Rodney Barker - Dancing with the Devil - Sex, Espionage and the U.S. Marines - The Clayton Lonetree Story

Asked what verdict he expected his client to receive, Stuhff shrugged. “If indeed there is not an acquittal, the kind of record we have now is certainly the kind of record that any appellate lawyer would find many, many issues on which to base an appeal.”

Closing summations were given on Friday, August 21, and Major Beck led off. “The issue in this case is quite simple,” he said, “and from the evidence presented, the government contends the answer is equally clear…. Sgt. Clayton Lonetree violated his oath and the special trust and confidence that was placed in him, and sold out our national defense and intelligence interests to a nation which has since the early 1950s declared our country public enemy number one.”

The defense, Beck said, “has come up with more theories, changed their theories more times, showing that all they have is a smoke screen, trying to hide the obvious fact of this accused’s guilt. The accused was unwitting, they said at first. And then they said, Well, no, the accused was very witting, he was out on his own, he was trying to set up the KGB, he was going to haul them in. When it became obvious, the hollowness of that defense, then they said, No, no, no, Sasha was a double agent for the United States. You know, gentlemen, from the evidence presented, that all of those claims are preposterous…. There is no evidence before you [in support] because there’s absolutely no basis in fact for such claims.”

Major Beck liked to finish as strong as he started. “A message needs to be sent, a punishment needs to be made, that crimes like this will not be tolerated.” After a lingering look at the defendant, he turned to the jury. “The defense would have you believe that Sgt. Clayton Lonetree is an innocent Walter Mitty type. He’s not. While he wore the uniform of a United States Marine, he betrayed his country. He is a real-life Benedict Arnold.”

William Kunstler delivered the closing statement for the defense, and after disputing the prosecution’s claim that this was a simple case, he tried to show just how complex a case he considered it to be by going over the facts once again, only this time turning the testimony and the evidence in such a way as to present an interpretation of Lonetree’s motivation that favored the defense. Lonetree was immature, Kunstler admitted. He was naive and stupid and a victim of his own fantasies. But he never intended to betray the United States. He was a scapegoat who was being tried to shield the Marine Corps from the embarrassment of a larger failure in its security guard system.

Straining for an equally powerful finish, Kunstler also looked from his client to the jury, before challenging them to be absolutely certain when they decided whether Sergeant Lonetree was guilty of espionage, because if they failed to render justice it would later haunt them. In conclusion he promised them that if they found Sergeant Lonetree guilty, “Then I tell you that some night, somewhere, sometime, you will wake up screaming.”

After receiving instructions from the judge, the jury retired to deliberate. To convict Sergeant Lonetree two-thirds—six of the eight members on the panel—would have to agree on his guilt and vote for a conviction. Since it was Friday afternoon, it was expected that they would reach a decision sometime over the weekend, but three hours and forty-five minutes later they returned, and their decision was a unanimous one.

Standing ramrod straight at attention, Sergeant Lonetree listened to the verdict. Not only had all eight officers agreed on his guilt, they convicted him of every offense on the charge sheet.

Immediately after the verdict was announced, the counsels for the defense held a press conference in front of the television cameras outside the courthouse.

“As we’ve told you before, this judge did not let us have a fair trial,” Mike Stuhff said. “We don’t think this conviction will stand. We are going to appeal.”

“Marine justice failed him,” Kunstler told reporters. “Corps pride, Corps pressure had a lot to do with this verdict.”

At that moment Lonetree appeared with his military guard escort walking toward the van that would take him back to the brig. The defense team and several supporters began to applaud. “Innocent,” his mother, Sally Tsosie, shouted.

“How did Sergeant Lonetree take it?” a reporter asked.

“I put my arms around him and he was shaking,” Kunstler replied, “but he took it like a Marine.”

When Mike Stuhff announced in his opening statement that the defense intended to prove that Sergeant Lonetree had been acting as a do-it-yourself double agent, Major Henderson had been dumbfounded. They had discussed that approach to trial and he thought it had been rejected because there wasn’t enough there. No supporting evidence, and Sergeant Lonetree never said he’d thought of himself as a double agent.

Henderson was not opposed in principle to throwing out red herrings as a defense strategy, particularly when you were saddled with a confession case. But if that was what civilian counsel had in mind, he felt the way they then went about presenting it was backwards. If you were going to try to sell a jury on a theory for which there were few if any facts, you didn’t promise something in your opening statement you were not going to be able to prove. That was a killer. Not only did you give the prosecution a chance to bring in rebuttal witnesses, you’d also given them their closing: “Gentlemen of the jury, our opponent said he was going to produce X, and he didn’t do that.” What you were supposed to do was build your case through cross-examination, asking proper questions at the proper time of the proper people, laying the groundwork and getting evidence into the record so you had something legitimate to work with at closing, when you argued an interpretation of the facts that you hoped would confuse the jury enough to create reasonable doubt.

That wasn’t the only problem Major Henderson had with the defense put on by civilian counsel. Stuhff and Kunstler seemed unable to make up their minds what they wanted the jury to believe about Sgt. Clayton Lonetree. That he was someone who circumvented the rules in an effort to do something grand for his country? That he was a naive, hapless chump bamboozled by a KGB swallow? That he was a victim of CIA dirty tricks? That he was a scapegoat for the excesses and oversights of superiors? During the course of the trial they had sampled some of each explanation but had developed no one explanation in a way that would stand up to the prosecution’s evidence.

The trial had been a frustrating ordeal for Major Henderson. Not only was he unaccustomed to being relegated to a backseat role, whenever he’d tried to make a contribution, he’d been slighted. Once, when he had detected an inconsistency in a witness’s testimony on cross-examination, Henderson had written a note to Mike Stuhff suggesting a question he should ask, only to be given a backhanded wrist wave that said, Leave me alone, I’m doing this my way.

But that insult was not what brought Major Henderson to the decision that he could no longer sit idly by and grit his teeth. Nor was it the way civilian counsel continued to pursue legal issues he thought lacked promise, sniped at witnesses contemptuously, and were contentious with the judge—all of which he did think were destined to work against them. It was when he realized that civilian counsel appeared to have given up on the idea that the military justice system was capable of rendering a just and fair verdict, and to have stopped aiming their case to the jury and pointed it elsewhere. To the press, to whom they would make statements critical of military justice during recesses. And to an appellate court, where they seemed to think the errors of the current proceedings would be cured if they did not get an acquittal.