Marine lieutenant could be ordered to trial for alleged assault of three Iraqi civilians
By: MARK WALKER – NC Times Staff Writer | February 27, 2007
CAMP PENDLETON — A Marine lieutenant accused of assaulting three
Iraqi civilians last year should face a court-martial, a hearing
officer is recommending.
Lt. Col. William Pigott makes that determination in a report filed
this week with Lt. Gen. James Mattis in the case of 2nd Lt. Nathan
Phan. Mattis must now decide whether to order Phan to trial.
The lieutenant was charged in August with assault, a case that
arose during an investigation that led to a murder charge filed against
eight men under his command last year in Hamdania, Iraq.
Phan was not charged in the homicide case, but stands accused of
assaulting the three Iraqis in Hamdania in March and April 2006 while
trying to get information from each about insurgent activity in the
Anbar province area northwest of Baghdad.
Phan's lead attorney, David Sheldon of Washington, said Tuesday
that he does not believe his client did anything wrong and that he
will be acquitted if ordered to trial.
"Justice will be served and he will be exonerated if the charges
go forward," Sheldon said during a telephone interview. "Lt. Phan
deserves a medal and not second-guessing from those in the rear."
The report prepared by Pigott remains under seal pending a decision from
Mattis, but Sheldon shared its contents with the North County Times.
The hearing officer recommends that not only should Phan be
court-martialed on the assault charges, Sheldon said, but also that
prosecutors charge him with conduct unbecoming an officer. That charge
should be lodged because of Phan's alleged failure to report an alleged
incriminating conversation among the men charged in the homicide case
that the lieutenant supposedly witnessed and overheard, according to
the report.
Sheldon said there is conflicting testimony about that alleged
conversation.
"That completely ignores the fact that people who were there and have
absolutely no motive to lie say that there was no such conversation,"
Sheldon said.
Pigott does recommend that the government drop a charge of making a
false official statement, saying there was no solid evidence to support
that allegation, the attorney said. That charge stemmed from Phan's
reportedly filing a radio report in which he said he had released one
of the three men being questioned about insurgent activity.
The defense produced testimony during Phan's January Article 32
hearing that showed the official radio log saying the 26-year-old
lieutenant reported that he still had that insurgent in custody. An
Article 32 hearing is the equivalent of a probable cause hearing in
civilian court and is conducted to determine if an accused should be
ordered to trial.
During the tumultuous five-day hearing, several enlisted Marines
who served under Phan in Iraq testified they never saw him commit any
of the alleged assaults.
Three enlisted men also testified that signed, sworn statements
prepared by the Naval Criminal Investigative Service included what
they said were lies about them having witnessed Phan commit assault.
Pigott is recommending that Mattis conduct a separate investigation
to determine how their official statements were later contradicted in
sworn affidavits stating those statements contained falsehoods.
Mattis will make the decision on what to do in the Phan case as part
of his responsibilities as head of Camp Pendleton's I Marine Expeditionary
Force and as commander of all Marine forces serving in the Middle East.
Sheldon said he and two military attorneys assigned to Phan plan
to file a set of objections to the Pigott report by the end of the
week. He said he also may ask for a meeting with Mattis.
The attorney and Pigott often clashed during the Article 32 hearing,
which ended with Sheldon being loudly admonished by the hearing officer.
Sheldon said that despite what he believes was sufficient evidence to
question all the charges against Phan, he wasn't surprised by Pigott's
recommendation.
"It reflects what appears to be a prejudgment in the case," he
said. "There didn't appear to be a sufficient willingness to hear all
the evidence regarding the credibility and believability of all the
witnesses."
As a matter of policy, Marine prosecutors will not comment in any
way on any pending case.
Five of the eight men from the platoon that Phan commanded and who
were charged in the homicide case have reached deals with prosecutors
and entered guilty pleas.
Phan was not present when those men say the squad from Camp
Pendleton's 3rd Battalion, 5th Marine Regiment abducted and killed
52-year-old Hashim Ibrahim Awad in the early morning hours of April 26.
Contact staff writer Mark Walker at (760) 740-3529 or
mlwalker@nctimes.com.
Comment at nctimes.com.
