Posted on 02/01/2007 7:10:42 PM PST by RedRover
From: David Sheldon
To: Investigating Officer
Subj: Article 32 hearing ICO United States v. Phan
Date: 28 January 2007
Sir,
1. On behalf of my client, I wanted to state for the record the following:
(a) The defense believes a classification review should be undertaken without delay. We ask you to make this recommendation;
(b) Your recommendation that an investigation into the testimony and conduct of both certain NCIS agents and the three Marines at issue should be initiated and is appropriate. These matters are important as you well recognized;
(c) Your recommendation regarding counsel should include the trial team as well. It became abundantly clear that Major Plowman and Captain Gannon became witnesses when as Major Plowman said "I believe this witness (LCPL Kraus) is lying regarding whether or not he met with me in August of last year." I should note that Lance Corporal Kraus testified that he did not remember meeting with Major Plowman. Additionally, I have concerns about the testimony of two junior, enlisted Marines who testified that two members of the prosecution team, a Captain and a Staff Sergeant Logan, may have sought to improperly threaten them and/or improperly influence their testimony. The defense team has acted in a manner consistent with their ethical obligations. Your comments that these Marines' affidavits were "colored by a third party" are without any basis in fact. As you well know, all three Marines testified under oath repeatedly that their affidavits were voluntary and accurate;
(d) Finally, I am deeply concerned about your repeated statements regarding the credibility of witnesses and the validity of the charges on and off the record prior to hearing all of the evidence or commencing your deliberation. Your comments that you will use your personal experiences and beliefs with respect to operations in Iraq as a bellwether for what is and isn't legal and what is or isn't credible in the present case, and your representation that you intend to use your personal past experiences and relationships with NCIS and its agents, are equally disturbing. In my 16 years of practice, I have never seen an investigating officer or military judge make such patently biased and inappropriate comments. Nor have I ever seen an investigating officer or military judge ever prevent a counsel from making a record as you did just prior to the close of the hearing. Your actions clearly violated L T Phan' s right to a fair and impartial hearing and were an attempt by you to play to the media in order to put the Marine Corps and NCIS in the best possible light. Moreover, your obstreperous, condescending (to include your loud exaggerated sighs and eye rolling) behavior and repeated derogatory comments to Lt. Col. Cord during his closing comments were offensive and without precedence. In sum, you paid lip service to L T Phan's right to a full, fair and impartial Article 32 hearing.
I insist that you make this memorandum an exhibit and attach it to the record.
Copy to:
File
Trial Counsel
Convening Authority
DOCTOR! DOCTOR! This man's insane!
Gosh, these gowns are a bit drafty.
LOL!
Sorry I guess I am just slow!
Yeah right, slow like a bloggin' tornado. ;)
Just catching up. But WOW on the press release. Is the destroyed flash drive possibly the reason the attorneys want some classified information included in this hearing? Any ideas why it would be destoyed initially?
The defense attorneys are making some serious allegations about the NCIS agents here:
"For example, at least three witnesses to relevant events told NCIS agents they saw no misconduct of any kind by Lt. Phan. Instead of accurately reporting these facts, NCIS agents coerced and threatened these witnesses and ordered them to sign statements to the contrary."
And the defense is going after the prosecutors here:
"These witnesses later informed prosecutors of these events and further told them what they had really observed and experienced. Of course, not only did these prosecutors not disclose these important facts to the defense (as they are strictly required to do), they then loudly browbeat these witnesses in an effort to convince them to stick with the NCIS-fabricated version of events."
Wow! Anybody know if this has been provided to the North County Times since they have been following this case? Of course these are just allegations by the defense at this time, but the NCT might want to add this info to their review of this case.
Sounds like Nathan Phan has some fighters for his defense team. They're accusing everybody of something!
Did you tell'em you had Pigott's Syndrome, you were very hot, and needed a Phan?
Just noticed this after rereading the press release:
"Lt Phan, whose family immigrated from Vietnam"
So nice to see Lt. Phan is honoring America, who gave his family the opportunity of freedom, with his service.
An old co-worker came from Vietnam and one day recounted his experiences in getting to America. Awesome story and such a reminder of how fortunate I was to be born in this country.
I love it.
; )
I think they've done gone and locked him up.
Probably spouting all manner of Lincoln quotes
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it." The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume III, "Letter To Henry L. Pierce and Others" (April 6, 1859), p. 376.
"Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came." Lincoln's Second Inaugural Address, March 4, 1865.
"I have been driven many times upon my knees by the overwhelming conviction that I had nowhere else to go. My own wisdom and that of all about me seemed insufficient for that day." Lincoln Observed: The Civil War Dispatches of Noah Brooks edited by Michael Burlingame (Johns Hopkins University Press, Baltimore, 1998), p. 210.
