A/N: As promised I have this one up in a more timely fashion. So some housekeeping - this was to be the final chapter but when I came to do the final draft after letting it percolate for a while I realised I was too concerned about keeping it to the 16 000 word limit I set myself rather than focused the story. When I refocused on the story the chapter grew to over 20 000 words when I redrafted it and so I've taken the decision to split it into two. I will also be splitting the 20 000 word epilogue into two parts two. Sorry about the split but for some reason the chapters in this story just seem to end up incredibly long and I'm blaming Celestial Dave! Finally, there is a cliff hanger that occurred with the splitting of the chapter that just couldn't be avoided. It wasn't intentional – this time. :D
I have to give credit to Acrwdof1 for his generous advice about the legal aspects of this particular chapter and obviously that extends to the next chapter as well. Also apologies for any punctuation boo boos as this chapter isn't beta'd.
An Eye for an Eye Leaves Everybody Blind
A Presumption of Innocence
Jimmy Palmer Café Valentine DC 22nd August 2012:
I watched a disgruntled Gibbs leave Café Florentine, get into his truck and drive off. Abby trailed off like a lost lamb with McGee in her wake, shooting alarmed looks at Dr Mallard and myself like he needed saving. The CIA analyst seemed trapped in her utter anguish and I sank back down again, deciding I needed a rare coffee. So okay, it felt like the end of an era and honestly, I probably needed something stronger than caffeine but it was too earlier for me to start thinking of alcohol. Mind you though, I had no doubt it was what Gibbs would do the moment he got home. Ducky looked at me quizzically.
"I need a cup of coffee after all the histrionics. I'm running on fumes. What about you - do you want one, Dr Mallard?"
"I do believe that would be quite a good idea even if I'd really prefer a single malt scotch to steady my nerves, dear boy. I supposed I'll settle for a café au lait as it is too early to indulge. And Jimmy, how many times have I told you that you don't work for me any more – haven't done for years, so please, call me Ducky."
I grimaced, "Yes I know but it feels weird, Doctor."
"It's alright, lad. I remember my first mentor, Dr Hubert Livingstone – a veritable giant in the field of anatomy and physiology at Edinburgh Medical School. When years later our paths crossed once again he gave me leave to call him by his Christian name but somehow my brain and my tongue could never manage the feat. Although I'd mean to say Hubert, it invariably came out as Dr Livingstone. Very tiresome it was, I assure you and my mentor considered me rather feeble minded, I fear." Ducky reminisced, his gaze on the middle distance as he remembered his youth many decades before.
"Do you think that Tony will be okay?" I enquired anxiously.
"How do you mean, Jimmy? Are you asking if he's physically fit enough to fly off to the Philippines?"
"Well yeah, I guess."
"You examined him, Doctor. What do you think?"
I sighed. "Maybe... but I would really have preferred that he not go. He's exhausted, physically, emotionally and although there was a huge elephant in the room wearing a pink and purple polka dot bikini which everyone was carefully avoiding talking about, I suspect psychologically as well."
Ducky nodded. "He's been hiding out for over three years and that takes a toll on the body, not to mention the mind and spirit, my friend. What he did was akin to being deep under cover and that doesn't come without risks and costs that must be met at some point. I'm sure there'll be a price to be paid for what he's already endured, Jimmy, even if realistically it may be some time before we are able to appreciate all the ramifications. But you have to admit that wild horses wouldn't stop him leaping in to help someone in trouble, especially if they're important to him."
"He said he was at RIMA with Steve, Mike and his little brother Gus and the two younger guys are alumni too. I just hope that he's not setting himself up for more disappointment. Family has always been so important to Tony. I'd like to think that he hasn't hitched his wagon to another group of people who are going to let him down like we did." I confessed my fears to him. I had given my word not to discuss his relationship but since Ducky had also treated him over the years I knew that Ducky was also bound by his Hippocratic Oath, if he didn't know already.
"No, we did rather a poor job of looking out for him, even before letting him get on that flight to Tel Aviv with the director." Duck admitted candidly. "I was always too quick to make excuses for everyone when their behaviour was less than exemplary, especially Jethro. There were always too many bad feelings that we swept under the rug rather than confront them and deal with when they occurred. Perhaps things might have been different if they hadn't been allowed to fester."
"I wish he'd have stayed but he's convinced that we blame him for Ziva and breaking up the team, especially Gibbs. I tried to tell him that he was the most blameless one in this whole freakin mess but I don't think I did a good job." I confessed despondently, feeling I'd let everyone down because I couldn't convince Tony to come home permanently.
Dr Mallard patted me on the arm. "It's not your fault, Jimmy. Too much water under the bridge. Tony's role on the team was always so rigidly delineated as the one to take the blame for everything, whether it was his fault or not. To be the pressure relief that everyone looked to when tensions rose too high, to deflect Gibbs' at times, considerable wrath. To our shame, everyone allowed it to proceed, partly because it permitted the team to function without their own character flaws and personality dysfunctions having to be addressed.
After that we both drank our coffees in silence, thinking about all the opportunities that had been squandered over the years to address issues that may have prevented what had happened. The so called butterfly effect of even dealing with just a fraction of the issues might have spared us a heap of heartache if only one person had had the fortitude to stand up and say enough but we all avoided confrontation and acted like the proverbial ostrich.
As we were leaving the restaurant I looked over at a subdued Ducky. "Why did they all have to go racing off to the Philippines, do you know?"
"I believe they received a tip about a sighting of Michael's brother, August who went missing on an undercover drug operation four years ago. As I understand it August is a federal police officer with the Australian Federal Police. Naturally his friends and family are beside themselves with fear for him and they're understandably hoping that he may still be alive. I believe the last sighting of him was in the Philippines." Ducky revealed rather gloomily. "Rather an ironic parallel to our own Anthony, don't you think? I hope that Michael and his family also get a happy ending, too and August is in the Philippines."
"You seem to have gotten rather friendly with them all, Ducky,"
"Yes well you know me, dear boy. I'm a friendly soul if someone takes the time to listen to my waffling. Leyland and I had quite a good long chat, you see. He was a medic in the Special Forces so we had some common ground."
