Posted on 01/31/2007 4:58:36 AM PST by RedRover
NORTH COUNTY -- An attorney for a Marine lieutenant charged with assaulting three Iraqis last year is alleging that a hearing officer violated his client's right to a fair hearing.
David Sheldon contends that actions and comments made by Lt. Col. William Pigott during an Article 32 hearing on Camp Pendleton that ended Sunday were unprecedented in his 16 years as a defense attorney handling dozens of military cases.
Pigott presided over a four-day hearing for 2nd Lt. Nathan P. Phan, a 3rd Battalion, 5th Marine Regiment platoon commander charged with assaulting Iraqi civilians during efforts to obtain information about insurgent activity in the village of Hamdania.
Pigott, who served as the hearing officer, will write a report to Lt. Gen. James N. Mattis sometime next month as to whether he believes Phan should be court-martialed. Mattis is the convening authority over the case as commander of Marine Corp Forces Central Command and the I Marine Expeditionary Force.
Sheldon, a Washington-based attorney and former U.S. Navy lieutenant, has written a two-page memo to Pigott addressing what he contends were improper actions.
"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 the evidence or commencing your deliberation," Sheldon wrote in the memo obtained by the North County Times. "I have never seen an investigating officer or military judge make such patently biased and inappropriate comments."
The memo also takes issue with Pigott's demeanor during the hearing and remarks he made from the bench Sunday when Marine Lt. Col. Matthew Cord, one of Phan's other attorneys, was presenting a summation of the case.
"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 Lt. Phan's rights to a full, fair and impartial Article 32 hearing."
The attorney further objected to Pigott's refusal to allow him to challenge an earlier ruling that denied consideration of classified intelligence material he asserts would help exonerate Phan.
That refusal and Sheldon's attempt to raise an objection as the hearing concluded prompted Pigott to scream at Sheldon that the hearing was closed.
Sheldon said Tuesday he is insisting the memo be made a part of the official record because of his concerns over how Pigott's actions may affect his client. Phan, 26, faces a maximum punishment of more than 20 years in prison and a dishonorable discharge if ordered to trial and convicted.
"I am a defense counsel who was doing my job and, to an extent, I was prevented from doing that," Sheldon said.
He would not say if the defense is planning to ask for a new hearing.
Efforts to reach Pigott, the top legal officer from the Marine Corps base at Yuma, were not immediately successful.
The highly contentious hearing raised numerous issues that were vigorously contested by Phan's attorneys and the Marine Corps' prosecutors, Maj. Donald Plowman and Capt. Nicholas Gannon.
Among the issues that emerged was the Naval Criminal Investigative Service's policy of not recording its suspect interrogations or witness interviews, a policy that the civilian law enforcement agency of the Department of the Navy says is being reviewed.
Three enlisted men testifying for the defense said they never saw Phan assault anyone, testimony that conflicts with what the Naval Criminal Investigative Service presented as those men's official statements to investigators.
As a result of that conflict, Pigott said he would recommend that Mattis order an inquiry into how it came to be that those men are alleged to have implicated Phan in statements to investigators and then testified during the hearing that they never saw the lieutenant do anything wrong.
Sheldon's memo also takes issue with comments by Pigott during the hearing that he found the government investigators to be honest and their testimony reliable despite defense assertions of a myriad of problems with their work product.
"I've never seen a trial judge or investigating officer openly opine on the credibility of witnesses while the session is under way," Sheldon said.
The case against Phan was brought as a result of an investigation into the slaying of a retired Iraqi policeman in Hamdania in April. Phan has not been charged or implicated in any way in that case, but the seven Marines and Navy medical corpsman charged with the slaying were under his command.
-- Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
Two related threads:
NCIS investigative methods come under fire over prosecution of Marine lieutenant
By the way, The North County Times (whose coverage of the hearings at Pendleton has been superb), serves an intelligent and informed readership. Check out the reader comments sometime.
Let jazusamo or me know if you want on the Haditha Marine Ping List.
Lord have mercy.
Lt. Gen. James N. Mattis needs to clean this up by firing Pigott and give Phan a new 'hearing'.
I love how you start my day off with a PING.
WOW is all I can muster.
That pigott is a piece of work. eyerolling and sighs from the from the judge. That is inappropriate!!
Please add me to your list.
Thanks
You're in. Welcome aboard!
Hiya, pink! I will follow Pigott's future career with keen interest. (Wonder if he'll wind up as the head of one of Murtha's charities?) ;)
Good info.
I totally agree that the interrogations should be recorded. It was so bad at one of the posts I was stationed at that the Battalion Commander called all the troops together and simply told them that they were idiots ever to talk to CID, and double idiots for waiving their rights.
He said, "Listen to what they're saying, They 'can and WILL' use anything you say...That's not just something they have to read. They're making you a promise."
There's something wrong that some lieutenant, probably in his 20's, is going to face 20+ years in prison because we stuck them in a hot zone, left them on their own, and then came back to 2d guess them. It is an amazing thing to me.
I think I will do a post on this article and highlight pigott...
This is not a time when patriots can be silent. At the very least, David Sheldon should hear a rousing “thank you” from anyone who cares about due process for men who volunteered to serve their country.
For convenience, here is Mr. Sheldon’s home page.
Don't forget to send me a link! ;)
Hi, onyx! In a way, it's good for this to surface during a hearing rather during than one of the upcoming trials. Sheldon is doing some heavy lifting that will benefit the defense in all upcoming cases.
I like to think that the military gets it right, but sadly and disgustingly, that is not the case.
This is a taste of what I was talking about.....
Pinkpanther111 wrote, "That pigott is a piece of work. eyerolling and sighs from the from the judge. That is inappropriate!!"
Agreed. I wonder if any of these hearings are videotaped. That would make for some good news footage to show the demeanor of the presiding authority (Pigott). How old is Pigott - 16?
Brings back memories of the debate between VP Gore and Pres. elect Bush. VP Gore looked and sounded like a fool, but it was fun to watch.
I would love to see this 2 page memo that atty Sheldon wrote to Pigott.
Thanks for the ping Red.
Wonder if his office would release it? Maybe not if it was official memo that was leaked from an "unnamed source" (two can play that game!).
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