NCIS investigative methods come under fire over prosecution of Marine lieutenant

By: MARK WALKER - NC Times Staff Writer

NORTH COUNTY - The investigative practices of the Naval Criminal Investigative Service will be under scrutiny later this month when three of its agents are expected to take the stand in a Camp Pendleton courtroom to answer an allegation they fabricated parts of statements being used in the prosecution of a Marine lieutenant.

David Sheldon, an attorney for 2nd Lt. Nathan Phan, alleged Friday that the agents added information into the statements taken from three Marines last spring that said they saw his client taking part in the assault of Iraqi civilians. The information they added, Sheldon contends, was false.

Those same three Marines have since consented to a request from Phan's defense team to provide signed affidavits saying they never told the agents Phan assaulted anyone.

"The question has to be 'What would motivate these three Marines to lie,'" Sheldon said during a telephone interview Monday. "Why would they bother to make up these allegations?"

One of the three Marines, Lance Cpl. Christopher Faulkner, testified Friday that he provided the affidavit because the statement attributed to him by the military's law enforcement agency was "a lie."

Phan, 26, is accused of assault and making a false official statement in a case that arose out of the Naval Criminal Investigative Service's probe of an April 26 kidnapping and killing of a retired Iraqi police officer in Hamdania, Iraq.

Phan was not present when the man was killed and does not face any charges related to that incident. The assault charges stem from other incidents that allegedly took place in Hamdania around the time of the homicide.

An Article 32 hearing for Phan was halted Friday afternoon when the officer presiding over the session, Lt. Col. William Pigott, said he wanted to hear from the three agents directly. The next court session has been set for Jan. 25, the first date the agents, prosecution and defense attorneys are all available.

Sheldon told Pigott on Friday that he believes the agents should be read their Miranda rights against self-incrimination when they take the stand, suggesting he believes they may have committed criminal wrongdoing in preparation of the statements they produced in the Phan case.

A Naval Criminal Investigative Service agent who testified Friday told the court that agents never put anything into the statements they generate that is not true.

But under questioning from Sheldon, that agent, Kelly Garbo, acknowledged that the agents from the military's law enforcement agency also do not audiotape or videotape the interviews or interrogations they conduct.

That policy has come under fire over the years in other cases the agency, a division of the Department of Navy that is staffed by civilians trained in law enforcement, has investigated, including the Hamdania homicide case and now Phan's case.

In September, an agency official told the North County Times that it was reviewing its policy of not video- and audiotaping the statements. No decision has been made whether to keep the practice in place, agency spokesman Ed Buice said Monday.

Kathleen Duignan, a former military attorney who now works for the National Institute of Military Justice in Washington, said the policy of not taping interviews - as is routinely done by most law enforcement agencies - needs to be reconsidered.

"It would seem that videotaping would give them a lot less trouble," she said. "If that policy hasn't been under review, I think it will get a lot more scrutiny now."

During her testimony Friday, the agency's Garbo described the methods agents now use in interviewing witnesses and preparing statements.

Two or more agents will conduct an interview and later compile what they hear in the form of a single, typewritten statement, she said. The document is then given to the person interviewed, who is asked to initial each paragraph as having been read and then sign the report as a sworn official statement.

The lance corporal who testified Friday said agents brought his statement to him while he was on guard duty in Iraq several days after he was interviewed. He said he had little time to read the document, so he asked if it reflected what he said but did not fully review it. He testified that when the agents told him it accurately described what he had told them, he signed it.

During the first two days of the hearing that will help determine whether Phan will be ordered to stand trial, two witnesses testified they took part in the assault of one of the victims he is accused of beating but said Phan was not present.

Marine Corps prosecutors rested their portion of the case without presenting any evidence on the charge of making a false official statement.

Sheldon said he believes that Phan, a Sacramento-area native who joined the Marines in 1998 and became an officer in 2004, is the victim of political pressure.

"I think there was enormous pressure on the Marine Corps to hold officers accountable and not just enlisted men in the field - they think the responsibility has to lie farther up the chain," he said. "But at the end of the day, it is the evidence that the government and defense present that will decide the case."

Phan faces the possibility of more than 20 years behind bars if ordered to trial and convicted of the charges against him.