Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Attorney: Accused Marine lieutenant is really a 'hero' [Conclusion of Lt Phan hearing]
The North County Times ^ | January 28, 2007 | Mark Walker

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.


TOPICS: Extended News; Foreign Affairs; News/Current Events
KEYWORDS: haditha; hamdania; ncis; phan
Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-64 next last
To: RedRover
I generally don't like lawyers (civ or otherwise), but in Sheldon's case, I'll make an exception.

I see that Sheldon is former Navy JAG. Former JAGs who choose to stay in the military defense business, and some who just stay in the defense business in general, make some of the most "bulldog" defense attorneys.

41 posted on 01/28/2007 9:56:47 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
[ Post Reply | Private Reply | To 36 | View Replies]

To: RedRover

Sounds like the EL T is getting the screws put to him big time. I pray for justice and truth to come out.


42 posted on 01/28/2007 10:59:18 PM PST by jokar (for it is by grace, http://www.gbible.org)
[ Post Reply | Private Reply | To 2 | View Replies]

To: editor-surveyor
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.
...
"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."

As if an interrogator has never lied or fabricated evidence. If the prosecutor says it’s true, it must be true.
The Article 32 hearing officer, Lt. Col. William Pigott, has his work cut out for him if he tries to get to the truth.

43 posted on 01/29/2007 2:13:26 AM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink)
[ Post Reply | Private Reply | To 11 | View Replies]

To: RedRover
> 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.

Yes, he could be, but to do this when the witness says his statement was coerced is way overreaching. It does not meet the "ends of justice" to threaten a witness who now says he is impeaching other evidence and possible misconduct on the part of LEOs.

>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."

44 posted on 01/29/2007 5:08:43 AM PST by MindBender26 (Having my own CAR-15 in Vietnam meant never having to say I was sorry......)
[ Post Reply | Private Reply | To 1 | View Replies]

To: RedRover
> 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.

Yes, he could be, but to do this when the witness says his statement was coherced is way overreaching. It does not meet the "ends of justice" to threaten a witness who now says he is impeaching other evidence and possible misconduct on the part of LEOs.

>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."

Very bad form!

45 posted on 01/29/2007 5:09:39 AM PST by MindBender26 (Having my own CAR-15 in Vietnam meant never having to say I was sorry......)
[ Post Reply | Private Reply | To 1 | View Replies]

Comment #46 Removed by Moderator

To: RedRover

Let us hope the good general shall carefully weight the options regarding these Marines futures. I believe we shall ultimatly see a fair ruling from him. He certainly is a honorable man and Marine.


47 posted on 01/29/2007 9:14:34 AM PST by Marine_Uncle
[ Post Reply | Private Reply | To 39 | View Replies]

To: MindBender26; R. Scott; flightline; jokar; El Gato; freema; lilycicero; pinkpanther111; Girlene; ...
More details in this story by the AP

Iraq assault hearing ends with shouting match

The Associated Press

CAMP PENDLETON--A military hearing for a Marine accused of assaulting three Iraqis ended Sunday with a shouting match between a civilian defense attorney and the investigating officer overseeing the proceedings.

The Article 32 hearing was to determine whether 2nd Lt. Nathan Phan, 26, should be court-martialed for the attacks last April 10 near Hamdania. He is also charged with making a false official statement.

After investigating officer Lt. Col. William Pigott announced the hearing was over, defense attorney David Sheldon stood up and asked to add something to the record. Pigott ordered him to sit down and said: "This hearing is closed."

Sheldon would not quiet down and the two got into a verbal confrontation, with Pigott shouting: "Don't threaten me, don't swear at me we're done."

Military prosecutors and defense attorneys already had finished their closing arguments. Prosecutor Maj. Donald Plowman said Phan ordered other military personnel to torture detainees, citing sworn statements from Sgt. Lawrence Hutchins III that "Lt. Phan was the brains, I was the muscle."

