last grasp that has a sound basis in law, but the judge will deny it, at this point. It’s a technicality.
From the beginning I’ve had the sense that they have mischarged the offense, perhaps intentionally. The prosecution has charged it as willful disobedience of a superior commissioned officer. Under the UCMJ, that has a stiffer penalty than the more general charge of violating a lawful general order, such as the order from the Secretary of Defense, to take the anthrax shot. The government has charged it as violating the specific Navy Lieutenant’s order, but there is an old case that stands for the proposition that merely repeating a higher order can not make an orders violation the more egregious willful disobedience of a superior commissioned officer. It is called the “ultimate offense doctrine,” but it probably isn’t going to work. Nothing else has.
I’m tired. I haven’t slept much, I need a shave, and my back is killing me from my tiny desk chair at home and my broken desk chair at work. I need to get David’s sentencing case together, review my opening statement and closing argument, and make sure all of the documents are in my case file, with necessary copies for each of the jurors…
My head nods and I realize I’ve drifted off at my desk. I look at my watch and see it’s 2:33 am. I rub my face and decide to take a walk.
The building is dark and empty, except for me and the feisty Okinawan cockroaches. I stroll the dark corridors, my sneakers making a light tread on the tile. I stretch my arms over my head as I walk to the entrance. Out the window, the open field beside our building is dark. I can barely see the slope that I know rises up to a road that runs next to the next set of office buildings and the barracks.
I hear the phone in the clerk’s office ring, but there’s nothing particularly unusual about that at this hour because of the time difference; people frequently fax documents from the States during our nighttime in Okinawa. The fax ticks away, a counterpoint to the flying bugs banging into the glass on the door and the light just outside of it. Tick-tick-tick. In seven hours, David Ponder is going to be facing a jury, and likely going to jail. Unless that fax. . .
I walk hurriedly to the defense clerk’s office and go to the fax machine behind the clerk’s desk. Letter-sized sheets are spitting out, face down. I grab one and flip it over to see if it has anything to do with me. The cover sheet is from the Washington Navy Yard. I grab the whole stack while more keep sliding out.
My eyes flick over the words.
“YEAHHHHHHHHHHH!!!!!” I let out a guttural yell that echoes throughout the empty building. “Can you feel that, huh!?! Baby, can ya’!?” My best Ace Ventura, hips thrusting, fist pumping. I want to cry with relief. We beat the clock by seven hours. I’ve kept my promise to David and his wife, to Jason Stonewall, and Vittolino Arroyo. We have a stay from the Navy Marine Corps Court of Criminal Appeals. No one’s going to jail tomorrow.
I take my time packing up and make a few copies of the stay. Before I leave, somewhere near 3 am, I take a ten-penny nail and hammer the stay to the prosecution’s office door. I don’t do it right through the middle, however, because I’m still a Marine Officer and someone might bitch to the CO about a nail in the door. I hammer the nail just deep enough to look like someone was careless; but not all the way through the door, for example. I also place the nail an inch or two above the middle of the sheet, close enough to the top of the sheet that it doesn’t look like it was intentionally in the middle, but far enough down that someone will have to either rip the paper in half to get it off or pry out the nail. It’s an asshole move, to be certain, but I know it might be all the satisfaction I’m going to get in the long run, so I indulge myself. It’s the little “fuck yous” that matter in life. It won’t be the last laugh, but it’s enough to make me smile as I walk to my car for the drive back to Kadena Air Base officer housing and my wife and four daughters.