Attorney says agents made up assault case evidence: Haditha/Hamandiya related

North County Times ^ | Last modified Friday, January 12, 2007 10:07 PM PST | By: MARK WALKER - Staff Writer

[RaceBannon]

Attorney says agents made up assault case evidence

By: MARK WALKER - Staff Writer

CAMP PENDLETON ---- A hearing for a Marine officer accused of assaulting an Iraqi was halted Friday after a defense attorney alleged that Naval Criminal Investigative Service agents fabricated portions of statements that led to the charges against the lieutenant.

Attorney David Sheldon made the assertion in a Camp Pendleton courtroom on the second day of an Article 32 hearing for 2nd Lt. Nathan Phan. The Sacramento-area native is charged with assaulting three Iraqis and filing a false report in an incident that took place on April 10 in Hamdania, Iraq.

Sheldon's allegation prompted the hearing officer, Lt. Col William Pigott, to order a halt to the proceedings until the three government agents could be brought to court to testify.

"I want to hear from these agents," Pigott said, ordering a recess in the hearing until an as-yet-to-be determined date when all the parties can be present in the courtroom.

The development came during the midpoint of testimony from Lance Cpl. Christopher Faulkner, a member of the platoon that the 26-year-old Phan commanded in Iraq last year.

Faulkner testified that a statement the Marine Corps' Navy law enforcement agency attributed to him contained falsehoods. The key inaccuracy, he said, was including language that said he saw Phan placing an unloaded pistol into the mouth of one of the alleged victims. In fact, Faulkner testified, he never saw that occur and never told agents that it had.

Phan's defense team also introduced a signed affidavit from Faulkner stating that he merely saw Phan in a room with a detainee and that the lieutenant was leaning against a wall as the men were being questioned.

During a break in the hearing, Sheldon approached Pigott and said he had reason to believe the government agents were lying.

"We believe in good faith that there has been misconduct on the part of NCIS agents," Sheldon said. He added that when the agents take the stand, he wants the hearing officer to read them their constitutional rights when they are sworn in, suggesting they may have committed criminal misconduct in preparation of the statements that the government is using against Phan.

Those statements were taken from several members of a Kilo Company platoon that Phan commanded in Hamdania. The assault case was lodged against Phan as a result of the investigation into the shooting death of a retired Iraqi police officer on April 26. Sheldon said that in addition to Faulkner's statements, those of two other Marines contain falsehoods, and that they have filed signed affidavits to that effect.

"It's hard to believe that three unrelated Marines who have no relation to Lt. Phan or the alleged misconduct would fabricate this kind of allegation," Sheldon said.

Phan is not accused of having any role in the homicide case, which has led to guilty pleas from three Camp Pendleton Marines and the Navy corpsman from the platoon attached to 3rd Battalion, 5th Marine Regiment. Four other Marines are awaiting courts-martial in the case.

During his testimony, Faulkner said the original statement he signed was typed by Naval Criminal Investigative Service agents who came to him several days after it was made and asked that he sign it. Faulkner, who is not accused of any wrongdoing, said he was on guard duty at the time and only had a few minutes to review the document and never read all of its contents.

Under questioning from Maj. Donald Plowman, the lead prosecutor in the Phan case, Faulkner said his amended version was given to Phan's attorneys in November and represented the truth of what he knew.

Sheldon told the court that he intends to call two other Marines who will testify that their statements prepared by the Naval Criminal Investigative Service agents also contained information, damaging to Phan, that they will say they never told the agents.

Two of those agents are in Georgia and one is in North Carolina and were not available to testify Friday.

An agent who did testify, Kelly Garbo, told the court that she assisted in the interrogation of Phan in Iraq in May and that the Navy and Marine Corps' law enforcement agency never puts falsehoods in the official statements it provides prosecutors.

But Garbo also said when asked by Sheldon that she had never read her agency's manual on how to conduct interrogations.

That statement, along with the defense's assertion that agents fabricated part of the statements being used against Phan, are serious enough to warrant the appointment of a special counsel to look at how the agency does its job, Sheldon said after the hearing.

"This raises the specter of serious misconduct," Sheldon said.

