Puckett & Faraj

Representative Dan Burton (R-IN-05) received a December 15, 2009 reply from Major General Cleveland, indicating he will continue with the Navy SEALs special courts-martial.  Rep. Burton’s January 4, 2010 reply letter strongly urges the General to reconsider.

General Cites Enforcement of Lawful Orders

The General reportedly cited the incomplete and misrepresentation of facts by the media, the need to enforce lawful orders no matter how small the infraction, and the refocus on the case on allegations of attempted cover ups and influence of a witness.

Rep. Burton Urges Non-Punitive Means

Rep. Burton’s second letter to the command acknowledges the need for discipline but restates that the punishment far exceeds the crime.  The Congressman additionally cites concern over the culture of the military where members are more concerned about protecting themselves from prosecution than fighting the enemy; the perception of America by terrorists as too weak to do what is necessary; and the damage caused to America’s morale if these courts-martial proceed.

Navy SEAL Prosecution at What Cost?

Military members have the responsibilities to act on the battlefield within political and military policies and rules of engagement and in accordance with their training and the unit mission standing operating procedures (SOPs).  In this case, the Navy SEALs are being prosecuted at a level deemed a federal crime rather than through administrative means that would leave the military morale and their continued service to the country in place.

Press Release:  The government requested Major General Cleveland order a deposition of the mass murderer accusing the three Navy SEALs of abuse.   This deposition would take place in Iraq in lieu of the insurgent’s presence in a courtroom at the Norfolk Naval Base, VA.  The deposition would be in the detention center and requires travel to Iraq; adding to the government expense of the courts-martial of the three Navy SEALs, as well as to the cost of private legal expenses for all three SEALs who have hired civilian attorneys to represent them.

Demonstration of Efforts to Produce the Accuser

The government appears not to have attempted to coordinate the insurgent’s travel to the United States to testify in the three courts-martial of these SEALs.  They are assuming it would be too difficult, requiring Department of State intervention and permission from the Iraq government to assure the detainee’s custody during travel to the United States for the courts-martial.  Instead, the government is requesting a deposition, and is doing so without first demonstrating all attempts to have the accuser in court have failed.

Deposition in Iraq

A military judge can admit into evidence a deposition of someone who cannot attend a court-martial only if all other remedies to get that individual to the courtroom failed.  If Major General Cleveland approves the request, the government will travel to Iraq to ask the insurgent questions.  While military attorneys can attend, the accused Navy SEALs have the option of attending, and the civilian defense attorneys would be invited as well.  But the government will not pay for their travel or accommodations for the law firms representing SEALs.

A Fair Trial

A deposition where both the government and the defense have an opportunity to question the detainee on the record may be admitted in a military court.  However, it denies the Navy SEALs the their full Constitutional right to confrontation of their accuser during military judicial proceedings in the courtroom.  A court-martial allows the members, known in the civilian courts as a jury, the opportunity to ask questions of the detainee.  But if a deposition is presented to the military jury, they will have no opportunity to ask questions.  If the government does not bring the insurgent into court, the defense will be hampered in their pursuit of justice for the Navy SEALs.

Some Discovery Still Withheld

SO2 McCabe’s defense team has recently received a portion of the discovery (“evidence”) against him.  Other parts of it remain classified and are being withheld until the Navy approves the clearance of the civilian attorneys.  In the meantime, full preparation for the defense of SO2 McCabe cannot occur until all evidence is available and the disposition of the insurgent’s presence at the court-martial is resolved.

Press Release – SO2 McCabe, the main accused in the Navy SEALs detainee abuse case, has formally notified the government of his intent to plead “Not Guilty” to all charges and is requesting a trial by a panel of military members, including enlisted members, commonly known as a jury.

Arraignment without Evidence

On December 7, 2009, SO2 McCabe’s civilian military attorney, Neal A. Puckett, reserved the entry of pleas and selection of forum until a later date, as is customary at military arraignments.  Unusual about this case was the fact that as of the date of the arraignment, the defense had not yet been provided with the evidence against Petty Officer McCabe.  Mr. Puckett was told that the evidence was undergoing a security review before being released to the three Navy SEALs charged in this case.

