It’s almost 0200 and I’m calling it a night.  I’m less than half-way through writing a way-too-long description of what happened Wednesday at the McCabe court-martial.  So I’m posting the Reader’s Digest version below instead.

MA3 Demartino testified.  He describing seeing SO2 McCabe hit Abed in the abdomen.  He also testified that he was friends with SO2 McCabe and that they hung out together, which made the decision whether to report the abuse very difficult.  He also testified that he thinks other SEALs also abused Abed the night of 1 September, but he didn’t personally witness that.

After a 10-minute direct, MA3 Demartino was crossed by Neal Puckett for 50 minutes.  Mr. Puckett emphasized that MA3 Demartino had been derelict in various duties and had lied to his Det OIC.  MA3 Demartino readily agreed with all of those allegations.

During both the direct and the cross, MA3 Demartino described a number of conversations and encounters with petty officers and officers.  Three officers and three petty officers would specifically deny those accounts during testimony later in the day.

MA3 Demartino’s testimony was probably the most important portion of the court-martial.  While it seemed internally consistent, as noted above, it was inconsistent with the testimony of several other witnesses.

The second witness was the NCIS agent who took the allegedly false statement from SO2 McCabe.  He was on and off the stand in a few minutes.

A Mass Communications Specialist First Class (MC1) then testified.  (Why can’t the Navy just call its E-6s “staff sergeant”?)  She essentially laid a foundation for photographs she took of Abed before the alleged assault.  The defense tried to take her as its own witness after cross, but upon Government objection, the military judge ruled that that testimony should await the defense case-in-chief.  She testified for the defense in the afternoon, flatly contradicting portions of MA3 Demartino’s testimony.

The next witness was an Army medic who screened Abed after he had been turned over by the SEALs to the Iraqis and then been reacquired by the U.S. forces 36 hours later.  He described seeing a flat, bloody lip.  I believe he also testified that he noted an abdominal abrasion on the medical screening form, but I’m not certain of that.

The next witness was the Det OIC.  He was the SEAL officer who noticed blood on Abed that hadn’t been there earlier.  On cross, Mr. Puckett brought out information about Abed’s suspected involvement in the killing of Blackwater contractors in Fallujah in 2004.  The Det OIC also testified that Abed is believed to have killed hundreds of Iraqis, including cutting heads off and dumping bodies in mass grave sites.  He also testified that the individuals who actually “took down” Abed at the objective were SO2 McCabe and an Iraqi SWAT member.  Mr. Puckett also elicited testimony that MA3 Demartino had improperly let Abed out of his eyesight after he was turned over to his custody.

At the conclusion of the cross, Mr. Puckett asked to take the Det OIC as his own witness.  LT Kadlec objected.  Mr. Puckett then overplayed his hand, gesturing toward the members and asking rhetorically, “He doesn’t want to save the members’ time?”   The military judge then politely chastised Mr. Puckett for impugning LT Kadlec’s motives and said it was understandable that LT Kadlec didn’t want to interrupt the Government’s case at that point.  The military judge and the witness then had a discussion, after which the military judge ruled that the defense could take the witness on direct at that point due to the witness’s “pending nuptials.”  The defense proceeded to elicit both character and reputation evidence for good military character, law abidingness, and truthfulness.  On cross, LT Kadlec turned into Mr. Hyde, aggressively eliciting testimony that the Det OIC was testifying under a grant of immunity and had refused to speak with the prosecutors.  On re-cross, the Det OIC explained that he had essentially been charged with a coverup of detainee abuse, so he had invoked his right to counsel.  He also testified that when he was in the process of turning Abed over to Iraqi custody, Abed seemed to be “hamming it up,” faking injuries.  He also testified that Abed sucked on the sore in his mouth to mix blood in with his saliva and spit it out after he heard Iraqi voices. 

During the Det OIC’s cross, Mr. Puckett asked about some of the claims that MA3 Demartino had made about events that occurred between the two.  The Det OIC repeatedly contradicted MA3 Demartino’s accounts.  At one point, MA3 Demartino had testified that he and the Det OIC had spoken in MA3 Demartino’s quarters about the detainee abuse allegation.  Unless the Det OIC is one of the world’s best method actors, he had absolutely no idea what Mr. Puckett was talking about when he asked about that alleged encounter.

The members asked excellent questions throughout the day — most posed by the lieutenant on the panel.  One member question to the Det OIC resulted in his testimony that there was no reason for SEALs to go into the detention area.  Also in response to a member’s question, the Det OIC testified that before 1 September, he had no reason to question MA3 Demartino’s character.  He testified that everyone liked MA3 Demartino and that he fit in well.

In the afternoon, the government called the Deputy Commander of the Special Operations Task Force West, a SEAL lieutenant commander.  He laid a foundation for the admission of statements obtained from SO2 Keefe and SO2 McCabe in response to a command investigation of the incident.  The prosecution emphasized that the two statements were identical.  The military judge admitted the statements over a Crawford objection.  The prosecution argued, and the military judge agreed, that the Confrontation Clause doesn’t bar the admission of a document that isn’t offered for the truth of the matter asserted.  The prosecution then used hi-tech wizardry to simultaneously show the first page of each of the statements to the members side-by-side.

The Government then rested.

The defense’s first witness was the MC1 who had testified earlier.  She specifically testified that MA3 Demartino had made certain statements to her that he had denied making.  And she denied that MA3 Demartino had made certain statements to her that he claimed to have made.  She also testified that MA3 Demartino seemed to be under a great deal of pressure around the time of the alleged incident.  And she testified that she had looked for him on the night of 1 September — including in the con-ex box — and she couldn’t find him anywhere.

