Reduced sentences possible for war-crime convictions

By: TERI FIGUEROA - Staff Writer

NORTH COUNTY ---- Long after their trials are over, Camp Pendleton Marines who may have been sentenced to jail for war crimes in Iraq will be able to continue to fight using the appeals process and by seeking clemency or early parole.

Success at any approach would mean reduced time behind bars.

In the high-profile case of eight men charged with playing a role in the kidnapping and shooting death of a retired Iraqi policeman in Hamdania in April 2006, five have pleaded guilty and received sentences ranging from 12 months to eight years.


The three remaining defendants, a Marine sergeant and two corporals, are headed to trial this summer. Each could be sentenced to life in prison if convicted of murder.

Another case drawing international headlines is the Haditha incident involving another group of Camp Pendleton Marines accused in the deaths of two dozen Iraqis in November 2005.

Pretrial proceedings in the Haditha case start this week for Capt. Randy W. Stone, one of the officers accused of failing to accurately investigate and report what occurred.

Review process

In the military justice system, anyone sentenced to a year or more has their case automatically reviewed.

There are two paths the case of a convicted service member automatically follows.

On one side is the appeals process in which higher courts review the case for legal error. In military courts-martial cases, the first appellate stop is the Court of Criminal Appeals, similar to California's appeals courts. That review is automatic, and the court has the power to shorten prison terms.

After that review, the convicted person could then ask a higher body known as the Court of Appeals for the Armed Forces to review the case. Similar to state and federal Supreme Courts, that court has the power to decline to review cases.

And while a case wends through the appeals process, it also heads down a path of clemency and parole ---- which includes a shot at a reduced sentence.

Presidential pardons and commutations of a sentence are also an option, but they aren't automatic. And they are rare. According to the Justice Department's Web site, commutation of sentence is "an extraordinary remedy that is rarely granted."

The Web site doesn't give information on the number of sentences commuted by President Bush; the most recent statistics come from cases under President Clinton.

During Clinton's time in office, he received 5,488 applications asking for commuted sentences. He granted them in 61 cases.

Mattis' role

The first chance a convicted Marine has at clemency lies with a decision from what the military calls the convening authority ---- the officer who decided that the case should head to trial in the first place.

Lt. Gen. James Mattis, who commands all Marine Corps forces in the Middle East, is the convening authority for the men accused in the Hamdania and Haditha cases.

It was Mattis who approved the five plea deals in the Hamdania case, and by doing so has already agreed on the sentences the men should serve. But after the deal is complete and the guilty plea entered, the convicted men get another chance to ask Mattis for leniency.

Carlsbad attorney David Brahms, a former Marine general representing Lance Cpl. Rob Pennington in the Hamdania case, said it makes sense for Mattis to be the first to consider a sentence reduction.

"This general knows this case, he has insight, he's been living with this case since last April," Brahms said last week. "You can make arguments (about the case), and he will understand. He may not agree, but he has insight."

Pennington pleaded guilty in February to kidnapping and conspiracy to kidnap and kill Hashim Ibrahim Awad. The eight-year sentence he received is the longest handed down in the Hamdania case. Pennington also received a dishonorable discharge.

His case is among those headed to Mattis for a formal review.

The appeal route

After Mattis makes his decision on whether to lighten punishment, the case moves through the appellate process.

In an appeal, a panel of three military judges with the Navy/Marine Corps Court of Criminal Appeals reviews the case, taking into account the entire record of the trial.

They can also ask attorneys to comment on the case, but the court primarily relies on a review of the official record.

The appeals process, which includes a hunt for legal errors in the case, could lead to a reduction in the sentence.

The higher courts in the military process each have the power to reduce the sentence. The judges also can restore any pay forfeiture or lessen any reduction in rank levied as a punishment.

Eugene Fidell, who teaches at American University's Washington College of Law and specializes in military law, said last week that a defendant can ask the appeals courts to reduce the sentence by simply contending it was excessive.

Among the better-known cases of a sentence reduction granted by the convening authority is that of U.S. Army Lt. William Calley, who was convicted by a jury and sentenced to life in prison for his role in the deaths of hundreds of civilians in the Vietnam War's My Lai massacre.

The convening authority in Calley's case reduced his sentence to 20 years.

Calley then saw his sentence further reduced until it was finally commuted to time served by President Richard Nixon. Calley was paroled after serving 3 1/2 years.

Gary Solis, a former Marine Corps attorney who now teaches military law at Georgetown University and penned the Marine Corps' official history of military justice in the Vietnam War, said Marines convicted of war crimes in Vietnam wound up serving far less time than they were originally sentenced.

Of the 27 Marines convicted of unlawfully killing Vietnamese civilians during the course of the war, 15 received life sentences. Three others got sentences of more than 20 years, and two were sentenced to 10 years in prison.

But the longest sentence served was 12 years and one month, by Marine Pfc. John Potter, according to Solis' research.

Potter was sentenced to life in prison for five counts of murder, rape and attempted rape. The Criminal Court of Appeals approved Potter's life sentence, and the Court of Appeals for the Armed Forces denied Potter's request that they review his case. But the Naval Clemency and Parole Board cut the sentence.

Sgt. Ronald Vogel, who was a co-defendant with Potter, was sentenced to 50 years. The court of appeals cut it to 35 years, Solis said, and later the punishment was further reduced to 10 years.

Finally, the clemency board cut Vogel's sentence to eight years ---- which meant that Vogel would be freed because he'd already served nine years.

Clemency 'a gift'

While the appeals process seeks out legal errors in the cases, the clemency and parole board can look at any factors it deems appropriate.

The mission of the Naval Clemency and Parole Board ---- which reviews cases for prisoners in the Navy, Marine Corps and Coast Guard ---- is to deny, grant or recommend clemency or parole.

The board cannot change the underlying conviction. In some cases, including those of high media or congressional interest, the board makes a recommendation to the secretary of the Navy, who makes the final decision.

"Clemency is a gift," Solis said during a telephone interview last week. "It is a matter of grace, as it were. Nobody has to give you clemency, including the clemency and parole board."

Solis said "you never know" what factors the board will take into account.

"They can consider your birth sign if they want to," he said.

Northern Virginia-based attorney Phil Cave served on the clemency board in the 1990s and now he sometimes defends clients in front of the board.

Cave said that about 5 percent of the defendants whose cases he reviewed as a board member were granted some form of clemency.

"It might be reducing (a sentence of) two years down to 18 months," Cave said. "Typically, it's rewarding people who went above and beyond. Essentially, it's looking for a person who recognizes they have done something wrong and is trying to correct it."

Cave, a former Navy attorney who retired as a commander, said that the "real issue" for most of the cases that come before the board is not clemency, but parole. In deciding parole, the board looks at "salient factors," he said, including the inmate's behavior while in custody and any pursuit of education or self-improvement while behind bars.

And a big factor, Cave said, is the inmate's admitting responsibility for the crime that resulted in their incarceration.

-- Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.

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