As another day of testimony wound down Friday in the court-martial of Charles David Garner, the jury foreman did something that in a civilian court could have drawn a swift rebuke from the judge. He asked the attorneys a question.
The foreman`s question was an example of how strikingly different a civilian trial is from a court-martial. This one convened to determine if Spec. Garner hired an Army barracks mate to murder his estranged wife, Catherine, in the driveway of her parents` Inverness home on Halloween night 1990.
During testimony Saturday afternoon, the questions continued, as the judge read aloud jury members` written questions directed to each witness, including the mother of the man who allegedly killed Garner`s estranged wife.
Much has been made about the differences between civilian and military courts, which, for instance, require that only two-thirds of a jury agree in order to convict a defendant, compared with the unanimous vote needed in most civilian criminal trials.
But the difference between the two systems that has been most striking in Garner`s court-martial has been something more subtle: the ability of the judge and jurors, called members of the court by the military, to ask questions during the trial.
In civilian courts, the jurors can only ask questions of the judge, and not until they have gone into deliberations.
The result is an intriguing example of jurisprudence. It`s not unlike listening to oral arguments before the U.S. Supreme Court, when observers can get a hint of how the justices might vote on a particular case by the nature of their questions.
Moreover, the procedure repeatedly produces such curious sights as that of Lt. Col. Andrew Chwalibog, the military judge in this case, ruling on defense objections to his questions.
During Saturday`s session, the mother of Kevin Miller, Garner`s former roommate who allegedly has confessed to killing Catherine Garner, told her version of where her son told her he was at the time of the killing.
Maureen Gilbert testified that she was ”surprised” to see her son arrive at their home in Clay City, Ky., on Oct. 23, 1990. He had not mentioned any specific date that he would come home on leave during a telephone conversation three months before, she testified.
Gilbert told a prosecuting attorney that upon arriving from his station in Bad Hersfeld, Germany, her son told her he would stay home for four or five days and then go to Washington, D.C., where he ”had business to conduct for the Army.”
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”He said it had to do with taking some top-secret papers to Washington. He said he`d receive $20,000 for some of these services,” said Gilbert, whose voice was barely audible in the small courtroom.
Gilbert said she loaned her son about $200 before he left on the trip in a car rented from a relative`s auto dealership in Irvine, about 25 miles from their home. She even outlined in green pen in a road atlas the route her son should take to Washington.
On Oct. 27, Miller left Clay City and didn`t return until Nov. 1. ”He said it was a nice trip,” Gilbert said.
Catherine Garner was shot in the driveway of her parents` home as she returned from trick-or-treating with her 2 1/2-year-old son, Max.
Nine days after Catherine Garner`s slaying, Gilbert said her son told her: ”Dave`s wife has been shot and murdered.”
A day later, Miller was arrested, and after 2 1/2 hours of questioning, he reportedly confessed to killing the woman in the driveway of the home.
Also on Saturday, prosecutors called a former roommate of Garner`s, his platoon sergeant and other military acquaintances of Garner, trying to attach a motive to the slaying. Questioning of each witness focused on whether Garner either mentioned divorcing his wife or plans to marry his current wife, Marion Binding, whom he met in Germany.
The query that finished off Friday`s hearing cut to the heart of a still- unanswered question about Miller.
Col. William Chantelau, the president of the court (the jury foreman in a civilian court), spoke for all the panelists when he said: ”We have not heard expert testimony” that would show if the shotgun blast that killed Catherine Garner was ”consistent with an aimed shot.”
In his confession to police in Kentucky, Miller told them he accidentally shot the woman during a bungled robbery attempt. Prosecutors contend, however, that Miller was hired by David Garner to murder his wife and then share in proceeds from a life insurance policy.
The members of the court heard on Friday from a forensic pathologist, who testified that the rifled slug that struck Catherine Garner entered the back of her head and then tore a wound as wide as 5 inches in her left jaw.
”The wound course was directly back to front,” said Dr. Ed Donoghue, who performed an autopsy on the woman for the Cook County medical examiner`s office.
But under questioning from David Garner`s civilian defense attorney, Charles Peterson, Donoghue said his examination could not reveal the angle of the shotgun when it was fired at her. ”I would have to know the positioning of the victim” to determine that, he said.
The angle of the shotgun is crucial because it could help determine whether Miller was telling the truth when he told police that the gun went off accidentally as he slipped on the grass outside the home of Catherine Garner`s parents.
Apparently dissatisfied with the inconclusiveness of previous testimony, Chantelau finished his statement by asking: ”Can we expect such testimony, or is what we`ve heard” all there is?
Chwalibog could only tell them that more witnesses would be called.
All of the ”members of the court,” or jury, are commissioned officers. They sit in a jury box slightly elevated above the courtroom floor, and they are seated in descending order of rank-three colonels, two lieutenant colonels, a major and a captain.
The president of the court is not picked by democratic vote, as with civilian juries.
As Capt. John Harris, the assistant prosecutor in the case, said with a smile after Friday`s hearing, ”This is the military.” And military regulations dictate that the foreman be the highest-ranking officer.