"Leyland? I thought his name was Jack," I replied, confused.
"No his nickname is Jack." Ducky answered.
Leyland - poor guy! Why would you do that to your kid unless you hated them? I guess that explained why he wanted everyone to call him Jack. At least being a medic, hopefully he'd keep a close eye on Tony since he wasn't so hot at watching his own back. Plus there were shadows in his eyes that had me feeling concerned about him, even if I couldn't put my finger on what was exactly bugging me about him.
After saying goodbye to Dr Mallard I made my way home, deciding that after such a tumultuous lunch, spending some quiet time with a good book was what I really was needed to feel centred. And possibly a hot bath and some meditation exercises to help get ready for my shift tomorrow.
The last week had been plenty hectic. Yes it had several happy endings but it had also been incredibly stressful too. Tony turning up in Israel of all places – clearly he'd done some sort of deal with Eli David which kinda beggared belief but needs must as Ducky would say. All I can figure is that he must have blackmailed that cold blooded reptile, although he'd refused to talk about it to me. At the end of the day though it seemed to work and knowing him, he wouldn't have come out of hiding unless he was sure that everything was resolved. I just wish it all wasn't above my pay grade because I don't like mysteries.
Then there was Abby and Ducky getting abducted which had proved to be a real kick in the guts and while their rescue was a relief to everyone it posed a heap more questions than answers. Namely, who the hell were the group of anonymous super heroes who freed them and why were Abby and Ducky so tight lipped about their identity? They might get away with playing the traumatised victims card with everyone else but I couldn't help but feel there was something pretty hinky about it all. Dr Mallard has a mind as sharp as a tack and I don't for a moment believe he was too traumatised to remember details. I guess they have their reasons but like I say, I hate mysteries. Doctors after all are essentially voyeurs.
Welcoming Tony home had been pretty emotional, even more so when I discovered that he wasn't staying in DC. That sucked because since he appeared on television in Israel I'd been building up his return in my mind, making plans and looking forward to us catching up after more than three years apart. Especially as I never got to say goodbye and then we spent so long looking for him. And okay, there was a bit of jealousy when I saw how much the guys that were protecting him cared about him. We never really had a chance of wooing him back here but objectively I can't blame him. I just hope that they take really good care of him and that he can finally find peace and happiness. He deserves that!
Judging by the scene today at Café Florentine, Gibbs at least is still not reconciled to the fact that Tony wasn't coming home. Did he really think it was as easy as us saying how sorry we are and everything going back to normal? Oh hang on a minute, I forgot! Gibbs doesn't say he's sorry. I wonder if it's because he's never sorry for what he does or he's just too cowardly to admit it to himself. It reminds me in a way of insurance companies and their policy of never admitting liability in case you get sued. The dumb thing is that quite often people just need to hear that someone is sorry, that you made an honest mistake in order to put it behind them and move on. It's the failure to admit responsibility that is what actually drives people into taking legal action to achieve a measure of acknowledgement and resolution, not the actual mistake.
Anyway I'm hopefully, even with Tony on the east coast, that we can stay in touch and perhaps when I get some time off I'll go and stay with him. Go surfing maybe. I have a feeling that Abby was also going to be flying out to California, too. She was so shocked when she learnt that Tony wasn't coming home to stay but then again it never occurred to us that he wouldn't come back. But you can't turn back time as much as you might want to. Coulda, shoulda, woulda…
An Eye for an Eye
Gibbs took his time getting himself under control before he needed to face the individuals waiting for him in his living room. He couldn't help wondering about what had brought the two men from the State Department and the Mexican Embassy to his house. Why would they be investigating the Pedro Hernandez case after all these years? What did they know? He hated the thought of going up there without additional Intel and although he did contemplate brushing them off, discounted it immediately since that was going to look extremely suspicious.
He needed to go up there ASAP, get through the meeting without giving anything away and then use his contacts and call in some of his markers to find out exactly what the hell they had on him. Hernandez had destroyed his life some 21 years ago when he took away his girls but Gibbs was damned if he was going to let him take away his freedom as well, such as it was without Shannon and Kelly. He didn't deserve to have that much power. They'd finally found DiNozzo and the problem of Eli David had been dealt with satisfactorily and he wasn't about to let his nemesis triumph now. He needed to keep his temper in check to get through this meeting, he could not afford to be his own worst enemy.
Focusing on deep breathing to stay calm since this was most likely a simple fishing expedition, he climbed his basement stairs. Having been on the other side of the interrogation process he knew that he couldn't afford to blow it and give the game away. After all, he knew better than most that it was the suspect who often incriminated themselves when they lost their cool. If he was going to go down then he was going to make them work for it.
He entered the living room to find two men sitting on his couch that he'd be the first to admit had seen better days. Ever since his last wife left, the house had remained virtually untouched because Gibbs saw no point in fripperies, especially since most of his waking time was spent in the basement anyway. And anyway the house stopped being a home to Jethro after Shannon and Kelly were killed and he failed to see the point in spending money on furniture or furnishings – it couldn't bring them back and that was the only thing that he really wanted.
As he appeared both men put their cups of coffee on the coffee table and stood up to greet him. The man in the expensive suit put him in mind of those Italian designer suits favoured by DiNozzo and he assumed was from the State Department took the initiative, extending his hand towards Gibbs who grasped it, surprised at the strength of his grip.
"You're a hard man to track down, Mr Gibbs. I've been trying to get hold of you for quite a quite a few days now," the urbane government official observed, somewhat tartly. "I'm Conrad Lane, State Department," he introduced himself and turned to the slight and shorter statured Latino man standing next to him. "And this is Tomas Rodriguez, an attaché from the Mexican Embassy."
Gibbs shrugged unapologetically. There'd been several messages to call Lane back but he'd ignored them, wrongly assuming that it was something to do with DiNozzo. Of course if he'd known it was about Hernandez he'd have returned the calls because not returning them made him look like he had something to hide. Not his most brilliant decision – he really should have observed rule 8, damn it! He noted at that point that Jackie had made them both a cup of coffee and also left one for him before tactfully disappearing. He could hear muted murmuring upstairs so he inferred that she had gone upstairs with the two kids to give him privacy.
