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.
Contact staff writer Mark Walker at (760) 740-3529 or
mlwalker@nctimes.com.
Comment at nctimes.com.
