War-crimes case against soldiers who served in Afghanistan has vulnerabilities

In hearings this fall, Army prosecutors, armed with sworn statements about plots to kill innocent civilians, have laid out their cases against soldiers accused of murder, conspiracy and other wrongdoing while serving in Afghanistan.

But the hearings inside an aging brick building at Joint Base Lewis-McChord also have brought out some vulnerabilities in the government's case.

One setback involves the case against Staff Sgt. Calvin Gibbs, a central figure who Army prosecutors allege conspired to plan and carry out the murder of three unarmed Afghan men.

Col. Thomas Malloy, an Army judge advocate who presided over Gibbs' November pretrial hearing, has recommended that one of the three murder charges be dropped because it could be difficult to prove the charge beyond a reasonable doubt, according to sources who have seen the document that contains that proposal.

Malloy's findings are under review by Lt. Gen. Curtis Scaparrotti, the base's Army commander. After consulting with his own legal adviser, Scaparrotti is expected to make the final decision on whether to drop one of the murders charges, or to press ahead with the prosecution of all three murder charges in addition to conspiracy and other charges.

Gibbs is one of five Joint Base Lewis-McChord soldiers accused of murder in high-stakes cases that have drawn international attention to how the U.S. military-justice system handles war crimes.

Gibbs has never admitted any wrongdoing. Prosecutors portray Gibbs as a squad leader who led his men down a dark path to kill unarmed civilians and then make the deaths appear like legitimate battlefield casualties.

In addition to the charges against Gibbs, prosecutors allege that Spc. Jeremy Morlock participated in three murders in January, February and May, and that Spc. Michael Wagnon, Spc. Adam Winfield and Pfc. Andrew Holmes each were involved in one of those murders. Seven other soldiers have been accused of lesser crimes, including Staff Sgt. Robert Stevens, who earlier this month reached a plea agreement that will compel him to testify against other soldiers.

In the pretrial hearings, some of the most compelling evidence against Gibbs is contained in videotaped statements by Morlock and Winfield that were submitted to the court for review.

Winfield told investigators that Gibbs formed a "kill team" of trusted soldiers who targeted noncombatants, and he described how Gibbs shot an unarmed Afghan man last May and placed a grenade next to the body to make it look like a battlefield action.

"He [the Afghan] was friendly. "He didn't seem to have any animosity toward us," Winfield said.

Morlock already faces a general court-martial for alleged involvement in all three murder cases. In his sworn statements, he alleges that Gibbs provided the grenade used to stage a January killing and also suggested the crime be carried out during a patrol through a village. Morlock also accused Gibbs of shooting an unarmed Afghan who died in February, and he detailed Gibbs' role in the alleged murder in May.

"Gibbs had pure hatred for all Afghanis [Afghans] and constantly referred to them as savages," said Morlock.

Malloy, who presided over Gibbs' pretrial hearing, said that the prosecution of the 26-year-old staff sergeant will depend heavily on testimony by Morlock and Winfeld.

But in his report to Army commanders, Malloy noted that Morlock and Winfield had a history of drug use, a relative lack of maturity, and culpability in some of the offenses, and all this "could affect how the fact-finders consider their testimony."

After reviewing the pretrial evidence, Malloy concluded there was enough evidence to proceed with charging Gibbs with the February and May murders and conspiracy charges for all three murders.

But Gibbs is not alleged to have fired any of the weapons that caused the death of the Afghan in the January killing. And Malloy recommended that the Army drop that murder charge against Gibbs, according to sources who saw his recommendation.

In the weeks ahead, Lt. Gen. Scaparrotti is expected to decide on whether to accept Malloy's proposal.

Scaparrotti also will face important decisions on how to proceed with other murder cases stemming from the war-crimes investigation.

Army prosecutors have charged Holmes, a 20-year-old soldier from Boise, Idaho, with joining Morlock and Gibbs in the January murder.

In a pretrial hearing in November, Holmes' attorney, Daniel Conway, disputed the murder charge. Conway said that photographs of the corpse indicate that the shots fired by his client with a powerful automatic machine gun never hit the man.

The photographs, in addition to providing forensic details, depict soldiers posing next to the corpses as if they had just bagged a deer. And citing the sensitivity of such images and the possibility they could stir up an anti-American backlash, the Army so far has declined to introduce them as evidence in any pretrial hearings.

Conway contested that decision in a motion filed with the Army Court of Appeals. And last month, that court issued an unusual temporary stay on the prosecution of Holmes while it considers whether the photos should be put into evidence.

The National Institute of Military Justice, a nonprofit affiliated with American University in Washington, D.C., filed a brief in support of Holmes' right to have the photos put into evidence, where they could be subject to cross-examination.

Army prosecutors, in their own brief filed with the Court of Appeals, have said that the pretrial hearing was not closed and did not violate Holmes' rights.

If Holmes' appeal is successful, it could increase pressure on prosecutors to strike a plea deal with Holmes rather than risk the photos being put into evidence and eventually made public.

"The government has problems in this case," Conway said. "I would say there are some gaping holes."

The Army also must decide on how to proceed with Winfield's case.

Winfield was an early whistle-blower who back in January had his parents contact the Army to warn them of platoon crimes but later admitted to firing his weapon in the direction of the third Afghan who died in May. And his attorney, Eric Montalvo, has sought — so far unsuccessfully — to reach a plea deal.

"I do not have an interest in putting Winfield through a trial. That is a stressful and costly endeavor for my client, and he does have some exposure. We have conceded that," Montalvo said.

The Army also must make a decision on whether to proceed with a general court-martial pressing murder charges against Wagnon.

Wagnon's attorney, Colby Vokey, said his client is innocent, and he is not seeking a plea deal.

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com