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Posted on 01/28/2007 4:04:33 PM PST by RedRover
CAMP PENDLETON ---- A Marine officer accused of assaulting three Iraqi civilians last spring is really a hero, a hearing officer was told Sunday.
"You have a young officer sitting at our end of the table who was trying to protect his Marines," defense attorney Lt. Col. Matthew Cord said at the conclusion of a hearing that will determine if 2nd Lt. Nathan Phan is ordered to court-martial. "He deserves a medal and they're trying to put a knife in his back."
Cord's comments came as the hearing for the 26-year-old Phan ended with the presiding officer, Lt. Col. William Pigott, saying he plans to recommend two investigations stemming from testimony that emerged during Phan's four-day Article 32 hearing.
Phan, a Kilo Company platoon commander from the 3rd Battalion, 5th Marine Regiment, is charged with assaulting the three Iraqis in March and April during efforts to obtain information about insurgent activity in and around the Anbar province village of Hamdania in western Iraq. He also is accused of making a false official statement in connection with one of the alleged victims.
Pigott said he will ask Lt. Gen. James N. Mattis to order a formal inquiry into possible perjury and false official statements by three enlisted Marines who were in Iraq with Phan and were called as witnesses by his attorneys.
The enlisted men claimed that sworn statements generated by Naval Criminal Investigative Service agents contained falsehoods in passages that say the men saw Phan commit an assault. Each later provided Phan's attorneys with affidavits that swear the government statements were inaccurate.
One of the enlisted men, Lance Cpl. Andrew Kraus, was ordered to stop testifying on Saturday, read his legal rights and informed he may be charged with perjury and making a false statement.
As part of the probe into the statement issue, Pigott said he also will ask Mattis to examine how the statements were prepared by the Naval Criminal Investigative Service, a civilian-staffed branch of the Department of the Navy that serves as its law enforcement agency. Mattis is the convening authority over the Phan case as the commanding general of Marine Corps Forces Central Command and Camp Pendleton's I Marine Expeditionary Force.
The other probe Pigott said he will recommend is an inquiry into whether any of the attorneys engaged in improper contact with any of the witnesses in violation of the rules that govern attorney conduct.
Phan's lead attorney, David Sheldon, said after Sunday's court session that he believes the investigations are necessary.
"Someone is lying and we have to find out who," said Sheldon, who also said he believes that Pigott will recommend that Phan, a Sacramento-area native, be ordered to court-martial.
A heated exchange between Pigott, the top legal officer at the Marine Corps base in Yuma, Ariz., and Sheldon capped the conclusion of the hearing. Sheldon attempted to ask Pigott to reconsider whether evidence the Marine Corps says is classified should be made part of the official record.
Pigott responded by saying the hearing was officially closed. When Sheldon attempted to interject, Pigott screamed that the hearing was closed and that the attorney should sit down and stay quiet.
As Phan looked on with a worried expression, Sheldon muttered the ruling was "bullshit," prompting Pigott to say, "Did you just threaten me?" and "Don't swear at me."
Those moments nearly overshadowed the comment on the evidence that Lt. Col. Cord made on behalf of Phan during concluding remarks.
Cord maintained that the prosecution conducted by Maj. Donald Plowman and Capt. Nicholas Gannon was relying on a "murderer and inveterate liar," a reference to Sgt. Lawrence Hutchins III, a member of Phan's platoon who is charged with concocting a plot that led to the April 26 slaying of a retired Iraqi policeman in Hamdania.
Phan has no connection to the slaying, but the investigation of that incident led to the charges brought against him that could result in a more than 20-year prison sentence and dishonorable discharge if he is ordered to trial, convicted and sentenced to the maximum punishment.
Four Marines and a Navy medical corpsman charged in the slaying have pleaded guilty in negotiated deals with prosecutors and are serving jail terms ranging from 12 to 21 months. Hutchins, the squad leader, and two corporals face trials later this year for their alleged roles in the killing.
Cord pointed out that Hutchins was never called to testify and that two of the prosecution witnesses against Phan were men who have pleaded guilty in the homicide case and had motivation to testify the way the government wanted.
He also contended there was no evidence that Phan was in the room when one of the alleged assault victims was beaten. The two other alleged victims are unavailable, he said. One is dead and the other refuses to cooperate with U.S. authorities.
Addressing the false official statement charge, Cord said that uncontested radio logs from Phan's command center in Iraq show he reported having a detainee in custody. That charge alleges Phan reported the detainee had been released when prosecutors charge that man was actually still in custody.
Phan, who did not testify during the hearing, acknowledged in a written statement introducing during the hearing that he had placed an unloaded pistol near the lips of one detainee, an act that Cord contended does not satisfy the required elements of the assault charge.