{{{{{{{{{{{{Red}}}}}}}}}}}}}}}
sailor4321 is a knowledgable guy so I Freepmailed him to get a better handle on the workings of a defense team. Also to be sure I wasn't overstating the case about the need for civilian lawyers for the accused.
sailor wrote back a thoughtful response that I want to share:
Civilian counsel — unlike military counsel – is free to say what the truth is in the media and is not restricted in getting info to the press and public.
Conversely, as has been sadly demonstrated time and gain, when military defense counsel say ANYTHING publicly (even if it is 100 per cent true) they get hammered by headquarters Marine Corps and a ton of pressure, accusations etc. gets rolled downhill.
When there is a civilian counsel, he can say/do public/media-wise what military counsel are simply prevented from doing. Also, at least it appears in this case (unlike some cases with a civilian-military defense team), civilian counsel is actually earning his money and both the civilian and military counsel are really operating as a “team” in the fullest sense.
Reality however dictates that what military counsel do remain sort of “under the radar” - if only the civilian counsel is in the spotlight, that means the Marine Corps can do nothing by way of reprisal or pressure.
In sum, absolutely the Hamdania/Haditha defendants need civilian counsel (particularly those of Dave Sheldon’s backbone, work ethic and integrity – unlike some civilian counsel who just see these cases as a business opportunity or PR bonus! Without them, the accused and the numerous injustices they face would be effectively muzzled.
I like the fact that a sailor gave us some new perspective.
Thank you sailor and shippy (Red).
Aw, Red, I love you.
If this is true, or even partly true, sounds like the odds are stacked in favor of prosection in the UCMJ system. I hope not.
I received a Freepmail this morning in reference to my POST 62 from a new newcomer with the screen name WTFNG?.
Post 62 is where I said: Reliable sources tell me that those two JAGs: Lieutenant Colonel Matthew W. Cord, USMC and Major Jeffrey V. Muñoz, USMC, were instrumental in uncovering the fabrications by NCIS agents that were introduced as evidence in this hearing.
WTFNG? wrote:
You are correct that the 2 military defense counsel were instrumental in obtaining the affidavits.
I've read some of your other posts concerning whether Lt Phan's military counsel are pulling their own weight vis a vis David Sheldon.
I have good reason to believe very strongly that LtCol Cord and Maj Munoz are vigorously and zealously representing Lt Phan behind the scenes. It would be a grave error in logic to believe that they are not doing anything simply because they choose not to put their names in the paper. Trial work is not like it is shown on TV -- a crime is committed, investigated, and someone is convicted all within 20 minutes. Trial work is very tedious and grueling. There is much preparation that takes place prior to ever walking one foot into a courtroom. I can only wonder who is doing all of that preparation?
You're running a good service. Keep up the good work. But please, give military defense counsel a fair shake. Unless you have objective evidence to demonstrate that they are lazy slugs, it is unfair to suggest that they are not fulfilling their professional duties.
WTFNG? is right. I was wrong. So I went back through my posts and asked the Moderator to zot the ones that gave all the credit to David Sheldon and none to the JAG defense counsel. There were about four in all and they're gone now.
I asked WTFNG? what he or she thought of sailor’s comment at POST 151. WTFNG? replied:
Sailor4321 is correct and seems quite knowledgeable on the topic.
In these high profile cases, I believe civilian defense counsel are very necessary for the reasons stated by Sailor4321. However one should not interpret that to mean that military defense counsel are not effective.
Sailor4321 described it accurately when he said they operate "under the radar."
I just want the public to know that military defense counsel, based on my information, very much zealously defend their clients and to some extent enjoy fighting "the man."
Consider this: as a military defense counsel, it seems that is the only job in the military where one is authorized to buck the system, and indeed likely has a duty to buck the system to benefit the client.
Finally, I do strongly encourage supporting the defense funds. Lt Phan stands wrongly accused as do the Haditha Marines. Supporting the defense fund is one way, a big way, to support them and their families.
These servicemembers volunteer to do our dirty work in Iraq and Afghanistan to the best of their abilities and when they do, they are sent to court martial. Further, then they're treated like 2d class citizens by the less-than-professional NCIS who doesn't record interviews. So, it will always be NCIS's word against the suspect's word. Who do you think the military is going to believe? Take care.
I hope WTFNG? will come back and post. I'm very gratified that these threads are attracting new people to the discussion.
And Happy Superbowl Sunday to all!
yes indeed, enjoy the game, welcome WTFNG?
I post these things on Togetherweserved.com
What game?
; )
Welcome WTFNG?
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