Posted on 01/27/2007 2:36:36 PM PST by RedRover
CAMP PENDLETON ---- A hearing for a Marine lieutenant accused of assaulting three Iraqis took a dramatic turn Saturday when a witness called in his defense was told he could be facing criminal charges for allegedly lying.
Lance Cpl. Andrew Kraus was read his legal rights and informed that he might be charged with making a false official statement and committing perjury during his testimony in a hearing for 2nd Lt. Nathan Phan.
The accusation against Kraus came from the lead prosecutor, Maj. Donald Plowman, who told the court he was duty-bound to level the charge.
The hearing officer, Lt. Col. William Pigott, agreed.
After being read his rights, Kraus told Pigott he wanted a lawyer and was then led out of the courtroom.
Plowman's action came after the lance corporal testified under oath that he did not have any recollection of meeting with him in August, nor any memory of telling Plowman during that session that a sworn statement that implicated Phan in the assault was accurate.
Plowman told the court that the meeting had taken place and was witnessed by co-prosecutor, Capt. Nicholas Gannon, and that Kraus had affirmed during the meeting that his statement implicating Phan was accurate.
Kraus had been called by Phan's defense team after providing them with a signed, sworn affidavit that contends his original statement prepared by an agent of the Naval Criminal Investigative Service contained falsehoods and that he never told the agent that he had any knowledge of Phan committing an assault.
He was the third of three enlisted Marines to make such statements in an ongoing Article 32 hearing for Phan that will determine whether the 26-year-old lieutenant and platoon leader will face court-martial.
Two other enlisted Marines have also testified that statements attributed to them by the Navy and Marine Corps' civilian law enforcement agency contained things they never said that implicate Phan.
Those two Marines were not threatened with criminal charges stemming from the statements they gave in Iraq last spring during an investigation into the slaying of a 52-year-old Iraqi civilian in the village of Hamdania.
The assault allegation against Phan was an outgrowth of the homicide probe, in which five of the eight men charged have entered guilty pleas in negotiated agreements with prosecutors.
Phan, who commanded the platoon members charged in the April 26 killing of Hashim Ibrahim Awad, was not present when that incident took place and is no way connected to the slaying.
But members of the squad charged in that case have made statements that Phan and others assaulted three Iraqis in March and April of last year, resulting the charge against Phan. He also faces a charge of making a false official statement in connection with one of the alleged assault victims.
After Kraus was led from the courtroom, Pigott told the attorneys that he may urge the convening authority over the case, Lt. Gen. James Mattis, to order an investigation to determine how it came to be that the lance corporal and the two other enlisted Marines made what are considered official statements in Iraq against Phan and then denied having said things contained in those statements.
The veracity of the Naval Criminal Investigative Service agents who took those statements has been made a centerpiece of the defense's case.
David Sheldon, Phan's lead attorney, contends the enlisted Marines had no motivation to lie and that the law enforcement agency cannot prove the statements it attributes to them are accurate because it does not routinely audio or videotape witness statements nor interrogations of criminal suspects.
Sheldon told Pigott that he believed the Naval Criminal Investigative Service agents also should have been cautioned before they testified.
"Each witness should be read their rights," he said. "One (either the enlisted Marines or the agents) is telling the truth and one is not ---- there should be an investigation."
Pigott was not entirely clear as to whether he will ask for an investigation of the agents.
"I will likely recommend an investigation into this whole matter," he said.
Phan's attorneys maintain the Sacramento-area native is innocent and that the prosecution has failed in the hearing to present sufficient evidence for Pigott to recommend a court-martial.
The hearing is continuing this afternoon and may stretch into Sunday before it is completed. When it is finished, Pigott will consider all the evidence and make a written recommendation to Mattis, who can order Phan to trial, dismiss the case entirely or take some form of an administrative action.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
My question is "where was the lance corporal's attorney when this alledged interview in August took place and why is it the prosecutor and his assistant felt a need to get him to say he was sticking my his original statement (which was also made without benefit of counsel)?" Could the prosecutor and his assistant have some notion that what the NCIS delivers may not necessarily be the truth?
