The Death of the Marine Corps, Chapter 1

Going Where They Are

Imagine for a moment that you are a member of perhaps the proudest group of warriors the world has ever seen; a “band of brothers” that embodies the seemingly long-forgotten traits of honor, duty, and country. Every line of your uniform, from its gold buttons to the blood-red stripe down the pants leg, was earned in blood; each part of it was born in your history. Every time you put it on, you are reminded of those who have come before you, those who have made your heritage what it is. Your brotherhood, this nearly mythical bond, is signified by two words that somehow encompass everything you stand for. They are not just words, however, but a promise, a solemn commitment that will be kept even if it means you will die keeping it. Semper fidelis: always faithful.

By your hand and the hand of your brothers-in-arms, the freedom of the United States of America stands. Your brothers have fought on every continent for over two hundred years, with a resolute courage and ferocity so incredible that even your enemies called you teufelhunden–devil dogs. There is not a better fighting force anywhere in the world, and being a part of it is the proudest thing you will ever accomplish.

You were sent to a faraway country, just like so many before you, and you did your duty the best you knew how. You sweated throughout the days and froze during the nights, sleeping in tents that were no protection against the mortars that deafened your ears and inched ever closer during the few moments of sleep you were allowed. You held the bloody hands of your friends as they died in front of you, some of them calling for their mothers, others whispering the bittersweet “Tell my wife…” Some of them didn’t say anything at all, instead gurgling through their own blood as they died. Semper fidelis.

You went without food, without sleep, without basic things like clean clothes and a shower. Through it all, you somehow managed to hang on to your sanity in a place where a lie is as commonplace as the truth, and the enemy just might be a 7-year-old child on the side of the road, smiling at you and asking for candy only so you will get close enough to him to be killed by the explosives he carries. No matter what the climate, the terror, the smells of blood and death or your buddy’s guts that spilled out in front of him, you press on, determined to complete the mission. Many of your brothers have come back again and again to this place, unwilling to sit in a recliner in their livingroom and watch TV while you try to wipe the blood from your uniform and catch a few minutes of sleep before the next mission. No matter what the cost, you are all willing to pay it. Semper fidelis.

——————————-

Now imagine that you are sitting in an 8×8 cell, as are seven of your brothers, waiting to find out if your promise to remain faithful will in fact result in your death–not in a hail of enemy fire, not in the blinding explosion of a terrorist’s bomb, but by the sterile needle of a lethal injection, administered by the very country you spent your adult life defending. You have been shackled, wearing a label that says “PVD”: potentially violent and dangerous. You have been here for over a month now, in solitary confinement for almost 24 hours a day, with nothing to do but pray that someone stands up for you, just as you did for them. But hope is dwindling. Your military attorneys don’t have time to help you, and your civilian attorneys are being denied access to evidence that would prove you’re innocent–no autopsy of the man they say you murdered in cold blood, no witnesses, nothing. In fact, you’ve just been told that you may be tried without ever facing your accusers in court–accusers who already have given conflicting stories and dishonest statements. Your life hangs in the balance, but the chances here are even worse than they were in Iraq. There is a very good chance that you will die, convicted of a crime you did not commit, betrayed by the very country you defend.

But this is just a story. This never actually happened, right?

Wrong. It’s happening right now. At the moment I write this, eight men sit in solitary confinement, charged with crimes that never happened. Their case is explosive, their story heartbreaking. I don’t believe any American, after hearing the facts of this case, can call it anything but a travesty of justice that may not only kill eight innocent men, but the idea of the United States Marine Corps as an honorable institution. I hope you read this series, yes. But I challenge you to act upon it.

The Innocent 8 fulfilled their vow. Now it is our turn.

Semper fidelis.

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The Death of the Marine Corps, Chapter 2

Birth of the Accusations

It began on 26 April, in Hamdaniya, Iraq. Seven Marines and their Navy Corpsman, from Kilo Company, 3rd Battalion, 5th Marine Regiment shot and killed an insurgent. Just another day, just another insurgent in this dirty, dusty land where almost everyone–even children–can smile at you one moment and kill you the next.

But this would not be just another insurgent, and the events of 26 April will be dissected over and over in the coming weeks. The report the Marines filed after the action said that Awad was “digging on the side of the road from our ambush site. I made the call and engaged. He was pronounced dead at the scene with only a shovel and AK-47.” Just another day.

