Witness for Marine lieutenant threatened with criminal charges

The North County Times ^ | January 27, 2007 | Mark Walker

[RedRover]

CAMP PENDLETON ---- A hearing for a Marine lieutenant accused of assaulting three Iraqis took a dramatic turn Saturday when a witness called in his defense was told he could be facing criminal charges for allegedly lying.

Lance Cpl. Andrew Kraus was read his legal rights and informed that he might be charged with making a false official statement and committing perjury during his testimony in a hearing for 2nd Lt. Nathan Phan.

The accusation against Kraus came from the lead prosecutor, Maj. Donald Plowman, who told the court he was duty-bound to level the charge.

The hearing officer, Lt. Col. William Pigott, agreed.

After being read his rights, Kraus told Pigott he wanted a lawyer and was then led out of the courtroom.

Plowman's action came after the lance corporal testified under oath that he did not have any recollection of meeting with him in August, nor any memory of telling Plowman during that session that a sworn statement that implicated Phan in the assault was accurate.

Plowman told the court that the meeting had taken place and was witnessed by co-prosecutor, Capt. Nicholas Gannon, and that Kraus had affirmed during the meeting that his statement implicating Phan was accurate.

Kraus had been called by Phan's defense team after providing them with a signed, sworn affidavit that contends his original statement prepared by an agent of the Naval Criminal Investigative Service contained falsehoods and that he never told the agent that he had any knowledge of Phan committing an assault.

He was the third of three enlisted Marines to make such statements in an ongoing Article 32 hearing for Phan that will determine whether the 26-year-old lieutenant and platoon leader will face court-martial.

Two other enlisted Marines have also testified that statements attributed to them by the Navy and Marine Corps' civilian law enforcement agency contained things they never said that implicate Phan.

Those two Marines were not threatened with criminal charges stemming from the statements they gave in Iraq last spring during an investigation into the slaying of a 52-year-old Iraqi civilian in the village of Hamdania.

The assault allegation against Phan was an outgrowth of the homicide probe, in which five of the eight men charged have entered guilty pleas in negotiated agreements with prosecutors.

Phan, who commanded the platoon members charged in the April 26 killing of Hashim Ibrahim Awad, was not present when that incident took place and is no way connected to the slaying.

But members of the squad charged in that case have made statements that Phan and others assaulted three Iraqis in March and April of last year, resulting the charge against Phan. He also faces a charge of making a false official statement in connection with one of the alleged assault victims.

After Kraus was led from the courtroom, Pigott told the attorneys that he may urge the convening authority over the case, Lt. Gen. James Mattis, to order an investigation to determine how it came to be that the lance corporal and the two other enlisted Marines made what are considered official statements in Iraq against Phan and then denied having said things contained in those statements.

The veracity of the Naval Criminal Investigative Service agents who took those statements has been made a centerpiece of the defense's case.

David Sheldon, Phan's lead attorney, contends the enlisted Marines had no motivation to lie and that the law enforcement agency cannot prove the statements it attributes to them are accurate because it does not routinely audio or videotape witness statements nor interrogations of criminal suspects.

Sheldon told Pigott that he believed the Naval Criminal Investigative Service agents also should have been cautioned before they testified.

"Each witness should be read their rights," he said. "One (either the enlisted Marines or the agents) is telling the truth and one is not ---- there should be an investigation."

Pigott was not entirely clear as to whether he will ask for an investigation of the agents.

"I will likely recommend an investigation into this whole matter," he said.

Phan's attorneys maintain the Sacramento-area native is innocent and that the prosecution has failed in the hearing to present sufficient evidence for Pigott to recommend a court-martial.

The hearing is continuing this afternoon and may stretch into Sunday before it is completed. When it is finished, Pigott will consider all the evidence and make a written recommendation to Mattis, who can order Phan to trial, dismiss the case entirely or take some form of an administrative action.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

[4woodenboats]

Good Morning all.

That brings me to my next questions

1) Did the prosecutor list himself and the co prosecutor as witnesses before the trial began?

2) As a witness, can the prosecutor be expected to objectively interrogate himself on the witness stand?

3) As both witnesses and prosecutors, Plowman and Gannon clearly have a direct conflict in this case, so isn't it about time they step down from their position as prosecutors in this case, and avail themselves to be the witnesses Plowman just claimed them to be, to testify under oath, under penalty of purjury?

(4) Don't military prosecutors, like their civilian counterparts, have to present a list of witnesses to the defense before trials begin?

I think Plowman just stepped in it big time.

[RedRover]

I agree with you about Major Plowman. My suspicion is that he's the liar, not Lance Cpl. Andrew Kraus

It's easy enough, from what I've seen, for JAGs to draw the curtain around a case. By the time the truth gets out about this matter, the public will have long moved on. And the whole story is already more confusing than most people can handle. So Major Plowman knows he's safe. All that is speculation, but it's my take.

I'm running out now, but you might be able to dig around and find more info about the nuts and bolts at the official USMC website: Iraq Investigation

[flightline]

(4) Don't military prosecutors, like their civilian counterparts, have to present a list of witnesses to the defense before trials begin?

To the best of my understanding, it is not like discovery out in the civilian courts, They do not have to disclose anything.

[flightline]

For the benefit of people Googling, two of the "missing" NCIS agents are: Aaron Bode and James Connolly.

And James Connoly has had several criminal complaints made against him for acts against a former Navy LTCOM.(ret) He also answers to a man named Ernie Simon in Washington, Simon is second in command of the NCIS investigations??? When you talk about cover up and or leaks, This man would know where they start from and who holds the key's to Pandora's box!!

