The Eighth Sister (Charles Jenkins #1)(102)
“Enough,” Harden said in a soft but bemused tone. He went through the documents for several minutes before setting them down. He took another minute. When he spoke his voice was calm, but stern, like a father talking to a child who had broken curfew. “Ms. Velasquez, earlier I asked you a direct question, whether you had looked for the documents requested by the defense.”
“Your Honor—”
“It’s a simple question, Counselor,” Harden said, raising his voice to speak over her. “Did the government look for these documents?”
“No. The government did not. Might I add, Your Honor, that the government has no control over LSR&C’s documents and therefore—”
Harden smiled, clearly having anticipated the argument. He shook his head as he interrupted her. “No. No. No. Ms. Velasquez. I’m looking at documents that originated from the CIA and from other government offices. Mr. Sloane, are there additional responsive documents?”
“There are, Your Honor.”
“Please present them to the court.”
Sloane directed Jake to present the four bankers boxes.
Harden clenched his jaw. “I will review the documents in camera and make three determinations. First, whether the documents are responsive and relevant to the requests. Second, whether the government has willfully withheld relevant documents and lied to this court, and, third, whether these documents are admissible in the defendant’s upcoming trial. Anything else, Mr. Sloane?”
With a clear change in Harden’s attitude, Sloane remained on the attack. “Yes, Your Honor. The defense requests the government be compelled to provide Carl Emerson’s last-known address, as well as the date he retired from the Central Intelligence Agency, along with relevant documents.”
Velasquez said, “Your Honor, the government can’t produce what it doesn’t have.”
Harden scoffed. “Look a little harder, Counselor. Maybe you’ll find that information in the same location you would have found these documents. When you do, I’m ordering you to provide the last-known address to defense counsel. Counsel will have my written ruling this afternoon.” He rapped his gavel once. “We’re adjourned.”
Jenkins returned to Sloane’s office buoyed by their victory, despite Sloane cautioning him and Jake not to get too excited. “This is going to be a marathon, not a sprint,” Sloane said. “We can celebrate when we cross the finish line.”
As the day came to a close, Carolyn walked into the conference room holding copies of a document. “Hot off the judicial presses,” she said, handing them the document and then departing.
Harden had considered all of the LSR&C documents thoroughly and ruled that Jenkins’s stated defense—that he had a reasonable belief that a CIA agent had authorized him to reveal information—mandated that the documents be produced as relevant.
Jake said, “It’s a whole new ball game.”
“Yeah, well, don’t get picked off first base just yet,” Sloane said. “The government isn’t going to let this go without a fight.”
No sooner had Sloane spoken than Carolyn walked in carrying another document. “Don’t they sleep over there?” She looked at Jenkins. “Whatever you did, you’ve accomplished the impossible. You’ve actually motivated government workers to work.”
Sloane and Jake quickly flipped through the pages of the pleading as Jenkins stood looking over their shoulders. “They’re arguing that under the Classified Information Procedures Act, or CIPA, the government has the right to classify the documents as a danger to national security and prevent them from coming into evidence, even if those documents would substantiate our defense,” Jake said.
“There’s no way they prepared this motion this quickly,” Sloane said. “There’s a lot of boilerplate codes and case law they could have pulled from motions filed in the Goldstone matter, but there are also specifics related to this case and to the particular documents the government seeks to have classified. They had to have had this motion ready to go, which means they anticipated this ruling. Harden will know that, and hopefully it will piss him off even more.”
“But can they do this?” Jenkins asked, feeling suddenly deflated. “Can they exclude the documents?”
“Harden doesn’t think so. You can tell from his decision. It’s clear he wrote it anticipating the government would appeal and likely argue CIPA. Look on the third page. He says a criminal defendant has a constitutional right to insist that the government prove his guilt beyond a reasonable doubt. Harden says excluding documents as classified would, in effect, deny you the right to a trial because it would prevent you from putting on a defense.”
“He’s given us a road map to prepare an opposition to the court of appeals,” Jake said.
Sloane looked to Jenkins. “The important thing is he knows what’s in those documents, and Judge Harden now knows you’re telling the truth.”
Jenkins wasn’t so confident.
“The trial date is going to have to be vacated until after the appeal,” Jake said.
“Do you think they’ll make another plea offer?” Jenkins asked. He wanted to be found innocent, but he wasn’t adverse to a quick resolution—for Alex and his children’s sake, so long as he didn’t have to admit guilt.