Sunday, February 12, 2012


Marines under fire—Congressional pressure led to an unnecessary court martial

by Larry Geller

The issue of hazing in the military is important and not to be treated with anything less than the utmost seriousness. It may turn out that continued pressure from a California Congresswoman is detrimental to the Marines’ own efforts to control and eliminate hazing.

That Lance Corporal Harry Lew killed himself last April with a bullet to the head at Gowragi Patrol Base in Helmand Province, Afghanistan, is a fact. It’s also established that Lew fell asleep on his post that night for a fourth time and that he had apparently experienced mistreatment. But as the court martial jury established in this case, Sergeant Benjamin Johns was not responsible for the mistreatment.

In fact, he stopped it when he learned about it.

It’s reasonable to question whether Johns should have faced a court martial to begin with. In the civilian system, the prosecution must be convinced that it can prove its case beyond a reasonable doubt before presenting it to the grand jury (corresponding loosely to the military Article 32 hearing). If the prosecution cannot, but goes ahead anyway, that can be considered to be prosecutorial misconduct.

One of the key accusations in the Johns court martial was that he made Lew dig a foxhole as punishment. Commanders testified that they had previously ordered the squad to prepare additional “supplementary fighting positions” because certain posts lacked them. That’s a foxhole in military-speak. If witnesses testified to this at the court martial, the prosecutors could have found that out before trial. The prosecution should have known that the digging of the foxhole was necessary and for the use of all of the Marines before raising the charge that Sgt. Johns ordered it dug as punishment.

Lew was made to run two delivery errands with a sandbag on his shoulders. As witnesses testified, Johns ordered that stopped when he heard about it. Prosecutors should have been able to learn this before going into that courtroom.

The judge in this case, Colonel Michael Richardson, who was flown in for the court martial, noted during conference with the attorneys that no evidence linked Lew’s death to his treatment, and so jurors would not be told about the suicide, only that Lew could not testify himself at the court martial because he had died. Several of the jurors appeared to have heard about the circumstances of Lew’s death, however. Given the publicity stirred up by California Congresswoman Judy Chu, and the prior court martial of Lance Corporal Jacob Jacoby at the Kaneohe base, it was somewhat remarkable that all of the jurors had not heard or read about the accusations in detail. Judge Richardson questioned and instructed jurors to disregard anything they might have heard and to consider only evidence presented to them by witnesses in the courtroom.

Richardson’s instructions to the jury were not only detailed and precise, but he did not hesitate to use repetition to be sure that jurors understood not only the law but what was evidence and what was opinion. Unlike a civilian trial, the judge instructed the jury prior to closing statements by the attorneys, telling them that the closing statements were not themselves evidence, but only the attorneys’ opinion. His instruction to only consider evidence was repeated at several points starting from when the jury was seated until the jury went out to deliberate. If jurors had questions, they were able to write them down on cards and have them answered. They did so several times during the course of the trial.

Outside the courtroom, a trial by public opinion was separately underway.

Despite the supervision of a highly experienced and respected judge and the lack of evidence to support the prosecution’s case, Congresswoman Chu, who did not attend the trial, continued to blast the Marines:

'The not guilty verdict in Sergeant John's trial twists the knife even further into the wounds that were caused by Harry's hazing death,' Chu said in a written statement. 'This verdict shows that hazing in the military is not only accepted but in fact, imbedded very deeply into its culture, including the jury, which was comprised entirely of fellow Marines.'

[Daily Mail (AP), Marine sergeant cleared of hazing in death of soldier, 2/10/2012]

Hazing may or may not be embedded very deeply in military culture, but this was the wrong trial to demonstrate it. Chu’s attack on the jury seems misplaced as well. In a civilian trial, the jury would be civilian. Johns faced a jury of three officers and five enlisted men. As in a civilian trial, both the prosecution and the defense had the opportunity to challenge and remove jurors. In contrast to a civilian jury, these men were better educated and better able to evaluate the facts based on their own training and understanding of the witness’s testimony.

Bottom line, Johns did not haze Lew and no connection has been established between Johns’ orders and Lew’s later suicide. A  Congresswoman’s anger doesn’t make a Marine guilty.

Criticizing the sentence meted out in the previous court martial of Lance Cpl Jacob Jacoby is fair game, however. Jacoby reached a plea deal with prosecutors under which he pleaded guilty to three charges of assaulting Lew. Charges of hazing and making threats were dropped. Jacoby, who appeared as a witness in the Johns court martial, is to be demoted one pay rank and spend 30 days in confinement.

The Jacoby plea agreement was announced only the morning of the trial, frustrating the family, which had come to Hawaii to witness justice being done.

