Note: Yesterday, I spoke at the fifteen-year reunion of the US Military Academy Class of 1997. Below is the text of my address.
I thank the Class of 1997 for providing me this
opportunity to address its members—the classmates of my late husband Captain
Phillip Esposito.
In the fifteen years since the members of the Class of
1997 threw up their hats in celebration of their graduation from the Military Academy, eleven members of its ranks
have died.
The largest number died in armed combat with a foreign
enemy in Iraq and Afghanistan. A smaller number died from accidents or disease.
One member of your class, my husband Phillip, was murdered by a subordinate
soldier while deployed in Iraq. Phillip's death and its consequences—for you
and the institution both you and Phillip served—are what I shall speak about today.
In the interest of time, I will speak in broad essentials.
I am told that the depth and intensity of the West Point
experience reveals a person’s character for all to see. If a person is deceitful
or lazy, they will not be able to hide it for long, but if a person is moral
and true, their virtue will propel them to positions of great trust and
authority. My husband Phillip was honest, hardworking, and just, and his virtue
propelled him to the responsibility of commissioned leadership in the Army and the
National Guard. Yet it is the sad truth of Phillip's life that his virtue was
not met in kind by the Army in which he served.
Phillip's virtue was not met in kind when Staff Sergeant
Alberto Martinez, a subordinate under Phillip's command, made literally hundreds of death threats and gestures
of contempt against Phillip in the year leading to Phillip's death. These
threats, observed by both officers and enlisted soldiers of the 42nd
Infantry Division and known throughout the chain of command, were left
unchallenged and unpunished under Article 89 of the Uniform Code of Military
Justice, which proscribes disrespect toward a superior commissioned officer.
Phillip's virtue was not met in kind when, on the night
of June 7, 2005, in the darkness of an Iraqi sandstorm, Staff Sergeant Martinez
acted upon his rage and placed a claymore anti-personnel landmine in the window
of Phillip's command post and then detonated it, murdering both Phillip and Martinez's
replacement, 1st Lieutenant Louis Allen.
Phillip's virtue was not met in kind when military
investigators arrested and interrogated Staff Sergeant Martinez absent probable
cause as demanded by the Fourth Amendment, leading the trial judge to exclude Staff
Sergeant Martinez's statement from the evidence presented at Martinez's
court-martial.
Phillip's virtue was not met in kind when, despite
overwhelming evidence that placed Staff Sergeant Martinez at the scene of the
crime, linked him to the weapon used, and established Martinez's murderous
hatred against Phillip for attempting to relieve Martinez for cause, Staff
Sergeant Martinez was nonetheless acquitted by a court-martial of any
responsibility for Phillip's and 1st Lieutenant Allen's slaying.
As the ultimate finders of fact, a jury enjoys great
deference in both our system of government and our society—so great in fact
that I have observed that the typical response to the acquittal of Staff
Sergeant Martinez is for observers to conclude that there must have been
something missing from the evidence presented at Martinez's court-martial to
justify the jury's verdict. These observers are half right; there was something
missing, but it was not evidence necessary to prove Martinez's guilt beyond a
reasonable doubt.
Unlike a civilian
jury, where jurors are randomly selected to sit in judgment, in the armed
forces, the members of a court-martial are selected by the commanding general
convening the trial. Here, Article 25 of the Uniform Code of Military Justice
governs the convening authority's discretion in selecting panel members.
Article 25 states that the convening authority shall choose members who are
"in his opinion, [b]est qualified for the duty by reason of age, education,
training, experience, length of service, and judicial temperament."
Let me focus upon the last qualification noted in Article
25: a "judicial temperament."
To give justice is to give a person what they deserve. Accordingly, a judicial
temperament must be a disposition to give a person—any person—what they
deserve.
But to give a person what they deserve presupposes a
standard of value—a standard of determining just what it is that a person deserves.
For a member of the armed forces, this standard of value
is determined by one's oath of enlistment—one's solemn promise of what they
will do as a soldier, sailor, airman, or Marine. Upon taking the oath of
enlistment, a service member pledges to "support and defend the
Constitution of the United States against all enemies, foreign and domestic; [to]
bear true faith and allegiance to the same; and [to] obey the orders of the
President of the United States and the orders of the officers appointed over
[them], according to regulations and the Uniform Code of Military Justice."
