I have been involved in military courts-martial since 1978 as a court reporter. After two years in the Navy, I came into the Army in 1975 as an infantryman and then competed against paralegal specialists in the 1st Cavalry Division for a school position at the Court Reporter School. I graduated first in my class at the Naval Justice School (where Army court reporters went to train back then) in 1978 and have had no other job since then. I retired as a Sergeant First Class in 1995 and was hired as the only civil service court reporter on Fort Hood immediately thereafter. In 2003, the three jurisdictions on Fort Hood ((1st Cavalry Division, 4th Infantry Division, and III Corps) consolidated their court reporter sections and I was placed in charge of the section .. myself and 10 military court reporters. Since my graduation in 1978, I have been the court reporter of record in at least 100 courts-martial every year and, since 2003, have supervised the other 10 reporters on Fort Hood in their cases as well.
To start with, out of all of the courts-martial within any given year, 85% of them are guilty plea cases, where the accused has agreed to plead guilty in exchange for sentencing consideration by the Convening Authority. Probably 95% of these are held without a panel for sentencing in front of a military judge alone. Thus, right from the start, 85% of all military courts-martial result in a conviction .. because the accused pleads guilty.
Of the remaining 15% where the proceedings are contested, 10% are held before panels (juries, in the civilian context) composed of officers and warrant officers; if the accused is enlisted, the accused may request that the panel be composed of one-third enlisted personnel. In any event, none of these panel members will be junior in rank to the accused and none will be from his company-sized unit. The remaining 5% of the contested cases are held before the military judge alone, without a panel for either findings or sentence.
My gut feeling, after 30 years of being involved in more than 3000 courts-martial, is that, if the defense is arguing a legal/evidentiary point, the accused will select a military judge alone; if the accused is going to argue an emotional/evidentiary point, it will be before a panel.
Over 30 years, contested cases break pretty much even ... about half are aquittals and half are convictions. A lot of times, an accused will plead not guilty because the defense simply doesn't believe that the government can prove up its case, or the defense counsel can't convince the accused to plead guilty even though the unbiased evidence is heavily against him, or the accused can't get the deal that he wants to get from the Convening AUthority for a plea of guilty.
Military Rules of Evidence are identical to those used in civilian courts.
Appeals of courts-martial are AUTOMATIC to the Army (or Navy or Air Force) Court of Criminal Appeals if the sentence includes a bad conduct or dishonorable discharge or confinement for more than six months. I can tell you up front: probably 90% of all convictions are AUTOMATICALLY appealed. The Convening Authority has NOTHING to say with regard to the appeal process; the procedure is set forth by the Manual for Courts-Martial (signed into effect by the President of the United States and based on United States Codes) and AR 27-10.
The defense has a complete right to disclosure of ALL evidence against the accused. Nothing will get a judge pissed off quicker or a conviction overturned on appeal faster than the government playing hide-the-ball with the evidence. Ambush witnesses are not allowed; the defense has to be informed up front of all witnesses that are going to be called and given a chance to interview them prior to the proceedings. Courts have been delayed, sometimes for months, when new evidence or new witnesses have been discovered (or "discovered") and the defense requests time for further investigation and/or interviews. Cases have been overturned by the Courts of Criminal Appeal or the United States Court of Appeals for the Armed Forces (which is the next step up from the Courts of Criminal Appeal and one step below the Supreme Court) if new evidence is discovered or it is found that the government withheld evidence from the defense. I know this because I have been involved in numerous re-hearings, either for both findings and sentence or just for sentence alone.
Now, classified documents or national security matters can be redacted or the session will go into a closed session with spectators and/or non-cleared personnel banned from the courdroom. However, evidence MUST be presented in court, whether open or closed, in front of a security-cleared panel (if there is a panel in the case), the judge, the trial counsel (the prosecutors), the defense counsel (whether civilian or military), the accused, and the court reporter. All court reporters are REQUIRED to maintain a SECRET security clearance so as to allow them to participate in courts-martial in which SECRET material and evidence is presented and discussed. If material higher than a SECRET level is being discussed, a court reporter with the appropriate security clearance must be detailed to that court. Again, there is no playing hide-the-ball. If the government doesn't want to present the unredacted material in open (or closed) court or redact enough of the material to get it reclassified to a lower security level, then that charge may not go forward. The accused always has the right to hear the evidence against him, at least in one form or another, and it must be enough for the panel or military judge to be able to find him guilty beyond a reasonable doubt. I know these things .. I have been involved in a number of courts-martial where classified material was involved .. and it came out, in one form or another, or the military judge dismissed the charge that it pertained to. I was the court-reporter-of-record in the Abu Ghraib case of US v. GRANER, the purported ringleader of the guards, as well as the supervising court reporter for US v LYNNDIE ENGLAND, the female with the proverbial "thumbs-up", as well as for most of the other Abu Ghraib cases.
All of that being said, I can unhesitatingly state that I would much prefer to be tried by a military court than by a civilian one ...
First, even though they may outrank you, this a jury truly of your peers. These are professionals who, every day, do the same things that you do, see the same things that you see, and feel the same things that you do. These are not couch potatoes looking for something to do so they show up for jury duty; these are not half-wit civilians who are either too stupid, or too lazy, or too greedy to even attempt to get out of jury duty that the rest of their civilian counterparts seem to be able to do. These men and women, officer and enlisted, know that the accused is an individual just like themselves, who volunteered to serve their country, and whose careers are on the line in these courts. They listen intently to the evidence presented and weigh it carefully.
These are NOT kangaroo courts.
There have been some very serious cases of alleged murder, rape, assault, and the like in which I have participated where the accused is acquitted of all charges or at least the most serious ones, because these panels are serious about what they do.
The very fact that the system acquitted all of these individuals or dismissed the charges before/during trial goes against your argument against the military justice system.
Now, processing charges is a completely different thing. That is under the control of the commanders of the accused and the Convening Authority. The charges are sworn out against the accused usually by the accused's immediate company commander, a person who usually has some (if not a lot) of knowledge about and contact with the accused. In many cases, charges do not reach the courts-martial because the company commander or some intermediate commander determines that the charges can be resolved at a lower level of non-judicial punishment (Article 15 or summary courts). If the charges are serious enough, they have to go to the equivalent of a military grand jury, called an Article 32 proceeding. There, an unbiased senior officer with no connection with the military justice system .. just some infantry, artillery, armor, or personnel services officer .. is detailed as an investigating officer and the prosecution must convince him, by presentation of the evidence that the government has, that the charges should go forward. The accused must be present at this proceeding and is detailed a military defense counsel from the Trial Defense Services .. which operates independently from the military justice system within that jurisdiction .. and may be represented by a civilian lawyer if he pays for it himself. After presentation of the evidence by both sides, the investigating officer makes a recommendation to the Convening Authority as to what level of court .. Special or General .. the charges should be adjudicated at or even if the charges should be completely or partially dismissed.
However, the Convening Authority .. the Commanding General of the jurisdiction .. has the final say on whether or not charges go forward. Sometimes he takes the advice of the investigating officer and sometimes not, but he is required, by regulation, to consider it. At that point, the charges are referred (or dismissed) to a specific court-martial convening order, which designates the panel which will set in judgment on the case and the trial proceeds.
There is much, much more involved than I have laid out here. Sometimes cases which look like a slam-dunk going into trial blow up in the face of the government because a witness changes their testimony from earlier statements or critical evidence is not allowed to be admitted because the technical rules of evidence haven't been met and the judge won't allow it in; or a borderline case becomes a certain conviction by the merest gesture or statement of a witness.
As a case in point: a lot of the "he said/she said" sex offense cases that come before panels can usually go either way, unless there is solid physical evidence of injury or DNA results. If the panel gets it into their head that the accusing female is bending the truth or not believeable, then even a good amount of circumstantial or even hard evidence won't convince them otherwise and they'll acquit.
