Judge Rejects Request For Mistrial In Soldier's Suffocation Trial
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FORT CARSON, Colo -- The judge hearing the court-martial of an
Army officer accused of killing an Iraqi general rejected an
attempt Wednesday to open the hearing during testimony from
classified witnesses.
Judge Col. Mark Toole had closed the courtroom late Tuesday
for classified testimony from an Army agent who investigated
the 2003 death of Iraqi Maj. Gen. Abed Hamed Mowhoush and from
another unidentified witness.
Attorneys for the defendant, Chief Warrant Officer Lewis Welshofer Jr.,
and media organizations challenged the decision. Attorney Steve Zansberg,
representing The Associated Press, The Denver Post and The Gazette
of Colorado Springs, said much of the classified information has already
been made public during hearings or through leaks to news organizations.
Zansberg asked Toole to consider the intense public interest in the case
and he referred to a Washington Post report that Mowhoush had been beaten
by interrogators linked to the CIA.
The case "raises questions about the conduct of other government officials,"
Zansberg said. "This case may be less about national security than
national integrity."
The judge rejected the request, but agreed that one unidentified
witness will provide some testimony in open court from behind a screen.
Another will testify behind closed doors.
Zansberg did not immediately return a call seeking comment on the ruling.
Welshofer was charged with murder and dereliction of duty following
the death at a detention camp in Iraq. Prosecutors said Mowhoush was
placed headfirst in a sleeping bag and bound with an electrical cord for
interrogation, and that he died while Welshofer sat on his chest,
occasionally using his hands to cover Mowhoush's mouth.
The defense has argued that Welshofer did nothing illegal and was
using a technique approved by his commander. They also say he was
under intense pressure to extract information from Mowhoush and
that the Iraqi died not of asphyxia, as the autopsy report said,
but from an irregular heart rhythm caused by heart disease and the
stress of interrogation.
Maj. Jessica Voss, Welshofer's company commander in Iraq, said
she never knew the "sleeping bag technique" she approved would
include actions that could make it difficult for a subject to
breathe. She said she would not have approved the technique as
Welshofer applied it to Mowhoush.
Also Wednesday, the judge rejected a defense request for a mistrial
after a witness recalled Welshofer telling him he had been advised
by an attorney not to talk about the death.
William Hughes, a special agent of the Army's Criminal Investigation
Division, was telling the court about his visit to the camp where
Mowhoush died. He said Welshofer was giving him a tour when he said
he was involved in the death and had been told by legal counsel to
remain silent about it.
Defense attorney Frank Spinner said the comment could unfairly
lead jurors to conclude his client is guilty simply because he
had invoked his right to counsel. Hughes has 14 years of military
legal experience and "should have known better" than to make
the comment in front of the jury, Spinner said.
"I believe this is an error of constitutional magnitude.
I believe it justifies a declaration of a mistrial," he said.
With the jury out of the courtroom, prosecutor Maj. Tiernan Dolan
questioned Hughes about the comment. Hughes replied that he just
trying to describe the steps of his investigation.
The judge agreed and said the comment appeared to be a harmless error.
He said jurors would be told to disregard Hughes' testimony and
instructed that seeking an attorney's counsel isn't an admission of guilt.
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