This is the verbatim record of the trial of USMC Lance Corporal Walter H. Laak who was tried for abusing detainees. He pleaded to all charges. His punishment was confinement for 120 days; Reduction to pay grade E-1; and discharge from the Marine Corps.
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1stBn, 4thMar, lstMarDiv USMC Camp Pendleton, CA
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By
SPECIAL
COURT-MARTIAL
Commanding Officer
Conveaed by
alesei Cawaskelowiel
1st Battalion, 4th Marines
1st Marine Division (REIN)
10•111010ftirderCimpwaripiaiwaRPSI
Triad at
Camp Pendleton, California, on 19 NoveMber 2003
irimorer Mei ee Did) Offire sr hos arida*
DOD JUNE
DOD055155
APPELLATE RIGHTS STATEMENT
From: Lance Corporal Walter H. Laak USMC
To: The Judge Advocate General of the Navy
..
Subj: APPELLATE RIGHTS-STATEMENT .
1. I was convicted and sentenced by a Special court-martial on Wednesday,
November 19, 2003, at Camp Pendleton, Ca. Pursuant to Article 70, Uniform
Code of Military Justice, and R.C.M. 502(d)(6), R.C.M. 1105, and R.C.M. 1110,
m.C.M., 2002 my defenee counsel, First Lieutenant Curt J. Dewberry, USMC has
advised me of my appellate rights and the review process of the record of my
court-martial as follows:
a. The convening authority will take action on the sentence and may, in
his discretion, take action on the findings. The action to be taken on the
findings and sentencing is within the sole discretion of the convening
authority. The determination of the action to take on findings and sentence
is a matter of command prerogative. The convening authority is not required
to review the case for legal errors or factual sufficiency. In taking action
on the sentence, the convening authority may approve, disapprove, commute, or
suspend the sentence in whole or in part. The convening authority is not
empowered to reverse a finding of not guilty; however, the convening
authority may change a finding of guilty to a charge or specification to a
finding of guilty to a lesser offense included within that charge or
specification, may disapprove a finding of guilty and order a rehearing, or
may set aside and dismiss any charge or specification. Under no
circumstances may the convening authority increase the severity of the
sentence as adjudged. I have been advised by my defense couneel that it is
counsel's responsibility to represent me during the convening authority's
action stage of my court-martial conviction. In this regard; my defense
counsel has advised me of my right to request deferment of any sentence to
confinement, and of counsel's obligation to advise and assist me in preparing
matters for submission to the convening authority for consideration prior to
his taking action. I understand that I have ten days after a copy of the
authenticated record of trial is served in accordance with R.C.M. 1104(b) or
the recommendation of the staff judge advocate or legal officer is served in
accordance with R.C.M. 1105(c), whichever is later, to submit matters to the
convening authority. The convening authority may, for good cause, extend the
ten day period for not more than twenty additional days. It is also
understood that the failure to submit matters within the times preecribed
waives the right to sdbmit mattere. I may also expressly waive, in writing,
my righte to submit matters, and such waiver may not be. revoked. My defense
counsel has also advised me of his responsibility to examine the record of
trial and to note any errors and to examine the post-trial recommendation by
the staff judge advocate or legal officer for error or omissions, and to
reply within ten days from the date of service of the record of trial under
R.c.M, 1104(b) or service of the recommendation under R.C.M. 1105(c),
whichever is later. The convening authority may, for good cause, extend this
time period for up to twenty additional days.
b. If, after action by the convening authority, my sentence includes
dismissal or a punitive discharge, as applicable, or confinement at hard
labor for one year or more, / understand the record of trial will be
forwarded to the Judge Advocate General for referral to the U.s. Navy-marine
Corps Court of Criminal Appeals (NMCCA) in Washington, D.C., for review. I
D OD JUNE 7 7
DOD055156
understand that NMCCA is limited to reviewing the findings and sentence as
approved by the convening authority and may not reverse a finding of not
guilty, approve findings of guilty previously disapproved, or approve a
sentence more severe than that previously approved. In this regard, I
understand that no findings of guilty approved on review below may be
affirmed by.NMOCAVVIless that court is satisfied that each element of the
offense or offenses of which I was convicted is established beyond'reasoneble
doubt by legal and competent evidence of record. I further understand that
if NMCCA approves a finding of guilty with regard to one or more offenses,
the court ia then required to determine the appropriateness of the sentence
as approved on review below, and the court may not affirm a sentence as
approved on review below unless it finds that the sentence is a legal,
adequate, and appropriate punishment in view of all the circumstances.
c.
If NMCCA affirms the findings and eentence, in whole or in part, I
understand that I have the right to seek further review of my court-martial
conviction before the Court of Appeals for the Armed Forces (CAAF). In this
regard, I understand that CAAF is composed of five civilian judges and is
located in Washington, D.C. Insofar as further review before CAAF is
concerned, I understand that, whereas the review process described in the
preceding paragraph is automatic, I must request review before CAAF by filing
a petition for grant of review within sixty days from the earlier of the date
of being notified of the NMCCA decision or the date on which my copy of the
NMCCA decision, after having been served on my appellate counsel of record,
if any, is deposited in the United States mail for delivery by first-class
certified mail to the address I have provided; or, if I fail to provide such
an address, to the_latest address listed by me in my 'service record.
Furthermore, I understand that a petition for grant of review before CAAF
does not have to be granted by that court. I understand that such a petition
is granted only on good cause shown and the CAAF determines whether good
cause is shown. I understand that if CAAP should grant my petition for
review, its review of my case is iimited solely to questions of law, and that
its review will also be limited to those questions of law for which review
was granted. I understand that CAAF generally must accept the facts as found
at trial or during the prior review of my case and that it has no power to
amend the sentence as affirmed by NMCCA except in very limited circumstances.
d.
If CAAF reviews my case, or otherwise grants relief,. I understand
that I may further petition the U.S. Supreme Court for review of the CAAP
decision by writ of certiorari. I understand that the grant or denial of a
writ of certiorari is within the sole discretion of the U.S. Supreme Court
and that the application for a writ of certiorari must be filed in accordance
with, and within the time limits prescribed by, the rules of the U.S. Supreme
Court.
e.
My defense counsel has further advised me that I may waive the
appellate review as just explained to me or I may withdraw the appeal of my
caee from such review. If I do waive the review or withdraw my appeal, then
my case will be reviewed by a judge advocate. This judge advocate review
must be in writing and set forth conclusions as to whether: (1) the court
has jurisdiction over me and the offense(s); (2) the charge(s) and
specification(s) stated an offense; and, (3) the sentence was within the
limits prescribed as a matter of law. The judge advocate must also respond
in writing to each ellegation of error made by me or my defense counsel. If
the judge advocate determines that corrective action is required or if the
sentence includes dismissal, a punitive discharge, or confinement for more
than six months, the record of trial and the judge advocate's review and
DOD JUNE 7 8
DOD055157
recommendation will be sent to the officer exercising special court-martial
jurisdiction for action. The officer exercising special court-martial
jurisdiction may disapprove or approve the finding(s) or sentence, in whole
or in part; may remit, commute, or suspend the sentence, in whole or in part;
nay order a rehearing on the findings or the sentence, or on both; or may
dismiss the charge(s). .
f. I further understand that the portion of my sentence providing for a
punitive discharge or dismissal may not be ordered executed until the court-
martial conviction is final and the sentence, as finally approved, including
the punitive discharge or dismissal. A court-martial conviction is final
when the review is completed by NMCCA end:
(I)
I fail to file a petition for grant of review before CAAF within
60 days after notification, or the date of certified mailing, as appropriate,
or the NMCCA decision in my case;
(2)
My petition for grant of review is denied or otherwise rejected
by CAAF;
(3)
My case is not otherwise under review by CAAF; or
(4)
Review is completed in accordance with the judgment of CAAF and:
(a)A petition for a writ of certiorari is not filed within the
time limits prescribed by the U.s. Supreme Court;
(b)A7petition for a writ of certiorari is denied or otherwise
rejected by the U.S. Supreme Court; or,
(c)Review is otherwise completed in accordance with the
judgment of the U.S. Supreme Court.
Additionally, if I have waived review of my case by NMCCA or withdrawn my
appeal from that court, my court-martial conviction is final when review by a
judge advocate is completed and action is taken by the officer exercising
special court-martial jurisdiction approving the findings and sentence. If
my sentence includes a dismissal„approval by the Secretary of the Navy or
such Under or Assistant Secretary as is designated is further required. If
my sentence, as finally approved, includes a punitive discharge or dismissal,
it is understood that I will be discharged or dismissed in accordance with
the approved punishment.
2. In view of the foregoing, and should my court-martial be referred to
NMCCA under Article 66 or Article 69, Uniform Code of Military Justice, I
have been informed that I am entitled to representation before NMCCA, CAAF,
and the U.S. Supreme Court by appellate defense counsel who is a lawyer
qualified in accordance with Article 27(b), Uniform Code of Military Justice,
designated by the Judge Advocate General of the Navy, and provided at no
expense to me. Although I am entitled to such representation, I understand
that I must request such representation. I also understand that,lin addition
to or in lieu of my designated appellate defense counsel, I may retain a
civilian counsel to represent me before NmCCA, CAAF, and the U.S. Supreme
Court, but that the services of a civilian counsel would be at my own expense
and at no expense to the Government. Raving fully discussed the foregoing
with my defense counsel, I do desire to be represented by appellate defense
counsel.
3
DOD JUNE 7 9
DOD055158
3.
By my signature below, I hereby request the Judge Advocate General of the
Navy to designate an appellate defense counsel to represent ma. I understand
that I may waive representation by appellate defense counsel, and that I way
also waive or withdraw from appellate review. If I desire to exercise any of
these righte, I will so indicate by.separate correspondence to my appellate,—
defense counsel.
4.
In addition to, and separate from, my right to review by NMCCA, I have
the right to sentence review by the Naval Clemency and Parole Board (NCPB).
The NCPB will accept the findings of my court-martial and will not review my
case for legal errors. After reviewing my case, however, the NCPB nay grant
clemency by reducing a part of my sentence. I understand that I may waive
review by the NCPB. The decision whether to waive such review is an
important one and I understand that I have the right to consult with counsel
before making that deciaion.
5.
For administrative purposes, the following information is provided:
a. Principal defense counsel in thls case was:
First Lieutenant Curt J. Dewberry, USMC
b. I understand that in order for my defense counsel or any successor
counsel properly to represent me, I must keep counsel informed of my current
mailing address. In this regard, I may be contacted at the following address
and phone nuMber:
(b)(6)
c. By my signature below, I agree to forward any change of address or
phone nuMber to:
Director, Appellate Defense Division (Code 45)
NAvy-Marine Corps Appellate Revlew Activity
Office of the Judge Advocate General
washington Navy.Yard,.. •
Washington, DC 20374-1111
walter H. Leak
4
DOD055159
SPECIAL POKER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
-That I,-Walter H. Laakiiiiiiibeet-i-COnVi&ted by a Special. Court-Martial 64 -
Wednesday, November 19. 2003, do hereby make, constitute and appoint my
appellate defense counsel of record appointed under the provisions of Article
/0, uniform Code of Military .Justice, U.S.C. section 870, and R.C.M. 1202,
MCM, 2002, for the defense of my cage, my true and lawful attorney or
attorneys for me in my name, place, and stead, and for my use and benefit,
and as my act and deed, to accept service of the U.S. Navy-Marine Court of
Criminal Appeals (NMCCA) decision in my case and thereby start the running of
the 60-day appeal period within which I may petition the U.S. Court of
Appeals for the Armed Forces (CAW for a grant of review and, in the event
any part of my conviction is affirmed by the NMCCA, to execute, file, and
prosecute a petition for grant of review in the CAAF under the provision of
Article 67, UCMJ, 10 U.S.C. section 867, or when in his judgment he deems
further review of my conviction is unwarranted due to lack of meritorious
grounds to be urged upon appeal, to waive my right to petitiOn the CAAF. I
fully understand my statutory right under Article 67(cl. UCMJ, 10 U.S.C.
section 867(c), to have actual personal service of the decision of the NMCCA
on myself and I hereby voluntarily, knowingly, and consciously waive that
right.
GIVING AND GRANTING to my attorney full power and authority to do and perform
every act and thing_requisite and necessary to be done in the premises, as
fully to all intents and purpose/a as I might or could do if personally
present at the doing thereof, with full power in my of substitution and
revocation, hereby ratifying and confirming all that my said attorney or
substitute may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this Wednesday,
November 19, 2003.
Walter H. Laak
. . .
With the United States Armed Forces at Camp Pendleton, Ca.
I, First Lieutenant Curt J. Dewberry, the undersigned officer, do hereby
certify that on this Wednesday, November 19, 2003, before me, personally
appeared Walter H. Leak who is known to me to be a member of the United
States Armed Forces on active duty and to be the identical person who is
described in, whose name is subscribed to, and who signed_ he
contents thereof, he personally acknowledged to me that/Ife
on the date it bears, as his 'true, free, and ta act
uses', purposes, and considerations therein
AUTHORIZED TO ACT AS A NOTARY
PUBLIC UNDER THE PROVISIONS OF Curt J. Dewberry
SECTION 936 OF TITLE 10 OF THE First Lieutenant, USMC
UNITED STATES cODE
DOD055160
PR/VACY ACT STATEMENT
auttoritX. This information is requested by authority of 10 U.S.C. section
878a(1982), Executive Order 12473, C.F.R. 201 (1984 Comp)
Principal Purpose(s). This information 114 used to keep the aervicemember
informed of the status of his case through appellate review, to ensure that
he is fully advised of his appellate rights, and to communicate actions that
may be required of the servicemember based upon appellate review.
Routine Uses. The Blanket Routine Uses that appear at the beginning of the Department of the Navy's compilation in the Federal Register apply.
Mandatory or Voluntary Disclosure and Effect on Individual Not Providing
Information. Failure to provide a current address and telephone number may adversely affect the servicemember's ability to properly exercise his rights on appellate review and may adversely affect any benefits or privileges due upon completion of such review. For servicemembers requesting voluntary appellate leave, failure to provide a current address and telephone number may result in denial of that request. For servicemeMbers ordered to involuntary appellate leave or those already on appellate leave, either voluntarily or involuntarily, failure to provide current information may result in disciplinary action.
r'lesday, November 18, 2003
---.41751
Walter H. Leak
DOD055161
UNITED STATES MARINI CORPS
Legal ServiCe Support Team D
Legal Services Support SeCtion
1st Force Service Support Group, MARFORPAC
Camp Pendleton, California 92055-5607
1050
LSST-d
19 Nov 2003
Prom: Lance Corporal Walter H. Leak 447929599, U.S. Marine Corps
To: Commanding General, Marine Corps Base
Via: Commanding Officer, lstBn, 4thMar. lstMarDiv
SUBJ: REQUEST FOR VOLUNTARY APPELLATE LEAVE
Ref: (a) MCO P1050.3G, Regulations for Leave, Liberty and Administrative
Absence
Encl: (1) Copy of completed discharge physical
1.
In accordance with the.reference, I request to be placed on voluntary
appellate leave.
2.
The enclosure is attached as required information.
3.
/ hereby requeet that I be granted leave, including excess leave, without
pay, pending completion of the review of my court-martial. I understand
that:
a.
While on such leave, I am subject to the orders of competent military
authority;
b.
While on such leave, I must keep my commanding officer advised of my
correct address;
c.
Such leave may be terminated at any time by written notice to me,
delivered to the address that I have provided my Commanding Officer. Upon
notification of such termination, other than as a result of my executed
discharge, / am obligated to expeditiously return to my duty station or such
other location as directed by competent authority;
d.
/ am not entitled to mileage allowance or transportation in kind
while on ouch leave. Accordingly, I must hear my own transportation expenses
from my duty station to my leave address," and, if my leave is terminated for
any reason other than as a result of my executed punitive discharge, I must
bear my own transportation expenses to return to my duty station. In either
event, I must meet such expense without recourse to the government;
e.
Any accrued leave remaining to my credit will be charge& to my
account. / will receive pay and allowances for such accrued leave,.if any,
which I utilize. Thereaftet, any leave requested hereby whidh is utilized by
me will be excess allowance and during which period all my existing
allotments will be stopped in the same manner that such stoppages are made
upon discharge;
DOD JUNE 8 3
DOD055162
f.