On the other hand, in one particular case in which I was involved, it was a child sodomy case, where the accused was charged with anally sodomizing a five year old girl. He was a solid soldier, no previous record, and the evidence was borderline ... certainly nothing to reach the "beyond a reasonable doubt" stage. However, when the little girl got on the stand to testify about the incident, she was so believeable and credible that I'm sure that's what led the panel to convict the accused. In one part of her testimony, when the government asked her how she knew that it was the accused who was anally sodomizing her, she, quite frankly and freely said, "Because I looked over my shoulder and saw him." When she said that, she turned slightly in her chair and actually looked over her shoulder. I can tell you .. that motion convinced me that she was telling the truth and, in addition to all of the other physical evidence and statements, that the accused was guilty of the act.
Anyway, I've rambled on long enough. As the court reporter, I and my counterparts are always a neutral in the proceedings. We're there to mark evidence, record the proceedings, do the post-trial paperwork, and transcribe and assemble the record of trial for the appellate process .. which, unlike your belief, ALWAYS takes place.
I would much prefer to be tried by a military court-martial than by a civilian court, any day of the week. I have said so in different forums to anyone who would listen: the military system .. as it stands now .. is fairer to the accused than the civilian one. The juries are professional and contain individuals who you can trust your career and life to, unlike those who sit on civilian juries. Given the option, I've always told those to whom I have given military justice system training: if you commit a crime downtown, pray to whatever God that you pray to that, if the civilian authorities offer the case to them, the military takes jurisdiction. At least then you're not trusting your life to a jury of probably uneducated ne'er-do-wells whose only contact with the military is watching JAG or war movies on The Movie Channel.
By the way, I've been called to serve on civilian juries eight times in the past 20 years ... as soon as the attorneys ask me and are told that I'm a court reporter in the military justice system and have been one for 30 years, I'm excused. I have never sat on a civilian jury ... why? Well, my belief is that they know that I know the system and would try to hold their civilian court up to the level of the military system and they don't want anything to do with that.
Great post.
I admit that my experience is limited to only the Case of the Pendleton 8 and also the case of Walt Fitzpatrick of Jaghunter.
Due to what I was told, however, concerning the Pendleton 8, what I could expect from these court martial hearings is exactly what I said before: set up, coerced statements and perjury of the NCIS personnel, for that is what the Hutchins and other families all tell of in their cases and also the documented paper trail that Fitzpatrick has proving signatures were forged on his court martial.
To a man, and unfortunately in direct contradiction to what many of us insisted was truth, the second version of events was false. The original version of what we were told by these men and their families was the truth. These men were sent on a snatch and grab mission, not the Battalion's first, to kill/capture a known suspected terrorist, Hashim Ibrihim Awad, a name that had repeatedly come up on the battalion intel list.
That squad of Marines went after Awad, grabbed him from his residence, took him outside and killed him. He was a known terrorist.
And they did it under orders from the Battalion Commander and with full knowledge of the Platoon Commander, Lt Phan. Lt Phan was supposed to go on that individual mission but was taken off at the last minute.
These men followed orders and for some reason, were prosecuted for it. Only, they weren't prosecuted for what they did, they faced a whole battery of accusations of supposed crimes which were in actuality, the following of orders given by the every people who told them they were now criminals now that they did it, at least for this incident.
The seclusion in solitary with no access to lawyers, no information given to families by the Chaplin or the Red Cross, the coercion of statements first by being sleep deprived, water deprived, and forced to endure high temperature confinement during questioning which caused the lead NCIS investigator to himself get heat exhaustion...the list goes on.
Maybe you are coming in this late. I have posted the NCIS work product documents, the results of the autopsy which prove the incident did not occur as the Marines were sworn to in trial, the body did not match the description, the scene of the crime did not add up to tactical reality on the scene, and yes, in direct rebuttal to something you said, evidence was witheld from the defense on the whim of the prosecution, yet the prosecution used portions of the same UAV footage to convict while disallowing it to be used in defense.
autopsy Census File Combat Ledger NCIS Investigative work product Pathology photos
Your reply needs to be read thoroughly to get a better and detailed response concerning these cases, so I will respond late.
Below is something that I wrote a while back which you may have missed. It should fill in some gaps re what I stated. Please keep in mind that this was written based on their SECOND story: That Awad was digging the hole they 'found' him in. They returned to their original story, the first story they released after confinement; that they were under orders to kill/capture known terrorists. I stand by, however, the analysis of the NCIS final findings: The facts of the NCIS work product, the Autopsy that was never allowed in the trial (THAT'S RIGHT, THE AUTOPSY WAS NOT ALLOWED DESPITE BEING REQUESTED BY THE DEFENSE)
HAMDANIA: OFFICIAL DOCUMENTS TELL A DIFFERENT STORY WHEN COMPARED TO THE MEDIA ACCOUNTS. WHY?
(A) WHAT WERE THE CIRCUMSTANCES LEADING UP TO THE PATROL THAT NIGHT? WERE THEY COMMON EVENTS OR WAS THIS A SPECIAL PATROL TO SEARCH OUT A SPECIFIC PERSON AS THE OFFICIAL CHARGES CLAIMED?
The government's case was that the patrol lead by Sgt Hutchin’s, Plymouth, Massachusetts, was after a specific insurgent named Saleh Gowad, and when he was not found at the location of his house, a random house was chosen and an innocent man was taken and killed. Make sure that you note the following that Sgt Hutchins was NOT at the house when Awad was taken; yet, Sgt Hutchins is the only one convicted of murder and is the only one who is continuing to do jail time.
The following news articles show the accusation brought against these Marines, the Pendleton 8:
http://www.nctimes.com/articles/2006/11/16/news/top_stories/1_01_1711_15_06.txt
“One of those suspected insurgents was a man named Saleh Gowad, an Iraqi the squad had arrested at least three times during a 45-day period, Jodka said. It was Gowad that the platoon was originally looking for, Jodka and other members of the squad have testified.”
The Iraqi man, Saleh Gowad, was a known terrorist suspect who lived in the same house with his family and siblings Amad, Tareq, Hambed, Hakem and Ismael. According to the Census report of Kilo Company, the entire family, (sons and Father) were believed to be involved in the insurgency against the international forces participating in Operation Iraqi Freedom. He was known to work at a gas station and made deliveries from the location of the gas station, sometimes being gone for as many as 6 days.
The census reports clearly name other individuals also, who were believed to be involved with kidnapping rings, IED creation and deployment, the murder of Iraqi civilians, the operation of terror cells, small arms attacks on Marine Corps forces, and which businesses were being used as fronts to create IED’s and VBIEDS.
On April 7, 2006, the family of Gowad was seen at a senior leadership meeting, with Saleh Gowad present among other insurgent leaders who were named in the report. Saleh Gowad, or a man identifying himself as Saleh Gowad, was spotted and questioned by Marines of Kilo Company, 3rd squad, as reported on April 9, 2006. The man reported to be Gowad appeared to look different than the previous descriptions given of this man of interest, or HIGH VALUE INTEREST person (HVI)
In a report dated April 12, 2006, an unnamed brother of Saleh Gowad was seen in a market where an IED had gone off on April 11, 2006, and is believed to have acted as a lookout for the insurgents who exploded the IED and to observe the tactics used by the Marines as a form of intelligence gathering.
So the question is, since the government claims it was a mission to specifically grab Saleh Gowad, why would the squad go after Gowad when others of higher importance and clear connections to kidnapping rings, murder, other IED’s and small arms fire attacks against Marines are known to Marine Corps intelligence?
