Saturday, April 04, 2009

Military judge reportedly asks DOJ to prosecute Nazario for refusing to testify at Sgt Weemer's trial

This North County Times article providing a recap of the first week of Sgt Weemer's court-martial for allegedly murdering an unarmed detainee in Fallujah includes the following particularly interesting information:

[T]he military judge presiding over the case, Lt. Col. Thomas Sanzi, announced he was asking the Justice Department to prosecute Weemer's squad leader at Fallujah for refusing to testify.

Former Sgt. Jose L. Nazario Jr. repeatedly declined to answer a prosecutor's questions when called to the stand Thursday. Nazario, who was Weemer's superior in Fallujah, was tried and acquitted last year for his role in the incident.
That trial of Nazario was in U.S. district court.


Cloudesley Shovell said...

A 10 USC 847 prosecution should be interesting. As far as I can tell, the last such prosecution was against a witness subpoenaed in the Capt Medina My Lai trial. Widmer v. Stokes, 464 F2d 592 (5th Cir. 1972). That opinion addressed an interlocutory issue, so I don't know ultimately how the case turned out. The fact that Capt Medina had been aquitted did not (correctly) appear to be an impediment to a prosecution under Article 47.

If Nazario was acting upon advice of counsel, he may have a defense. Likewise if there were no offer of immunity. US v. Praeger, 149 F. 474 (D. Texas 1907); US v. Shibley, 112 F.Supp. 734 (D. Cal. 1953).

Also, judging from the language of Art. 47, the military judge doesn't really request the US attorney to prosecute; rather the US attorney is obligated to prosecute upon certification of facts from the military judge.

(Finally, one cannot help but wonder, what if a defense witness failed to honor a subpoena or refused to testify? Do you think the MJ or gov't would be too concerned about pursuing an Art. 47 action? That's assuming, of course, that the defense made it over all the relevance and necessity hurdles that only the defense has to clear.)

Anonymous said...

Admiral - if there's an immunity issue, that too would have had to come from the DoJ - so if the Trial Counsel didn't jump through those hoops first, it's unlikely that DoJ would then attempt to prosecute.

But, I agree, if it was a defense witness - good luck trying to get immunity, etc.

Phil Cave said...

Today is the day of cynicism. And I join the crowd. If this had been a defense witness I'm not even sure they'd have cleared the hoops to get him into the court and into the position where he would be refusing to testify.
Think about it. The prosecution doesn't have to know what the witness will say, but they can issue a subpoena. However, the defense does have to know what the witness would say before they can issue a subpoena. Because the defense has to tell the prosecution what they case is about, what the witness will say, and how it will affect the case.

Dwight Sullivan said...

Sir Cloudesley,

This report says that Mr. Nazario was given immunity by both the Marine Corps and DOJ.

Phil Cave said...

Use or transactional?

Anonymous said...

+1 for Phil Cave.

Anonymous said...

Why can't the MJ just hold him in contempt and jail him for 30 days?

Anonymous said...

Anon at 8:52 --

Article 48 (Contempts) does not apply under this scenario.

Anonymous said...

UCMJ Art. 48, Contempt, is very limited. In this case it would only apply if the person used “any menacing word, sign, or gesture in its [MJ’s] presence, or who disturbs its proceedings by any riot or disorder.” It is unsettling at times, how often military-justice practitioners suggest contempt powers should be used by a MJ. A MJ has very little in the way of contempt powers. Refusing to testify would not give live to said powers.

Ama Goste said...

For more on military judges and their lack of authority to compel witnesses to testify or produce documents, recall the Lt/Captain Joseph Harding AF Academy rape/sexual assault case from a couple of years ago. Check out The Power to Compel: Is the Ability to Subpoena Evidence a
Toothless Right in Military Courts-Martial? The Potential Impact of United States v. Harding by Kathleen Duignan and David Sheldon from a 2006 volume of The Federal Lawyer.