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.
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