Plowman said Hutchins claimed Phan did all the talking and threatening and occasionally "smacked" a detainee.

Military defense lawyer Lt. Col. Matthew Cord said Phan could not get a fair trial because two of the three Iraqis who allegedly were assaulted won't be available to testify if Phan is court-martialed.

Cord called the government's case "troubling," especially because so much credence had been given to Hutchins. Cord said the government had called Hutchins a murderer and liar except when favorable to its case.

The lawyer said the government didn't come close to proving its case against Phan.

"He deserves a medal they're trying to put a knife in his back," Cord said.

48 posted on 01/29/2007 4:32:46 PM PST by RedRover (They are not killers. Defend our Marines.)
[ Post Reply | Private Reply | To 47 | View Replies]

To: RedRover

Title it a shouting match, but if they come out and say it's a brawl, then we know Gen Mattis will take it to trial.


49 posted on 01/29/2007 4:51:03 PM PST by lilycicero (I believe SSGT Frank Wuterich did his job well.)
[ Post Reply | Private Reply | To 48 | View Replies]

To: RedRover

BIG MAIL!!!!


50 posted on 01/29/2007 4:55:06 PM PST by lilycicero (I believe SSGT Frank Wuterich did his job well.)
[ Post Reply | Private Reply | To 48 | View Replies]

To: All; pinkpanther111; Girlene; freema; lilycicero
I found some interesting reader comments posted to this story on the NC Times website. Here's a selection.

morty wrote on January 28, 2007 3:23 PM: "I'VE SAID ALL ALONG THESE MEN DESERVE A MEDAL. THANK GOD SOMEONE IS AWAKE ON THIS COLD DAY.GIVE THEM ALL ONE."

I agree! wrote on January 28, 2007 4:10 PM:"This is another good man being railroaded by the NCIS! Where is the FBI? They need to come in and do an overhaul of this federal agency!"

AW4cryinoutloud wrote on January 28, 2007 5:08 PM:"In this article it's reported that Pigott "screamed" at Mr. Sheldon when he requested reconsideration of whether so-called classified evidence could be made part of the official record. I thought we ALL wanted to see Justice. I thought we ALL wanted to hear the Whole Truth; All of the evidence. What the hell is going on with this farce of a case? To scream at a defense attorney who is trying to defend his client and deny him that right; to scream at him to sit down and stay quiet...That really smacks of cowardice and lack of seeking justice on the part of the prosecutor. Pigott's apparent attempt to discredit Sheldon by asking if Sheldon had threatened him, is so obvious and a tactic to not be admired. Sheldon didn't "swear at" Pigott. He commented on the ruling. When is Mattis, who seems to have been a warrior at one time, going to man-up and stand up against this politically INCORRECT crap? NCIS: "Protect the Protectors". Best move they could have made was to take that off their website. Marines take care of their own... NOT what I thought it meant for so many years. It has a whole new meaning today. If there is any dishonor, it does not reside in the Brig!!! "

mark wrote on January 28, 2007 7:45 PM:"Judges screaming at the defence attorneys? If this were a civilian trial and not a military article 32 hearing it would never in a million years hold up on appeal. I have never in my life heard of a judge threatening a witness with a perjury charge before he has even testified. I think what normally happens is that the prosecution can bring up evidence when it is their turn to discredit the witness. I don't think it speaks well of Lt Col Pigott judicial temperament that he is pron to screaming tirades and threats. He really should have been seated at the prosecution's table during these proceedings. I feel sorry for Kraus obviously if he insists he's innocent of perjury the NCIS will interpret that as an admission of guilt."

John1 wrote on January 28, 2007 8:02 PM:"Lt.Col Pigott's job is to act as the impartial Investigating Officer. My son had an impartial IO (Lt. Gen Mattis chose not to take most of the results of his investigative report). Lt.Col Pigott has already stated on the record that without further investigation on his part, he feels the NCIS has told the truth. That's too bad. Fortunately, he covered his heinie by putting forth the request that Lt. Gen Mattis investigate. That probably won't happen."

