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Houston attorney Guy Womack, who represents a U.S. Army soldier facing criminal charges in connection with the Abu Ghraib prisoner abuse scandal, was successful in getting his client’s upcoming trial moved to Texas from Iraq. Womack’s client, U.S. Army Specialist Charles A. Graner Jr., a reservist from Pennsylvania, goes to trial on Jan. 7, 2005, at Fort Hood in Killeen, Texas. USA v. Graner would be the first Abu Ghraib prison abuse trial to take place in the United States. But Womack, of Guy Womack & Associates, filed a motion on Nov. 16 that, if successful, would avert Graner’s court martial. In a Motion to Dismiss for Unlawful Command Influence, Womack asked military judge Col. James Pohl to dismiss the charges against Graner on the grounds the soldier cannot get a fair trial because of prejudicial statements made by President George W. Bush, U.S. Secretary of Defense Donald H. Rumsfeld and Graner’s military superiors in Iraq. “The president and Rumsfeld … had made statements early on implying that my client was guilty and deserved punishment,” Womack says. “The panel of officers who will hear this case have certainly heard all of these comments. It will be impossible to guarantee a fair trial.” Graner is charged with adultery, assault, maltreatment of subordinates, conspiracy to maltreat subordinates, dereliction of duty for failing to prevent abuse, cruelty and maltreatment of detainees at Abu Ghraib Prison in Iraq. He has pleaded not guilty to the charges. “Due to the world-wide dissemination of the derogatory and conclusory statements by SPC Graner’s chain of command, it is evident that every potential court member has heard or read the remarks of their superiors — both uniformed and non-uniformed — and may perceive that a comrade’s life may have been affected by SPC Graner’s alleged misconduct,” Womack wrote in the motion. “It is impossible to guarantee SOC Graner that his trial has not been tainted by the derogatory statements by his superiors,” he wrote in the motion. The chief prosecutor, Maj. Michael Holley, in an e-mail response to questions about the trial and the motion to dismiss, declines comment. “It is the policy of our prosecution team not to discuss any pending case lest we unintentionally prejudice the accused’s right to a fair and impartial trial,” he says in the e-mail. Womack, a retired Marine lieutenant colonel, is a civilian lawyer for Graner, a military policeman. Womack says Graner was in Iraq at presstime on Nov. 18 but would be moved to Fort Hood over the next few days. So will the judge and prosecutors and Womack’s co-counsel, Capt. John Heath, a Judge Advocate General’s Corps (JAG) officer, he says. Womack says he asked to have the trial moved to Fort Hood for logistical reasons. He says many of the witnesses to the alleged incidents of abuse have been redeployed to the United States or to Germany, and a U.S. citizen who is a civilian cannot be subpoenaed to leave the country. Having the trial at Fort Hood will allow him to call more witnesses, he says, because many of the potential witnesses are now no longer in the military. Initially, Judge Pohl, the chief circuit judge of the 5th Judicial Circuit in Heidelberg, Germany, denied the motion to move the trial, suggesting that witnesses could testify by teleconferencing, Womack says. But Womack says that didn’t work well at the sentencing in October of Staff Sgt. Ivan “Chip” Frederick, who pleaded guilty to eight counts of abusing and humiliating Iraqis at the prison. He was sentenced to eight years in prison. Womack says the teleconferencing was ineffective because of a time lag between the video and the audio. “It was terrible. There was a delay between when you would say something and you would hear it,” Womack says. “It was absolutely nonsensical. You couldn’t judge his [a witness'] demeanor and compare his facial expressions to his words, and of course, you can’t be as intimidating to cross-exam a witness if he’s 10,000 miles away.” The government announced on Nov. 10 that Graner’s trial, and the trials of two others charged in connection with alleged abuse at the prison, would be held at Fort Hood. DUTY, HONOR, COUNTRY Womack says as many as 150 news reporters have covered hearings in Graner’s court martial when held in Iraq, and he expects a crowd at a pretrial hearing today, when he will argue the motion to dismiss the charges against Graner due to unlawful command influence. But three former JAG officers say Womack faces a daunting task with that argument. “He’ll lose that motion,” says John Economidy, a former U.S. Air Force JAG officer who now has a criminal-defense practice in San Antonio. “There is such an animal [as dismissal] for unlawful command, but the defendant carries the burden of proof on that. I would not put my eggs in that basket.” Thomas Moran, a criminal-defense associate with Schneider & McKinney in Houston who is a former reserve JAG officer, says the motion will likely be denied because Graner’s lawyers will be able to voir dire the jury and eliminate prospective jurors who are prejudiced by comments from Graner’s commanding officers. “As a practical matter, they are going to be able to voir dire the jury — it’s called the court — and they will find a sufficient number of people,” Moran says. “If Ted Bundy can get a fair trial, he can get a fair trial, at least I’d argue that if I were arguing it for the government.” But John P. Galligan of Belton, former chief circuit judge at Fort Hood until his retirement from the Army four years ago, says judges take unlawful command influence motions seriously. “It’s a serious accusation because it goes to the heart and soul of a trial proceeding,” Galligan, of the Law Offices of John P. Galligan, says. Galligan says Graner would have the initial burden of offering evidence that would constitute undue command influence. Then the burden of proof would shift to the military’s side to prove that either there was no undue command influence, or that influence wouldn’t affect the trial. According to the motion, the charges against Graner stem from incidents that allegedly occurred between Oct. 20, 2003, and Dec. 1, 2003. But Graner alleges that after photographs depicting the alleged abuse were made public this year and the Army and other government agencies launched a criminal investigation, high-level political and military leaders made statements that the conduct was the result of six or seven military police officers. Graner alleges in the motion that the accused soldiers were denigrated and labeled as “criminals” and “rogues” at press conferences, where officials were “incorrectly stating the opinion that the group of seven MPs had acted alone and without the direction and supervision, or even knowledge, of superiors.” Womack attached copies of several news stories reporting on statements by the president, Rumsfeld and others. Womack says Graner, who is in some of the photographs, was simply following orders that he thought were lawful. He says Graner is not available for comment. Galligan, now a criminal-defense attorney who does a lot of work at Fort Hood, and Economidy say logistics for Graner’s lawyers are better at Fort Hood than in Iraq. “Staying at a LaQuinta overnight is much better than staying in a 100-degree tent, or whatever,” Economidy says. But Economidy doesn’t see much difference between a panel of potential jurors at Fort Hood and one drawn from soldiers in Iraq. Moran, another former JAG officer, agrees, noting that many of the soldiers now at Fort Hood served in Iraq. Economidy says a military jury is typically “far superior” to a state-court jury. “You probably are going to have a court martial panel consisting of all master’s degrees,” he says. “You cannot BS a court martial panel. They will burn you. You have to talk on their intellectual level on duty, honor, country.” Economidy says Graner has a good lawyer in Womack. “He will not let the government push him over,” Economidy says of Womack. Womack is a former JAG officer and military judge who worked as an assistant U.S. attorney in the Southern District of Texas from 1990 to 1997. In 2002, he won an acquittal before an Army jury for Army Sgt. Mark Walker on two charges of negligent homicide in connection with the deaths of two South Korean girls. They died in June 2002 in an accident on a country road in Korea with a vehicle driven by Walker. Graner is one of seven members of the military police reservist unit charged in connection with the alleged abuse at Abu Ghraib, a prison located outside Baghdad. If convicted of the charges, Womack says Graner could be sentenced to about 20 years in prison, receive a dishonorable discharge, get demoted, and forfeit military pay and benefits.

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