"Senor Gibbs, my government understands how painful this information will be but there's really no way to say this gently." Rodriguez stated. "A man has come forward and confessed to a large number of murders. I'm sorry to say that two of those victims were your wife Shannon Gibbs and your daughter Kelly as well as the NIS agent who was driving their car when he was shot. He also admitted to killing the young Marine that Senora Gibbs was unfortunate enough to witness."
What the hell was going on here? Did they think he was that stupid? They expected him to blurt out that he killed him 21 years ago?
Gibbs tried not to react with anything other than pain, suspecting this was some sort of a trap and he felt totally wrong footed. He wasn't comfortable wearing his grief on his sleeve but if he didn't react it would look suspicious. He'd taken care of the cowardly apology for a human being who'd killed his family when he returned from Kuwait in 1991 so what the hell was going on?
"The Mexican government regrets that we have to open up old wounds but we thought that it may help you to finally put the ghosts to bed, knowing that Senora Gibbs and Kelly's killer has made what amounts to a death bed confession and will soon meet his maker. Pedro Hernandez will be judged for the harm he's inflicted upon families such as yours, Senor Gibbs. Vengeance is mine sayeth the Lord and I'm sure the scoundrel will be harshly judged for his sins." The Mexican attaché attempted to reassure him, gently.
The fact that Gibbs was speechless at the news they'd brought him was no doubt put down to the terribly painful nature of the information they had brought him, when in fact he was deeply suspicious that it was some strategic trick to make him confess. He wasn't about to fall for any of their stupid psych outs, he was hardly a novice after all. If they wanted to catch him out they were going to have to do a whole lot better than that. He tried to ignore his gut which was stirring – probably because it sensed a clumsily laid trap!
All he could think of was getting rid of them as soon as possible without looking too suspicious. He needed to use his vast and eclectic assortment of contacts to try to get intel. about the situation before he did anything else. Since Macy had initially tried to stitch him up for Hernandez' murder in 91 that proved that the authorities knew he was dead so this charade made no sense whatsoever. It just opened up all the wounds from losing his girls once more and he'd thought he was in a crappy mood before. Unfortunately, sitting in his basement and getting drunk on bourbon didn't seem like it had been such a brilliant idea in retrospect.
An Eye for an Eye
11th September 2012
Commander Bud Roberts ran his hand through his salt and pepper hair, distractedly. This case was the original poison chalice - the Judge Advocate General definitely hadn't done him any favours by assigning this particular high profile case to him. Leroy Jethro Gibbs was a former Marine, awarded the Silver Star and had a distinguished career as a sniper. He was equally renowned as a NCIS special agent – had been awarded the Meritorious Civilian Service Award six times no less.
In fact Gibbs was no stranger to Bud - their paths had crossed quite a few times professionally as JAG and NCIS worked together pretty closely. Then there'd been a case that was pretty personal for Bud when Gibbs had headed the investigation into Lieutenant Singer's murder. She was one of the Judge Advocates in the office at that time and Commander Harmon Rabb, another lawyer had been charged with her murder.
Special Agent Gibbs had been a real hard ass when he caught the case, convinced initially that Rabb had killed the lieutenant since she was carrying his brother's child. He'd pursued Harm relentlessly, even if later on he'd begun to have doubts about the Commander's guilt. So you could have totally knocked the JAG lawyer over with a feather when he'd heard that the former gunnery sergeant and special agent had confessed to killing in cold blood, the man he believed had killed his family some twenty years before. Talk about double standards.
Yet now here he was, appointed as Gibbs' legal defence for a tragic and complex case that was giving everyone the screaming heebie-jeebies. In summary, twenty one years ago Gunnery Sergeant Gibbs, battered and broken by the tragic death of his wife and only child had been the chief person of interest in the murder of a Mexican national by the name of Pedro Hernandez in Mexico City who NIS – the predecessor to NCIS – believed to be responsible for killing Gibbs' wife and child and one of their agents. Said agent had been protecting Shannon and Kelly Gibbs at the time. Mrs Gibbs had witnessed a drug deal gone wrong resulting in the death of a Marine, which was why she was under the protection of NIS. The case against Gibbs was subsequently dropped and no one seems to know why - although in light of Gibbs' confession, it was now the subject of an ongoing separate JAGMAN investigation.
As far as Bud was aware, no one was ever charged with Hernandez' death and for two decades Gibbs got on with his life - until now. He'd come forward last week and confessed to killing Pedro Hernandez after being informed that Hernandez' cousin had made a deathbed confession to a scores of murders, including Shannon and Kelly Gibbs and the federal agent who was their protection detail. In a tragic twist of fate, the man who'd confessed to the murders was also called Pedro Hernandez, both men were cousins - being named after their paternal grandfather who was the patriarch and original head of the feared drug cartel. Pedro –the belatedly remorseful and surviving cousin had been making his way up the organisation before taking over the mantle of drug lord of the Reynosa Cartel upon his grandfather's death sixteen years ago. The younger Pedro who'd been shot, had been a simple henchman in the organisation and had never been out of the country. Although they both shared the same name, the younger cousin mostly used the archaic form of his name - Pêro to make it less confusing amongst their family and avoid confusion.
So when Gibbs learnt that he'd shot the wrong Pedro Hernandez, it seemed he was overcome with remorse - not for carrying out a revenge killing. Oh no - that would make Bud's job too easy - but for killing the wrong man and therefore feeling he'd failed his family. Which is why he apparently decided to confess his mistake to the civilian authorities and that created one hell of a bureaucratic nightmare and huge diplomatic kerfuffle. It also left Bud with one hell of an unenviable situation because his client really hadn't left him a whole lot of wiggle room and had already declared his intention to plead guilty at his court martial. Basically, all that the commander had left in his arsenal was to plead mitigation at the penalty phase of the trial. Which is what he was endeavouring to do now in investigating the whole fiasco, trying to build a cogent defence of mitigating factors on his client's behalf.