Yet a few months later, the eight men are fighting for their lives in a whole new arena: the courtroom. With an Article 32 scheduled next month and most assuredly a trial after that, the Marines and Navy corpsman are accused of decidedly more than just engaging the enemy. The charge sheets for the eight men claim a host of infractions: Murder, larceny, assault, housebreaking, kidnapping, false official statements, and obstruction of justice. The Marine Corps says these men were looking for a certain insurgent but couldn’t find him, and so they broke into Hashim Ibrahim Awad’s house, dragged him outside, tied him up and put him on his knees, and then shot him 4 times.

There are some basic problems with the case. Dan Riehl has done some excellent research as to the conflicting statements by “witnesses.” He found that in almost every facet of the story, there are discrepancies, none of which are being mentioned by the media. In fact, in an apparent failure to communicate with each other (and fact check), “both Knight Ridder and the WaPo state the accounts cannot be independently confirmed.”

[Speaking of that Knight-Ridder account, the entire article was reported on by a “special correspondent who could not be named for security reasons…” To give you an idea of what the Washington Post’s article was like, just read these quick paragraphs on why they don’t like to call Zarqawi a terrorist.]

Riehl goes on:

It is fair to conclude that the media is putting out information which has, by its own admission, not been confirmed. And the Bush administration is now extremely sensitive to these types of charges. It’s also fair to wonder if some of our enemies haven’t figured that out and are becoming increasingly proficient at circulating precisely the types of stories the MSM loves to seek out.

The Marine Corps, in choosing to prosecute these men, has decided to accept the word of Iraqis who were connected with the insurgency as opposed to their own Marines. This is and of itself is a tragedy. But why were these men charged?

Many people, including this columnist, somehow labor under the erroneous assumption that we as citizens are “owed” an investigation on this incident. It becomes a very dangerous situation when terrorists are made privy to this fact. How many inquiries were done into “atrocities” committed in World War 2? It was simply understood that war was a dirty job, someone had to do it, and thank God for the men who were willing to step up and go.

What happens when we are pounded with the idea that the military is a group of paid assassins, fighting an “illegal and immoral” war for capitalist fiends? Where do we end up when we start down the road of demanding investigations into killing of the enemy and calling normal wartime occurrences “atrocities?”

You may not even want to know the answer. But it is there, diabolically threatening everything that our country is founded on–and everything the Marine Corps claims to believe in.

The question of why they are even being investigated is a valid one, to be sure. But at this point, the more dangerous question is, why is the Marine Corps denying them due process and the right to a competent defense? And what does this mean for the rest of those who are defending our safety?

In Chapter 3, we’ll look at how these troops are being setup to not just fall, but actually die.

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The Death of the Marine Corps, Chapter 3

Denial of Honor

Eight men stand charged in the death of an insurgent in Hamdaniya, Iraq. His family claims he was a harmless old, disabled man who refused to become an informant for the Americans. Considering the lack of value placed on truth in Iraqi culture, and the fact that the family stood to gain $2500 in American dollars if they claimed their relative was a noncombatant, a logical person would have a hard time believing the disjointed, conflicting statements by various members of the family. More shocking than even the accusations themselves is the way in which this case has been handled by the Marine Corps. The timeline of events points to something even more insidious than a cover-up; it shows a blatant disregard for the lives of eight men who voluntarily gave of themselves for their country, and a willingness to allow the anti-American Left to dictate how we fight the war in Iraq, even at the expense of the troops they so vehemently claim to support.

What does it mean to say that the Marine Corps has mishandled this case? Judge for yourself if this adheres to the Constitutional protections afforded a suspect in a crime.

• These proud Marines and corpsman were taken from a combat situation and questioned for hours in Iraq–in at least one case, seven hours–without food, water, or even a bathroom break.

• Marines returning home from redeployment must go through a COSC Redeployment Checklist that attempts to prepare them for “re-entry” into the life they left behind. They are given a Marine Redeployment and Reunion Guide that helps to explain some of the changes that may have occurred in their absence, and offers resources for coping with some of what can affect them emotionally when they return. These men were taken straight from combat into interrogation with no transition, no resources, nothing.

• They were told that they could ask for a lawyer, but that it “would be the biggest mistake of their lives.”

• The interrogations were not recorded in any way.

• They were shipped home and immediately incarcerated in solitary confinement, complete with connected leg and wrist shackles that a guard held when they went anywhere. They were not allowed a pen or paper, or even a toothbrush. Keep in mind that at this point, they had not been charged with any crime. Their shackles were recently removed, and they are now allowed to eat their meals with the other Marines. They also received access to a toothbrush, weeks after being initially confined.