If the punitive discharge is dieapproved for any reason, I may be,
discharged with a discharge under conditions other than honorable or an
honorable or general discharge, aa appropriate;
g.
My leave way be terminated if my punitive discharge is disapproved,
cr approved but suspended for a probationary period; .
h.
Solely at the option of the Commanding General, termination of my
leave may be effected where the date of my expiration of active duty (EAS) or
other obligated active duty has not passed and my punitive discharge is
disapproved by the discharge authority. In such an event, I hereby consent
to be discharged for the convenience of the government, specific basis under
MCO P1900.16C, Marine Corps Separation and Retirement Manual, paragraph
6203(4), is applicable to my case, and cognizant military authority
determines this course of action to be more appropriate than terminating my
leave status; and
4. My exceas leave address and telephone number are as follows:
(b) (6)
Walter H. Laak
2
8 4
DOD JUNE
RECORD OF TRIAL
of
)
LAAX, Walter H. (WP LCpl/E -3
lstBn, 4thMar, 1stMarDiv DSMC Camp Pendleton, CA
By
Spacial Court-Martial
Convened by Commanding Officer
1st Battalion, 4th Marines
1st Marine Division (REIN)
Tried at
Camp Pendleton, California, on 19 November 2063
.==== .== .= ====11C .
INDEX RECORD
=..-2111===1==========1111M== = 210= mass =mumps z
Article 39(a))
Sessions:
On 19 November 2003 1
Introduction of Counsel: 2
Arraignment: 6
Pleas:)7
'
Findings: 40
Prosecution evidence: 42
Defense evidence: 56
Sentence: 80
Appellate rights advisement: B1
DOD TUNE
TESTIMONY
PROSECUTION WITNESSES PAGE
14144 (WM
Direct ExaMination 42
Cross-Examination SO
Examination by the Court 53
DEFENSE WITNESSES PAGE
Capt0:05)
Direct Examination 57
Cross-Examination 65
Redirect Exatination 68
DOD055165
EXHIBITS ADMITTED IN EVIDENCE
PROSECUTION
EXHIBIT DESCRIPTION OFFERED ADMITTED
1 SRB pages 55 56
,
DOD JUNE 8 7
DOD055166
__= = =... ¦¦ ¦..¦¦¦ 5 3.=.1======
==
COPIES OF RECORD•
copy of record furnished the accused or defense counsel. as
per attached certificate or receipt.
copy (ies) of record forwarded herewith.
RECE/PT FOR COPY OF RECORD
I hereby acknowledge receipt of a copy of the record of trial of
United States v. , delivered to me
at this day of
I do / do not have matters to submit pursuant to R.C.M. 1105 and
1106 MCM, 2000.
DOD JUNE 8 8
DOD055167
PROCEEDINGS OF A SPECIAL COURT-MARTIAL
The military judge called the Article 39(a) session to order
at Camp Pendleton, California, at 1151, 19 November 2003, pursuant
to the following order:
[END OF PAGE]
1
DOD JUNE 8 9
DOD055168
UNITED STATES UARINE CORPS
1ST BATTALION, 4TH MARINES
1ST MARINE DIVISION (REIN), FMF
BOX 555432
CAMP PENDLETON, CA 92055-5432
nti4pLy mcrvi m;
5813
Legal
CMCO Ser: #1-02
29 Aug 02
SPECIAL COURT-MARTIAL CONVENING ORDER 1-02
Pursuant to authority contained in paragraph 0120b(1), judge Advocate
General of the Navy Instruction 5800.7C, of 3 October 1990, a special court-
martial is convened and may proceed at Marine Corps Base, Camp pendleton
California, or at any such authorized place as directed with the following
members:
Major M. R. Holahan, U.S. Marine Corps;
Major J. M. K. casadn. U.S. Marine Corps;
Captain(bm)U.S. marine Corps;
First Lieut,enaxit)
mashid, U.S. Marine Corps; and
First Lieutenant D. G. Ayers, U.S. Marine Corps;
Lieu)olonel
Unite)
es Marine Corps
Commanding
_t_
usciv c
9 0
DOD JUNE
DOD055169
MJ: The Court will come to order at Marine Corps Base Camp
Pendleton California in the case of United States versus
Lance Corporal Walter H. Laak United States Marine
Corps.
Captain OW
TC:)
Good morning, sir.
This Court is convened by the commanding officer
1st Battalion, 4th Marine Regiment by Court-Martial
Convening Order 1-02 dated 29 August 2002, copies of
which has been furnished to the military judge, defense
counsel, accused, and court reporter for insertion in
the record of trial. There are no modifications or
corrections to the convening order.
The general nature of the charges in this case are as
follows: Charge I, violation of the UCMJ Article 92,
violation of a lawful order; Charge II, violation of
UCMJ Article 93, cruelty and maltreatment; and
charge)
violation of the UCMJ Article 128, assault
consummated by a battery.
The charges were preferred by Lance Corporal Thomas,
United States Marine Corps, a person subject to the
UCMJ, and sworn to before an officer authorized to
administer oaths.
The charges have been properly referred to this
court-martial for trial by Major D. P. Holahan, United
States Marine Corps, 'the convening authority. He was
the commanding officer on the date that these charges
were referred.
The charges were served on the accused on
14 November 2003. The three-day statutory waiting
period has expired.
The accused and the following persons detailed to this
court-martial are present.
Colonel L. Korzan, United States Marine Corps Reserve,
as MILITARY JUDGE;
First Lieutenant C. J. Dewberry, United States Marine
Corps, as DEFENSE COUNSEL;
Captain J. S. mills, United States Marine Corps, as
TRIAL COUNSEL.
D OD JUNE 9 1
DOD055170
The members are absent.
Sezgeant R. Grismore, United States Marine Corps, nas
been detailed as court reporter for this court-martial
and has been previously sworn.
I have been detailed to this court-martial by the
Officer-in-Charge of the LSSS Legal Team D. I am
qualified, certified, and sworn in accordance with
Article 27(b) and 42(a). I have not acted in any
disqualifying manner!
MJ: Very well. Thank you, Captain Mills.
Lieutenant Dewberry?
DC: Yes, sir. Good morning, sir.
I have been detailed to this court-martial by the Senior
Defense Counsel, Legal Services Support Team D. I am
qualified and certified under Article 27(b) and sworn
you under Article 42(a). I have not acted in any manner
which might tend to disqualify me in this case.
There are no other defense counsel assigned to this
case, sir.
MJ: Very well. Thank you.
Lance Corporal Laak, are you the accused in this case?
ACC: Yes, sir.
MJ: Lieutenant Dewberry, is the accused attired in the
appropriate uniform with all awards and decorations to
which he is entitled?
DC: Yes, sir. Lance Corporal Laak is dressed in his service
Charlies. He's wearing the Combat Action Ribbon,
Presidential Unit Citation, the Navy Unit Commendation,
the National Defense Service Medal, and the Sea Service
Deployment Ribbon with a Bronze Star in lieu of Second
Award.
MJ: Very well. Thank you. You both may be seated:-
The accused and his counsel did as directed.
3
D OD JUNE 9 2
DOD055171
MJ: Lance Corporal Laak, you may remain seated throughout this discussion unless I direct you ta do otherwise.
Lance Corporal Laak, you have the right to be
represented in this court-martial by Lieutenant
Dewberry, your detailed defense counsel. You also have
the right to be represented by military counsel of your
own selection provided that the counsel'you select is
reasonably available. Military defense counsel are
provided to you free of charge.
If you're represent by military counsel of your own
selection, then Lieutenant Dewberry, your detailed
counsel, normally would be excused; however, you could
request that he continue to represent you along with the
military counsel of your own selection; however his
detailing authority would have the sole discretion to
either grant or deny that request.
Do you understand that?
ACC: Yes, sir.
Now, in addition to your military defense counsel, you
also have the right to be represented by a civilian
counsel at no expense to the United States. Civilian
counsel may represent you alone or along with your
military defense counsel.
Do you understand your right to civilian counsel?
ACC: Yes, sir.
MJ: Do you have any questions at all about your right to
counsel?
ACC: No, sir.
MJ: By whom do you wish to be represented?.
ACC: First Lieutenant Dewberry, sir.
MJ: Do you wish to be represented by any other attorney,
either military or civilian?
ACC: No, sir.
4
DOD JUNE 9 3
DOD055172
MJ: I was previously handed a copy of the first portion of
your pretriaI-agreement, and it includes a proyision .
which you agree to request trial by military judge
alone. Notwithstanding that, has anyone forced or
threatened you to forego or waive trial by members?
.
ACC: No, sir.
MJ:.Very well. Your request for trial by military judge alone is approved. This court-martial is assembled.
Prior to going on the record this morning, we did have
a -- I did have a brief 802 conference in the presence
of both counsel and the accused during which we
discuseed some typographical errors and other
administrative changes that needed to be made to the
charge sheet. All those changes have been made to the
original and the date indicated being today's date.
Do both counsel agree with my summation of our brief 802
conference and do you also agree to the changes made to
the charge sheet?
TC: Yes, sir.
DC: Yes, sir.
MJ: Very well. The accused will now be arraigned.
Captain Mills, are there any corrections to the charges
and/or specifications?
TC: No, sir.
MJ: Does the defense desire the charges and specifications beread?
DC: No, sir, the defense waives the reading.
The reading will be omitted.
IEND oF PAGE)
6
D OD JUNE 9 5
CHARGE SHEET .1,2113,108L1281.9,-,
1. NAME OF ACCUSED (1.o.e, Rrst 1.18 Laaks, Walter H. 2. SSN (b)(6) 3 RANK/RATE LCD1 4. par onAnE E-3
5. uNrf OR ORGANIZATION 5 OuRgENT SERV1C
• _ a INITIAL DATE .-- b. TIMM
lstBn, 4thMar, IstMarDiv, Catecn, CA 92055 12 Oct 00 4 rialL
7 Par PER PAWN a. &km s. SEAVREIGN purr._ r.,1014- & NATURE OF RES'TRAINT OF ACCUSED IL DaTE(S)IMPOsED
$1528.80 None $1528.80 None N/A
9 "...AR ESAN,SPECIFICA110148
10. CHARGE /: VIOLATION OF THE UCMJ, ART/CLE 92
SPECIFICATION: In that Lance Corporal Walter H. Laak, U. $. Marine Corps, on
active duty, having knowledge of a lawful order issued by-444i4aaitosealet-eerlanel--13-r-t-.
Mayer, U.S. Marine Corps, not to torture enemy prisoners of war, an order which was
his duty to obey, did, on or about .73June 2003, while deployed in Iraq, wrongfully
violate such order by striking enemy prisoners of war with hip fists on various
parts of their bodies. .1.03. vs/HI,,
(13)(6)
Charge II: vIOLATION OF THE UCMJ, ARTICLE 93
Specification: In that Lance Corporal Walter H. Leak, U. S. Marine Corps, on active duty, did, while deployed in Iraq, on or about 3 June 2003, maltreat enemy prisoners of war, persons subject to his orders, by hitting them with his fists on various parts of their bodies.
Charge III: VIOLATION-OF THE UCMJ, ARTICLE 128
Specification: In that Lance COrporal Walter H. Leak, U. S. Marine Corps, on
active duty, did, while deployed in Iraq, on or about 3 June 2003, unlawfully
strike enemy prisoners of war, by hitting them with his fists on vagiOus parts.of
their bodies.
HI. PFtEFERRAL
41• 1¦1111.AIG I1C arr.11.2Go a .....r la"). Ado
b. GRADE I a ORGANIZATION OF ACCUSER . (b)(6) LCp1 SvcCo liqSvc13.p. IstF$SO
4. Cinuovn toc ex •"•••• NeL-.. / ' ., a DATE
(b)(6) 0 .3/^ /ci AFFIDAVIT: Before me, the undiWned, authorized by law to administer oaths in cases of this character, personalty appeared the above named accuser this it/ ri day ot 46* bi r"2, 20.,J1.,5_,, and signed the foregoing charges and
specifications under oath that he/she is a person subject to the Unifixm Code of Military Justice and that he/she either has personal knowledge of or has Investigated the matters set forth therein and that the same are true to the best of hisTher knowledge and bekd.
(b)(6) IioSvcBn. I stFSSG. MarForPac. CarnPen, CA Oopantralkort of Mew -Captain. 1.JSMCR Judge Advocate -4....4.1 mo•nlfianino &MOW Comply to Acknogoor Oaths
I (See R.c.5t 3ons)-rsust be oarnmissformd offload
(b)(6)
_
N 01 02-L
ODFORNI
ORIGINAL
DOD JUNE 9 6
DOD055175
• Accused and-65unsel, please-rise.
The accused and h.r: counsel did as directed.
M¦7: Lance Corporal Walter H. Laak, United States Marine Corps, I now ask you: How do you plead? But before receiving your pleas, I advise you that any motion to dismiss any charge or to grant any other relief should be made at this time.
Lieutenant Dewberry, does the defense have any motions?
DC: Sir, at this time we'd like to reserve the right to move to have some of the charges merged -- the two charges, Charge I and II -- excuse me -- merged for purposes of sentencing since the allegations all stem from the same activity, the same act, that is alleged in each charge and specification. We'd
Are you talking about for findings purposes --
DC: Yes, sir. Once pleas are accepted. For sentencing purpose, sir.
MJ: -- or for sentencing purposes? Okay. / understand your motion and it's probably a pretty good one, so we'll revisit that at some point down the road. I will allow you to raise that motion again should it be necessary later on in this proceeding.
DC: Yes, sir.
Very well. Is the accused then prepared to plead?
MJ:,
DC: Yes, sir, he is.
To all charges and specifications: Guilty, sir.
Very well. I understand your pleas. You may be seated.
The accused and his counsel did as directed.
MJ: Lance Corporal Leak, I will only accept your guilty pleas
if you understand their meaning and effect. I am now
going to discuss your pleas of guilty with you. Do you
have a copy of the charge sheet in front of you at this
time?
DOD055176
bp
ACC:
MJ: A21 right. Keep that handy. If yotl-need to xAfer to it,
please do so. If at any time you need to discuss any ----
matter with your counsel, I will give you the
opportunity to do so.
A plea of guilty is the strongest form of proof known to
the law. Based on your pleas of guilty alone, without
receiving any evidence, this court can find you guilty
of the offenses to which you are pleading guilty. Your
pleas of guilty will not be accepted unless you
understand that by pleading guilty, you admit every
element of the offenses to which you are pleading
guilty, and you are pleading guilty because you really
are guilty. If you do not believe that you are guilty,
you-should not plead guilty for any reason.
Do you understand that?
ACC: Yes, sir.
MJ: Even if you believe you are guilty, you still have a legal
and moral right to enter pleas of not guilty and to
require the government to prove its case against you, if
it can, by legal and competent evidence beyond a
reasonable doubt.
If you were to plead not guilty, then you would be
presumed under the law to be innocent and only by
introducing evidence and proving your guilt beyond a
reasonable doubt could the government overcome this
presumption of innocence.
Do you understand this?
ACC: Yes, air.
1441: By your pleas of guilty, you waive, or in other words, you
give up three very important rights. They are as
follows:
First, the right against self-incrimination; that is the
right to say nothing at all about these offenses;
Second is the right to a trial of the facts by this
court-martial; that is the right to have this
court-martial decide whether or not you are guilty based
DOD JUNE 9 8
DOD055177
•
upon evidence present by.the prosecution and, if you
chose to do so, by the dEfenti.;
Third, the right to confront the witnesses against you
and to call witnesses in your own behalf.
Do you understand these three rights?
ACC: Yes, sir.
If you plead guilty there will not be a trial of any kind
as to the offenses to which you are pleading guilty. By
pleading guilty, therefore, you give up the three rights
that I've just described. Do you understand that?
ACC: Yes, sir.
mJ: Have you discussed this matter with Lieutenant Dewberry?
ACC: Yes, sir.
MJ: Do you agree to give up these three rigbts with regard to
these offenses that you have pleaded guilty and answer
my questions about them?
ACC: Yes, sir.
Lieutenant Dewberry, what advice have you given the
accused as to the maximum punishment for the offenses to
which he has pled guilty?