The judge advocate had admitted candidly to his wife Harriet that he was struggling with this one. As a loving and loyal husband and father, Bud had at some level, an understanding of how devastating it must have been for his client to lose his wife and child. As a naval officer, he could understand the terrible anger, guilt and betrayal Gibbs must have felt to be off deployed, diligently serving his country and have a scum sucking lowlife criminal kill his family. Still, just because Bud could empathise with his terrible, tragic loss, didn't mean he could condoned in any way Gibbs choosing to act as judge, jury and executioner. Honestly, he couldn't countenance - no he couldn't comprehend how a Marine and a federal agent to boot, could pursue other people who had killed with such unrelenting determination to lock them up when he was as guilty as they were.
Bud wondered how the hell he had managed to reconcile such hypocrisy for the last two decades. It was certainly something he would need to wrap his head around though, and ASAP because it was going to be key in his plea for leniency based on extenuating factors. If he didn't come up with a damned good explanation his client was going to be sentenced to death – there was no statute of limitations on murder and the military had the death penalty as an option for premeditated murder which was the charge Gibbs was facing.
The JAG lawyer sighed broodingly. It wasn't just Bud that was in an untenable situation when Gibbs confessed to killing Hernandez out of the blue, two decades after the fact. It had caused ripples of seismic proportions within the Mexican and US governments as well. The Mexicans were baying for Gibbs blood ever, demanding he be handed over to them so they could carry out his punishment but since Mexico consistently refused to extradite criminals to stand trial in the States when it was a capital murder trial involving Mexican nationals and their courts were well known for being rife with corruption, the US government had decided, albeit it with some political pressure, decided not to hand Gibbs over to them. The Department of Justice insisted that they would deal with him but how to do so was the issue since the crime had taken place in Mexico. Finally, because he'd been in the Marine Corps, on compassionate leave at the time he'd committed the crime, the DoJ decided that the simplest solution was that he would be tried under the Uniform Code of Military Justice in a military court martial.
Bud had very quickly figured out as he familiarised himself with the timeline and details of the case that someone within NIS and he had a pretty good idea who, had been an accessory to the murder of Pedro Hernandez. They had obviously revealed his identity to the grieving widower and where he was hiding out and after some prodding Gibbs reluctantly confirmed his lawyer's suspicions. He grudgingly disclosed that the NIS lead agent Mike Franks who was in charge of his wife and daughter's protection detail had deliberately left the case file on his desk when he went to the head. The federal agent knowingly leaving Gibbs alone in the office with the file so he could gather the information he needed to carry out the hit.
Bud's suspicions confirmed, they'd been based on a number of factors starting with the point that the lead agent had been a former Marine – like Gunnery Sergeant Gibbs – which obviously wasn't proof per say. The fact that he offered Gibbs a position on his team after Hernandez' murder however and had also became the mentor of the former gunny, was telling behaviour in Bud's opinion. Not to mention highly suspicious.
Of course you could interpret Gibbs employment on Special Agent Franks' team – the flagship MCRT no less - in a number of ways. Since there was no indication that Gibbs and Franks knew each other before Shannon and Kelly's death, a reasonable assumption was that receiving the job was quid pro quo for killing the man Franks blamed for the death of his agent. An alternative explanation was that after supplying the Intel to Gibbs so he could kill Hernandez, Franks wanted to keep a close eye on the man who could implicate him and bring him down. Hiring him would keep him close at hand and allow him to keep Gibbs under the thumb, ensuring that he didn't spill the beans and name Franks as a co-conspirator to the assassination plot.
Truthfully, the whole 'jobs for the boys' aroma stunk to high heaven and one had to wonder at The Powers That Be in the earlier incarnation of NCIS. Surely they should have been highly suspicious about Franks' behaviour and motivations in recruiting a victim to work on his team within weeks of his family's death. There was no record of a psych assessment either and the whole thing was highly unorthodox. You'd have thought as part of his employment screening process including security checks, that red flags about the whole death of his family, Franks' part in it and the fact the former Marine, now a Reservist had been a POI in Hernandez' death would have raised some awkward questions. And yet not, obviously!
Bud was predicting that a separate IA enquiry into Gibbs recruitment was in the offing since there should have been a lot of hard questions asked about it, that weren't. It was looking as if there'd been a generalised conspiracy of silence by those who'd ratified his hiring, turning a blind eye to Franks tipping off Gibbs about the chief suspect's details. After all, the vast majority of victims, grieving after losing loved ones who'd been under the protection of federal agents would naturally blame those agents tasked with protecting their family. The last thing most widowers would contemplate doing was to turn around then go and work with the man whose team had failed to protect his family and let their family's killer escape justice and the country.
There was no way would Bud be able to work with or more importantly, voluntarily choose to work with someone who was supposed to be protecting his family if they'd been killed. As much as he might intellectually understand that the agents had done their absolute best to protect them, he would still find it hard not to blame them at an emotional level and he reckoned he wasn't Robinson Caruso either. So why the heck didn't it ring very loud alarm bells?
All things considered, at some point in the not too distant future, it looked as if heads would roll, although Mike Franks wouldn't be one of those called to account for their actions. He'd died a while ago from lung cancer, which was probably why Gibbs had finally caved and admitted he was the one who made it possible for Gibbs to kill Hernandez. However the director of NIS at the time and whoever did the security and background checks on Gibbs were going to be forced to answer some very tough questions and well they should.
The other area that Bud felt sure was going to be looked at extremely closely was the investigation into the death of Pedro Hernandez by the Military Police. Gibbs was apparently their chief suspect, since he had no alibi and had been on compassionate leave at the time of Hernandez' death. So the $64 000 question had to be posed, why had the matter simply been dropped? Was it because of a lack of evidence or were there more troubling explanations. Had it been a case of Marine MPs turning a blind eye to one of their own, sympathising with the widower's terrible loss and grief? No matter the motivation, if there had been a cover-up and that was yet to be conclusively proven but under the circumstances it looked that way, then it really wasn't a good look for the Marine Corps.