With all the names and tribal connections listed in the census reports, to include the names of Gowad’s brothers and father as being possible insurgents, why would Sgt Hutchin’s squad choose to leave the home of Saleh Gowad with NO ONE else from the house, knowing that the entire family was suspect, to just snatch someone from a house at random?
Remember, the government’s story is that Sgt Hutchin’s squad was on a self created mission, orchestrated by Sgt Hutchins, to capture or kill the Iraqi man, Saleh Gowad. When this failed with Saleh Gowad not at his house, they went to another random location and snatched Hashim Ibrihim Awad from his bed and killed him in a fabricated IED hole and a planted a rifle and shovel to hide the murder. This was all supposed to have been done for the purpose of extracting revenge for previous attacks against Marine forces in the area.
As the media has reported this ‘act of revenge’, here are two examples:
“Encinitas Marine pleads guilty in Hamdania killing
Thursday, October 26, 2006—
http://www.nctimes.com/articles/2006/10/26/news/top_stories/1_01_510_25_06.txt
Jodka testified that he did not know that Awad was not their intended target, a suspected Iraqi insurgent named Saleh Gowad, but was actually Awad. When the squad could not find Gowad at his home, members went to another house and seized Awad. “I couldn't see the man in the hole at the time we were firing, sir,” Jodka said. “I only saw him stand up and run down the road to the north.”
http://www.usatoday.com/news/world/iraq/2006-10-06-iraq-marines_x.htm
“Prosecutors have said the servicemen killed Awad out of frustration and then planted the assault rifle and shovel by the body to make it look as if he had been caught digging a hole for a roadside bomb. Bacos testified that the squad entered Hamdania on April 26 while searching for a known insurgent who had been captured three times, then released. Squad leader Sgt. Lawrence Hutchins was “just mad that we kept letting him go and he was a known terrorist,” Bacos said. The group approached a house where the insurgent was believed to be hiding, but when someone inside woke up, the Marines instead went to another home and grabbed Awad, a former policeman, according to the testimony. Bacos said the squad had intended to get someone else if they did not capture the insurgent, then stage a firefight to make it appear they had found an Iraqi planting a roadside bomb.”
If the decision was to grab Saleh Gowad from his home, then why go to another home to find a random victim just to make a point? Knowing that ALL the male members of the Gowad family were considered a part of the Iraqi insurgency, any male member of the family who was at home would have been a ‘suitable’ person to intentionally murder to make the revenge point.
If the members of the squad were so bold as to grab someone at another random location, why would the act of waking someone up at the original target house cause them to abandon their mission?
(B) THE APPREHENSION AND THE SCENE OF THE KILLING OF “HASHIM AWAD”
This is from the autopsy report of the Hamdania incident, which was NOT allowed into evidence in this murder trial, the pathology report, and the Census Reports performed by Kilo Company.
And, YES, that's correct, the autopsy report was not allowed into trial!
In the Census reports, each Squad Leader gives a detail of who they encountered as personnel in the Iraqi cities and villages as needed. This information is then used as intelligence, both in assessing the nature of the community and its needs, but also in war intelligence against Iraqi insurgents. These reports are also used to provide detail in how suspected insurgents are approached and a short description of actions taken against those who show hostile intent.
In these reports, whenever a squad approaches a house, one of the main thrusts described in entering the house is to secure the area surrounding the house itself and especially, THE ROOF of the house. Each time an entry is made, it is always assumed, and rightly so, that there may be persons of hostile intent inside who would fire upon the Marines. Also, one well known Military axiom is to control the ‘high ground’ of a situation, for it allows observation of the surrounding area and allows for greater command and control of all units in place and those who may be needed for support.
In these Census Reports, many times there is a clear mention of the Marines who entered these houses did so in accordance with rules of war fighting that meant: they also secured the high ground: the roof!
From one Census report, dated March 28, 2006, an Iraqi house was entered at night time, and reads the following:
“AS WE CAME UP TO THE HOUSE I SET IN MY INT. CORDON AND THEN PUSHED INTO THE HOUSE. AS WE CAME UP TO THE HOUSE WE WOKE UP THE FAMILY AND BEGAN TO GET THE FAMILY UP AND INTO ONE ROOM THE MAIN ROOM. ONCE THE HOUSE WAS CLEAR WE SENT FOR THE INT. CORDON AND SET ROOF TOP SECURITY AND BEGAN TO SEARCH THE HOUSE. WE CAME UP ON 4 MEN AND NUMEROUS WOMEN AND CHILDREN. WE BEGAN TO ASK QUESTIONS.”
This is critical, for the testimony of the Awad family is:
1.) That when Sgt Hutchin’s squad allegedly grabbed Hashim Awad from his house, there is no testimony from the family that any sort of combat entry involving the establishment of a security perimeter. This would have been suicide for the Marines of Sgt Hutchin’s squad to not perform. Their actions would be no less surprising as any night time search done previously or since and therefore would be no less dangerous than any combat entry.
2.) To therefore believe the claim that their actions during a ‘legal and approved’ entry into a house to grab a suspected insurgent would necessitate defensive maneuvers to include a defensive perimeter around the house and then a defensive emplacement upon the roof of the house to prevent any actions of any insurgents who may be unseen; and yet when going to a house at random to snatch someone to murder them after failing to find the previous unfound terrorists can somehow allow these Marines to:
a.) Drop their guard and not establish a security which would include the securing of the roof top where the family testified they were sleeping atop?
b.) Not secure the perimeter of the house they were surrounding?
c.) Perform all of this at 0300 in the morning after waking up a neighbor and direct family member who lived less than 100 feet away who could easily either make a phone call to an insurgent friendly individual who lived nearby to engage these Marines with hostile fire either immediately or shortly after their actions or openly monitor the actions of these Marines who allegedly took another Iraqi man’s shovel and AK-47 from a previous house they supposedly barged into at 0200 that same morning?
What is known, from the documents we have received, is that Kilo Company had established a pattern of setting up IED ambushes by visually making themselves seen in a common rural area for a time, show the populace a repeatable pattern of travel, and then egress the area in an open manner to allow the local insurgents an opportunity to attempt to set up an IED. By showing a false pattern of movement, Kilo Company would then return to the area under the cover of night using night vision equipment and monitor the area they were just located at in hopes of catching an insurgent planting an explosive device.
This pattern of patrolling was proven effective, and on the night in question, Sgt Hutchin’s patrol proved it effective again by catching the man identified as “Hashim Awad” in the act of digging a hole for what was believed to be an IED, at the hour of 0200, an act that is rightly seen as hostile.
(C)WHO SHOT WHO: THE KILLING OF THE MAN IDENTIFIED AS AWAD
The story of the actual death of a supposed Iraqi man identified as Hashim Ibrihim Awad, has very differing accounts from both the Marines ‘witnesses’ and the supposed Iraqi ‘witnesses’. Among the conflicting stories are the number of people who supposedly entered the house to remove and apprehend the supposed Iraqi man, Hashim Ibrihim Awad, and just how the body was identified.
http://www.washingtonpost.com/wp-dyn/content/article/2006/06/04/AR2006060400797.html
( Please see original article at the link) ( This article discusses the differences between the Marine’s accounts of the action vs the family and government) “Iraqis Accuse Marines in April Killing Of Civilian - Disabled Man's Family Disputes Troops’ Story - By Ellen Knickmeyer-Washington Post Foreign Service Monday, June 5, 2006; A01- - Baghdad, June 4 - All parties to the case of Hashim Ibrahim Awad al-Zobaie agree that he was shot dead by Marines of the 3rd Battalion, 5th Regiment on April 26 in the small central Iraqi village of Hamdaniyah. But there are differing accounts of his death, and they are at the heart of another investigation into the conduct of American forces in Iraq. - - The slaying of Hashim, known in the village as Hashim the Lame because he had a metal bar surgically inserted into one leg several years ago, is the smaller and less prominent of two incidents being investigated over allegations of wrongful death and possible coverups.- - Members of Hashim's family interviewed by a Washington Post special correspondent on Saturday said the disabled man's last hours began about 2 a.m. on April 26, when members of a U.S. Marine foot patrol banged at the door of his one-story, walled compound. The Marines grabbed Hashim by the front of his cotton robe as soon as he came to the door, pulling him from the house, said one of his sons, Nasir, 26, an arts student in Baghdad. “Less than an hour later, we heard shooting,” Nasir said. The family was too afraid of the U.S. forces to immediately investigate, Nasir said.”
