Attorney: Accused Marine lieutenant is really a 'hero'
By: MARK WALKER - STAFF WRITER | ∞
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 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.
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morty wrote on Jan 28, 2007 3:23 PM:IVE SAID ALALONG THESE MEN DESERVE A MEDAL. THANK GOD SOMEONE IS AWAKE ON THIS COLD DAY.GIVE THEM ALL ONE.
I agree! wrote on Jan 28, 2007 4:10 PM:This is another good man being railroaded by the NCIS! Where is the FBI? They need to come in and do an overhaul of this federal agency!
AW4cryinoutloud wrote on Jan 28, 2007 5:08 PM:I'm trying to understand the prosecution's story. It seems to have changed since August. The story was that Daham, a known insurgent, ran from the Marines who chased him, fought with him and kicked his butt. I'm sure Daham wasn't captured "willingly", yet that has not been mentioned. Now, 6 months later, the story is that Daham was a "detainee". The only reason I can see for changing the event is that allowable treatment of detainees is different from chasing and fighting with a known insurgent. In this article it's reported that Pigott "screamed" at Mr. Sheldon when he requested reconsideration of whether so-called classified evidence could be made part of the official record. I thought we ALL wanted to see Justice. I thought we ALL wanted to hear the Whole Truth; All of the evidence. What the hell is going on with this farce of a case? To scream at a defense attorney who is trying to defend his client and deny him that right; to scream at him to sit down and stay quiet...That really smacks of cowardice and lack of seeking justice on the part of the prosecutor. Pigott's apparent attempt to discredit Sheldon by asking if Sheldon had threatened him, is so obvious and a tactic to not be admired. Sheldon didn't "swear at" Pigott. He commented on the ruling. And; the most DISHONORABLE comment of all...Plowman and Gannon referring to Sgt. Hutchins as a "murderer and inveterate liar". My God!!! To what depths will the prosecution sink to try and "win"? They don't care about the truth. They just want to win, and don't give a tinker who they destroy in the process. NO ONE can tell me, and please don't even try, that this is legal. The Sergeant hasn't even had a chance to defend himself, and yet Jodka's attorney slipped a totally unnecessary, "overkill" slam at the Sergeant months ago. There've been a few defaming, derogatory comments by the prosecution already; and now this. These suckers should be brought up on charges. They are purposefully tainting and abusing their power by trying to influence with inuendo and unwarranted statements about Sgt. Hutchins, knowing darned well that those statements can taint his right to a fair and impartial trial. When is Mattis, who seems to have been a warrior at one time, going to man-up and stand up against this politically INCORRECT crap? NCIS: "Protect the Protectors". Best move they could have made was to take that off their website. Marines take care of their own... NOT what I thought it meant for so many years. It has a whole new meaning today. If there is any dishonor, it does not reside in the Brig!!!
Jay wrote on Jan 28, 2007 7:05 PM:PS: I was in court many years ago watching a civil case. One of the parties kept interupting, claiming that the other party was "a liar". The wise old judge admonished him to be quiet and said "I know one of you is lying, it's my job to figure out who. That's why they call ME the judge!" Good advice. We should ALL take it.
mark wrote on Jan 28, 2007 7:45 PM:Judges screaming at the defence attorneys? If this were a civilian trial and not a military article 32 hearing it would never in a million years hold up on appeal. I have never in my life herd of a judge threatening a witness with a perjury charge before he has even testified. I think what normally happens is that the prosecution can bring up evidence when it is their turn to discredit the witness. I don't think it speaks well of Lt Col Pigott judicial temperament that he is pron to screaming tirades and threats. He really should have been seated at the prosecution's table during these proceedings. I feel sorry for Kraus obviously if he insists he's innocent of perjury the NCIS will interpret that as an admission of guilt.
John1 to Jay wrote on Jan 28, 2007 8:02 PM:But Jay, that is NOT Lt.Col Pigott's job here. His job is to act as the impartial Investigating Officer. My son had an impartial IO (Lt. Gen Mattis chose not to take most of the results of his investigative report). Lt.Col Pigott has already stated on the record that without further investigation on his part, he feels the NCIS has told the truth. That's too bad. Fortunately, he covered his heinie by putting forth the request that Lt. Gen Mattis investigate. That probably won't happen.
