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Judge Denies Hearing in Prison Abuse Case

Posted on: Monday, 21 June 2004, 06:00 CDT

BAGHDAD, Iraq - A lawyer for one of three soldiers accused in the Abu Ghraib prison scandal asked a military judge Monday to order a new hearing into charges against his client because the turmoil of Iraq prevented him from being able to question witnesses. The judge denied the request.

Capt. Scott Dunn, lawyer for Sgt. Javal S. Davis, made the request as pretrial hearings opened Monday in the heavily fortified Green Zone for three of the seven soldiers charged in the abuse scandal, which tarnished the image of the American-led mission in Iraq.

Military judge Col. James Pohl appeared skeptical over the defense motion, asking repeatedly what evidence and witnesses were not considered in the original Article 32 hearing, the military equivalent of a grand jury proceeding. Pohl then dismissed the motion.

Pohl was also hearing motions in the cases against two other defendants - Spc. Charles A. Graner Jr. and Staff Sgt. Ivan L. "Chip" Frederick II.

On May 19, Spc. Jeremy C. Sivits became the first soldier convicted and sentenced in the scandal. Sivits pleaded guilty and received the maximum penalty of one year in prison, forfeiture of pay, reduction in rank to private and a bad conduct discharge.

The three defendants who appeared in court Monday face more serious charges and could receive long prison terms.

As the session began, Dunn argued that Davis' rights were violated in the first Article 32 hearing, which recommended criminal charges be filed, because the Army did not make one witness, a prisoner at Abu Ghraib, available during the first proceeding.

"The defense understands the operational circumstances and violence taking place in Iraq," he said. "That's not an excuse for the complete lack of effort on the government and investigators' part to secure meaningful testimony."

Dunn said his client had a right to confront his accusers.

"We couldn't go to him. They wouldn't bring him to us. They said it was impossible to obtain any telephone testimony. We object to not obtaining his testimony at all," Dunn said.

Pohl, the judge, asked what witnesses were unavailable and what evidence was not considered. Dunn replied "we're dealing with an aggregation of things," including the inability to interview witnesses and not receiving a copy of a report on the scandal by Army Maj. Gen. Antonio Taguba.

The Army has argued that a sharp rise in violence around the Abu Ghraib prison in April, including the siege of nearby Fallujah, made the area around the detention center too dangerous. One witness said convoys to and from the prison were sent out on an emergency basis only and they required the permission of a colonel or general to meet the defense request.

Paul Bergrin, a civilian lawyer for Davis, said last week in the United States that he would argue for a dismissal of charges because of "improper command influence" extending all the way to President Bush.

Bergrin alleged that senior U.S. military officers sanctioned harsh treatment of detainees at Abu Ghraib prison and said he would seek evidence that Davis was simply following orders.

Frederick's civilian lawyer, Gary Myers, has said he will ask the judge for an investigator to assist in his client's defense. Myers also said he would request a new Article 32 hearing because his client was not allowed to gather evidence or interrogate witnesses at his first session.

The seven soldiers charged in the case were from the 372nd Military Police Company, an Army Reserve unit from Cresaptown, Maryland. The abuse scandal broke in April when CBS' "60 Minutes II" aired photographs of hooded and naked prisoners. Since then other photographs showing sexual humiliation have surfaced in a scandal that has sparked massive international criticism and undercut the moral authority of the U.S.-led mission in Iraq.

A hearing for another soldier charged in the scandal, Pfc. Lynndie England, 21, will be held separately on Tuesday at Fort Bragg, North Carolina, where she is now stationed.

The military has not decided whether to refer the cases against two others - Spc. Sabrina Harman and Pfc. Megan Ambuhl - to courts martial.

Coalition officials said the judge wanted to complete all three hearings Monday but that the proceedings could last for three days.

Graner, Frederick and Davis waived their rights to have charges read aloud and their pleas were deferred when they last appeared in court May 19.

Graner, of Uniontown, Pa., has been accused of jumping on several detainees as they were piled on the floor. He is also charged with stomping the hands and bare feet of several prisoners and punching one inmate in the temple so hard that he lost consciousness.

He also faces adultery charges for having sex with England last October. He could receive 24 1/2 years in jail, forfeiture of pay, reduction in rank, and a dishonorable discharge.

Frederick, of Buckingham, Va., is accused of forcing prisoners to masturbate, placing naked detainees into a human pyramid and placing wires on a detainee's hands, telling him he would be electrocuted if he fell off a box on which he was forced to stand.

He faces a maximum punishment of 16 and a half years in confinement, forfeiture of pay, reduction of rank, and a dishonorable discharge.

Davis, of Maryland, is accused of maltreating prisoners, stomping on their hands and feet and putting detainees in a pile on the floor to be assaulted by other soldiers. He faces maximum of eight and a half years in jail, forfeiture of pay, reduction in rank and a dishonorable discharge.

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