Notice of Plea

The formal notice of pleas and selection of a jury trial were submitted to meet a court-ordered deadline of Friday, December 11, 2009, even though prosecutors have not yet provided the evidence to the Law Firm of Puckett and Faraj.

Court-Martial Schedule

The courts-martial of the three Navy SEALs are set to begin sometime in January, 2010.  SO2 McCabe and his defense team are preparing for his court-martial, currently scheduled to begin on January 19, 2010.  Navy JAGs LT Kevin Shea and LT Kristen Anastos have been detailed as Petty Officer McCabe’s military defense counsel and are working diligently to prepare for trial.

Three Navy SEALs face court-martial in the alleged stomach punch of an Iraqi detainee earlier this year.  Two of the SEALs, SO2 McCabe and SO1 Huertas were arraigned in a military court on Monday, December 7, 2009.  The other SEAL, SO2 Keefe, will be arraigned later.  All are facing court-martial early next year.  A second Defense Fund has been established by an independent organization.

DISCLAIMER: THE FOLLOWING INFORMATION IS PROVIDED WITHOUT ENDORSEMENT.  THE LAW FIRM OF PUCKETT & FARAJ, PC DOES NOT CONTROL OR HAVE ANY PROFESSIONAL OR FINANCIAL AFFILIATION WITH ANY LEGAL DEFENSE FUND.  LEGAL DEFENSE FUNDS OPERATE INDEPENDENTLY FROM THE LAW FIRM AND THE PARTNERS.  PARTICIPANTS ARE ENCOURAGED TO EXERCISE DUE DILIGENCE WHEN CHOOSING TO CONTRIBUTE TO A DEFENSE FUND.

The Law Firm of Puckett & Faraj, PC has been informed of a non-profit Defense Fund identified as the “Navy SEALs Fund.”   Maritime Tactical Security, Inc., a company of former SEALs, has set up a non-profit defense fund to minimize the financial burden for the three Navy SEALs charged in detainee abuse.  Any funds remaining at the conclusion of the case will be donated to SEALs who have been injured and/or permanently disabled as a result of action in Iraq and Afghanistan.

The “Navy SEALs Fund” was established by Maritime Tactical Security in conjunction with Chase Manhattan Bank.  Donations can be made at any Chase Manhattan Bank by providing the account name “Navy SEALs Fund” and the account number 834325318.  You may go on line and donate via PayPal at the Maritime Tactical Security website: http://www.maritimetacticalsecurity.com/MtsNews.aspx.

Press Release:  SO2 McCabe was arraigned in a military court room at Norfolk Naval Station Monday, December 7, 2009, Pearl Harbor Day.  His attorney, Neal A. Puckett, Esq., reserved pleas, forum selection and motions until a later date as SO2 McCabe chose not to enter a plea or chose whether to have judge alone or members (jury) nor did his defense team present any motions.

UCMJ Charges

The military has charged SO2 McCabe under the Uniform Code of Military Justice (UCMJ) with Article 128 Assault, Article 92 Dereliction of Duty and Article 107 False Official Statement.   Under the UCMJ, the government is required to provide evidence to the defense prior to an arraignment.  To date, there has been no evidence turned over to the defense that would tend to prove that SO2 McCabe committed any of the charged crimes.  The court-martial is currently scheduled to begin on January 19, 2010.

Three US Navy SEALs, SO2 Matthew McCabe, SO2 Jonathan Keefe and SO1 Julio Huertas have been charged with detainee abuse.  A separate Law Firm represents each one.  The Law Firm of Puckett & Faraj, PC represent SO2 McCabe.  Defense funds are being established to support all of the SEALs.  Here is the first one available for contributions.