As for not swearing the other two witnesses, could the prosecutor and his assistant have some reason to not have suspected they would say their original statements were false? For example, just a little suspicion that NCIS had already threatened them: "Either sign this and stick by it or else you're going to prison?"
In that regard, I don't actually understand how the military could have simply dropped the murder charges as a part of a plea bargain. In every civilian case I've heard of, the accused had to stand up in court and admit his/her guilt. In this case, the murder charges were dropped and the defendents simply pled to lesser charges. To my mind, that's different than just reducing the penalty in exchange for a plea, its more like giving them a reward for a plea.
Petty Office 3rd Class Melson J. Bacos: 12 months
Pfc. John J. Jodka: 18 months
Lance Cpl. Tyler Jackson: 21 months
Lance Cpl. Jerry E. Shumate Jr.: 21 months
I believe all have also received general discharges and credit for six months already served in confinement.
As I said, the JAGs were none too eager to see this in court.
Thankyou. Will do.
Sheldon, during questioning of an instructor who provided training in handling detainees to the entire battalion before it left for Iraq in January 2005, said Phan had been ordered to kill or capture a suspected insurgent. It was while questioning a brother of that man that Phan used the pistol, according to Casey.
One of the two other alleged assault victims is no longer alive and the third has refused to cooperate with U.S. authorities, according to testimony during the hearing.
The hearing is expected to conclude Sunday. Pigott will then consider all the evidence and make a written recommendation to Mattis, who can order Phan to trial, dismiss the case entirely or take some form of an administrative action.
Who ARE the witnesses, what is the cause of the one's death. Was he another one of those 'innocent civilians'. I'd say not, since Phan was ordered to kill or capture a suspected insurgent. Anyone with knowledge of insurgent activity is just as damn guilty. SO WHY ARE WE HERE??
Ping
"Marine(s) is a formal title and needs to be capitalized."
Amen.
I especially hate when ignorant "journalists" refer to Marines as "soldiers." (Nothing against the Army, folks!)
According to Lt Phan's civilian lawyer, Murtha realized he hadn't gotten the NCIS to charge an officer yet.
Well, to be honest, he didn't say "Murtha". But that's the way I read it.
The only sworn statements I ever signed were those I wrote out myself (with a great big-NOTHING FOLLOWS at the end). Does the Navy use a different method? I don't see how what someone else wrote can be binding against these troops.
I'm no expert here, but from what I've read the NCIS (Naval Criminal Investigative Service) interviewed various Marines as witnesses, summarized their findings, then got the Marines to sign off some time later. Seems like these three Marines who testified for Lt Phan realized what they signed was not what they said in the intial interviews and decided to set the record straight. The final Marine (Kraus) may pay a big price for setting his record straight.
Oh Chief, don't be so harsh... There must be one of even two agents in that sorry organization that could be accepted by TSA. The rest, of course, I would have to second your observation. I have seen first-hand how duplicious they are. They are sand-crabs, of course, so no connection with the real Navy, thank goodness.
Oh, and I forgot, they are so professional that they wear white socks with their civilian suits, that is how you spot them in the PX.
Because the other 2 are in the brig already after being railroaded.
There are people in the courtroom that are reporting to the blogers, though....(whistling....)
If you don't know the true meaning behind "Semper Fi" you will not understand what has transpired between this Officer and his Marines.
What I don't understand is what's transpiring between Lance Cpl. Andrew Kraus and Major Donald Plowman.
The NC Times has an update of this article with a new headline and new details in the body of the article (including the reappearance of NCIS agent, Kyle Casey).
Agents Kelly "Dumbbell" Garbo and Aaron "Houdini" Bode are still at large.
-------------------
Witness for accused Marine lieutenant threatened with perjury charge
By: MARK WALKER - Staff Writer
CAMP PENDLETON ---- A hearing for a Marine lieutenant accused of assaulting three Iraqis took a dramatic turn Saturday when a witness called in his defense was told he could be facing criminal charges for allegedly lying.
Lance Cpl. Andrew Kraus was read his legal rights and informed that he might be charged with making a false official statement and committing perjury during his testimony in a hearing for the accused officer, 2nd Lt. Nathan Phan.
The allegations against Kraus came from the lead prosecutor, Maj. Donald Plowman, who told the court he was duty-bound to level the charges.
