After less than an hour of deliberations the members returned Not Guilty findings in the court-martial of SO2 McCabe.  More later.

29 Responses to “SO2 McCabe Not Guilty”

  1. Anonymous says:

    Just another in a long line of results that turn our preaching about the rule of law on its head. Nearly all the Marine cases from Fallujah (Nazario, Weemer) ended this way too. We preach about building the rule of law in Iraq and Afghanistan, but the way these case have been litigated and prostituted by the media gives us results that make us look like hypocrites.

  2. Anon says:

    Just another event in the fog of war… Hold on – I forgot – these guys went back to the holding cell after they had SAFELY RETURNED from mission and transferred the detainee. No doubt he did it, just not sure it was a SPCM conviction. Where is OJ now?

  3. Presley O'Bannon says:

    Anon 627: Did it occur to you that maybe they didn’t do it, and that’s why they were found not guilty?

    Or are you saying it would be better to convict the innocent in order to send a message about the “rule of law”? If so, I believe that would be a contradiction in terms.

  4. Rob M says:

    Like with the other two, this seems to vindicate the decision to refuse NJP.

    I have more faith in the factfinding and adjudicative integrity of the military justice process than others do, apparently.

  5. Anonymous says:

    Jury nullification pervades the military justice system as much as it does other places. When judges drink the Kool-Aid spewed by the media and get star crossed with the accused, they let the Defense off the leash and once that happens the system you love so much becomes a joke.

  6. Anonymous says:

    And you know he is innocent? Wow, how do you know that? Have you ever tried any courts-martial? Any on teh TC side?

  7. Cap'n Crunch says:

    Who was let off the leash? Are you suggesting that there was guilt beyond a reasonable doubt when you have a terrorist’s word and that of an admitted liar against the word of a number of others? Might McCabe have done it? I suppose we can speculate. But the government had the burden of coming forward with evidence beyond a reasonable doubt, and they just didn’t do it in this case.

    As for the judge letting the defense run roughshod, perhaps you can cite to some examples of this alleged behavior, where the prosecutor lodged a proper objection, which was overruled by the judge?

    Thanks for playing Anonymous.

  8. Anonymous says:

    If the case is tried on a level playing field and there’s an acquittal, the result is more reliable.

  9. Presley O'Bannon says:

    Anon 645: I’ve done it all brother–to include time as a pissed-off, overworked TC at an LSSS. But it sounds like you could use some time on the DC side to balance out your perspective.

  10. Anonymous says:

    The judge allowed the Defense in its opening to argue. “Why are we here?” You learn that’s a no-no in Trial Ad 101 in law school. The judge then allowed the Defense to set up and use an easel while the G was playing a taped depo and note alleged inconsistencies in the witness’s statements. So she let them argue at that point too. If that’s the way you litigate cases, then whatever system you work in is a joke. Methinks, however, you have very minimal actual experience. Thanks for playing Captain Nutsack.

  11. Anonymous says:

    Presley- I bet you were pissed off because you hated having to carry a burden and wanted to get over to Defense the entire time so you could cut out at 1400 everyday. Kind of like 45 did when I was at 46 when they were whining they were short-handed.

  12. Cap'n Crunch says:

    Was the “why are we here” objected to? If so, was there a ruling on it? Curative instruction?

    As for the depo… it might have been better, in your view, to have let the government play it, then to have had the defense get back up, play it again, and do the same thing, right? Or even have done it in closing (which would have been fair game)?

    It was the Government who made the choice NOT to have the accuser/terrorist come in (or to have tried the case in Iraq) — which they could have done.

    I fail to see where any of these shortcomings deprived the government of a fair trial.

    Maybe you are one of those government hacks who is so used to getting your way all of the time all over a courtroom that having a fair and balanced trial is not “fair” to you. In that case, all I can say is welcome to the real world where litigated trials have two sides to them where both sides can fully and fairly present their case.