[Just A Nobody]

make like ET and phone home

LOL!!!

[RedRover]

Hiya, flight! If you can think of anyway we can put the spotlight on Connolly, let me know. Freepmail to you.

[BigDingo]

How do you know all three agents are in Austrialia?

[smoothsailing]

I will be watching for a manufactured poll (spit) by the ENEMEDIA to prove the guilt of our Marines in the court of public opinion. Sick!!

I agree about the poll.Remember Sen. Webb using a Military Times poll in his rebuttal to the SOTU? The Military Times as we know is a left-wing rag published by Gannett Inc. and is not a military publication. I would expect the NCIS to try to run a phony poll there, with the help of Gannett.

See:

http://www.freerepublic.com/focus/f-news/1774909/posts

Particularly post 21 & 22.

[BigDingo]

Pardon, Australia.

[Girlene]

I think we're getting confused between the various Marines/cases/NCIS agents as to who goes with who. From what I can tell so far:

Lance Cpl Shumate - Pendleton 8 -S/A NCIS Agent Kelly Garbo and Kyle Casey (both testified at his article 32 on 9/12/06)
Lance Cpl Tyler Jackson - Pendleton 8 -S/A NCIS Agent Kelly Garbo (noted at Shumate's Article 32)

Lance Cpl Shumate - Assault Case on 4/10 - NCIS Senior Investigator James Connolly testified about DNA evidence taken from alleged victim and another Marine's (Hutchins)pants (at same article 32 hearing on 9/12/06)

ref. North County Times 9/12/06
http://www.nctimes.com/articles/2006/09/13/news/top_stories/3_02_209_12_06.txt

Lt. Nathan Phan - Assault Case on 4/10 - NCIS SA Kelly Garbo assisted in interrogation of Phan

ref. North County Times 1/12/07 http://www.northcountytimes.com/articles/2007/01/13/news/top_stories/21_40_141_12_07.txt

Lt. Nathan Phan/Lance Cpl Christopher Faulkner - Assault Case on 4/10 - NCIS SA Michael Austin testifies 1/26/07 at Phan's Hearing that his interrogations notes of Faulkner don't match official statement prepared by another agent Aaron Bode (whos is now in Australia)

Ref. North County Times 1/26/07
http://www.nctimes.com/articles/2007/01/26/news/top_stories/20_30_351_25_07.txt

and Ref. San Diego Tribune on 1/26/07
http://www.signonsandiego.com/news/military/20070126-1602-bn26phan.html

So it looks like only Aaron Bode can be confirmed as in Australia right now.

[RedRover]

Here's the background.

A couple weeks ago, David Sheldon, Lt Phan's civilian attorney, revealed that witness statements presented by the JAG prosecutors had been falsified. The NCIS agents who had prepared the statements were called upon to testify under oath.

Two weeks passed and the hearing resumed. The prosecutor had the audacity to claim that one NCIS agent who prepared the false statements, Aaron Bode, was on assignment in Australia and couldn't be reached.

We actually didn't hear why the other two agents couldn't make it. The reporting has been pretty spotty on details.

Lt Phan's hearing is scheduled to end today. So the agents will never testify under oath about falsifying evidence. But, in the same courtroom, an enlisted Marine was arrested for telling the truth on the witness stand.

I was joking about all three agents being in Australia. I have no reason to believe that the NCIS is telling the truth about anything, including that Aaron Bode is there.

[RedRover]

Thanks for the excellent summary, Girlene! See my post just above and post 112. According to the San Diego Union-Tribune:

Marine prosecutors said Bode was unavailable for comment while working in Australia. He was one of three unavailable NCIS agents whom Sheldon wanted to question on the stand.

If this report is accurate, who do you think suddenly was unavailable to testify: Bode, Garbo and...who? Kyle Casey? I brought up James Connolly because rumor had it he was involved.

[RedRover]

By the way, I kept meaning to post this.
We're focused on the villains in this case, but there are heroes as well.
So here's to...

David Sheldon, Esq (U.S. Navy, January 1991 to August 1994).
Attorney for 2nd Lt. Nathan Phan

The only e-mail I could find to send him a thank you is a general one at info@militarydefense.com.

[sailor4321]

Pics of the military defense counsel(s)?

[sailor4321]

Sounds like the "paperweight" just hit the prosecution right between the eyes: http://www.nctimes.com/articles/2007/01/28/news/top_stories/01_07_674_21_0.txt

[HANG THE EXPENSE]

The way I see it the major is trying to break the Code Of Honor between the real Marines.Remember the major is a lawyer first and is not part of the Code that the(real Marines) follow.Jmho

[jazusamo]

Sounds like the "paperweight" just hit the prosecution right between the eyes:

I believe you are correct. :-)

It also sounds like things got rather heated at the end of the hearing.

[lilycicero]

Thanks for posting Mr. Sheldon's picture. Now if we could only find a photo of the agents.

[sailor4321]

I imagine the prosecution is not happy with any of the further investigations, but particularly this one: "The other probe Pigott said he will recommend is an inquiry into whether any of the attorneys engaged in improper contact with any of the witnesses in violation of the rules that govern attorney conduct." The prosecutor has to worry about whether his meeting with the third enlisted witness was tantamount to coercion of a defense witness --- which I think would be improper even in the military justice system.

Also, I wouldn't worry too much about the "perjury" and "false statements" charges against the enlisted men as they were made without counsel and, I suspect, were made under duress.