Fox and Friends had a segment last night, here, about alleged Brady violations in the court-martial of 1stLt Clint Lorance.  Lorance was convicted and sentenced by a court-martial in August 2013 to 20 years in prison for ordering his platoon to open fire on two Afghan men in July 2012. Prosecutors contended that the officer violated ROE and that the men had not demonstrated hostile intent.  The new evidence included in a clemency petition to the CG of the 82nd Airborne  deals with the status of the two men that were shot as potential insurgents/jihadists.

Here is our prior coverage and coverage of the verdict, here (WaPo).  1stLt Lorance’s counsel (featured in the Fox video) provided us with a copy of the clemency materials, here.

25 Responses to “Clemency Request for 82nd Airborne Officer Convicted of Murder”

  1. SFC V says:

    The Army has in its possession evidence linking Afghan military-aged-males involved in this general court-martial to improvised explosive devices (IED) as well as IED attacks and terror networks in Afghanistan. The government failed to disclose this information to the chain-of-command, counsel for the defense, and the court-martial.

    Did the accused have this information in his possession at the time of the incident?  If not it is irrelevant to his defense.  You can’t use information learned after the fact to support self defense or a necessity defense.  “This evidence the accused didn’t know about forms the basis for supporting the accused decision.”  That is essentially what they are arguing.
     

  2. stewie says:

    Agreed. You can’t violate the ROE, shoot people who haven’t done anything in that moment to justify/show hostile intent, then go back and say, turns out I was right, they were bad guys.  I didn’t have any reason to know that when I ordered my guys to shoot them, but hey I got lucky.

  3. Advocaat says:

    I disagree.  Brady applies to evidence material to punishment, not just guilt.  If the accused had killed Hitler and Mussolini in a DUI but the govt withheld their identity during his trial, I’d say it matters on both counts.  He would have had a chance at being acquitted through jury nullification or, in the alternative, at least sentenced to no punishment.  Either way, in such a scenario it would have been misleading for the govt to let the world believe the accused killed a couple of innocent German and Italian civilians.

  4. k fischer says:

    SVC V/Stewie, 
    Great answers on a law school exam, but not so much in the fog of war.
     
    So, lets say its irrelevant for findings.  What about mitigation?  Do you think perhaps if the panel knew that these guys were bad guys who were responsible for setting IED’s intended to kill fellow Soldiers, then they would have given him 20 years?  I would have driven the panel to jury null the charges had I been on the panel, but in the very least, the sentence would have been at most a reprimand.
     
    If I were the SJA, I think that I would have recommended that he be removed as a PL, but, of course, I don’t sweat members of the Taliban being dispatched to where they belong, which is the hottest parts of hell.  And, I nominate you two for point on a dismounted patrol in Talistan, so you can show us all how it’s done.  Perhaps, you can take on ISIS sometime in the near future. If you make it back, then feel free to let me know if you still have the same opinion.

  5. k fischer says:

    I think the problem here, based on my reading of the clemency packet, is that CID investigated this case they way they do Sexual Assaults.  It’s really easy when you conduct an investigation with a desired end state in mind and don’t collect or share all the evidence that is exculpatory.
     
    I briefed over 75,000 IRR’s at the Ft. Benning CRC, and more than once, I had some very Special Agent come up to me and bust my chops about my slides that dealt with criminal investigations regarding questionable actions taken during war and Soldier’s rights under Article 31.  It was almost like they were insinuating that I was conspiring to obstruct justice, or that I was going to make their job very difficult, to which I replied, “You can call me CPT Buck because I don’t give a [you know what]……..”

  6. Harmlessly in Error says:

    I don’t know how the 1LT came to his PID / Intent determination. But if he had something that tipped him off, even if it was disputed (not seen or heard or understood or agreed or whatever) by others, then the evidence these were in fact bad guys just indicates he was right all along. 
    It seems rather disingenuous for the Govt to commit Brady and other violations, then claim harmless error because of some other factor out there – basically saying “yeah we violated some things, but look, we got it right so it doesn’t matter”, and then this 1LT apparently made the right call and they don’t want to afford him the same consideration. 
     
    Key here is not whether the 1LT had THIS information, it’s whether or not he had a reasonable progression through EOF and compliance with ROE. This information merely supports his decision-making when evaluated in retrospect. 

  7. SFC V says:

    I agree it affects punishment and maybe the credibility of the witnesses (if any Taliban testified) but that is not what they are arguing in the clemency petition.  If they were arguing that I would agree with the argument but they are literally arguing that it shows they had hostile intent even though the accused had none of the information at the time.  You don’t get to do that.
     
