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January 27th,
2007 - Witness for Marine Lieutenant Threatened with Criminal Charges News article by North County Times |
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Witness for Marine Lieutenant
Threatened with Criminal Charges By Mark Walker North County Times Saturday, January 27, 2007 1:40 PM PST 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. External link: http://www.nctimes.com/articles/2007/01/27/news/top_stories/12_06_654_21_06.txt Defense focuses on NCIS
conduct Navy probe of Iraq case is questioned By Rick Rogers San Diego Union-Tribune January 27, 2007 Tactics by the Naval
Criminal Investigative Service that some lawyers say are ripe for abuse will
be put on trial today if the defense team for 2nd Lt. Nathan P. Phan has its
way. The Camp Pendleton-based
Phan is charged with assaulting three detainees last April in Hamdaniya,
Iraq, and making a false official statement. But his attorneys contend that
NCIS agents fabricated several witnesses' statements to generate the
accusations against their client. “The NCIS claims to be a
professional law-enforcement organization, but it is not,” said Lt. Col.
Matthew Cord, one of Phan's attorneys. “The way the NCIS conducted this
investigation is well outside the mainstream of law enforcement.” Cord's comments punctuated a
long day of testimony at the pretrial hearing that will help Lt. Gen. James
Mattis decide whether Phan, 26, should face court-martial. Mattis is
commanding general of the 1st Marine Expeditionary Force at Camp Pendleton. Lt. Col. William N. Pigott
will preside over today's rare weekend court session on the base. He must
determine whether William Gaut, a former police officer and now a professor
of investigative practices, should testify. The Phan case has thrown a
spotlight on the NCIS policy of not taking statements from witnesses with an
audio and/or video recording. Instead, NCIS agents type up the statements
themselves and then ask their interviewees to sign those documents after each
paragraph and at the end of each page. “What (Gaut) will say is
that the NCIS is on the slow boat to China with respect to the manner it
takes its statements,” said David Sheldon, an attorney for Phan who exchanged
sharp words with Pigott and prosecutor Maj. Donald Ploughman. During yesterday's hearing,
the defense team's claims of shaky investigative work might have gained some
traction when an NCIS agent admitted errors in an official witness statement. Special Agent Mike Austin
testified that a statement prepared by fellow investigator Aaron Bode went
beyond what he heard during a June interview with Lance Cpl. Christopher J.
Faulkner. Austin recalled Faulkner
saying he saw someone choking a detainee, but that he didn't know who did the
choking. In the statement prepared by Bode, Faulkner was quoted as saying
that he saw Sgt. Lawrence Hutchins choking an Iraqi while Phan looked on. Phan was Hutchins' superior,
and both belonged to Kilo Company, 3rd Battalion, 5th Marine Regiment. Austin had no explanation
for the discrepancy. 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. The latest developments came
during the continuation of Phan's pretrial hearing, which was halted two
weeks ago so Pigott could assess the defense team's assertions about
fraudulent work by NCIS agents. In previous testimony, a
member of Phan's unit said beatings and chokings were used to punish
suspected insurgents and get information about their activities. He said the
assaults have yielded valuable tips, such as ones that led Marines to a
sniper and a kidnapping cell. Phan is the former platoon
leader of seven Marines and one sailor charged with abducting and executing
Hashim Ibrahim Awad last spring in Hamdaniya. Military investigators said
that while probing Awad's death, they found evidence that eventually led to
the case against Phan. External link:
http://www.signonsandiego.com/news/military/20070127-9999-7m27phan.html |