Posted on 05/08/2007 3:56:43 AM PDT by RedRover
CAMP PENDLETON -- A Marine general's top aide is refusing to testify at a hearing that begins today to determine if an additional officer should stand trial for failing to fully investigate the killing of two dozen Iraqi civilians in Haditha.
The aide, Col. R. Gary Sokoloski, is invoking his 5th Amendment privilege that allows people to refuse to testify in court proceedings on the grounds that what they say could incriminate them.
Sokoloski is a lawyer who served as chief of staff for Maj. Gen. Richard Huck, who was in Iraq and in charge of Marine ground forces when the civilians were killed Nov. 19, 2005.
Charles Gittins, an attorney for Capt. Randy Stone, one of seven Camp Pendleton-based men charged with wrongdoing arising out of the Haditha killings, said he learned Monday that Sokoloski was refusing to testify.
It was Sokoloski who approved an initial news release about the killings that investigators subsequently said was "intentionally inaccurate" because it said the civilians had been killed by an insurgent bomb and not at the hands of the Marines.
Huck is expected to testify by videoconference on Wednesday from the Pentagon where he is now working in a planning position.
Another key witness in the case, Lt. William Kallop, will testify this morning during the first day of Stone's hearing. Kallop's testimony comes today because he is headed back to Iraq shortly.
Kallop is the officer who ordered a squad of Marines to assault a series of homes where 19 of the 24 people were killed. He was being deposed by attorneys for several of the defendants at the base Monday.
Kallop has been granted testimonial immunity, meaning anything he tells the attorneys cannot later be used to prosecute him for any crime. He is headed back to Iraq within a matter of days, although base officials could not immediately say when he will leave.
Kallop's deployment, as well as that of two or more other officers listed as witnesses in the Haditha case, is troublesome for some defense attorneys.
One of their concerns is that Kallop, who is considered a crucial witness for three enlisted defendants, may not be available to testify in person should those men be ordered to court-martial. The men are accused of homicide and could face life in prison if convicted.
"Live testimony and cross examination before a panel of military members could be a lot different than having someone testify by telephone," said Joseph Casas, a San Diego attorney assisting in the defense of 1st Lt. Andrew Grayson. "We want live testimony."
Another, more macabre, concern is how the cases could be affected if Kallop or any of the other witnesses were wounded or killed in Iraq.
A defense attorney who asked not to be named said that given the high-profile nature of the Haditha case and the seriousness of the charges, he believes all the witnesses should be kept close at hand.
"You would think these witnesses would be assigned to Camp Pendleton to assure their availability until all the cases are over," the attorney said. "The question is why is Lt. Gen. (James) Mattis allowing this handful to be deployed?"
Mattis is the convening authority over the case as head of Marine Corps forces in the Middle East.
Stone, along with Grayson, Capt. Lucas McConnell and Lt. Col. Jeffrey Chessani, is accused of dereliction of duty for allegedly failing to properly investigate the Haditha killings.
The enlisted men, Staff Sgt. Frank Wuterich and Lance Cpls. Stephen Tatum and Justin Sharratt, face homicide charges for the actual killings and the possibility of life in prison if convicted.
At issue for the enlisted men is whether they committed a war crime by violating the military's rules of engagement in the killing of the civilians after their convoy was attacked by a roadside bomb and small arms fire.
At issue for the officers is whether they willfully failed to ensure that an alleged violation of the law of war was fully investigated and accurately reported. All the defendants are from Camp Pendleton's 3rd Battalion, 1st Marine Regiment and each maintains they did nothing wrong.
Kallop's role in the incident came about as a member of a quick reaction force that responded to the bombing. After arriving and being told the Marines also were coming under small arms fire from a group of nearby homes, he reportedly gave Wuterich the go-ahead to storm the homes, according to a Naval Criminal Investigative Service account of the events.
Wuterich's lead attorney, Neal Puckett of Washington, D.C., said Monday that he was not as worried as some about Kallop's return to Iraq.
"I believe that if we go to trial before his scheduled rotation back to the U.S. that the Marine Corps will make sure he is available to testify in person," Puckett said. "I don't have any more concern for his safety than I do for any other Marine or soldier in Iraq."
Brian Rooney, an attorney for Chessani, said he knows of at least one other officer who has been granted immunity to testify who is now at sea as part of the 13th Marine Expeditionary Unit based at Camp Pendleton.
Based on past experience, it's widely assumed those Marines will wind up in Iraq.