The oath of enlistment has a serious moral and legal
meaning—it defines both the purpose of one's enlistment and the legal code that
will animate one's service. To swear to it means that one freely subordinates
themselves in support of our American form of government, the laws enacted by Congress
that govern the armed forces, and the leaders selected by the commander-in-chief
to lead the armed forces. I doubt I have to remind this audience that men and
women have accepted death rather than disgrace that oath.
Thus, in this context—that a service member freely
subordinates him or herself to the Constitution and our laws that he has
pledged his life to defend—let me ask you the following:
Is a judicial temperament indicated by a service member
who states that anyone convicted of murder should automatically be executed, regardless
of the law?
Is a judicial temperament indicated by a service member
who says that military investigators routinely lie and cheat in order to
secure convictions?
Is a judicial temperament indicated by a service member
who says that only God can take a
life, and therefore that they would refuse
to impose a sentence of death even upon a person guilty of premeditated murder?
Is a judicial temperament indicated by a service member
who says on one hand that they oppose
the death penalty regardless of the facts and the law, but on the other hand,
that they would consider imposing the
death penalty because quote "anything
can happen"?
Is a judicial temperament indicated by a married couple
sitting in judgment, knowing that a jury must not begin their deliberations
until the end of a case, and knowing that most married partners communicate and
are able to sway one another without uttering so much as a single word?
I say "no."
I say that these examples indicate a temperament that is anything but judicial. Nevertheless, soldiers holding these
views were nominated by the convening authority to sit in judgment of Staff
Sergeant Martinez. Of the individuals depicted here, all but one came to serve
on the panel that voted to acquit Martinez. Only the member who indicated his inelastic
desire to put convicted murderers to death, regardless of the law, was excluded
by the military judge from serving on the panel.
And let me be absolutely clear: even a person accused of
a cruel and heinous crime, even Staff Sergeant Martinez, a man for whom I feel
nothing but contempt, deserves a fair and impartial trial. That was Phillip's
moral code, and it is my moral code as well. Accordingly, I agree that the exclusion
of the one juror was just and appropriate, but I hold that the military judge’s
failure to exclude the others was egregiously
unjust and highly
inappropriate.
You may be asking yourself why then did the military
judge exclude the one, but not the others. The straightforward answer is that
the law allows it. Because the convening authority is given the power to
personally select panel members, military judges are required to liberally
grant defense challenges to strike a
juror for cause, but military judges are not
required to liberally grant similar prosecution
challenges. In fact, in the 2005 case United
States v. James, the U.S. Court of Appeals for the Armed Forces explicitly
held that "[g]iven the convening authority's broad power to appoint [panel
members], there is no basis for application of the "liberal grant"
policy when a military judge is ruling on the government's challenges for
cause."
And thus for the last four years since Staff Sergeant
Martinez was acquitted by court-martial, I have lived with the knowledge that the
number of soldiers required to acquit Martinez were not objective—that these panel
members were not animated by a soldier's true faith and allegiance to our
constitution and our laws, but instead were animated by their own private whims
and caprice. I have lived with the added knowledge that military law permitted
it.
And this knowledge is vicious and cruel enough. But I have
recently learned of allegations that I consider even more sinister and damning,
and which, if true, impugns the integrity of the entire military criminal justice
system.
I have recently been informed that a juror who sat in
judgment of Staff Sergeant Martinez has privately alleged that a senior member
of the panel used her rank to prematurely squelch deliberations before their
proper conclusion, and that two jurors have privately alleged that as an
ostensive time-saving measure, the panel did not vote on the specifications of
the charge concerning the murder of 1
st Lieutenant Allen.
Specifically, I have been informed that the acquittal of Staff Sergeant
Martinez is the product of the unlawful command influence of this senior panel
member, and that the panel did not scrupulously follow the instructions of the military
judge as it tallied the votes for its verdict.
The case of United
States v. Accordino, decided in 1985 by the U.S. Court of Military Appeals,
closely parallels the allegations made by the panel member in the Martinez court-martial.