DC:)
Sir, i haVe advised Lance Corporal Laak that the maximum ,
punishment is confinement for 12 months, forfeiture of
two-thirds base pay per month for 12 months, reduction
to mav grade E-1, and discharge from the service with a
0)(6)
MJ: Does the government concur?
TC: Yes, sir.
MJ: Lance Corporal Laak, the maximum punishment for the
offenses to which you have pleaded guilty is, as just
indicated by your counsel, to be confined for 12.months,
forfeiture of two-thirds pay per month for 12 moriths,
reduction to E-1, and a ODX6)
Now, is that your understanding as well?
9
D OD JUNE
DOD055178
•.•
Yes,
ACC:)
—
Have you had enough time to discuss your case with
Lieutenant Dewberry?
MJ:)
Yes, sir.
ACC:)
Ma: Do you believe that his advice has been in your best
interest?
ACC: Yes, sir.
Are you pleading guilty voluntarily?
MJ:)
ACC:)
Yes, sir.
MJ: Has anyone forced or threatened you to plead guilty?
ACC: No, sir.
MJ: Now, in a moment you'll be placed under oath and we'll
discuss the facts of your case. /f what you say is not true, your statements may be used against you in a prosecution for perjury or false statement.
Do you understand that? ACC: Yes, sir, MJ: In addition, the government may ask that your statements
and answers be used against you during the sentencing portion of your trial.
Do you understand that as well? ACC: Yes, sir. MJ : At this time, please stand, turn and face the trial
counsel, raise your right hand.
Captain '005) administer the oath.
The accused was duly sworn.
Is there a stipulation of fact concerning these pl:eas?
MJ:)
TC:.
No, sir.
10
DOD JUNE 1 0 0
Lance Corporal Leak, I am now going to explain the
. NJ:.
elements of the offenses to which you have entered pleas
of guilty. By elements, I mean the facts that the
government would have to prove beyond a reasonable doubt
before you could be found guilty if you had pleaded not
guilty. When I state each of these elements, ask
yourself if it is true, and whether you want to admit to
me that it is true, then be ready to discuss the
underlying facts with me.
If you take a look at the charge sheet as amended, all
three specifications are alleged to have been committed
on or about the same date, that being 3 June 2003. So
we'll just go in order.
If you look at the specification under Charge I, this
offense alleges a violation of the Uniform Code of
Military Justice, Article 92, failure to obey a lawful
order.
This offense has the following four elements:
The first element is that a member of the Armed Forces,
namely Lieutenant Colonelmm Vnited States
Marine Corps, iesued a certain u.awrui order to not
torture enemy prisoners of war;
The second element is that you had knowledge of the
order;
The third element is that you had a duty to obey the order; and
The fourth element ie that on or about 3 June 2003,
while deployed in Iraq, you violated or failed to obey
the order by otriking enemy prisoners of war with your
fists on various parts of their bodies.
Let me give you one brief explanation that pertains to
this offense:
An order to be lawful must relate to specific military
duty and be one which the member of the Armed Forces is
authorized to give.
An order is lawful if it is reasonably necessary to
safeguard and protect the morale, discipline, and
usefulness of the members of a command and is directly
11
DOD JUNE 101
connected with the maintenance of good order in the
,
serVices.
Do you understand that explanation?
ACC: Yes, sir.
MJ: Now taken together with that explanation, do the four elements of this offense correctly describe what you did on this occasion?
The accused and his counsel conferred.
ACC: Sir, I walk --
MJ: No. No. I'm just --
The accused and his counsel conferred.
ACC: Yes, sir.
MJ: Okay. We're going to get to a detailed discussion concerning the underlying facts, but at this point what I am going to do is for each of the three offenses, I am going to list the elements for you and give you any pertinent definitions or explanations to flush out the elements, and then when I am done giving you each of the sets of elements, I am just going to ask you to begin with do those elements correctly describe what you did.
ACC: Yes, sir.
MJ: Now with respect to the four elements of the offense of
violation of failure to obey a lawful order, along with
that explanation that I've given for you, do they
correctly describe what you did on this occasion?
ACC: Yes, sir.
MJ: If you look at the specification under Charge this
offense alleges a violation of the UCMJ, Article 93,
maltreatment of subordinates. This offense haB the
following two elements -- and again, after I give you
the elements I'm then going to give you some definitions
that apply to those elements.
12
DOD JUNE 1 0 2
The_first element is that certain unnamed enemy
prisoners of war were subject to your orders; and
The second element is that on or about 3 June 2003,
while deployed in Iraq, you maltreated the enemy
priegoners of war by hitting them with your fiat on
various parts of their bodies.
Those are the two elements. Here are some definitions.
The phrase "subject to the orders of," includes persons
under your direct or immediate command and all peroons
who, by reason of some duty, are required to obey your
lawful orders even if those persons are not in your
direct chain of command.
Do you understand that explanation?
ACC: Yes, sir.
MJ: The term maltreated refers to unwarranted, harmful,
abusive,, rough, or other unjustifiable treatment which,
under all of the circumstances, a, results in physical
or mental pain or suffering; and, b, is unwarranted,
unjustified, and unnecessary for any lawful purpose.
Do you understand that definition of the term
maltreated?
ACC: Yes, sir.
MJ: Finally, assault and improper punishment may constitute
the offense of maltreatment.
Do you understand that?
ACC: Yes, sir.
MJ: All right. Now, taken together with the definitions and
the explanation that I just gave you, do these two
elements of this offense correctly describe what you did
on this occasion?
ACC: Yes, sir.
MJ: If you look at the specification under Charge III, this
alleges a violation of the UCMJ, Article 128, assault
consummated by a battery. This offense has the
13
DOD JUNE 103
following three elements:
The first element is that on or about 3 June 2003, while
deployed in Iraq, you did bodily harm to certain unnamed
enemy prisoners of war;
The second element is that you did so by hitting them
witb your fists on various part of their bodies; and
The third element is that the bodily harm was done with
unlawful force violence.
Those are the three elements ot that offense.
Let me give you this additional explanation.
An assault is an attempt or offer with unlawful force or
violence to do bodily harm to another. An assault in
which bodily harm is inflicted is called a battery.
Do you understand that so far?
ACC:)
Yes, sir.
)
KJ: A battery is an unlawful and intentional application of
force or violence to another. The act must be done
without legal justification or excuse and without the
lawful consent of the victim.
Bodily harm means any physical injury to or offensive
touching of another person, however slight.
Do you understand all of that explanation?
Yes, sir.
)
MJ: Now, taken together with those explanations, do the two
elements -- I'm sorry -- the three elements of that
offense correctly describe what you did on this
occasion?
ACC:)
Yes, sir.
On 3 June 2003, what unit were you a member of and
attached to?
MJ:)
ACC:)
1st Battalion, 4th Marines, sir.
14
And,where. was. your battalion on that day?
MJ:)
In Al Hillah, Iraq, sii.
mJ: Do you recall how that is spelled?
SPECTATOR: A-L-H-I-1,-L-A-H. I'm sorry.
MJ: We can't have comments from the gallery.
ACC:)
SPECTATOR: I'm sorry, sir.
I was just going to say, in other cases I have seen that
MJ:
spelled A-L H-I-L-L-A-H. Is that how you spell the city
where 1/4 was located?
Yes, sir.
Who is Lieutenant Colonel -- or who was Lieutenant Colonel
ACC:)
MJ:)
I am not quite sure how it's
pronouncea. uo now Know how it's pronounced?
ACC: Lieutenant Colonel oym sir?
(WM ? .Who was Lieutenant Colonel (b)(6) on 3 June 2003?
MJ:)
Our battalion commander, sir.
ACC:)
MJ:)
Of 1/4?
ACC:)
Yes, sir.
MJ:)
And at some point did Lieutenant Colonelom issue you
some order pertaining to the treatment of enemy
prisoners of war?
ACC: Yes, sir.
MJ:)
All right. First of all, when did he issue you the order?
ACC:)
We had classes on ship, sir, about the rules of
engagement. We had quite a few of them, sir.
MJ: Well, who gave the classes?
ACC:)
Or staff NCO's, sir.
And was this while you were deployed en route to Iraq?
MJ:)
15
Yes,4-sir.
ACC:)
What Lima period are we talking about?
MJ:)
End of January, sir.
ACC:)
Obviously of '03.
MJ:)
Yes, sir.
ACC:)
What did these classes pertain to?
M3:,
The rules of engagement, sir.
Wel1, it is specifically alleged in the specification
ACC:)
MJ:,
under Charge I that you were issued an order not to
torture enemy prisoners of war. Can we just kind of
hone in on that one and tell me about that order. Who
gave it? When? How you received it?
The accused and hin counsel conferred.
ACC:.
The classes that we had, sir, on ship were we weren't
supposed to harm any EPW's.
Let me ask you this: On 3 June 2003, what type of work
were you performing that brought you into contact with
EPW's?
MJ:.
I was on EPW watch, sir.
And what are the duties of a Marine or what were the
duties -- what were your duties as a member of the EPW
watch on 3 June 2003?
ACC:)
ACC:.
To watch the EPW's and make sure nothing happens to rem,
sir.
Well, did)
ever receive an order from Lieutenant
Colonel (b)(6) about the treatment or maltreatment of
enemy prisoners of war?
ACC:)
Yes, sir.
When was that?
ACC:)sir.
I can't remember,
16
DOD JUNE 106
41,
MJ: Well, was it while you were onboard ship or after you were
in country?
ACC: In -- I think it was in Kuwait, sir.
MJ: Lieutenant Dewberry, would you like to take five minutes
or so to talk with your client? He appears to be
perhaps needing some additional time to prepare for a
detailed inquiry into this matter. So why don't we take
five or ten minutes.
DC: Yes. Sir-
MJ: I need him to be a little more specific in terms of, you
know, the order, what it pertainRd to, when he received
it from Lieutenant Colonelom
He seems to be a
little bit uncomfortable. wny aon't you just take a
little bit of time with your client and see if we can't
come back and try to facilitate this inquiry.
Court's in recess.
The court-martial recessed at 2214, /9 November 2003.
The court-martia/ was called to order at 1223, 29 November 2003.
MJ: The court is called to order. All parties when the Court
recessed are once again present.
During the recess we did have a brief 802 conference in
the presence of all counsel and the accused, during
which we discussed. this issue after Lieutenant Dewberry
had an opportunity to discuss the matter in turn with
his client, and the Court was apprised that the scenario
with respect to the specification under Charge I was
that the -- essentially, to summarize, the ultimate
source of the order WAR the battalion commander,
Lieutenant Colonel om but that it was disseminated
to the accused A4re.e'riv rw his company commander, that
being Captain om , United States Marine Corps.
And the Court was turtner apprised that counsel and the
accused desire to proceed with the providence inquiry
with the specification being amended to reflect Captain
naMe as the order issuer as apposed to the
battalion commander.
Did that accurately summarize our 802 conference,
counsel?
DOD J'UNE 10 7
TC: Yes, six.
DC: Yes, sir. And the charge sheet has been amended as I have indicated. Lance Corpora1 Laak, have you had an adequate
opportunity to discuss this matter and this change with Lieutenant Dewberry? ACC: Yes, sir. MJ: Do you agree to the amendment to the specification as I've just summarized? ACC: Yes, sir.
MJ: Do you understand that that is considered a major
amendment to the specification and I will only allow it
if you consent to it? Do you understand that?
ACC: Yes, sir:
MJ: Do you consent to this major amendment to the
specification under Charge I? ACC: Yes, sir. MJ: Lieutenant Dewberry, do you have any objection to that
change?
DC: No;'-sir. No objection.
MJ: Okay. Very well. We'11 pick up where we left off then.
Was Captairmp your company commander? ACC: Yes, sir. MJ: And at some point, prior to 3 June 2003, did he issue you
some order pertaining to the treatment of enemy
prisoners of war?
ACC: Yes, sir.
MAJ: And how was that order disseminated to you or how did you
receive it?
18
DOD JUNE 1 0 8
Yes, sir.
ACC:)
What is your MOS?
ACC:)
MJ:)
0311, sir.
MJ:)
I'm sorry?
ACC:)sir.
0311,
Had you had any -- prior to the order from Captain
MJ:)
had you had any other training or briefings
concerning the care and treatment of EPW's?
Yes, sir.
ACC:)
What were -- well, can you summarize for me the training
that you received on those prior occasions?
MJ:)
We had classes on ship, sir, about rules of engagement.
ACC:)
Did that also include the care and treatment of enemy
MJ:)
•
prisoner of war?
Yess.sir.
ACC:)
And again, on 3 June 2003, you were in Iraq?
MJ:)
Yes, sir.
ACC:)
Did you violate or otherwise fail to obey Captain
(03x6) order on that date?
MJ:)
ACC:)
Yes, sir.
How did you do so?
MJ:.
I struck EPW's, sir.
MO:,How did you do that?
ACC:)
I hit them with my fist in their chest, sir.
MJ:)
ACC:)
Closed fists?
ACC:)
Yes, sir.
How many EPW's are we talking about?
MJ:)
20
110
DOD JUNE
DOD055189
Three, sir.
)
ACC:)
MJ: What -- just in a narrative fashion, just tell me what
happened. Describe the situation, the --
I walked into --
-- physical, you know, description of where you're at and
what led you to strike the EPW's in that manner.
ACC:)
ACC:)
I walked into the EPW site; it was dark and I went to the back and just struck one a couple of times. I went to the next and hit him like two times. The third one just, like, two times and then I just walked back out, sir.
MJ: Were they within a enclosed compound?
ACC: Yes, sir.
MJ:)
Was it, you know, open-air, a fenced-in area, or was it in a building?
ACC:)
It was surrounded by walls, sir.
MJ:)
How many EPW's were in that compound, approximately?
ACC:)
About 18, air.
MJ:)
Eighteen?
Were these EPW's Iraqi soldiers?
ACC:)
Yes, sir.
MJ:)
Were they Iraqi soldiers that you had or your unit had
captured?
ACC: Yes, sir.
MJ:)
When, in relation to the striking of them by you, had they
been captured?
The accused and his counsel conferred.
ACC:)
It was a couple of days, sir.
MJ:)to da that?
And again, what prompted you
21
D OD JUNE 111
DC: No, sir.
MJ: If you look at the specification under.Charge II, this
also alleges that you hit enemy prisoners of war with
your fists on various parts of their bodies. Is this
any different than the scenario that you just described
for me under Charge 1.? ACC: The same thing, sir. MJ: Okay. It is exactly the same incident? ACC: Yes, sir. MJ: Same date? Same EPW's? ACC: Yes, sir. MJ: You were at the same location? ACC: Yes, sir. MJ: The same three enemy prisoners of war? ACC: Yes, sir.
MJ: were these enemy prisoners of war somehow subject to your orders? ACC: Yes, sir. MJ: Hol;; so? ACC: Because they're our prisoners, sir. MJ: Well, you told me earlier, quite a while ago, that you were on EPW watch. Correct? ACC: Yes, sir. MJ: And explain that to me in a little more detail, what that watch involved and what your responsibilities were.
ACC: To take care of the prisoners and make sure they're not harmed. Make sure we feed them and make sure that nothing happened to them, sir.
26
DOD JUNE 116
DOD055195
4.,
MJ: And who was that on the 3rd of June just before you got
Off your Watch?
ACC: SergeantiNn sir.
MJ: Sergeant who?
ACC: (13)(6)
MJ: Do you know how to spell his last name?
ACC:
MJ:
01)(6)
ACC: OHM
MJ: (b)(6)
ACC: Yes, sir.
MJ: Was Sergeant "6) in the compound at the time that you
were striking the EPW's?
ACC: Yes, sir.
MJ: Did he see you strike the EPW's?
ACC: He was sleeping, sir. No.
MJ: He was sleeping?
ACC: Yes, sir.
MJ: Was he supposed to be sleeping?
ACC: Yes, sir.
MJ: SO he obviously didn't see you engage in your conduct.
Correct?
ACC: That's right, sir.
MJ: Had he done or said anything to you prior to this incident
that caused you to believe that you wouldn't get in any
trouble for physically mistreating EPW's.
28
DOD JUNE 118
DOD055197
ACC: No, he came to my tent, sir, and woke me up and started
yelling at me.
MJ: After it happened?
ACC: Yes, sir.