(Note also here in this story, if Awad truly lived in a walled compound, then the security concerns would have been greater, and the need for control of the area against all unknown forces in the area would be expanded. To enter any residence where there is a walled defense, especially after waking up the neighborhood by banging on the door and NOT securing the perimeter and rooftop as normal procedure was, is insanity.)
Concerning the apprehension of the deceased, Iraqi sources quoted in the official autopsy report say the following: A man identified as Nassar Hashim Ibrihim Al Awad, the son of Hashim Ibrihim Awad, claims to have been sleeping on the roof of his father's house when at 0200 he heard loud banging on the front door. His father, Hashim, was sleeping downstairs. He claims his father answered the door to the Marines outside, which Nassar numbered at about 8 Marines.
http://www.nctimes.com/articles/2007/07/11/news/top_stories/1_03_107_10_07.txt
“When Gowad wasn't home, the squad decided to go to the home closest to his where they dragged the sleeping Awad from his bed, Jackson said. They marched him out about 1,000 yards, bound his hands and feet, gagged him, then shot him, according to Jackson and Bacos, who also testified Tuesday. They didn't know who Awad was until told by investigators, they said.”
Note that the Iraqi man identified as Awad’s son said 8 men were at the door, which his father answered due to the knocking by the Marines, but the Marines themselves say that only 4 of them approached the house and that Awad was forcibly removed from his bed. The Marines made these statements as a part of their plea bargains.
Cpl Trent Thomas told the story this way:
http://www.nctimes.com/articles/2007/01/19/news/top_stories/1_00_030_17_07.txt
“Thomas testified that Awad, the 52-year-old father of 11, became the focus of the squad after their original target, who lived in the home next door to Awad’s, could not be found. Awad was killed in the early morning hours after being seized from his bed by a “snatch team” that included Thomas, marched to a hole created by an earlier roadside bombing and shot multiple times.”
These differing accounts beg the question: Why would the family members lie if their father was murdered? If he was dragged from the door after answering the knocks, why change the story? Would it matter if he was dragged from the door or from his bed? In fact, isn't it a much crueler thing to break into a house and drag someone from their own secure bed and outside the house kill them? If there is to be a falsehood from the family concerning a murdered family member, would that lie not represent something more extreme?
Surely, to drag someone out of their house from their bed is worse, but the family does not say that, they plainly state in the official report that he answered the door and was taken away.
So, why would the Marines all say he was taken from his bedside? Why is there no difference of opinion between the Marines who pled guilty and got plea bargains on this subject?
(At this point, the reader must remember the beginning of this section describing how Marines enter a house and why security is paramount.)
Concerning their identification of the body of the deceased, Iraqi sources as quoted in the official autopsy report say the following:
3.) Awad Ibrihim Awad, the reported brother of Hashim Ibrihim Awad, stated in the official report that he lived approximately 30 yards away from Hashim's house and that he witnessed the Marines taking Hashim away. Awad claimed that his brother owned an AK-47 but that he was not in possession of it when the Marines left Hashim's house. Capt. Rafie Mohammed Abid, a local Iraqi policeman, called Awad at 0500 and informed him of his brother's death. According to Awad Ibrihim Awad, his brother was shot in the back and the back of the head and that Hashim had a ‘Platinum Leg’ which would have hindered his manner and ability of walking.
This contradicts the previous testimony in the formal report by the son, Nassar Hashim Ibrihim Al Awad, in that, after he recounts the incident about his father's abduction and describes the number of Marines who took away his father, he continued to describe his first learning of his father's death from tribal leader Galeb Alkwad Alabes, who told him that his father's body is in the Police Station. Nassar was told that the Police needed someone to identify the body of the man later identified as Awad.
How is this possible? The two members of the same family are contacted by different people, and one is told at 0500 that the Police KNEW who the dead man was, yet when the son was notified of his ‘father's death’, he is told the Police are unaware of the identity of the deceased. What is also curious, is that there is no mentioning of the son calling the Police to ask what happened to his father and where he was, was he charged with something, or was he alive!
(If an occupation army took away your parent in the middle of the night, wouldn’t the first thing you do when you awake is make a phone call or inquiry as to his whereabouts?)
The son does another curious thing after receiving a call from the Police; he goes to the Police station with two of his uncles, but NOT with the one who lived the closest, Awad Ibrihim Awad, and makes no mention of looking for that uncle first, the one which would live the closest to the deceased.
Nassar claims he went to the Police Station with Saadon Ibrihim Awad and Ali Ibrihim Awad, but NOT with Awad Ibrihim Awad, the uncle who lived only 30 meters from the very house he was sleeping on the roof of that fateful night??
According to the testimony and recorded statements of HM3 Bacos, the shooting went like this:
http://www.npr.org/templates/story/story.php?storyId=6215761
“They took him to a roadside hole, bound him, and, Bacos testified, Sgt. Hutchins fired three rounds into Awad’s head. Then Corp. Trent Thomas shot Awad in the chest seven to 10 times.”
Pvt. Tyler Jackson said the following in testimony:
http://www.nctimes.com/articles/2007/07/11/news/top_stories/1_03_107_10_07.txt
“Pvt. Tyler Jackson told the nine-member jury that it was Hutchins who announced to the seven men he was leading on a patrol the night of April 25 that he had a plan. If everyone agreed, Jackson said Hutchins told his men, the squad would go to the home of a suspected insurgent named Saleh Gowad, seize and kill him. The platoon had arrested Gowad several weeks earlier, but learned he had been released from custody. Once they had Gowad, Jackson said, the plan was to march him to the site of a previous roadside bombing, shoot him and make it appear he had an AK-47 and was planting a bomb. And executing a man considered an “HVI,” or high value individual as the military refers to suspected insurgents, wasn't something that caused much angst that night, Jackson said. “Killing the number one HVI in the area did not sound like a bad idea to me,” he told the three officers and six enlisted men hearing the case against Thomas. When Gowad wasn't home, the squad decided to go to the home closest to his where they dragged the sleeping Awad from his bed, Jackson said. They marched him out about 1,000 yards, bound his hands and feet, gagged him, then shot him, according to Jackson and Bacos, who also testified Tuesday. They didn't know who Awad was until told by investigators, they said.”
Cpl. Rob Pennington:
http://www.nctimes.com/articles/2007/02/18/news/top_stories/16_04_492_17_07.txt
“Pennington's role in the April 26 killing included helping march the 52-year-old Awad to the killing site, binding the victim's hands and feet and wiping squad members’ fingerprints from a stolen AK-47. He also was accused of placing that weapon and a shovel in Awad’s hands in an attempt to make it appear the Iraqi was an insurgent planting a roadside bomb.”
HM3 Bacos own testimony contradicts himself, however, as reported here:
http://www.nctimes.com/articles/2007/02/08/news/top_stories/1_03_482_7_07.txt
“Bacos testified at length Wednesday about the corporal’s actions in the killing of Awad. Thomas, Bacos said, was part of a “snatch team” that took Awad from his home and helped lead the retired Iraqi policeman to a killing site some 1,000 yards away. During the march to that site, Thomas repeatedly pushed Awad along and helped bind the hands and feet of the 52-year-old father of 11. Shortly after the squad from the 3rd Battalion, 5th Marine Regiment took up positions and fired numerous shots at Awad, Thomas fired three shots at close range into his chest, Bacos testified. While outlining Thomas’ role in the slaying, Bacos also testified that the plan that led to the killing was primarily designed and led by the squad's leader, Sgt. Lawrence Hutchins III. At the same time that Thomas was firing three shots into Awad’s chest, Hutchins fired several rounds into the man's head, Bacos said.”
