Fourth Military Guantanamo Bay Prosecutor Quits Over Ethical Concerns

Recently, it was reported that a fourth military prosecutor for the Guantanamo Bay detainee cases – Army LTC Darrel Vandeveld – has quit his post based on his concerns about how the government is handling the case he was tasked to prosecute, against detainee Mohammed Jawad. According to the Associated Press story, LTC Vandeveld alleges that potentially exculpatory evidence (evidence which may justify or excuse an accused defendant's actions and which will tend to show the defendant is not guilty or has no criminal intent) was not provided to the defense as required.

I can’t comment on the accuracy of this reported story or the allegations contained therein; however, no matter what your opinions may be regarding these prosecutions, this detainee court system, or the rights of suspected terrorists, I hope we can all agree that American prosecutors should never engage in unethical practices or tactics that include withholding evidence they are required to turn over to the defense. This is wrong when done, and leads to more comfort with the practice and further violations. What do I mean?

When prosecutors arrogantly believe they know what happened in a case (even though they were not actually present when the events occurred), they start to view and weigh evidence in a biased way – they are drawn to evidence that favors their theory and they disregard evidence that contradicts it. They get the “white hat syndrome”, believing they are the omnipotent champion of truth and justice who will prevail in the case. As a result of this distorted self-image, they see their crusade as much more important than the rights of a defendant, or rules, or anything that might stand in their way. Each time the rules are violated, it becomes a little easier. After all, they are the champions of all that is right, so they are only fulfilling their divinely ordained cause.

Ok, this may be a little overboard, but you understand the point. This description does not apply to all prosecutors. There are prosecutors in the military and civilian systems who are ethical, professional, thorough, objective and fair. But those who sit in front of the Nancy Grace show, spellbound, eating popcorn, laughing and cheering as she sneers at defense attorneys, dismisses the rights of defendants and ridicules rules that provide fair process to defendants – these are the prosecutors and personality-types to fear. They are bad for the system and, despite what they believe, they are not champions of justice. Anyone who has spent any time as a criminal defense lawyer has run across prosecutors like this.

Remember the case in which the Duke University lacrosse players were accused of rape? Do you recall how that case unraveled and what the North Carolina Attorney General’s office determined about the attempted prosecution and the actions of the District Attorney? I doubt that the District Attorney’s actions were motivated by a desire to convict and jail innocent people. To the contrary, it was likely the “white hat syndrome”. I have written other blog posts about this same theme:

http://militaryadvocate.blogspot.com/2007/04/how-can-you-defend-them-duke-lacrosse.html

http://militaryadvocate.blogspot.com/2007/06/cost-of-overzealous-prosecution.html

http://militaryadvocate.blogspot.com/2007/07/value-of-good-defense-lawyer-you-might.html

In any event, four prosecutors have now publically quit their jobs as prosecutors in the Guantanamo Bay detainee cases. That is very troubling. But, if some prosecutors are raising these public objections, we at least know that group-think, or pressure from higher ranks, has not overcome the ethical compass of all involved.

Here is a link to the AP story, which follows:

http://www.foxnews.com/story/0,2933,427624,00.html

--------------------------------------------------------------------------------------
Guantanamo Bay Prosecutor Quits Over Detainee Case

Thursday, September 25, 2008

GUANTANAMO BAY NAVAL BASE, Cuba —

A U.S. military prosecutor at Guantanamo Bay has quit because of what he described as ethical disputes with his superiors, alleging they suppressed evidence that could help clear a young Afghan detainee of war crimes.

The prosecutor, Army Lt. Col. Darrel Vandeveld, described the disagreements in a statement supporting a defense bid to dismiss the charges against Mohammed Jawad. A copy was obtained Wednesday by The Associated Press.

"Potentially exculpatory evidence has not been provided," Vandeveld wrote, citing a failure by "prosecutors and officers of the court."

The disclosure triggered new attacks on the integrity of the Pentagon's military tribunal system, which has faced accusations of ethical lapses and political interference from other insiders including a former chief prosecutor.

The current chief prosecutor, Army Col. Lawrence Morris, denied that his office withheld evidence and said there was no basis to Vandeveld's ethical qualms. He said Vandeveld told him he was leaving his post for "personal reasons."

"All you have is someone who is disappointed because his superiors didn't see the wisdom of his recommendations in a case," Morris told reporters.

Jawad, who was captured in Afghanistan when he was 16 or 17, is accused of throwing a grenade that wounded two American soldiers and their interpreter in December 2002. He faces a maximum life sentence at a trial scheduled to begin in December.

Vandeveld said prosecutors knew that Jawad may have been drugged before the attack and that the Afghan Interior Ministry said two other men had confessed to the same crime, according to Michael Berrigan, deputy chief defense counsel for the Guantanamo tribunals.

In his written declaration, Vandeveld said he wanted to offer Jawad a plea deal that would allow him to receive rehabilitation during a short period of additional confinement. His bosses disagreed.

"As a juvenile at the time of his capture, Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him," Vandeveld wrote. "I am bothered by the fact that this was not done."

Vandeveld declined to comment through a tribunal spokeswoman.

Jawad's lead attorney, Air Force Maj. David Frakt, said he asked for Vandeveld to testify at Jawad's pretrial hearing Thursday but he was denied authorization to fly to the U.S. Navy base in southeast Cuba. "He decided he could no longer ethically serve either as a prosecutor in this case or for the Office of Military Commissions," Frakt told reporters.

At least three other Guantanamo prosecutors have quit their posts with grievances about the process. The former chief prosecutor, Air Force Col. Morris Davis, resigned in October and accused his superiors of political meddling.

Davis testified last month that a Pentagon official who oversaw the tribunals until last week, Air Force Brig. Gen. Thomas Hartmann, pushed for Jawad to be prosecuted before others because the details of the case would grip the American public and help build support for the process.

"The guy who threw the grenade was always at the top of the list," Davis said.

The military judge later ruled that disqualified Hartmann from the case, saying he had compromised his objectivity by aligning himself with prosecutors.

Two other former prosecutors, Air Force Maj. John Carr and Air Force Maj. Robert Preston, asked to be reassigned after alleging in 2004 that prosecutors deliberately misled senior civilian Pentagon officials about the quality of evidence against defendants.
"This appears to be yet another example of the government pushing the commission's case forward with total disregard of the truth or the rules," said Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch.

Jawad is one of roughly two dozen Guantanamo detainees facing charges. Military prosecutors say they plan trials for about 80 of the 255 men held here on suspicion of links to Al Qaeda or the Taliban.

-------------------------------------------------------------------------------

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, PC
http://www.militaryadvocate.com

Blog postscript: Attorney Frank Spinner and I (attorney Richard Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens & The Law Office of Frank J. Spinner for a free consultation.