Two of the 12 soldiers awaiting hearings at Joint Base Lewis-McChord for crimes they are accused of committing in Afghanistan had their court dates postponed last week. Seven others have had their hearings delayed in recent weeks.
Defense attorneys say delays are common and that they reflect legitimate schedule conflicts or lawyers asking for more time to prepare for pre-trial hearings that will help determine whether the accused face courts-martial.
But one result of the postponements is that most of the soldiers are now scheduled to appear in court for their Article 32 hearings after Staff Sgt. Calvin Gibbs, who allegedly devised schemes to kill Afghan civilians.
The charges against Gibbs are the most serious. Several of his codefendants claim that they participated in Gibbs’ schemes only because they were afraid of retribution.
A total of five of the 12 platoon mates are accused of murder during their 2009-10 deployment to southern Afghanistan with the 5th Brigade, 2nd Infantry Division.
Three Article 32 hearings that were tentatively scheduled for this week were postponed.
The most recent delays involve soldiers accused of crimes such as drug use and assault, but not murder. The Army filed charges against them in late August, two months after it filed charges against the five accused of murder.
So far, only two pre-trial hearings have taken place, and none of the accused soldiers has given testimony. All 12 have been called, but each has declined to testify, citing his 5th Amendment right not to not incriminate himself.
Relatively little information has surfaced at the two public hearings in the past month. Instead, prosecutors have asked targeted questions that do not elicit much elaboration from witnesses.
Prosecutors also have submitted written evidence that’s not available to the public through the Army. Witness statements from the soldiers who have refused to testify make up much of those documents, many of which have been leaked to the media.
Keeping a tight rein on information that emerges at the early hearings is in the interest of the prosecution as much as it is for defendants who don’t want to incriminate themselves on the witness stand.
Prosecutors at this stage have to prove only that there’s enough evidence to warrant a trial; they don’t have to establish guilt.
“They do the minimum they can do in order to get a referral to a court-martial,” said attorney Dan Conway, who’s representing one of the soldiers accused of murder. “The last thing they probably want is these guys under oath.”
Information drawn out in court could help defense attorneys build cases for subsequent Article 32 hearings, or when it matters most if the cases go to full court-martial trials.
Delays also give time for defense attorneys to work out plea deals. Pfc. Justin Stoner, the whistle-blower who led investigators to Gibbs, was reported by CNN to have an immunity deal, but the Army has declined to confirm that .
“There are going to be people, I assume, who will be tapping on the prosecutor’s door to make deals,” said Eugene Fidell, president of the National Institute for Military Justice. That doesn’t mean attorneys are trying to schedule their hearings with an eye on other cases, Fidell and two defense attorneys said.
“There’s no jockeying going on,” said Conway, who’s representing Pfc. Andrew Holmes of Idaho.
Holmes, 20, is expected to appear in court Nov. 15 on charges of killing a civilian as well as lesser offenses. He denies the charges.
Holmes’ court-appearance date hasn’t changed since this summer, when Conway requested a mental health examination because a grenade exploded near the soldier during his deployment.
Spc. Michael Wagnon’s Article 32 hearing was delayed two weeks ago because his military-appointed lawyer had a schedule conflict. That leaves Wagnon waiting in a Lewis-McChord jail until his now-scheduled Nov. 22 hearing to face charges that he killed a civilian and tried to destroy evidence investigators sought for the case. Wagnon also says he’s innocent.
“My guy has to sit in the brig a whole extra month just because of the government,” said Wagnon’s civilian attorney, Colby Vokey.
Vokey, a retired Marine lawyer, said attorneys could gain some advantages based on when their clients’ hearings occur.
“I’d rather go first or last,” he said. “First, with my client, a lot of other extrinsic evidence isn’t going to come out (aside from what’s detailed in the Army’s investigation into Wagnon’s unit).
“Last, let’s look at all the other bad stuff they have, put that in context and realize that Wagnon has no culpability,” Vokey said.
Officers at Lewis-Mc-Chord said delays are common in hearings for felonies, and they said the cases are being handled separately.
“I would not make linkages between any of the 12,” said Army Lt. Col. David Doherty. “Ultimately it’s up to the investigating officer to take all of the pieces into consideration and set the date. Sometimes the defense wants an extension; sometimes the prosecution does.”