I’ll try to post a much longer synopsis of today’s proceedings in the McCabe court-martial later tonight.  Here’s the Reader’s Digest version.  The Government completed its case-in-chief.  The lead-off Government witness for the day was MA3 Demartino, the individual who reported that SO2 McCabe had struck the detainee.  The defense actually began its case-in-chief during the testimony of the next prosecution witness, when it took him on direct following cross.  (More on that later.)  The witness was a SEAL officer who had been SO2 McCabe’s and MA3 Demartino’s detachment OIC in Fallujah.  The Government rested this afternoon and the defense continued its case-in-chief.  The defense case will resume tomorrow morning at 0830, with telephonic testimony from a deployed witness.  It seems likely that the case will go the members by tomorrow afternoon.

Alas, I won’t be here to see it.  I’m heading back up to D.C. shortly.  Before I do, I’ll share my overall reaction.  MA3 Demartino’s testimony sounded credible enough while he gave it.  His reasons for not initially making his accusation against SO2 McCabe seemed to fit well with human nature.  He freely admitted his own derelictions of duty and was critical of himself for initially lying to his OIC about what he knew.  On cross, Neal Puckett did an outstanding job of collecting nuggets to use later during closing, including getting MA3 Demartino to agree that someone who lies is a liar.  (I think the members will hear that phrase again.)

But after MA3 Demartino’s testimony, witness after witness contradicted portions of his account.  I’ll post more details later.  Most of these conflicts aren’t the kind of thing that two people might have different honest recollections about.  Rather, to convict, the members would have to believe that a number of officers and petty officers–SEALS and non-SEALs–are lying. 

Not all of the evidence is in.  But absent a self-inflicted wound by the defense — an implausible event with this defense team — or some dynamite rebuttal evidence (that would have been presented during the Government’s case-in-chief if it existed), it’s almost impossible to imagine any outcome other than a finding of not guilty to all charges and specifications.

I truly believe that I came down here with an open mind.  This afternoon, I thought about how I would view the case if I were a member (and I disregarded the instruction not to reach a conclusion before all of the evidence was in and the case was argued).  Based on the evidence presented thus far — including the Government’s entire case-in-chief — I would conclude that the Government has not established its case beyond a reasonable doubt.  In fact, if this were a civil case, I would find that the defense prevails under a preponderance of the evidence standard even before seeing the complete defense case.  Maybe other observers will differ, but that’s my honest reaction to the evidence thus far.

7 Responses to “McCabe SitRep”

  1. Anonymous says:

    The bromance is over :(

  2. Christopher Mathews says:

    I once had a drug case in which my sole eyewitness spent his off-duty time in the two days prior to trial locating witnesses for the defense to use to impeach his credibility.

    Sometimes, the prosecution case flight path just has a sharp downward trajectory.

  3. Anonymous says:

    Case should have never gone to trial.

  4. DB Cooper says:

    At the risk of counting chickens before they are hatched, why didn’t the gov’t pick up on these weaknesses earlier? I can’t recall if this is a BCD-Special or a GCM, but if the latter, wasn’t the handwriting on the wall at the 32? Didn’t the investigators (NCIS, CID – whoever handled this) realize that the sole eyewitness was contradicted by several other sources? It seems like another instance of an SJA giving his/her GCMCA some lousy advice, i.e., the “no pregnancy order” and court-martialing the single Mom whose family care plan fell through.

  5. Southern Defense Counsel says:


    This is a SPCM, so no 32. As for why this wasn’t killed earlier, I guess the only person who could answer that would be the CA, or possibly his SJA. It may be a case of the die being cast – the CA HAD to go forward after the press reports/congressional pressure (irony?). Or perhaps they were sold a bad deal by the investigators/SJAs who said the case was better than it was. Or maybe it was just the thought that a SEAL cannot just say “I refuse NJP” to get out of a messy CM.

    That said, the inner DC in me wants to shout “Don’t count your chickens yet!” Members have been known to do wacky things. Still, I have more faith in this panel than a civilian jury. I trust the right result will be reached.

  6. JWS says:

    May I revive my comments about a possible failure to understand the culture of another service? CA is an Army general of no small accomplishment — but a dogface nonetheless. Did he really think the SEALs would fold? When Puckett & crew came on board? As has been made clear on this blog, the Army treat Art 15 offenses very differently than the Navy.

    By the way, just how the heck did a soldier get to be CA in this matter?

    I am increasingly of the view the good general has been very ill-advised, as was General Mattis before him.

  7. Thomas F. Hurley says:


    There’s no telling exactly how this whole thing happened unless you talk to the counsel involved. I don’t think this or any CA – regardless of his/her service – refers cases believing that an accused will fold.

    I would analogize this to a sexual assault case where the reporting victim has an implausible (at best) story. The government is stuck with a serious and self-defeating allegation but feels duty-bound to go to trial anyway. Bonus in detainee abuse cases — you actually get to put the victim on trial.