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Two SEAL Team 6 members. An Army Green Beret. A murder.

(Source: www.vox.com)

On June 4, Staff Sgt. Logan Melgar — a 34-year-old Army Green Beret — was found dead in US Embassy housing in Mali while he was on a secret assignment. Investigators currently believe he was strangled to death — and that two members of SEAL Team 6 may have killed him.

Murder among US service members is relatively rare, but it’s especially shocking to see that the two suspects — Petty Officer Anthony DeDolph, a former professional mixed martial arts fighter, and a still-unnamed sailor, both Melgar’s roommates — form part of one of the most revered military units in the United States. SEAL Team 6 became internationally famous for successfully killing Osama bin Laden in Pakistan on May 2, 2011.

The probe is ongoing, and no one has yet been charged with a crime. But it appears the suspected SEALs changed their story about what happened. They first told investigators that they found Melgar dead around 5 am on June 4. But after an autopsy showed Melgar died of asphyxiation, the SEALs said the three of them were wrestling when Melgar passed out, after which they tried to get Melgar medical attention. The two SEALs left Mali and are now on administrative leave.

I reached out to Geoffrey Corn, a 21-year Army veteran and military justice expert at South Texas College of Law Houston, to find out what to expect with the investigation, possible trial and the complications that may arise. Corn even mentioned that the suspects could face the death penalty if the evidence is overwhelming.

This conversation has been lightly edited for length and clarity.

Alex Ward

What were your first thoughts when you heard about the incident?

Geoffrey Corn

The fact that investigators initially became suspicious that it was a homicide is pretty serious. If it turns out that there’s evidence to support this assumption — that two service members murdered another service member — in any society, that would be very serious.

It’s even more so in the special operations society, I think, because it’s so dependent on the bond of trust between the people involved in the mission.

Alex Ward

Have you seen anything like this case before?

Geoffrey Corn

There are periodically criminal homicides in the military where one service member will kill another. Sometimes that happens during deployments, but it’s not common, thank goodness.

But have I ever seen an allegation of two Navy SEALs killing a Green Beret? No, I haven’t seen that.

Alex Ward

So this is completely new as far as you know?

Geoffrey Corn

What’s new is it’s not so much that you have an incident where there is a conspiracy and then a murder. What’s new is it’s in this kind of unusual environment where you have special operators deployed together.

Alex Ward

Now that we know the SEALs changed their story of what happened, will the investigation change at all?

Geoffrey Corn

Yes, it is a violation of the Uniform Code of Military Justice to make a “false official statement,” and “false swearing” is also a violation — if they made it under oath.

So it really ramps up the suspicion of misconduct, because the assumption of investigators will be that had it actually been an accident, the SEALs would have been forthcoming about it initially.

And even if the investigation indicates it was from “grappling,” and was therefore an unintentional killing, it could still lead to charges for involuntary manslaughter or negligent homicide.

Alex Ward

SEAL Team 6 is a highly decorated and revered group. What are the complications surrounding an investigation into SEALs, especially when a lot of what they do is highly classified?

Geoffrey Corn

What makes it complicated is when you’re deployed like that, you’ve got different chains of command for the purpose of military justice issues.

So one of the things that Africa Command or Joint Special Operations Command has to sort out is who has the primary authority for investigating this, and then ultimately the disciplinary authority — if there’s in fact credible evidence to prosecute.

“We don’t know enough about the evidence or the incident to know how complicated or simple it would be to try this case”

Alex Ward

How does the NCIS [Naval Criminal Investigative Service, which is the agency that investigates possible felonies in the Navy and Marine Corps] carry out this investigation? What is next in this process?

Geoffrey Corn

When a commander receives a report of a potential crime, the commander has to initiate a preliminary investigation. And if the commander believes there’s a reason to credit the accusation, the commander should consider involving military investigators — and that appears to have happened.

So NCIS is going to conduct their investigation — like any other criminal investigation would be conducted — with the unique challenges of having to go to the scene of the crime in another country and interview people that are all over the country. And they will make a recommendation on whether or not they believe there is probable cause to go forward with the charge and what charge that should be.

At that point it will go back to the commander, and usually with a recommendation to the legal adviser on how to proceed. If there’s credible evidence of a criminal homicide, you can almost certainly bet that there’s going to be a charge of murder, or maybe manslaughter, and the commander is going to order that a pretrial hearing be conducted and make a recommendation of whether it should go to court-martial.