  13. Anonymous says:

    And in these courts the “real world” was “realer” than real for the Defense. And BTW, these cases have about the worst jury apppeal in history. Anytime your victim is a “terrorist,” you have it made. Which brings thsi up: Define irony: CAAFlog bloggers spend years saying GITMO detainees are not terrorists and have rights of US citizens, then say this detainee is a terrorist and has zero rights. Hmm….I guess one man’s unjustly treated detainee is another’s terrorist.

  14. Anon says:

    So, are these prosecutors’ careers pretty much over now? Three straight acquittals in high profile cases can’t be good. If I were the SJA, these guys would be getting very familiar with admin law…if you know what I mean.

  15. Not says:

    The seamen are pissed!! Hey kids, he may have done it, so what????? The gov’t could not convict anyone and they held all the cards. (venue, witnesses etc.) Not sure if this is a Trial counsel issue or if this was just an example of being hamstrung by an NJP turndown and having to go to trial regardless. The SJA is the one who advises the CA right?

    Anon 825, on what are you basing your estimation of poor performance? Maybe the SJA should be getting familiar with retirement benefits???

    Anon 701 you aren’t really arguing that a service appellate defense job is “easier” than an appellate gov’t gig are you? If so, you lose all credibility .

    As for the flamers in here arguing this speaks ill of the MJ system, why? Because unbalanced news coverage told you he was guilty? To borrow a phrase from Anon 655, get serious nutsack.


  16. Southern Defense Counsel says:

    Wow, lots of rancor on this site. A bit surprising, given the previous postings. To those who are carping, it seems that the prosecution wholly failed to carry their burden. It is possible that McCabe et al are innocent. It is possible that someone else hit the detainee (DeMartino? One of his buddies?). Or it is possible that they did it and that despite the best efforts of the TCs the evidence just wasn’t there. I found this an interesting civics lesson if nothing else.

  17. JWS says:

    Let’s see here, I’m the lone SNCO amongst all you officer-types — and now I’m the guy has to tell y’all to hold the invective & play nice? Anonymous & Cap’t Crunch need to watch their language.

    I am withholding judgment until we hear more about the last day. From what I have seen, however, there is no physical evidence that Abed was struck where he said he was struck. Given Abed’s baggage, that is a poor case in any common law tribunal. Then there is the fact the lone eye witness has had his credibility destroyed.

    I’m a civil trial lawyer & have been at this 33 years now. This not a case to try even at the preponderance of the evidence. Beyond a reasonable doubt & to a moral certainty — are you kidding? No one has offered any reason to believe Abed — so far.

    I don’t suppose the age-old debate about jury nullification is ripe for this group, but the fact is juries respond badly to unfair prosecutions. Most of the officers & SNCO’s I know are very fair-minded & understand the baleful consequences of an unfair prosecution & conviction. This WAR, guys, & y’all gotta lead these troops in to Hell. I say again — methinks the good General Cleveland has been ill-advised & does not appreciate the naval culture.

    Oliver Wendell Holmes on war:

    If you wait in line, suppose on Tremont Street Mall, ordered simply to wait and do nothing, and have watched the enemy bring their guns to bear upon you down a gentle slope like that of Beacon Street, have seen the puff of the firing, have felt the burst of the spherical case-shot as it came toward you, have heard and seen the shrieking fragments go tearing through your company, and have known that the next or the next shot carries your fate; if you have advanced in line and have seen ahead of you the spot you must pass where the rifle bullets are striking; if you have ridden at night at a walk toward the blue line of fire at the dead angle of Spottsylvania, where for twenty-four hours the soldiers were fighting on the two sides of an earthwork, and in the morning the dead and dying lay piled in a row six deep, and as you rode you heard the bullets splashing in the mud and earth about you; if you have been in the picket-line at night in a black and unknown wood, have heard the splat of the bullets upon the trees, and as you moved have felt your foot slip upon a dead man’s body; if you have had a blind fierce gallop against the enemy, with your blood up and a pace that left no time for fear …

    Makes a punch in the gut seem pretty small, doesn’t it? Even if it actually happened — which the jury concluded it didn’t.