But, Bacos’ previous statements were this:
http://www.npr.org/templates/story/story.php?storyId=6215761
“They took him to a roadside hole, bound him, and, Bacos testified, Sgt. Hutchins fired three rounds into Awad’s head. Then Corp. Trent Thomas shot Awad in the chest seven to 10 times.”
3 Shots in the chest are not 7 to 10 shots in the chest. Which is correct? Also, who shot first? This testimony is a critical part of a testimony used to convict Sgt Hutchins of murder and must be and if a person is credible or not, and his story keeps contradicting itself, how can it be considered accurate?
The following testimony by Pfc. Jodka is also troubling, for it raises more questions as to who is telling the truth:
http://www.nctimes.com/articles/2006/10/27/news/top_stories/1_01_510_25_06.txt
“Four of the men —— Cpls. Marshall Magincalda and Trent Thomas, Lance Cpl. Robert Pennington and Corpsman Bacos —— all headed out to snatch Gowad from his home. When Bacos testified three weeks ago, he said they could not find Gowad, so instead they grabbed a neighbor —— Awad. The four troops returned with their captive under a moonless sky, Jodka said. “I overheard Cpl. Thomas tell Sgt. Hutchins that we got him and he's in the hole,” Jodka testified, adding that the hole was about 75 yards away. “At this point, you thought the individual was Saleh Gowad?” the judge asked Jodka. “Yes sir,” he replied. ‘You know what to say’. According to the charges filed in June, the men bound the hands and feet of Awad —— who was a retired Iraqi policeman —— before shoving him into the hole. Jodka said Hutchins ordered the men to open fire. But Awad stood up and scrambled out of the hole, which was about 2 1/2 feet deep. “I don't know if he stood up after he was shot, or was shot after he stood up,” Jodka said, soon adding, “I couldn't see the man in the hole at the time we were firing, sir. I only saw him stand up and run down the road to the north.”
The question that must be raised is how did a man who was bound hand and foot get up to run? The standard method of binding a prisoner on the battlefield is to use a plastic draw tie, sometimes called a TIE WRAP, often used in industrial applications. Large types are being used in Iraq to restrain suspects or prisoners since they are lightweight and can be rolled up in your pocket before use and can be discarded after use.
When applied properly, they cannot come undone; it is a physical impossibility due to its design. That means anyone who had these Draw Ties (TIE WRAPS) around their wrists or legs, would be unable to remove them themselves without a cutting tool of some sort along with some physical contortions to maneuver your tool into the correct position.
How could someone whose legs are tied run? How could he get up if the men were standing there? Why are most testimonies of this event all stating that the man was in the hole when shot, but Jodka’s testimony is that the man tried to get up and run? For anyone to resist against this type of restraint, you would be exerting great force upon your areas restrained to no avail. If you resisted, there would be marks of some kind on your body.
(D)THE EXHUMATION, AUTOPSY, PATHOLOGY REPORT AND POSITIVE IDENTIFICATION OF THE DECEASED
The identity of the deceased Iraqi man identified as Awad is also in question. When appearing at the home of Awad, persons who identified themselves as family members gave testimony to the investigating team of Marines after the incident. There was no attempt to catalog the identification of these person, no ID’s were copied or transcribed. The identities of all persons in the room were known only by the name they gave, not by any evidence of who they were according to what the government could prove.
Iraqi persons have identification cards, and Americans took photographs of persons who they were suspect of, and this family did NOT produce, nor were they asked about any identification confirmation.
Nor were any of the persons there asked to submit DNA samples, including the sons or others claiming to be uncles of the deceased.
The body of the man identified as Hashim Awad was exhumed from what was called the family gravesite. The condition of the gravesite and the circumstances surrounding the exhumation are questionable.
The grave that was identified as Awad’s was located in what the Awad family said was their family cemetery. A small white tombstone marked the location and the grave itself had a 12” mound of dirt on the top of the grave. What happens next is puzzling.
The alleged family member of the deceased, Awad Awad, told the exhumation team that the body was buried approximately 1 meter deep, but off to the side of the actual grave! The mound of dirt, which a person would assume was covering the actual body, was NOT the grave mound! According to Awad Awad, the actual site of the body was off to the side of the grave and behind some concrete tiles.
What that means is, while a grave mound appears to be piled over the body, the actual body is to the side of the grave mound??
Awad Awad explained that this is standard custom for their culture! While photographs taken by the Marine Corps conclude that this is the immediate area of the gravesite, there is NO WAY anyone can state that a body that is to the side of a burial mound is the actual body. It is also questionable to see concrete tiles separating this body from the immediate gravesite that is indicated by the tombstone of the grave.
The Pathology report contains a DNA analysis from the deceased Iraqi man identified as Hashim Awad and a man who was identified as Awad Ibrihim Awad, yet the government’s own case has foundered on this part due to the fact they do NOT know the identity of the man identified as the brother of Awad. There was no evidence of any other family relation by name giving DNA evidence. I wish I knew more, but it seems the ratio of the percentage of how connected the two persons were was a number that was compared to the whole Earth population when compared to their ethnic origin. If a person is classified as 614,000 times more likely to be my brother than a random man in the population, that still leaves quite a few people who are likely to be related. Can it be that the person tested is a cousin? We don’t know who the first man is in actuality, there were no DNA tests performed or released on the persons claiming to be a child or parent of the deceased.
As in all autopsies, there is a physical description of the body received and work performed. The location and number of bullet wounds and locations of these wounds in the autopsy findings contradicts the accounts of all the Marines in their testimony.
All Marines agree that the Iraqi man identified as AWAD was shot before the dead check was performed on him. The exact location of those wounds was unclear in testimony, but the wounds received after Sgt Hutchins and his squad came face to face with the man firing at them are accounted for, namely:
a.) 3 Shots in the face done by Sgt Hutchins
b.) 7 to 10 Shots in the torso by Cpl Thomas
The autopsy and pathology report should reflect these accounts with only small additions or corrections, yet this is not the case.
3 similar gunshot wounds, similar to those reported by Sgt Hutchins, are mentioned in the autopsy report, but additional facial gunshot wounds are also recorded in the autopsy. 1 Additional gunshot wound is recorded to have entered on the left side of the face and exiting the left side of the face near the left ear. Additional wounds appear on the left side of the neck.
NONE of the accounts of the Marines who took plea bargains spoke of these additional wounds on the left side of the face or left side of the neck. These wounds described are serious, would produce heavy bleeding and possible be a cause of death in themselves due to heavy bleeding, yet there is no mentioning of these wounds. Why?
It must be emphasized that the testimony given states that Cpl. Thomas shot 7 to 10 times into the torso of this Iraqi Man. The autopsy does NOT record 7 to 10 shots in the torso at all. The autopsy records 2 shots in the lateral right aspect, and one entrance wound which caused internal injuries, but did NOT mention 7 to 10 gunshots or multiple gunshots to the chest or abdomen at all.
The autopsy records a gunshot wound to the right buttock and pelvis, the anterior right forearm with 2 wounds, and a gunshot wound to the right thigh. Those additional wounds here would indicate that he was moving when shot and his right side was in the line of fire of the advancing Marines if this was the actual man these Marines were shooting at, yet none of the recorded evidence agrees with the sworn statements.