MJ: When he found out?
ACC: Yes, sir.
Then I had to go see my company gunnery sergeant,
company X0, sir.
MJ: Okay. Well, I suspect I know the answer to the question I
ant-limlly asked but let me ask it again. Did Sergeant
(b)(6))
do or say anything prior to the incident that
caused you to believe it would be okay to mistreat
EPW's?
ACC: No, sir._
MJ: As a member of the EPW watch do you have the authority to
issue orders to enemy prisoners of war?
ACC: Yes, sir.
MJ: Would they then have the corresponding obligation to
comply with your orders?
ACC: Yes, sir.
MJ: Now, you indicated tO me you had been off watch for a half
hour, approximately a half hour, before you struck the
first EPW. Were they still, nevertheless, at that time
subject to your orders?
ACC: Yes, sir.
MJ: Did you have any other duties during this time period
while you were on EPW watch?
ACC: I had an EPW watch, just running for people, doing this
and that for people, and just all kinds of sorts of
different odd jobs, sir.
MJ: Okay. Prior to 3 June 2003, had you stood EPW watch
before?
29
DOD JUNE 119
DOD055198
ACC: Yes, sir.
MJ: Did you have any justification for treating them in that
manner?
ACC: No, sir.
MJ: Maltreatment requires that your conduct result in physical
or mental pain or suffering to at least some extent. Do you believe and admit that your conduct meets that definition or met that definition?
ACC: Yes, sir.
MJ: The act of punching somebody in the chest and stomach with
a cloeed fist would you agree would cause some amount of
pain?
ACC: Yes, sir.
MJ: The second prong of that definition of maltreatment
requires that the conduct, under the circumstances, be
unwarranted, unjustified, and unnecessary for any lawful
purpose. Do you remember that definition?
ACC: Yes, sir.
MJ: Do you believe that your conduct, again, satisfied that
definition? ACC: Yes, sir. MJ: Was there any lawful purpose, whatsoever, behind }.roui"'
conduct? ACC: Excuse me, sir? MJ: Was there any lawful purpose behind your conduct? ACC: No, sir. MJ: Did you feel it was necessary for some proper purpose? ACC: No, sir. MJ: And, again, even though you had been off EPW watch for
some short period of time, are you satisfied that the
enemy prisoners of war were still subject to your
31
DOD JUNE. 121
DOD055200
‘0#
MJ: If you can take a look at Appellate Exhibit II, the sentence limitation portion, Lance Corporal Laak, confirm for me that you have signed that document as
well.
The accused did as directed.
ACC: Yes, sir.
Before you signed that document, did you read it carefully
and discuss its content with Lieutenant Dewberry?
ACC: Yes, sir.
MJ: Now, I don't know and I don't want to know at this time
what the sentence limitation portion is that you've
agreed to with the convening authority, but if you take
a look at Appellate Exhibit II just confirm for me that
you understand what the maximum sentence is that the
convening authority can approve in this case.
A.CC: I understand, sir.
Ma: Now, in a pretrial agreement you agree to enter pleas of guilty to the charges and specifications. In return, the convening authority agrees to approve and order executed no sentence greater than that set forth in Appellate Exhibit II.
Do you understand that?
ACC': Yes, sir.
MJ: If the sentence adjudged by this court-martial is greater
than the one provided for in Appellate Exhibit II, then
the convening authority would have to reduce the
sentence to one no more severe than the one provided for
in you agreement. Do you understand that?
ACC: Yes, sir.
On the other hand, if the sentence adjudge by this
court-martial is less than the one provided for in
Appellate Exhibit II, the convening authority cannot
increase the sentence adjudged. Do you understand that
as well?
ACC: Yes, sir.
35
DOD JUNE 125
Now, normally the sentence limitation portion of a
pretrial agreement, -Appellate Exhibit II in your case,
is broken down into several distinct parts, to provide
for provisions pertaining to punitive discharge,
confinement, reduction, forfeiture, and possibly other
miscellaneous sentencing provisions. Again, without
disclosing any of the details of Appellate Exhibit II,
is it broken down in that manner?
:
ACC: Yes, sir.
MJ: Do you understand that administrative processing 'is separate from this trial and your pretrial agreement?
ACC: Yes, sir.
MJ: Therefore, any agreement you may have with the convening authority pertaining to a punitive discharge would not prevent the service from initiating administrative discharge proceedings against you that could result in an other-than-honorable discharge. Do you understand that? -
ACC: Yes, sir.
MO : There are a couple of automatic provisions that I want to make sure you understand how they work, automatic reduction and automatic forfeiture.
Article 58a of the Uniform Code of Military Justice and
Section 152 of the JAG Manual provide that any approved court-martial sentence of an enlisted person in a_pay
grade above E-1 that includes either a punitive discharge or confinement in excess of 90 days or 3
months automatically reduces that individual to the
lowest enlisted pay grade, E-1, by operation of law.
This would apply unless your pretrial agreement provides
differently or the convening authority otherwise acts to
disapprove or suspend operation of those articles. Do
you understand that?
ACC: Yes, sir.
MJ: Similarly, and again, your counsel may have gone over all of this with you, but Article 58b of the UCMJ provides that any approved court-martial sentence that includes either a punitive discharge and confinement or confinement for more than six months results in the
36
DOD JUNE 12 6
forfeiture of two-thirds of all pay due during the
period of confinement; however, the convening authority
could waive those forfeitures for a period of up to six
months as an aspect of your pretrial agreement, or
otherwise, in which case the.pay would be given to a
dependant. Do you understand that as well?
ACC: Yes, sir.
MJ: You may request to withdraw your pleas of guilty at any
time before sentence is announced. If you have a good
reason for the request, I will allow you to do so. Do
you understand that?
ACC: Yes, sir.
MJ: If any plea of guilty is changed to not guilty, either
because you desire it or because I direct it, then the
convening authority could withdraw from the agreement.
Do you understand that?
ACC: Yes, si;.
MJ: Finally, if the pretrial agreement becomes null and void
for any reason, that means of no effect, then your offer
to plead guilty and enter into this agreement cannot be
used against you in any way. Do you understand that as
well?
ACC: Yes, sir.
MJ: If you take a look at Appellate.Exhibit I, I just want to
go through this in a little more detail to see if
there's anything else that we need to discuss.
Paragraph 2 states that you are satisfied with
Lieutenant Dewberry as your defense counsel. Is that
correct?
ACC: Yes, sir.
MJ : We've covered everything else on the first page. If you turn to the second page.
We've covered Paragraphs 8 and 9. You've pled
consistent with Paragraph 10. We've covered
Paragraph 11. I will summarize Paragraphs 12 and 13 for
you.
3 7
D OD JUNE 1 2 7
First of all, Paragraph 13a says that if you violate any
provision of the agreementor commit any misconduct.. .
before the date of trial, the convening authority could
withdraw from the agreement. gince we are here talking
about the agreement, Captain (wm I assume
Paragraph 13a no longer applies. Is that correct?
TC: Yes, sir.
All right. Very well.
Paragraph 13b, however, may have some potential
application and what it says, essentially, is that
should you commit any misconduct or otherwise violate
any provision of your pretrial agreement at any time
between today's date and the completion of you sentence,
to include any suspension periods, then the convening
authority could take action after following certain
procedural steps that could cause you to lose the
benefit of your pretrial agreement. Do you understand
that?
ACC: Yes, sir.
MJ: Do you also understand that for the purpose of that paragraph and for the agreement as a whole, any --misconduct is defined as any act or omission that you might commit in violation of the UCMJ? Do you understand that as well?
ACC: Yes, sir.
MJ: Paragraph 14 indicates that this agreement constitutes all of the conditions and understandings of both the government and you regarding your pleas and the sentence limitations in this case. Is that correct?
ACC: Yes, sir.
MJ: Do you have any other understandings or agreements with
the convening authority or the government other than
what is set forth in your pretrial agreement?
ACC: No, sir.
MJ: Do both counsel agree with that statement?
TC: Yes, sir.
12 8
DOD JUNE
DOD055207
DC: Yes, sir.
MJ: And Captain /0*6) is that your signature on Page 4 for
the convening authority?
TC: Yes, air.
MJ: And obviously, you had his authority and the convening
authority agrees to be bound by the pretrial agreement?
TC: Yes, sir.
MJ: Very well.
Do both counsel agree with my interpretation of the
pretrial agreement?
TC: Yes, sir.
DC: Yes, sir.
MJ: Lance Corporal Laak, do you have any questions at all
about any of the provisions of your pretrial agreement?
ACC: No, sir.
MJ: Are you entering into this agreement voluntarily?
ACC: Yes, sir.
MJ: Has anyone tried to force or threaten you to enter into
this ag.reement?
ACC: No, sir.
MJ: Have you fully discussed this agreement with Lieutenant
Dewberry and are you satisfied that his,advice has been
in your best interest?
ACC: Yes, sir.
MJ: Do you have any questions about your pleas of guilty, your
pretrial agreement, or anything else that we have
discussed?
. ACC: No, sir.
3 9
12 9
DOD JUNE
DOD055208
MJ: At thiS point I find the pretrial agreement to be in pc..licy or my own notions of fairness, and the agreement accord with appellate-case law, not contrary to public.. is accepted.
Once more, Lance Corporal Laak, do you have any
questions about the meaning and effect of your pleas ofguilty?
ACC: No, sir.
MJ: Do you still wish to plead guilty?
ACC: Yes, sir.
MJ: I find that you have knowingly, intelligently, and
consciously waived your rights against
self-incrimination, to a trial of the facts by this
court-martial, and to confront the witnesses against
you. I further find that your pleas are made
voluntarily and with a factual: basis: and they are
accepted:
Accused and counsel, please rise.
The accused and his counsel did as directed.
MJ: Lance Corporal Walter H. Laak, United States Marine Corps, it's my duty as military judge to inform you that in accordance with your pleas, this court-martial finds you:
Of all three charges and the
specifications thereunder: Guilty.
You may be seated.
The accused and his counsel did as directed.
MJ: Captain 1M(6) are there any corrections or additions to
the personal data?
TC: No, sir. We do request that the matters addressed in providency be considered for purposes of sentencing.
MJ: Very well. Any objection, Lieutenant Dewberry?
40
DOD055209
DC: No, sir, just again, reserving the objection made earlier -when we were entering pleas...
MJ: With respect to multiplicity for sentencing purposes?
DC: Yes, sir.
Very well. There has been no pretrial restraint of the
accused. Is that correct, Lieutenant Dewberry?
DC: That's correct, sir.
:
Very well. The Court will note the personal data on the
charge sheet as well as the matters addreseed during the
providence inquiry.
Lance Corporal Laak, at this point in the trial you have
the right to present matters in extenuation and
mitigation; that is, matters about the offenses or
yourself that you want me to consider in determining an
appropriate sentence.
Included in your right to present such matters are the
rights you have to testify under oath, to make an
unsworn statement, and to remain silent. If you testify
under oath you may be cross-examined by the trial
counsel and questioned by me. If you make an unsworn
statement, you may not be cross-examined by trial
counsel or questioned by me; hoWever, the government
wOuld have the right to rebut any statement of fact
contained in your unsworn statement. You may make an
unsworn statement orally or in writing, peraonally or
through your counsel, or you may use any' cbmbination of
those methods. Finally, should you exercise your right
to remain silent, that cannot and will not be held
against you in any way.
Do you understand your rights?
ACC: Yes, sir.
MJ: Captain 03)(6) , does the government have any sentencing evidence?
TC: Yes, sir. I request a five-minute recess.
Court's in recess.
DOD055210
The court martial recessed at 1306, 19 November 2003.
The court-martial was called to order at 1315, 29 November 2003.
MJI,
The Court will come to order. All parties present prior
to the recess are again present.
Captain (bm
TC:)
Thank you, sir.
Sir, the government calls Lance Corporal.MM
MJ: Proceed.
Lance Corporal Oa) U.S. Marine Corps, was called as a witness by the prosecution, was duly sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the piosecution:
Q. Lance Corporal (13)(6) please state your'name, rank, and unit and spell your last name.
A. Yes, sir. My name is Lance Corporal OA
am with 1st Battalion, 4th Marines.
MJ:,
We need a first name too, Lance Corpora1.0*(6)
W/T: Yes, sir. (b)(6) -
Q. Lance Corporalmm) how long have you been in the
Marine Corps?
A. About two years and two months, sir.
Q. With whom have you been attached for those two years?
A. This is my first fleet unit, sir.
Q, Is that 1/4?
A. Yes, sir.
Q. You've been with them for.the last two years?
A. Well, aside from school and training, sir.
Time out a second. So how long have you been with 1/4?
sir, something close to
WIT: 1/4, about a year and a month,
believe it was 2 to 6 watch, something close to that,
sir.
What does that mean, two to six watch?
Q.
A. 02 in the mornlng do 06 in the morning, sir.
Q. Was it dark outside?
A. It was pretty dark, sir. In faCt, actually, yes, sir,
it was very dark because it was -- just when I came on
it was about 2 in the morning, sir.
Q. What does that mean to be on EPW watch?
A. It means that I am supposed to guard the EPW's, keep
them from escaping, keep anything from happening to
them, basically take care of them while they -- before
they're either sentenced as criminals of war or until
they're released, because we just basically hold them --
held them there to make sure that they weren't criminals
and that --
Okay. How many Marines are on duty as EPW watch at a
time?
A. There's'two junior Marines, sir, and then there was a
sergeant of the guard.
Q. So three total Marines?
A. Yes, sir.
O. Was that the case on this night?
A. Yes, sir.
Q. - How many EPW's were there?
A. I would say in the vicinity of 25, 26, sir.
Q. Now what kind of.an arrangement are we talking about?
Where are all of these EPw's spending their time?
A. we were in -- we had taken over a pistol factory, sir,
and we were -- we kept the EPW's in the pistol range.
Basically juat a big sandlot with walls, I would say
about 10 feet high, sir. Then in the rear part was --
we had a cammie net set up to provide shade for the
EPW's during the day.
Q• What are the walls made out of?
A. Concrete, sort of a -- like a stucco sort of, sir.
Q• And how big would you say this walled-in area is?
A. I'm kind of bad with distances, sir, but I would say --
44
DOD JUNE 13 4
Relative to this courtroom, can you --
Q.
It was'longer this way, sir,- but it was about half as
A.
wide as this court room, sir.
The witness has -- when the witness says longer this
Q•
way, he's pointing toward the door leading into the
courtroom which I would estimate to be approximately
40 feet. He's saying that is longer than that. And
then width wise, he says half the width of this court
room which would probably be about 20 feet -- 15 to
20 feet?
MJ: And how much longer?
WIT: About another half a length, sir.
MJ: So about 60 by 20?
WIT: That could probably be right, sir.
MJ: Any objection to that summary of his description?
No, sir.
MJ: Proceed.
(b)(6)
Q. All right. Lance Corporal . . just so I've got
this right, we've got 10-foot walls and approximately
60-foot by 20-foot area?
A. Yes, sir.
Q.
)And the deck is -- what covers the deck?
A.
Sand, sir.
Q.
Is there anything -- you said there were 20 to 25 EPW's
in this area?
A.
Something like that yes, sir.
O.
Is there anything dividing the EPW's up?
A.
Yes, sir, we had rolls of concertina wire set up in
certain areas where we had to keep some of the EPW's
farther away from the rest of the EPW's because they had
not been interrogated and -- I don't know all of the
reasons, sir, but my assumption would be to keep them --
definitely make sure to keep them from talking to each
other, to try to get a story.
Q.
So is each EPW in his own little spot?
45
DOD JUNE 13 5
concerned about this witness' reaction, sir, we
TC: We're not
-it would build or explain the circumstances
are just -
for Lance Corporal Laak walking in when there are two
sentinels or guards talking to him and him going through
despite that.
MJ: I am going to sustain the objection. You can't answer the
last question he asked.
WIT: Good to go, sir.
Q. Did -- okay. So Lance Corporal Laak came in and what
did he do at that point?
A. He started walking towards the back, sir, and then we
heard him -- well, we heard a striking noise and when we
got up to look at it we saw him hitting the EPW's, sir.