The detachment’s Intel officer then testified.  He, too, specifically refuted MA3 Demartino’s claims about what MA3 Demartino had told him concerning the assault on Abed.  He also described MA3 Demartino as an emotional basket case after 1 September.

The Det’s Hospital Corpsman First Class (HN1) then testified.  He also refuted MA3 Demartino’s testimony about their encounters the night of 1 September.  And, contrary to MA3 Demartino’s testimony, he denied seeing SO2 McCabe, SO1 Huertas, and SO2 Keefe at the con-ex box.  MA3 Demartino had testified that the HN1 was right outside the con-ex box when SO2 Keefe went outside to get a stick.  And he denied wiping blood off of the detainee, as MA3 Demartino had claimed.  In fact, he denied even seeing any blood on the detainee when he conducted his screening.  He also denied MA3 Demartino’s claim that the HN1 told him that SEALS from Team 5 had abused detainees.  On cross, LT Kadlec emphasized that the HN1 was testifying under a grant of immunity.

The next defense witness was the SEAL LT(JG) who was SO2 McCabe’s immediate supervisor.  SO2 McCabe’s testimony suggested that this officer also either abused Abed or was present when Abed was abused, though SO2 McCabe indicated he didn’t personally observe that abuse.  The LT(JG) admitted going into the con-ex box to see Abed, largely out of curiosity, but said he was only in the box for 30 seconds.  Contrary to MA3 Demartino’s testimony, the LT(JG) testified he never saw Demartino that night and said MA3 Demartino wasn’t guarding the detainee when the LT(JG) was in the detention area.  He also disavowed MA3 Demartino’s testimony about conversations between the two concerning detainee abuse.  (One of the members asked the LT(JG) if it was standard protocol for SEALs to look at detainees and asked whether it should be considered hazing.)  Like the Det OIC, the LT(JG) also provided good military character, law abidingness, and truthfulness evidence for the defense.  This time, the defense pre-empted the testimonial immunity questioning by raising that point on direct.  The defense also elicited the LT(JG)’s statement that he wouldn’t lie under oath to protect other SEALs.

The final witness for the day was an Equipment Operator First Class (EO1), who was MA3 Demartino’s LPO.  He’s a reservist who has deployed to Iraq five times, he’s a former NYPD officer, he’s a current NYC fire fighter, and — oh, yeah — he’s one of five candidates for a Navywide Reserve Sailor of the Year award.  And he trashed MA3 Demartino.  He specifically denied having conversations that MA3 Demartino had described during his testimony.  He also testified that even before these events, MA3 Demartino’s credibility was questionable, indicating that MA3 Demartino had sometimes claimed to have accomplished tasks that he hadn’t.  He also said that by 1 September, MA3 Demartino was under pressure and was no longer motivated.  And he described basically an emotional breakdown by MA3 Demartino after 1 September. 

The defense case-in-chief resumes in the morning.

Earlier this week, I noted that Monday was a good day for the Government.  Wednesday was a very good day for the defense.  I suspect Thursday will be even better.

7 Responses to “Synopsis of Wednesday’s McCabe proceedings”

  1. JWS says:

    A Mass Communications Specialist First Class (MC1) then testified. (Why can’t the Navy just call its E-6s “staff sergeant”?)

    Because they are sailors not Marines. I suspect most PO’s would be offended at the notion. Methinks we have another incidence of military cultural chauvinism.

    Why the Orwellian “Mass Communications Specialist?” What ever happened to “Photographer’s Mate?”

  2. Cap'n Crunch says:

    I had a very senior and experienced litigator once tell me that trial work is like basketball, not football or baseball. Its not about scoring the winning touchdown or the winning run on a single witness, but scoring the most points overall in the context of the entire case.

    Sounds to me like the prosecution put some up early and now the defense is scoring.

    I can’t help rooting for the defense in this one — not just because you have a SEAL operator as the defendant who took down a really bad guy; not just because you have a really bad guy who is trained and instructed to fake injury to cause just this sort of result; but because it appears that the truth is on the side of the SEALs. I give the benefit of the doubt to McCabe.

    Then again, I tend to lean a bit to the defense side in “close” cases — which I think this is (cf. my reaction to the Ft.Hood shooting, the doctor who refuses to deploy, most of your random drug screening cases, and a host of other cases that don’t particularly make me sympathetic).

  3. Kay B. Day says:

    Does anyone know if Demartino has immunity?

    I’ve covered this case since the beginning, with more than 2 dozen columns about all aspects. If you compare the testimony of Demartino with the charge sheets and the testimony from others, nothing matches up.

    Thanks to Dwight Sullivan for incredibly astute reportage. I praised you publicly in a recent column. I am certain you will blush when you read it. I figure your traffic here had to spike because many of us checked this page in a manner common to readers of serialized exposes in top tier journalism [that field, by the way, is an endangered species at present.]

    best to all of you, Kay B. Day/Editor, The US Report

  4. John Harwood says:

    Col Sullivan, thanks for the updates. Here’s a defense hack keeping his fingers crossed ….

  5. Ama Goste says:

    According to the Virginian-Pilot, the defense rested this morning.

  6. KS says:

    Why the Orwellian “Mass Communications Specialist?” What ever happened to “Photographer’s Mate?” Photographer’s Mates (PH), Lithographers (LI), Draftsmen (DM) and Journalists (JO) merged in 2005 to become MCs.

    Also, Hospital Corpsmen Petty Officers are HMs rather than HNs. To add to the confusion, an E-3 is a Hospitalman (not a Seaman) – HN. E-2 = HA, E-1 = HR.

    Thanks for the detailed synopsis, Mr. Sullivan.

  7. White Suits For Women says:

    Kasper Suits…

    […Be Sure You Accept This Link Exchange Invite…]…