Pendleton 8 Background: Judge Was Openly Biased

In the Lt. Phan case, defense attorneys submitted this memo to the presiding judge, who had engaged in unethical and improper conduct throughout the proceedings.

From: David Sheldon

To: Investigating Officer

Subj: Article 32 hearing ICO United States v. Phan

Date: 28 January 2007

Sir,

1. On behalf of my client, I wanted to state for the record the following:

(a) The defense believes a classification review should be undertaken without delay. We ask you to make this recommendation;

(b) Your recommendation that an investigation into the testimony and conduct of both certain NCIS agents and the three Marines at issue should be initiated and is appropriate. These matters are important as you well recognized;

(c) Your recommendation regarding counsel should include the trial team as well. It became abundantly clear that Major Plowman and Captain Gannon became witnesses when as Major Plowman said “I believe this witness (LCPL Kraus) is lying regarding whether or not he met with me in August of last year.” I should note that Lance Corporal Kraus testified that he did not remember meeting with Major Plowman. Additionally, I have concerns about the testimony of two junior, enlisted Marines who testified that two members of the prosecution team, a Captain and a Staff Sergeant Logan, may have sought to improperly threaten them and/or improperly influence their testimony. The defense team has acted in a manner consistent with their ethical obligations. Your comments that these Marines’ affidavits were “colored by a third party” are without any basis in fact. As you well know, all three Marines testified under oath repeatedly that their affidavits were voluntary and accurate;

(d) Finally, I am deeply concerned about your repeated statements regarding the credibility of witnesses and the validity of the charges on and off the record prior to hearing all of the evidence or commencing your deliberation. Your comments that you will use your personal experiences and beliefs with respect to operations in Iraq as a bellwether for what is and isn’t legal and what is or isn’t credible in the present case, and your representation that you intend to use your personal past experiences and relationships with NCIS and its agents, are equally disturbing. In my 16 years of practice, I have never seen an investigating officer or military judge make such patently biased and inappropriate comments. Nor have I ever seen an investigating officer or military judge ever prevent a counsel from making a record as you did just prior to the close of the hearing. Your actions clearly violated L T Phan’ s right to a fair and impartial hearing and were an attempt by you to play to the media in order to put the Marine Corps and NCIS in the best possible light. Moreover, your obstreperous, condescending (to include your loud exaggerated sighs and eye rolling) behavior and repeated derogatory comments to Lt. Col. Cord during his closing comments were offensive and without precedence. In sum, you paid lip service to L T Phan’s right to a full, fair and impartial Article 32 hearing.

I insist that you make this memorandum an exhibit and attach it to the record.

David Sheldon
Defense Counsel

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Trial Counsel
Convening Authority

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