Q. How was he hitting the EPW's?
A. He was -- in regards to what, sir?
Q. Well, what was he hitting them with?
A. Just his fist, sir.
Q. A closed fist?
A. Yes, sir.
Q. And where was he hitting the EPW?
0-On the torso, sir.
Q. On the front of the torso?
A. Yes, sir.
Q. What was -- was the EPW -- where was he?
A. He was in the farthest back from the door. There's only
one door that led into the holding area, sir, and it was
the farthest back that you can get from the door, sir.
Q. Was he sitting down?
A. The EPW, sir?
Q. Yes.
A. He was laying down, sir.
Q. Laying down?
A. Yes, sir. I believe he was sleeping at the time, sir.
Q. How did the EPW react to this?
A. He -- well, obviously, he tried to cover himself, sir.
48
Was that difficult with his wrists bound?
Q. Yee -- well, I'm-assuming so, sir. I wouldn't really
-
A.
know.
Q.
Okay Whm,' happened at this point?
and myself were trying to tell Leak to get
A. PFC 00)
out of there before anything happened because we didn't
want any trouble and he --
So what did you say?
Q• We said, You need to leave. You need to get out of
A.
here. Stop doing that and get out of here.
Q• How did he respond?
A. If I recall correctly, he said, These mother fuckerS are
making us stay here till September, sir.
Q- Did he stop hitting the EPW's at that point, after you told him to stop?
A. He stopped hitting the EPW's, sir, except for when he
was walking past, walking towards the door, he kicked
another one, sir, and when he went to get his blouse
again, he was going to kick another person laying on the
ground but it wasn't an EPW, sir, it was Sergeant
. who was --
Oix6)
Q. Did he kick Sergeant")
A. No, sir, we -- he stopped before than,. sir.
Q. so before Sergeantao) , did he kick an EPW on his way
out?
A. Yes, sir.
Q. How did -- where did he kick that EPW?
A. I believe it was in the side, sir. I am not directly
sure because I kind of missed that one, sir. It was
more attendant on getting him out of there.
Q. Did --were you able to get him out of there?
A. Yes, sir. Well he left, sir.
Q. what did you do after that. once he left? .
A. we woke up Sergeant(bm sir, because he was the
sergeant of the guara that night. we wnkR himlup and
told him what happened and Sergeant,0o) told us to
write down our statements on a piece ot paper and I am
not exactly clear on what happened atter that. I think
there was -- they went and searched for Lance Corporal
Laak, and then talked to some -- probably the company
first—sergeant. ,
All right. While Lance Corporal Laak was in there, did
Q.
he ever explain to you why he wanted to hit the EPW's or offer any reason?
A. Like I said, sir, he, you know, he was upset about
having to stay. We had just gotten word that day that we were probably going to get extended out there, sir, and so I'm assuming it was probably just anger.
Q. Did he mention anything about stress?
A. Yes, sir. He said -- he said, Now this is the way to
relieve stress or something like that. This is the way
I take care of stress. '
Q. Did you take'that to mean by hitting EPice?
A. Yes, sir, because he said it while he was -- while he was striking the EPW's.
TC: Thank you. That's all I have at this time.
KY: Cross-examination?
DC: Yes, sir.
CROSS-EXAMINATION
Questions by the defense:
Q. Lance Corporal "6) you said that the holdingfacility was approximately 60 feet long. Is that
correct?
A. Something like that, air.
Q. okay. And you and the PFC were you-alI standing by the
door, the entrance to the holding facility?
A. Yes, sir.
Q.- You told Captain (13)(6) that Lance Corporal Leak walkedto the back, the tartnest back EPW and actually struck
him. Correct?
A. Yes, sir.
Q• Now it was 021S at this time. Is that right?
A. About that time, sir.
J
Q. You said it was really dark. Correct?
it was really dark and there was a cammie net-1n the.way
too, sir.
Q. Okay. So how -- 'I mean, I'm trying to get a little
picture. How did you see from 60 feet away in the dark
exactly what was going on?
A. Yes, sir. At first, we didn't see what was going on.
We heard what was going on. We heard the striking. It
was kind of hard to miss that, sir.
Q. But you didn't see the -- where the EPW was or how he
was standing in relation or anything like that?
A. Well, the EPW was wearing kind of a whitish gown, sort
of what they wear out there, sir. So he kind of stood
out. His silhouette kind of stood out in the dark part,
because we still had moonlight and stars. We could see
a little bit; sir.
Q. Okay. So you could see a little bit?
A. We could see a little bit, but at first we didn't see
him striking the EPW until we walked back there, sir.
0. Now, did you say anything to him as he was walking in?
I mean, were you, like, Hey. Stop. You can't come in?
Or did he just say, I've got to take care of something?
How did he walk in?
A. He just sort of walked in very quietly, unannounced and
he just walked to the back.
Q. Now you said -- you said -- just one second --
A. Yes, sir.
Q. You said that after he struck these EPW's he left. You
contacted the sergeant. Right?
A. Yes, sir.
Q. Now is he sleeping nearby?
A. Yes, he was Sleeping on the ground. The door would be
off to the left where the guards sat. It was on a
little -- it was like a chest, sir, like a -- I don't
know how to describe it exactly. It was just kind of a
chest that we sat on and then we'd walk around and we'd
sit on again. While he was sleeping off to the right
where there was no EPW's, sir.
51
Q. Okay. Now, if you remember, what was exactly -- or approximately the-time-that-it-took-for-you to hear what. you thought was him striking EPW's to the time that ne actually left the facility and you woke up the sergeant. was this one minute? Two minutes? Thirty seconds?
A. I'm not really sure, sir. / would -- two minutes maybe
sir. I can't be sure because at the time it happened,
it was just a real big shock.
Q. So why didn't you -- I mean, if this is going on for two
minutes, first of all, why didn't you do anything to --
go ahead.
A. It wasn't that we didn't try to stop him, sir, it was
just that at first it was kind of -- it was a really big
shock like I said, sir. We had -- we kind of -- you
know, we just woke up, sir, a little groggy and we
weren't exactly sure on how to act at first and so then
we jumped up after we realized, Oh, you know, he
shouldn't be doing this. we said, Hey, you need to get
out of here right now.
Q. And thatts when --
A. So it probably wasn't even two minutes now that I think
about it, sir.
Q. Now, you said you could hear the sounds of what you thought was him striking the EPW from 60 feet away. Correct?
Q. Yes, sir.
Q. How loud was this? You said you could hear it, was
it
A. It was pretty loud, sir.
Q. So even with, like, the outside noises -- I'm assuming there wasn't a roof -- you could sill make out the sounds of this?
A. Yes, sir. There wasn't really a lot oI noises. There's not --
Q. So this wae the only distinct sound that was out there.
Right?
A. Yes, sir.
Q. And the entire time this was going Sergeant MX6) was asleep right next to you?
A. Yes, sir.
52
142
DOD JUNE
DOD055221
And this never woke him up?
Q.
A. He's a heavy sleeper, He told .1113 that_ too, sir.
Q. And again, just so I'm clear, your perspective, visually anyway, of what was going on was from this 60 feet away
through the cargo net or the camas net, is that what
you said it was?
A. Yes, sir. The cammie net wasn't in the way of the
direct sight, it was just overhead.
O. Was it casting any moon shadows in kind of a weird way through cammie net?
A. Not really, sir, the moon was kind of -- I can't really recall, sir. I wouldn't --
DC: Okay. I hdve nothing further, sir.
Ma; Any redirect?
TC: No, sir.
EXAMINATION HY THE COURT
Questions by the miIitary judge:
Q. Did I understand you to say, Lance Corporal (WM that both you and the other EPW watch were also sleeping at the time?
A. Negative, sir. We were not sleeping.
Q. I thought you said we woke up a little groggy.
A. • No, we had just .51ot,op_watch about that time, sir, about the time the iricident happened, so we were still -- I don't know, we were a little tired and still kind of --not waking up but waking up, air.
Q. So you weren't sleeping on watch?
A. No, sir.
4. But Sergeant,was asleep?
A. Yes, air. He always caught a little sleep. He was the only eergeant. He told us, you know, Wake us up if anything happens, sir.
Q. Was that SOP for the sergeant to go to sleep?
A. Yes, sir. He was the only sergeant of the guard.
143
DOD JUNE
How many EPW's did you actually see Lance Corporal Laak
Q.
strike with his fists?
A. I didn't really get a couut, sir.
Q. Well, you described the one that was on the ground trying to cover himself, and you talked about seeing Lance Corporal Laak kick one on the way out.
A. Yes, sir.
Sitting here today, do you recall seeing him strike
Q.
another EPW or any other EPW's?
A. Not --not many, sir. I can recall maybe two or three, sir.
MJ: Any questions from counsel in light of mine?
testifyihg. You may step down and resume your normal
TC: No, sir.
DC: No, sir.
Mj: Okay. Very well. Lance Corporal _ you're done
duties. Thanks for coming in today. WIT: Yes, sir. The witness withdrew from the courtroom. MJ: Does the government have any additional evidence? TC: Yes, sir. May I approach? MJ: Yes, you may. TC: The government offers Prosecution Exhibit 1 marked for
identification and ask that the words for identification
be deleted. ,
MJ: Any objection?
DC: Just a moment, sir.
The accused and his counse1 conferred.
-
DC: Sir, the (b)(6) that's in there, the 00D
is older
than two years. Service regulations dictates that it's
not admissible in a sentencing proceeding.
DOD JUNE 14 5
Any response, Captain (b)(6)
MJ:,
„
TC : Yes, sir. ;The "6) date is actually becember 7t" of 2601, •
which is not two years old. It would be about a year
and 11 months old, sir.
DC: Sir, that's the date of the entry into the UPB, but if you look at the bottom, it p+.nt- that these punishmerl-, were awarded at company 00(6) dattd or 011107. His 0:1)(6) actually took place November 7", however due to tne administrative nature of the Marine Corps, it takes a while for these things to reach the UPB.
MJ: Does that change your response, Captain Mills?
TC: Well, sir, I still believe that when we're talking about the last two-years that this falls, I suppose at worst for the defense counsel, right on the -- or at best right on the two-year mark there, and it's an administrative entry, but that's when the oop becomes official and that's what we should go by administratively, sir.
MJ: I'll sustain the objection. So theM6) entry on the
Page 12 I am not considering that. Any other
objections, Lieutenant Dewberry?
DC: No, sir.
MJ : Very well. Except as noted, Prosecution Exhibit 1 for
identification is admitted into evidence. The words for
identification are deleted.
Any additional government evidence on sentencing?
TC No, sir.
MJ : Lieutenant Dewberry, does the defense"have any evidence to
present on sentencing?
DC: Yes, sir.
I would like to call captain00(6) please, sir.
MJ Proceed.
56
Captain (b)(6) U.S. Marine Corps, was called as a wttness
by the defense, was duly sworn, and testified as follows: _
-
DIRECT EXAMINATION
Questions by the prosecution:
04(6))please state your name, rank, and unit
Q•
and spell your last namp.
A. My name is Captain '00(6))and am with
lst Battalion, 4th harines.
Proceed, counsel.
DC: Yes, sir.
Questions by the defense:
Q. Captain •tHM what was your billet with 1/4 back in
January of 2003?
A. Commanding Officer, Headquarters and Service Company.
Q. Okay. And was Lance Corporal Leak a member of your
company at the time?
A. He was.
Q. Now, did 1/4 deploy in support of Operation Iraqi
Freedom?
A. We did.
Q. What time was that you-all deployed, sir.
A. 17 January.
Q. Did you go straight to Iraq or where did you go first?
A. Negative, we deployed by ship on the U.S.S. BOXER and several other ships on an ARG. We arrived in Kuwait On 24 Februaryand we stayed at LSA-1 outside of Kuwait City for roughly about a month before crossing the LD and going into Iraq.
Q. Now, do you recall -- you said you were there for about
a month from 24 February to --
A. -- 19 March is when we moved to disbursal area and crossed the LD I believe on the 20th or 21st.-
And how exactly -- when you say cross the LD, what was your movement? Were you-all foot mobile? Did you guys mount up on trucks?
57
A.
Q.
.A.
Q•
A.
Q.
A.
Q.
A.
We were a mechanized battalion and then with our truck
assets, we brought or,vehicle...assets-.along. with. us and
then we had 7-tons that had been shipped over, but
primarily we were a mechanized AMTRAK battalion.
Were you guys on the go all the time, sir, or did
youall hold up at the end of the day? Dig in? How did
-
that work out for you-all?
Once we moved -- it was a little slow in the beginning.
We crossed the LD and moved up outside to the town of An
Nasiriyah, and then once we hit An Nasiriyah, it was
pretty much on the go from there, I mean, I think they
titled the book 21 Days to Baghdad, so it was pretty
solid moving. We did a lot of day movement, mostly dug
in at night. There were some night movements, but it
was I'd say 21 fairly arduous days.
So you weren't, you know, towing behind chow services or
nice cozy tents where everybody could hold up?
Negative. Negative. It was, I mean, you stop -- when
you stop for the night or stop for the day or whatever,
you dug a hole for the artillery threat and, I mean, we
were taking fire pretty much from Nasiriyah from on all
of the way until -- well, all of the way until we left
and went back down to Kuwait. I mean, obviously it
ebbed and flowed, but in the initial parts of the war we
were taking fire daily.
You said you started moving rapidly after An Nasiriyah.
Is that correct, sir?
From Nasiriyah we went up to Route 7 to Qa11 at Saqr.
We fought basically through Oall at Saqr to Ash Shatrah
then up to Al Hayy into Al Kut. That was Route 7 all of
the way up. And then we back tracked and went over on
Route 17 and then took Route 1 up into Baghdad and spent
roughly -- we got to Baghdad on 9 April and we stayed
from 9 April to 21 April in Saddam City in Baghdad.
So when you hit each of these cities were -- was there
sporadic gunfire or was it sustained at any point?
From -- from -- we hit Nasiriyah on 24 March. From
24 March all of the way up till 20 April in Baghdad it
was daily, sustained fire, fire fights, and even when
we -- even when we had taken Baghdad there was still
considerable amounts of rifle fire into the compound at
night.
58
DOD JUNE 14 8
Q. Did 1/4 sustain any casualties --
A.
Q• -- as you moved up Route 7?
A. We did. We had 1 KIA and 4 WIA.
Q.
)Now, you say eventually after you moved up through
Route 7 through this sustained gunfire you ended up at
Saddam City?
A.
We did.
O.
And how long were you at Saddam City, sir?
A.
Eleven days.
Q.
And during this time were there still -- was there
incoming fire?
A.
Most definitely.
Q.
And when you say you were at Saddam City for 11 days, at
this point had the facilities gotten any better or was
it still pretty Spartan?
A.
Negative. We didn't -- things didn't start getting
better until we got to Al Hillah which is where we ended
up staying for the remainder --the remaining four
months up till the last of our battalion got in on
24 September but we were in Al Hillah for Phase 4B
operations for over four months -- actually, closer to
five months.
Q.
So how -- you left Saddam City, did you-all travel
directly to Al Hillah?
A.
Directly to Al Hillah, and we were supposed to stay _
there to do the phase 48 operations, which we were told*
would be about June, and then for obvious reasons we
were extended and we ended up staying in Al Hillah all
of the way until the middle of September.
Q • Do you recall approximately what day you-all arrived at
Al Hillah?
A. I know exactly. We left the Monday after Easter Sunday
so that would have been 21 April that we -- it was only
a 60-mile movement. Hillah was only 60 miles away from
Baghdad so we made the movement at night -- actually,
Easter sunday night we moved down there and got there
believe Monday, 21 April, if memory serves me correctly.
59
DOD JUNE 14 9
DOD055228
-
Q. And at Al Hillah were youall -- was this a pretty
secure area?. I mean, did everybody ,kind of jus,t-rAlax
at this point, or was there still --
A. Negative, nobody ever let their hair down over there. I mean, it was secure in the sense that we were inside a walled compound and that the nature of AI Hillah was a little bit more permissive but there was still gunfire nightly, we still ran what we considered to be combat patrols. There was still -- there were fire fights. Our Marines were in fire fights literally up until the last week that we were there. So there's nothing that I would say permissive in Iraq at this point. All you have to do is watch the news and you1.11 see that.
Q. Yes, sir.
Now, you said that you entered Phase 4 -- what you
thought was going to be Phase 4, but for some reason it
didn't work out and you-all stayed until 24 September.
