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December 2nd, 2006 - Shorter Sentences Handed Down in Criminal Cases Arising out of Iraq
By Teri Figueroa
North County Times
Saturday, December 2, 2006 11:16 PM PST
U.S. service members convicted of unlawful killings of civilians in Iraq and Afghanistan are receiving far shorter sentences than those handed down for similar crimes committed by troops during the Vietnam War, according to a military justice expert.
At least 21 American troops have been convicted of various offenses in cases linked to the deaths of Iraqi civilians since 2003, but the vast majority are receiving light sentences, with some getting no jail time at all, according to a recent analysis by Gary Solis, a retired Marine legal officer who now teaches military law at Georgetown University.
The sentences seem out of sync with those seen by Marines convicted of killing Vietnamese noncombatants, said Solis, who penned the Marine Corps' official history of military justice in the Vietnam War. Of the 27 Marines who were convicted of unlawfully killing Vietnamese civilians, 15 were handed life sentences. An additional three Marines got sentences of more than 20 years, and two others were sentenced to 10 years.
The longest sentence served by any of those Marines convicted was 12 years and one month, according to Solis' research.
In the Army, 95 soldiers were convicted of killing Vietnamese civilians. Although Solis has not studied the sentences handed down by the Army for crimes in Vietnam, he said he expects those sentences were similar to the Marine Corps.
The trend of shorter sentences in the cases of those whose convictions are linked to deaths of Iraqis seems to ring true for four locally based troops who have pleaded guilty to crimes arising from the death of Hashim Ibrahim Awad in the village of Hamdania earlier this year, Solis said.
A second Camp Pendleton unit is under investigation for the deaths of 24 civilians in the city of Haditha in November 2005. Officials have yet to announce whether any will be charged.
A killing, Solis said, usually means a significant jail sentence. But that's not what is occurring this time around.
"I complain about sentences, but yet how can one who doesn't hear all the evidence say the jury reached the wrong conclusion?" Solis said during a recent telephone interview. "But I've been a court-martial prosecutor and a court-martial judge and a convening authority, and I know what a case is worth. And if you find somebody guilty of murder, somebody should be going to jail. It's difficult to criticize. At the same time, long experience tells me there is something to criticize."
Under the military justice system, sentences are determined by a judge, usually a colonel, who presides over the case, or by a vote of the jury if a defendant opts to have the case heard by a panel.
Apparent inequalities in sentences
Solis wrote a commentary in the October 2006 issue of Proceedings magazine for the independent Naval Institute in which he highlighted apparent inequalities in the sentences handed down in Vietnam cases and those arising out of Iraq and Afghanistan, according to his analysis.
Solis pointed to a number of cases in which the sentences didn't appear commensurate with the crime. Take, he said, the court-martial of Army Pfc. Willie Brand, who was charged with assault, maltreatment and maiming of a prisoner in Afghanistan. The victim was found beaten to death in his cell, his hands chained over his head. Brand was convicted of all charges. His punishment was a reduction in rank to private and no jail time.
In the more than 3 1/2 years since the start of the Iraq war, four Iraqi deaths have led to criminal charges levied against Marines.
Prosecutions arising from two of those four deaths, including the Hamdania case, landed in Camp Pendleton courtrooms.
In 2004, a jury of Marine Corps officers found Maj. Clarke Paulus guilty of maltreatment and dereliction of duty in connection with the death of an Iraqi prisoner, but acquitted him of the most serious charge of assault and battery. Paulus, who ran the Iraqi detention camp, was dismissed from the Marine Corps but received no jail time.
There is also the case of 2nd Lt. Ilario Pantano, a former Marine accused and eventually exonerated of two counts of premeditated murder in Iraq in 2004 during a hearing at the Marine Corps base at Camp Lejeune, N.C.
Most recent is the Hamdania case, in which eight Camp Pendleton troops were jailed in May and charged a month later with kidnapping, murder, conspiracy and other offenses in the death of the 52-year-old Awad.
Prosecutors said the men plotted to kidnap and kill a man they believed to be an insurgent, then stage the killing scene and lie to investigators. And when they could not find the man they were looking for, they snatched Awad from a nearby home and stuck to the rest of the plan, prosecutors allege.