Alex Ward

Does the fact that the victim in this case was in the Army and the suspects are in the Navy complicate the investigation?

Geoffrey Corn

I don’t think it’s particularly relevant.

The Navy commanders making these decisions might be a little bit sensitive to the concerns of the Army commanders for what happened to their subordinate, but that would be no different to being sensitive to the family of a civilian who was killed.

Is it possible there would be some coordination between the two commands when the reports are done and the recommendations are considered? It’s possible, but I don’t think particularly likely.

If it’s an act of Navy misconduct, the Navy is going to investigate and Navy commanders will decide how to proceed.

Alex Ward

Will a trial take place in secret since the victim and the suspects were special operators?

Geoffrey Corn

Not necessarily. Somebody involved in the trial would have to raise the issue that in order to try the case, classified information has to be presented.

If you’re just talking about two guys who hated another guy and they entered into a conspiracy to murder him and committed the crime of murder, the fact that they were involved in special operations might have nothing to do with it. Now, I don’t know if it does. There might be evidence that they were upset with him because of something that happened on a mission. Who knows?

There are procedures for closing the court if and when classified information has to be presented, but even then, the courtroom would only be closed for that limited period of time when they were presenting classified information.

Alex Ward

If this case goes to trial, how long do these kinds of trials tend to take?

Geoffrey Corn

That’s the million-dollar question.

The military has a “speedy trial” rule, but frequently trials are drawn out for a long time depending on the complexity or the delay requests sought by either side. We don’t know enough about the evidence or the incident to know how complicated or simple it would be to try this case.

People assume if it’s a homicide case involving special operators, it’ll be really complicated. That might not be the case depending on the evidence. We don’t know if investigators interviewed the suspects, if the suspects invoked their rights, or if anybody confessed.

So to me, the more complicated piece of this is going to be the criminal investigation because of some of the factors you raised at the beginning. The SEALs are a community that circles to protect its own, and it might be a little bit challenging to get people to be forthcoming with information. And of course you have the fact that it occurred in a deployed environment, which adds some complications.

But NCIS is good at this; this is what they do, and they’ll figure it out. The case will be driven by where the evidence points — that we can be sure of.

If it was an act of minor misconduct and people were suspicious that maybe the SEAL community would sweep it under the rug, I might be a little sympathetic to that concern — but we’re talking about a homicide. If a commanding officer gets a criminal report that shows credible evidence that several members of the unit unlawfully murdered another service member, I think they’re going to want the system to move forward on that case.

“The SEALs are a community that circles to protect its own, and it might be a little bit challenging to get people to be forthcoming with information”

Alex Ward

Just to pull a thread: What complications will the investigators encounter as they look for evidence and information in Mali? How do they figure out what happened?

Geoffrey Corn

They will do it like they would do it for any crime.

They start by talking to witnesses, trying to put together circumstantial evidence related to the death, and use that evidence to suggest to witnesses that they have a pretty good idea of what happened and didn’t happen. Then they’ll give the witnesses the opportunity to give their recollections for what happened.

Of course, if investigators get somebody they think has good evidence and important information that can incriminate other people, they’ll put pressure on that person to get their cooperation. You’re right that it’s not like a barracks room where it’s much easier to freeze the crime scene and gather all the physical evidence, but it doesn’t mean it’s impossible.

Investigators will be looking hard at the circumstantial evidence: Where was the victim? What was he doing? Was there any motive to kill him? Was there animosity between the two groups? Were there statements made by anybody that indicated they didn’t like the victim? Is there any other plausible explanation for where he died, when he died, how he died? They’re going to put all that together and start to build their mosaic, so to speak.

From there, that’s really when you start bringing suspects in and start questioning them to see if they’ll waive their rights. If they waive their rights, investigators start presenting the weight of the evidence they have to make suspects see that the game is basically up already.

Alex Ward

Here comes a very sensitive question: Does SEAL Team 6 have an incentive to try to protect its legacy and reputation?

Geoffrey Corn

When there’s an accusation that hasn’t been proven yet, you always have the issue of people who know the suspects finding it hard to believe they committed a crime and saying, “I can’t believe he could’ve done that; I’m going to do everything I can to help exonerate him.”