• The Marine Corps claims that the shackles were consistent with pre-trial confinement, but there are no other cases where the accused are confined in this manner. In fact, the Marines that were involved in the Haditha incident, trumpeted by the media as the new My Lai, are not confined at all. One of them just received a promotion.

• The Corps has assigned each man two military attorneys; however, none of them have been able to do any work on the case. For three weeks the defense was completely stalled since all requests had to go through military defense counsel and the defense counsel were not available. One was moving to California from North Carolina, one was coming off reserve status, and some of them were already working 30 other cases.

Most people would be incensed by now. The above would never be accepted in a civilian court. Cases have been thrown out for much less.

But it gets worse. Much, much worse.

• The Marine Corps has denied the defense request that they be allowed to go to Iraq and interview potential witnesses and other involved parties. The prosecution claims that after the Article 32, they will decide whether a trip to Iraq is warranted, and may or may not allow the defense to go. This means that the defense will not be allowed to view the alleged crime scene; they will also not be able to talk to anyone that the NCIS may have overlooked.

• The defense has not been given access to the body to have an autopsy performed. The preliminary report showed that there was no evidence of a permanent disability or that the man was even bound by his hands and feet as the prosecution claims, but the prosecution has refused to give the defense the alleged full autopsy report–and it is not even certain that there is a full autopsy in existence. The body was brought to Dover AFB for a full postmortem, and then shipped back to Iraq and reburied without the defense being allowed near it. Something else that is noteworthy here is that one of those “anonymous officials” leaked that “Forensic investigators are ‘going to fast track’ their analysis in an effort to wrap up the case…” Apparently “fast-tracking” means not giving these eight men a fair trial.

• The prosecution has denied the defense’s request for all supporting evidence: the alleged full autopsy, forensic evidence, trajectory reports, and ballistic report. They claim that the evidence is “not complete.” If the evidence isn’t complete, wasn’t it premature to hold these men in shackles for three weeks before charging them? And how can you charge 8 men with murder without a complete autopsy and forensic evidence reports?

• Not only can the defense team not go to Iraq to talk to witnesses, there is “no assurance” that these accusers are going to be present at the Article 32–or the trial itself. Marine Corps Spokesman Sean Gibson says, “There is no mechanism in place to compel them to testify.”

This means that eight Americans could very easily be convicted of murder and be executed without ever facing their accusers, which is a basic right afforded to them under the Constitution.

Are you angry yet? You should be. The Marine Corps is blatantly violating nearly every right these men have in their rush to appease the bloodthirsty Left.

Perhaps most disgusting is their recent spending for a media center that will allow for a large number of journalists sharks to come watch their show trial. They can afford that, and yet can’t seem to free up military attorneys or resources to ensure their own men get a fair trial.

An interesting side note here is that not one human rights group has contacted any of the families. Neither has the ACLU. Apparently rights only apply to illegal immigrants, terrorists, and pedophiles.

This case is beyond a travesty, and many of us are left wondering what we can do to help. There is a great deal we can do, and in my final chapter I’ll give you some ideas.

These men don’t owe us anything. They don’t owe us an explanation or an apology. We don’t “need an investigation.” We owe them–a debt we will never in all our lives be willing to pay back. The least we can do is stand up for them now. If we don’t, there is no telling how far the slope will go.

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The Death of the Marine Corps, Chapter 4

A man who is good enough to shed his blood for his Country is good enough to be given a square deal afterwards.
- Teddy Roosevelt

To Stand

The story of the Innocent 8 is one that many people don’t even know. People tend to know bits and pieces, or they’re not aware of the full ramifications of the situation. The truth is that this case affects us all, for it signifies a new low in our nation.

When those who defend our freedoms are not even given the benefit of the rights we all enjoy, then there has been a failure in our justice system; a failure so completely basic that many may ignore it. They assume it can’t happen here. This is the United States of America, a place where pedophiles have the ACLU to defend their “rights” and terrorists in Gitmo are given Geneva Convention protections. It is unfathomable that American citizens would be treated worse than those who have conspired to kill us.

The even sadder part of this is that many of us are forced into a position where we have to condemn an institution that we love and support. The Marine Corps is an icon of the United States; it has given birth to many generations of proud warriors who have kept us free. As a Marine’s wife, I know that it could have just as easily been my husband sitting in a cell at Camp Pendleton, falsely accused. The cold knowledge that some of the Marines who wear the uniform of a devil dog are actually spineless and political and willing to sacrifice their own men to score political points is anathema; it is nauseating and heartbreaking.