Is that correct?
A. we did.
Q. When did 1/4 find out that they were not going to be coming home?
A. The night of 3 June --or the day of 3 June I should
say.
Q. How did the members of that unit find out?
A. It was passed initially by the battalion commander, and then the battalion commander to the company commanders, down to the first sergeants. Standard formations, Hey, we're not -- we had originally been given a timeframe that we were going to be home, between the 14th and 18th of Cune. That was our known flight window. It had been printed in the Virginia Times Dispatch by our embedded reporter who had gone back home, and passed to the KVN's that you can expect your Marines home between 14 and 18 June.
Q. Now, as you moved throughout all these cities and
finally arrived in Al Hillah, how much interaction did
you have with Lance Corporal Leak? Did you know who he
was?
A. Oh, very well, because I'm the H&S Company Commander, but Lance Corporal Laak was a part of Headquarters Platoon which I oversaw personally.
60
DOD JUNE 15 0
kbr
As an 0311 in H&S he was one of my machine gunners and
one of my main security-personnel, so- pretty zmudn..-daily—
interaction.
Yes, sir. How would you describe his conduct through
these combat operations through each individual city?
A. He was a solid.performer.
Q. Now, the night of June 3rd, when were you notified of a potential incident dealing with an EPW?
A. The first thing in the morning on the following day.
Q. And had you been bringing these EPW's along with you through each phase or --
A. Negative. We took EPW's in all phases of the war, but at this particular this time, we had been -- at that point, we had'been in Al Hillah for six weeks, and our facility was basically kind of a half-way point. If anybody in 4th LAR, 1/4, anybody in our region took an EPW they knew that they could take it to the 1/4 compound in Al Hillah and we would have a HET team [sic] there on-site that could interrogate them.
we tried to get them -- the EPW's out in a space of a
week or so and bring them down to a major holding
facility further down south, but -- so they were there
to basically get interrogated. It was -- I believe it
was eluded to earlier by Lance Corporal 0:0)
sometimes they were criminals. We'd put them pack out
into the Iraqi court system, but if we felt they were a
threat to Coalition Forces, then they'd move south to a
more formal holding facility. Ours was pretty much just
a half-way point.
Yes, sir.
What did you do when you learned of this incident? Did
you investigate it?
A. I did. I'm sorry.
Q.)Go ahead, sir.
A.)I notified my battalion commander of what happened and began working -- figuring out what he wanted, his commander's intent, on how to handle the situation.
Did you, at any point, go down and actually put your
Q.
feet on the ground and see if anybody was actually --
had been injured in this incident?
DOD JUNE 151
DOD055230
A. I did.
Q. Did you take any medical personnel with you?
A. I did.
Q. Who did you take, sir?
A. I took the senior enlisted Corpsman with me.
Q. What did you guys find when you interview these EPW's?
A. We first did a full of inspection of everybody who had claimed to have been hit by Lance Corporal Laak. There were no marks, no bruises. If -- my word to the Corpsman and what we both agreed on was superficial at best. We could find no visible evidence that they were -- that they were assaulted.
Q. Did you-all have -- you said you interviewed them and communicated with them. How exactly did that come about, sir?
A. We had several interpreters. We had Marines who were fluent in Arabic as well as locals who we had hired as translators.
O. And were these translators -- did they ever, you know, was there conversations between you, the translator, and these EPW's?
A. There was.
Q. Did you learn anything through these conversations? Did
anybody say, Yes, it happened; No, it didn't happen?
TC: Objection; hearsay,,,..eL
MJ: Response? .
DC: Sir, I'd ask that the rules be relaxed a little bit here
since these EPW's are actually probably still in Iraq
and are unable to testify here today:
Any response, Captain RIM
sir, I am not going to argue against the Court relaxing
the rules of evidence if that's the Court's ruling, but
my objection to the hearsay stands.
TC:)
MJ: Well, let me take a few minute off the record. We'll go
in a recess because I want to look at this issue in a
little more detail. The Court's in recess
62
DOD JUNE 152
DOD055231
The court-martial recessed at 1352, 19 November 2003.
••-
. .
ly November 200.
The court-martial was' called to order at 1357,
The Court will come to order. All parties present when
MJ:
the Court recessed are once again present.
During the recess I did review Rule for Court-Martial
1001(c)(3) and even though the rule is normally cited in
the request for a relaxation made in the context or
writings, the rule is clearly not limited to that. So I
will allow the rules of evidence to be relaxed for the
purpose of the testimony that is being elicited at this
point; however, the rules will remain relaxed for the
government rebuttal, if any. And also during the recess
I did review the admissible portion of Prosecution
EXhibit I.
You may proceed.
DC: Yes, sir.
Questions by the defense:
Q, Captain(WP you had -- you and the interpreter were
speaking with the EPW's to try to figure out what
exactly had occurred. Is that correct?
A. I had already -- I hid already had knowledge of what had happened because Lance Corporal -- I had spoken with Lance Corporal Laak and he admitted that he had assaulted some of them. So I was speaking to the EPW's and let-.them know that they had not deserved to be treated in that manner and that Lance Corporal Laak was going to be punished for it and that I guaranteed that their safety -- that they would be safe while they were in our care, was basically what I was trying to get across to all of them, and apologized on behalf of the Marines and the United States.
Q. Did anybody ever mention that they had been harmed in any way?
A. No.
Q. Did anybody say, Yes, he came in and hit us all?
Anything like that, sir?
A. No, they didn't -- or, excuse me. They acknowledged
that the incident happened, but no one ever -- not in so
many words. No one ever came -- no one ever pointed at
63
DOD JUNE 153
Q.
A.
Q.
A.
Q.
A.
Q•
A.
Q.
A.
him and said, He hit me. He hit me. They all just
pretty much .nodded their head accepting the. apology.
When you say the apology, was this coming from yourself,
sir?
It came from Lance Corporal Leak. First I had him -- he
was in there with me. I had him come in and apologize
to everybody for his unprofessional behavior and then I
apologized and basically gave them -- guaranteed their
safety and that he would be punished for what he did.
Did anybody respond to the fact that he was potentially
going to be punished for this incident?
Yes, the oldest -- the oldest victim, if you want to say
that, the oldest one that he had assaulted, he said that
he had made -- Lance Corporal Leak, by apologizing, had
made his peace with him and the others and that when --
I had already stated that Lance Corporal Leak was going
to be punished, he asked that he not be punished for
what he did because he had made his peace.
Now, sir, understanding, you know, your interactions
with Lance Corporal Leak thropghout combat operations
and even State-side prior to your departure and once
you've returned, taking that into account with the fact
that this incident has occurred, do you have any opinion
as to his rehabilitative pdtential?
I think Lance Corporal Laak has utility in the Marine
Corps. I think he can be -- we need -- I mean, we need
every Marine we can right now. I think he could go out
and do a good job. I think he's learning a lesson here
right not today.
Why do you think it's important that we have Marines
like him right now? What do you mean by that, sir?
Well, Lance Corporal Leak, even though this was a pretty
reprehensible incident, for the most part, I mean, he
did what we told him to do during combat operations and
did his job'well. I mean, I put him on a gun, have him
stand security. I mean, other than -- in the time he's
been under my command, which has been 3.13 months now,
he's been -- I haven't had to discipline him and he's
been a good kid. He does what he's told to do. I can
count on him for that.
If you had to go into combat again, sir, would-you want
Lance Corporal Laak to be a member of your company?
I would.
64
D OD JUNE 1 5 4
DC: I have nothing further, sir.
MJ: Cross-examination?
TC : Thank you, sir.
CROSS-WW1:NATION
Questions by the prosecution:
Q• Captain MM are there plans for 1/4 to deploy again?
A. It is.
Q. when do you think that is going to happen?
A. Probably four months from now.
Q• Do you believe that 1/4 again will be in a position of maintaining EPW's?
A. Almost certainly.
Q. You mentioned that the Iraqi EPW's seemed accepting of the apology that Lance Corporal Laak offered them.
Q. They seemed to.
Q• These EPW's that we're talking about, they had boundwrists?
A. They did.
Q. Some of them had bound feet?
A. Very -- only the most hostile had bound feet. For the most part they just were blindfolded and bound wrists.
Q. So blindfolded and bound wrists. Right?
A. Yes.
Q. And they were all under 1/4's authority. Right?
A. They were.
Q. And they weren't really going anywhere. Correct?
A. No.
Q-. And they were pretty much completely and totally subject
to the power of the Marine Corps at that point.
A. They were.
So they didn't have a lot of choice other than pretty
Q.
much acknowledging and nodding their hzads when it came
to offering apologies?
I would say so, yes. Some were more vocal than others.
A.
Okay. Captain MP do you agree that our care for
Q•
the EPW's is important?
A. Oh, yes.
Would you agree that it is important under the law of
Q•
war?
A. Most definitely.
Q. Probably the rules of engagement and all of that stuff. Right?
A. Certainly. .
Q• Would you agree that the way we treat our EPW's sends a message to other nations as to how they should treat their EPW's7
A. Most definitely.
Q. Do you think that Iraq possibly could be aware of the
way we were treating their EPW's in a time of war? Do
you agree with that?
A. Yes, I do.
Q. Do you think that it could affect the way then that they
treat our EPW's if it got back to them that we were
mistreating their EPW's?
A. Yes.
• -. --
Q• Do you agree that that's a danger to our Marines?
A. Yes.
Q. Possibly 1/4 Marines. Right?
A. Yes.
Q. Do you think that letting off some steam is a good
reason for assaulting EPW's?
A. No.
Q• Do you think there's any kind of justifiable reason for
just walking in and hitting EPW's in the torSo?
A. No.
How about blindfolded EPW's?
Q.
A. No.
¦is
4- How about EPW's just laying in the sand on the grOund?
A. He had no excuse.
4• No justification?
A. No justification. No excuse.
Q• I don't think Lieutenant Dewberry asked you this, but I am going to give you an opportunity to say it. Was morale kind of low at this point?
A. In the cellar.
Q. Why was it?
A. We had -- I mean, it had been announced in the Virginia Times Dispatch, through the KVN e-mails, that we were going to be home sometime between 14 and 18 June. I mean, it was literally the 11' hour. You've got to remember, it's about a ten-day turnaround period down in Kuwait, so on 3 June, we were looking at breaking down the camp at around 5 June. So probably within 48 hours -- 48 hours of knowing you're going to Kuwait and doing that final out-processing and going home, the word came down that we were going to get extended.
Q. All right. And did that appear to really effect all of the Marines who thought they were going home?
A. Pretty much everybody was upset.
Q. Lance Corporal Laak was one of those Marine? •
A. I would say Lance Corporal Laak was definitely one of
those Marines.
Q. Did any other Marines in the battalion start roughing up EPW's?
A. No, Lance Corporal Laak was the only one.
Q. You said that the oldest -- I'm sorry. The oldest EPW
mentioned he had accepted Lance Corporal Laak's apology?
A. He did.
Q. How old was he?
A. He was old. I can't gauge it exactly, but I would say
in his 60's.
Q. And why do.you say that?
A. Grey hair, grey beard. He just looked like anlold man.
67
Q. So Lance Corporal Laak went into an EPW camp and
assaulted a. blindfolded,. 6U-year-old Man? -
A. Yes
TC: That's all I've got. Thanks a lot.
MJ: Any redirect?
DC: Just a few, sir.
REDIRECT EXAMINATION
Questions by the defense:
Q. Captain (b)(8) you just told Captain "0 that
there's a concern with the way we treat EPW's because it
could be translated onto the way that say the Iraqis
would have treated our EPW's. Is that correct?
A. Yes
Q- Now, do you think that the incident on June 3rd translat4d in any way on how EPW's or potential EPW's that the Iraqis may have captured --
TC: Objection; speculation.
DC: Sir, asking for the captain's opinion --
Well, before you say anything, finish the question and
start back at the beginning.
DC: . Do you think that the actions or activities that took_ ,
place on 3 June 2003, with Lance Corporal Laak
translated into any type of heightened abuse or
punishment that would have been inflicted on American
PoWas?
MJ: Is he aware of any incident of that ha.ppening?
DC: I am asking if he thinks it could have happened. Captain
asked does he think it is important for Americans
(WM
to --
MJ: I remember what he asked and what the answer was.
Do you have an objection to that question?
DOD JUNE 158
¦41.¦
TC: yes, sir, I object as to speculation . That is completely
out.cd—hia-first-hand knowledge. ,
MJ: / am going to sustain that objection . You are free to try to rephrase that.
Questions by the defense:
Captain Mq/ you told Captain (1*(6) that you had --
you believed that the POW that Lance Corporal Leak
was -- or amolocized to Lance Corporal Laak [sic] was
around (bmo
A. Somewhere in a neignoornood.
Q• So he was just an older gentlemen, you can't be exactly
sure.
A. Correct.
Q• Now taken into account that, you know, he walked in and
hit this older gentlemen, does this change your idea at
all onto the rehabilitative potential that we talked
about earlier that Lance Corporal Leak possesses?
A. This was an -- this is the only -- in the la months that I've had Leak, this is only time I've ever had any problem with it. The act, I have to agree with the prosecutor, is pretty despicable, but I also understand his frustration. I think he can still be rehabilitated.
DC: Thank you, sir. Nothing further.
MJ: Any recrose?
TC: No, sir.
MJ: All right. You're done. You may step down. I just want to give you one piece of advice for possible futurereference. .When we're in garrison, when a witness comes to testify in court, the uniform is ihe summer service Charlie uniform.
WIT: Yes, sir.
MJ: So with that light admonition, you may step down and resume your normal duties. Thanks for coming in today.
WIT: Yes, sir.
MJ: Does the defense have any additional evidence?
DOD JUNE
159
DOD055238
DC: Yes, sir, at this time Lance Corporal Laak would like to
make_an unsworn statement to the Court.
MJ: Proceed, please.
UNSWORN STATEMENT
ACC: I was hnrn in (1,X6) and moved to the United States whpri I
was mq ears old. First, I lived inmm)
and where I lived most of my life. I joined the
military because it was a tradition in my family. My
grandfather was in the Army and served in world War II;
my father served 20 years in the Air Force; and my
sister is commissioned in the Army in Germany. I chose
the Marines because they are the best and I wanted to be
one of the best.
I want to stay in and go on the next deployment with
1st Battalion, 4th Marines.
My plans in the future are to be a reserve --
MJ: Lance Corporal Laak, can you just slow down a /ittle bit.
ACC: Yes, sir.
MJ: Thank you.
ACC! my plans in the future are to be in the reserves and be a
firefighter.
I know what I did was wrong and I didn't know what was
going through my head at the time. There were a lot of
stressful things going on out there. I know I am guilty
for what I have done and I am ready to accept the
consequences so justice can be served.
Questions by the defense:
Q. dqUM
Lance Corporal Laak, you heard Captain •,,, talk
about how 1/4 was moving up Route 7 through Iraq.
A. Yes, sir.
Q. What were the type of conditions that you, as_an 0311, were basically forced to live in as you were traveling up Route 7?
A. We slept for like two or three hours as day, sir. At
one point in time we were given one MRE a day, sir.
DOD JUNE
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DOD055239
Q• Now, Captain(WP said that 1/4 actually encountered
into --or had actually engaged in some combat On_itgl,
way up Route 7. bid you yourself or the vehicle that
you were in ever engage your weapon onto an enemy or
were you ever actually taking incoming fire?
A. Yes, dir.
Q. About how many times would you say?
A. Throughout the whole war, sir?
A. Yes, as you moved up Route 7.
A. About five times, sir.
Q.)Five times.
Now, you transitioned from Saddam City to Al Hillah. Is
that correct?
A. Yes, sir.
now
When you guys got to Al Hillah, did Captain • cut you-all loose and say, Hey, you've got a week of R&R?
A. No, sir-
Q. Did you ever have a day off between the time you left Saddam City to the time the incident occurred?
A. Never, sir.
Q. What were you doing for the three weeks that you were inAl Hillah until the incident took place?
A. We did security patrols, security runs, EPW watch, and
just working parties, sir.
,
•
Okay. On the day of June 3rd, or actually June 2nd, did 1/4 find out that they were actually going to be staying
in Iraq longer than what had been previously told?