     

  8. stewie says:

    I didn’t realize legal answers had to be filtered through the fog of war.  While it is true you could have tried a nullification approach, there’s no right to nullification, so that argument is going to get you nothing.  There’s nothing here that affects the merits.
     
    Mitigation? Maybe. Depends on the facts, the sentence, etc.

  9. soonergrunt says:

    k fischer–
    As someone who has walked point in Taliban country a few times, I’m not sure what that experience has to do with the question of whether or not the accused knew or believed he was committing a crime at the time he ordered his men to open fire on unarmed persons who exhibited no hostile intent or capability.  That he requested one of his men to lie about circumstances surrounding the shooting (according to the WaPo story) suggests to me that he knew he was wrong at the time.That the accused may have gotten lucky and got the right people by accident might be material to mitigation, if that’s what happened, but that ought to result in a reduced confinement sentence and dismissal, not a walk.

  10. Advocaat says:

    Friends, while some of you dismiss out of hand how evidence of the decedents’ true nature would have impacted findings, that stance ignores how the CA, IO, and court members (assuming the MJ admits it) would have processed that information as the case progressed.  Nullification is not a right but rather a very powerful, ever-present reality.  And now for the lowest rhetorical argument of all:  had you been on trial for wrongfully killing the decedents, wouldn’t you have wanted their IED activities presented early and often or would you have kept to your stated principles and waited for sentencing?  Shouldn’t this accused have had the same option?

  11. SFC V says:

    It is evidence that shouldn’t be considered on the merits so I don’t care how the panel would process it.  We exclude lots of evidence from the fact finder because of its lack of relevance. This case is no different. 

  12. k fischer says:

    Sooner, 
     
    That experience makes an attorney’s decision to recommend prosecution more credible to me than coming from some Fobbit who is drafting charge sheets from his hooch or the CID agent who is poorly investigating a case.   He did have a Command who believed a crime was committed, apparently, and put him in front of a court-martial.  I would imagine they all had combat experience.
     
    But, then again, I had a GCMCA who was sick and tired of training deaths at Ft. Benning string up 3 NCO’s to send a message.  The cases were stupid, in my opinion, and politically driven.  The first NCO was acquitted, and my guy, according to the 32 IO from the first NCO’s 32, was the most senior and responsible.  Thankfully, the judge dismissed the manslaughter charge and intentional dereliction of duty, so he faced negligent dereliction of duty.  I only got two out of the 8 to vote acquittal, but one of the two told me that the case was bs.  That experience makes me wonder if the LT’s GCMCA was tired of bad things happening in Afghanistan, and this LT was crucified for everyone else’s sins.
     
    And the TC’s who prosecuted this case may very well have CAB’s; if so, then perhaps my righteous indignation is not so righteous.  But, it is more of a “but for the grace of God go I” attitude that I would have recommending prosecuting someone like this.  I agree that the lying seems like consciousness of guilt, but I guess he got a jury of his peers who convicted him and slammed him on the sentence for killing two bad guys that he might not have known at the time were bad, but the jury didn’t know they were bad, so maybe/maybe not they would have still convicted and slammed him.  It’s possible that there are a lot more facts in this case that we don’t know about from the news or defense attorney.
     
    I’m waiting for someone to call me a “victim blamer” because a couple of bad guys are no longer doing bad things. We shouldn’t be focusing on the dead guys behavior.  We should be focusing on this LT’s behavior, so we can put a stop to the epidemic of killing non-uniformed bad guys who at the time are showing no immediate hostile intent.  So, if UBL was not showing hostile intent, then I guess the SEAL who shot him should face court martial, as well?  Wouldn’t the ROE be illegal, or can the ROE justify murder?
     
    And, while it is inadmissible argument for a jury, I’m with Advocaat, who is much more subdued with his argument and makes a much better point than I.  If anybody who opines on this matter was sitting in the Accused’s chair, then they would probably be expressing outrage that these facts weren’t presented.  I know I would be.

  13. k fischer says:

    Stewie, 
     
    Yes, legal answers should be filtered through the fog of war because that certainly has an effect on one’s intent.  It also should effect a little thing called prosecutorial discretion and crimes of this nature ought to be analyzed through that prism, so that the UCMJ and the Judge Advocates who operate under it remain a force multiplier and not a force divider.

