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January 28th,
2007 - Iraq Assault Hearing Ends with Shouting Match News article by the Associated Press |
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Iraq Assault Hearing Ends
with Shouting Match Associated Press 7:18 p.m. January 28, 2007 Camp Pendleton - A military
hearing for a Marine accused of assaulting three Iraqis ended Sunday with a
shouting match between a civilian defense attorney and the investigating
officer overseeing the proceedings. The Article 32 hearing was
to determine whether 2nd Lt. Nathan Phan, 26, should be court-martialed for
the attacks last April 10 near Hamdania. He is also charged with making a
false official statement. After investigating officer
Lt. Col. William Pigott announced the hearing was over, defense attorney
David Sheldon stood up and asked to add something to the record. Pigott
ordered him to sit down and said: “This hearing is closed.” Sheldon would not quiet down
and the two got into a verbal confrontation, with Pigott shouting: “Don't
threaten me, don't swear at me – we're done.” Military prosecutors and
defense attorneys already had finished their closing arguments. Prosecutor Maj. Donald
Plowman said Phan ordered other military personnel to torture detainees,
citing sworn statements from Sgt. Lawrence Hutchins III that “Lt. Phan was
the brains, I was the muscle.” Plowman said Hutchins
claimed Phan did all the talking and threatening – and occasionally “smacked”
a detainee. Military defense lawyer Lt.
Col. Matthew Cord said Phan could not get a fair trial because two of the
three Iraqis who allegedly were assaulted won't be available to testify if
Phan is court-martialed. Cord called the government's
case “troubling,” especially because so much credence had been given to
Hutchins. Cord said the government had called Hutchins a murderer and liar
except when favorable to its case. The lawyer said the
government didn't come close to proving its case against Phan. “He deserves a medal –
they're trying to put a knife in his back,” Cord said. External link: http://www.signonsandiego.com/news/military/20070128-1918-ca-marines-iraqassault.html Attorney: Accused Marine
lieutenant is really a ‘hero’ By Mark Walker North County Times January 28, 2007 2:22 PM PST Camp Pendleton - A Marine
officer accused of assaulting three Iraqi civilians last spring is really a
hero, a hearing officer was told Sunday. "You have a young officer
sitting at our end of the table who was trying to protect his Marines,"
defense attorney Lt. Col. Matthew Cord said at the conclusion of a hearing
that will determine if 2nd Lt. Nathan Phan is ordered to court-martial.
"He deserves a medal and they're trying to put a knife in his
back." Cord's comments came as the
hearing for the 26-year-old Phan ended with the presiding officer, Lt. Col.
William Pigott, saying he plans to recommend two investigations stemming from
testimony that emerged during Phan's four-day Article 32 hearing. Phan, a Kilo Company platoon
commander from the 3rd Battalion, 5th Marine Regiment, is charged with
assaulting the three Iraqis in March and April during efforts to obtain
information about insurgent activity in and around the Anbar province village
of Hamdania in western Iraq. He also is accused of making a false official
statement in connection with one of the alleged victims. Pigott said he will ask Lt.
