For Former Military Lawyer Colby Vokey, the Defense Never Rests
Colby Vokey emerges from behind his wooden desk and crouches into a shallow squat, his broad shoulders eating up the space in front of the panoramic windows that overlook downtown Dallas. He bends at the knees and stretches his hands behind him, his crisp, dark suit crumpling unnaturally.
"The purpose is to create stress on your joints," Vokey says. His office walls skim the highlights of his life — college and law school diplomas, a Dallas Morning News story about his retirement from the Marines, a Wall Street Journal story about a teenage detainee whom Vokey defended at Guantanamo Bay. Vokey retired from the military in 2008 as a lieutenant colonel, but he still spends most of his time defending the accused in high-profile military cases — including one of the soldiers charged with manslaughter in the recent suicide of Chinese-American Army Private Danny Chen.
It creates incredible pain, Vokey goes on, still crouching. He's attempting to capture, as best he can from the comfort of an Uptown office tower, how that teenage detainee in the Journal story was shackled to the floor with his hands and feet chained together. Omar Khadr was 15 when he threw a grenade that killed an American soldier in Afghanistan, and he was among the youngest to be sentenced to Guantanamo. Shackled to the ground in prison, he eventually tipped over, Vokey says. The guards yanked him by his hair back into position. After a while, Vokey says, the boy urinated on himself. The guards squirted the ground with disinfectant and used Khadr as a human mop, swirling him in his own mess.
If there was a way to bring the scenario closer, to walk you through the halls of Guantanamo, to introduce you to his former client, Vokey would do it. But for now, crouching into this mock stress position, in the middle of his office high above McKinney Avenue, is the best he can do to make Guantanamo feel less distant, to help you grasp how this case, while meant to break his client, nearly broke him.
On November 19, 2005, a roadside bomb ripped through a U.S. military vehicle, the last in a convoy traveling through Haditha, Iraq. It was 25-year-old Sergeant Frank Wuterich's first combat experience. Setting out to kill the killers of his fellow soldier, he spotted a white car near the initial blast. Five Iraqi men stepped out and ran. As he would later tell 60 Minutes, Wuterich, who was in command of a squad of 12 men, shot to kill. (That the men fled was disputed by some witnesses.)
Moments later, Wuterich heard enemy shots from a nearby area. He promptly led his men there to "clear" a home that he believed to be the source of the fire. The soldiers upended the home with grenades and gunfire, but the occupants were all civilians. Believing the gunman had run from the first house to a second, the soldiers then mowed through that house's occupants, a family of seven, before finally reaching a third house, where they located a man with a rifle. They killed him and three others.
In the end, eight Marines would be charged with crimes for that day's sweeps, offenses ranging from dereliction of duty to murder. Wuterich was accused with murdering 18 civilians. He faced life in prison.
Before charges were formally brought against Wuterich, Vokey requested that his supervisor in the Marines assign him to the serviceman's case. "I wanted to jump on the most serious case, the toughest case," Vokey says. "He's the big one."
Vokey, who grew up in Dallas, had become serious about the military while at Texas A&M, where he earned an ROTC scholarship. He entered the Marine Corps as an artillery officer. "Big guns and calling in fire — it sounded pretty appealing to me," he says.
He was deployed in the late 1980s and early 1990s, for a tour in Okinawa, Japan, that included support for the Gulf War. He returned to Dallas to help the local Reserves unit, and while here served on a jury for a military court martial. "I thought, you know, I could do it better," he says, recalling the bumbling young attorney who defended the soldier accused of passing bad checks. "I just need to know what's in those books he's got on the table."
After graduating from law school at the University of North Dakota, Vokey and his growing family — he's married with three kids — moved to Camp Pendleton in California. He worked his way through the ranks, juggling a caseload ranging from soldiers gone AWOL to murders. By 2004, as more weighty war-crime cases began to surface, Vokey had been named Regional Defense Counsel, responsible for overseeing the "judge advocates" — that's Marine-speak for lawyers — for the western states and Iraq.
Vokey is a natural storyteller, and he takes those skills with him to the courtroom. With each new case, he builds a narrative, piecing together his client's recollection of the facts with all available evidence. When lawyers stand up and recite a laundry list of facts, Vokey says, "it's boring as hell."