  14. stewie says:

    1. No, the law is what it is. Evidence is relevant or it isn’t. The fact that he got lucky in his indiscriminate and unjustified order that some of the folks he hit turned out to have done bad things or have bad ties in the past means nothing for the merits. It might, depending on the evidence, mean something for sentencing, but not enough quite frankly to overturn the case IMO but if a new sentencing hearing is ordered, I wouldn’t say that’s a wrong call, it would depend on the quality of the evidence.
     
    2. I see nothing here that would have led to the government not prosecuting him for those crimes.
     
    3.  You’re earlier Fobbit comment causes me to lose a great deal of respect for you. MOST Soldiers who deploy go to FOBs, and stay there.  They don’t request that assignment, the military gives them that assignment because they are needed to support the mission, just like most Soldiers are not combat arms but support or service support.  And of course nearly all JAGs stay on the FOB most of the time.  The fact that the TC does or does not have a CAB is pretty meaningless.  For most JAGs, getting a CAB is usually about just happening to be in a place where action breaks out, then about doing regular missions outside the base. 
     
    At the end of the day, the command signs off on those “charges drafted in his hooch.”  Your sneering disdain is unearned and unwarranted.  I, and many other JAGs who have deployed didn’t get a choice of where we ended up, we went where we were told.  We shouldn’t be treated disdainfully because of it.
     
    4. I can think of all sorts things I might love to have a panel hear if I were sitting in that chair.  Some of them are completely irrelevant and have no shot, nor should they, of getting in front of a panel. I’m pretty sure that’s a pretty crappy way to decide evidentiary rulings: “what would the accused like the panel to know?”  Just like I’m sure the alleged victim or victim’s families have things they’d like the panel to know. Same principle, similarly crappy way.  We don’t run our system on outrage.
     
     

  15. Tami (a/k/a Princess Leia) says:

    The evidence suggests his only criteria for determining they were insurgents was that they were riding motorcycles.  That is RIDICULOUS!  Almost every Afghan male rides around on a motorcycle.  I’ve seen multiple families of 4 ride a motorcycle.  It’s like the white Toyata Corolla–every day we were supposed to watch out for white Toyota Corollas, which made up 95% of the cars in Kabul.  Motorcycles were everywhere.  If that was the only criteria needed to justify shooting someone, then the Afghan population in Kabul would’ve been wiped out.

  16. stewie says:

    I’ll concede there appears to be more evidence then just that Tami. There are some familial links, and some other links.  Having said that, it isn’t like there’s clear evidence these guys absolutely were terrorists either.

  17. Saul says:

    Assuming the petition is accurate, it still sounds like the evidence meets the elements for murder.  As mentioned throughout, getting lucky doesn’t mean the shooting was lawful.  But, would a panel of combat veterans sentence a 1LT, in his platoon for two days, to 20 years confinement for unlawfully killing Taliban members? 
     

  18. Advocaat says:

    Very well said, @Saul.  Re the relevancy of this “new” evidence allegedly withheld by the govt, b/c TC must prove certain named persons are dead, DC is then permitted to challenge, detract, or add to that evidence.  The defense was denied that opportunity and I think it would have come in during findings (Your Honor, the decedents’ past actions are integral to their identity) subject to an instruction about how that evidence could be used–and I believe members would ignore that instruction in direct proportion to how involved the decedents were in fighting US forces.  And please don’t misunderstand me, I agree that after-the-fact knowledge in a self-defense case does not legally justify the killing of a person lacking hostile actions/intent, I’m simply arguing for the proposition that such evidence could nonetheless result in an acquittal or no punishment.

  19. stewie says:

    Again, this is a nullification argument, which is not a right of the accused (or the panel for that matter).
     
    How are their past actions integral to whether or not the person(s) named in the specification is/are deceased?
     
    Sure, the information could have resulted in an acquittal. but all sorts of inadmissible evidence “could” result in an acquittal (or conviction).

  20. ThatGuy says:

    Quote:   “In the memo, the attorneys state that the surviving rider was linked to an IED explosion in Kandahar just one month after the incident.”
    So LT Lorance orders the shooting and kills two friends of the survivor.  Survivor is upset and mad his friends died for no reason (aka Lorance changed the ROE).  Survivor is so upset that he plants an IED to get back at the Americans a month later. Yep-great grounds for clemency-Lorance made an insurgent. Was there proof he was a bad guy at the time Lorance shot at him-Nope. (Or not that I have seen.)  