John1 to AW4 wrote on Jan 28, 2007 8:09 PM:Unfortunately, Plowman and Gannon didn't make that comment; Lt.Col Cord of the defense did. I think calling Hutch a murderer and liar is jumping the gun about 1 million pct, myself. Hutch has a very good attorney in Rich Brannon. He'll be defended well. Hutch's atty has defended a lot of high profile cases. I am not 100 pct sure, but I think all the other defense attys knew what JJ's attorneys were going to say (many of them were in the courtroom and in the family viewing areas during all the proceedings).
to AW4 wrote on Jan 28, 2007 8:12 PM:Why don't you please reread the article it was Mr Cord (Phan's attorney) who implied that Hutchins was a murderer and inveterate liar not the prosecution. Please get your facts correct.
John1 to Mark wrote on Jan 28, 2007 9:26 PM:There are pluses and definite minuses to the military system. One of the usual pluses is the Article 32 adversarial investigation system. It's much better than the Grand Jury system (where a prosecutor can indict a ham sandwich). But even in the military system, the prosecutors run the show right up to trial. I would NOT worry about what Pigott does- his report will be tainted; my guess is that Lt Col Cord and Mr. Sheldon will file a brief with the supervising Circuit Judge (Col Folsom) for the USMC Western District and may even ask for a NEW Article 32 with a new IO. If that's turned down, my further guess is that the defense will file an interlocutory appeal to the Court of Appeals of the Armed Forces (CAAF). Lt. Col Vokey ( Lt. Col Cord's boss) will probably also object formally (with a USMC JAG investigation) and when the matter comes to any trial (if it does), you can be sure Sheldon and Cord will not accept Lt. Col Pigott as trial judge. Pigott cooked his own goose (I would not want to see his next fitness report- he'll never see bird colonel now).
AW4cryinoutloud wrote on Jan 28, 2007 10:21 PM:To John1 and To the post at 8:12PM: Yep; you're both right. I did go back to it. Sorry. Thanks for pointing it out. So; that means that now I must apologize to Plowman and Gannon. I apologize. It also means that now I'm pissed at Cord and do not apologize to him unless someone points out that he didn't say it. Thanks guys. AW4.
AW4cryinoutloud wrote on Jan 28, 2007 11:16 PM:I guess I owe the cottonpickin' prosecution one on this... Since it was Phan's defense attorney who made the reference. Now, I can't decide which is worse; If it had been the prosecution, that's bad enough but understandable. I got used to it. But for a defense attorney to say something so infammatory like that about another defendant while that defendant's trial is still pending, disgusts me just as much. Actually; probably more. How long will Mattis allow this facade to continue? No one can tell me that he isn't aware of the abuse of power by NCIS, infammatory and prejudicial statements by both sides now, that should never have been allowed, and will certainly influence upcoming trials. He can't honestly believe there's a snowball's chance in hell for any fair and impartial trials. My misinterpretation of a sentence is one thing. I apologized to make it right. Bur you won't see NCIS or any prosecutor or any defense attorney who has tainted the proceedings of these hearings try to set things right. General Mattis can do it. It would be nice to see "someone" do something honorable for a change.
This guy is clearly getting railroaded! wrote on Jan 29, 2007 8:18 AM:Just likethe others! No one cares that he is the sacrificial lamb! He is getting more attention than the firing squad the enlisted men endured! No of these guys should be in jail! The LT included!
America Wake Up! wrote on Jan 29, 2007 8:20 AM:This is wrong! You could be next! When do we say this is crazy! Free these men! You don't like what they have to do in combat, then pull them out! Don't put them on trial. War is crazy!
NCIS is out get every Marine! wrote on Jan 29, 2007 8:22 AM:Many in the NCIS don't pak it and have to push the Marines around at any moment they can! Most marines dont respect these guys and it is apparent they will push you down if you get in thier way!
Not much uise for these so called Special Agents wrote on Jan 29, 2007 8:23 AM:What was the Marine Corps thinking by combining the Marine Corps CID and NIS together to make NCIS. they have screwed themsleves! Marine Corps got what deserve with the civilians at the helm of any military investigation!
