Wednesday, January 31, 2007
Last modified Tuesday, January 30, 2007 11:30 PM PST 
 

Attorney: Accused Camp Pendleton Marine didn't get fair hearing

By: MARK WALKER - Staff Writer 

NORTH COUNTY -- An attorney for a Marine lieutenant charged with assaulting three Iraqis last year is alleging that a hearing officer violated his client's right to a fair hearing.

David Sheldon contends that actions and comments made by Lt. Col. William Pigott during an Article 32 hearing on Camp Pendleton that ended Sunday were unprecedented in his 16 years as a defense attorney handling dozens of military cases. 

Pigott presided over a four-day hearing for 2nd Lt. Nathan P. Phan, a 3rd Battalion, 5th Marine Regiment platoon commander charged with assaulting Iraqi civilians during efforts to obtain information about insurgent activity in the village of Hamdania.

Pigott, who served as the hearing officer, will write a report to Lt. Gen. James N. Mattis sometime next month as to whether he believes Phan should be court-martialed. Mattis is the convening authority over the case as commander of Marine Corp Forces Central Command and the I Marine Expeditionary Force.

Sheldon, a Washington-based attorney and former U.S. Navy lieutenant, has written a two-page memo to Pigott addressing what he contends were improper actions.

"I am deeply concerned about your repeated statements regarding the credibility of witnesses and the validity of the charges on and off the record prior to hearing all the evidence or commencing your deliberation," Sheldon wrote in the memo obtained by the North County Times. "I have never seen an investigating officer or military judge make such patently biased and inappropriate comments."

The memo also takes issue with Pigott's demeanor during the hearing and remarks he made from the bench Sunday when Marine Lt. Col. Matthew Cord, one of Phan's other attorneys, was presenting a summation of the case.

"Moreover, your obstreperous, condescending (to include your loud exaggerated sighs and eye rolling) behavior and repeated derogatory comments to Lt. Col. Cord during his closing comments were offensive and without precedence. In sum, you paid lip service to Lt. Phan's rights to a full, fair and impartial Article 32 hearing."

The attorney further objected to Pigott's refusal to allow him to challenge an earlier ruling that denied consideration of classified intelligence material he asserts would help exonerate Phan.

That refusal and Sheldon's attempt to raise an objection as the hearing concluded prompted Pigott to scream at Sheldon that the hearing was closed.

Sheldon said Tuesday he is insisting the memo be made a part of the official record because of his concerns over how Pigott's actions may affect his client. Phan, 26, faces a maximum punishment of more than 20 years in prison and a dishonorable discharge if ordered to trial and convicted.

"I am a defense counsel who was doing my job and, to an extent, I was prevented from doing that," Sheldon said.

He would not say if the defense is planning to ask for a new hearing.

Efforts to reach Pigott, the top legal officer from the Marine Corps base at Yuma, were not immediately successful.

The highly contentious hearing raised numerous issues that were vigorously contested by Phan's attorneys and the Marine Corps' prosecutors, Maj. Donald Plowman and Capt. Nicholas Gannon.

Among the issues that emerged was the Naval Criminal Investigative Service's policy of not recording its suspect interrogations or witness interviews, a policy that the civilian law enforcement agency of the Department of the Navy says is being reviewed.

Three enlisted men testifying for the defense said they never saw Phan assault anyone, testimony that conflicts with what the Naval Criminal Investigative Service presented as those men's official statements to investigators.

As a result of that conflict, Pigott said he would recommend that Mattis order an inquiry into how it came to be that those men are alleged to have implicated Phan in statements to investigators and then testified during the hearing that they never saw the lieutenant do anything wrong.

Sheldon's memo also takes issue with comments by Pigott during the hearing that he found the government investigators to be honest and their testimony reliable despite defense assertions of a myriad of problems with their work product.

"I've never seen a trial judge or investigating officer openly opine on the credibility of witnesses while the session is under way," Sheldon said.

The case against Phan was brought as a result of an investigation into the slaying of a retired Iraqi policeman in Hamdania in April. Phan has not been charged or implicated in any way in that case, but the seven Marines and Navy medical corpsman charged with the slaying were under his command.

-- Contact staff writer Mark Walker at (760) 740-3529 or  mlwalker@nctimes.com .
 

Victims of the Justice System
A conference at UCLA brings together the state's wrongly convicted, to share their experiences and push for legal changes.
By Henry Weinstein
Times Staff Writer

April 9, 2006

One by one they ascended the stage and introduced themselves, each an embodiment of the legal system's fallibility in California. 

"My name is Herman Atkins," a tall ponytailed man said. "The state of California stole 12 years of my life for a rape and robbery I did not commit in Riverside." 

"Good morning, my name is Gloria Killian," a well-spoken middle-aged woman said. "The state stole 22 years of my life for a robbery and murder I did not commit in Sacramento."

