Prosecutors removed in gang-related case

Judge: Lawyers, commanders did not follow protocol
By Geoff Ziezulewicz, Stars and Stripes
European edition, Thursday, May 31, 2007

KAISERSLAUTERN, Germany — A military judge Wednesday removed the lawyers prosecuting Army Spc. Bobby Morrissette for his alleged role in the 2005 beating death of Army Sgt. Juwan Johnson.

No military lawyer from the 21st Theater Support Command’s Office of the Staff Judge Advocate, or the commanders who had convening authority in the case, may be involved after Judge James Pohl disqualified the entire group for not following protocol during the investigation into Johnson’s death.

“The charges are not dismissed but cannot proceed” with the convening authority and staff judge advocate office that were presiding over the case, said Pohl, an Army colonel.

Morrissette was facing charges of involuntary manslaughter, aggravated assault, gang affiliation, hazing and making a false official statement for his alleged role in Johnson’s July 2005 death, which various reports state was caused by a gang beat-in near Kaiserslautern.

Morrissette’s defense team had asked Pohl to dismiss the charges in April, and he did, but prosecutors requested a new hearing to reconsider the ruling.

Citing case law, Pohl’s disqualification of the whole SJA office was based on the fact that prosecutors and investigators with the Criminal Investigation Command (CID) did not follow proper procedure when interviewing Morrissette in December 2005.

Pohl and attorneys for both sides argued the consequences of that Dec. 21, 2005, interview of Morrissette, when he gave what is known as an “immunized statement.”

An immunized statement is requested by the prosecution and approved by the convening authority, which in this case includes unit commanders all the way up to Brig. Gen. Scott G. West, who leads the 21st TSC.

Such statements can force soldiers to speak but their responses cannot be used to prosecute them, Maj. Jeremy Robinson, one of Morrissette’s defense attorneys, said after the hearing.

The Morrissette interview was supposed to be conducted by “cells” of CID agents and prosecutors who wouldn’t play a part in any future prosecution of the soldier, Robinson said, and that was not the case.

Pohl said during the hearing that this “taint” didn’t affect the prosecution’s case or offer new leads in the investigation, and Morrissette did not add anything new at that point.

But the disqualification of the 21st TSC’s SJA office was justified because of exposure to Morrissette’s immunized statement, not its use, he said.

Due to the way things developed, Pohl said he wasn’t sure where to draw the line and dismissed the entire SJA office in an abundance of caution.

The convening authority will have to figure out how to proceed, and Pohl instructed prosecutors to get back to him by June 6 regarding the next step. No future hearing had been scheduled as of Wednesday afternoon.

When prosecutors asked whether all the evidence thus far collected in the case would be affected, Pohl suggested both sides proceed and not throw out all evidence gathered by “tainted” parties.

“I’m not going to tell you how to break your eggs,” he said.

Morrissette faces another court-martial on separate charges, and Pohl said those charges don’t appear “on the face” to be affected by the Johnson case. Those charges, unrelated to Johnson’s death, are indecent acts, indecent language and two violations of a no-contact order.

After the hearing, Robinson said Morrissette’s fate remains unclear.

“We don’t now what the answer to that question is,” he said. “In the current condition, it’s not going to go to court-martial.”
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