In the Accordino case, a sergeant in
the Air Force was convicted by court-martial of the wrongful use of cocaine and
marijuana and she appealed. The Court of Military Appeals held that the affidavits
of two court members alleging that the board president had cut short the
discussion on the findings could be considered to impeach the sergeant's conviction
on the basis of unlawful command influence. In the face of this allegation, the
court set aside the sergeant's conviction and returned the case for a new trial.
There is no opportunity for any new hearing in the case
of my murdered husband; there will be no new trial as the Fifth Amendment's protection
against double jeopardy does not permit retrials even in the face of this kind
of misconduct. But here, I think that the legal test for unlawful command
influence is instructive. Unlawful command influence exists when "a
reasonable member of the public, if aware of all of the facts, would have a
loss of confidence in the military justice system and believe it to be unfair."
I have lost all confidence in the military justice
system. I believe it to be unfair. You will have to make up your own
mind as to whether I am reasonable or not.
Under the principle of full disclosure, I must inform you
that the military justice establishment largely disagrees with me. For example,
in 1999, the Joint Service Committee on Military Justice examined how the Armed
Forces convene their courts-martial. The Committee concluded in its report to
Congress that current practice "ensures fair panels of court-martial
members who are best qualified" and that there is "no evidence of
systemic unfairness or unlawful command influence." Yet in a 2011
editorial on the application of the military death penalty, the New York Times observed that "eight
out of 10 [military] death sentences have been overturned, compared with a
reversal rate of 3 to 8 percent in military non-capital cases."
So on one hand, we have a claim of no evidence of
systemic unfairness in the military, and yet on the other hand, we have a claim
that says 80% of the death sentences handed out by courts-martial are subsequently
overturned upon appeal. I respectfully submit to you that when prosecuting
capital murder, the military justice system is systemically broken.
The question for you is how many failures you need to see
before you believe it— and how many failures you need to see before you demand
action.
And in a larger sense, you cannot tell me that the
victims of the Ft. Hood massacre in 2009 would have been murdered all the same
if the Army had learned the needed lessons from Phillip's death.
At Ft. Hood, the stage for murder was set by a
mind-numbing political correctness that failed to hold a killer to account for
his avowed sympathy for the enemy's cause. In the case of Phillip's death, the
stage for murder was set by a mind-numbing clique of poor performers who
favored coddling an inept supply sergeant who nevertheless was their
"buddy" over upholding the Army's own principles and defending the
life of their commander.
The great American statesman Daniel Webster once observed
that “every unpunished murder takes away something from the security of every
man's life.” The English poet W. H. Auden found that "murder is unique in
that it abolishes the party it injures, so that society has to take the place
of the victim and on his behalf demand atonement or grant forgiveness; it is
the one crime in which society has a direct interest." And rejecting the
moral status quo that dominates our age, the philosopher Ayn Rand observed that
"today's mawkish concern with and compassion for the feeble, the flawed,
the suffering, the guilty, is a cover for the profound [h]atred of the
innocent, the strong, the able, the successful, the virtuous, the confident,
the happy."
My husband Phillip—your classmate—was innocent, strong,
able, successful, virtuous, confident, and happy. I loved Phillip for it, yet Phillip's
killer murdered Phillip for these virtues because they embodied everything that
the killer was not.
The wrongful acquittal of this murderer recoils upon the
Army, and the Army's failure to learn the larger cultural lessons of this
tragedy continues to put soldiers' lives at risk. Yet I am here to tell you
that the Army has not learned the necessary lessons from the tragedy of
Phillip's death.
For example, in 2009, Phillip's division commander, Major
General Joseph Taluto, was nominated to receive his third star and serve as
director of the National Guard. I publicly opposed General Taluto’s nomination
on the grounds that I believe that General Taluto failed to enforce
well-established and broad-based principles of military discipline and ensure
that these principles were enforced throughout his division. I believe that
General Taluto's failure here set the stage for Phillip's murder—even if Taluto
was never personally aware of the problems in Phillip's company.
I was met with a rather despicable answer from the
general in reply to my argument. In a news interview, General Taluto's PR
spokesman tried to downplay the gravity of Staff Sergeant Martinez's threats
against Phillip's life, claiming that quote "[he] would just submit that
if you took the instance where everybody said "I hate that S.O.B." or
"I'm going to take care of him" in a moment of anger in any organization,
in hindsight it all seems wonderfully clear, but as we go through our
day-to-day life it is never that crystal clear."
