Seraphim
01-08-2004, 08:58 PM
Thursday, January 08, 2004
A U.S. pilot facing a court martial in the deaths of four Canadian soldiers in Afghanistan is appealing a military ruling his lawyer says will prevent him from receiving a fair trial.
Attorney Charles Gittins filed papers in the U.S. Air Force Court of Criminal Appeals on Thursday, arguing that the U.S. military is denying him and his client fair access to classified documents.
Gittins claims he is unable to obtain certain materials pertaining to the case involving Maj. Harry Schmidt because he is a civilian, not a military lawyer, and does not have the required security clearance.
He argued in a petition and supporting briefs that he should be granted clearance at the "secret level" so he can better prepare for an upcoming court martial, where Schmidt faces a charge of dereliction of duty after the accidental bombing in April 2002 that killed four and injured eight Canadians.
"It's made it impossible for me to speak to my client about matters that are necessary for us to discuss in order to represent him adequately," Gittins said from his office in Middletown, Va.
Gittins said he now has to inform prosecutors of any classified documents he wants to review and sensitive issues he wants to discuss with his client. Schmidt must also not reveal certain classified information to his lawyer without receiving permission.
Gittins argued before a U.S. military judge last July 30 that he should receive the special clearance. But Col. Mary Boone, who will preside over the court martial, denied the request last December and claimed that civilian counsel was not entitled to the special designation.
The lawyer contends in his appeal that Boone erred in law by not applying the proper Department of Defence regulation to the case.
"The infringement of the right to counsel . . . effectively strips an accused of his right to a fair trial," the 15-page petition states.
"The petitioner faces the prospect of a trial without realizing his Sixth Amendment right to effective assistance of counsel and the potential of a miscarriage of justice."
Capt. Denise Kerr, a U.S. air force spokeswoman, said she could not comment because she had not seen the appeal.
Gittins has also asked for a stay in any proceedings leading the court martial until the Appeal Court rules on the matter. That could delay a preliminary hearing scheduled for Jan. 26 to introduce motions and possibly set a date for the court martial.
The latest development comes after an earlier military proceeding following the accidental bombing that killed Sgt. Marc Leger, Pte. Richard Green, Cpl. Ainsworth Dyer and Pte. Nathan Smith, making them the first Canadians to die in combat since the Korean War.
Schmidt said he believed he and his flight lead, Maj. William Umbach, were coming under enemy fire as they passed over the Canadians who were conducting live-fire training exercises well below their F-16 fighter jets.
A military investigation of the bombing faulted Schmidt for ignoring orders to hold fire, saying he should have flown out of the area instead of attacking.
The commander of the Eighth Air Force later found that the more serious charges against Schmidt and Umbach should be dismissed, but that Schmidt should face the lesser dereliction charge.
Schmidt, who deployed the 225-kilogram bomb, opted to dare the military to face him in a court martial so that he might clear his name.
If convicted, Schmidt could face six months in jail.
A U.S. pilot facing a court martial in the deaths of four Canadian soldiers in Afghanistan is appealing a military ruling his lawyer says will prevent him from receiving a fair trial.
Attorney Charles Gittins filed papers in the U.S. Air Force Court of Criminal Appeals on Thursday, arguing that the U.S. military is denying him and his client fair access to classified documents.
Gittins claims he is unable to obtain certain materials pertaining to the case involving Maj. Harry Schmidt because he is a civilian, not a military lawyer, and does not have the required security clearance.
He argued in a petition and supporting briefs that he should be granted clearance at the "secret level" so he can better prepare for an upcoming court martial, where Schmidt faces a charge of dereliction of duty after the accidental bombing in April 2002 that killed four and injured eight Canadians.
"It's made it impossible for me to speak to my client about matters that are necessary for us to discuss in order to represent him adequately," Gittins said from his office in Middletown, Va.
Gittins said he now has to inform prosecutors of any classified documents he wants to review and sensitive issues he wants to discuss with his client. Schmidt must also not reveal certain classified information to his lawyer without receiving permission.
Gittins argued before a U.S. military judge last July 30 that he should receive the special clearance. But Col. Mary Boone, who will preside over the court martial, denied the request last December and claimed that civilian counsel was not entitled to the special designation.
The lawyer contends in his appeal that Boone erred in law by not applying the proper Department of Defence regulation to the case.
"The infringement of the right to counsel . . . effectively strips an accused of his right to a fair trial," the 15-page petition states.
"The petitioner faces the prospect of a trial without realizing his Sixth Amendment right to effective assistance of counsel and the potential of a miscarriage of justice."
Capt. Denise Kerr, a U.S. air force spokeswoman, said she could not comment because she had not seen the appeal.
Gittins has also asked for a stay in any proceedings leading the court martial until the Appeal Court rules on the matter. That could delay a preliminary hearing scheduled for Jan. 26 to introduce motions and possibly set a date for the court martial.
The latest development comes after an earlier military proceeding following the accidental bombing that killed Sgt. Marc Leger, Pte. Richard Green, Cpl. Ainsworth Dyer and Pte. Nathan Smith, making them the first Canadians to die in combat since the Korean War.
Schmidt said he believed he and his flight lead, Maj. William Umbach, were coming under enemy fire as they passed over the Canadians who were conducting live-fire training exercises well below their F-16 fighter jets.
A military investigation of the bombing faulted Schmidt for ignoring orders to hold fire, saying he should have flown out of the area instead of attacking.
The commander of the Eighth Air Force later found that the more serious charges against Schmidt and Umbach should be dismissed, but that Schmidt should face the lesser dereliction charge.
Schmidt, who deployed the 225-kilogram bomb, opted to dare the military to face him in a court martial so that he might clear his name.
If convicted, Schmidt could face six months in jail.