The prosecution told Pigott it had met its burden in establishing there was sufficient probable cause to believe Phan had committed unlawful acts and should be ordered to trial.
Prosecutor Plowman pointed to a written statement from Hutchins in which the sergeant wrote that Phan "was the brains and I was the brawn" and that the lieutenant either directly participated in or had knowledge of the three assaults.
"The bottom line is Lt. Phan was not allowed to use physical force or threats against detainees," Plowman said.
The failure of the Naval Criminal Investigative Service to tape its witness interviews and suspect interrogations in Iraq as a matter of policy is insufficient cause to not believe its agents, Plowman said.
That issue has been at the center of Phan's defense throughout the hearing and that taping policy is now under review by agency officials at its headquarters in Washington.
Sheldon said statements made by Pigott on Saturday and Sunday that he believed the government agents were truthful was improper.
"I've never before seen an investigative officer comment on what he believes is the truthfulness of a witness during a hearing," the Washington attorney and U.S. Navy veteran said. "It's unprecedented."
Pigott will make a written recommendation to Mattis sometime next month. Under the Uniform Code of Military Justice that governs prosecutions of service members, the general has wide latitude in deciding whether to order Phan to trial, dismiss the case or results or take some form of an administrative action.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com. Comment at nctimes.com.
Let me or jazusamo know if you want on the Haditha Marine Ping List, currently also covering related cases involving the NCIS and the prosecution of our Marines.
Defense counsel defends client.
An investigative officer commenting on the credibility of witness statements, witnesses unavailable for cross examination, without the usual sound recordings of witness statements are irregular. There is no safe guard to ensure that the witness statements have not been tampered with,fabricated or falsified.
Because of these irregularities, if the written witness statements are all that exist, with others making statements after cutting deals with the prosecuting officers, and another a convicted murderer, it would seem that Phan is not going to be getting the due process usually afforded in military tribunals such as a Court Martial.
If a witness for Phan was threatened with criminal charges ( referenced thread), it would seem there is some form of administrative animus against Phan. This is unusual. Why would there be such a desire to "get" Phan. Obviously some one in the chain of command may have a serious desire to make sure he is behind bars, and that classified information aluded to by Sheldon not be part of the record. As a matter of fact it looks as if Piggit terminated the hearing prematurely so that there would be no reference to classified material on the record. Something has happened that the JAG office does not want anyone to know, not even the Courts Martial, which normally can review classified information. Highly unusual.
Phan is thrown upon the necessity to find his own exculpatory evidence and witness statements, and needs to be afforded the opportunity and resources to do so, if he stands trial.
Thank you for this update. AND all the pings, they are appreciated!! How ever would I be able to keep up with this situation without your help!!!!? :)
Thanks!
Yes, it's especially useful when investigators have fabricated evidence.
NCIS and JAG, real Warfighters. Duh!!
"Phan is thrown upon the necessity to find his own exculpatory evidence and witness statements, and needs to be afforded the opportunity and resources to do so, if he stands trial."
In other words he is guilty until he can prove himself innocent.
These prosecutors are engaged in a deliberate attempt to undermine our all volunteer forces. They are deliberately creating a chilling effect, that can only result in a dismal failure to meet recruitment goals.
Bag of microwave popcorn...a buck.
Being in a court room and saying "Bullsh*t" to Pigott...PRICELESS.
Pendleton built a million dollar facility so people could watch the proceedings on closed circuit TV. Maybe you ought to go out there, lily. Beats JACKASS 2 for entertainment value!
Well lets say this: He won't be able to use anything the prosecution has to defend himself.
So if you were attacked and some one emptied a barrel of gun parts in front of you and said , "there you go," you would probably say " better than nothin"
LOL
But it will take a lot of money he probably doesn't have, which is a damn shame.
Military lawyer/prosecuters make their "bones" by sending soldiers to jail. Which is better for them? Not to try cases with flimsy evidence, or rig such cases and win 'em.
Most (not all) ambitious lawyers will do anything to win and advance their careers.
And BTW, they sleep just fine at night when they've sent good men up the river. Why? The male animal is not really troubled by conscience. Other things are more important to him generally these days.
You don't suppose any of these prostitutors are related to Dan Rather , do you?
Agree, I don't have time for either of them and I didn't care for them in my 26 years in the Navy.
"So if you were attacked and some one emptied a barrel of gun parts in front of you and said , "there you go," you would probably say " better than nothin""
True, but thats not how our system works.
"Prostitutors", I love it! And, yes, I think they're all cut from the cloth.
First, invent a story. Then, find facts to support your creation. If no facts are available, get someone to make 'em up. "Fake but accurate".
All eyes will now be on General Mattis. Wonder what he's going to do?
Send out a message to solicit CA Freeper peepers to the next proceeding. I didn't know they had front seats to the show for the non-media.
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