Here is a report from Lower Hudson Valley news on the FOIA battle of the widow of CAPT Phil Esposito, an Army officer killed in Iraq.  If you’ll recall the accused attacker in the case, SGT Alberto Martinez, was acquitted in 2009, see coverage here and here.  Mrs. Esposito is asking the Army for the full records of the court-martial, including audio.  The Army has refused stating, according to the article, that “it was not legally required to provide unredacted audio recording of the court martial.” 

I’ll say that while I can’t even begin to feel her pain as the widow of an officer likely killed by friendly-fire and all that entails, I feel her pain in requesting court-martial records that should be public records and getting bizarre reasons for not producing them–see here and here.  Judge Bates in DC [set a briefing schedule for dispositive motions] in the case after the Army raised grounds for dismissal in its Answer.  Her complaint is here, the Answer here, and the order here.

8 Responses to “Widow in Fragging Incident Gets Ruling In Court-Martial Records FOIA Case”

  1. Cloudesley Shovell says:

    This must be part of that “most transparent government ever” that I keep hearing about.

    By the way, there is no link to the ruling in the last sentence of your post.


  2. SgtDad says:

    Can you think of a name that is not more quintessentially American than “Siobhan Esposito?”

    Is there anywhere a summary of the evidence? Using a Claymore to commit murder makes for a pretty grim picture. It would be interesting to see the other side of the story.

  3. Phil Cave says:

    You’ll recollect the recent brouhaha about the case in Japan that lead to some JA;s being fired/disciplined. That case involved VWAP issues and failures. The same might apply to United States v. Martinez and some “alleged” failures to communicate. Was there not a PTAO which was rejected. And later the family wasn’t informed, or correctly informed about the PTAO?

  4. Dew_Process says:

    “No Man” – while the proceedings were public, that doesn’t necessarily make the “transcript” public where there’s an acquittal across the board – in fact, other than the Summary Record prepared, in many jurisdictions an acquittal results in the automatic sealing of the record.

    The Army may be caught between the proverbial “rock and a hard place” – if they release the full tapes, is there a potential Privacy Act violation RE: Martinez? Having a Court “decide” may be what they’re looking for. Just my 2 cents….

  5. Charles Gittins says:

    Federal court recrods are presumptively public records. If the tapes exist, I cannot fathom a reason that they should not be produced under the FOIA. Bates is a good “company” judge but he will follow the law and disclose the tapes.


  6. Jim Richardson says:

    I tend to agree with Charlie Gittints. If the tapes exist, and there are no security issues (i.e., classified material) there appear to be no reasons not to release them. As to whether the gov’t has an obligation to transcribe them, that is another questin. The FOIA does not require that the gov’t “create” a record, only that it supply a record where one exists.

    As to the lack of a transcript the USMC went through this in 1976 with the Lynn McClure cases. PVT McClure died. allededly as a result of drill instructor malfeasance. The first accused tried was acquitted. Accordingly no transcript was prepared. About six months later there were requests from Congress and perhaps the family, for the transcripts and then for the tapes. The tapes had been erased and reused for other cases (economy being the word of the day at that time). I don’t remember if there was litigation over the matter, but the conclusion was that there was no obligation to prepare a transcript or to preserve the tapes or reporter’s note.

  7. Cloudesley Shovell says:

    Seems to me that if the Secret Service can cough up tapes of radio transmissions from the Reagan assassination attempt, the Army can release the audiotapes of a public trial.

  8. Ed White says:

    Court-martial records of trial are not simply “public” court records, like those of Article III courts. They are records of the Executive Branch subject to BOTH the FOIA and the Privacy Act. Consequently, before it can just glibly release an entire record, the Government must review the record and take appropriate redactions — some of which will be required by the Privacy Act, and others of which will be dictated by prudence and permitted by FOIA (e.g. personal information about members contained in members’ questionnaires that are part of the record as appellate exhibits, or perhaps the names of minor victims of sexual assault that are not widely known). Some years back, DoD won, in substantial part, a FOIA lawsuit over redactions from court-martial ROTs in a district court in Ohio – I forget which district. I believe the case was Dayton Daily News v. Dept of the Navy. I don’t believe the Dayton Daily News appealed the loss. Of course, these laws don’t permit wholesale withholding of entire ROTs; and reasonable people can disagree over whether court-martial records ought to be fully releasable, or continue to be subject to FOIA & PA review, but for now, they are.