Phil Stackhouse, TLC ’10 Grad.
Recently, I had the pleasure of working with two fellow warriors – Joey Low and Colby Vokey – representing 3 Marines in California who were co-defendants in a case alleging the unlawful killing of two Afghans while the three were serving in Afghanistan. We recently found out that all charges have been dismissed.
The three Marines were infantrymen – real warriors if you know what I mean. One was on his third combat tour, the other two on their first. By the time the allegations were made – they were all seasoned combat veterans, having been in multiple firefights against the enemy.
The general nature of the allegation was that our clients – while actively engaged in a firefight against the Taliban – turned around and shot two men who were unarmed non-combatants…wounding them. That they then moved to the area where the two men were located, observed that they were wounded, and then summarily executed them both – each co-defendant shooting 3-5 times from a distance of between 2 feet and as close as 2 inches. The allegations continued that they 3 co-defendants took trophy photos with the two dead men – envision how a hunter takes a photo of a freshly killed dear, holding the head up by the antlers. Also, there was an allegation of obstruction of justice.
We were gathered to conduct the Article 32, Uniform Code of Military Justice, pretrial investigation hearing – loosely the military equivalent grand jury combined with a probable cause hearing. Quite often these hearings are just the speed bump to a military general court-martial (felony level) trial.
From beginning to end, the case was handled utilizing the TLC method. Individually, we had commitments from our clients that they would fight these charges to the bitter end – that they did NOTHING wrong.
The three of us together met with each of the co-defendant’s individually to discover their story. We used re-enactments in confined space, role-reversals (reversing roles with the other co-defendants and witnesses), and surplus reality when it came to the allegations as charged.
The case against them was distilled down to eyewitness testimony of a fellow Marine, tactical site exploitation photos of the dead afghans showing the injuries inflicted by gunshots, forensic evidence (shell casings and a bullet discovered at the scene, and clothing from the alleged victims with gun shot residue and melted fibers). At the hearing would also be witness testimony corroborating the fellow Marine’s statements by prior statements and a forensic examiner who would explain the forensic evidence.
These hearings resemble a bench trial and the burden of proof to recommend charges go forward is that a reasonable belief exists the defendant’s committed the crime alleged.
Joey gave the best demonstration of telling the defense story through cross-examination of a government witness anyone could imagine. Through the cross – he set the scene of the overall environment, terrain, and population. He told the story about our clients’ reputations as warriors, the many combat operations they have been involved in, the successes their small unit made in afghanistan, and other experiences they had gone through as a unit.
Each of us took turns going first on cross examination and then the other two were able to hit remaining salient points needed.
We dealt with two fairly hostile witnesses – the main eyewitness to the shootings and his confidant.
The main eyewitness testified that he was standing with 20 feet or so from the co-defendants with a clear field of view as each of them pumped 3-5 bullets into each of the chest of each of afghans as they lie wounded on the ground. There were no enemy weapons discovered at the scene, i.e. no rifles. The eyewitness then says a grenade was planted on one of dead afghans – so it looked as if he was still a threat. The eyewitness was completely destroyed on cross…really by each of us in our own right. The guy had a memory like a sieve which was exploited with something like 80 “I don’t remember’s” – we developed a huge theory for motive to fabricate that was supported later by his confident – he was caught in multiple lies and impeached by document and witness – and we were able to exploit his mental health record
His confidant was also a piece of work – so much so that the presiding officer had to admonish him when he left the stand about his behavior with the eyewitness who was several grades in rank his junior.
We put on an active case as well – presenting evidence about our client’s courage and valor in combat; their taking the fight to the enemy – instead of waiting to be attacked; and, their protection of the afghan villages and villagers in their area of responsibility, leading to them be respected by the afghans they protected.
These men were warriors of this highest caliber. In fact, Joey’s client was nominated for the Silver Star (our Nation’s 3rd highest award for Valor in Combat actions) its final approval is pending.
For us – it was an honor to represent them.