Judge: Soldier can show he reported Afghan plot

Posted: Monday, March 21, 2011

SEATTLE — A military judge has ruled that a U.S. soldier charged in a conspiracy to murder Afghan civilians for sport can present evidence at his court martial that he tried to blow the whistle on the plot.

Army prosecutors at Joint Base Lewis-McChord south of Seattle sought to bar evidence that Spc. Adam Winfield of Cape Coral, Fla., sent Facebook messages home early last year saying that members of his unit had murdered one civilian, planned to kill more and were urging him to “get one” of his own. He said they threatened him to keep quiet about the plot.

Winfield’s father reported his son’s allegations to the base, but no action was taken, and two more civilians were killed. The alleged murder plot was not discovered by Army investigators until months later.

Winfield is one of five soldiers charged in the murder plot; he gave a videotaped statement saying he took part in the final killing because he was afraid other soldiers might kill him if he didn’t. Army prosecutors argued to the judge, Lt. Col. Kwasi Hawks, that Winfield’s messages home in February had nothing to do with his state of mind at the time of the third killing in May. The prosecutors argued that statements Winfield made to his parents saying he was afraid of his colleagues and that he resigned his team-leader position in protest of the alleged murder plot were likewise irrelevant.

Hawks disagreed in a set of pretrial rulings emailed to prosecutors and defense attorneys Friday night. The statements pertained to Winfield’s state of mind, he said, and tend “to make the fact of a conspiratorial agreement less likely.”

“That the alleged conspiracy may have been formed before or after the accused’s dialogue with his parents goes to the weight of the evidence, not its relevance,” the judge said.

Winfield’s lawyer, Eric Montalvo, welcomed the ruling.

“He clearly made this ‘911 call.’ It’s been verified,” Montalvo said. “He’s not complicit in this kill team effort.”

However, the judge sided with prosecutors on another key issue — whether to suppress Winfield’s videotaped statement as coerced.

When first questioned by investigators, Winfield spent three hours denying that any of the killings had been staged. The investigators believed he was refusing to talk because he was afraid of what the alleged ringleader, Staff Sgt. Calvin Gibbs of Billings, Mont., might do to him if he talked.

During a restroom break near the tent where Gibbs was being held, Special Agent Anderson Wagner placed his arm around Winfield and said words to the effect of, “If you’re not scared of him, let’s go see Staff Sgt. Gibbs and I’ll tell him how you’ve been helping us.”

“He froze immediately,” Wagner testified during a hearing March 7. “He said, ‘No, he’ll kill me.’”

They went back into the interrogation room and Winfield gave a detailed statement, saying he and Cpl. Jeremy Morlock, of Wasilla, fired on an unarmed man after Gibbs tossed a grenade at him. Winfield said he wished he had been strong enough to do the right thing by going to investigators, but that he was scared, and during the final killing he “took a man from his family.” Montalvo maintains that Winfield deliberately shot high, but Winfield did not mention that in the interview.

Montalvo argued that the statement was made under fear of death and clearly coerced, and therefore should be suppressed at trial. Hawks disagreed.

“It is ultimately unreasonable for Special Agent Wagner’s comment to be construed as an offer to harm the accused,” he wrote. “A more reasonable construction was advanced by Special Agent Wagner, that the accused who denied his fear was more forthcoming with the truth when confronted with the truth of his fear.”

Montalvo said he might appeal that decision.

“Anybody who heard the testimony in the courtroom about the threat of being left alone with Gibbs, I don’t see how you can say that didn’t create a coercion,” Montalvo said.

Gibbs maintains that all of the killings were justified. However, Morlock has given extensive statements describing how they were staged.

Morlock’s court martial is set for Wednesday. According to a copy of his plea agreement obtained by The Associated Press, he is pleading guilty to premeditated murder and other charges in exchange for a sentence of no more than 24 years. He would serve eight years at most before becoming eligible for parole and agree to testify against his co-defendants.

In his rulings Friday, Hawks also granted defense requests to hire a ballistics expert and a forensic psychiatrist, and said that if Morlock testifies against Winfield, Winfield’s lawyers could question him about his plea deal in an attempt to discredit his testimony.

It isn’t clear when Winfield’s court martial might occur; Montalvo plans to travel to Afghanistan next month to gather evidence in the case.

In his email Friday, Hawks revealed that he has been removed from Winfield’s case. Col. David H. Robertson appointed himself as trial judge. No explanation was given, and it was not immediately clear Sunday whether Hawks had also been removed from any other cases over which he has presided.



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