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The War Profiteers - War Crimes,
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January 12th,
2007 - Attorney Says Agents Made Up Assault Case Evidence |
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Attorney Says Agents Made Up
Assault Case Evidence By Mark Walker North County Times January 12, 2007 10:07 PM PST Camp Pendleton - A hearing
for a Marine officer accused of assaulting an Iraqi was halted Friday after a
defense attorney alleged that Naval Criminal Investigative Service agents
fabricated portions of statements that led to the charges against the
lieutenant. Attorney David Sheldon made
the assertion in a Camp Pendleton courtroom on the second day of an Article
32 hearing for 2nd Lt. Nathan Phan. The Sacramento-area native is charged
with assaulting three Iraqis and filing a false report in an incident that took
place on April 10 in Hamdania, Iraq. Sheldon's allegation
prompted the hearing officer, Lt. Col William Pigott, to order a halt to the
proceedings until the three government agents could be brought to court to
testify. "I want to hear from
these agents," Pigott said, ordering a recess in the hearing until an
as-yet-to-be determined date when all the parties can be present in the
courtroom. The development came during
the midpoint of testimony from Lance Cpl. Christopher Faulkner, a member of
the platoon that the 26-year-old Phan commanded in Iraq last year. Faulkner testified that a
statement the Marine Corps' Navy law enforcement agency attributed to him
contained falsehoods. The key inaccuracy, he said, was including language
that said he saw Phan placing an unloaded pistol into the mouth of one of the
alleged victims. In fact, Faulkner testified, he never saw that occur and
never told agents that it had. Phan's defense team also
introduced a signed affidavit from Faulkner stating that he merely saw Phan
in a room with a detainee and that the lieutenant was leaning against a wall
as the men were being questioned. During a break in the
hearing, Sheldon approached Pigott and said he had reason to believe the
government agents were lying. "We believe in good
faith that there has been misconduct on the part of NCIS agents,"
Sheldon said. He added that when the agents take the stand, he wants the
hearing officer to read them their constitutional rights when they are sworn
in, suggesting they may have committed criminal misconduct in preparation of
the statements that the government is using against Phan. Those statements were taken
from several members of a Kilo Company platoon that Phan commanded in
Hamdania. The assault case was lodged against Phan as a result of the
investigation into the shooting death of a retired Iraqi police officer on
April 26. Sheldon said that in addition to Faulkner's statements, those of
two other Marines contain falsehoods, and that they have filed signed
affidavits to that effect. "It's hard to believe
that three unrelated Marines who have no relation to Lt. Phan or the alleged
misconduct would fabricate this kind of allegation," Sheldon said. Phan is not accused of
having any role in the homicide case, which has led to guilty pleas from
three Camp Pendleton Marines and the Navy corpsman from the platoon attached
to 3rd Battalion, 5th Marine Regiment. Four other Marines are awaiting
courts-martial in the case. During his testimony,
Faulkner said the original statement he signed was typed by Naval Criminal
Investigative Service agents who came to him several days after it was made
and asked that he sign it. Faulkner, who is not accused of any wrongdoing,
said he was on guard duty at the time and only had a few minutes to review
the document and never read all of its contents. Under questioning from Maj.
Donald Plowman, the lead prosecutor in the Phan case, Faulkner said his
amended version was given to Phan's attorneys in November and represented the
truth of what he knew. Sheldon told the court that
he intends to call two other Marines who will testify that their statements
prepared by the Naval Criminal Investigative Service agents also contained
information, damaging to Phan, that they will say they never told the agents. Two of those agents are in
Georgia and one is in North Carolina and were not available to testify
Friday. An agent who did testify,
Kelly Garbo, told the court that she assisted in the interrogation of Phan in
Iraq in May and that the Navy and Marine Corps' law enforcement agency never
puts falsehoods in the official statements it provides prosecutors. But Garbo also said when
asked by Sheldon that she had never read her agency's manual on how to
conduct interrogations. That statement, along with
the defense's assertion that agents fabricated part of the statements being
used against Phan, are serious enough to warrant the appointment of a special
counsel to look at how the agency does its job, Sheldon said after the
hearing. "This raises the
specter of serious misconduct," Sheldon said. On Thursday, two Marines
testified that they took part in beating one of the men Phan is accused of
assaulting, but said the lieutenant wasn't in the home where that incident
took place. Lance Cpl. Saul Lopezromo,
who was granted immunity from prosecution in exchange for his testimony, and
Pvt. Jerry Shumate Jr. said Phan was sitting in a Humvee parked about 200
yards away from the home of the beating victim. Marine Corps officials on
Thursday said that victim, a former Iraqi intelligence officer named Khalid
Hamad Daham, is one of four Iraqis that the government is attempting to bring
to Camp Pendleton to testify in the Hamdania assault and homicide cases. There are four remaining
defendants in the homicide case, including two men charged along with Phan in
the assault case, Sgt. Lawrence Hutchins III and Cpl. Trent Thomas. Besides assault, Phan also
is charged with making a false statement, an allegation that contends he
reported to his commanders that one of the alleged assault victims had been
released from custody when in fact he had not. Sheldon said the government
has failed to produce any evidence supporting that charge. If convicted of the charges
he faces today, Phan could be sentenced to as much as 28 years in prison and
a dishonorable discharge. When the hearing concludes, Pigott will issue a
recommendation to Lt. Gen. James N. Mattis, commander of the I Marine
Expeditionary Force, as to whether he believes Phan should be court-martialed. External link: http://www.nctimes.com/articles/2007/01/13/news/top_stories/21_40_141_12_07.txt |