Their frustration continues. Had Congresswoman Chu been present at the court martial she would have been in a better position to observe and perhaps appreciate its fairness. There was no plea agreement this time, and an experienced and respected judge presided.

Perhaps they expected a lynching. If so, this was the wrong defendant to begin with.

Defense attorney Thomas Bilecki commented in an interview after the trial concluded:

In this case I think this is proof positive that the UCMJ [Uniform Code of Military Justice] system works. This case was unique in that you have the platoon commander, the company commander, the battalion commander, and the 1st Sergeant, all the key players in the command, who did not want this trial to go forward against Sgt. Johns. They felt that Sgt. Johns committed no crime. But what we have, is we have a politician who drew a conclusion in search of facts. Because of the unfortunate death of her nephew, Lance Cpl Harry Lew, she concluded immediately that he must have been hazed, first off, and that the hazing resulted in his death. Without ever looking at the investigation, she jumped to that conclusion, and she demanded this go to trial.

And how did she do that? By going up on Capitol Hill, going before the Senate Armed Services Committee, making sure that the two-and three-star generals involved heard from lawmakers that they need to take a stand on hazing—when this case never was hazing to begin with.

Once we are inside the courtroom we have an unbiased military judge, we have educated panel members, both officer and enlisted, and we were able to push out all of the extraneous pressure from the politicians and simply try the case. And this case is proof positive that the military justice system works. It’s efficient, it didn’t bend down to political pressure, it worked.

And so after less than one week of trial, the jury heard all of the evidence, and at the end of the day, they came to the same conclusion that Sgt. Johns’ commanders came to nearly a year ago, that there was no crime here. This wasn’t hazing. What Sgt. Johns ordered Lance Cpl Lew to do was operationally necessary, it’s what sergeants do in the Marine Corps, it’s what sergeants do in combat in all services… and at the end of the day the jury found him not guilty. The system works.

The third Marine to be court martialled will be Lance Cpl Carlos Orozco III. A date has not yet been set. The charge is assault. Orozco is accused of stepping on Lew, pouring sand in his face, humiliation and mistreatment. Still, there is no accusation that anyone caused Lew’s suicide.

Congresswoman Judy Chu will likely not be pleased no matter what result that trial brings.

The use of a plea agreement in the case of Lance Cpl Jacoby will remain controversial. The subject of plea agreements itself is a huge issue in criminal justice. Here in Hawaii we recently saw the owners of Aloun Farms, accused of human trafficking, negotiate a plea agreement and plead guilty only to have that agreement tossed out by the federal judge. When their case finally went to trial, it was aborted due to prosecutorial error. Was justice done? Nothing was settled with regard to the charges one way or the other, and the alleged victims have not received restitution and likely never will.

So what’s with these plea agreements?

The replacement of trial by jury with negotiated plea agreements

Plea agreements are nothing new. By the mid 19th century, plea deals replaced trial by jury in this country to such an extent that guilty pleas overall accounted for 90 percent of all felony convictions (up from around 50 percent). Of course, in the mid 19th century, trials were unprofessionally run, often with no representation for the accused and presided over by judges who were not trained in the law. It can be argued that one bad system simply replaced another.

The problem with plea deals in the modern day is that they short-circuit the now highly professional system of trial by jury and reduce it to deal making between prosecutors and the accused. It is reasonable to say that the systematic adoption of plea bargaining in this country has changed criminal justice from a process of fact-finding and proof of guilt to one in which the defendant has to weigh his ability to resist the overwhelming pressure of prosecutors to put him away regardless of guilt or innocence.

Certainly, when a plea deal is accepted, the accused achieves the objective of a shorter sentence than would have resulted had the case gone to trial and were all charges proven. On the other hand, prosecutors can overcharge in order to create fear in the accused of unbearably long sentences. The acceptance of a deal, with shorter sentences than the maximum, is then open to public criticism of excessive leniency.

Instead of trial by jury, the accused is tried by relatives of the victims and by public outcry. By the nature of plea agreements, the outcry is that justice has not been done, that the sentence meted out is too short.

On the other hand, that plea deals and lenient prosecution may be used to shield police and the military from serving deserved sentences is a valid concern. The public perception of American justice as treating violent men in uniform as privileged is reinforced continually. What does it say about justice when police escape severe penalties even when they gun down unarmed African-Americans on video, or shoot a man point-blank on a BART train platform, or attack an unarmed man in a hail of 51 bullets in New York City on his wedding day? What does it say to the world when the perpetrators of a massacre in Haditha escape responsibility? While trial by newspaper has no place in our system of justice, the news is very good at identifying the trend. And that trend is that those in uniform may not be held responsible no matter how heinous their crime.

“Copping a plea” is an expression indicating that justice is malleable for some.


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