"Good morning. My name is Ken Marsh," a third speaker said. "The state took 21 years of my life for a murder I did not commit in San Diego in 1983."

Seventeen people in all reiterated the point to a packed ballroom at UCLA on Saturday: that although they now were free, countless other innocent people are imprisoned in the state. Atkins, Killian, Marsh and the others were wrongfully convicted and cleared years later.

They took part in the event, called "The Faces of Wrongful Conviction," to dramatize the flaws in the state's criminal justice system. The gathering was sponsored by the American Civil Liberties Union, Death Penalty Focus, Amnesty International and others.

It came as a state Senate-created commission is beginning to study and review the criminal justice system in California, with a particular focus on the causes of wrongful convictions and possible disparities in how death sentences are meted out. Former California Atty. Gen. John Van de Kamp, chairman of the commission; San Francisco attorney Jon Streeter, the vice chairman; and Santa Clara University law professor Gerald Uelmen, the commission's executive director, all were in attendance Saturday.

"We realize the system is imperfect," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro law-enforcement organization in Sacramento, in a telephone interview. If the commission comes up with needed reforms, that will be a public benefit, he said.

Scheidegger added, however, that he thought individuals sentenced to long terms, rather than the death penalty, were "more vulnerable" to errors in their cases, because death row inmates are entitled to more legal assistance after a conviction.

After identifying themselves and the duration of their time behind bars, each participant in Saturday's ceremony hung handcuffs on a wall on the stage and then 10 more pairs on behalf of so-called exonerees unable to attend the two-day conference. 

As the half-hour event, the first of its kind in California, concluded, the crowd gave the group of former inmates a prolonged standing ovation.

The speakers were a varied group. A few, such as Atkins, were cleared as a result of DNA evidence discovered after their trials. But most — including Killian and Marsh — gained their freedom after even longer legal battles in which there was no magic bullet like DNA.

There were whites, African Americans, Latinos, an Asian American and a Native American. They had come from as far south as San Diego and as far north as Yreka. All but Killian were male. 

They had served as little as one year — Bobby Herrera, for assault in Santa Clara County — and as much as 24 years — Thomas Goldstein, for murder in Long Beach. Two had been on death row. 

Summaries of their cases indicate they were victims of such problems as inaccurate eyewitness identifications, unreliable jailhouse informants, the failure of police and prosecutors to disclose exculpatory evidence and faulty forensics.

More than 200 people have been wrongfully convicted in California since 1989, said Jeffrey Chin, assistant director of the Innocence Project at California Western School of Law in San Diego, one of the conference sponsors.

That's one a month, said state Sen. Gloria Romero, (D-Los Angeles), who opened the conference. Romero has been pushing for a death penalty moratorium, but it is an uphill battle. "According to the latest Field Poll, 63% of Californians support the death penalty," she said. "We have work to do."

Natasha Minsker of the ACLU said the purpose of the conference was twofold: to draw attention to "wrongful convictions and to strategize solutions for much-needed change."

Stanford University law professor Lawrence Marshall, who played a key role in getting several innocent men off death row in Illinois when he was teaching in that state in the 1990s, called Saturday's event "truly momentous."

"It's time for California to be humbled by its capacity for error" in its criminal justice system, he said.

In November 1998, Marshall organized the first national conference of death row exonerees at Northwestern Law School. That event is believed to have set the stage for a death penalty moratorium in Illinois and major changes in the system there.

More broadly, it awakened Americans to the realization that innocent people had been sent to death rows across the country.

Although Saturday's conference included several death penalty-related panels, the gathering at UCLA had a broader focus, particularly since most of the California exonerees had been serving long sentences rather than facing execution. California has more individuals — at least 28,000 — serving life sentences than any other state. 

Throughout the day, the exonerees shared experiences among themselves and with the wider audience. Most were upbeat, but their suffering was obvious.

Marsh, for instance, developed such severe separation anxiety during his years away from his wife, Brenda, that he cannot bear to be apart from her, even for a few moments to take a group photograph with the others wrongfully convicted.

She accompanied him in the photo and also onstage. 

He introduced her by saying she had been in her own prison for the 21 years he was behind bars.

Despite losing many years of their lives, several of the exonerees said in interviews that they were not bitter. "Bitterness and anger will destroy you," said Killian, who was a law student when a man involved in a Sacramento murder made up a story that she had masterminded the killing. Now 59, Killian has formed a nonprofit organization, Action Committee for Women in Prison, based in Pasadena.

She lives with Joyce Ride, the mother of former astronaut Sally Ride, who spent thousands of dollars of her own money to hire an investigator and an appellate lawyer to look into Killian's case after visiting her in prison and becoming convinced of her innocence.

"My focus," Killian said, "is on the women I left behind and the changes I can effect to ensure that this does not happen to other people."