Former JAG attorney implicates JAG Corps

Former JAG attorney implicates JAG Corps
By Kit Jarrell
Dec. 31, 2006

Last night on the radio, Tim Harrington and I were talking about the JAG Corps, and the incredible web of lies and misconduct that permeates the inner workings of a system designed to maintain good order and discipline.

While documents I've posted speak for themselves, my conversation yesterday with former Marine and JAG attorney Timothy Zeller really brings it together. But first, some background.

Zeller, you may remember, was the orchestrator of a fraudulent court-martial against LCDR Walter Francis Fitzpatrick III in 1990. As the Staff Judge Advocate under Admiral John Bitoff, Commanding Officer of Combat Logistics Group One, Zeller's job was to act as Bitoff' chief legal adviser.

The problem is that Zeller was also one of Fitzpatrick's accusers, having signed the charge sheet. As the accuser, or "bringer of charges" against Fitzpatrick, Zeller had an obvious conflict of interest, since Bitoff had named himself the convening authority in the case. Bitoff, who ordered Zeller to sign the charge sheet on Bitoff's behalf, was also an accuser. Bitoff admitted his role as Fitzpatrick's accuser in a letter to Congressman Norm Dicks in April 1999. Bitoff wrote to Dicks, "I brought the charges and I convened the court-martial" against LCDR Fitzpatrick.

Under both ethical and legal parameters, Bitoff wasn't allowed to assemble the Fitzpatrick court-martial but did anyway. Zeller and Bitoff were legally barred from any connection to the military hearing due to the fact that they were making the accusations against Fitzpatrick. As you'll see from the documents, Zeller gave all kinds of advice to Bitoff while the admiral conducted the proceedings, and it was exactly the kind of advice you'd expect from someone who desperately wanted to see Fitzpatrick punished by imprisonment. Bitoff and Zeller were working together.

After visiting the USS MARS--the ship Fitzpatrick was the XO of--in an investigative capacity, Zeller wrote a report directly to Rear Admiral John Bitoff. Dated 23 Oct 1989, the report recounted witness statements, made accusations, and discussed evidence. However, there were problems with this memo. A lot of problems.

Zeller fabricated testimony, claiming that parties were interviewed and gave damaging testimony against Fitzpatrick, yet in the list of evidence and statements in the report, none of these names appear, meaning Zeller never talked to them at all. Statements Zeller claims to have taken, and any information Zeller collected are completely missing. Zeller didn't see the need to maintain a chain of custody (standard investigative practice), inasmuch as Zeller didn't believe in keeping files to cover Bitoff and Zeller when their decisions might later be questioned (Zeller's policy statement to Bitoff in their "personal for" memo exchange of 11 April 1990).

Zeller claimed that financial documents for the MARS were missing, and but all found after the "departure of Operational Specialist Chief Wagoner." Zeller neglects to mention that Wagoner left the ship a year prior. The documents had never been missing at all. In fact, Tim Zeller was the last person to have the USS MARS 1988 fiscal year financial report, which contained exculpatory evidence that could have been used to exonerate LCDR Fitzpatrick. The the original was sent to Bitoff's CLG-1 command. Zeller seized remaining copies of the report into evidence. No version of the USS MARS' MWR financial report have been seen again.

Zeller makes the unequivocal assertion that "LCDR Fitzpatrick is guilty of dereliction of duty by failing to adhere to proper procedures for the expenditure of MWR funds," even though there had been no Article 32, no court-martial, and no verdict. This was simply one man, serving as the accuser in the case, reporting to the convening authority in the case, who just happened to be his boss.

Zeller's involvement in the case didn't stop there. He continued to advise Bitoff throughout the Article 32, the court-martial, and the subsequent disciplinary actions.

On January 9th, 1990, the Article 32 Report was signed by LCDR J. J. Quigley, the investigating officer. In Line 18, the report offers a "Yes" or "No" option to the statement, "Reasonable grounds exist to believe that the accused committed the offense(s) alleged." Next to the statement, Quigley had checked "No." However, two days later on 11 January, Zeller sent a memo to Bitoff advising him in a legal capacity that he could choose to reject the IO report and forge ahead with a general court-martial. In fact, the ever-helpful Zeller told Bitoff that "at the present time the Article 34 advice is being prepared in the event you desire to convene a general court martial."

During the trial, Zeller complained to Bitoff about the government's prosecutor, Matthew Bogoshian, claiming that the young attorney lacked the "desire to win." In 1992, Bogoshian gave a sworn statement that "the majority of charges LT Zeller brought against LCDR Fitzpatrick seemed to have little or no basis in reality." The prosecutor also mentioned that "LT Zeller seemed obsessed with the prosecution of LCDR Fitzpatrick."

After the court martial was over, Zeller once again advised Bitoff on the disposition of the case in a personal and confidential memo that was never made part of the public record. In fact, Zeller specifically assured Bitoff that there were no other copies of the memo. Zeller had no idea these memos would survive and be made public so many years later.

There is more to this story…much more, including forgery and complicity on the part of the government defense attorney. In the next installment I'll continue the story. But allow me now to jump ahead to the present day, sixteen years later. Yesterday I spoke with Tim Zeller by phone.

Initially, he was friendly, professional. I gave my name and explained that the reason for my call was that his name had come up in the course of a story I was investigating concerning a case he had dealt with. He asked what case, and when I said Fitpatrick's name, Zeller laughed.

"That old thing has been going on for 16 years now," he said. "I'm not even in the Navy anymore. It keeps getting brought up, but nothing ever comes of it. If you want to go ahead and dig through all of it again be my guest. I don't have time for it. Have a good day."

"Before you hang up on me," I said, "I do need to tell you that I hold in my hand a number of memos that you wrote to an Admiral John Bitoff that are not part of the official record of the case."

The line went silent. "What memos?"

"Well," I went on, "there's this one, a report that you sent to Admiral Bitoff, stating that Fitzpatrick was guilty before the article 32 was even held. I also have one where you state that you don't like to keep copies of memos in case your actions are questioned later…"

He cut me off then, and his attitude changed significantly. "I've had psychiatrists tell me that I have to watch my back with that guy. I've had NCIS tell me the same thing. This is ridiculous…"

He hung up on me after reading me the Riot Act, but as I went back to writing, the phone rang again.

"Yeah, this is Tim Zeller. What's your radio show?" I gave him BlogTalkRadio's website, as well as Euphoric Reality, and offered him the number to call in to the radio show. He didn't want it.

"Did you talk to anybody at JAG?" he demanded. I told him that I've talked to a lot of people, that this was the culmination of months of research. I explained that I wasn't in the business of ruining people's lives or careers, and that this information had dropped into my lap during an investigation into the misconduct behind the Pendleton 8, Haditha, and Airborne cases. I again offered him the chance to come on the show and talk about the accusations, but he refused.

"I'm giving you a chance to have equal time," I told him.

"I haven't had equal time since this started," he sputtered. I told him I didn't know what to tell him, since I hadn't been involved "since it started."

"You even check your facts? You need to check your facts," he kept saying.

"Why do you think I'm calling you?" I asked. "I'm giving you a chance to answer this, to come on the show or call in and tell your side. There's evidence that this case was mishandled, and it's part of a bigger picture of misconduct on the part of the JAG Corps."

"I'll tell you, if you think this case was mishandled, I could tell some stories…I've been a defense attorney too." He paused, then, letting the unspoken hang.

"Well, I'll be more than happy to look at anything you might have on other cases," I told him.

"That depends," he said. "If I don't like your attitude when I go to your website, I'm not going to help you."

The conversation went downhill from there, and he ended up hanging up on me soon after.

The bottom line here is that there have been crimes committed by high-ranking officers in the military. These crimes have continued to be covered up throughout the years, and some of the same people who have perpetrated these acts continue to be in power today. They continue to handle cases, deal with potential witnesses and evidence, and decide the fate of sometimes innocent people.

Regardless of the political clout of these parties, their long and illustrious careers in the military, or their lucrative civilian employment today, their acts need to be exposed. It is not over dramatizing to say that the lives of men depend on it.