The first one to reach a plea agreement was Navy corpsman Melson Bacos, who on Oct. 6 pleaded guilty to kidnapping and conspiracy to kidnap and making false official statements, in exchange for 12 months in the brig with credit for time served since May 24.
The military judge presiding over Bacos' case was stuck with the deal Bacos reached with prosecutors and had to set aside the 10-year prison sentence and dishonorable discharge he wanted to hand down.
Although the sentences and the deals changed a bit, it was a scenario that would quickly play out three more times in the Awad killing.
The next man to plead, Encinitas native Pfc. John Jodka III, pleaded guilty to aggravated assault and conspiracy to obstruct justice. The military judge's sentence of five years and a dishonorable discharge was set aside in favor of the plea deal, in which Jodka will serve 18 months in the brig.
When Lance Cpls. Jerry Shumate and Tyler Jackson struck their plea deals, they each admitted to charges related to assault and obstruction of justice. Each man got 21 months, with the judges in their cases also setting aside the sentences they wanted to hand down, which were dishonorable discharges and eight and nine years in prison, respectively.
All four men also agreed to testify against the remaining defendants, most of whom are of slightly higher rank.
The plea deals struck by the four junior men came with the approval of the commanding authority, in this case, Lt. Gen. James N. Mattis.
As is standard, the terms of the deals were kept secret until after the judge reviewed the case and decided on a sentence. The deal was then revealed, and the defendants received the lesser of the two punishments, which, in the case of Hamdania, were the deals reached with Mattis' approval.
Statistics as to how often criminal cases in the military end with a plea deal were not immediately available from military officials.
In the Hamdania case, Solis said last week, the relatively light sentences underscore the fact that lesser sentences are being meted out for crimes committed in Iraq.
"The judges in those cases thought they were worth (a number of) years, but the commanding authority gave sentences of a lesser duration or length," he said.
Bad acts ‘stand out’
Eugene Fidell, who teaches at American University's Washington College of Law and specializes in military law, said Solis' findings were "not a surprise, but (it was) helpful to see it assembled."
"And by the way, we don't know yet what the next phase is going to be," Fidell said. "Even the cases that have already been tried are only now beginning to stick a toe into the appellate process. Some things may well be overturned entirely."
In military courts, sentences that include more than a year of confinement are automatically reviewed by the Court of Military Appeals.
Asked his thoughts on seeing the number of criminal cases arising out of the homicides of Iraqis, Fidell said: "One case is one too many, everybody agrees on that.
"A certain amount of misconduct is inevitable. My own conviction is that our military forces are quite well-behaved," Fidell said. "We have a highly disciplined force, and that's what makes indiscipline stand out so much.
"It tells me that it's a terrible and challenging task that has been assigned to our personnel. I have no doubt that the environment in Iraq is unlike anything we've seen before, including Vietnam. It's more like 'Road Warrior.' It is an environment of armed chaos, armed anarchy."
But, he said, that's "not a reason to throw a law book out the window. It really doesn't get us off the hook in terms of our responsibility."
The criminal charges may be affecting the troops on the ground "in a number of different ways," said Paul Reickhoff, executive director of the group Iraq and Afghanistan Veterans of America.
"It's a good thing and a bad thing," said Reickhoff, who served as an Army first lieutenant in Iraq. "It plants a seed of doubt, causes them to think a little harder, wait a little longer to pull the trigger."
Kathleen Duignan at the National Institute of Military Justice called the question of disparate sentences "a tough one" and said that military justice hasn't had this level of widespread scrutiny since Vietnam.
"Nobody started drawing conclusions about Vietnam until the war was over and the cases were wrapped up," she said. "I think that after this settles down, you may find more people trying to make comparisons and analyze why you have certain offenses being charged one way or another. Right now, because we are in the thick of things, it's difficult."
Gary Myers is a veteran attorney of military trials in both wars. He was among those who represented accused Capt. Ernest Medina in the infamous My Lai massacre of hundreds of Vietnamese villagers, and he also served as counsel for Sgt. Ivan "Chip" Frederick in Iraq's Abu Ghraib detainee abuse cases. Frederick pleaded guilty to abuse charges and received an eight-year sentence.
Myers, who also represents Lance Cpl. Justin Sharratt, one of the enlisted Camp Pendleton troops under investigation in the Haditha case, said he believes the juries in the Iraqi cases are "basically excusing conduct that we would otherwise find reprehensible."