So initially it wouldn’t be surprising if a lot of members of the community would reject the suggestion that people they have such respect for could engage in such misconduct. I don’t think it would be so much, “We have to protect the reputation of our organization,” but more, “We have to help a friend who is in the crosshairs of a criminal investigation who we don’t believe committed a crime.” That’s a very common reaction.

What really matters is the response of the command. And, candidly, I would be surprised and extremely discouraged if a person in a position of command with that responsibility would ignore compelling evidence that a member of the unit committed a criminal homicide in order to protect the reputation of the unit.

We don’t need these people in the unit. I don’t know why any commander would want to keep them in the unit if they murdered another service member.

“Some prosecutors would say the motive for murder usually comes down to money, love, relationships, or trying to cover something up”

Alex Ward

What kind of punishments are the suspects facing?

Geoffrey Corn

A premeditated and deliberate murder — first-degree murder — in the military can be subject to the death penalty if it’s sent to trial that way.

But if you’re convicted of first-degree murder, then it’s mandatory life in prison. So it’s very serious if they bring this as a murder charge.

Alex Ward

To be clear, the suspects could face the death penalty?

Geoffrey Corn

If the suspects planned a killing, and they conspired to kill the victim, that means they acted with premeditation and deliberation and that’s first-degree murder in any jurisdiction. In the military, it’s potentially a capital crime.

It would have to be sent to trial that way, but it doesn’t have to be. So if the evidence supports what the initial suspicion suggests, they could be facing very, very serious punishment.

Alex Ward

I know you said you haven’t seen another case like this one. But in other cases where a service member killed another, have investigators found a typical motivation?

Geoffrey Corn

No, murder is murder.

But some prosecutors would say the motive for murder usually comes down to money, love, relationships, or trying to cover something up. In about 90 percent of murders, you can attribute the killing to one of those four things, especially if it’s deliberate.

So who knows what was going on? Unlikely money, in my view. Maybe they were involved in some misconduct they were trying to cover up?

Alex Ward

What is the difference between a trial going through a military court and a civilian court?

Geoffrey Corn

The biggest difference is who decides whether a case gets sent to trial. In most civilian jurisdictions, a prosecutor will recommend a charge to a grand jury — like the Paul Manafort case. The grand jury is going to decide if they think there’s enough evidence to support sending a case to trial.

In the military, prosecutors will advise the commander. But it is the commanding general or admiral who will decide whether or not a case should be sent to a felony-level trial, what we call a “general court-martial.”

The prosecutor doesn’t make that decision. The prosecutor tries the case and makes a recommendation, but the general or admiral isn’t bound by that recommendation. It’s like going to the mayor of your city and asking what cases should be sent to trial.

Once the case is sent to trial, it’s very similar to a civilian court: same rules of evidence, you have a military judge, and the defendants have a right to be tried by either a judge alone or by a military jury.

One big difference is if it’s not a capital case, the verdict doesn’t have to be unanimous — just a two-thirds majority will convict the defendant. If it’s a capital case, it has to be unanimous.

So if you went into a military courtroom during a military trial, it would look different in the sense that there would be a lot of uniforms, but the way the trial functions would look like something from a TV show on criminal law.

It’s the before and after that is so different in the military.

Alex Ward

Can you just expand on what needs to happen for the suspects to be charged with capital punishment, possibly the death penalty?

Geoffrey Corn

If the evidence supports a first-degree murder charge, the first thing that has to happen is that the commanding general or admiral has to make the decision that he wants capital punishment to be an option at the trial. He doesn’t have to, though, so he can send the murder to trial as a non-capital case.

If he sends it to trial as a capital case, then there are special procedures because it is capital punishment. The jury has to be at least 12 members — in any other general court-martial it can be as few as five. The defendant is prohibited from pleading guilty to a capital offense; he has to be found guilty by the jury.

And then the jury has to vote unanimously not only for guilt, but also that the special aggravating factor has been established beyond a reasonable doubt. They have to vote again that the aggravating evidence substantially outweighs any mitigation. And they have to vote unanimously a fourth time that death should be the appropriate penalty.

If there is one “no” vote during any of the four secret votes, there’s no death penalty.

More Info: www.vox.com

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