Address of Siobhan Esposito before the Graduates of the United States Military Academy Class of 1997

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 42^nd 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, 1^st 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 1^st 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.