But here we are, just the same, and unless we do something eight men stand to lose their lives for no other reason than the Marine Corps feels as though it needs to kowtow to the same people who would call them “paid assassins.” In all honesty, regardless of our best efforts, these men may die anyway. That fact should not stop us from acting; to the contrary, it should spur us to greater fortitude. One does not stop fighting because the fight may be lost.

So what can we do to stop this machine from crushing the Innocent 8?

• Call your Congressmen and Senators. Start with the Armed Services Committee (the HASC is here). This is perhaps the most important. Email them. Fax them. Tell them that you demand an independent congressional hearing into the rights violations that the Innocent 8 are being subjected to. The men did not give up their Constitutional rights when they raised their right hands, and even the UCMJ has provisions built into it to give accused servicemembers basic rights during an investigation, Article 32, and subsequent court-martial. These rights are being ignored.

• Tell your family and friends about the case. I cannot stress this enough. Inform people. Let them know. Talk about it. Post the story on your websites, or send it out to your email list. If you can send forwards about flowers and hugs and an occasional warning about kidnappers, then you can send this. This is a life or death fight, and it affects you.

• Talk to the media. Little towns all over America have local papers. The New York Times, Los Angeles Times, and Washington Post are beyond help, but there are hundreds of thousands of publications in this country, many of them run by good, American citizens who love their country and would be amazed and appalled to see the treatment these men are receiving. Submit letters to the editor. Write a guest column. Start a blog. Something.

• Organize a rally. Even a few people can make a difference. There have been rallies held outside Camp Pendleton for the last six weeks, every Saturday.

• Call into talk radio shows. Rush, Hannity, Beck, all of them. Call in, email them. Talk to them about this. Make sure they cover it.

Those are some of the things we can do to help their case on a grand scale. But what can we do for these men personally?

• Send them letters. One of the things that lifts their spirits more than anything while confined in the brig is to hear from Americans who believe in them, who honor them and pray for them and support them. It costs a few cents to send a letter and it means the world to them. Please, if you do nothing else, do this.

• Contribute to their defense fund. Civilian attorneys, even at discounted rates, cost money. Experts cost money. These men are literally fighting for their lives, and can use everything you can possibly give. Their families are cleaning out retirement funds, refinancing homes, and doing everything they possibly can to scrape enough money so their sons and husbands get a fair trial, but this dog-and-pony show looks like it will go on a while.

• Send them books. What if you were in an 8×8 cell for 23 hours a day and were innocent? Sending these guys things to read can at the very least keep time moving for them. PFC John Jodka likes conservative political books, like Ann Coulter and Sean Hannity. He just finished reading Ilario Pantano’s Warlord. Keep in mind that if you do send books, they need to come directly from Barnes & Noble, Amazon, etc., so you’ll need to send them as a gift. They can share books, as well, so sending one of them a book means that the other men will probably be able to read it as well.

The Innocent 8, at this moment while you read this, are sitting in cells about the same size as your bathroom. They have been there for weeks with no recourse, no way to fight for themselves, no way to defend themselves against these charges. They have stood for us. We owe it to them to stand now. The fight is uphill, and there are those who will not listen. Many people want to see the United States fail as a country, and would even like to see these Marines die. But we know in our hearts what the difference is between right and wrong, and we sit here today because of men like them.

I challenge you to stand up for the rights we enjoy. I implore you to stand for these men. I ask you to do what is right. Demand an independent Congressional hearing into the Hamdaniya 8.

If we don’t, and these men are found guilty, the Marine Corps will no longer be an institution of honor, of duty and devotion to Country. It will simply be a long-forgotten ideal, a reminder of the past greatness of our nation.

A defeat in the courtroom for the Pendleton 8 means a defeat for our country in the War on Terror. The enemy already uses our media, and to know that they can succeed in killing Marines simply by making up stories about them…if this case ends in a conviction, then we have already lost.

Hard pressed on my right. My center is yielding. Impossible to maneuver. Situation excellent. I am attacking.
- Ferdinand Foch, at the Battle of the Marne, 1918

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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

Copy to:
File
Trial Counsel
Convening Authority

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Just When You Thought it Couldn’t Get Worse

After the revelation Friday that the Marine Corps would not allow these men to face their accusers (among other things), we thought it couldn’t possibly go any worse than it already was. If you don’t think it’s bad, check out the case timeline.

It has gotten far worse.