"We requested that some be held back but if not that we at least be able to depose them before they left," Rooney said. "We are concerned, God forbid, that anything should happen to them."
But as a former Marine officer who also has served in Iraq, Rooney said he also completely understands why the witnesses are once again being placed in harm's way.
"We are fighting a war and we need these guys who have experience over there," Rooney said.
Stone's hearing is expected to last through Friday and will help determine whether the 34-year-old Maryland native is ordered to court-martial. Chessani's case is scheduled to start May 30.
Maj. Thomas McCann, the hearing officer assigned to Stone's case, is an assistant legal affairs officer at Miramar Marine Corps Air Station who recently returned from Iraq where he served as part of the staff for the 3rd Marine Aircraft Wing.
Your theory carries even more weight with the release of the “Pentagon Survey” that most soldiers would not report another soldier for killing a civilian (I think I’m paraphrasing the report correctly). Remember Lt. Watada is using the “disobeying an illegal order” excuse.
I’m seeing an even more disturbing pattern here and more evidence that the Haditha investigation is simply one step in a multi-prong approach to cutting /running.
It was a looney comparison, but Murtha just continues to show his hand as being absolutely committed to a return to something like the Cold War.
BTW, on a related note, theres this in todays North County Times: U.S. commander in Iraq 'greatly concerned' by report on combat ethics, promises new effort.
I couldn't believe what I was looking at when I saw Petreaus on TV expressing his concern for the low percentage that would report a fellow soldier for killing a civilian.
Yes, the precident that could be set with these hearings is quite disturbing. I think some of this rhetoric in the Napa Valley Register is to counter the defense tactics being used by Charles Gittins for his client. The defense attorney essentially is saying his client investigated, reported up the chain of command, was told no further investigation was needed. He followed those orders. The prosecution is saying no matter what your command says, you may need to ignore them. You may be charged if it becomes a political problem, the higher-ups may not. It’s a bunch of hooey, as far as I’m concerned.
Why has the president remained silent about this, as he has Ramos and Compean? The president is responsible for Marines being in Iraq. The president is responsible for our open borders. These men, here or in Iraq, were doing their jobs as ordered by the Commander in Chief. Why hasn’t he pardoned or exonerated all ten of them?
I told my hubby last night that I would like to see the full text of the questions they asked. We all know how one little word can change the whole meaning of a poll question and elicit the response you’re digging for.
I did hear a slogan this AM from our local talk radio host - The Media Lied and Soldiers Died.
I’m going to start using that as my tag line.
I would surely love to see that paper trail.
Red:
I accidentally posted what was intended as a reply to this thread as a private reply to you.
Sorry sir. That was not meant for you personally.
No problem, Grimmy. Usually when I hit the wrong button, I do the opposite and post a private reply in public. Now, that can be dangerous!
Post yours again here, if you want.
I’m not that tech smart, I guess. I dont know how to pull up a copy of what I sent. You can post it if you feel its appropriate. I was in a less than gentle mood when I wrote it and didnt try to bury any meaning in my usual adherence to PC snot-gobblerisms.
Yep, we’ve all heard examples of poll results that don’t make a ton of sense until the full background of how the question was asked gets explained. Either way, a yes/no on a poll question doesn’t fully explain what entered the reasoning behind a yes/no answer. These are too serious of issues to be so simply reported.
Notice they keep refering to the dead insurgents as civilians. These were all insurgents. Insurgents come in both sexes and all ages.
From the mouth of the insurgent testifiers, they knew where the IED was planted and what time it was set to go off.
The girl insurgent even testified that she looked at the clock in her bedroom, noticed the time and got on the floor and covered her ears.
These were all insurgents and they are dead.
It is the insurgent propagandists and the MSM and the weak, pathetic, cowardly intellectual inbreeds among us that have predesignated these insurgents as civilians.
Each and every one of them are no different from the insurgents. Support the cause of the enemy and you are the enemy, zero degree of separation.
Death to the enemy!
War to the knife, knife to the hilt! All the way in every way!
Amen!
Reduced sentences possible for war-crime convictions
By: TERI FIGUEROA - Staff Writer
NORTH COUNTY -- Long after the trials, anyone in the military convicted of committing an offense on a U.S. base or a war crime in a combat theater such as Iraq or Afghanistan can seek clemency or early parole.
Success could mean reduced prison time.
Under the Uniform Code of Military Justice, any soldier, sailor, airman or Marine prosecuted by the armed services and sentenced to a year or more has their case automatically reviewed.