"Instead, why don't you tell them a story?" he says. "If you put it into action, it's exciting."
Proper context is key in these cases, he says, especially in his defense of Wuterich. "First, understand the area of Haditha, which was the heartbeat of the insurgency," Vokey says, in an assuring cadence that becomes even more pronounced in the courtroom. "As soon as the explosion happens, there are no people out there. There are no cars ... except one car. The Marines respond as they should, having suspected these guys might be the triggermen." Vokey maintains that the men in the car were insurgents, even though they weren't found to be armed.
Wuterich and his men were also in the "fog of war," Vokey says. They did not have the luxury of reflection that the court has. In clearing the houses after coming under fire, Wuterich "did what he was trained to do," Vokey says."This is moments after they're in a firefight and they're getting shot at, and they identify the enemy and shoot them."
The Wuterich case dragged on for years, with appeals and procedural delays constantly pushing it back and pulling Vokey closer. "Because I was with him for so long and I got to know Frank so well," Vokey says, "I really love the guy."
It's December 15, 2011, the day that marks the end of the war in Iraq. Vokey is just back from a trip to North Carolina, where he attended a hearing in an attempted murder case he's working. He arrives at his office in jeans and a relaxed long-sleeved shirt to catch up on work. There's a dip of chewing tobacco tucked invisibly into his lip, and he spits into a cup so politely that the habit, which he shares in common with so many servicemen, is almost unnoticeable.
When the war began, Vokey says, he was on active duty and believed everything he'd heard about weapons of mass destruction. He supported President Bush and the Marines, and had no reason to second-guess his loyalties.
But when no weapons were found, Vokey says, his view on the war unraveled. "You kind of wonder how we could screw up that bad," he says. He also had an up-close view of the troops broken by combat — and in the Omar Khadr case, of Guantanamo prisoners who he says didn't stand a chance at justice. He slowly came to the conclusion that he was working within a system that was imperfect, and eventually, unbearable.
"If our guys make a mistake, instead of getting the benefit of the doubt or support, they get serious charges thrown on them," Vokey says. The young men are sent to do some pretty terrible things, but charges loom if they don't do those terrible things just so. Rules of Engagement read more like jury instructions, Vokey says, and troops are often left to make their own judgment calls. Bad calls lead them to lawyers like Vokey, and to the courtroom.
Vokey also takes issue with the amount of power military commanders hold in court martial procedures. They determine the charges, select the jury and assess witness admissibility. "The commander is everybody and everything," says civilian military lawyer and retired Colonel Jane Siegel, former chief of defense lawyers in the Marine Corps and Vokey's former boss.
"Military justice has, as its fundamental goal, to advance the cause of good order and discipline in the armed forces," adds Retired Marine Brigadier General David Brahms, who serves on the board of directors of the Judge Advocates Association and worked with Vokey on the Haditha case. "I don't quarrel with the purpose; I quarrel with the process, which I don't believe in practice achieves that goal. We have a bastardized system ... military justice is often a pain in the ass."
Vokey's willingness to endure that pain, and dish some out himself, earned him the respect of his fellow military lawyers. That includes Brahms, who still refers clients to Vokey.
"There is a very small cohort of top-drawer civilian counsel," Brahms says, estimating that cohort at around 10 people nationwide. "Colby fits in that group."
Army Specialist Michael Wagnon is the sort of client Brahms might send Vokey's way. He was charged with murder in 2010, part of a "Kill Team" accused of killing civilians for sport in Afghanistan. "Our first meeting was awesome," Wagnon says in a phone interview. "He put in a dip of Copenhagen. I was like, 'Holy crap, you're dippin' in the facility.' From right there, I was like, 'Yep, this is my guy.' ... He came off as the kind of guy you would want on your side in a fight. The prosecution offered plea deals until shortly before his scheduled trial, but Vokey wouldn't budge. "I tell them no way — not just no, but hell no," Vokey says.
A month before Wagnon's trial, his phone rang while he was driving with a friend. It was Vokey. "Hey, I got good news," Wagnon remembers him saying. "Hey brother, they dropped the charges." He was the only one of 12 soldiers in his platoon charged with crimes ranging from using illegal drugs to murder to have his case dismissed.
"The key to Colby Vokey is that he's got integrity," Brahms says, "right down to the tip of his little finger."
