Fragging Defendant Acquitted

[PhilK]

This story popped up on my radar because my boss was one of the witnesses in this case.

http://www.military.com/news/article...acquitted.html

Fragging Defendant Acquitted
December 05, 2008
Associated Press

FORT BRAGG, N.C. - A Soldier was acquitted of murder Thursday in the 2005 bombing deaths of two superiors in Iraq, triggering loud outbursts and gasps from the slain officers' families.

A military jury found Staff Sgt. Alberto Martinez not guilty on two counts of premedidated murder in the deaths of Capt. Phillip Esposito of Suffern, N.Y., and 1st Lt. Louis Allen, of Milford, Pa. Both officers were killed when an anti-personnel mine detonated in a window of their room at a U.S. military base in Iraq in June 2005.

"He slaughtered our husbands and that's it?" yelled Allen's widow, Barbara Allen, moments after the verdict was read. Someone else shouted out that Martinez was a "murdering son of a bitch" before the judge quickly ordered the courtroom to be cleared.

The 14-member jury spent two days deliberating following a six-week trial at Fort Bragg, during which Martinez chose not to testify. The New York Army National Guard Soldier could have faced the death penalty if he had been convicted.

Martinez, 41, of Troy, N.Y., was the first Soldier from the wars in Iraq and Afghanistan to have been accused of killing a direct superior, a crime known as "fragging" during the Vietnam war. All three were members of the 42nd Infantry Division.

Witnesses had testified that Esposito and Martinez were at odds because the officer thought Martinez was lax in his operation of the unit's supply room.

Before reaching a verdict, military jurors spent several hours Thursday reviewing the recorded testimony of trial witnesses, including a sergeant who said she had delivered explosives to the supply room Martinez oversaw shortly before the bombing.

Prosecution witness Staff Sgt. Amy Harlan said she delivered ammunition and Claymore mines to Martinez's supply room about a month before the fatal bombing. Harlan said she neither received nor requested a receipt documenting who took the equipment, a usual military practice.

Sgt. 1st Class Ashvin Thimmaiah's testimony also was reviewed. He said Esposito asked him for a list of "potential candidates to take over the supply room" the day before he was killed.

Staff Sgt. David Wentzel, in testimony recorded in October, said Martinez "seemed unconcerned" moments after the fatal blast.

Wentzel said he assumed Martinez was shell-shocked because he didn't respond when he yelled for Martinez to take cover. Wentzel said he jumped up and pulled Martinez to the shelter of a building.

"I was expecting there was more to come," Wentzel testified. "He was standing in the middle of the road not trying to seek cover or anything. It was almost like he knew it was over."

Talking with my boss, it seems that prosecution was missing the "smoking gun". Too much cercumstantial evidence and nothing that tied the incident directly to the NCO.

We'll see how this goes over in the New York Army National Guard.

[SlightlyCatholic]

My question is this:

Is the Staff Sgt's career over regardless of the verdict? It seems to me that the stigma of being accused of anything like this is enough to put a sign over your head for a very long time, aquitted or not.

[JohnP]

Originally Posted by PhilK

This story popped up on my radar because my boss was one of the witnesses in this case.

http://www.military.com/news/article...acquitted.html



Talking with my boss, it seems that prosecution was missing the "smoking gun". Too much cercumstantial evidence and nothing that tied the incident directly to the NCO.

We'll see how this goes over in the New York Army National Guard.

I have friends also involved with this incident. It grieves me to see someone walk away from this, but, unless you can prove "beyond the shadow of a doubt", you have to let the him walk.

The responisibilty for the loss of a conviction lies directly with the prosecutor and the investigating officers.

To anwer Tim, I wouldn't trust him and in combat, that would be fatal.

JP

[Javelin66]

Or, maybe, the guy didn't do it.

Tim, from what I've read about this case, which is quite a lot, although this guy was in the in the NG, he had an active duty billet back home. Regardless of the outcome of this action, there is a considerable amount of evidence that he was a bad supply sergeant. Assuming that the chain of command had all the counseling to back this up, he could be administratively removed from his job. On top of that, I am guessing that he got a pretty bad evaluation as a result of this.

[HairyEyeball]

...unless you can prove "beyond the shadow of a doubt"...

