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
These political prosecutions must end or the shame will long endure.
God help the Marine Corps if it allows these cases to go forward.
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 certainly hope Mr. Sheldon doesn't cave. Fight them to the end!
My thoughts and prayers are with Lt. Phan!
Lt.
Beautiful!
It does smell.
It makes me unhappy to think of the games played, with our young men.
I do not know the truth, but would like to know it.
Thanks for posting these links. Time to send them more money.
Gary Owen, Red Rover! Well done!
This is whats going to one of my Senators (the other one is Reid) and my Representative. I urge all other concerned freepers to do the same! (Plagerize and improve, as you will).
I am asking you to look into the matter of United States v. Phan, a case in which a U.S.M.C. Lt. stands accused of abusing the rights of detainees in Iraq. The manner in which the NCIS investigation and the Article 32 hearing in this case have been conducted raises serious questions about whether justice is being done. It is especially important with an "all-volunteer" military that the military justice system comport itself in a highly professional and ethical manner. Both of these elements are sadly lacking in this case.
The prosecution of this case relies heavily on statements prepared as a result of unrecorded interviews of enlisted personnel conducted by the NCIS. Not recording such interviews is itself highly unprofessional, leaving the interviewees open to abuse and their statements to mischaracterization. Three of the enlisted men have testified that the statements prepared by NCIS did not reflect what they actually said in the interviews; one of the NCIS agents has testified that at least one of the mentioned statements does not agree with his notes (i.e., confirms the enlisted testimony).
Throughout the hearing, the behavior and comments of presiding officer U.S.M.C. Lt. Col. Pigott have, according to Lt. Phan's defense attorney, repeatedly violated Lt. Phan's right to a fair and impartial hearing. The egregious nature of Lt. Col. Pigott's bias and inappropriate behavior are made amply clear in a defense letter to him as set forth here: http://www.freerepublic.com/focus/f-bloggers/1777758/posts
This is the sort of "justice" that John Murtha feels free to dish out. Our Marines...our country...deserves better. Please begin asking questions so this matter gets the oversight it so badly needs.
Well done, sir.
PING
Outstanding!!!
Great letter to your Senator. I'm going to do the same.
This is a memorandum from the defense counsel to Lt Phan in the Hamdania (Iraq) case.
1. Can you interpret what the defense counsel is demanding? What is his next likely step?
2. How would you defend this Lieutenant at this point?
Please consider writing your Congressman today.
And why stop there?
There have been bare knuckle fights on political threads lately about who would make the best CIC in 08.
Let's hear from the Republicans who have thrown their hats in the ring.
The political pressure has all been one-way on the side of the prosecution. Let's see who speaks up now.
Morning, xzins! Great to see you.
Exactly, smooth. At first, I was only following the Haditha Marine travesty, but this has turned into a bigger story for me.
All of these Marine prosecutions involve the same investigative agency, Murtha's Police, I mean the NCIS. And all are being railroaded down the same track.
If a man has earned the honor of being a Marine, if a man serves on foreign battlefields for his country, then by God, he deserves far, far better than this.
Who does LT GEN Mattis answer to?
As best as I can tell (and this letter is entirely divorced from its context, so this is tentative), defense counsel is asserting that the person overseeing the Art. 32 hearing was patently less than objective. He objects to his fact-finding being based upon his Iraq experiences (which I can't imagine is indeed a problem), but also that the person conducting the Art. 32 hearing communicated a little too clearly what he thought of the credibility of defense witnesses. If the defense counsel's accusations are accurate, then the judge was somewhat unprofessional - but defendants write letters like this not infrequently.
I would caution you - and all FReepers to take memos from defense counsel with a grain of salt. It is all too easy to let ideology and patriotism blind us to reality, and it is very tempting to believe the defense because of our sympathies for the troops. The defense, however, is obligated only to highlight the facts favorable to themselves, not the whole truth.
The NCIS and the JAG corps deserve more respect than that too.
I don't know what you know about JAGs. It is one of the toughest legal jobs to get. I can tell you that none of the JAGs I have ever interacted with seek to screw servicemen. Their job is to make sure that the UCMJ is followed - and soldiers and sailors who break the UCMJ deserve no respect.
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