Vokey's career since the wars has been a constant stream of challenges to that integrity. While he was defending Wuterich in the Haditha case, another case from Iraq hit his office. An eight-man squad had killed an Iraqi civilian in Hamdania and staged the death so it appeared the unarmed man had been setting a bomb.
Platoon members were hit with a slew of charges, including murder. Vokey was responsible for staffing their defense teams, no small task for an office overburdened with cases. Manpower and office space were at a premium. Vokey ordered his lawyers, most of them relatively inexperienced and stretched to the point of snapping, not to take new cases.
"For as long as I can remember there was always an issue as to whether the defense had enough people and enough experience to balance what the government had," Siegel says. Fighting for more meant fighting the people with the power to promote. "He always put his clients before his career, and that's rare in the Marine Corps," Siegel says.
Vokey's superiors eventually allowed his team of lawyers to expand to another floor of the building, displacing the prosecutors there. Their office was dubbed the "pirate ship," with a skull-and-crossbones flag flying in the hallway and pirate bric-a-brac scattered throughout.
Five of the eight soldiers charged in the Hamdania case pleaded guilty to lesser crimes, and they were all sentenced to less than two years. Of the three who went to court martial, two were sentenced to 14 months in prison. The squad leader was sentenced to 15 years, which was later reduced to 11.
Vokey's son-in-law, Jeff Lang, a Marine who met Vokey's daughter at Camp Pendleton, worked with several of the men charged in the Hamdania case. "It was kind of a big shock," he says, sitting in Vokey's living room one February afternoon. "You almost expected something like that to happen eventually." War, he says, has a way of twisting scenarios and changing men.
In his own deployment, Lang and his platoon mates had arrested an Iraqi man known to be a threat, only to see him on the street again the next day because the paperwork was filled out wrong. The man would wave to them, constantly taunting, until they stopped walking near the place he lived.
"Your temper just kind of goes up real quick when you see that," Lang says. "You can only get poked so many times before you poke back." When you poke back is when Vokey gets the call.
Less than seven months before the Haditha and Hamdania cases, Vokey had a brief stretch of relative quiet, lasting no more than two months. With the wars still raging, it couldn't last. That was when he was hit with the Omar Khadr case, the one that continuously poked back at Vokey.
Colonel Dwight Sullivan, the former Chief Defense Counsel for the Office of Military Commissions, assigned the Khadr case to Vokey, who'd made a name for himself as the "go-to" guy for the toughest cases. "And that case was a hard mission," Sullivan says.
Vokey was busy managing cases as regional defense counsel — cases in which the accused were all soldiers, not unlike the 28-year-old father whom Khadr stood accused of killing. Vokey knew that taking Khadr's case meant missing certain opportunities for military promotion, like leading a battalion or going to a war college. He didn't know that he was up against a system he would quickly come to despise.
"It was a lawless legal system, is what it was," he says. "John Adams would roll over in his grave if he saw what was going on there."
The military commissions system at Guantanamo, Vokey says, was a flawed mechanism that Congress has since improved. "It was designed to convict," Vokey says. "Do you cite federal law, international law, military cases, U.S. constitutional law? It didn't really matter because they would always say, 'That's not applicable.'"
On one trip to see Khadr, a guard paged through Vokey's notebook from the previous day's interview with his client. Vokey complained to the guard's superior, who ignored Vokey's complaint. "We don't do that here," the superior insisted.
At one point, the prosecution and defense debated whether Khadr was considered a child soldier under international law. "Omar, he's really the first one in modern history — a juvenile to be tried for a war crime," Vokey says. When he raised the issue that Khadr was captured at 15, Vokey says, the government responded: He's not a juvenile anymore, so we can try him.
"It was ludicrous to think like that," Vokey says. "God, it rips your heart out to see it all happening." Vokey came to fear that the young man would kill himself. "Depression, hopelessness, he had no idea who he could trust, even, including me," Vokey says.
One night, Vokey's paralegal, Sergeant Heather Cerveny, was out with several Guantanamo guards when they began nonchalantly talking about abusing prisoners. She shared the story with Vokey, who told her to write an affidavit. He filed a complaint with the Pentagon, and together they detailed the situation to ABC News. His bosses responded by placing them under a gag order. Vokey was threatened with charges for making false claims, he says, but they never materialized. "I should have known it was just a harbinger of bad things to come," Vokey says. (Colonel Carol Joyce, the supervisor who ordered Vokey to keep quiet, did not return the Observer's calls or emails.)
Vokey says he was also threatened with charges that never materialized for talking to the media for a USA Today story about soldiers with PTSD; another time, Vokey heard that a Guantanamo officer hinted to his boss that he was receiving illegal gifts from foreign governments. Though he was never formally accused, Vokey says he spent years on edge because of vague threats of charges or ethics complaints.
Siegel remembers Vokey being under siege. "He refused to be silenced," she says. "He refused to bend to the very heavy hand of the government." She says that if it weren't for his outspokenness at Guantanamo, he likely would have been promoted to colonel. "Every day, he never knew when he was going to get a phone call to say you're out of there."
Omar Khadr fired his American lawyers in 2007, and that was the last involvement Vokey had with the case that took so much from him. Last year, Khadr accepted a plea deal that would keep him at Guantanamo for one more year, followed by seven in a Canadian prison. He's still at Guantanamo.
As the Khadr case ended for Vokey, Wuterich's carried on much longer than expected. Trial was set for March 1, 2008, and Vokey had carefully planned his retirement to take effect a few weeks later. As the case dragged on, Vokey extended his retirement, living in a trailer by a lake at Camp Pendleton while his family lived in Dallas with his in-laws.
By this time, he says, he had been loosely threatened and nearly fired so many times that his wife feared for his pension. "He put his pension on the line, really, as a Marine, just trying to do what was right for his clients when the Marine Corps said it was wrong," his wife, Cindy, says.
"You had to be dedicated to your client and the defense team, not to the Marine Corps so much," she says. "Our storybook ending wasn't looking so good."
Vokey says he requested to extend his retirement a fourth time and was denied, meaning he couldn't finish Wuterich's case. A Marines official even accused him of milking his time in Southern California, he says. "I'm living in a friggin' trailer by the lake," Vokey remembers thinking. Six days later, he drove to Dallas, not knowing what he would do next.
In the end, the storybook ending his wife had wanted, or at least the book's next chapter, worked out as they'd hoped. The Marines provided the pension and benefits he'd earned over his 20 years of service, and an officer from his days in Dallas, Dan Hagood, offered him a job at a local criminal defense firm. Hagood had become a top Dallas prosecutor before moving into private practice.
"He's not a regular lawyer. I'm telling you," Hagood says. "There's nothing clever or shrewd about Colby ... he's smart and people know it."
In the winter of 2008, Vokey and his family bought their first home, in a quiet North Dallas neighborhood. Vokey rejoined the Wuterich case as a civilian co-counsel, working basically without pay. "I just didn't want to leave Frank," he says.
But in 2011, a conflict arose because Hagood had defended another of the accused soldiers. Vokey was removed from the case. In January of this year, Wuterich pleaded guilty to negligent dereliction of duty, with a maximum of three months confinement.
A month after Wuterich's sentencing, Vokey arrived at the Army base in Kandahar for the first time since his 2008 retirement. Throughout the next three days, he would interview his newest client, listen to a co-defendant's hearing, digest reams of evidence and witness statements that he was evaluating for the first time, and prepare his client for a hearing that would determine the charges that would progress to court martial, the military's version of a trial.
Those charges are rooted in the suicide of Danny Chen, the Chinese-American soldier who killed himself in October in a guard tower in Afghanistan. Staff Sergeant Andrew Van Bockel and seven other soldiers are accused of driving Chen to suicide, by hazing him with racial slurs and singling him out for physical punishment. Their charges range from involuntary manslaughter to making a false official statement.
"I thought it was ridiculous," Vokey says after his return. He says he's never heard of anyone being charged with involuntary manslaughter for a suicide. "It's insane."
Upon arriving in Afghanistan, Vokey had to find a place to stay before he could meet his client. He found a room in a bare-bones cube of a building with a dingy sign that read "Hotel Kandahar." Rows of doors, like those of ship cabins, lead to tiny rooms, each with a twin bed, unadorned dresser and small desk.
The morning after his arrival, Vokey sat on the cheap, squeaky chair at the desk amid stacks of papers, reviewing photos and witness statements. Van Bockel knocked on the door.
"It's good to finally meet you in person," Vokey told him.