No, you only have to prove beyond reasonable doubt, John. 'Beyond the shadow of a doubt' would require more than an authenticated video of the killer's actions from the inception of the plan, a complete and detailed confession, and unimpeachable eyewitness testimony - and even that wouldn't qualify.

[03_SHOOTER]

Expert: Martinez case calls for second look

By Corey G. Johnson
Staff writer

A military law expert says the Army should reinvestigate the case of two officers killed in Iraq after the acquittal Thursday of Staff Sgt. Alberto Martinez.

Donald Rehkopf Jr. said Friday that the testimony and verdict in Martinez’s trial led him to conclude that criminal investigators “jumped the gun” and “left too many stones unturned” during their investigation.

Martinez, 41, was accused of using a mine to kill 30-year-old Capt. Phillip Esposito of Suffern, N.Y., and 34-year-old 1st Lt. Louis Allen of Milford, Pa., in June 2005. The three served in a unit of the 42nd Infantry Division of the New York National Guard. The unit is based in Troy, N.Y.

Rehkopf is a former Air Force prosecutor and defense lawyer who has worked on military legal matters for 32 years. He is co-chairman of the military law committee of the National Association of Criminal Defense Lawyers and a friend of Martinez’s lawyer, Maj John Gregory.

Another investigation may be needed to clear up loose ends in the case, Rehkopf said.

“As the defense pointed out, it was poorly investigated...If the real perpetrator is still floating around out there, then they need to go after that person,” Rekhopf said. “There was smoke but you couldn’t tell which way the smoke was blowing in this case.”

On Thursday, a 14-member panel of Army officers and enlisted soldiers found Martinez not guilty of the murder charges. With the acquittal, Martinez goes free.

Questions still linger about what prompted the jury’s decision. Officials said the jurors’ votes are secret and that policies prevent them from publicly speaking about their process.

But Rekhopf said likely factors that could have weighed heavily on jurors were questions surrounding the physical evidence.

For example, he said, there were questions of whether the remains from three grenades used in the murders matched the design and serial numbers of the grenade supplies that Martinez had access to.

“The little things, like the grenade spoons that didn’t match, I mean, those are things that are important to a military jury,” Rekhopf said. “They all know that grenade batches may have slight differences. Therefore, unless you can trace them by a serial number...you can’t say this came from that ammo room.”

Rekhopf said higher-ranking officials also should examine what went wrong in the case.

“It’s one thing if (the jury) would have said we’re not going to find him guilty of premeditated murder. But the fact is, they didn’t buy anything, which meant they had a significant doubt that it was even Martinez,” Rekhopf said. “If I’m the general, I’m going to ask (prosecutors), ‘how did we get to this stage?’”

Army spokesman Paul Boyce said he was unaware of any internal reviews of the Martinez case, or whether any may occur.

Staff writer Corey G. Johnson can be reached at johnsonc@fayobserver.com or 323-4848, ext. 487.

It would appear that the really Army screwed the pooch on this one, and may well have rushed to judgement in accusing Martinez.

[JohnP]

Originally Posted by HairyEyeball

No, you only have to prove beyond reasonable doubt, John. 'Beyond the shadow of a doubt' would require more than an authenticated video of the killer's actions from the inception of the plan, a complete and detailed confession, and unimpeachable eyewitness testimony - and even that wouldn't qualify.

I stand corrected.

[txb&b]

Before I ask my question, I'm going to plead laziness since I don't have the time to read 900+ pages of the Manual for Courts-Martial to see if it even contains my answer.

If a second investigation turns up evidence that Martinez committed the crime, does the UCMJ contain anything similar to double jeopardy laws?

[SlightlyCatholic]

844. ART. 44. FORMER JEOPARDY

(a) No person may, without his consent, be tried a second time for the same offense.

(b) No proceeding in which the accused has been found guilty by court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.

(c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.

That's straight from the horse's mouth. I hope it clarifies as necessary.

[03_SHOOTER]

Originally Posted by txb&b

Before I ask my question, I'm going to plead laziness since I don't have the time to read 900+ pages of the Manual for Courts-Martial to see if it even contains my answer.

If a second investigation turns up evidence that Martinez committed the crime, does the UCMJ contain anything similar to double jeopardy laws?

It does. The only way he can be recharged would be if they turned up new evidence, and the new evidence can stand on it's own merits without relying on any of the previous evidence. Unfortunately, the odds of that happeneing are somewhere between slim and none.