The first stop is the Court of Criminal Appeals, which reviews a case for legal error. That review is automatic, and the court has the power to shorten prison terms.
After that, the convicted person could ask a higher body known as the Court of Appeals for the Armed Forces for a review. Similar to state and federal Supreme Courts, that body can decline to conduct a review.
And while a case wends through those steps, it can also head down a path that can lead to early parole or clemency.
Presidential pardons and commutations of a sentence are also an option in military and civilian cases, but they aren't automatic, and they are rare. According to the Justice Department's Web site, commutation of sentence is "an extraordinary remedy that is rarely granted."
The Web site doesn't give information on the number of sentences commuted by President Bush; the most recent statistics come from cases under President Clinton.
During Clinton's time in office, he received 5,488 applications asking for commuted sentences. He granted them in 61 cases.
Mattis' role
The first chance a convicted Marine has at clemency lies with a decision from what the military calls the convening authority -- the officer who decided that the case should head to trial in the first place.
In the high-profile case of eight Camp Pendleton troops charged with playing a role in the kidnapping and shooting death of a retired Iraqi policeman in Hamdania in April 2006, five have pleaded guilty and received sentences ranging from 12 months to eight years.
The three remaining defendants, a Marine sergeant and two corporals, are headed to trial this summer. Each could be sentenced to life in prison if convicted of murder.
Another case drawing international headlines involves another group of Camp Pendleton Marines accused in the deaths in Haditha of two dozen Iraqis in November 2005. A third case that is now developing are accusations that members of a Marine Corps special operations unit based at North Carolina's Camp Lejeune unnecessarily killed 10 Afghan civilians last month in the wake of coming under attack.
Pretrial proceedings in the Haditha case start today for Capt. Randy W. Stone, one of the officers accused of failing to accurately investigate and report what occurred. If convicted and sentenced to the maximum, Stone would face two years in custody.
As commander of all Marine Corps forces in the Middle East, Camp Pendleton's Lt. Gen. James Mattis is the convening authority for the men accused in the Hamdania and Haditha cases.
It was Mattis who approved the five plea deals in the Hamdania case, and by doing so has already agreed on the sentences the men should serve. But after the deal is complete and the guilty plea entered, the convicted men get another chance to ask Mattis for leniency.
Carlsbad attorney David Brahms, a former Marine general representing Lance Cpl. Rob Pennington in the Hamdania case, said it makes sense for Mattis to be the first to consider a sentence reduction.
"This general knows this case, he has insight, he's been living with this case since last April," Brahms said last week. "You can make arguments (about the case), and he will understand. He may not agree, but he has insight."
Pennington pleaded guilty in February to kidnapping and conspiracy to kidnap and kill Hashim Ibrahim Awad. The eight-year sentence he received is the longest handed down in the Hamdania case. Pennington also received a dishonorable discharge.
His case is among those headed to Mattis for a formal review.
The appeal route
After Mattis makes his decision on whether to lighten punishment, the case moves through the appellate process.
In an appeal, a panel of three military judges with the Navy/Marine Corps Court of Criminal Appeals reviews the case, taking into account the entire record of the trial.
They can also ask attorneys for additional information, but the court primarily relies on a review of the official record.
The appeals process, which includes a hunt for legal errors in the case, could lead to a reduction in the sentence.
The higher courts in the military process each have the power to reduce the sentence. The judges also can restore any pay forfeiture or lessen any reduction in rank levied as a punishment.
Eugene Fidell, who teaches at American University's Washington College of Law and specializes in military law, said last week that a defendant can ask the appeals courts to reduce the sentence by simply contending it was excessive.
My Lai massacre
Among the better-known cases of a sentence reduction granted by the convening authority is that of U.S. Army Lt. William Calley, who was convicted by a jury and sentenced to life in prison for his role in the deaths of hundreds of civilians in the Vietnam War's My Lai massacre.
President Richard Nixon granted Calley house arrest while his case was on appeal.
The convening authority in Calley's case reduced his sentence to 20 years, and later, the Secretary of the Navy granted Calley some measure of clemency, cutting Calley's sentence to 10 years.
Calley was paroled after serving 3 1/2 years of house arrest.
Gary Solis, a former Marine Corps attorney who now teaches military law at Georgetown University and penned the Marine Corps' official history of military justice in the Vietnam War, said Marines convicted of war crimes in Vietnam wound up serving far less time than they were originally sentenced.