21JUL07: Government notifies defense of: (a) additional prosecutors (LTCOL John Baker, Senior Trial Counsel; Major Don Plowman, Major Daren Erickson, and Captain Nick Gannon - in addition to LTCOL Sean Sullivan and Captain Timothy Garrison);

They’ve replaced their lead prosecutor. Why? They’ve added more prosecutors. Why? John Jodka Sr., father of one of the accused, asks, “Was he not ‘towing the line’? Was he setting justice first and political correctness second? What does this tell us in addition to the lack of a case; cracks appearing in the prosecution team?”

(b) its intent to go forward with an Article 32 on 01AUG06 at 0900;

Right now, the defense has nothing it needs from the prosecution to do its job. No ballistic reports, no autopsy, no witness reports, no one to cross-examine–all because the procesutors refuse to turn it over to them, saying it’s “not complete.” So we are one week away from the beginning of an Article 32 hearing and there is no defense.

(c) its intent to call PFC Jodka as a witness to testify against his squad mates - and vice versa; and

What is this? First they put these men through interrogation techniques that aren’t allowed at Guantanamo, they get at least two innocent men to sign false statements, and now they plan to pit them against each other when each other is all they have. This is beyond the pale, truly.

(d) that key witnesses will not return from Iraq until “mid to late August 2006?

Do you know what this means? The defense not only isn’t allowed to have the evidence, but they’re not going to have any witnesses, since they’ll still be deployed in Iraq and the Corps has no intention of bringing them home.

What is going on here?

Some have asked me if the Marines are setting these men up to be convicted, or if they’re planning to simply hold an Article 32 in front of the world’s cameras so they can save face with the Iraqis and the press, then just dismiss the charges on a technicality and let the men go with a “Semper Fi” and no “thank you for taking one for the team.” In fact, one person even told me that perhaps we should stand down as citizens calling for justice and “let the system work…the Marines know what they’re doing.”

Oh really?

So they put them and their families through the media circus and shame of an Article 32 and possibly a court-martial as well, and then dismiss the charges. Does that make it right?

What about the fact that these men were denied basic rights that are afforded to all Americans? What about the fact that these men will have the accusations hanging over them for the rest of their lives–no matter what happens? What about the wasted millions of dollars spent on this fiasco–your taxes, I might add? What about the smeared honor of the Marine Corps, and even the American military as a whole? Or does none of that matter? The end justifies the means? “It’s okay to ruin the lives of eight men and their families as long as we look good to the rest of the world, and especially our enemies?”

This is shameful. I am flat-out appalled, I am angry, and I will not accept this. It is unconscionable to think that this situation could occur in our country. Where are the human rights groups? Where is the ACLU? Where are the regular citizens that these men were defending? Stand up and do something!

You can start by contacting the REMFs at Camp Pendleton.

MG Natonski (CG of 1st MARDIV)
Camp Pendleton Marine Corps Base
Camp Pendleton, CA 92055

When you’re done with him, go to this guy.

LtGen Sattler (CG MEF)
Camp Pendleton Marine Corps Base
Camp Pendleton, CA 92055

Let them know that our boys deserve better than to be treated worse than the animals trying to kill us. Demand that they look into this and do their duty. Demand that they take care of their Marines instead of throwing them under the bus to be crushed by the political games that everyone wants to play.

One closing thought: Israel is moving heaven and earth to get a few soldiers back. We’re railroading ours and treating them like terrorists. Think about that.

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The Problem With Confessions

Last night on the radio I was discussing this article by Chris Roach on the Innocent 8.  Roach’s belief that the seven Marines and Navy Corpsman are guilty is based on “statistical probability” and his assertion that “there are likely very few false confessions in the American judicial system.”

There are quite a few problems with Roach’s research, however, and the conclusions that he makes are, by nature, also erroneous.  The problem is that those who read Roach’s intellectual-sounding ramblings could very easily be swayed into believing that the Innocent Pendleton 8 are guilty, and nothing could be further from the truth.  Let’s take care of this “confession” argument once and for all.

Errors + Errors = Wrong Conclusions

Before we get started, let’s take a look at something that should tell you right away about how much Roach knows concerning the case.

“…the foundation of [the Pendleton 8’s] defense are the alleged conditions of their clients’ confessions.” - 9/13/06

This shows a misunderstanding of the basic facts of the case, and especially the defense.  The “foundation of the defense” is that the men did not commit the acts they are charged with.  It’s not a complicated thing here.  They’re not saying “We’re hoping to get off on a technicality.”  They’re saying, “We did not kidnap, tie up, steal from, or murder this man.”