On Thursday, two Marines testified that they took part in beating one of the men Phan is accused of assaulting, but said the lieutenant wasn't in the home where that incident took place.

Lance Cpl. Saul Lopezromo, who was granted immunity from prosecution in exchange for his testimony, and Pvt. Jerry Shumate Jr. said Phan was sitting in a Humvee parked about 200 yards away from the home of the beating victim.

Marine Corps officials on Thursday said that victim, a former Iraqi intelligence officer named Khalid Hamad Daham, is one of four Iraqis that the government is attempting to bring to Camp Pendleton to testify in the Hamdania assault and homicide cases.

There are four remaining defendants in the homicide case, including two men charged along with Phan in the assault case, Sgt. Lawrence Hutchins III and Cpl. Trent Thomas.

Besides assault, Phan also is charged with making a false statement, an allegation that contends he reported to his commanders that one of the alleged assault victims had been released from custody when in fact he had not.

Sheldon said the government has failed to produce any evidence supporting that charge.

If convicted of the charges he faces today, Phan could be sentenced to as much as 28 years in prison and a dishonorable discharge. When the hearing concludes, Pigott will issue a recommendation to Lt. Gen. James N. Mattis, commander of the I Marine Expeditionary Force, as to whether he believes Phan should be court-martialed.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

[tomcorn]

By golly you're right...I will have to read the story closer. Apparently Phan isn't charged in the homicide issue. This is a seperate assault case involving the same platoon. Man...this is getting complex.

But this introduces another issue...would three NCIS agents be willing to go to risk prison for pissant assault conviction?...Nothing is making much sense here.

[RedRover]

Yes, this will get interesting. The North County Times has done excellent reporting, by the by.

[RaceBannon]

I dont know if I ever saw that one, I'll put it on my list! :)

[stockpirate]

I'll bet if this is true that these men are liberals!

[444Flyer]

BTW, for any non-locals. This was front page/top right corner large print news. Did WaPO cover it?

[stockpirate]

As I stated on another tread on this issue, I'll bet if true they are Liberals.

[jazusamo]

The only two articles I've seen were in the NC Times and the Fresno Bee. I check WaPo daily and haven't seen it there but could have missed it.

[RedRover]

Have a look through these on Google news. I see the story at least made it to Jackson Hole, Wyoming.

Anything in today's NC Times on the fund?

[mware]

Believe me if you had seen Breaker Morant you would have remembered.

One of the most shocking endings I ever saw.

The real Breaker Morant.

Harry 'Breaker' Harbord Morant (1864– 27 February 1902) was an Anglo-Australian drover, horseman, poet and soldier whose renowned skill with horses earned him the nickname "The Breaker." Articulate, intelligent and well educated, he was also a published poet and became one of the better-known "back-block bards" of the 1890s, with the bulk of his work appearing in The Bulletin magazine.

During his service in the Second Boer War, Morant ordered the summary execution of several Afrikaner and African prisoners, which led to his controversial court-martial and execution for murder by the British Army; his death warrant was personally signed by the British commander in South Africa, Lord Kitchener.

In the century since his death Morant has become a folk hero in Australia. His story has been the subject of several books and a major Australian feature film. Even during his lifetime there was a great deal of conflicting information about this romantic but elusive figure, and many of the stories about him are undoubtedly apocryphal.

[444Flyer]

Hey Red,
Ordering Chinese. I combed the pages today but nothing turned up on the fund. I will email Mark tomorrow and I'll comb again then too.

Night Night.

[RedRover]

Night, flyer. Sleep well.

[Marine_Uncle]

Sorry. Don't have an answer. I am only on the fringes of this ongoing charade. I'll Qualify. All these Marines should not even be in the states but back with their Marine units killing goons.

[444Flyer]

Red,
Morning. Coffee and email. I'll let you know if I hear back from Mark or find anything.

[444Flyer]

"I'll Qualify."

Somehow, I don't doubt that!

[444Flyer]

Ditto to you on post 33.

[RedRover]

Nada on the NCTimes website, last I looked.

[lilycicero]

We are all over the map...so I can still say Good morning to you! Did you hear that the NCIS has bought out all the running shoes in the DC area? It's every leaker for themselves.....they can run for now, but they are not going to make it to the finish line.
Enjoy your day!