An additional problem with the identification of the body is the claim that “Hashim Awad” had a rod in his leg, was once described as having a “platinum leg” and also being known as “Hashim the Lame”. The autopsy did show a healed fracture and did show that 2 wire fixtures were used to assist in healing, but this is certainly NOT a debilitating wound that would label anyone “Lame” or disabled.
(Editor’s note: I myself have several pins surgically installed due to a shoulder injury, located in my shoulder in 2004, have had bone graft surgery on my right humerous as a teenager before my service in the Marine Corps, and recently had 2 spinal surgeries in an 11 month period since March of 2007. Having an old fracture wired is not debilitating)
One additional point in all this, is that the autopsy records NO SOOT or STIPPLING wounds to any of the wounds recorded. Yet, each and every of the Marines, in their plea bargains, stated that Sgt Hutchins shot the Iraqi man from a distance of approximately 3 feet away with a high powered military assault weapon, 5.56 millimeter projectile whose muzzle velocity is approximately 2270 feet per second. So did Cpl. Thomas according to the sworn testimony. Anyone shot at that close a range would certainly have gunpowder residue embedded in their face, but according to the autopsy examination, microscopic analysis showed there was none!
What must also be mentioned is how the autopsy clearly indicated that there appeared to be no hemorrhage or other injury of any kind after the wrists and ankles were dissected. To be fair, the amount of decomposition that occurred may be a factor in that, but that itself is not proof enough that there were restraints or cuffs used or not used. Which ever it is, is does NOT prove cuffs were used, regardless of how the story is told.
Conclusion:
It is with great difficulty that the only conclusion that can be gathered from this report is that the men of Kilo Company, known as The Pendleton 8, are innocent and were prosecuted for reasons known only to the Marine Corps, NCIS and the JAG Corps, for the evidence that the government had in it’s hands exonerated these men, not convict them.
Thanks for your posts and continued service to this great nation. Interesting and a fascinating analysis of events.
thanks for the info.
Below is his response, in red, to your previous comments:
I have been involved in military courts-martial since 1978 as a court reporter. After two years in the Navy, I came into the Army in 1975 as an infantryman and then competed against paralegal specialists in the 1st Cavalry Division for a school position at the Court Reporter School. I graduated first in my class at the Naval Justice School (where Army court reporters went to train back then) in 1978 and have had no other job since then. I retired as a Sergeant First Class in 1995 and was hired as the only civil service court reporter on Fort Hood immediately thereafter. In 2003, the three jurisdictions on Fort Hood ((1st Cavalry Division, 4th Infantry Division, and III Corps) consolidated their court reporter sections and I was placed in charge of the section .. myself and 10 military court reporters. Since my graduation in 1978, I have been the court reporter of record in at least 100 courts-martial every year and, since 2003, have supervised the other 10 reporters on Fort Hood in their cases as well.
First, I would like to congratulate you for your fine and continued service to the military, Semper Fi.
To start with, out of all of the courts-martial within any given year, 85% of them are guilty plea cases, where the accused has agreed to plead guilty in exchange for sentencing consideration by the Convening Authority. Probably 95% of these are held without a panel for sentencing in front of a military judge alone. Thus, right from the start, 85% of all military courts-martial result in a conviction .. because the accused pleads guilty.
This projected outcome and result is part of the problem. Based upon National standards and conviction rates, red flags immediately are raised by the percentage and out comes of this statement.
On a National level the conviction rate is far below that of the military and if the civilian courts were to rise to this percentage there would be an investigation on those who have been so successful. This also means primarily the investigative bodies who have supplied the material for the prosecution. ( Side Note: NCIS, CID, and the rest of the military investigative bodies gather and make the product for the prosecution. This is also done with no oversight and with complete immunity under oath?)
Of the remaining 15% where the proceedings are contested, 10% are held before panels (juries, in the civilian context) composed of officers and warrant officers; if the accused is enlisted, the accused may request that the panel be composed of one-third enlisted personnel. In any event, none of these panel members will be junior in rank to the accused and none will be from his company-sized unit. The remaining 5% of the contested cases are held before the military judge alone, without a panel for either findings or sentence.
10% are held before panels (juries, in civilian context). Using this term jury in any explanation of the military "hearing" is not accurate; this word has been borrowed from a real court of law and is misrepresented in its context on a daily basis. A panel never was, or as is used, ever been meant to be a jury.( see Col. William Winthrop, Military law and precedence Vol. I and II).
A panel consists of Sr. men/women in uniform with rank, it does so under orders and acts as an advisory panel to the hearing officer.( thus the name "CODE" of justice)
U.S. citizens, uniformed or not, are allowed by the very existence of the Constitution, the two types of juries under its "PROTECTION", Grand and petite.You are correct in the statement that a percentage are held in front of a hearing officer, yet here lies another problem. Unlike English Common Law (or, our Constitution) when you are in front of a magistrate or elected judge of the court, he alone has been given the power of the Nations judiciary to make a decision, and that decision is to be based on law and to be final and within the mandates of the nation and states who have legally empowered him or her.
A hearing officer only acts as a mediator between the accused and the convening authority who has been given the power by the DOD ( Department of Defense) through the surrogate of the CIC ( commander in Chief) under Roman Law ( adopted through the Confederation) and inflicts punishment and or judgment without a jury and meets all three standards under the supreme court of attainder. "Punishment without the presence of a jury" or the power given by the Constitution of the United States. This standard has become DOD policy and has never been ratified by congress or heard by the Supreme Court and conflicts in its totality with the constitution.
My gut feeling, after 30 years of being involved in more than 3000 courts-martial, is that, if the defense is arguing a legal/evidentiary point, the accused will select a military judge alone; if the accused is going to argue an emotional/evidentiary point, it will be before a panel.
The fact is, most young men and women from the beginning of service are taught to respect rank. Most of the plea deals and or decisions in front of a reviewing officer revolve around the lower hanging fruit ( IE, Jr. enlisted). These folks have under the UCMJ a Capt. or above assigned to them. They look to these folks for guidance and advice for what they stand for. Most are not in a position to obtain or seek civil council in there behalf. Even if you can afford this outside council, you would never have enough funds to fight this system most of the time. (Look at the recent hearings that have taken place during this war) The cases that end up in front of a panel are most often the most serious offences or accusations of a crime. Emotions run high when you look at years or death under the UCMJ so it would make a great deal of sense to say emotions exist in that stressful environment. Bottom line, is the defense and prosecution work together to mediate the outcome of most hearings. This is why there has been no access to military dockets, names or offences for civilians to attend and on a regular basis reported on. (see last months article Marine Corps Times)
Over 30 years, contested cases break pretty much even ... about half are acquittals and half are convictions. A lot of times, an accused will plead not guilty because the defense simply doesn't believe that the government can prove up its case, or the defense counsel can't convince the accused to plead guilty even though the unbiased evidence is heavily against him, or the accused can't get the deal that he wants to get from the Convening Authority for a plea of guilty.
Above you were closer than this statement, 85% conviction rate, in truth it stands close to 98% conviction rate, so 50/50 is not a good statement. In a court of law and not a hearing room, it is up to the prosecution to prove guilt beyond reasonable doubt, not the defense to prove some one is innocent. Unlike a real court room, in a Military Court only 2/3 of the panel need to find you guilty and the prosecution in a hearing runs the hearing and the convening authority has the final word on how it is going to work. This is what you allude to when in this statement you talk of a plea bargain and whether or not the convening authority will agree to it. This my friend is called command influence, it happens in every case, thus defined by the boundaries of the UCMJ itself nullifies under its own rules as one of the most grievous crimes against the code. This is the standard and has shown for decades that a military hearing cannot go forth without the the decisions made by the same man who has brought the charges against the accused as a surrogate of the government. We continue to meet the standards of attainder as you speak from your 30 years of recording the events.
Military Rules of Evidence are identical to those used in civilian courts.