John1 to Mark wrote on January 28, 2007 9:26 PM:"There are pluses and definite minuses to the military system. One of the usual pluses is the Article 32 adversarial investigation system. It's much better than the Grand Jury system (where a prosecutor can indict a ham sandwich). But even in the military system, the prosecutors run the show right up to trial. I would NOT worry about what Pigott does- his report will be tainted; my guess is that Lt Col Cord and Mr. Sheldon will file a brief with the supervising Circuit Judge (Col Folsom) for the USMC Western District and may even ask for a NEW Article 32 with a new IO. If that's turned down, my further guess is that the defense will file an interlocutory appeal to the Court of Appeals of the Armed Forces (CAAF). Lt. Col Vokey ( Lt. Col Cord's boss) will probably also object formally (with a USMC JAG investigation) and when the matter comes to any trial (if it does), you can be sure Sheldon and Cord will not accept Lt. Col Pigott as trial judge. Pigott cooked his own goose (I would not want to see his next fitness report- he'll never see bird colonel now)."

NCIS is out get every Marine! wrote on January 29, 2007 8:22 AM:"Many in the NCIS don't pak it and have to push the Marines around at any moment they can! Most marines dont respect these guys and it is apparent they will push you down if you get in their way!"

NCIS are flunkies! wrote on January 29, 2007 8:32 AM:"This group intregrated in 1999 and was fully combined in 2000 with the Marine Corps' investigative arm! As reported on the NCIS website! What a mistake that was! These guys do not have a clue and clearly are and were not prepared for the harsh reality of war and crime on the battle field! CBS sure trys to make them look good! If you have ever served you know that is all a bunch of do do! The military commander is supreme and in charge! These NCIS Agents would be taken out by armed guard to get the hell out of a commanders office! Please! I think these NCIS loosers involved in this case have been watching to much television and starting to believe what Hollywood is spitting out idiots!"

51 posted on 01/29/2007 5:01:07 PM PST by RedRover (They are not killers. Defend our Marines.)
[ Post Reply | Private Reply | To 48 | View Replies]

To: lilycicero

Got it. Will post.


52 posted on 01/29/2007 5:08:25 PM PST by RedRover (They are not killers. Defend our Marines.)
[ Post Reply | Private Reply | To 50 | View Replies]

To: RedRover

Is that article leaning that Lt Col Vokey is against an investigation on the NCIS? Yes or No answer is about all I can handle right now.


53 posted on 01/29/2007 5:20:04 PM PST by lilycicero (I believe SSGT Frank Wuterich did his job well.)
[ Post Reply | Private Reply | To 51 | View Replies]

To: lilycicero

No.


54 posted on 01/29/2007 5:25:00 PM PST by RedRover (They are not killers. Defend our Marines.)
[ Post Reply | Private Reply | To 53 | View Replies]

To: lilycicero

Are you able to handle a little more? Vokey is in the defense column. I'm not sure what it's called in JAGland (no doubt ArmyLawyer will show up to give me a lecture). The reference was to Vokey's support of the JAG on Phan's defense team.


55 posted on 01/29/2007 6:50:46 PM PST by RedRover (They are not killers. Defend our Marines.)
[ Post Reply | Private Reply | To 53 | View Replies]

To: RedRover

So to be blunt...Lt Col Vokey is on our team? Can the day get any better?


56 posted on 01/29/2007 6:56:13 PM PST by lilycicero (I believe SSGT Frank Wuterich did his job well.)
[ Post Reply | Private Reply | To 55 | View Replies]

To: RedRover

Well, are they coming to America, or not?

http://www.nctimes.com/articles/2007/01/11/news/top_stories/1_01_150_10_07.txt
January 11, 2007


Iraqis being brought to Camp Pendleton to testify in criminal cases

By MARK WALKER --- Staff Writer

CAMP PENDLETON ---- The Marine Corps is working to bring four Iraqis to the U.S. later this month to testify in the cases of three Camp Pendleton Marines accused of assaulting Iraqi civilians in the village of Hamdania last year.