Vokey, Van Bockel and two Army lawyers spent the next few days reviewing facts and statements, recreating scenes and, eventually, presenting their narrative at the hearing. It was held in a former Canadian Forces compound, Vokey says, transformed into a courtroom with handyman plywood work and a plastic Department of Defense seal slapped on the judge's podium.
The Danny Chen case made headlines all over the world. A New York Magazine profile painted Chen as a smart and reserved student who grew up in Chinatown with a desire to join the Army despite his parents' deep reservations. That story, and a slew of others, showed a soldier who endured taunting from his platoon until he could endure it no longer.
"Anytime anybody kills himself, it's a terrible thing. That's a tragedy," Vokey says. But the crux of his defense is that it's impossible to determine why someone took his own life. Too many variables enter the equation to squarely pin blame on another person, Vokey says.
His defense goes further than that, or will if the court allows. Vokey says Army investigators have learned an unpublicized and unsavory side of Chen, which Vokey revealed during the three-day hearing.
According to Vokey, Chen's personal computer contained anime cartoon comic strips of disturbing sexual scenarios, and pornographic photos of young-looking women. Only one such photo was permitted as evidence at the Article 32 hearing, Vokey says, and the investigating officer's report, provided to the Observer by Vokey, says the image was "of no relevance."
The defense objected to the exclusion of this evidence, and Vokey says the discrepancy has not been resolved. The Army refused to comment on the evidence.
Rick Meadow, a lawyer for the Chen family, was unaware of the evidence. Besides, he said, "it would be irrelevant to him getting beaten and hazed by these guys for six weeks."
Prosecutors declined to comment through a spokesman, but they obviously have a different story to tell. At a news conference, Chen's family recounted the details they had learned of their son's treatment. Hours before his death, they told The New York Times, Chen forgot to turn off the water heater. For that, they said, soldiers pulled him from bed, forced him to crawl on the ground while they peppered him with rocks, made fun of him with racial slurs and forced him to do pull-ups with a mouth full of water. They wouldn't let him spit it out. Meanwhile, New York Magazine reported, soldiers continued to pepper him with racist epithets — "gook," "chink" and "dragon lady" — and made him do sprints while lugging a sandbag.
But Vokey paints a less flattering portrait of Chen, one that he will relay during a trial if the court allows. Chen was never allowed on patrol because he was too forgetful and irresponsible to endure the combat scenarios they constantly encountered, Vokey says. When on guard duty, he would do things like forget — or just not care — to bring his helmet. Once, when they got a hot water heater that was a huge luxury and an absolute pain to install (the one his parents referenced at the news conference), Chen was the first to forget — or just not care — to turn off the pump, and it exploded a half-hour later.
"If it was me, I would have beaten the snot out of him," Vokey says. Recounting his trip, he went from a simmer to a controlled boil, noting that Chen habitually endangered other soldiers' lives. The case was personal, as most of his cases are. Vokey has yet to hear which charges will go to court martial.
"I do get emotional. I get angry. I feel love for Andrew," Vokey says. "I feel guilt that I work here back safely in Dallas." The Marines motto, Semper Fidelis, meaning "always faithful," is so ubiquitous its meaning tends to depreciate, but Vokey seems to have tweaked it a bit along the way, refreshing it to apply to his clients, if not the military. Vokey wears his Marines pin on his lapel every time he wears a suit, whether at a hearing in Afghanistan or showing up for a day of work in Dallas.
Shortly before he had to catch his plane home from Kandahar, Vokey says, he made his closing arguments. He offered a personal story of a law school friend who, saddled with pressures of school and home life, killed himself. No one could believe what happened and people wanted answers, but "a lot of times you just can't find out the reason why," Vokey recalls arguing.
After the hearing, Vokey packed his bags while Van Bockel and the two Army lawyers hung out in his room. While piling items in his suitcase, Vokey delineated work for each of them — compiling witness lists, reading statements, keeping an edge on the case and using every available resource. The lawyers eventually left, but his client stayed longer.
"Stay motivated, and keep your chin up," Vokey says he told him. He prepared Van Bockel for a "roller-coaster," expecting that based on previous decisions regarding his co-defendants, the Army will proceed with at least the negligent homicide charges, which would bond him to Vokey for the long haul, however long that proves to be.
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