A. Yes, sir.
Q. How long were you-all told you were going to be therefor?
A. For about three months, sir, three months longer.
Q. Did this have an effect on you?
A. Yes, sir.
Q. Why don't you tell the judge what kind of effect it had
on you.
A. I was mad, sir, because everybody at my home knew I was coming home. I told them I was going to come home on
DOD JUNE 161
DOD055240
this date, but that never happened, sir, and I was
upset.
4- Were you tired at all?
A. Everyday, sir.
Q. Were you hungry?
A. Yes, sir.
Q. The 3rd of June -- you told the military judge earlier
during providence that you went in and you hit a couple
of the Iraqi EPW's, Is that correct?
A. Yes, sir.
Q. You still want to be in the Marine Corps, don't you?
A. Yes, sir.
Q. Why don't you tell the military judge why something like
this would never happen again.
A. Because I understand now that it is a serious thing,
sir, and I want to stay in the military. I want to go
on another deployment, sir, I love being a Marine.
DC: Nothing further, sir.
MJ: Thank you.
Captain Mills, any evidence in rebuttal?
TC: No, sir.
MJ: The Court's prepared to -- well, let's take up the issue
of multiplicity for sentencing. None of the offenses
are multiplicious for findings purposes. They are not
facially duplicative. No offense is a lesser-included
offense of the another, but we do have an issue that has
been raised by the defense with respect to multiplicity
for sentencing or otherwise known as unreasonable
multiplication of charges perhaps.
Captain Mills, what are your thoughts on the defense's
motion to treat Charge I as multiplicious with Charge II
for sentencing purposes?
TC: Sir, I understand the concept of unreasonable
multiplication of charges. I will say this regarding
Charge I and Charge II, Charge I is a violation of an
order which, though he violated the order by assaulting
72
DOD JUNE 162
DOD055241
MJ:
DC:
DOD JUNE
‘,0
the EPW's, or maltreating the EPW's, violation of an.
order is-a completely.different offense. Everybody is
not under an order not to assault other people.
In this case, Lance Corporal Leak was under a specific
order not to mistreat these EPW's, which he did. Just
in doing that, regardless of how he mistreated them, he
was violating that order which makes it a separate
offense for both the findings and for sentencing.
With regard to cruelty and maltreatment versus assault,
those at least rely on the same conduct, but again, one
is charging Lance Corporal Laak taking advantage of his
position of authority over these EPW's, that's where the
cruelty and maltreatment comes, again, somebody subject
to his orders. So that is focussing on a very different
element than'the assault which, again, could happen to
anybody.
Well there's no issue with respect to Charge II and Charge III. I suspect that issue hasn't been raised because-the very fact that you just pointed out that it is a separate offense to commit assault and battery, and then when you do that upon people who are subject to your orders. I buy that and that issue hasn't beenraised. But what is your response, Lieutenant Dewberry, to government's argument with respect to the first two charges?
Well, sir, discussion in R.C.M. 307(c)(4) states that what is substantially one transaction should not be the basis for an unreasonable multiplication of charges. Here,„.—.. the only way that these EPW's were under his care'wa'S -due to the fact that they were ordered to take these prisoners captive and hold them and safeguard them. Thesame order that was given by Captain 000) So the orders are interrelated to the fact trait tney were actually under his command. You can't dissect the two and punish him for what was essentially one transaction based on the two charges since the two charges, while not strictly related based on the elements listed in the MCM, without this order, would not be related at all,
sir.
163
DOD055242
MJ: That's not the argument I thought you were going to make.
Captain(WM) points out that -- what I thought him
heard him say -- was that even without the order, the
accused would have a duty not to commit the
maltreatment. Is that correct?
TC: Yes, sir.
MJ: Now, does that not get us into what we would otherwise
know to be, well, at least what I still call, the
underlying offense doctrine although it may not
technically apply because the discussion of that
doctrine under Article.92 presupposes that the
underlying offense that the accused committed,.and also
in violation of the order, has a lower maximum
punishment, but it's analytically the same situation
where the accused is being ordered not to commit an
offense and then he commits the offense thereby by
violating the order. But it just happens to turn out in
this case that the offense that he committed in
violation of the order has a greater maximum punishment
than the violation of the order itself.
DC: Yee, sir.
MJ: Are you tracking me on that?
DC: Yes, sir.
MJ: So the govenment's argument, I think to at least some
extent, makes the case for multiplicity for sentencing.
I'm going to grant the motion and treat Charge I and its
specification as multiplicious with Charge and its
specification for sentencing purposes only.
I continue to find that they are all 'separate offenses
for findings purposes. There is no multiplicity for
findings, but I will, again, treat the Article 92
offense as multiplicious with the Article 93 offense.
That having been said, Captain 0)(6) argument on
sentencing?
TC: Thank you, sir.
DOD JUNE 164
DOD055243
MJ: You may, I suppose, still give me the argument you were
prepared to make even if it addresses the. Article 92
offense.
TC: Yes, sir.
Sir, this case, though the charge sheet may indicate
otherwise, is not about Iraqi POW's or EPW's, it's not
what it's about. We're not going to come in here and
say we all feel really sorry for Iraqi POW's because we
just don't want to hurt EPW's. I suppose in a very
global sense that's great and in a humanitarian we care
about everybody's sense that it's nice and it is
generous. That's not what it is about. It is about two
things, it is about: One, being a professional Marine.
A professionally trained Marine who executes his duties
despite his low morale, despite the heat, despite his
lack of sleep, and despite his frustration.
Two, it has to do with American EPW's. The only reason
we treat Iraqi EPW's well is not because We like them,
we treat them well because when the Iraqis have our
Marines7 our 1/4 Marines over there, we want them to
treat our Marines well. What is that Marine thinking,
and thank God it doesn't seem to have happened in this
case, but what's that Marine thinking when he's got his
wrists bound or his feet bound and a blindfold on and
the next thing he knows is word just got out that we,
the Marine Corps, the United States Marine Corps, is
mistreating its EPW's from the United States, America,
the trendsetters, the people who tell the rest of the
world how to treat their. prisoners? What is that United
States Marine EPW thinking when these Iraqis come into
the little building that he's in, while he's bound, and
start talking about the way we treated their Iraqi
EPW's? What's going to happen to him? Is he going to
be tortured or maltreated? Are they going to take it
steps further than just walking up and beating on old
men? Are they going to kill him? .Who knows? And we
shouldn't have to know because we should be able to
trust our professionally trained Marine Corps, Marines,
to follow orders, to treat EPW's with respect, not
because they like them, but because they're Marines and
that's what Marines do and because that is what they are
told to do.
75
DOD055244
It is a tragic mistake to do that and then come in here
and say, I feel really bad aboutat.-I was angry
because I wanted to go home and my family miseed me. Everybodys families missed everybody. It was miserable for everybody, the entire Marine Corps out there, because it was hot, and they were getting shot at all of the time and some people were dying. They were dealing with Iraqi POW's. That's not an excuse. That is not even close to an excuse. What Lance Corporal Leak did is far, far bigger than cruelty and maltreatment, violating a lawful order, or assault. It's global.
Because what we do to our EPW's effects what other
nations do to their gPW's.
Nobody here is going to get overly worked up about Iraqis when they continue to be our enemy, but we are going to get'worked up about United States Marines. We're going to get worked up about the proper treatment of EPW's when it can effect us.
Lance Corporal Laak made a mistake. Me may have done it in a huff and he may have done it to let off steam. That, by no stretch of the imagination, forgives orjustifies his conduct or makes the punishment that he needs to receive any less harsh.
I'll ask, sir, that when you consider an appropriate
punishment in this case, you look to the theme of
general deterrents. It's a proper reason for sentencing
a Marine.
You heard.. frorn.Captain MX6) 1/4 is going back to the desert. They're going back to Iraq and they're probably going to be back there taking care of EPW's once again. All those marines, Marines who are here today, are going to be there, possibly taking care of EPW's. Those Marines need.to understand that they have to treat those EPW's fairly and correctly because that's what Marines do. By giving the appropriate punishment in this court-martial, that will send the message and they'll understand.
An annronriate nunishment, sir, begins with a .
because there's no other way to
MX6)
Oetine Lance Corporal Laak's conduct. Not when it transcends so much more than just assault or cruelty and maltreatment. It's the only way to define and the only way to characterize his service because of that action.
76
DOD JUNE
In addition, confinement is necessary, because Lance
Corporal Laak needs some...time to realize that letting
off steam and-missing his family doesn't-juscify what he
did. It needs to send the message to the other Marines
how seriously the Marine Corps takes this kind of
misconduct. We would offer ten months, sir, ten months'
confinement as an appropriate amount of confinement to
teach Lance Corporal Laak the lesson he needs and to
show those other Marines what they need to know when we
go back out there and put Marines lives on the line once
again and risk their EPW status.
It is not about Iraqi EPW's, sir, it's about Americans,
and that is important. The punishment should reflect
that appropriately.
Thank you, sir.
MJ:. Lieutenant mxm
DC: Yes, sir.
Sir, if you strip away all of the political stigma that
is attached to mishandling of EPW's, what you'll come to
find is that all we have here is a case of Lance
Corporal Laak, a combat veteran, who traveled up Route 7
with 1/4, and for two months, was under the constant
strain and stress of battle.
MM
Captain Ntalked about the fact that they would
move forward and they would stop and dig in. They would
...move forward, stop, and dig in. The entire time they--.,
were under sporadic gunfire. Each time they hit a
city -- we heard Lance Corporal Laak talk about An
Nasiriyah, how there were sustained firefights through
An Nasiriyah. For two months these Marines had traveled
through the desert without proper food and shelter.
They were tirPri. They were dirty. They were hot. Just
like Captain opm said. This isn't an excuse for what
Lance Corporal Laak did, and he's not making an excuse.
He came here today, he said he was sorry, he's pled
guilty to the charges, accepting responsibility for his
actions, sir. He's not saying, Oh, it was the heat that
did it; it's not my fault. You heard him tell you, I
accept responsibility for my actions. Justice needs to
be served.
DOD055246
What is illsti.ru. th.i.s case, Your Honor? It is not a
and ten months in the brig.,__41pg_ can-we possibly think that Lance Corporal Laak's -behavior as a Marine as whole, not an unknown time in Al Hillah in a tiny room which nobody can really identify what exactly happened anyway. His conduct needs to be taken as a whole, from his performance in garrison prior to deployment,.to his deployment -- to his denloyment as they marched up Route 7, when Captainom said he was a good Marine. I could always count on nim with a gun. I want him to go to combat with me again if I have to go. You heard him say that. Is that the type of marine that we want to get out of the Marine Corps with a (me I think with the upcomingd4.g16yment, 1/4 neeas marines like him on the gun.
The assault that took place in Al Hillah is a disgrace.
Lance Corporal Laak has told you it was a disgrace.
Captainow , admitted that it was wrong, but he also
said it wea ^the only thing in the 18 months of his close
supervision that he had done wrong.
Now, we might think that assaulting this EPW is going to lead to an assault American EPW's, but we don't have any evidence of that. There's nothing to suggest that this striking of an BIM led to maltreatment of American POW's. Your heard testimony from Captain om. who said, I took a Corpsman down there. We. did an investigation. The EPW's, none of them showed any physical signs of abuse. None of them had any marks or bruises. One of them said, I'm not hurt. I know what he did in the heat of battle. He apologized; Ws,done. Now does this sound like the type of person that's going to go back to his Iraqi brethren and say, Hey, the Americans are bad people. This is what they do. No, because this isn't the instance of an egregious act by an EPW guard. This is him walking in, making a bad mistake under the stress of two month6 being in the desert under constant fire and losing his temper essentially, after finding out that they're going to be deployed for three more months.
Is it a bad .act? Yes, it is a bad act, and it deserves
to be punished, sir. But it doesn't deserve to follow
him around for the rest of his life. We need Marines
like Lance Corporal Laak, combat veterans, that have
already been there so that when we go back, we can do
our job.
78
DOD055247
He's learned his lesSon. He told you, Sir, I didn't
know at the time that-what I did was,that.big ot_a_deal.
He knows now. General deterrents is satisfied. The'
Marines sitting here from 1/4 know that if they go back
over there and they do this again, they're going to face
a court-martial. They're going to have a prosecutor
sitting across the desk where they may' ho oiPti"r* "tAt
RaVA thpv should get kicked out with a om
and go to the brig for ten months. General
deterrents is served by him being here and facing these
charges.
He wants to stay in the Marine Corps. The command wants him to stay in. Captain(b)(6) testified to that. He does not need to be kickea out over this. Punishment? Yes. Brig time? Possibly. But not a bad-conduct discharge, Your Honor.
Thank you.
MJ:)
Very well. Court's closed for deliberations.
The court martial closed at 1427, 19 November 2003.
-
The court-martial opened at 1444, 19 November 2003.
MJ: The Court will come to order. All parties present when the Court closed for deliberations are once again present.
This has been a difficult case. More difficult than
most cases. I havexpo say,that I take issue with the
underlying premisiibf the government's argument on
sentencing. Maybe it's just me, but I think this case
is all about Iraqi BPw's. have to say I disagree with
the statement that nobody is going to get worked up
about Iraqi,EPW's while they're still our enemy.
I understand the concept that we treat enemy prisoners
of war well because we want our own prisoners of war to
be treated well. That is one of the underlying premises
or principles to the law of armed conflict and
international law. I know a little bit about that; I
used to teach it. History has shown us time and time
again that our enemies don't always follow the law of
armed conflict. We treat enemy prisoners of war well.
humanely, decently, because it's simply the right thing
to do and it is the law. We do that -- we follow the
DOD JUNE 169
DOD055248
law regardless of how our enemies treat our prisoners of
war,__T want to make.it,clearfor,the,recordthat_I
not sentencing Lance Corporal Laak based upon some
speculation as to how our own POW's might have been
treated in Iraq or how they might be treated by Iraq or
any other enemy in the future.
Captain(WM) response to what happened on
3 JUne 2003, frankly, was the right one. Apologize,
tell those POW's they didn't deserve to be treated that
way, and the assurance given that it won't happen again
and that they'll be treated well and they'll be safe in
our custody. The law demands that and we as Marines
expect nothing less.
Accused and counsel please rise.
The accused and his cbunsel did as directed.
MJ: Lance Corporal Walter H. Laak, United States Marine Corps,
it is my duty as military -judge to inform you that this
Court sentences you:
To be confined for a period of 120 days; to
be reduced to the pay grade E-1; and to be
discharged from the marine Corps with a
I do specifically rennmmFma the:. nnnvoning authority
that he suspend the 0:0) however, I do
not have the power to ao cnac myselr.
You may be seated. •
The accused and his counsel did as directed.
MJ:,
May I see Appellate Exhibit II, please.
DC: Permission to approach, sir.
KJ:,
Yes.
DC: I am handing the military judge what has been marked as
Appellate Exhibit II.
MJ: Lance Corporal Laak, do you understand that the sentence
limitation portion of your pretrial agreement has no
effect on the sentence that I have just adjudged?
DOD055249
ACC: Yes, sir.
MJ:,
Do both counsel agree with that interpretation?
TC: Yes, sir.
DC: Yes, sir.
MJ: Very well.
I find the pretrial agreement as a whole to be in accord with appellate case law, not contrary to public policy or any my own notions of fairness, and the agreement is accepted.
I have already been handed what's been marked as Appellate Exhibit III, a statement containing your appellate and post-trial rights, Lance Corporal Laak.
Did you sign this document at the bottom of Page 2?
ACC: Yes, sir.
MJ: Did you read it over carefully and discuss its contents
with Lieutenant Dewberry?
ACC; Yes, sir.
MJ: Do you believe that you fully understand what your appellate and post-rights are in this case?
ACC: Yes, sir.
MJ: It indicates that you would like your copy of the recordof trial and staff judge advocate's recommendation to be served upon Lieutenant Dewberry as you counsel. Is that correct?
ACC: Yes, sir.
MJ: Very well. Appellate Exhibit III will be attached to the
record of trial.
Anything else, counsel prior to adjournment?
TC: No, sir.
DC: No, sir.
81
DOD JUNE 171
DOD055250
MJ: Very well. This court martial is adjourned.
-
The courtmartial adjourned at 1450, 19 November 2003.