Of the 27 Marines convicted of unlawfully killing Vietnamese civilians during the course of the war, 15 received life sentences. Three others got sentences of more than 20 years, and two were sentenced to 10 years in prison.
But the longest sentence served was 12 years and one month, by Marine Pfc. John Potter, according to Solis' research.
Potter was sentenced to life in prison for five counts of murder, rape and attempted rape. The Criminal Court of Appeals approved Potter's life sentence, and the Court of Appeals for the Armed Forces denied Potter's request that they review his case. But the Naval Clemency and Parole Board cut the sentence.
Sgt. Ronald Vogel, who was a co-defendant with Potter, was sentenced to 50 years. The court of appeals cut it to 35 years, Solis said, and later the punishment was further reduced to 10 years.
Finally, the clemency board cut Vogel's sentence to eight years -- which meant that Vogel would be freed because he'd already served nine years.
Clemency 'a gift'
While the appeals process seeks out legal errors in the cases, the clemency and parole board can look at any factors it deems appropriate.
The mission of the Naval Clemency and Parole Board -- which reviews cases for prisoners in the Navy, Marine Corps and Coast Guard -- is to deny, grant or recommend clemency or parole.
The board cannot change the underlying conviction. In some cases, including those of high media or congressional interest, the board makes a recommendation to the secretary of the Navy, who makes the final decision.
"Clemency is a gift," Solis said during a telephone interview last week. "It is a matter of grace, as it were. Nobody has to give you clemency, including the clemency and parole board."
Solis said "you never know" what factors the board will take into account.
"They can consider your birth sign if they want to," he said.
Northern Virginia-based attorney Phil Cave served on the clemency board in the 1990s and now he sometimes defends clients in front of the board.
Cave said that about 5 percent of the defendants whose cases he reviewed as a board member were granted some form of clemency.
"It might be reducing (a sentence of) two years down to 18 months," Cave said. "Typically, it's rewarding people who went above and beyond. Essentially, it's looking for a person who recognizes they have done something wrong and is trying to correct it."
Cave, a former Navy attorney who retired as a commander, said that the "real issue" for most of the cases that come before the board is not clemency, but parole. In deciding parole, the board looks at "salient factors," he said, including the inmate's behavior while in custody and any pursuit of education or self-improvement while behind bars.
And a big factor, Cave said, is the inmate's admitting responsibility for the crime that resulted in their incarceration.
Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.
From NBC San Diego, "Marine Lawyer Faces Tribunal In Haditha Case: Stone Accused Of Botching Investigation Of Civilian Deaths"
CAMP PENDLETON, Calif. -- A Marine Corps lawyer charged with failing to properly investigate 24 civilian deaths in Iraq rose quickly from his chair at the defense table as his name was called by a senior hearing officer Tuesday morning.
Capt. Randy Stone, 34, faces three counts in connection with the Marines' probe into the Haditha killing spree in November 2005 involving the battalion Stone served as legal officer.
"Captain Stone, you don't need to stand unless I ask you to," said the hearing officer, Marine Maj. Thomas McCann. "Yes, sir," Stone replied.
For the record, McCann acknowledged that he and Stone had met once at Camp Lejeune, N.C., exchanging greetings and brief small talk.
Stone and his attorneys had no objections to McCann presiding over the Article 32 hearing, the military's equivalent of a grand jury proceeding. McCann will hear evidence and recommend whether the charges should go to trial.
This is the most sweeping criminal case to date involving civilian casualties in the Iraq war. Stone could face two years behind bars if convicted of dereliction of duty and failing to carry out a lawful order in connection with his duties to properly conduct an investigation into violations of the law of war.
He is one of four Marine officers brought up on such charges in the case. He is believed to be the first legal officer prosecuted for actions arising from a wartime incident.
Three enlisted Marines are charged with unpremeditated murder and negligent homicide in the civilians' deaths, which followed an attack on a Humvee that killed a lance corporal and wounded two others.
Eight Marines from the battalion have been granted immunity to testify for the prosecution.
Legal formalities and skirmishing over documents and exhibits occupied the hearing's first morning session.
Civilian defense attorney Charles Gittins aggressively noisily filed numerous objections to McCann's rulings on relevance and admissability, and claimed that Stone had not been read his rights during a certain session with investigators probing his conduct.
McCann told both sides to give him prior notice if any classified information would be touched on, so the hearing room could be cleared of spectators lacking required security clearances.
The hearing is expected to proceed for several days.
Updates will follow as the testimony unfolds.
Thanks for the ping, Red.
Pff!
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