"It's very clear on the face that the sentences in the abuse cases to date have resulted in dramatically light sentences," Myers said in a telephone interview from his office in Virginia last week. "Not only is there not a sentence, often there isn't prosecution.
"My thinking is that even if one concludes that Vietnam was an ignoble war, I believe the U.S. Army was a noble institution, and I think the My Lai trials and all the other points Solis makes reflect that fact."
In the My Lai case, Myers' client, Medina, was found not guilty. The ringleader in the incident, Lt. William Calley, was convicted and sentenced to life in prison, but soon ended up on only house arrest, then saw his sentence repeatedly reduced and commuted to time served by President Richard Nixon. Calley was paroled after serving 3 1/2 years.
Myers said the My Lai incident was more about "aberrant behavior" among the soldiers, and that the Haditha case is more about policy and rules of engagement.
The Haditha case also has a companion investigation into the actions of Marine commanders in pursuing an investigation following the initial reports of what happened that day.
Criminal charges are considered much more questionable in Haditha, since the incident began after one of the platoon's members was killed in a roadside bomb explosion as its convoy passed through the city. The Marines there that day say they were pursing insurgents who fired at them after the explosion, entering four homes during which the 24 people were killed.
"I think that today, there is a sense of 'bad things happen in war' and the responsibility for those bad things does not necessarily lie with the individual soldier, but part of it starts at the top," Myers said. "When you have a president declaring that the Geneva Conventions should be marginalized through the Justice Department, the attitude becomes that we have a sense of entitlement to do whatever we think is necessary in our self-interests."
North County Times
Sunday, December 3, 2006 8:10 AM PST
- Staff Sgt. Cardenas J. Alban, convicted of killing a severely wounded 16-year-old Iraqi during fighting in Baghdad's Sadr City. He was sentenced to one year's confinement, demoted to private and given a bad-conduct discharge.
- Staff Sgt. Johnny Horne Jr., pleaded guilty to unpremeditated murder in the same case as Alban. He was sentenced to three years in prison, had his rank reduced to private, forfeited wages and was given a dishonorable discharge. His prison sentence was later reduced to one year to be consistent with Alban's case.
- Cpl. Dustin Berg of the Indiana National Guard, convicted and sentenced to serve 18 months in prison and a bad-conduct discharge for the shooting death of an Iraqi police officer.
- Spc. Rami Dajani, convicted of involuntary manslaughter (accessory after the fact) and making a false statement following the fatal shooting of an Iraqi translator. He was sentenced to 18 months in confinement, reduced in rank to private and given a bad-conduct discharge.
- Spc. Charley L. Hooser, convicted of involuntary manslaughter in the same case involving Dajani. Hooser was sentenced to three years in prison and given a reduction in rank to private and a bad-conduct discharge.
- Capt. Rogelio "Roger" Maynulet, convicted of assault with intent to commit voluntary manslaughter in the shooting death of a wounded Iraqi. He got no prison time, but was dismissed from the armed forces.
- Pvt. Federico Daniel Merida of the North Carolina National Guard, pleaded guilty to killing a 17-year-old Iraqi soldier after the two had consensual sex. He was sentenced to 25 years in prison, reduced in rank to private and dishonorably discharged.
- Marine Maj. Clarke Paulus, convicted of dereliction of duty and maltreatment in a case stemming from the death of an Iraqi prisoner who was dragged out of his holding cell by the neck, stripped naked and left outside for seven hours in 2003. Paulus, who commanded a Marine detention camp in Iraq, was dismissed from the service but received no prison time.
- Sgt. 1st Class Tracy Perkins, acquitted of involuntary manslaughter in the alleged drowning of an Iraqi man, but convicted of assault for forcing the man and his cousin into the Tigris River. He was sentenced to six months in prison, reduced in rank and had to forfeit $2,000.
- 1st Lt. Jack Saville, pleaded guilty to assault and other crimes in the same incident as Perkins and was sentenced to 45 days in prison, and had to forfeit $2,000 for six months.
- Pfc. Edward Richmond, convicted of voluntary manslaughter for shooting an Iraqi in the back of the head. He received three years in prison, had to forfeit all pay, and was dishonorably discharged.
- Sgt. Michael P. Williams, convicted of one premeditated murder and unpremeditated murder in the deaths of unarmed civilians during operations near Sadr City. He was sentenced to life in prison and given a reduction in rank and a dishonorable discharge. His sentence was later reduced to 25 years.