The hearing officer, Lt. Col. William Pigott, agreed. After his rights were read to him, Kraus told Pigott he wanted a lawyer and was then ordered out of the courtroom and told he needed to seek legal advice.
Plowman's action came after the lance corporal testified under oath that he did not have any recollection of meeting with the prosecutor in August, nor any memory of telling Plowman during that session that his sworn statement that implicated Phan in the assault was accurate.
Plowman told the court that the meeting had taken place and was witnessed by co-prosecutor, Capt. Nicholas Gannon, and that Kraus had affirmed during the meeting that his statement implicating Phan was correct.
Kraus had been called by Phan's defense team after providing them with a signed, sworn affidavit that contends his original statement prepared by an agent of the Naval Criminal Investigative Service contained falsehoods, and that he never told the agent that he had any knowledge of Phan committing an assault.
He was the third of three enlisted Marines to make such statements in an ongoing Article 32 hearing for Phan that will determine whether the 26-year-old lieutenant and platoon leader from Camp Pendleton's 3rd Battalion, 5th Marine Regiment will face court-martial.
Two other enlisted Marines have also testified that statements attributed to them by the Navy and Marine Corps' civilian law enforcement agency contained things they never said that implicate Phan. Their affidavits came several months after the statements they made to investigators in Iraq.
The other two enlisted men were not threatened with criminal charges stemming from their statements they gave in Iraq last spring during an investigation into the slaying of a 52-year-old Iraqi civilian in the village of Hamdania.
The assault allegation against Phan was an outgrowth of the homicide probe that has led to guilty pleas from five of the eight men charged.
Phan, who commanded the platoon members charged in the April 26 killing of retired Iraqi policeman Hashim Ibrahim Awad, was not present when that incident took place and is in no way connected to the slaying.
But members of the squad charged in that case have made statements that Phan and others assaulted three Iraqis in March and April of last year, resulting the charge against Phan. He also faces a charge of making a false official statement in connection with one of the alleged assault victims.
After Kraus was led from the courtroom, Pigott told the attorneys that he may urge the convening authority over Phan's case, Lt. Gen. James Mattis, to order an investigation to determine how the three enlisted Marines made what are considered official statements in Iraq against Phan and now deny having ever said things damaging to the defendant.
The veracity of the Naval Criminal Investigative Service agents who took those statements has been made a centerpiece of the defense's case.
David Sheldon, Phan's lead attorney, contends the witnesses had no motivation to lie and that the law enforcement agency cannot prove the statements it attributes to them are accurate because it does not routinely audio or videotape witness statements nor interrogations of criminal suspects.
Sheldon told Pigott that he believed the law enforcement agents also should have been cautioned before they testified.
"Each witness should be read their rights," he said. "One (either the enlisted Marines or the agents) is telling the truth and one is not ---- there should be an investigation."
Pigott was not entirely clear as to whether he will ask for an investigation of the agents.
"I will likely recommend an investigation into this whole matter," he said.
Phan's attorneys maintain the Sacramento-area native is innocent and that the prosecution has failed to present sufficient evidence for Pigott to recommend he face court-martial.
One of the Naval Criminal Investigative Service agents who prepared some of the statements being challenged, Kyle Casey, testified that Phan acknowledged during an interview in Iraq on May 20 that he had placed an unloaded pistol into one of the alleged assault victim's mouth.
U.S. forces in Iraq are instructed that they can question detainees but are not allowed to use physical force or threats of injury or death at any time.
Sheldon, during questioning of an instructor who provided training in handling detainees to the entire battalion before it left for Iraq in January 2005, said Phan had been ordered to kill or capture a suspected insurgent. It was while questioning a brother of that man that Phan used the pistol, according to Casey.
One of the two other alleged assault victims is no longer alive and the third has refused to cooperate with U.S. authorities, according to testimony during the hearing.
The hearing is expected to conclude Sunday. Pigott will then consider all the evidence and make a written recommendation to Mattis, who can order Phan to trial, dismiss the case entirely or take some form of an administrative action.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
I'm sorry, Girlene, I should have pointed that out a long time ago and I let it slip by the wayside.
Blam! Thank goodness for the NC Times.
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