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.
hehehe Pigott's
Pink's posts put Pigott in his place.
If Pigott was prejudiced, he'd be a Pigott bigot.
If Pigott was a plumber, he could call his business, Pigott's Spigots.
If Pigott packaged pork, he could call it Pigott's Piglets.
:) yes I toned it down BEFORE I posted it. You should have seen the first draft!
Looks like it is coming down to the good general making a decision. Hopefully after all is weighed in, he will see no reason to carry out any court martial.
I hope you two got some sleep ; )
Yes, I lay there counting piggots being drummed from the Corps until Morpheus claimed me.
LOL. :)
The more I think about this whole case against Lt. Phan, the crazier it sounds. The presiding authority Pigott, starts out the whole process saying something like "Let's touch gloves. Let's do it." Ooooohh. Tough guy.
In the course of the hearing, affadavits are brought forth of three Marines who discount what NCIS official statements said. One NCIS agent actually admits his notes coorberate at least one of these Marine's affadavits. Another NCIS agent who wrote the official statement will not testify because he's in Australia. The authority states he believes NCIS agents are truthful but the Marine witness may be charged with perjury. Huh?
Lt. Phan is accused of assaulting three Iraqi's and making a false statement as to whether one of them was in custody or not. If Phan is found guilty of these assaults, he could face at least 20 years in prison. So far at least four of the Hamdania Marines will face less than 2 years in prison for alleged participation in murder. Huh?
At the end of the hearing, the presiding authority, Pigott, was rolling his eyes, making exaggerated sighs, and making derogatory comments to Cord, the military defense lawyer, as he was making his closing statement. Huh?
When civilian defense attorney, Sheldon, again asked to have certain information made unclassified, this same authority, Pigott, is found screaming at Sheldon. Huh?
Why is Pigott so determined to get Phan?
Is it personal? Is he protecting NCIS from scrutiny in other cases like Hamdania/Haditha? What would this classified information tell about this case, or any other? Is it Lt. Phan's rank since I think he's the highest ranking officer to be charged? Pigott seems to be going above and beyond the call of duty here. I wonder why?
Good questions..
Thats why I wonder if this is the standard attitude. Guilty till proven innocent in a court martial and the Article 32 hearing is nothing more than a process that rarely does anything except rubber stamp the obvious the guys guilty...Court Martial.
I wonder how many Art 32's didn't go to court martial.
The Pendleton 8 are all enlisted. They were shackled and testimony was coerced (and that testimony is now being retracted).
I'm not positive of the timeline, but I believe Phan was only charged after the "shackles" controversy.
Of course, the Hamdania Marines were charged before the Haditha Marines. Personally, I think it's not a fluke that an equal number of officers and enlisted were charged.
Haditha is, after all, their showpiece trial and they had to give the appearance of fairness.
If the percentage was in the 60s or 70s, for instance, it would put the nearly 100% conviction rate at trial into perspective.
But if (as I suspect) nearly all Article 32s go to trial, then it sure looks like the cards are stacked.
BTW, this article, at Defend Our Marines, has conviction rate percentages for all services: "Unequal Justice", US News & World Report.
Maybe one of those "military justice" organizations would know the answer to the Article 32 question.
My simpleton answer is arrogance. Pigott screaming at Sheldon is how he probably communicates to most people. IME and IMO the military do alot of screaming. It's what they know. Also IMO the older, higher ups are drunk with power and maintain an untouchable mentality. He wasn't going to let Sheldon come into his territory and tell him what to do.
Not so simpleton, lil. That sounds right. Of course, too, if Piggie's marching orders were to "get Phan", that would be all the more reason for him to go into snarling Alpha male mode. (Don't try this at home.)
Egads! The Most Secret Plans of the Exalted Inner Circle of the Haditha Ping List is given away in post 55! Our secret handshake and everything! Most focus my Himalayan mind trick and zot that post into oblivion! Pray for me! I'm going into the Purple Screen!
Ha ha! Very funny!
Hey, what's the secret handshake?
< he looks through the smoke of his cigarette suspiciously >
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