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
It's not angora, but it sooooooft and fluffy. I wore it today, and got rubbed at every opportunity.
WTFRR? The bowling ball is ducking in the broccoli?!
IMO brocolli needs all the gravy, the more the better it tastes.
And today was special because...? ;)
Regarding the other, I was communicatin' in double-top secret code, ma! Trying to be one of those Internet sleuths like jaz.
E-mail to y'all.
Facts are facts. They may be presented without other facts but they are still facts. If it is a fact that the hearing officer acted the way alleged then no other facts could mitigate that. Part of the problem is the common confusion of the word "fact" with "allegation" or "assertion." A fact is a true thing, something that actually has occurred or exists.Even Rush throws away good arguments by using the phrase "the fact that..." when he means "the suggestion that..." or "the assertion that..."
Unfortunately, scapegoating has a long and honorable history in the US military and, I suspect, in all militaries engaged in warfare.
Marine lieutenant could be ordered to trial for alleged assault of three Iraqi civilians, North County Times, February 27, 2007.
By: MARK WALKER - Staff Writer
CAMP PENDLETON -- A Marine lieutenant accused of assaulting three Iraqi civilians last year should face a court-martial, a hearing officer is recommending.
Lt. Col. William Pigott makes that determination in a report filed this week with Lt. Gen. James Mattis in the case of 2nd Lt. Nathan Phan. Mattis must now decide whether to order Phan to trial.
The lieutenant was charged in August with assault, a case that arose during an investigation that led to a murder charge filed against eight men under his command last year in Hamdania, Iraq.
Phan was not charged in the homicide case, but stands accused of assaulting the three Iraqis in Hamdania in March and April 2006 while trying to get information from each about insurgent activity in the Anbar province area northwest of Baghdad.
Phan's lead attorney, David Sheldon of Washington, said Tuesday that he does not believe his client did anything wrong and that he will be acquitted if ordered to trial.
"Justice will be served and he will be exonerated if the charges go forward," Sheldon said during a telephone interview. "Lt. Phan deserves a medal and not second-guessing from those in the rear."
The report prepared by Pigott remains under seal pending a decision from Mattis, but Sheldon shared its contents with the North County Times.
The hearing officer recommends that not only should Phan be court-martialed on the assault charges, Sheldon said, but also that prosecutors charge him with conduct unbecoming an officer. That charge should be lodged because of Phan's alleged failure to report an alleged incriminating conversation among the men charged in the homicide case that the lieutenant supposedly witnessed and overheard, according to the report.
Sheldon said there is conflicting testimony about that alleged conversation.
"That completely ignores the fact that people who were there and have absolutely no motive to lie say that there was no such conversation," Sheldon said.
Pigott does recommend that the government drop a charge of making a false official statement, saying there was no solid evidence to support that allegation, the attorney said. That charge stemmed from Phan's reportedly filing a radio report in which he said he had released one of the three men being questioned about insurgent activity.
The defense produced testimony during Phan's January Article 32 hearing that showed the official radio log saying the 26-year-old lieutenant reported that he still had that insurgent in custody. An Article 32 hearing is the equivalent of a probable cause hearing in civilian court and is conducted to determine if an accused should be ordered to trial.
During the tumultuous five-day hearing, several enlisted Marines who served under Phan in Iraq testified they never saw him commit any of the alleged assaults.
Three enlisted men also testified that signed, sworn statements prepared by the Naval Criminal Investigative Service included what they said were lies about them having witnessed Phan commit assault.
Pigott is recommending that Mattis conduct a separate investigation to determine how their official statements were later contradicted in sworn affidavits stating those statements contained falsehoods.
Mattis will make the decision on what to do in the Phan case as part of his responsibilities as head of Camp Pendleton's I Marine Expeditionary Force and as commander of all Marine forces serving in the Middle East.
Sheldon said he and two military attorneys assigned to Phan plan to file a set of objections to the Pigott report by the end of the week. He said he also may ask for a meeting with Mattis.
The attorney and Pigott often clashed during the Article 32 hearing, which ended with Sheldon being loudly admonished by the hearing officer.
Sheldon said that despite what he believes was sufficient evidence to question all the charges against Phan, he wasn't surprised by Pigott's recommendation.
"It reflects what appears to be a prejudgment in the case," he said. "There didn't appear to be a sufficient willingness to hear all the evidence regarding the credibility and believability of all the witnesses."
As a matter of policy, Marine prosecutors will not comment in any way on any pending case.
Five of the eight men from the platoon that Phan commanded and who were charged in the homicide case have reached deals with prosecutors and entered guilty pleas.
Phan was not present when those men say the squad from Camp Pendleton's 3rd Battalion, 5th Marine Regiment abducted and killed 52-year-old Hashim Ibrahim Awad in the early morning hours of April 26.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
Thanks for the update. Praying for a big fat NO.
..."The hearing officer recommends that....prosecutors charge him" (referring to Lt. Phan) "with conduct unbecoming an officer.".....
Hmmm. Is this the pot calling the kettle black?
From Sheldon' memo to the Investigating Officer, Lt. Col. Pigott, ...."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.
"....
That sounds pretty unbecoming to me.
Thanks for the update, Red, interesting.
ping
Can't say this was unexpected.
I wrote David Sheldon a couple days ago and he said he hadn't received the IO report yet. (It took me a while to realize that IO meant Investigating Officer!)
I have NEVER in my life been so utterly disgusted.
murtha needs these men to fry. badly. it's him or them. life or death. his proud, righteous legacy vs the Marine Corps proud righteous legacy.
One won't live through this- and murtha aims to make sure it's not him even if it means 'killing' these men in cold blood. murtha's going to pull every f'n string, call home every f'n favor, and twist every f'n arm to make it happen.
jack murtha is beyond the lowest life form imaginable.
Yes it did.
The fact that the evidence against Lt Phan appears to be fabricated... Well you know the rest.
I just wish somebody with a spine would just stand up and say "enough"
Is that too much to ask?
No it's not! I've got a spine.
ENOUGH!
Now we just need someone with some authority to change things to do this. Mattis?
Like I been saying all along. I had a feeling it would come down to the good General deciding if things will continue or just have all charges dropped due to no solid evidence. And general Mattis is a real Marine. I will try my best to respect his decision in the matter.
of course this is for information purposes
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