Now that you’ve seen the above statement from Roach, you can better understand my point.  If you don’t even understand the facts, everything after that will be a faulty conclusion.

Roach goes on in the same article to talk about the “confessions” that the men supposedly made.

These incriminating statements are the key to the case.

Not so, says Donald G. Rehkopf Jr., who is a former Air Force prosecutor and defense attorney with a robust 30 years of experience trying cases.

“Confessions should be the icing on the cake,” he said. “If all the prosecution has are incriminating statements, then their case is weak.”

Weak?  You mean confessions aren’t the “queen of proofs,” as Roach claims?

The public generally considers confessions to be much more powerful than the legal profession does…

Prosecutors need supporting evidence because “of the very high percentage of confessions that are totally false or half false,” said Rehkopf, now a civilian attorney who practices law in Rochester, N.Y.

“Just look at John Mark Karr’s totally bogus confession in the JonBenet Ramsey case,” he said.

Jack B. Zimmerman, a noted defense attorney from Houston, agreed with Rehkopf’s assessment.

“I don’t think it is hopeless for the defense’s case if there is a statement,” Zimmerman said.

Roach isn’t finished, however, and goes on to reiterate his claim that the Marines and Corpsman are not “acting innocent.”

Why would someone that is a Marine–tough as nails and schooled in the importance of honesty and integrity–wimp out as soon as he is confronted by an NCIS investigator if he were actually innocent, did nothing wrong, and saw an incriminating diagram that had no relation to reality?

Well, let’s see.  Here’s a list of factors that may have contributed to that.

• The men were pulled straight from combat into questioning with no down time, no “decompression,” no changes in scenery.  They were interrogated, in theater.
• They were questioned for 7 hours or more, without a break, including trips to the bathroom.
• They were denied legal counsel during the interrogation, even though they asked several times to speak with an attorney.  Magincalda was not assigned an attorney for eight days after he returned from Iraq.
• The NCIS have a whiteboard in their area in Iraq, where the men were interrogated, that has a piece of rubber hose above it.  The caption beneath it reads, “My Psychological Friend.”

Just in case you were wondering, some of the above tactics are heralded by the Left as being inappropriate for use at Guantanamo Bay.

Confession?  Statement?

Now let’s take a look at what exactly the difference is between a confession and a statement.  It’s not all just choice of verbiage.

“A confession is an admission that an alleged crime was indeed committed. A statement could recite facts that state an act occurred, but provide legal justification (for it),” Zimmerman said.

The men could have made a statement saying, “Yes, we took fire from this man.  We returned fire, and we killed him.”  That’s not a confession.

Roach would ask why the defense attorneys are looking to suppress the statements if they truly are not incriminating.  Again, let’s think about this.  It’s really rather simple.

If the statements were taken under duress or during improper questioning, then they are not valid “confessions.”

Is there anything in the statements that is demonstrably false? If there is, maybe (the defendant’s) memory is screwed up or he is inventing it because he is being pressured.

“You also look at all the statements for similarities and dissimilarities. If they read too much the same, then maybe the agent doing the questioning was writing the statements and just having the person sign it.”

Let’s also consider the fact that NCIS’ reputation precedes them.

“If there is a bright spot for the defense, it is that there are many more problems with the Naval Criminal Investigative Service taking statements compared to civilian (police department) investigators.”

Take Your Numbers And…

Roach likes numbers.  He spouts statistics about conviction rates in the U.S., the use of DNA to clear some who maintain their innocence, and the success rate of those DNA tests.  Here’s the problem.  (Or, should I say, here is the list of problems.)

• Parameters need to be comparable to actual incident to be able to draw inferences. Would it be fair to make a conclusion about a case where a battered wife killed her husband based on data from gang murders and serial killers?
• Research needs to have been done using military statistics and interrogations tactics. Again, you cannot compare the civil court system with the military justice system.  These are apples and oranges.
• Research needs to have been done on those cases in which all physical evidence points to the innocence of the defendants. Don’t make a statement based on a pile of cases where the evidence points to the accused as being guilty.  You’ll notice that there is no physical evidence in this case pointing to guilt.  All they have are the statements.
• Research needs to be done in cases where proof of improper interrogation methods being used are presented in court as evidence. I’m sure there will be a wealth of information about improper conduct on behalf of the NCIS agents presented at trial.  If you think I’m wrong, go read the list above again.

Bottom line:  Statements do not mean an open-and-shut case.  These men will have their day in court, and the burden of proof is on the prosecution - not the defense.  Too many, including Chris Roach, seem to have forgotten that.

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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