NCIS website! wrote on Jan 29, 2007 8:28 AM:After this fiasco I find two things hard to believe! One why the Marines would join thier CID Agents with the Navy's NIS Agents! Must have been the money or some high ranking Marine sold them out! Didn't the Marine CID have at least a Colonel in charge of them at HQMC. Then how these Marine Military Commanders would have civilians around them in a military environment! They must be easily impressed! Either way the Marines are paying for it now! war is hell! It is harder if you bring along Sissy boys like NCIS and not Marines!
NCIS are flunkies! wrote on Jan 29, 2007 8:32 AM:This group intregrated in 1999 and was fully combined in 2000 with the Marine Corps' investigative arm! As reported on the NCIS website! What a mistake that was! These guys do not have a clue and clearly are and were not prepared for the harsh reality of war and crime on the battle field! CBS sure trys to make them look good! If you have ever served you know that is all a bunch of do do! Those NCIS Agents would never do that stuff they do on thier! The military commander is supreme and in charge! These NCIS Agents would be taken out by armed guard to get the hell out of a commanders office! Please! I think these NCIS loosers involved in this case have been watching to much television and starting to believe what Hollywood is spitting out! Idiots!
Concerned wrote on Jan 29, 2007 8:46 AM:All these trials smack of politics. What a sham. I had to laugh last week when W said he planned to increase the military in the next five years. Who in their right mind would volunteer to put themselves in a situation where your own side will stab you in the back?
esteban wrote on Jan 29, 2007 8:54 AM:The enemy is laughing at us.
o2cool1 wrote on Jan 29, 2007 9:39 AM:If Lt Phan were incompetent he could receive the Presidential Medal of Freedom Award just like Paul Bremer, who fired the Iraqi army and police giving birth to the insurgency. Funny but the most incompetent person in all this can't give himself a medal but he can continue to reap the rewards of his office for the next two years and live if freedom the rest of his days,something it seems the government wants to take away from those that have put their lives on the line in the middle of a civil war.
Endless wrote on Jan 29, 2007 9:55 AM:The parade of accused marines just keeps coming. How many accused triple-murderers are referred to as "heroes"? And correct me if I'm wrong, but the overwhelming majority of these "heroes" are being found guilty. What's next, are we to call OJ Simpson a "hero"? He was accused of a double-murder, and he was found not guilty. Does that give him "hero" status?
AW4cryinoutloud wrote on Jan 29, 2007 9:57 AM:To NCIS are flunkies: I just wanted to type those words without getting "my"self in trouble. I'm kidding. I'm totally on board with you where you mention the tv show NCIS. It's one of our favorites; yet, since I've learned so much about the "reality" of the organization, it turns my stomach sometimes. But the tv show has some great actors and good stories, so I just sit back and enjoy the fiction.
Pluto wrote on Jan 29, 2007 12:05 PM:Half the world is laughing at us, half is crying at the tragedy. Bush has made us into murders, torturers, and a laughingstock. He says it would be a disaster if we lose, but he put us into this unnecessary, unwinable quagmire. Thanks to him, we're screwed no matter what we do.
John1 to Endless wrote on Jan 29, 2007 12:20 PM:What story are you reading? Phan is not a triple-murderer, nor is he accused of murder? NONE of the Marines in the Hamdania trials are accused of triple murder!
AW4cryinoutloud wrote on Jan 29, 2007 12:59 PM:To Endless: There are no triple murderers and the majority of these heroes are NOT being "found" guilty. You may not have kept up on the articles because there have been NO trials. There have been plea "deals' made to lesser charges in the Hamdania cases. One has made a plea deal of guilty to charge of unpremeditated murder and to many of the other charges; which keeps him from having to serve "many" years in prison. He has had NO trial. He has NOT "been found" guilty of anything. He made a "deal" with the prosecution, which generally means you say what they want you to say. There are still three Marines who maintain their "innocence" and are left hanging out there while everybody has their say and pollutes their right to any fair trial. Best example...YOU thought they were all "found" guilty; yet, they weren't. Mind games, and the prosecution and NCIS are masters of it. I hope you'll allow them the presumption of innocence as required by law. I, and many others, certainly do. AW4.
morty wrote on Jan 29, 2007 1:09 PM:no O.J. WAS FOUND NOT GUILTY . BUT NOT A HERO. GET REAL.A HERO ARE OUR SERVICE MEN.ALL OF THEM.
