5 Marines given immunity to talk about death

Posted on Thu, Jan. 26, 2006
5 Marines given immunity to talk about death
Instructor charged in fatal pool exercise
The Associated Press

BEAUFORT - Five Marines have been given immunity in exchange for their testimony on behalf of a swim instructor charged with negligent homicide in the drowning death of a recruit a year ago.

Staff Sgt. Nadya Lopez is accused of ignoring signs that Jason Tharp, 19, of Sutton, W.Va., was having trouble in the training pool and continued to push him hard, leading to his death last February.

The court-martial for Lopez is scheduled for next month but could change because of a scheduling conflict.

Lopez's defense counsel asked for immunity for six Marines, and five of them were granted protection from prosecution by Maj. Gen. Keith Stalder, commanding general for training and education, who is based in Quantico, Va.

"We want them to testify honestly without fear of retribution," Lopez's attorney, Lt. Col. Scott Jack, said Tuesday at a hearing over motions in the case.

The five Marines granted immunity each received administrative punishment for violations captured by Columbia TV station WIS, which was filming pool training the day before Tharp died, Parris Island spokesman Maj. Guillermo Canedo said.

Canedo said he could not release the names of the Marines who received immunity or how they were punished.

Lopez's case will focus on how she had no idea Tharp was in trouble until it was too late, Jack said.

"She did nothing wrong," Jack said. "There's an overwhelming desire at Parris Island, South Carolina, to find fault in someone, and it doesn't demonstrate that in this case. There's a lot of evidence on recruit Tharp and his life on Parris Island."

Witnesses will include four drill instructors and the officer on duty at the pool, who can talk about how Tharp was "worn out" and "manhandled" his entire time on Parris Island, meaning negligence lies with the staff and not Lopez, Jack said.

Also Tuesday, Military Judge Maj. Mark J. Griffith ruled the TV crew's tape could not be used as evidence.

Ellie

Marines to trade immunity for testimony
Drill instructors, officer will testify for defense in Staff Sgt. Lopez trial
Published Wednesday January 25 2006
By LORI YOUNT
The Beaufort Gazette

Five Marines will receive immunity in exchange for their testimony in the defense of Staff Sgt. Nadya Lopez, who faces a charge of negligent homicide in the February 2005 drowning death of Jason Tharp, her lead defense counsel said Tuesday.

Lopez is accused of not heeding warning signs of the troubled recruit in the training pool and pushing him too hard, leading to Tharp's death. Her court-martial is tentatively set for the end of February.

Maj. Gen. Keith Stalder, commanding general for training and education command, who is based in Quantico, Va., last week granted immunity to five of the six Marines for whom the defense counsel requested immunity, Lopez's attorney, Lt. Col. Scott Jack, said at a motions hearing before a military judge at Marine Corps Recruit Depot Parris Island on Tuesday,

"We want them to testify honestly without fear of retribution," Jack said.

Stalder serves as the "convening authority" over this court-martial process, so he decides whether to grant requests for immunity.

All five granted immunity have received administrative punishment in connection with incidents

involving Tharp and other recruits caught on tape by a Columbia news crew the day before Tharp died, Parris Island spokesman Maj. Guillermo Canedo said.

Not all of them were present at Tharp's death, Canedo said, adding that he couldn't release the names of those given immunity or their punishments.

The four drill instructors and the officer on duty at the pool, Lt. Randy Brown, can testify as to how Tharp was "worn out" and "manhandled" his entire time on Parris Island, so the negligence lies with the staff and not Lopez, Jack said.

"She did nothing wrong," he said. "There's an overwhelming desire at Parris Island, South Carolina, to find fault in someone, and it doesn't demonstrate that in this case. There's a lot of evidence on recruit Tharp and his life on Parris Island."

Jack said he also requested immunity for Staff Sgt. Anthony Davis, who testified at Lopez's Article 32 hearing in August that Tharp didn't show signs of distress in the pool and Lopez was performing her duties correctly, but it wasn't granted because he had already demonstrated cooperation by willingly testifying in hearings. This leaves Davis open to criminal charges, and he maintains his right to invoke the Fifth Amendment not to incriminate himself, Jack said.

"I would worry for him, but he's not my client," he said.

Jack wouldn't say whether defense counsel will present evidence to try to hold others responsible for Tharp's death, including those granted immunity.

"It may be one of our strategies, but it's not our duty," he said after the hearing.

Also at the motions hearing, Military Judge Maj. Mark J. Griffith said he plans to rule not to allow video taken by Columbia television station WIS at the pool the day before Tharp's death or testimony from six recruits who complained of Lopez's treatment of them as part of the court-martial. Griffith said the evidence was irrelevant and prejudicial because none of it pertained specifically to Tharp's death.

"I think you really need to focus on that case," Griffith told military prosecutor Capt. Doug Hatch. "Your case pertains to the eighth of February."

In the television broadcasts, Lopez is shown in the pool instructing a struggling recruit, a drill instructor is shown trying to coax Tharp to get into the pool and Lopez is shown throwing her arms up and apparently yelling at Tharp out of the pool with a group of fellow drill instructors.

"I don't find there's much relevance," Griffith said. "You can barely figure out what's going on."

The judge also said he planned to deny a motion by the defense to declare parts of the negligent homicide charge as "unconstitutionally vague." A charge of dereliction of duty was dismissed from the case in December on those grounds.

At a continuation of the hearing today, Lopez is expected to enter a not guilty plea and ask for a jury that consists of at least one-third enlisted personnel, Jack said.

The trial is still set to begin Feb. 27, but the date may change soon since Jack said he has received orders to teach a legal training workshop in Japan on that day.

Ellie