When you combined it with what had occurred at NIS, it was two extremely black eyes for the US Military and the government. Other considerations aside, while in theory it shouldn't affect Bud's attempt to secure mitigation for his client, realistically, the judge couldn't help but be influenced by the need not to sweep anything under the carpet. It meant he was going to be officiously observing the letter of the law and Bud could expect no leniency from him unless he could present a damned good case for it. Meaning that Bud had his hands full making sure that his client avoided the death penalty. Talk about pressure.
The commander rubbed his temple agitatedly, he could feel a monster headache coming on. It was ironic because this whole damned case was proving to be one giant headache for everyone concerned and Bud got the distinct feeling that quite a few people in high places would have been just as happy if Gibbs hadn't got a belated attack of conscience such a long time after committing the crime. By owning up now 21 years after the fact, it opened a huge can of worms that no one wanted to have to deal with.
The problem was that people who'd sworn to uphold the laws of the land - officers of the courts and members of the military, individuals and institutions that the public looked up to had behaved less than honourably. The Marine Corps and law enforcement professionals as a point of honour took pride in holding themselves to a higher standard of integrity and comportment than civilians, yet certain of their number had failed to uphold those standards, failed deplorably and that made everyone else look bad by association. Bud was getting the vibe from certain quarters that yes it was deplorable that it had occurred but by confessing to such a sensational crime at this late date, Gibbs had exposed these arrant failings to the light of day. As a result there would be repercussions for people who were in charge now but had no part in what had occurred when it occurred and they weren't at all happy about it.
It amounted to a lot of resentment towards his client by a lot of powerful people even if he still had his supporters, although they were definitely becoming thin on the ground.
~o0O0o~
Bethesda Hospital -one week later:
Commander Roberts sank gratefully into Dr Gelfand's proffered chair in his office, glad to take the weight off. He'd been running around most of the day and his leg was aching ceaselessly, which even after losing it so long ago, always struck him as so damned freaky-weird. He doubted he'd ever be completely reconciled to phantom limb pain but it was what it was, so it was a case of suck it up sailor, as Harriet would say. He smiled at the doctor, desperately hoping that he'd be able to assist him in building a convincing plea for mitigating circumstances in the penalty phase of Gibbs' upcoming court martial. Bud planned a two pronged attack, the first part adopting the fairly predictable and orthodox argument that Gibbs was not in his right mind when he'd committed the crime.
He was going to use the line of reasoning that Gibbs was as much a victim as his family or Pedro Hernandez because he was grief-stricken and incapable of reasoning due to his tragic loss. That he was not in his right mind when former Special Agent Mike Franks decided to use him in a cynical attempt to obtain revenge for the death of his own agent, killed in the line of duty, alongside Shannon and Kelly Gibbs. That SA Franks had access to classified intel that enabled him to identify Gibbs as having the necessary skill set and training due to his Black Ops background making him ideal to infiltrate the Mexico border undetected, carry out an assassination without getting caught and ex-filtrate successfully. While Bud was well aware after conducting interviews with his client that Gibbs thought of Franks' contribution as an altruistic one - a classic example of Semper Fi - of reaching out and helping a fellow Marine in desperate need of help and support, Bud definitely saw the situation very differently.
As far as the commander was concerned, the NIS agent manipulated his client into committing murder, since without the identity of the killer - which ultimately proved to be incorrect anyway - Gibbs couldn't have carried out the assassination successfully. He might have wanted revenge on the perp who had destroyed his world – who wouldn't? Nor would he be the first grieving husband and father to feel that way or the last no doubt – the emotion of revenge was an age old one – yet primitive and incompatible with a civilised country with an established and effective justice system. Bud understood it was a pretty normal reaction, part of the anger stage of grief in fact.
Yet the fact remained that most victims whose loved ones were murdered didn't go out and commit a vengeance killing, and not because they lacked the resources, motivation or skills to carry it out. No - it was because law enforcement personnel made damned sure that victims weren't given access to Intel that would make it easy for them hunt down and avenge their loved ones' deaths when they were beyond reason. For someone of Gibbs background, he was particularly vulnerable to being manipulated - as a highly trained Marine who whose whole world had been shattered, he was already like a loaded gun that was potentially lethal. Even so, a loaded gun still needed a target to aim at and someone to pull its trigger – without which it remain 'potentially' dangerous.
The lawyer wanted everyone to see that Franks bore true responsibility in this tragic situation. See him as someone who cynically sought out the loaded gun and picked it up, who aimed it at the victim by pointing Gibbs in the direction of the perp, knowing full well he was effectively setting in motion the assassination. Even if, in the final analysis, Gibbs took the shot doing what he'd been trained to do by the Corps, not being in his right mind at that point in time meant he was rife for exploitation. The truth was that if Mike Franks had a modicum of integrity as a federal agent he easily could have just as easily convinced Gibbs to abduct Pedro Hernandez and returning him back across the border to be charged and stand trial. Which with his Black Ops background would have been well within the Marine gunnery sergeant's skill level and expertise.
Bud was disgusted with what he'd uncovered regarding Special Agent Mike Franks and his version of enforcing the law, quite apart from his cruel exploitation of a fellow Marine who'd been beside himself with grief. Oh yeah, there would be some people out there that would see Franks as supporting Gibbs by giving him the means to avenge his family's death. Possibly even praise him for the risk that he took, potentially compromising his own career to see that Gibbs receive 'justice.' The fact remained though that as a federal agent he had a sworn duty to uphold the law, he'd taken an oath to do so, yet by inciting a grief-stricken widower to kill he was facilitating a serious crime and it made him an accessory and a co-conspirator. Plus by bypassing the trial process, in his absolute arrogance, Franks had robbed Hernandez and his family of the right to defend himself. He'd held himself above the law.
As Bud had discovered, it wasn't the only time that the former federal agent had been careless with rules and regs and even taken the law into his own hands. Bud decided he was arrogant, blatantly ignoring laws when it suited him, fudging evidence, forcing confessions through intimidation, even physical coercion. He lied to other investigators, hunting down and killing in cold blood those he saw as guilty. He was a damned cowboy, one with very few scruples as long as he got his man.
