Today’s Virginian-Pilot reports here that the government has denied immunity requests for five Sailors who “could offer testimony contradicting the government’s main witness in the controversial prosecution of three Navy SEALs accused of mistreating a suspected Iraqi terrorist.”  The witnesses include two officers who led the team that captured Ahmed Hashim Abed.  The witnesses’ lawyer, military counsel extraordinaire Charlie Gittins, said that their testimony “would be inconsistent with some or all of the statements made by Petty Officer 3rd Class Kevin Demartino, the Navy master-at-arms who claimed to have seen a SEAL hit Abed while he was being held in a U.S. detainee facility after his capture.”

The article indicates that a hearing is scheduled in at least one of the SEALs cases for 8 March.  The issue may be raised before the military judge then.

13 Responses to “Five defense witnesses for Navy SEALs reportedly denied immunity”

  1. Anon says:

    I realize that all we have is what the Virginian-Pilot tells us. But Doesn’t there have to be more of a showing that the witnesses “could” offer contradictory testimony and that their testimony “would be inconsistent with some or all of the statements” made by DeMartino? Unless there is more than is reported, this all seems pretty speculative to me. I can’t imagine any convening authority granting immunity based on what we know from the article.

  2. Some Army Guy says:

    Why do they need immunity to testify?

  3. Charles Gittins says:

    The witnesses were read their rights for obstruction of justice, largely because their sworn statements were different than Demartino’s multiple serial inconsistent statements. I provided detailed proffers to the convening authority for 3 of the witnesses; the CA made the decision not to provide immunity for any of the 5 before we were able to complete the proffers for the last 2 and send them to the CA on Friday, as planned (and reported to the prosecutors). All of the proffers have or will be provided to defense counsel so that they make use of them as the see fit in motions practice.

  4. Anonymous says:

    Interesting having an attorney representing witnesses in the cases commenting in a public forum . . . .

    More interesting that he is representing 5 witnesses in the cases and requesting immunity for all of them.

  5. Anonymous says:

    Interesting how the prosecution gets to decide which witnesses are lying. And how it usually comes down to it being the defense witnesses who are accused of lying. Whereas the prosecution witnesses have just a few minor inconsistencies “due to memory and the passage of time.” But when a defense witness says that they are accused of “lying and making a deliberate falsehood.”

  6. JWS says:

    Well, it is pleasant to agree with Anonymous.

    You guys are the crim law experts. But, isn’t there a constitutional problem with the gov’t using its power to keep exculpatory evidence from the jury?

  7. TG says:

    JWS:

    You are absolutely correct. As I pointed out to COL S., this case, because of its political and public relations issues, would seem to be a “bad vehicle” (quoting Justice Ginsburg) for this issue to come up from the perspective of the Government.

    It has been a point of great frustration to the defense bar the use of Art. 107 against defense witnesses. I myself had witnesses threatened in a case (depending on who you asked – Trial Counsel called it ‘advising witnesses of the consequences of their actions’).

    This case – as has been pointed out several times before – has such great possibility of having the unusual aspects of the MILJUST system, when compared to the civilian system, being highlighted and publicly attacked. Just today, I spent quite some time explaining this issue to two separate counsel – one a civil practicioner, the other a prosecutor. Interestingly, BOTH had the same attitude: the use of Art. 107 as a hammer to beat witnesses with (or piling it on to a defendant who claims his innocence)is indefensible. The prosecutor was the most interested. He pointed out that if he tried something like that, any civilian jury would crucify him – not to mention he was sure he would be summarily reversed on appeal in any civilian court, state or federal.

    Prediction: if these witnesses don’t get immunity, don’t testify, and there is a conviction, this will be Assignment of Error Number One at CCA and CAAF, and very possibly, heard by the Nine as well.

    I would LOVE to be part of that appeal – but I don’t want to see it happen. Again – our brothers running this case from both sides need to remember this case has HUGE implications for the UCMJ and the military as a whole. Tread lightly, please!

  8. JWS says:

    So, another question: If the Gov’t gives immunity to witnesses to make ITS case, wouldn’t make the abuse of power pretty clear? Putting aside the fact this power makes the 6th Amendment an illusion, isn’t there an equal protection issue here?

