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Weapons of Mass Destruction (WMD)

England waives second Article 32

By Spc. Matthew Chlosta

FORT HOOD, Texas— Pfc. Lynndie England, the ninth Soldier accused of abusing prisoners in Abu Ghraib prison, Iraq, agreed to waive her right to a new Article 32 hearing May 24 at the Lawrence H. Williams Judicial Center, here.

England, 22, 372nd Military Police Company, Cumberland, Md. and her lead defense attorney Capt. Jonathan Crisp, Trial Defense Service, met with prosecutor Capt. Chris Graveline, Staff Judge Advocate, before the fact finding session was to begin.

“This morning we submitted an unconditional waiver of the Article 32 hearing,” Crisp said, at a brief press conference outside the courthouse afterward. “Right now this is simply a part of our evolving trial strategy. At this point in the proceeding, trial strategy evolves rather quickly. I think our case is more closely aligned to Pvt. Harman’s case than say Pvt. Graner’s case. There were no concessions from the government for doing what we did.”

“Article 32s have been waived before - this is not completely unusual,” said Maj. Rose Bleam, spokesperson for the III Corps staff judge advocate.

England had an initial Article 32 hearing at Fort Bragg, N.C. last year, before her case was moved to Fort Hood, Texas for court-martial. When her case was moved to Fort Hood, the original charges against her were dismissed without prejudice by the government. A new set of charges, based on the same facts, were preferred.

Because there were new charges, Pfc. England was entitled to a new Article 32 hearing. Earlier this year, she conditionally waived the Article 32 as part of a pretrial agreement. At that point, Lt. Gen. Thomas Metz, Commanding General, III Corps and Fort Hood, referred the charges to a general court-martial.

On May 4, military judge Col. James Pohl, rejected England’s guilty plea and declared a mistrial. Because the waiver of the Article 32 was conditioned on the acceptance of her guilty plea, England was still entitled to an Article 32 hearing.

England still could face three charges including; conspiracy, maltreatment of subordinates and committing an indecent act during her deployment to the Baghdad Correctional Confinement Facility, Iraq.

The maximum sentence if England is court-martialed on these charges and is convicted is 11 years confinement, a dishonorable discharge, reduction in rank to private (E-1) and total forfeiture of all pay and allowances.

The charges will now be presented to Metz who will decide whether to refer the case to court-martial. With the charges, the government will present supporting documents or “allied papers” so that Metz can determine whether there is sufficient evidence to proceed to a court-martial on the charges.

If Metz decides there is enough evidence to charge England again, he will also determine what type of proceeding goes forward.

Metz may choose from three types of courts-martial; summary court-martial; special court-martial; or a general court-martial.

“With the two lower, the summary and the special court-martial, the punishment is much less than you would potentially be able to get in a general court-martial,” Bleam said. “So he could decide, in looking at all the evidence that he would want to refer it to a different type of court-martial or he’ll go forward to a general court-martial. Again, that is within the complete discretion of the commanding general.”

Metz could also choose to give England non-judicial punishment under the Uniformed Code of Military Justice.

Crisp also said that England’s civilian attorney during her original court-martial process has left her defense team, but he was replaced by Capt. Katherine Krul, defense counsel, Trial Defense Service.

Crisp also commented on the mistrial declared earlier in May.

“The military justice system goes to great lengths to insure that an accused plea is provident and that there is sufficient basis in guilt to continue,” Crisp said.

Crisp and Bleam said they didn’t know the time frame for England’s case.

“At this point we have no idea when this trial will be docketed,” Crisp said. “That is certainly too far in the future to try and speculate.”

“The timeframe on these things is always questionable,” Bleam said. “Obviously we’ve already been at this for a year with these cases. (The case could start in) possibly a couple weeks or a few months. There are so many moving pieces between now and the trial.”

Crisp also shed light on England’s mindset going forward.

“Her frame of mind now is the same as it was two or three weeks ago,” Crisp said.

She wants to move forward with her life and put this behind her as quickly as possible, he added.

England testified during her May 2 guilty plea that she knew posing for pictures with naked and humiliated detainees was wrong and was done for the amusement of the guards.

These statements can be used against England in a separate court-martial, if they are determined to be perjury during a future court-martial.

“The statements made by Pfc. England during the course of her guilty plea can only be used against her if the government has reason to believe she committed perjury and decided to proceed to a separate trial for perjury,” Bleam said. “The admissibility of her statements is covered by Military Rules of Evidence 410.”

“Only in a very limited sense,” Crisp said, “the rules of evidence prevent that from being used against her in a subsequent capacity.”

Crisp was also asked about the possibility of another pretrial agreement.

“At this point any discussions about a plea deal are extremely premature and will not be based on any fact at all,” Crisp said.

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