Attorney: Accused Marine lieutenant is really a ‘hero’

By: MARK WALKER - NC Times Staff Writer | January 28, 2007

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 face a 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.