Posted on 01/26/2007 6:07:49 AM PST by RedRover
CAMP PENDLETON ---- The credibility of three Naval Criminal Investigative Service agents and three enlisted men will be at issue today when a hearing for a Marine officer accused of assaulting Iraqi civilians resumes at Camp Pendleton.
The issue arose earlier this month when a lawyer for 2nd Lt. Nathan Phan alleged that statements prepared by the agents based on interviews with the three enlisted men included fabricated material that implicated his client.
The contention from attorney David Sheldon prompted Lt. Col. William Pigott, who is presiding over Phan's Article 32 hearing, to halt the proceedings until the agents could be present to testify.
The hearing will lead to a recommendation from Pigott as to whether he believes the convening authority, Lt. Gen. James N. Mattis, should order Phan to face court-martial.
Sheldon and Phan's two military attorneys contend they have sworn, signed affidavits from the three enlisted Marines stating they never told the Navy and Marine Corps' law enforcement agency that they saw the lieutenant strike anyone.
Phan was charged in August with assaulting three Iraqi men in the village of Hamdania last year and placing an unloaded pistol in the mouth of one of the alleged victims. He also is accused of making a false official statement.
The hearing is to resume at 8 a.m. today and continue into Saturday. Mattis can either accept or reject the ultimate recommendation from the hearing officer, and he has the same sort of discretion when it comes to a judicial finding and sentence should Phan be ordered to trial and convicted.
Sheldon said this week that he planned an "aggressive examination" of agents who took the enlisted men's statements during interview sessions in Iraq last spring. He also said he expects to call two of the three enlisted Marines to the stand. The third has already testified that he never told agents he saw Phan commit an assault.
An issue that has arisen from Sheldon's assertion is the Naval Criminal Investigative Service's practice of not taping its interviews. Agents instead prepare a typewritten document based on their interviews and then present it to the witness or suspect interviewed to review and to sign as a sworn statement.
Sheldon said he also wants to know why the agency typically tapes drug or stolen property buys conducted by undercover agents, but does not employ the practice in its interview sessions.
Agency officials at its headquarters in Washington say the methodology is under review, with consideration being given to taping statements.
Phan's attorneys maintain that the 26-year-old Sacramento area native is innocent and that Marine Corps prosecutors have failed to submit any evidence that he made a false statement. They also contend that evidence being used to prosecute the assault charge does not establish that he ever struck any Iraqi.
Prosecutors, however, point to the statements the enlisted men made in Iraq and the guilty plea by a Marine corporal last week in an unrelated homicide case as sufficient evidence of wrongdoing.
On Jan. 18, Cpl. Trent Thomas pleaded guilty to murder and related charges in the April 26 shooting death of a 52-year-old Iraqi man in Hamdania. Thomas also pleaded guilty to assaulting one of the men that Phan also is accused of beating, and made reference while being questioned by the judge presiding over his case to seeing the lieutenant place a pistol in the mouth of an Iraqi detainee.
The assault case arose out of the investigation of the homicide. Five of the eight men from Camp Pendleton's Kilo Company from the 3rd Battalion, 5th Marine Regiment charged in that case have pleaded guilty to offenses related to the slaying.
Phan was the platoon commander over the men charged in the homicide case but was not present when the killing took place and is not implicated in it in any way.
A pretrial hearing for the squad leader in the homicide case, Sgt. Lawrence Hutchins III, was on the Camp Pendleton court calendar for Monday but it was not immediately clear whether that session will take place.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
Today's a big day. This is a major development in the unfolding story of the methods employed by tbe NCIS to put innocent Marines in prison.
Why would NCIS agents fabricate evidence? Career advancement? Political pressure? Maybe we'll begin to get some answers that will help end this monstrous charade.
My recollect is that NCIS is composed prmarily of silly-villians.
If Mister Phan's case stands up, NCIS should be forced to provide him appropriate compensation.
Once your Ethic is questioned, your career is over.
SF
In that case, charges were dropped after Petty Officer King had been held in confinement for more than a year and a half. He was released, ruined financially, and without even an apology.
Re. the defense's question on why NCIS agents did not tape the interrogations --
"Agency officials at its headquarters in Washington say the methodology is under review, with consideration being given to taping statements."
NCIS has been saying this for decades. Every time they are accused of lying or using questionable tactics in their interrogations, this is the standard reponse. We're thinking about doing it --- someday. What could they possibly be afraid of? What is the big deal? Wouldn't it remove all doubts and give more credibility to their findings?
That's an excellent observation. The NCIS is clearly reluctant to give up its ace in the hole. In some cases, at least, if the NCIS didn't invent evidence, they wouldn't have any evidence at all.
NIS (Hollywood refers to it as NCIS) has a tendancy to do this. they mislead - have seen it before, and don't like it. Watched one of my own guys crash and burn because of false statements - and the end result could not be overcome: BCD.
BCD....bad conduct discharge?
Thanks for the update.
NCIS and JAGS are uniformed Nifongs about 99% of the time. It's all about careers and scalp hanging. Justice and truth be damned.
"Why would NCIS agents fabricate evidence? Career advancement? Political pressure? Maybe we'll begin to get some answers that will help end this monstrous charade."
One word.....klintonistas!
This has been the source of every leak, bad press, and clouds that have been hectoring this administration. If the administration had swept clean every vestige of the evil in place, it is doubtful as many problems would have persisted.
Ruefully,
top sends
I would recommend to any military member when having to talk to an investigator to say the following, "I want a lawyer."
No matter what. If your a witness, the accused those should be your first words.
I was thinking the same thing this morning. The accusations about false statements by NCIS re. Lt. Phan came out on the 11th or 12th. Thomas has been locked up since last May or June and pleaded not guilty. All of a sudden about the 18th or 19th, he pleads guilty and miraculously his testimony about Phan with the gun in the mouth is produced. Just in time save the NCIS agents from their false evidence.
From the Boston Globe, "Thomas is to be sentenced in the coming weeks. He faces up to life in prison without the possibility of parole, though under his plea agreement he is likely to receive a more lenient sentence."
So long story short, NCIS plead out another case to get an independent statement to cover their lies/mistake in Phan's case. Hmmmmm.
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