Well, I wish this was true, there are Marines and Solders in fort Leavenworth as we speak that if this statement could stand on its own merit, we would not be talking about this topic. It has become fact through hearings and the documents that have been gathered for over twenty years that this is far from the truth. If the gathering of evidence by NCIS,CID,and the rest of the military investigative body's did such a tremendous job there would be no reason to have to testify under full immunity !
The 4th and 5th amendments would rain true for the accused and the prosecution would really have to work for their pay check. This is a gathering system that uses hearsay and accusations as the truth, they have defendants write there pre-arranged statements multiple times before acceptance or write them for the accused and make them sign them. (This was the case of the Pendleton 8, their 'statements' of supposed guilt were dictated to them by NCIS personnel, directing their every word as to what they would plead gulty to).
With the gathering and case building these folks do, if in a real court 50% would never make it passed the article 32 stage if it ever was allowed to go that far. This has been witnessed time and time again in recent times with the hearings that have gone on at Camp Pendleton, documented, recorded and reported on. If you would like to document share I would be glad to do so.
Case in point, the first ever hearing of a U.S. service man was just ended in a California Federal Court. The same evidence given by the Government and work product of Special agent Fox NCIS, was listen to and looked at by a "JURY" This was used and presented in the same manner as in all the cases that have put fine American Hero's behind bars in recent times. A real jury operating under the judiciary or the United States Constitution found there was no evidence that would prove beyond reasonable doubt that this young Sgt. committed any crime. If this was allowed to be heard in a military hearing he would be confined as we speak. Intel gathering and the manipulation of statements and evidence in no way comes close to a real court of law.
Appeals of courts-martial are AUTOMATIC to the Army (or Navy or Air Force) Court of Criminal Appeals if the sentence includes a bad conduct or dishonorable discharge or confinement for more than six months. I can tell you up front: probably 90% of all convictions are AUTOMATICALLY appealed. The Convening Authority has NOTHING to say with regard to the appeal process; the procedure is set forth by the Manual for Courts-Martial (signed into effect by the President of the United States and based on United States Codes) and AR 27-10.
This is completely true, the majority of the reviews (appellate process) are automatic upon the sentencing of some one spending more than 6 months in confinement. With a couple twists. The Supreme Court has just in recent times made a decision on GITMO detainees. This decision and the powers to be (Human Rights Watch) and the folks in D.C. who wanted it closed got their day in court. Though the word of attainder was not mentioned or brought up, it was part of the over all decision; you cant keep folks for ever.
Most importantly was the decision to give the Constitutional rights to these folks who have been hell bent on killing our folks? These folks now have the ability to petition after their tribunal to a federal court for full review with a, yes again, jury.
You mention the review process and how it works. Well, if you research the military process you will find a small percentage that have been over turned, you will find some that have reduced sentences to time served and some that have changed the determination of the accused rated discharge, heck, recently the Fort Lawton solders were just found wrongfully convicted after 64 years and one that was still living to hear died hours after being told! The only reason these men were cleared was a man and women team who went through the archives and dug for the truth and wrote a book! The problem with the Military "review" process is it only allows what was actually in the original hearing to be reviewed!
All evidence that is in hand that would vindicate any wrong doing is kept out of any review and only the record of trial and what's in it is allowed! That's why the percentage is so low; you're only allowed to review what you were convicted with.
That's a great system, any material that can prove against your incarceration is not allowed. Then here are your chances with CAAF (court of appeals for the military): less than 1% has ever been over turned. This may explain, the five judges appointed to CAAF are done so for there term by the POTUS. The key to the puzzle is, when a convening authority makes his final disposition it represents the Commander and Chief, The king in Roman law or articles of war. With this said, why by the time it gets to CAAF would they overturn a decision, the decision represents the President. Now you say they have the right to go to the Supreme Court, This again is true, but only if it is approved for review by CAAF, ones already reviewed by CAAF. Would they let someone's review go higher? Some have, but most do not because by the time it would get to that stage the accused is out of confinement or dead. This is how your military review works, how would anyone reading like to be under these non constitutional restrictions. What do you think your chances would be? and how would you like to trade places with some one in uniform who can die in a heart beat for the protections you outside the military get to enjoy?
The defense has a complete right to disclosure of ALL evidence against the accused. Nothing will get a judge pissed off quicker or a conviction overturned on appeal faster than the government playing hide-the-ball with the evidence. Ambush witnesses are not allowed; the defense has to be informed up front of all witnesses that are going to be called and given a chance to interview them prior to the proceedings. Courts have been delayed, sometimes for months, when new evidence or new witnesses have been discovered (or "discovered") and the defense requests time for further investigation and/or interviews. Cases have been overturned by the Courts of Criminal Appeal or the United States Court of Appeals for the Armed Forces (which is the next step up from the Courts of Criminal Appeal and one step below the Supreme Court) if new evidence is discovered or it is found that the government withheld evidence from the defense. I know this because I have been involved in numerous re-hearings, either for both findings and sentence or just for sentence alone.
This is not always the case, It is up to the prosecution and the hearing officer what will be allowed or not. The cases that are overturned by the court of appeal or the review in sentence length or dismissal, which is slim to none in most cases and is formatted on the irregularity or things that have appeared in the "PUBLIC" record of trial. Nothing beyond that is reviewed in behalf of a defendant.
Now, classified documents or national security matters can be redacted or the session will go into a closed session with spectators and/or non-cleared personnel banned from the courtroom. However, evidence MUST be presented in court, whether open or closed, in front of a security-cleared panel (if there is a panel in the case), the judge, the trial counsel (the prosecutors), the defense counsel (whether civilian or military), the accused, and the court reporter. All court reporters are REQUIRED to maintain a SECRET security clearance so as to allow them to participate in courts-martial in which SECRET material and evidence is presented and discussed. If material higher than a SECRET level is being discussed, a court reporter with the appropriate security clearance must be detailed to that court. Again, there is no playing hide-the-ball. If the government doesn't want to present the unredacted material in open (or closed) court or redact enough of the material to get it reclassified to a lower security level, then that charge may not go forward. The accused always has the right to hear the evidence against him, at least in one form or another, and it must be enough for the panel or military judge to be able to find him guilty beyond a reasonable doubt. I know these things .. I have been involved in a number of courts-martial where classified material was involved .. and it came out, in one form or another, or the military judge dismissed the charge that it pertained to. I was the court-reporter-of-record in the Abu Ghraib case of US v. GRANER, the purported ringleader of the guards, as well as the supervising court reporter for US v LYNNDIE ENGLAND, the female with the proverbial "thumbs-up", as well as for most of the other Abu Ghraib cases.
This is a truthful statement in the fact it was designed to work this way, sad fact is, it does not. With the internet and new communications we have today the truth travels faster than the speed of heat. With the cases against our military that the Government and the media were so fast to make opinions on, they failed to realize the internet is faster than the print or TV media. They could not work as fast as information directly or indirectly reach people who were following, researching and speaking on behalf of our men and women in uniform. From your 30 year exposure to this system, it has given you a seat from the inside out, you have been fortunate to record history of a system that after over 200 years has been exposed for what it stands for and the internal fight within the system to keep it the way it is. I know 4 Solders and one Marine who this day sit in Leavenworth because none of the protocol you mention in this paragraph was allowed to be used in there defense. The information provided by the S2 officer assigned to one case was not allowed to bring in information that would have been useful in a defendant’s behalf. Example 2, The lead defense attorney was given his clearance to view S2 information (intelligence) and the Government and the prosecution block the information as a National Security issue so as not to allow it in the defense of the Marine. You’re correct, the room should have been cleared and those involved in the case given the clearance and others removed, did not happen. I can go on with other cases but we would be wasting time.
All of that being said, I can unhesitatingly state that I would much prefer to be tried by a military court than by a civilian one ...