DISCLAIMER: THE FOLLOWING INFORMATION IS PROVIDED WITHOUT ENDORSEMENT.  THE LAW FIRM OF PUCKETT & FARAJ, PC DOES NOT CONTROL OR HAVE ANY PROFESSIONAL OR FINANCIAL AFFILIATION WITH ANY LEGAL DEFENSE FUND.  LEGAL DEFENSE FUNDS OPERATE INDEPENDENTLY FROM THE LAW FIRM AND THE PARTNERS.  PARTICIPANTS ARE ENCOURAGED TO EXERCISE DUE DILIGENCE WHEN CHOOSING TO CONTRIBUTE TO A DEFENSE FUND.

U.S. NAVY SEAL/WARRIOR DEFENSE FUND: The U.S. Navy SEAL/Warrior Defense Fund is soliciting contributions to assist in defraying the legal costs and fees of the 3 Navy SEALs charged with assault of the mastermind of the 2004 torture, murder and mutilation of the US security guards in Fallujah.

Contributions can be sent to: “U.S. Navy SEAL/Warrior Legal Defense Fund”; Acct # 435020290711 c/o Bank of America P.O. Box F, Fort Eustis, VA 23604

Donations can be made at any Bank of America simply by depositing funds using the Fund name (U.S. Navy SEAL/Warrior Legal Defense Fund) and providing the Account Number (#435020290711).

Donations can also be made online via PayPal at the following site: http://sites.google.com/site/usnavyseallegaldefensefund/

PLEASE NOTE: the fund is NOT a 501(c)(3) tax exempt organization under the Internal Revenue Service and therefore contributions are NOT tax-deductible.

This Fund has been created, by a military family, to assist in the defense of Navy SEALs and other military operators charged with combat-related infractions of the Uniform Code of Military Justice.  For more information, please contact:  navysealdefense@gmail.com.

Press Release:  The three Navy SEALs charged with hitting a detainee, a detainee who allegedly is responsible for the deaths and mutilation of four Blackwater Contractors in Fallujah in 2004, begin their courts-martial process next week.  On December 7, 2009, the military will hold an initial hearing, an arraignment of SO2 Matthew McCabe.  SO2 McCabe is charged with hitting a detainee.  Each of the three SEALs is represented by a different law firm.  The names of the accused SEALs and the firms representing them are below:

SO2 McCabe is represented by the Law Firm of Puckett & Faraj, PC.   Mr. Puckett can be reached through his website (www.puckettfaraj.com/contact-us), Email at neal@puckettfaraj.com and via phone 888-970-0005.

SO2 Keefe is represented by the Law Firm of Greg D. McCormack, PC.  Mr. McCormack can be reached through his website (www.militarylawyers.org), Email at inquiry@mccormackpc.com or via phone 757-463-7224.

SO1 Huertas is represented by Monica L. Lombardi, LLC.  Ms. Lombardi can be reached through her website (www.militarytrial.com), Email at mlombardi@militarytrial.com or via phone 757-309-4764 (toll free 888-826-5529).

Major Hasan’s civilian defense attorney has indicated he may raise the insanity defense for the shootings of 13 military and civilian members of the Fort Hood community on 5 Nov 09. But he also indicates it is too early in the process to determine a defense strategy.

CID Investigation

The US Army Criminal Investigation Command (CID) has not completed its investigation of the Hasan case. It may take several months to complete a thorough investigation. The current charges, levied days after the event, are not the final charges in the case. Since there were also dozens others wounded, charges of attempted murder are likely.

Preliminary Charge Sheet

While preliminary in nature, the substantial evidence pointing to Hasan as the shooter was justified as a basis for murder charges. CID recommended an initial charge sheet of 13 counts of murder. The commander reviewed the CID recommendations and with the Staff Judge Advocate’s (command legal advisor) advice, determined the specific UCMJ offenses to charge. The preliminary evidence also allowed the commander to determine the probability of flight risk and safety requirements for Fort Hood, to then order Major Hasan be placed in pre-trial confinement pending trial as well as further investigation of additional charges.