Apart from his brand of enforcement being highly illegal and completely abhorrent to professionals working in contemporary law enforcement, his investigative method in this particular case had been pretty damned sloppy. Not bothering to investigate properly had resulted in him identifying the wrong man as the killer of his agent and the Gibbs family. The ID seemed to be based entirely on Shannon Gibbs witness statement and as Bud knew better than most being a judge advocate, relying on witness ID's and recollections of violent crimes was a notoriously unreliable method of proving guilt or innocence. It was especially so when the witness was untrained and afraid and he had the studies to prove it.
Franks seemed to have forgotten that no one was infallible and that was why the system was designed so that guilt must be proven beyond a reasonable doubt and all evidence could be tested and challenged in a court of law. As much as it was abhorrent to think of a killer getting off, Bud found it more horrific to think of an innocent person being wrongly convicted and imprisoned or worse, executed. Their system wasn't perfect, sometimes despite all the checks and balances and their very best efforts, they still got it wrong. Still it was a damn sight more reliable than an avenging former Marine, turned federal agent who felt he was infallible and had a divine right to mete out justice.
Nevertheless, while emotional manipulation of a man incapable of exercising normal reasoned judgement was a valid avenue to pursue in pleading mitigation, and Bud intended to use it most aggressively, this was not what had brought him to Bethesda Naval Hospital. He come to interview the Head of Neurology, Dr Todd Gelfand because the Captain – a highly respected neurologist - had treated Gibbs twice for head injuries. Once in Kuwait during Desert Storm in 1991 and once again at Portsmouth Naval Hospital in 2006. The commander had instantly noting while studying Gibbs' service records that he'd been comatose for 19 days in 1991 following his family's death. He planned on using this information to provide a second avenue of extenuating circumstances since it occurred just prior to Gibbs killing Pedro Hernandez.
The captain took his seat behind his desk and smiled at Bud with a practised doctor's smile – the one that prevailed upon you to put your trust in him and confide your deepest and darkest concerns. Bud decided that with his tall, dark and handsome aspect that the captain probably had a lot of patients fell in love with him and he mentally took note that Gelfand would be a lawyer's dream witness. That's if he agreed to testify on Gibbs' behalf of course.
Having the dubious opportunity of spending far too many hour sizing up doctors, medics and nurses while he was recuperating from his own clash with a landmine in Afghanistan some years ago, it was hard for Bud not to assess doctors. Being forced to deal with way more of them that the average person does in their entire lifetime, he'd become extremely practised in the art of sizing them up automatically. This one seemed genuine and caring and he'd positively exude that on the stand as an expert witness, which was a good thing because frankly, Gibbs could use every advantage Bud could wangle.
Bethesda's chief neurologist, obviously busy, decided to cut straight to the chase. "So Commander, you mentioned that this was related to a former patient of mine - Gunnery Sergeant Gibbs?"
"Yes that's correct, Doctor. I understand you treated him in Kuwait in 1991?"
"Again your information is correct, Commander. Can you tell me what this is about?"
Bud sighed. "You are aware that Gibbs lost his wife and daughter in 1991? Mrs Gibbs was caught in the middle of in a drug deal and ended up witnessing a Marine being murdered and she was going to testify against the accused."
"I was never apprised of the details back then but yes, at a later point I learnt that they had died – Not the details however. I thought they had died in a car accident, though. I seem to recall Jenny er Director Shepard mentioning it when Gibbs was injured in 2006" Todd replied seriously.
Bud nodded. "Yes it was a car accident. The NIS agent who was part of their protection detail was shot as he was driving and he crashed the vehicle and the agent, Mrs Gibbs and her daughter died as a result of the accident."
"Terribly tragic. How old was his daughter?"
The commander shuddered, thinking of his own brood – AJ, Sarah, James and the twins Nikki and Michael* and how he would feel if anything happened to his precious children. Hell, losing Sarah in childbirth had been hard enough to rip out his heart but if one was murdered?
"Kelly Gibbs was eight years old."
The doctor looked sicken. "It's obscene to think that while he was off defending his country that some scumbag killed his family." He sighed. "While this is a tragedy, it was a long time ago. How does this relate to the present, Commander?"
The JAG lawyer took a breath and metaphorically crossed his fingers and hoped for the best. "Last week, Gibbs confessed that while he was on compassionate leave after their funeral in 1991, he travelled down to Mexico City and killed the man believed to have killed Shannon and Kelly Gibbs. He was driven into admitting to the murder after all this time because the real killer made a deathbed confessed several weeks ago. The actual killer and the man Gibbs killed were in fact cousins and unfortunately, shared the same first and last names."
At the doctor's grimace, Bud offered more information. "As I understand it, they were both named after their paternal grandfather. He was patriarch and head of an influential Mexican drug cartel and he had a large family – twelve offspring. Apparently in some large families it is quite common to name children after the patriarch, even if another sibling has already named one of their children first. Maybe it's a blatant attempt to curry favour with the head of the family but in this case it also resulted in a tragic case of mistaken identity. Seems that the man Gibbs shot was a rather minor player in the family business and he left behind a young family, too."
Todd looked horrified. "Crap! What a damned mess." He seemed to be considering something. "Hang on a minute. How did Gibbs find the victim anyway? I've read his file after he was sent to Bethesda in 1991. He was a real mess when he was discharged and he was granted compassionate leave. I know he's a federal agent at NCIS now but back then he was Marine. Not exactly equipped with the necessary resources to track down a suspect in another country when he was on leave, I would have thought."
"Retired federal agent actually. Gibbs left NCIS three years ago but point taken, Doctor. Unfortunately, it seems that someone at NIS tipped him off about the suspected killer's ID, except they didn't investigate the situation sufficiently to determine that there were two cousins of the same name within the cartel."
"Sloppy and unscrupulous! I expect you want me to testify that the gunny was grief stricken and not in his right mind?" Todd surmised.
"Yes Doctor, but I was also hopeful that you'll be willing to testify that his behaviour was consistent with a traumatic brain injury. I plan to use it in pleading for mitigation," Bud disclosed cautiously.
