Tuesday, February 07, 2012


Hazing trial of Kaneohe Marine so far fails to make points necessary to convict

by Larry Geller

Continuing where I left off, just so I don’t have to repeat all the background:

The first real day of the court martial of Sgt. Benjamin Johns began this morning with the judge's announcement of revised wording for one of the charges. The government agrees now that it must prove that Sgt. Johns imposed unlawful punishment on Lance Cpl Lew or that Johns had subordinates imposed unlawful punishment on Lew.

A jury was finally seated after three panel members were dismissed on defense challenges. The defense initially raised a blanket challenge to several jurors who had learned or read about the Lew suicide and the alleged hazing through the news. Several had said that they learned about it from Google News. The defense argued that half the jury would be aware of details of the suicide and half would not. That challenge was denied by Judge Michael Richardson, citing precedent.

Judge Richardson reminded jurors during voir dire (the questioning of prospective jurors by a judge and attorneys in court) that although this case involves the treatment of Lance Cpl Lew, he is not available as a witness and that the manner of his death is not involved in this case. He noted that the three cases together had received both extensive press and Internet coverage and asked jurors if they believe that these reports are completely accurate and true. None did. [So much for all of our best efforts on this side of the keyboard!]

Judge Richardson reminded an individual juror during questioning that Lew’s death has been determined, as a matter of law, to have no bearing on this case. To another juror he instructed that the suicide he read about is not relevant to this case. He also asserted that the convening authority (the government) has no influence in this courtroom.

Unlike a civilian jury, the number ultimately seated can be variable, with a minimum of five. After challenges, eight jury members remained—three officers, who were seated in the front row of the jury box, and five enlisted men. Each was provided with cards to fill out if they wished to ask questions, and several took advantage of them during the course of the day.

During opening statements the prosecution displayed images of the battle scene, a roughly triangular area in Helmand Province, Afghanistan, about the size of a football field. The jury was told that witnesses will demonstrate that Sgt. Johns woke up Lew and that Johns was pissed. Lew was yanked out of his foxhole and subsequently sent on two trips to deliver supplies with sandbags on his shoulders. Lew was made to dig a foxhole.

The defense offered that one of the central issues in the case is whether a squad leader in Helmand Province has the ability to order a soldier to dig a supplemental fighting position under battle conditions. He described Sgt. Johns as a battle-tested, experienced Marine, one of the five-percenters—a Marine who could be trusted with this dangerous mission. The attorney noted that there was intelligence that the position could be overrun by Taliban. He said that Sgt. Johns and his men saw more battle in a short time there than many soldiers will see in their entire careers—this was not Camp Victory in Iraq.

He noted that Sgt. Johns depended on Lew, but that Lew fell asleep not one, two or three times, but four times. When Johns depended on him, Lew was sleeping. He said that Lew fell asleep when there was intelligence the camp could be overrun, endangering the lives of his fellow Marines.

Did Sgt. Johns make the right decision? Defense said he did. He had asked Lew if he could stay awake and Lew promised that he could, yet not one hour into his shift, Lew is asleep. He said it was not Johns who pulled Lew out of his position, and that it was not Johns who ordered Lew to carry a sandbag from one position to another. When he heard about it, Johns had it stopped immediately, he said. Johns had to make this Marine productive, and there were two supplemental fighting positions to be dug. It would take Lew an hour or an hour and a half to dig one, and afterwards he could sleep.

The defense asserted that what took place was not hazing, it was a squad leader doing what he needed to do. And so this opening statement, by Honolulu attorney Timothy J. Bilecki, effectively set the scene that the prosecution would have to navigate during the trial.

Four witnesses were called. It seemed to this observer that the first three, at least, could be described as supporting the defendant’s decision process and his integrity, and under questioning, spoke highly of his leadership. Were this a civilian trial, I would wonder why the prosecution called witnesses who would not fully support the theory of the case, who didn’t respond “correctly.”

This is the first opportunity I’ve had to attend a court martial. I’ve noticed some differences over civilian trials which I do attend. I am very impressed with the way Judge Richardson has conducted the proceedings. His instructions to the jury, for example, have been precise and detailed, and he does not hesitate to repeat as necessary. He is doing everything possible to allow jurors to participate as the law intends, and to be fair to both the defendant and to the government. He addressed potential issues that could arise because the jurors are part of a system also enveloping the defendant.

Indeed, I had thought about the military jury quite a bit. In a civilian case, when a trial is over, the jury pretty much dissolves and goes home, and they’re forgotten. A military jury has to go back into a smaller world where there could be repercussions for their decision. Also, as in a case like this, many would have had combat experience. Fighting and defending a position in Helmand Province, as the defendant and witnesses had to do, was a form of hell, and the jurors know it. As they were shown pictures of the battle situation (Post Canada, Post America, Post Mexico, Post Australia), who knows what images were conjured up in their minds, even if they were instructed not to have preconceptions about the case.

Justice has to be for everyone involved, at least as an objective. Certainly, a man is dead, and justice calls for those responsible to be punished. It also calls for the exoneration of those not responsible. Even should Congress hold hearings, it can’t change that basic principle. Nor does the fact that one soldier pleaded guilty under conditions of a plea agreement implicate another.

From what we’ve learned so far, Lew was taken off of sentry duty and given other activities that he could perform and stay awake. The jury will decide if they were punishment that amounts to hazing or reasonable assignments, and if Sgt. Johns ordered or was aware of the actions and did not stop them. There is at least one more day of the trial during which the facts may come out.


Was there a possible medical explanation for the sleeping?

After listening to the arguments, I feel strongly that there could have been some medical situation around the suicide that can no longer be examined at this point, and certainly could not have been dealt with under severe battlefield conditions. Lew fell asleep on post not once, not twice, not three times, but four times. He seemed to be a young man eager to achieve, from accounts I’ve heard. Certainly, we can’t know his mindset when he killed himself, but we also don’t know if he might have been anemic enough (for example) to not be able to stay awake even if he tried his darndest. He must have known he was in trouble already after the first few incidents, yet he fell asleep again. Why? Could he control it? Did anyone think of checking for a possible medical cause for the sleeping?

I just want to put this out here—it may never appear anywhere else.


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