-
82
DOD055251
AUTHENTICATION OF THE RECORD OF TRIAL
.ia the case of
Lance Corporal Walter H. Leak (b)(6) , U.S. Marine Corps,
1st Battalion, 4th Marines, 1st Marine Division (REIN), Camp
Pendleton, California 92055.
Pursuant to R.C.M. 1104(a)(2)(8), the record of trial in the
foregoing case is authenticated solely by the trial counsel due to
the military judge's return to reserve status.
I have examined the record of trial in the for oing case.
J. . MILLS
Captain, U.S. Marine Corps Reserve
Trial Counsel
OY oPo
DOD JUNE
UNITED STATES MARINE CORPS
IN THE SERRA JUDICIAL CIRCUIT
UNITED STATES )
v.
) SPECIAL COURT-MARTIAL
)
WALTER H. LAAK ) PRETRIAL AGREEMENT
(b)(6) ) LANCE (..:URPORAL )
U.S. MARINE CORPS
)
)
I, LANCE CORPORAL WALTER H. LAAK, U.S. Marine Corps, the accused in a Special Court-Martial, freely and voluntarily certify that:
I.
For good consideration and after consultation with my defense counsel, First Lieutenant C. J. Dewberry, I agree to enter a plea of =XX to the charges and spe,cifications as set forth in paragraph 10 below, provided that the sentence approved by the convening authority will not exceed the sentence agreed upon in the Sentence Limitation to this Agreement
2. I am satisfied with my defense counsel in all respects.
3.
I have been advised that this offer and Agreement cannot be used against me in the determination of my guilt on any matters arising from the charges and specifications against rne in this court-martial.
4.
I understand that for the purpose of this Agreement, the sentence is eonsidered to be in these five parts: (I) punitive discharge; (2) period of confinement; (3) amount of forfeiture of pay and/or allowances; (4) reduction in rate crr grade; and, (5) any other lawful punishment (such as hard labor without confinement, restriction, reprimand, or fine).
5.
Should the court-martial adjudge a sentence which is le,ss, or a part thereof which is less, than that set forth and appmved in the Maximum Sentence Limitation to this Agreement, then the convening authority may only approve the lesser sentence.
6.
My defense counsel has fidly advised me of the meaning and effect of the following UCM.I provisions: Article 57, Effective dates of sentences; Article 58b, Automatic forfeitures; Article 58a, Automatic reduction; and, JAGMAN section 0152c, Automatic reduction of enlisted accused. I also understand that if the adjudged sentence is subject to any of these provisions, this Agreement will have no effect on the application of those provisions on the adjudged sentence, unless the effect is specifically indicated in the Sentence Limitation to this Agreement.
7. My defense counsel has fully advised me of the meaning and effect of my guilty
plea, and its attendant effects and consequences, including the possibility that I may be prec.essed for an administrative discharge even if part or all of the sentence, including a punitive discharge, is suspended or disapproved pursuant to this Agreement, and that, depending on the circumstances, such discharge may be characterized as other than honorable.
APPELLATE EXHIBIT
1 OP
PAGE
001GINAL
DOD055253
8. I understand that if my guilty plea does not remain in effect for any reason through the announcement of the sentence, then the convening authority may svithdraw from this Agreement
• 9. • I inderitand.thritilio•itsk•perriu-Saion 'to 'withdraw my gthity plea at any tirrie before sentence is announced, and that the military judge may permit me to do so.
10. I will plead as follows:
CHARGE PLEA
Charge I: Spec : Violation of Article 92, UCMJ. Did on or about 2 June 2003, having knowledge of a order, wron,gfully violate such order by striking enemprisoners of svar. Guilty lawful Guilty y
Charge II: Spec : Violation of A.rtide 93, UCKI. Did, on or about 3 June 2003, maltreat persons subjecorders, by hitting them with his fists. Guilty t to his Guilty
Charge HI: Violation of Article 128, UCKT. Guilty Spec : Did. on or about 3 June 2003, unlawfully strilce enemy Guilty prisopers ofwar.
11.
I agree to request trial by military judge alone, and waive my right to a trial by members.
12.
For die purpose of this Agreement, misconduct is defined as any act or omi.ssion I commit in violation of the UCMJ.
13. All the provisions of this Agreement are materiaL
a.
If I violate any provision of the Agreement or commit any misconduct before trial, the convening authority may withdraw from this Agreement; or
b.
If I violate any provision of the Agreement or commit any misconduct between the date of trial and completion of my sentence, including suspension periods, the convening authority may order executed the full sentence, and 1 may lose the benefit of any disapproval or suspension provision contained in the Maximinn Sentence Limitation portion,
following a vacation hearing pursuant to Rule for Courts-Martial 1109, Manual for Courts-Martial (2000 edition).
14. This Agreement constitutes all the conditions and understandings of both the Government and myself regarding die pleas and sentence limitations in this case.
APPELLATE EXHIBIT
ORiGINAL
PAGE 2-OF
DOD055254
tio
15. The maximum salience to be approved by the convening authority is contained in the Maxinuun Sentence Limitation to this Agreeman.
APPELLATE EXHIBIT
ORIGINAL
PAGE_ 3 OF
DOD055255
U. S. v. LCp1 Walter X Leak, 04(6) , USMC, Pretrial Agreement Signature Page
Accused: 4de(06e/ Date: Ean tf) WALTER H. LAAK Lance Corporal
U.S. Marine Corps
Defense Counsel: Date: co I I Crc cuRns J. DEWB First Lieutenant
U. S. Marine Corps
The foregoing pretrial agreement is approved.
frh, Date: 0,1/ 3 sa.. *wog-
1-tpolonel Marine Cotps Commanding
APPELLATE EXHIBIT
ORIGINAL
PAGE OF 4
DOD JIJNE
177
DOD055256
UNITED STATES MARINE CORPS
IN THE SIERRA JUDICIAL CIRCUIT
UNITED STATES
v. SPECIAL COURT-MART1AL
WAT.TF.R T.AAl2
SENTENCE UMITATION (b)(6) LANCE CORPORAL
U.S. MARINE CORPS
Punitive Discharge: As adjudged.
2. Confmement: As adjudged; however, if a punitive dischargod is adjudged and if the accused submits a request for voluntarY appellate leave to trial counsel within five (5) days of the date of trial, then all confmement in excess of one hundred and twenty (120) days will be suspended fur a period of twelve (12) months from the date of the convening authority's action, at which time, unless sooner vacated, tbe suspended portion will be remitted without furdser action.
This agreement constitues my request for, and the convening authority's approval ot deferment of all confinement suspended pursuant to the terns of this agreement. The period of deferment will run from tbe date of mai until the date the convening authority acts on the sentence.
3.
Abludysirsivara: As adjudged.
4.
Reduction: As adjudged.
5.
Other lawful nunishrnesug: As adjudged.
APPELLATE EXHIBIT
ORIGINAL PAGE
OF 2-
DOD055257
kir
U. S. v. 1.Cp1 Waker n. L22k. (b)(6)
USMC, Pretrial Agreement Signature Page
Accused: .ggia5.
Date: oltba.
WALTER H. LAAIC • •
Lance Corporal
U.S. Marine Corps
Date: 0 1
Defense Counsel: oy
First Lieutenant
U. S. Marine Corps
The foregoing pretrial agreement is approved.
/Ae6el P0*-
Date: " 4.-.6,4001=Atti -11--HIV/4A--L 1-Colonel
U.S. Marine Caps Commanding
APPELLATE EXHIBIT 2:r Z-Z.
PAGE OP
ORIGINAL .
DOD JUNE
17 9
DOD055258
APeeLLITS AND FOST-TRIAL RIGNTB
You are advised that your defenee counsel (DC) is required by law to fully explain
to you the following post-trial and appellate rights, and, that you have the right to
request the military judge explain all or any portion of your appellate rights in open
court prior to adjournment of your court-martial.
Record of trial (ROT)
A copy of the ROT will be prepared and given to you. You may request that your copy of
the ROT be delivered to your DC.
Staff Judge Advocate or Legal Officer's Recommendation ISJAR)
If you received a punitive discharge or were sentenced by a general court-martial, the
convening authority (CA)'s staff judge advocate or legal advisor will submit an SJAR to
the CA. Before forwarding the SJAR and the ROT to the CA, this legal advisor will serve
a copy of the SJAR upon your DC. A separate copy will be served on you. If it is
impracticable to serve the SJAR on you for reasons including, but not limited to, your
transfer to a distant place, your unauthorized absence, or military exigency, your copy
will be forwarded to your DC. You may also request on the record at this court-martial
or in writing that your copy be sent to your DC instead of yourself.
Submission of Matters to the Convening Authority
You have a right to submit matters to the CA before that officer takes action On your
case. In this regard, you have the right to requeat deferment of any sentence to
confinement. These matters must be submitted within 10 days after a copy of the
authenticated ROT or, if applicable, the SJAR, is served on you or your DC, whichever is
later. The CA may extend these periods, for good cauee, for not more than an additional
20 days. Failure to submit matters within the time prescribed waivea the right to eUbmit
matters later.
Action by the Convening Authority
The CA will take action on the sentence adjudged and may, in his discretion, take action
on findings of guilty. The action to be taken on the findings and sentence is within the
sole discretion of the CA and is a matter of command prerogative. The CA is not required
to review the case for legal errors or factual sufficiency. In taking action On the
sentence. the CA may approve, disapprove, commute, or suspend the sentence in whole or in
part. The CA may never increase the severity of the sentence. The CA is not empowered
to reverse a finding of not guilty; however, the CA may change a finding Of guilty to a
charge or specification to a finding of guilty to a lesser offense included within that
charge or specification, may disapprove a finding of guilty and order a rehearing, or may
set aside and dismiss any charge or specification.
Review
/f you were tried by a special court-martial and your sentence, as finally approved by
the CA, does not include a punitive discharge, your case will be reviewed under the
direction of the staff judge advocate for the CA'e superior general court-martial
convening authority (GCMCA). You may suggest, in writing, possible legal errors for the
judge advocate to consider and that judge advocate must file a written response to legal
errors noted by you. Atter suet' review, and completion of any required action by the
GCMCA, you may request the Judge Advocate General of the Navy (TJAG) to take corrective
action. Such a request must be filed within two years of the CA's action,-unless the
time is extended for-good cause.
If you were tried by a general court-martial and your sentence, as finally approved ny
the CA, does not include a punitive discharge or at least one year's confinement, your
case will be forwarded to TJAG. You may suggest in writing, possible legal errors or
other matters for consideration by TJAG. The ROT may be examined for any legal errors
APPELLATE EXHIBIT _
2-
PAGE ( OF
DOD055259
11
illi, 40,
and for appropriateness of the sentence and WAG may take corrective action, if
appropriate.
If your sentence, as finally approved by the CA, includes a punitive discharge
(regardless of the type of court-mertial), dismiseal, a year or more of confinement, or death, your case will be reviewed by the Navy-Marine Corps Court of Criminal Appeals
UVIC:CA3 fox legal dtrors, factual sufficiency, and appropriateness of sentence. ibis
review is automatic. Following this, your case could be reviewed by the United States
Court of Appeals for the Armed Forces (CAAF), and finally it might be reviewed by the
, United States Supreme Court.
Waiver of Review
You may waive appellate review, giving up the foregoing rights, or you may withdraw your caue from appellate review at a later time. Once you file a waiver of withdrawal. your deciaion is final and appellate review ia barred. It you waive or withdraw appellate review, your case will be reviewed by a judge advocate for certain legal errors. You may submit, in writing, suggestions of legal errors for oonaideration by the judge advocate, who must file a written reeponse to each. The judge advocate's review will be sent to the GCMCA for final action. Within two years after such final action, you may request TJAG to take corrective action in your case. The two year period may be extended tor good cause. You have the right to the advice and assistance of counsel in exercising or deciding to waive your poet-trial and appellate rights.
Right to Counsel
It is your DC's reeponsibility to represent you during the CA'S aCtiOn stage of your court-martial conviction. Your DC is responeible for examining the ROT for error and, where applicable, the SJAR for error', or omiasione. It is your DC's obligation to advise and assist you in preparing matters for submission to the CA for consideration prior to action being taken on the ROT.
It your case is reviewed by NMCCA, military counsel will be appointed to represent you at no cost to you and, if you choose. you may engage a civilian couneel at no expense to the United States. If your case should be reviewed by CAAF or by the United States Supreme Court, you would continue to have the same appellate counsel rights before these courts.
Acknowledqment
I acknowledge (1) that prior to adjournment of my court-martial, I was provided with the
above written advice; (2) that I have read and I understand my-poit-trial and appellate
rights; (3) that I discussed my rights with my DC prior to signing this form; and (4)
that the military judge will discuss my appellate rights with me on the record prior to
adjournment of the court, if I so desire.
I specifically request that my copy of the ROT be delivered to:
me. La--my counsel. First Lieutenant Curt J. Dewberry.
I specifically request that my copy of the SJAR be delivered to:
TOE. (,-(C, my counsel, First Lieutenant Curt J. Dewberry.
Curt J. Dewber Walter H. Leak
First Lieutenant Lance Corporal
USMC USMC
Detailed Defense Counsel Occurred
ELLATE M'r
Z.
PAGE OF
DOD055260
INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
usE of FoapA - This form and MCM, 1984, Appendix 14, will be used by the trial counsel and the reporter as a guide tO the preparation of the record of trial in general and special court-martial cases in which a verbatim record is prepared. Air Force uses this form and departmental instructions as a guide to the preparation of the record of trial in generai and special court-martial cases in which a summarized record is authorized. Army and Navy use DD Form 491 for records of trial in general and special court-martial cases in which a summarized record is authorized. Inapplicable words of the printed text will be deleted.
COPIES - See MCM, 1984, RCM 1103(g). The convening authority may direct the preparation of additional copies.
ARRANGEMENT - When forwarded to the appropriate Judge Advocate General or for judge advocate review pursuant to Article 64(a). the record will be arranged and bound with allied papers in the sequence indicated below. Trial counsel is
responsible for arranging the record as indicated, except that items 6. 7, and 15e will be inserted lay the convening or reviewing authority, as appropriate, and items 10 and 14will be inserted by either trial counsel or the convening or reviewing authority, whichever has custody of them.
1.
Front cover and inside front cover (chronology sheet) of DD Form 490.
2.
Judge advocate's review pursuant to Article 64(a), if any.
3.
Request of accused for appellate defense counsel, or waiver/withdrawal of appellate rights, if applicable.
4.
Briefs of counsel submitted after trial, if any (Article 38(c)).
5.
DD Form 494, "Court-Martial Data Sheet."
6.
Court-martial orders promulgating the result of trial as to each accused, in 10 copies when the record is verbatim and in 4 copies when it is summarized.
7.
When required. signed recommendation of staff judge advocate or legal officer, in duplicate, together with all clemency papers, including clemency recommendations by court members.
8.
Matters submthed by the accused pursuant to Article 60 (MCM, 1984, RCM 1105).
9.
OD Form 458, "Charge Sheet" (uniess included at the paint of arraignment in the record).
10. Congressional inquiries and replies. if any.
11.
OD Form 457, "investigating Officer's Report," pursuant to Article 32, if such investigation was conducted, followed by any other papers which accompanied the charges when referred for trial, unless included in the record of trial proper.
12.
Advice of staff judge advocate or legal officer, when prepared pursuant to Article 34 or otherwise.
13_ Requests by counsel and action of the convening authority taken thereon (e.g., requests concerning delay, witnesses and depositions)
14.
Records of former trials.
15.
Record of trial in the following order:
a. Errata sheet if any.
b.
Index sheet with reverse side containing receipt of accused or defense counsel for copy of record or certificate in lieu of receipt.
c.
Record of proceedings in court, including Artide 39(a) sessions, if any.
d.
Authentication sheet, followed .by certificate of correc-tion, if any.
e.
Action of convening authority and, if appropriate, action of officer exercising general court-martial jursidiction.
f. Exhibits admitted in evidence.
g.
Exhibits not received in evidence. The page of the record of trial where each exhibit was offered and rejected will be noted on the front of each exhibit
h.
Appellate exhibits, such as proposed instructions, written offerS of proof or preliminary evidence (real or documentary). and briefs of counsel submitted at trial.
DOD JUNE
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DOD055261