Perhaps it's just me. But I think that when an enlisted
soldier speaks of his commander by saying that he "hate[s] that motherfucker"
and that he's "going to frag that motherfucker," and he greets other
soldiers with the daily greeting of "fucking frag him" as Staff
Sergeant Martinez did according to the eyewitness testimony of over twenty
witnesses, the soldier has made his contempt plain.
Yet in any case, Article 89 of the Uniform Code of
Military Justice does not have a "wonderfully clear" clause that
absolves soldiers of their duty to enforce the law in moments of alleged
ambiguity. That the soldiers and officers of Phillip's division felt
differently to the point that Phillip could receive hundreds of threats against his life and yet no one would act to uphold the law reveals a systemic lack of
discipline that indicts the entire chain of command.
I am glad to report to you that General Taluto did not
receive his promotion. General Taluto decided to withdraw his nomination two
weeks after the Army's preliminary report on the Ft. Hood massacre, and lest my
concerns about him become a "distraction" for the Army. But in falling
on his sword for the alleged sake of the Army, General Taluto managed to moot
the larger investigation that my opposition into his nomination engendered.
We must not let this be the end of Phillip's story. Phillip's
murder demands atonement—for his
sake, for the sake of our daughter Madeline, who was never afforded the
opportunity to know her father, for the sake of Phillip's parents, who lovingly
raised a son only to see him struck down with unpunished cruelty, and for the
sake of the Army that Phillip loved and served with all his devotion.
Lou Allen's death
also
deserves atonement. Here was a man who
also
loved the Army and who
also served it
with all his devotion. My husband brought Lou over to Iraq because Lou was a
man with integrity who knew how to lead soldiers and fix problems. Lou answered
Phillip's call to help him rebuild a broken unit to insure that it was ready
for the rigors of combat, and Lou was also murdered for his virtues. It sickens
me that the jurors tasked with determining Staff Sergeant Martinez's guilt or
innocence were so indifferent to the value of Lou's life that they did not have
the common decency to properly vote on the charges that related to Lou. What a
slap in the face to Lou's wife and their four sons that for the members of this
jury, the dignity of Lou's life wasn't even worth the few short hours it would
have taken them to conduct a proper vote in accordance with the military
judge's instructions. What a disgrace to the uniform that Phillip and Lou now
wear forever in their graves.
I am here before you today to issue a call to action. There
must be a proper accounting, or even more lives will be destroyed, and our
system of justice will come into even more disrepute.
I call upon the Army to fully investigate the allegation
of unlawful command influence in the jury-room of the Martinez court-martial
that I allege here today. The jurors who made these allegations need to come
forward and swear to all that they have alleged—there is no room for any more
cowardice. I call upon the Army to finally acknowledge that Phillip's and
Lieutenant Allen's murder was, in part, the product of a faulty culture of
defective leadership and broken accountability, and thus recommit itself to its
own standards of military discipline. And I call upon the Army to address the
defects in its justice system that allowed a killer to go free, and that
delivers far less than the full degree of justice that lies within human grasp.
And I call upon you, Phillip's classmates, to stand with
me in this fight. I have created a foundation in Phillip's memory that seeks to
advance the cause of criminal justice. You can pledge your support and offer
your leadership to this foundation today. I also seek to build a fitting and
poetic artistic monument to Phillip's life here at the campus of West Point, so
that future Army officers can find inspiration in the man Phillip was, and
resolve never to surrender the cause of justice as it was surrendered with Phillip's
death. You can pledge your support to this effort as well.
But most importantly, you, as individuals, and as a class
of Phillip's brothers and sisters in arms, can join me in my call for full and
complete accountability.
Please know this: I
will take no backward steps. I will fight upon these lines for as long as
it takes. I know that many of you have endured great trials in your service to
our nation, and as I noted in the beginning of my address, I know that some of
your classmates have given the last, full measure of their devotion in faithful
service to America and the principles for which America stands. I say to you
that my struggle in the face of Phillip's needless and preventable murder and
the incomprehensible acquittal of Phillip's murderer is part and parcel of the
same struggle. But I need your help.
I thank the Class of 1997 for providing me this
opportunity to speak. It needed to be said, and I am grateful to have the
opportunity to finally say it.