- Spc. Brent May, convicted of unpremeditated murder in the same incident as Williams. He was sentenced to five years and dishonorably discharged.
- Chief Warrant Officer Lewis Welshofer of the 3rd Armored Cavalry Regiment, found guilty of negligent homicide and negligent dereliction of duty in the death of Iraqi Maj. Gen. Abed Hamed Mowhoush after interrogation at a detention camp. A military jury ordered a reprimand and forfeiture of $6,000 of his salary, and restricted him to his home, office and church for two months.
Chief Warrant Officer Jefferson L. Williams, Sgt. 1st Class William Sommer and Spc. Jerry Loper were charged with murder and dereliction of duty along with Welshofer. The Army dropped the murder charges against Williams and Loper in exchange for their testimony against Welshofer. The murder charge against Sommer was also dropped. Williams, Sommer and Loper received administrative punishment.
- Jorge Diaz, convicted of murdering an Iraqi man, who Diaz fatally shot while the man's hands were cuffed. Diaz was sentenced to seven years in prison, reduced in rank to private and given a dishonorable discharge.
- Spc. James P. Barker, one of four Fort Campbell soldiers accused in the rape of a 14-year-old Iraqi girl and the killing of her and her family, pleaded guilty and was sentenced to 90 years in prison.
- National Guard Sgt. Milton Ortiz Jr. was charged in the shooting death of an unarmed Iraqi man near Ramadi. He was reduced in rank to specialist after pleading guilty to conspiracy to obstruct justice by placing a rifle near a mortally wounded Iraqi, and also threatening and assaulting an Iraqi in an unrelated incident.
- Petty Officer Melson J. Bacos pleaded guilty to kidnapping and conspiracy to kidnap and making false official statements in the shooting death of an Iraqi man in Hamdania. Under his plea deal, Bacos received 12 months in the brig.
- Pfc. John J. Jodka III pleaded guilty to aggravated assault and conspiracy to obstruct justice in the same case as Bacos. Jodka was sentenced to 18 months confinement.
- Lance Cpl. Jerry E. Shumate, Jr. pleaded guilty to aggravated assault and obstruction of justice in the same case as Jodka and Bacos and was sentenced to 21 months.
- Lance Cpl. Tyler A. Jackson pleaded guilty to aggravated assault and obstruction of justice in the same case as Shumate, Jodka and Bacos. Jackson was sentenced to 21 months.
Cleared or acquitted:
- Marine 2nd Lt. Ilario Pantano, cleared of murder charges in the shooting deaths of two Iraqi civilians. Pantano had been accused of riddling the two with bullets and hanging a warning sign on their corpses as a grisly example to insurgents.
- Staff Sgt. Shane Werst, acquitted of premeditated murder in the shooting death of an unarmed Iraqi. Werst said he fired to save a fellow soldier.
- National Guard Spc. Nathan B. Lynn, who was charged along with Sgt. Milton Ortiz, was cleared in the shooting death of an unarmed Iraqi man near Ramadi. He had faced a voluntary manslaughter charge.
- Sgt. Lawrence G. Hutchins III, Cpls. Marshall L. Magincalda and Trent D. Thomas, and Lance Cpl. Robert B. Pennington, are charged with premeditated murder in the shooting death of an Iraqi man in Hamdania, the same case in which Bacos, Jodka, Shumate and Jackson were charged. In addition to murder, the four remaining defendants are also charged with kidnapping, conspiracy and other offenses.
- Pfc. Corey R. Clagett, Spc. Juston R. Graber, Staff Sgt. Raymond L. Girouard and Spc. William B. Hunsaker are charged with the premeditated murder of three male detainees. Clagett, Girouard and Hunsaker are also charged with obstructing justice for allegedly threatening to kill another soldier who was a witness in the case.
- Sgt. Paul E. Cortez, Pfc. Jesse V. Spielman and Pfc. Bryan L. Howard are accused in the rape of a 14-year-old Iraqi girl and the killing of her and her family, the same case in which co-defendant Barker pleaded guilty. The cases of the three men have been referred to courts-martial. A fifth man, accused ringleader former Pvt. Steven Green, 21, has pleaded not guilty to civilian charges including murder and sexual assault.