Statistical Probability and the Pendleton 8, Part 2

In Part One, I introduced you to Chris Roach, a normally-conservative writer who has been making some pretty strong accusations of guilt against the seven Marines and Navy Corpsman charged with murder in the Hamdania incident. Let’s pick up where we left off.

Roach is claiming that the Camp Pendleton 8 are guilty, and that he bases his conclusion on his belief that they’re not ‘acting innocent.’ Pretty amazing, isn’t it?

My initially more guarded views on this case have begun to turn towards the conclusion that there is a strong likelihood of guilt. The biggest change has been the defendants failures to back-up their public relations strategy with a legal strategy consistent with actual innocence.

There goes the presumption of innocence–not that Roach ever really had one. What happened to the Marine Corps’ ability to “police their own?”

Roach goes on to pick out what he, as an attorney, sees as the failure “to back-up [sic] their public relations strategy with a legal strategy consistent with actual innocence.” Apparently, Roach’s extensive civilian legal experience entitles him to predict what innocent Marines would do if they were ‘really innocent.’

Roach seems particularly annoyed by CPL Marshall “Magic” Magincalda’s refusal to testify at his hearing on Wednesday.

In the world of criminal defense, where discovery opportunities are almost zero, his defense attorney did not want to put on any of the NCIS investigators,

This is also incorrect. The defense are not the ones who didn’t wish the NCIS to testify. The prosecution claimed during Jodka’s hearing that calling the NCIS personnel to the stand could jeopardize the ’secret’ parts of their job. This resulted in an objection from not only Jodka’s defense team, but Magic’s as well. It is quite clear that the defense has every intention of questioning the NCIS agents.

It is known fact that they did not record the interrogations, which lasted between 7 and 8 hours with no breaks for food, water, or even the restroom. None of this is relevant to Roach, who is insistent that “This is not the kind of strategy a truly innocent person would typically pursue.” [Note: It is also known fact that the investigators took Jodka back to the scene of the incident and told him to pick up his shell casings, and that the brass they took him to pick up was more than 100 meters from where Awad was at the time of the shooting. For those not catching on just yet, that means that Jodka was 100 meters from Awad when he fired on him. Last time I checked, it’s rather difficult to tie someone up while 100 meters away from them.]

The title of Roach’s next section is “Innocent People Would Testify Now, and Their Lawyers Would Let Them.” Is that so? Charles Gittins might disagree. I asked Gittins, who defended Ilario Pantano, why his client never testified in his own Article 32.

KJ: There was a lot of talk in the blogs and various forums - some of it by JAG officers - that questioned your tactics; specifically, your choice…not to have him testify…Why not let him testify?

CG: I am sure there are lots of people who are not in my position who questioned my tactics. That’s why I was representing Ilario and not them. It is easy to be a spectator, much less easy to be making those tactical calls with the client’s life on the line.

Roach isn’t satisfied to make his blanket statement, however. There is more.

Then the defense teams for the different defendants parted ways, some seeking unsuccessfully to waive the Article 32 hearings, while others have asked for continuances to get some evidence together. (One wonders if this is a harbinger of one of the defendants flipping on the others).

Considering the men have already given their answer to the question of a deal, and have given the same answer since Day 1 (hint: it starts with “Hell” and ends with “No”), I’m going to say that the only “harbinger” here is that of Roach’s ineptness at analyzing the case becoming more evident as time goes by.

Roach then goes on to talk about the burden the prosecution has.

“Without justification or excuse” is an element of the offense to be proved by the prosecution. You can’t undermine the required showing of probable cause on that element without testimony by the defendant.

As Ilario Pantano showed quite clearly, that is not necessarily the case. Innocent men do not have to testify. Just because the Fifth Amendment gives the accused the right to not incriminate themselves does not mean that not testifying means they are guilty. It’s also important to note that we are still in the hearing phase. This is not a trial. The men are certain that they will be taken to trial–they even requested it. These Article 32s are only going on because the prosecution wanted them and the investigating officer decided to go ahead and do them. Why would they testify now, when they can simply get this phase over with and move on to a trial, where the rules are different? To these men and their families, the Article 32 is simply a formality, the pre-game show. They want to move into the main arena, and they’re willing to up the stakes to do it.

Now we come to the real reason I decided to write this article, and the source for its title. Roach’s next paragraph smacks of complete smarm, coupled with an utter contempt for the Marines accused in this case. The title of his next section?

Statistical Inferences Based on Similar Cases Suggest Guilt

Yes, you’re reading that right. He’s partially basing his belief in their guilt on statistics.

There have been extremely few court martials for unlawful use of force in the current war in Iraq. The Washington Post recently conducted an exhaustive study of the subject that unearthed only 39 cases of unlawful homicide being prosecuted in Iraq, in which only 12 defendants ever served time for their offenses. Many were simply kicked out of the service or reprimanded.

These paltry numbers of bona fide felony prosecutions suggest extreme indulgence of defendants in a war where many innocents, surely far more than 12, have have been killed illegally by American forces. [emphasis mine]

A point that is interesting is the fact that the Post article Roach refers to is being hailed by truthout.org as well. In other words, Roach is using the same material the anti-war Left moonbats are.
[Roach also cites a 98% conviction rate in military courts-martial, a fact that he pulled from militaryinjustice.org, a site that, oddly enough, was started by the mother of a Marine who was charged and convicted of murder.]

According to Roach, the fact that more troops are not being charged and convicted in Iraq should be taken to mean that these Marines and corpsman are probably guilty. Just in case you mention the “just because they’re charged doesn’t mean they’re guilty” idea, he makes one more point:

Let me let you in on a not-so-surprising secret of the criminal defense bar: almost everyone that is arrested and indicted is guilty.

Perhaps in the civilian world, that’s correct. However, what are the statistics of military law? I know a few JAG lawyers that would disagree with Roach’s sweeping generalization.
So where does this leave us? We have eight men, all of whom have served their country in a manner above reproach, some of whom have been wounded in battle more than once, who have never given anyone in their chain of command a reason to think they would act in any manner besides that fitting of a United States military member. We have a case full of holes, we have conflicting “witness” statements (and missing witnesses), we have unrecorded interviews and a videotape of a “statement” that may have been the result of what we know was a 7-hour long interrogation.

And then we have Chris Roach, who fancies himself the “devil’s advocate” in this ongoing debate. Unfortunately, as Jodka’s father eloquently pointed out on Roach’s site,

A devil’s advocate has come to mean a person who takes a position for the sake of argument or who presents a counterargument for a position they do believe in, to another debater.

Mr. Roach- you can be a skeptic all you want, and publicize it-question the defense, etc; but playing Devil’s Advocate with my son’s enumerated rights under UCMJ, which you have done on EuphoricReality isn’t the definition of Devil’s Advocate, merely an unfeeling SOB who is the enemy of my son. [emphasis mine]

Chris Roach’s position is uninformed at best, and callously dangerous at worst. Supporting the men who defend us with their blood, who have not been tried in a military court-martial, who have been found guilty of nothing, is not “blind, partisan hackery.”

It is the least we can do.

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