MorallyRight1 wrote on Jan 29, 2007 8:27 PM:To AW4 @ 5:08: The Marines, of course, want to appear as if to seek the truth, but in fact will allow on the 'truth' they deem fit. The remarks from the Pentagon, Military CO, etc. during the Hamdania legal process you can bet were very deliberate and targeted. As is the inconsistancies on the prior and current chain of events on this issue. They (the investigators, the Marines, the prosecution and defense) are, indeed NOT working for the same goal. The defense has a lot to loose, but not nearly as much as the former three. That is why one man, yes, just a man, can condemn or free a man under the Uniform Code of Military Justice. IF you have the patience to see it through the mounds of paperwork, and literate mumbo-jumbo, and two stepping, the bottom line here is Pigott can say to the world : the sky is pink with yellow polka dots. And then, no matter what it actually is, he has made his ruling. Hence, his inappropriate response to an entirely normal statement by Sheldon was 'The hearing is officially closed'. AKA: this is my playground, and I will take my toys and go home, if you don't comply. Yes, with all of the 'unprecedented' actions, almost entirely on the Prosecution and Marine's side, how can one ever even dream that any of these men will get a fair trial? Throw in all of the shenanigans of the NCIS and you have the circus we have been seeing unfold over and over again. But don't thou protest too loudly, for 'they' have the power to throw the keys away! (and they know it!!) One can only hope that someone in the Command (or above) has enough integrity and enough actual pride in the Marines, to put a stop to this Merry Go Round, by standing up and actually taking control on the side of truth and honesty, and not so much interested in 'self preservation'. Because, as has always been the case, I will pat you on the back if you pat me on the back attitude is still the password of the day, up and down the of the ranks of Marine Command. Although, very quickly dissolving into thin air.
Hey Wait a Second.. wrote on Jan 29, 2007 8:32 PM:How in the world did we ever allow the military to judge the military. I liked that earlier comment that when civilians governed the military, and they got what was just, I presume. And, yes, I would be sure that the world is laughing. Laughing at what the Marines are doing to making themselves the laughing stock of the world. I wonder how long it will take them to learn this very valuable lesson?
Dave wrote on Jan 30, 2007 12:04 PM:This whole thing is a wast of time,the Marines did there job and now they get introuble for it? Come on thats like giving out speeding tickets at the Indy 500.
AW4cryinoutloud wrote on Jan 30, 2007 1:24 PM:To MorallyRight!: I'm waiting for a Marine who has authority and power, along with the honor and valor of Chesty Puller, to stand up against this trend toward sacrificing our troops on the alter of political incorrectness. I hope there really is one out there somewhere. Not seein' it so far. Although I wish just one politician would have the clankers to do it, I don't expect it. They seem to be too busy protecting their own financial interests and political agendas. It's sad that, out of over 700 Congressmen and women, there isn't one with the backbone to take this on. Geeze; Heaven forbid that we might offend the Iraqi government (what there is of it), or Code Pink, or Hanoi Jane, etc, etc... Looks like it's up to the people who are supposed to be in power in this country. Last time I heard; that was "us"!!!
AW4cryinoutloud wrote on Jan 30, 2007 2:34 PM:To NCT: I read your clarification of Lt. Col. Cord's reference to the nasty comment. Now I don't know who to apologize to or not to apologize to. I guess I'll just say that "WHO" ever made the disgusting , prejudicial, unwarranted statement about the Sergeant has no clankers and should be brought up on charges of abuse of power in using his remark to have a negative impact on all of the defendants. Not to mention, prejudicing the Sergeant's right to a fair and impartial trial. Not to mention Pennington and Magincalda's rights to the same. There's so much abuse of power running rampant that it's becoming difficult to keep up with it. NCIS, Pentagon, Marine Corps', Congress...Please get your house (houses?) in order. Stop persecuting those who actually fight for this country and clean up the wrongdoing within your own organizations.
OMG! wrote on Feb 2, 2007 10:12 PM:Just count the lines used by AW4 to say the same thing compared to the rest of North County and you will see why "less is more".
AW4cryinoutloud wrote on Feb 3, 2007 12:15 AM:To OMG: Here we go again with the personal attacks. I don't know what the hell you're talking about. Sometimes your comments just don't have any rationality. The OMG thing is "very" familiar, and so is the "jerk" type of comment. In your haste to insult, you lack the ability to properly express yourself. Not my problem if you're envious. Let me know when you reach maturity. OMG...That will be a long wait!!!
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