  18. Mike "No Man" Navarre says:

    What I think everyone forgets is thay the evidence that sunk the governmwnt’s case wasn’t known when the case was referred. All the witnesses invoked and refused to give statements. And whether the TC was right or not about circling the wagons is irrelevant because none of that was known to the CA at referral. I’d have to agree with the General (see post above this one) and say that in light of the refusal and evidence he had, referral and trial were valid choices.

  19. Anon says:

    It’s almost as if you know the prosecutor or something…

  20. Mike "No Man" Navarre says:

    Since I was chastised with a strongly worded comment the last time I joked about the TC in this case’s qualifications, I will just leave anon 2203’s comments as the only humor on this thread–at least for now.

  21. AdamC says:

    A toast to all those involved, well played. This will be talked about for a long time to come.

  22. Anonymous says:

    Didn’t the Government oppose giving these witnesses immunity? So were they on a search for truth, or a search for a conviction?

    And whether a case is post-referral or pre-referral, the CA is always in the drivers seat–if the TC’s realized that the facts on the ground had changed, you would think they would have gone back to the CA, who could have withdrawn the charges. And maybe they did go to the CA, I have no idea.

    But the ultimate point, is that the CA doesn’t get a free pass by saying that there was post-referral evidence and his hands were tied and he had to go forward, as that simply isn’t true under the UCMJ.

  23. John Harwood says:

    I love it when an “Anonymous” calls someone out who actually has the spine to use their own name. IMHO, the ability of just one man to send a case to trial, whether based on actual belief or caprice, says more about the rule of law under the UCMJ than the outcomes of these cases.

    And if we’re playing this game, here goes: 5 years as TC and STC, 4 years as DC and SDC.

  24. Anon says:

    It is very interesting that the Prosecutors will use witnesses who call themselves a liar on the stand (this is the second time in recent trials) and nothing happens to them as a result of that disclosure. The prosecutors and CA have no problem alleging false statements against the accused, but not against their own witnesses. If they pursued false or conflicting testimony made by their own witnesses as vigorously as against the accused, I believe many of these charges would never be referred. It is the function of investigators to search for the truth as much as it is for the CA and prosecutors. It seems like the investigators get a story they like and stop looking, or discard statements that might not fit. Thanks God this panel saw through the trappings of the UCMJ.

  25. JWS says:

    Is it ethical for TC or DC to offer testimony that he or she does not have a good faith belief is true? Is it honorable for an officer to do this in any circumstances?

    As I have said, this sort of prosecution is very destructive of unit cohesion. Echoing the Mayaguez incident, if I was a SEAL or Force Recon Team commander, I would be very leery of serving under an Army or AF officer.

    The Rule of Law is NOT served by letting deceitful and mendacious accusations play out like this. In fact, it just proves to the enemy that “Rule of Law” is just more sophistry by a capricious sovereign — something they are very accustomed to.

    And if that MAA does not lose his crow, there is something very wrong.

  26. Article16 says:

    TCs and DCs can ethically present any relevant evidence, even weak evidence, unless they “know” it to be false.
    DCs are allowed to cross-examine people they know are telling the truth–i.e., they can try to portray them like liars.
    Prosecutors however should not cross-examine people they know to be telling the truth–this is per ABA standards for prosecutors, and I’m afraid many prosecutors don’t know or abide by the guideline or do they do a “how can we ever know a person is telling the truth” rationalization.

  27. Anonymous says:

    Looks like those wagons rolled over grover. Was he the TC in all 3 cases?

  28. Anonymous says:

    You guys have FaRT commanders? They lead those that are silent but deadly?

  29. John Harwood says:

    If these cases send any major message to our enemies, I think it might be this: their tactic of claiming abuse after being picked up works. We court-martialed 3 elite special operators on the abuse claim of a terrorist. My favorite former DJAG might lament this use of “lawfare” against us.