    This leads me to a worry. Just what is going through the convening authority’s mind? Unit cohesion is the central problem for any combat leader. SF forces are more dependent on unit cohesion than most units. And the war in Afghanistan is especially dependent on the operational skills of SF units. The CA is striking a big blow to unit cohesion in his key units with this chippy charge.

    What do they they think is going through the minds of the troops when they see the gov’t, led by a dogface general, use its power to keep exculpatory evidence from the panel? Do the troops think they will ever get a fair shake? Does ANY Navy unit now want to work joint ops with the Army? Somebody needs to go to these guys & quote some of Patton to them.

    As I said before, IF the charges are true (the IF gets bigger by the day), it is a matter that belongs with the good judgment of the the equivalent of the company top or chief of the boat. None of this warranted Captain’s Mast.

    This just plain stinks. No honorable man would think this is a fair process. This is what I would expect from a Soviet apparatchik or a Chicago pol — not a commissioned officer.

    By the way, if you want to see a stark contrast in character at JCS, compare Gen. Conway’s testimony before Congress today with Gen. Casey’s bleating about diversity.

  9. Dwight Sullivan says:

    Tango Golf,

    While I agree that there would be interesting appellate issues in the SEALs cases, even if they’re convicted their cases are extraordinarily unlikely to ever reach an appellate court. It seems highly implausible that any will be sentenced to a BCD or a year of confinement. If not, a conviction in the case could reach NMCCA only if referred by the Judge Advocate General of the Navy — and when is the last time the Judge Advocate General of the Navy made such a referral?

  10. JWS says:

    Col. Sullivan:

    Does this mean that, if convicted, these troops would lose their career, have a record of a CM, and yet be denied an appeal?

  11. TG says:

    Interesting comments from both JWS and COL S. If I may:

    COL S: I aree – there might not be appellate review here. Two thoughts come to mind. 1) Assuming arguendo that these SEALs are 100% guilty, could it REALLY be said their conduct is less severe than the run-of-the-mine CM defendant? After all, we all know how the BCD is almost automatic these days. Which brings me to – 2) If you are the defense counsel, do you consider striking for the BCD, specifically to trigger the appellate review? Dangerous, true. But on the other hand, there’s going to be an ADSEP anyway, so there is the idea there is nothing to lose. Somehow I suspect this issue is already on the strategy sheet for both sides.

    JWS: Thanks for reminding me about the 6th Amendment issue. I think that’s an interesting route of attack as well against this nonsense. Good argument! Again, I’d love to try it.

    I think the answer to what the CA is thinking comes down to politics. I don’t know if you know Ira Mickenberg (a undercover hitman for the Mossad if I have ever seen one – :-) ). Ira pointed out to me one day the CM system is the fairest criminal justice system in the world 90%, but in the last 10%, it turns into a railroad. I suspect the CA is understanding (either explicitly or implicitly – can we say UCI?) that a conviction is desired here to “prove” to the rest of the world that we are “fair”. Unfortunate, but that’s a recurring theme in politics.

    As for joint ops, well – it was brought out in stark reality to me when I was downrange of the great gulf between the culture of the services. I’ll be happy to tell you the story of watching an Army Captain supervising a Specialist changing a tire, or of the Major who could not fathom the concept of deference to a Chief in the operation of his division. I will say: the next time I go downrange, I’m going with the Corps – PERIOD. Always keep your brothers around you. Interestingly, our UK and AUS brothers had virtually the same problems, with the same services playing the same roles.

    All that being said: Joint Ops is here to stay. We’re going to have to work out these issues. Lots of potential solutions, including deals that keep CM authority inside the service chains. Its a problem, yes, and it is potentially crippling to the combat units, especially SF/Spec Ops/Special Warfare. We’re going to have to work this issue out.

  12. Dwight Sullivan says:

    JWS, in a word, yes. While I’m a fan of the military justice system, the system’s failure to provide a right to appeal a contested conviction if the sentence falls below a certain threshold is a weakness that Congress should correct.

  13. JWS says:

    I’ll be happy to tell you the story of watching an Army Captain supervising a Specialist…

    There is a famous story about Patton on this issue. What the captain was missing, of course, was a sergeant. The SNCO in me has to chuckle.
    Col. Sullivan:
    Tell me when there is a bill & I will write. Heck, even Jim McDermott may go along with this.
    That said, no appeal, … wow!! You get an appeal even for traffic infractions around here.