Defense Strategy Development

Major Hasan has been appointed military criminal defense attorneys along with the family’s retained civilian defense attorney. All attorneys expect additional charges based on a full and complete CID investigation. No criminal defense attorney develops a defense strategy until all the evidence is collected and reviewed. Additionally, Major Hasan cannot fully participate in his defense until he has recovered from his wounds.

Administrative Hearing

The recent hearing on 21 Nov, in his hospital room was an Initial Review Officer (magistrate) hearing to determine the legality of continued pre-trial confinement. Further, the prosecutors’ ability to provide answers to military defense attorneys depends on the progress of the CID investigation revealing additional evidence in the case. But one major advantage the defense attorneys in a military court-martial have is practically immediate access to all evidence in the case as soon as possible after it is reported to prosecutors. In federal and state courts sometimes information not intended for use at trial is withheld from defense attorneys.

Major Hasan has been ordered to pre-trial confinement by his commanding officer. While recovering from his wounds, that pre-trial confinement is in the hospital under guard. Pre-Trial confinement is ordered by the commander for persons with reasonable belief that they committed an offense triable by court-martial has been committed, that the individual to be confined committed the offense and confinement is required by the circumstances.

Reasons for Pre-Trial Confinement

Pretrial confinement is authorized where the command has reason to believe the member might go absent without leave (AWOL) to avoid prosecution or the member may engage in continued serious criminal misconduct and less severe forms of restraint are inadequate. Less severe forms of restraint include restriction to base or limitations on duty and liberty, which are given to the member as a direct order. In some cases, his or her safety from others may be a consideration.

Major Hasan’s Pre-Trial Confinement

Pre-trial confinement to prevent further serious misconduct could include intimidating witnesses or obstruction of justice, serious injury to others or other offenses which pose a serious threat to the safety of the community, or to the effectiveness, morale, discipline, or readiness of the command or the national security of the United States. In the case of Major Hasan, even though he is paralyzed from the chest down, he could incite others to intimidate witnesses or find a means to continue his alleged past demonstrated and possible future intent of causing harm to others.

Rights under Pre-Trial Confinement

His pre-trial confinement does not limit his Constitutionally protected legal rights, including his ability to communicate with his attorneys and receive mail and visitations by family as per military confinement procedures. His rights and privileges are only limited as to his freedom of movement and association and reasonable restrictions on what he can receive through the mail. Upon his sufficient recovery to be released from the hospital he will be transferred to a military confinement facility (or brig) until his Article 32 hearing.

The Hasan family has hired a civilian attorney to defend Major Hasan. The attorney spoke with the Major this week and has requested no law enforcement interviews with his client. The military justice system allows for a suspect to remain silent when Criminal Investigation Division (CID) requests an interview.

Statements to CID

When a suspect refuses to interview with military criminal investigative services, the military criminal defense attorney can focus on challenging the evidence rather than refuting statements made without an attorney present. While statements can either be coerced, partially factual, truthful or various perceptions of reality, finding the ground truth is the task of both the prosecution and the defense.

Statements Under Duress

Any statements made by a suspect must also be without coercion and voluntary. The state of the individual, under the influence of alcohol, drugs, medications or mental afflictions, can taint the statements and make them involuntary and inadmissible in a military court. Major Hasan, when charged, must be treated for his wounds and recover sufficiently to participate in his defense.

Speedy Trial

The 120-day clock for a speedy trial begins after a military member is served a charge sheet or placed in confinement. The speedy trial count down of 120-days can be delayed by either the prosecution or defense. Either the prosecution or defense presents a motion to a military judge who can deny, approve, or revise the request. The reasons for delay include but are not limited to, recovery from medical issues, mental health evaluations, and the interview of witnesses or collection of evidence.

Rights Under the UCMJ

Major Hasan’s lawyer must protect the rights of his client as provided by the 5th Amendment to the Constitution. When a military member hires a civilian attorney or is provided an appointed military defense counsel, he or she has the same protections under the Uniform Code of Military Justice, as anyone facing criminal prosecution in the U.S.