Special Report

Chief Warrant Officer Wesley Wagner testified during an Article 32 hearing for 2nd Lt. Nathan Phan, accused of assaulting three Iraqis on April 10, that arrangement are being made to bring one of the alleged victims and three other witnesses to the U.S. later this month.

If the witnesses are brought to Camp Pendleton, they would be the first Iraqis to testify in the two criminal cases brought last year against members of a Kilo Company platoon from the 3rd Battallion, 5th Marine Regiment.

In June, the Marine Corps charged seven Marines and a Navy medical corpsman with murder in the April 26shooting death of a retired Iraqi policeman. In the course of that investigation, the alleged assault case emerged resulting the charges against Phan, a 26-year-old platoon leader from the Sacramento area.

In the homicide case, three Marines and the corpsman have pleaded guilty to lesser offenses and are serving jail terms ranging from 12 to 21 months.

One of those who pleaded guilty in the killing of Hashim Ibrahim Awad, former lance corporal and now Pvt. Jerry Schumate Jr., is expected to testify this afternoon about his knowledge of the assault case.

This morning, Lance Cpl. Saul Lopezromo testified that he took part in the beating of one of the Iraqis U.S. authorities are attempting to bring to the base to testify, Khalid Hamad Daham. The 22-year-old Lopezromo said that Daham was known as a former intelligence officer in the regime of now-executed Iraqi president Saddam Hussein and was someone who had disrespected Marine Corps presence in the area.

The beating was part of an effort to "send a message" to the village about insurgent activity and the need to respect what the Marine Corps was doing in the area, Lopezromo testified.

He also testified that while he witnessed other beatings as well as having taken part in the baeting of Daham, he never saw Phan strike that man or any other Iraqi.

Of the other men Phan is accused of beating, one was killed by insurgent in June, the court was told, and the other is refusing to cooperate with U.S. authorities.

The hearing to help determine if Phan will be ordered to court-martial is scheduled to continue Friday and possibly Saturday. At the conclusion, hearing officer Lt. Col. William Pigott will recommend to Lt. Gen. James Mattis what action should be taken.

Also charged with assault is Sgt. Lawrence Hutchins III, also a defendant in the homicide case, and Cpl. Trent Thomas. When Shumate pleaded guilty in the homicide case, an assault charge against him was dismissed.


57 posted on 01/29/2007 7:06:24 PM PST by freema (Marine FRiend, 1stCuz2xRemoved, Mom, Aunt, Sister, Friend, Wife, Daughter, Niece)
[ Post Reply | Private Reply | To 48 | View Replies]

To: lilycicero

Yes. It is okay that you have a crush on him.


58 posted on 01/29/2007 7:15:08 PM PST by RedRover (They are not killers. Defend our Marines.)
[ Post Reply | Private Reply | To 56 | View Replies]

To: 2111USMC; 2nd Bn, 11th Mar; 68 grunt; A.A. Cunningham; ASOC; AirForceBrat23; Ajnin; AlaskaErik; ...

Red found interesting reader comments posted to this story on the NC Times website- see Post #51


59 posted on 01/29/2007 7:16:12 PM PST by freema (Marine FRiend, 1stCuz2xRemoved, Mom, Aunt, Sister, Friend, Wife, Daughter, Niece)
[ Post Reply | Private Reply | To 51 | View Replies]

To: freema
I had read that article and then later read they weren't coming. I can't put my hands on that article for reference.

There are so many cases that it's possible they are still coming to testify in some. I wouldn't trust anything coming out of the media at this point.

60 posted on 01/29/2007 7:17:39 PM PST by RedRover (They are not killers. Defend our Marines.)
[ Post Reply | Private Reply | To 57 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-64 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson