« Expert Witnesses in the Impeachment Trial | Main | Faculty Fellow, The Center for Innovation Policy at Duke Law »

Thursday, October 31, 2019

Leavenworth, Ep. 2: Casualties, part 1.

The following is by Eric Carpenter (FIU), who is live-blogging the show

We get to the actual shooting in this episode. I think the facts in the case, as I have learned them, convincingly show that Lorance is guilty of specific intent murder. I was wondering how the director was going to portray the facts, and it appears the director thinks so, too. Again, this is basically a self-defense case. In this post, I’ll go over a few of those facts and discuss an issue with the investigation that came up in the show. In the next post, I’ll give a quick discussion on how military law deals with the problem of when a superior gives an illegal order to a subordinate.

The director left out a couple of facts and didn’t emphasize the significance of another event. To start, right when Lorance took over his platoon, he threatened a villager and his child. That farmer came up to the observation post and, understandably, asked Lorance if he would move a role of barbed wire that was making it difficult to work his field. Lorance’s response was to threaten the kill the man and his family.

The next day, Lorance ordered his men to shoot harassing fire at the village (think of a scene from a Western movie where an outlaw shoots within feet of someone to make that person dance). That was clearly illegal and beyond the bounds of the Rules of Engagement (ROE). Lorance did this to get the villagers to show up to a meeting later in the week where he would apparently start building a good relationship with them. Some villagers came up to the observation post the next day to complain about the harassing fire and then Lorance threated to kill them, too. The day after that was when the patrol killed the two villagers. All of that in three days.

The director does a pretty good job describing the actual shooting, and the facts show that the unit was not facing a hostile act or hostile intent from the men on the motorcycle. As the motorcycle was approaching at a moderate pace on a washed-out road, Lorance had a soldier shoot at it. The soldier missed (maybe intentionally). The motorcycle kept going down the road, and afterwards Lorance said that because it kept going, it showed a hostile intent. The problem with that is that after those rounds were fired, the villagers stopped, dismounted, and went over to talk to members of the Afghan National Army who were part of the patrol. They then went to wait by their motorcycle. That is when Lorance ordered the shooting.

Those Afghan soldiers knew that the villagers did not pose a threat. So did the members of the American platoon. A fact I did not know about before I watched this episode is that another sergeant in the platoon, the one responsible for the gun truck, had told his soldiers earlier not to fire unless he told them to because he was concerned about some things that Lorance had said. In the moments leading to the shooting, he and Lorance were arguing on the radio, with Lorance telling the soldiers in the gun truck to fire and the sergeant telling those soldiers not to. The soldiers in the gun truck followed Lorance’s order and opened up with a medium-weight machine gun, killing two of the villagers.

Add to that a bunch of evidence of consciousness of guilt and the case seems pretty tight. Lorance told a soldier who was specially trained on gathering intelligence from dead combatants not to do the assessment and instead had two untrained soldiers do it. When they did not find any evidence that the villagers were Taliban, Lorance ordered some soldiers to report to headquarters that the bodies were dragged away before they could be searched. Those soldiers refused that order so Lorance made the report false himself.

The facts were pretty bad for Lorance, and his defense team had to have been in a tough spot. We get a hint of the defense strategy at the end of the episode. After the shooting, the company commander called the platoon back to the company area, put the soldiers in a tent, and had them fill out sworn statements about what they had seen. (The statements were all consistent.) The defense counsel suggests that they spent their time getting their stories straight.

That process may seem a little odd. Usually law enforcement (and not a commander) would do the investigation from the start. In the military, though, commanders are supposed to do an initial investigation. Rule for Courts-Martial 303 says that when commanders receive a report of misconduct, the immediate commander shall conduct a preliminary inquiry. The discussion to the rule says that these investigations are often informal, but also says that in complex cases, the commander should seek the assistance of law enforcement.

Here, it looks like the commander wanted to quickly find out what happened, brought the soldiers in, and had them give statements. That is what the rule contemplates. The commander then brought in formal law enforcement once he had a sense that something bad really had happened. The facts suggest that the soldiers sat quietly filling out the statements and were not getting their stories straight.

This rule can cause problems. Commanders can sometimes get wind of misconduct (say, drug use), do a preliminary inquiry, and then mess up a larger, undercover investigation that law enforcement is conducting. Or commanders might interview potential suspects without giving proper rights warnings. Or, the initial witness statements might be sparse or off-point and those statements can later be used to impeach those witnesses. Of those, maybe the last one will be implicated in this case.

Here, the director implies that the defense will be saying that the platoon got together to tell a story so that they could get rid of this new platoon leader they did not like. And I think he will say, they did not like him because he was gay.

The first part of the episode discusses how Lorance came to terms with his sexual identity, and how his parents could not come to terms with it (adopting the, “Hate the sin, love the sinner” approach). We also learn that even though Don’t Ask, Don’t Tell had been formally appealed, Lorance tried to keep his identity secret. This appears to have caused some issues in his relationship with his partner. While Lorance was deployed, his partner went on a family support group Facebook page to post a message to Lorance. Lorance was able to keep the post from going live, but the page manager appears to have spread a rumor that he was gay. That rumor made it to the headquarters unit he was serving with; however, it does not appear to have reached the platoon. We may find out in the next episode if that rumor become relevant.

Posted by Howard Wasserman on October 31, 2019 at 05:54 PM in Criminal Law, Law and Politics | Permalink


The comments to this entry are closed.