  21. k fischer says:

    1.  Killing the enemy who does not wear a uniform based on intelligence that the enemy who does not wear a uniform rides motorcycles is by no means “indiscriminate” or unjustified.  He had intuition which was later determined to be correct (much like Kaffees hunch in Cuba when he asked Jessup for the transfer order that was confirmed by Markenson, sorry I had to work that in there, but I digress)  I would not categorize that as murder in a war zone.
     
    2.  The fact that you see “nothing” is troubling.
     
    3.  I was a Fobbit as an enlisted guy at the 1st Armored Division main during Desert Shield/Desert Storm.  I pulled about 12 hours of guard duty a day making sure the enemy did not drive a truckload of explosives over the berm and kill Lieutenant General Ronald Griffin.  That’s what the HHC 1SG kept drilling into our heads.  I locked and loaded my weapon and aimed at a vehicle that did not follow my instructions to slow down because I was not at a vehicle access point.  Had it kept coming after I fired a warning shot, and I shot the driver who happened to be a US Soldier, then I would have hoped that one of the JAG’s on our FOB who I was defending wouldn’t have preferred charges on me.  Had he, I probably would have been pretty pissed.  The fact that the Command signed off on the charges and a Panel of mostly Infantry Officers is the only thing that makes me wonder what else is out there that I don’t know about that might have justified court martial, the conviction, and the sentence.  So, I see something there, but I have also seen really dumb cases brought for political reasons.  
     
    And, I am not disdainful for a JAG not having a CAB or being a Fobbit.  Hell, I wasn’t even a Fobbit for OIF or OEF, so I really hold my manhood cheap when I see JAGs with combat patches.  I am disdainful when a person gets convicted at a court martial where there is apparently a lot of undisclosed exculpatory or at least mitigating evidence, gets a dismissal, and 20 years, and Brady evidence that is relevant for sentencing is given short shrift by someone who, if they were sitting in the Accused’s chair and having walked a mile in the Accused boots, would be saying the same thing I am.  Like Advocaat says, If I am driving down the road drunk in my Humvee, and I collide with a Landcruiser that UBL is driving, and it rolls over a cliff and he dies, who gives a flying you know what that I was drunk.  I just got lucky and killed UBfreakingL.  Are you saying that’s not relevant for what my punishment should be?
     
    4.  I disagree.  Your system has been run on outrage since 2009, beginning with the outrage of the myth that the military as a whole covers up sexual assault. 
     
    As far as my Fobbit comment goes, I was a piano player in the Army Band.  Because of this, I have thick skin, so I am not apt to take offense at terms like Fobbit or REMF.  In fact, I think I might have been much more of a REMF because we were pretty far back in the convoy during the Storm.

  22. Advocaat says:

    Excellent point, @stewie.  The govt must prove the named persons are dead; how do we know the body was in fact the Firstname Lastname in each spec without identifying evidence?  DC may explore that evidence in every way possible, to include confirming this is the same Firstname Lastname who was detained by the US for [insert action(s)], and b/c he was detained for [insert action(s)] the govt was required to follow [insert identifying steps], and the govt took great care to ensure someone with the same name wasn’t wrongfully suspected of [insert action(s)].  Past acts become integral (and relevant) to identity when there is a govt record linking the two, and I wouldn’t let the govt cherrypick the evidence presented on this issue if the decedents were in fact bad actors.  I think many MJs would allow it during findings w/ an appropriate instruction; I can’t see how it would be kept out during sentencing.

  23. SFC V says:

    How about we decide things based upon the law and not on an emotional response?  Isn’t this the argument against the way we are handling sexual assaults in the military?  The law in this case is pretty clear.  The evidence isn’t relevant to the findings if it became known to the accused after the fact.  All of the arguments to the contrary are emotional not legal.
     
    There is a great deal of evidence that both sides of any type of case would love to have admitted that is rightfully excluded.  Should we just admit or exclude evidence based on whether it feels emotionally satisfying to do so?
     
     

  24. stewie says:

    Colbert may be done, but apparently operating from the gut still isn’t. The CG can give clemency for anything he wants to (barring sex assault cases), so if he wants to give clemency here, that’s his prerogative. And if the defense wants to argue this is a Brady issue for sentencing, I get the argument, not sure I agree but I get it.  But on the merits, so you can argue nullification? No.  Nullification is a legit path, but it’s not a basis for admission of evidence by itself.

  25. DC says:

    More legitimate legal concerns notwithstanding, the lead TC was a veteran PL from Regiment with a CIB and Ranger scroll combat patch. Somewhat persuasive in front of that particular panel with two brigade commanders and a few battalion commanders from Division.