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Court-martial driven by fear, attorney says

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Posted: Friday, September 3, 2004 12:00 pm | Updated: 3:13 pm, Wed Aug 15, 2012.

By Debbie Stevenson

Killeen Daily Herald

An attorney for a 4th Infantry Division soldier at Fort Carson accused in the drowning death of an Iraqi detainee accused the military judicial proceedings of being driven by fear and said an investigating officer has recommended dropping involuntary manslaughter charges against his client.

"This court-martial appears more driven by fear of the negative press associated with the other Iraqi detainee/prisoner cases that continue to circulate thorugh the national media than military justice," stated Capt. Joshua A. Norris in a news release sent to selected news outlets.

Norris' client, Sgt. 1st Class Tracy Perkins, is one of four soldiers in the 4th Infantry's 3rd Brigade, facing criminal procedings in the alleged death of one of two Iraqi civilians forced to jump of a bridge spanning the Tigris River in Sammara on Jan. 3.

"After serving nine months in intense combat in one of the most dangerous areas in Iraq, SFC Tracy Perkins is now fighting for justice from the Army," Norris stated. "He has no medals for his service, and he will likely never receive any as a result of these allegations."

Perkins and two other enlisted soldiers went before the investigating officer in July under Article 32 of the Uniformed Code of Military Justice.

An Article 32 hearing, the military's equivalent of a grand jury, is scheduled Wednesday for the fourth soldier, 1st Lt. Jack M. Saville, after it was delayed at Saville's request.

Perkins, 33, Saville, 24, and Sgt. Reggie Martinez, 24, are charged with involuntary manslaughter and lesser charges in the death of 19-year-old Zaidoun Hassoun.

Prosecutors said they did not examine a body produced later by his family after the defense disputed the death occurred and soldiers claimed they saw two men get out of the river.

Saville also is charged with conspiracy, making false statements, assault and obstruction of justice. Spc. Terry Bowman, 21, is charged with assault in the pushing of a second Iraqi off the bridge. That man survived.

In his statement, Norris said Capt. Robert Ayers, an Army lawyer and the case investigating officer, had recommended dismissal of the manslaughter charges against his client.

However, Ayers recommended to Col. Brian Jones, the brigade commander at Fort Carson and convening authority for the hearings, that the lesser charges proceed to court-martial. Those include conspiracy, obstruction of justice, making false statements and assault charges

Lt. Col. Jonathan Withington, the 4th Infantry's public affairs officer at Fort Hood, confirmed Thursday that Jones has Ayers' recommendations and that they are not binding.

Withington said the brigade commander is reviewing his options, which can result in different actions on each of the cases and charges even before Saville's case is heard.

"Each of the cases and charges stand alone," Withington said.

Withington would not say if Jones has reached a decision.

"That would be speculation right now," he said.

Army regulations require a court-martial within 120 days of charges being filed.

Norris urged the dismissal of the lesser charges against his client.

"Those actions, while severe in their own regard, fall short of the potential effects of a court-martial," said Norris, noting that Perkins' three senior commanders had only received nonjudicial punishment in the case.

"Sergeant 1st Class Perkins, on the other hand, may face a court-martial where he could lose his career, his freedoms and his future," Norris stated. "Sergeant 1st Class Perkins, however, is hopeful his case will receive disposition short of court-martial similar to those of higher ranks involved in this case based on the facts and evidence rather than media, command and political pressures."

The 4th Infantry case, one of two at Fort Carson, has drawn considerable attention since charges were filed in June. The second involves the death of an Iraqi major general while in the custody of soldiers from the 3rd Armored Cavalry Regiment, a III Corps unit.

Testifying under immunity from prosecution during the 4th Infantry's July hearing, three officers in the soldiers' immediate chain of command admitted the soldiers were told to cover up the incident. However, the commanders insisted they do not believe anyone died.

Capt. Matthew Cunningham, the soldiers' company commander in Iraq, Maj. Robert Gwinner, the battalion executive officer, and Lt. Col. Nathan Sassaman, the battalion commander, received their punishments last spring under the military justice system's Article 15, which avoids court proceedings, after an administrative review of their role in the coverup that followed the incident. U.S. Rep. Joel Hefley, R-Colo., has asked for congressional hearings into why their cases were handled differently.

Their immunized testimony added to the twists in the case, exposing a brigade command apparently fraught with personality conflicts while in Iraq.

In his testimony, Gwinner was quoted by the Associated Press as saying the incident was the result of a clash between Sassaman and then-brigade commander, Col. Frederic Rudesheim.

The Associated Press reported that Gwinner said the brigade commander was jealous of Sassaman, a former start quarterback at West Point, because Sassaman was very aggressive and getting a lot of television coverage.

In the Associated Press account, Sassaman was critical of the criminal intelligence division's investigation.

"They were much more interested in going after Captain Cunningham, Major Gwinner and myself than they were in investigating a body," he testified.

During the hearing, the soldiers' defense counsel also sharply critized the investigators.

Norris commented that unfriendly Iraqis have been known to fake the death of Iraqis "to bring the soldiers down."

"The investigating officers also noted in his report that a local sheikh associated with the alleged victim's family had faked his own death and funeral only weeks prior to the alleged death in theis case," Norris said in his e-mail to the Herald. "Ultimately, the government could not establish that anyone in fact died on the night of the incident, thereby negating the manslaughter charge."

Defense-called experts also offered suggestions that the soldiers' aggressive behavior toward the Iraqis had been brought on anti-malaria drugs taken weekly by the troops.

Withington said Thursday that he believes Ayers' recommendations were based on a "thorough and fair" investigation.

"He was able to take his time and be able to be thorough and fair," Withington said. "He did the investigation thoroughly ... looking at all aspects of the case and the evidence presented to him by the defense and the government."

Withington disputed media reports that Maj. Gen. James Thurman has, or will get the case.

"The case still resides with the brigade commander. He still has all his options," Withington said. "I don't anticipate it leaving his jurisdiction."

Contact Debbie Stevenson at deborah@kdhnews.com

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