Gen. James N. Mattis to order a formal inquiry into possible perjury and
false official statements by three enlisted Marines who were in Iraq with
Phan and were called as witnesses by his attorneys. The enlisted men claimed
that sworn statements generated by Naval Criminal Investigative Service
agents contained falsehoods in passages that say the men saw Phan commit an
assault. Each later provided Phan's attorneys with affidavits that swear the
government statements were inaccurate. One of the enlisted men,
Lance Cpl. Andrew Kraus, was ordered to stop testifying on Saturday, read his
legal rights and informed he may be charged with perjury and making a false
statement. As part of the probe into
the statement issue, Pigott said he also will ask Mattis to examine how the
statements were prepared by the Naval Criminal Investigative Service, a
civilian-staffed branch of the Department of the Navy that serves as its law
enforcement agency. Mattis is the convening authority over the Phan case as
the commanding general of Marine Corps Forces Central Command and Camp
Pendleton's I Marine Expeditionary Force. 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. Phan's lead attorney, David
Sheldon, said after Sunday's court session that he believes the
investigations are necessary. "Someone is lying and
we have to find out who," said Sheldon, who also said he believes that
Pigott will recommend that Phan, a Sacramento-area native, be ordered to
court-martial. A heated exchange between
Pigott, the top legal officer at the Marine Corps base in Yuma, Ariz., and
Sheldon capped the conclusion of the hearing. Sheldon attempted to ask Pigott
to reconsider whether evidence the Marine Corps says is classified should be
made part of the official record. Pigott responded by saying
the hearing was officially closed. When Sheldon attempted to interject,
Pigott screamed that the hearing was closed and that the attorney should sit
down and stay quiet. As Phan looked on with a
worried expression, Sheldon muttered the ruling was "bullshit,"
prompting Pigott to say, "Did you just threaten me?" and
"Don't swear at me." Those moments nearly
overshadowed the comment on the evidence that Lt. Col. Cord made on behalf of
Phan during concluding remarks. Cord maintained that the
prosecution conducted by Maj. Donald Plowman and Capt. Nicholas Gannon was
relying on a "murderer and inveterate liar," a reference to Sgt.
Lawrence Hutchins III, a member of Phan's platoon who is charged with
concocting a plot that led to the April 26 slaying of a retired Iraqi
policeman in Hamdania. Phan has no connection to
the slaying, but the investigation of that incident led to the charges
brought against him that could result in a more than 20-year prison sentence
and dishonorable discharge if he is ordered to trial, convicted and sentenced
to the maximum punishment. Four Marines and a Navy
medical corpsman charged in the slaying have pleaded guilty in negotiated
deals with prosecutors and are serving jail terms ranging from 12 to 21 months.
Hutchins, the squad leader, and two corporals face trials later this year for
their alleged roles in the killing. Cord pointed out that
Hutchins was never called to testify and that two of the prosecution
witnesses against Phan were men who have pleaded guilty in the homicide case
and had motivation to testify the way the government wanted. He also contended there was
no evidence that Phan was in the room when one of the alleged assault victims
was beaten. The two other alleged victims are unavailable, he said. One is
dead and the other refuses to cooperate with U.S. authorities. Addressing the false
official statement charge, Cord said that uncontested radio logs from Phan's
command center in Iraq show he reported having a detainee in custody. That charge
alleges Phan reported the detainee had been released when prosecutors charge
that man was actually still in custody. Phan, who did not testify
during the hearing, acknowledged in a written statement introducing during
the hearing that he had placed an unloaded pistol near the lips of one
detainee, an act that Cord contended does not satisfy the required elements
of the assault charge. The prosecution told Pigott
it had met its burden in establishing there was sufficient probable cause to
believe Phan had committed unlawful acts and should be ordered to trial. Prosecutor Plowman pointed
to a written statement from Hutchins in which the sergeant wrote that Phan
"was the brains and I was the brawn" and that the lieutenant either
directly participated in or had knowledge of the three assaults. "The bottom line is Lt.
Phan was not allowed to use physical force or threats against
detainees," Plowman said. The failure of the Naval
Criminal Investigative Service to tape its witness interviews and suspect interrogations
in Iraq as a matter of policy is insufficient cause to not believe its
agents, Plowman said. That issue has been at the
center of Phan's defense throughout the hearing and that taping policy is now
under review by agency officials at its headquarters in Washington. Sheldon said statements made
by Pigott on Saturday and Sunday that he believed the government agents were
truthful was improper. "I've never before seen
an investigative officer comment on what he believes is the truthfulness of a
witness during a hearing," the Washington attorney and U.S. Navy veteran
said. "It's unprecedented." Pigott will make a written
recommendation to Mattis sometime next month. Under the Uniform Code of
Military Justice that governs prosecutions of service members, the general
has wide latitude in deciding whether to order Phan to trial, dismiss the
case or results or take some form of an administrative action. External link: http://www.nctimes.com/articles/2007/01/28/news/top_stories/01_07_674_21_0.txt |