The neurologist looked surprised. "TBI? What makes you think that was a factor, Commander. There was no evidence of traumatic brain injury," he asserted, after studying Gibbs' medical file again.
Bud nodded. "I am aware of that having read his medical records, however my understanding is that TBI can be notoriously difficult to diagnose?"
"Sometimes for so called minor TBIs. They often don't show up on scans," Todd conceded reluctantly. "So is this a trial strategy or do you really have some basis to suspect a TBI, Commander?" he demanded rather cynically.
Bud shrugged. Yes, I'll admit it started out as strategy, Captain but now I do think that there is a damned good case for arguing that Gibbs sustained a traumatic brain injury."
"Okay, lay it out for me, Commander." Dr Gelfand instructed the lawyer – curious to hear his reasoning.
"Well first off, I should probably disclose that I know Gibbs. Worked with him at various times when he was a special agent at NCIS and then when I got this case I started interviewing people that knew him when he was a Marine, prior to his wife and daughter's death and his coma. I've got to say Doctor, there was this huge divide between the Gunny Gibbs they described and the Special Agent Gibbs that I knew. It's like they were two different people…"
"That could just be explained by a combination of emotional issues, for example his unresolved grief and his feelings of extreme guilt over killing someone without it being sanctioned. Plus anxiety, wondering when he was going to be caught." Todd objected.
"Partly perhaps," Bud conceded. "The grief and anxiety maybe but not guilt. He really doesn't believe that he did anything wrong…well not until he found out he killed the wrong Pedro Hernandez a few days ago. Even now he's only expressed regret about killing the wrong guy, he really wishes he could have dispatched the real killer and is pissed that he didn't. And believe me, he sees absolutely nothing whatsoever hypocritical about spending nearly two decades chasing down and putting other murders behind bars either. He truly believes he had a moral right to avenge his family's death.
"But it's a lot more complex than just his belief in his divine right to vengeance or that he's exempt, Doc. I talked to a Gunnery Sergeant Vestman, who says that when he was an MP, Gibbs broke up a bar room brawl Vestman was involved in when he was serving at Camp Lejeune, which resulted in Vestman serving a week in the brig. He described how Gibbs was one of the more popular of their prison chasers because he allowed the men to take smoko breaks while they were on work detail.* Believe me that is not the Special Agent I knew and worked with over the years.
"In my experience and based upon interviewing a lot of his former colleagues, he treated his NCIS team like crap. He was well known for driving them unmercifully - not letting them eat or go home when they had a hot case. When he became obsessed over a particular case that he identified with strongly, he was even worse, some said tyrannical." Bud paused before continuing to present his argument as Todd raised his eyebrows and began taking copious notes.
"Also, as a Marine, Gibbs had a stellar career as a sniper. I don't need to tell you that a sniper needs to have nerves of steel and unfailing patience. They need to wait for hours or much longer until the perfect moment when they take the shot or a target moves into range?" Bud looked at the neurologist for confirmation.
Todd nodded noncommittally, obviously waiting to see where Bud was headed.
"Well, Gunny Gibbs had the patience of a saint or more accurately, a top notch Recon Force sniper but as Special Agent Gibbs, he was notoriously bereft of patience in any shape or form. In one case that his team investigated, a Marine died during a night-time parachute training exercise when his chute failed to open and he speared into an parked SUV with a couple of teenagers inside. It was supposed to look as if he died in a terrible accident but Gibbs' team determined he was murdered by one of his team mates.
They had acquired sufficient evidence to ascertain which of his fellow Marines had killed him but Gibbs simply refused to wait the requisite 24 hours it would have taken for the DNA test from his forensic scientist to ID the killer. He wanted an immediate confession and bullied or coerced a Marine captain into allowing him and his 2IC to go up in the plane with the platoon on another night training jump so Gibbs could force a confession from their suspect by giving him the chute he doctored to use.
"I should have prefaced this account with the fact that DiNozzo, his 2IC, had not completed the compulsory 12 weeks of jump school qualifying him to jump… especially to make a night jump which are particularly dangerous. Hell, he'd never even make a jump before. He was a damned civilian, should never have been permitted to set foot in the plane; it was a disaster just waiting to happen - which it did. Gibbs got his confession and hardly surprisingly, the Marines reacted violently when they discovered who the killer was and there was a fair bit of argy-bargy as they expressed their anger. Gibbs ordered his agent to arrest the killer and he made the mistake of unclipping his line when he went to cuff the suspect and read him his Article 31 rights and in the ensuing melee, he got shoved out of the plane.
"It was a rookie mistake by the agent, but considering the sum of his jump instruction consisted of a few snatched minutes - on the job - with a Marine showing him how to roll on landing, it was an entirely predictable outcome." Bud declared stormily. He was incensed at how easily it could have come unstuck and the NCIS agent could have died a stupid, senseless death.
"There's a damned good reason that jump school is a prerequisite for making jumps or even being in the plane without being in tandem with a qualified jumper." Captain Gelfand agreed solemnly. "How badly was he hurt?"
"The fact he wasn't killed is nothing short of a miracle. Apart from torn ligaments in his ankle and reinjuring an old knee injury he escaped with contusions and abrasions but the fact remains that Gibbs knew he was flouting basic safety prerequisites and didn't give a damn. He'd done jump training as a Marine so there was absolutely no excuse. Gibbs was too focused on getting his man and ignored basic safeguards for his subordinate and that flies in the face of the responsible and caring gunny that cared about his people which the Marines described. Plus the fact that it was a totally unnecessary risk to catch their killer just made it even more unfathomable."
"And even more inexcusable to risk his agent." Todd observed wryly.
"And that's not a one off incident, not by any means when it comes to Gibbs inability to exercise delayed gratification of investigative goals at the expense of his agents' welfare. He risked the life of the same subordinate and another agent when he stole a body out from under the FBI when they claimed jurisdiction of the body of the President's football carrier on Air Force One. He'd been poisoned by terrorists and Gibbs was determined to lead the investigation and that meant autopsying the body, as far as he was concerned. DiNozzo was ordered into the body bag, impersonating the dead officer so that Gibbs and the NCIS medical examiner could steal the corpse and take it back to their HQ.
