NCIS agent says his notes conflict with witness statement

By: MARK WALKER - Staff Writer | Friday, January 26, 2007 10:37 PM PST ∞

CAMP PENDLETON ---- A Naval Criminal Investigative Service agent testified Friday that notes he took conflict with the official statement the agency now attributes to a witness whose recollections are being used in the prosecution of a lieutenant charged with assaulting three Iraqi civilians.

Special Agent Michael Austin acknowledged under questioning by defense attorneys that his notes say that the witness, Lance Cpl. Christopher Faulkner, told the agents that he thought he saw a Marine choking an Iraqi detainee, but could not say for certain who it was.

The official statement, prepared by another agent who questioned Faulkner during the interview while Austin took notes, says that he told the agents he saw a sergeant choking the detainee and that the lieutenant being prosecuted was watching.

"That's not what was in my notes," Austin said.

Austin's testimony came during a daylong continuation of an investigative hearing for 2nd Lt. Nathan Phan, accused of assaulting three Iraqis in March and April and placing an unloaded pistol in the mouth of one of the alleged victims. He is also charged with making a false official statement in connection with the incidents.

The credibility of the Marine and Navy's civilian law enforcement agents is being attacked by Phan's attorneys, who contend that three statements prepared by the agents contain fabrications that implicate their client. The attorneys have sworn and signed affidavits from three enlisted Marines who contend the official statements attributed to them are incorrect in asserting that they witnessed Phan committing an assault.

Faulkner testified before Austin, saying the statement prepared by the Navy and Marine Corps' law enforcement agency contains a falsehood in a section that says he witnessed a sergeant assault a detainee while the 26-year-old lieutenant from the 3rd Battalion, 5th Marine Regiment watched.

The lance corporal testified that he realized the story he told agents in Iraq was a sworn official statement and that he could face prosecution if caught in a lie. He said he provided the subsequent affidavit to Phan's attorneys because the government statement attributed to him "contained a lie."

This morning, the hearing officer, Lt. Col. William Pigott, is expected to rule on the defense's request that it be allowed to call a law enforcement expert to testify about the investigative practices of the Naval Criminal Investigative Service.

One of Phan's two military defense lawyers, Lt. Col. Mathew Cord, said the witness would testify that failing to audiotape or videotape witness statements or interrogations is considered by law enforcement experts as unethical and a breach of proper protocol.

"Their methods, their practices and their polices are subject to review," Cord argued, telling Pigott that the expert testimony from William Gaut, a former police homicide detective and a professor of criminal investigative practices in Florida, would be important when he weighs the credibility of the agents' testimony.

Phan's lead attorney, David Sheldon, said after the hearing that the Naval Criminal Investigative Service should be scrutinized.

"Clearly, there is a conflict between the witness statements from the three Marines and what NCIS says they said," Sheldon told reporters, adding that the issue would not exist if the agency taped its interviews. "They should be able to comply with the standards of law enforcement today."

Agency officials in Washington told the North County Times in September that the policy of not requiring the recording of interview and interrogations is under review and that a change may be ordered. Agency spokesman Ed Buice said this week that the policy is still being examined, but no decision has been made.

Friday's testimony included an appearance by Pvt. John Jodka III, one of four Marines and a Navy corpsman who have pleaded guilty to their roles in the shooting death of an Iraqi civilian in the same village of Hamdania where Phan allegedly committed the assaults. The charges against Phan arose from the homicide investigation into the April 26 shooting death of Hashim Ibrahim Awad.

Jodka testified that he never saw Phan assault any Iraqi and had no knowledge of the platoon lieutenant knowing that some of the men he commanded had committed an assault. Phan had no role in the homicide case and is not implicated in that incident.

Sheldon said that after the testimony heard Friday, he believes the prosecution's case is "in shambles."

"Where is the false statement? Where's the evidence that Lt. Phan ever assaulted anyone?" Sheldon said.

The Marine prosecutors, Maj. Donald Plowman and Capt. Nicolas Gannon, will not comment on the case.

Phan faces more than 20 years in prison if convicted of the assault charge and a companion charge of making a false official statement. His attorneys maintain their client is innocent and that military prosecutors have thus far failed to produce any evidence to support a criminal conviction.

The Article 32 hearing is expected to conclude today. When it does, Pigott, the hearing officer, will then consider all the testimony and eventually recommend to Lt. Gen. James N. Mattis whether he believes the general should order Phan to court-martial.

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