Some folks also like sausage, till they get to the factory to see how it is made! It is not the same on the other side of the fence you were recording.
First, even though they may outrank you, this a jury truly of your peers. These are professionals who, every day, do the same things that you do, see the same things that you see, and feel the same things that you do. These are not couch potatoes looking for something to do so they show up for jury duty; these are not half-wit civilians who are either too stupid, or too lazy, or too greedy to even attempt to get out of jury duty that the rest of their civilian counterparts seem to be able to do. These men and women, officer and enlisted, know that the accused is an individual just like themselves, who volunteered to serve their country, and whose careers are on the line in these courts. They listen intently to the evidence presented and weigh it carefully.
Again, you use the word "JURY" it does not exist in a military "HEARING" room. You have a panel, in uniform, with military decorations and rank and orders to appear there by the same man (Convening Authority) who has recommended the charges against you by allowing the proceedings to go forward in the first place. I believe your words that no one than other military would have compassion, problem is, and they are just a body of service members there to make a recommendation to the hearing officer................ "NOT A JURY" under the Constitutional protections. Now you have focused on the problem in the end of your paragraph. Volunteers who have done so to serve their country......... So why does this system strip them clean from the very writings they have sworn to protect with their very lives?
These are NOT kangaroo courts.
Your correct, by law and their very existence, they are not, or are they recognized as any court of "LAW" at all. Not my words or opinion, DOD's and the writing of the foundational structures set in place by the articles of war ( UCMJ) and one Col. William Winthrop.
"This code, if such it can be called, does little or nothing more than permit the commander to do as he pleases.” It is a do- as -you- please" code out of deference to the power of the military command. It prescribes little or no procedure, It contains forty-two punitive articles. The offence is defined in none of these, but is left to be taken care of by the military custom. Twenty-nine of them prescribed that the offence denounced “shall be punished as a court-martial direct". Under this authority the court-martial may award any punishment whatever except death, and for a minor military offence may, if they choose, sentence an offender to imprisonment for life." Col. William Winthrop......... military Law (code)
This is but one quote I could pull for each and every view you have on a system you sound you very much love and were proficient at, and still are. The problem is, like me being a former active and reserve Marine is, what I was taught to believe in without question after almost 4 years of study and research has shown me they taught me what I needed to know............... The truth is some what different.
There have been some very serious cases of alleged murder, rape, assault, and the like in which I have participated where the accused is acquitted of all charges or at least the most serious ones, because these panels are serious about what they do.
The very fact that the system acquitted all of these individuals or dismissed the charges before/during trial goes against your argument against the military justice system.
Now, processing charges is a completely different thing. That is under the control of the commanders of the accused and the Convening Authority. The charges are sworn out against the accused usually by the accused's immediate company commander, a person who usually has some (if not a lot) of knowledge about and contact with the accused. In many cases, charges do not reach the courts-martial because the company commander or some intermediate commander determines that the charges can be resolved at a lower level of non-judicial punishment (Article 15 or summary courts). If the charges are serious enough, they have to go to the equivalent of a military grand jury, called an Article 32 proceeding. There, an unbiased senior officer with no connection with the military justice system .. just some infantry, artillery, armor, or personnel services officer .. is detailed as an investigating officer and the prosecution must convince him, by presentation of the evidence that the government has, that the charges should go forward. The accused must be present at this proceeding and is detailed a military defense counsel from the Trial Defense Services .. which operates independently from the military justice system within that jurisdiction .. and may be represented by a civilian lawyer if he pays for it himself. After presentation of the evidence by both sides, the investigating officer makes a recommendation to the Convening Authority as to what level of court .. Special or General .. the charges should be adjudicated at or even if the charges should be completely or partially dismissed.
However, the Convening Authority .. the Commanding General of the jurisdiction .. has the final say on whether or not charges go forward. Sometimes he takes the advice of the investigating officer and sometimes not, but he is required, by regulation, to consider it. At that point, the charges are referred (or dismissed) to a specific court-martial convening order, which designates the panel which will set in judgment on the case and the trial proceeds.
So why go through the process at all? as I stated above, only one man makes a decision that represents the king. Commander and Chief.............. This is against all common law and shows the inactions over two century's of congress not wanting to address DOD policy, not LAW.
There is much, much more involved than I have laid out here. Sometimes cases which look like a slam-dunk going into trial blow up in the face of the government because a witness changes their testimony from earlier statements or critical evidence is not allowed to be admitted because the technical rules of evidence haven't been met and the judge won't allow it in; or a borderline case becomes a certain conviction by the merest gesture or statement of a witness.
As a case in point: a lot of the "he said/she said" sex offense cases that come before panels can usually go either way, unless there is solid physical evidence of injury or DNA results. If the panel gets it into their head that the accusing female is bending the truth or not believable, then even a good amount of circumstantial or even hard evidence won't convince them otherwise and they'll acquit
On the other hand, in one particular case in which I was involved, it was a child sodomy case, where the accused was charged with anally sodomizing a five year old girl. He was a solid soldier, no previous record, and the evidence was borderline ... certainly nothing to reach the "beyond a reasonable doubt" stage. However, when the little girl got on the stand to testify about the incident, she was so believable and credible that I'm sure that's what led the panel to convict the accused. In one part of her testimony, when the government asked her how she knew that it was the accused who was anally sodomizing her, she, quite frankly and freely said, "Because I looked over my shoulder and saw him." When she said that, she turned slightly in her chair and actually looked over her shoulder. I can tell you .. that motion convinced me that she was telling the truth and, in addition to all of the other physical evidence and statements, that the accused was guilty of the act.
Anyway, I've rambled on long enough. As the court reporter, I and my counterparts are always a neutral in the proceedings. We're there to mark evidence, record the proceedings, do the post-trial paperwork, and transcribe and assemble the record of trial for the appellate process .. which, unlike your belief, ALWAYS takes place.
Record of trial only represents the view of the command through their surrogates in the hearing room that were allowed to be used against the accused, this in no way means all the facts have been allowed into the record beside what was allowed to be heard in the hearing room.
I would much prefer to be tried by a military court-martial than by a civilian court, any day of the week. I have said so in different forums to anyone who would listen: the military system .. as it stands now .. is fairer to the accused than the civilian one. The juries are professional and contain individuals who you can trust your career and life to, unlike those who sit on civilian juries. Given the option, I've always told those to whom I have given military justice system training: if you commit a crime downtown, pray to whatever God that you pray to that, if the civilian authorities offer the case to them, the military takes jurisdiction. At least then you're not trusting your life to a jury of probably uneducated ne'er-do-wells whose only contact with the military is watching JAG or war movies on The Movie Channel.
By the way, I've been called to serve on civilian juries eight times in the past 20 years ... as soon as the attorneys ask me and are told that I'm a court reporter in the military justice system and have been one for 30 years, I'm excused. I have never sat on a civilian jury ... why? Well, my belief is that they know that I know the system and would try to hold their civilian court up to the level of the military system and they don't want anything to do with that.
I appreciate your thoughts and the service you have given to this system and your country, The pride you have for this service and your accomplishments while working in this field. Let me make a suggestion in your thought on why you may have been not asked to sit on a real jury, and I wish you had so you could see a different and LAW abiding, Constitutional work process, not that is the best, but it's the best we got and it is the LAW. I would suggest that if the War articles or the UCMJ was as good and constitutional as the present judiciary, you would not have to go to a CIVILIAN court. We would all be mandated to tribunals. I think they release you out of respect for you and to stop any problems with interjection on what you know on other members of the JURY....... all 11 others. Please take this with an open mind , I, in no way did this to demean or knock in any way what you represent or the professional path you took with pride, I applaud it and respect it. Do some research Use the information and make your own decision based on the facts........................... respectfully: Flightline