"Once they were free and clear, Gibbs couldn't wait for his agent to be discovered when the FBI unloaded him back at their morgue because he wanted DiNozzo to carry out a search of the Commander's apartment. So instead of waiting he called him on his cell phone en route to the morgue, giving the FBI agents a heart attack and tipping them off that they'd lost the body. Needless to say…they were furious and pitched DiNozzo out, still inside the body bag onto the beltway. Talk about irresponsible!" Bud had to take a few deep breaths and steel himself against the indignation he felt about how it had been treated as a huge joke. He needed to stay on point.
"Gibbs then issued instructions to another agent to pick up the abandoned body bag containing his 2IC which the FBI slung out on the beltway so DiNozzo could proceed with the property search. I should point out that DiNozzo was thrown out of the FBI van at night still in the body bag - visibility was obviously poor and both he and the agent sent to retrieve him were placed in imminent danger of being hit by other vehicles on the beltway. All because Gibbs refused to wait a few extra minutes."
He looked at the doctor interrogatively. "Does that sound like the comportment of a respected and decorated gunnery sergeant of the US Marine Corps to you, Doc?"
Todd was manifestly disturbed and shook his head. "No Commander it doesn't. How reliable is this information?"
"One hundred percent legit, Captain. There's plenty more too. In fact the more I began to suspect that TBI was a possible explanation for the anomalies in his behaviour when it came to failing to properly safeguard his team, the more evidence I seemed to uncover supporting the hypothesis."
"How so? More examples of his lack of patience," Gelfand questioned.
"Sure. Plenty but then there were also situations where he made truly appalling operational decisions, resulting in civilians being put into mortal danger because of his lack of judgement too. Evidence of him putting his personal feelings and relationships ahead of procedures, rules and regs. resulting in him threatening the welfare of others. In one case, he failed to disclose to his team that a Marine buddy of his who'd become a senator, was having an affair with the young naval officer whose death they were investigating. Something they really needed to be read in on. It resulted in the senator's wife who was the killer, murdering the senator's aide when he discovered her guilt. Had Gibbs followed procedure the death was probably completely avoidable since she and the senator should have been chief suspects.
"In another case, he went running off, leaving his team and the director deliberately out of the loop, concealing evidence and failing to tell anyone what he was up to because it was his daughter's best friend who was in trouble and he wanted to save her as some form of redemption. He then managed to trap himself and the young civilian in a submerged car he'd reversed off a dock and both of them ended up clinically dead and requiring artificial resuscitation and hospitalisation. Luckily his 2IC arrived on the scene belatedly, thanks to other evidence the team had collected previously. He ended up killing two perps who were shooting at Gibbs and the girl, then was forced to dive into the water and somehow was able to break into the car, free both of them and drag them to the dock and resuscitate them.
"Since he has significant lung impairment it was a physical feat that should have been impossible. If not for DiNozzo, both Gibbs and the girl would have died that day and it never should have happened if only Gibbs had followed procedures and taken proper backup and kept his team in the loop." Bud shook his head, incredulous that such a situation ever arose, not to mention instead of him being called to account, NCIS turned around and rewarded him with the Meritorious Civilian Service Award.
Todd looked appalled. "That hardly sounds like the actions of a Silver Star recipient or a highly experienced noncom Marine. It actually reflects impetuosity, recklessness, impaired problem solving ability and a failure to anticipate consequences. Not to mention putting a civilian's life in imminent danger goes against everything that he should hold dear, every ounce of training – military and law enforcement." He seemed to be deep in thought before continuing.
"I'd like to review any further documentation you have on this matter, Commander Roberts, along with a list of people people who worked with him at NCIS who I can interview. Tentatively, I think that you may indeed have something to argue re a TBI. It sounds as if there could have been an injury, possibly occurring in the frontal lobe.* The poor decision making, the entitlement and inability to see the hypocrisy inherent in his situation, the lack of empathy for others, personality changes and low threshold of frustration are red flags often associated with TBIs. I'll need more data before I can confirm a TBI diagnosis but if it pans out then I think you have a good case to argue that Gibbs' ability to make well considered decisions was impaired due to a traumatic brain damage incurred during an explosion that took place in Kuwait."
Bud looked both gratified and relieved. There was a hellavu lot riding on his shoulders, not the least of which was the death sentence for his client because premeditated murder was a capital offence. He knew that while the powers that be wanted to send a message that they weren't going to sweep this under the rug, they also didn't want to execute a decorated and respected Marine either. It was an invidious situation to be in and he was feeling the pressure of everyone's expectation that he would get him off. Bud knew that this case was make or break for his future at JAG too although it seemed superficial and egocentric to be thinking of himself. Talk about being between a rock and a hard place!
"Sure, Captain. I'll forward what I've discovered thus far and anything else I uncover. Would you consider testifying as an expert witness at the penalty phase of his court martial or maybe suggest someone who could?" Bud enquired hopefully?
Todd considered carefully. "If we missed diagnosing a TBI then I owe it to him to see if I can keep him from a date with a lethal injection."
End Notes:
*I couldn't find out what Bud and Harriet called the second of their twins so since they called their children after people that were important to them, I figured that Bud's brother Mikey was a likely candidate.
*The relationship between GS Vestman and Gibbs at Jejeune was revealed during the season one episode My Other Left Foot.
*FYI some info about how TBI's can affect personality, cognitive functions and emotions:
"…. Prominent behavioral characteristics in TBI patients have included altered emotion (including restricted emotions with occasional inappropriate or uncontrolled emotional outbursts); impaired judgment and decision–making (including difficulty arriving at decisions as well as poor decisions); impaired initiation, planning, and organization of behavior; and defective social comportment (including egocentricity and impaired empathy). These impairments tend to be accompanied by a marked lack of insight. The abnormalities often are not evident in interviews or over brief time frames, but rather become apparent when the patient's behavior is considered over a period of months or even years (Barrash, Tranel, & Anderson, 2000)…" Excerpt from Traumatic Brain Injury and Personality Change by Marc Fowler & Paul C. McCabe