Monday, September 6, 2010

Tony Lombardo, Marine Corps Times

Today while I was looking at the Marine Corps Times online, I found a link asking for "Rule Breakers".   So I wrote to Tony Lombardo at the Marine Corps Times.  Here is a copy of my e-mail.

Tony,

I saw your article asking for rule breakers in the Marine Corps Times today and thought I would write to you.  I happen to know of several Marines, Naval Personnel and NCIS Agents who break the rules daily.  Although the rules that are being broken in this case, cost and innocent man his freedom.

Major Clay Plummer, Camp Pendleton Naval Legal Services Office, allowed Capt J.E.Y. Ellis to commit fraud on the court.  Major Plummer was made aware of this by myself and my husband's attorney in April/May 2008 and refused to report it through the proper chain of command even though he received the documentation.  This is in direct violation of JAGINST 5803.1C, Art 81, Art 92, Art 133 and Art 134-obstruction of justice.

Paul committed perjury at the trial when he stated that he took his child to the Beaufort Naval Hospital for treatment and was denied treatment.  He stated to NCIS and the court that the "signed her into the ER, they took her vitals, and several hours later-after receiving no treatment-he signed her out and took her home."  The Beaufort Naval Hospital was contacted and stated that Paul and his daughter were never at the hospital in June 2004 as alleged.  This document was submitted to Major Plummer.  Paul is in violation of Art 107, Art 131, and Art 133.

Paul's wife Stacey lied at court as well.  She could not keep her story straight with regards to the allegations of sexual assault and was perjured on the stand.

Their daughter, HS, accused Edwin's ex-wife, the ex-wife's mother Donna and a boy named James of witnessing the alleged sexual assault.  Gloria (the ex-wife) was never questioned until the first day of trial where she told the court that HS was lying.  Also NCIS did not bother to question Donna or James and Special Agent Muelenberg and Special Agent Gauthier stated to the court that all alleged witnesses should have been questioned.  By Paul getting his daughter to falsely accuse an innocent man of sexual assault, Paul is also in violation of Art 134-subordination of perjury.

Special Agent Muleneberg, NCIS Camp Pendleton, admitted to the court that he tampered with the evidence he submitted.  Special Agent Muelenberg stated that he filled in the drawing, got a confession (which was not in writing or on video) and that Edwin did not pass a polygraph.  The polygraph has never been located after repeated attempts.  Edwin did pass a polygraph that was taken by an independent paleographer from the San Diego Police Dept, Mr. Paul Redden.  NCIS also failed to report the allegations to the Family Advocacy Program, which is in violation of DoDD 6400.1.  This isn't the first time that Special Agent Muelenberg and his supervisor Special Agent Art Spafford have been in trouble for their less-than-honest acts while conducting investigations.

I have a laundry list of DoDD, SECNAVINST, NAVMEDCOMINST and BUMED instructions and directives that have been violated.  Some of them are:

DoDD 6400.1/BUMED 6320.40
DoDD 5500.07
DoDI 3210.7
DoDI 5505.3
DoDI 5505.2
OPNAVINST 1752.1A
SECNAVINST 5520.3B
COMNAVLEGSVCCOMINST 5800.1E
DoDD 5525.5
DoDD 5106.01
NAVMEDCOMINST 6310.3
DoDD 1325.04
DoDI 7050.01
SECNAVINST 5430.27B
SECNAVINST 5527.2
JAGINST 5803.1C
SECNAVINST 5430.57G (NCIS IG)

Now I have personally contacted the DODIG Gordon Heddell, NCIS IG Robert Mulligan, DOD Hotline (and received response from Mr. Leonard Trahan), the USMC IG Warren Worth and the Judge Advocate General, Vice Admiral James W. Houck to report these violations.  I have received responses from each one stating that they are not going to do anything about it.

Recently (as of 9/1), I submitted a petition for a new trial to the Judge Advocate General, Vice Admiral James W. Houck.  I advised him that because of the above violations, Edwin's constitutional rights violations, and the half-assed investigation that NCIS did, I was only going to submit this once, as this was a precursory measure being taken before I file a substantial lawsuit with the Federal Claims Court.  My lawsuit will be filed by the end of the month and will name the individuals listed and others that I have received responses from within the Department of the Navy.

My hopes are with filing this lawsuit is that justice is finally served and everyone involved get a big black eye.  Pleading ignorance to the law does not excuse violating the law.

I realize that you do not have freedom of the press, since you are controlled by the Marine Corps, and that this will never make it in your papers but I want people to know that type of organization the Department of the Navy is and to what lengths they will go to hide what they have done.

Sunday, September 5, 2010

2nd Petition for a New Trial

The Judge Advocate General, Vice Admiral James W. Houck, received Edwin's 2nd petition for a new trial.  The first petition was denied by the Navy-Marine Court of Criminal Appeals (NMCCA) stating that everything was a repeat of what was litigated at trial.  This 2nd one is not a repeat of anything that was brought up at trial.

Once I decided to re-file the petition under Art 73, UCMJ, I also did some research as to what should be included and made some interesting discoveries. 

Edwin's Sixth Amendment speedy Trial rights were violated.  At NMCCA, Judge Maksym stated:

"My marked reservations are, in the main, prompted by the significant delay-opaquely portrayed in the record of trial of the nearly three year interregnum between the first statement of the minor alleged victim and the trial on merits.  RECORD AT 319-320.  These massive delays shroud the entire proceedings with a specter of reasonable doubt".

By Judge Maksym acknowledging these delays and failing to do anything to remedy the issue, NMCCA has violated the very laws they are supposed to uphold.

In Barker v. Wingo, the U. S. Supreme Court ruled that a "delay of a year or more from the date on which the speedy trial right "attaches" (date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial".  The prosecution is also not allowed to delay the trial for its own advantage, which they did in Edwin's case.

In Strunk v. United States, 412 U.S. 434 (1973), the Supreme Court ruled that if the reviewing court (in Edwin's case it was NMCCA), finds that a defendant's right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned.

The second issue I brought to the attention of the Judge Advocate General, Vice Admiral Houck is the fact that the military judge, Major B. E. Kasprzyk stated in his closing at the trial that he did not consider Special Agent Eric Muelenberg's statement with regards to Edwin terminating the interrogation and asking for a lawyer.  RECORD AT 378.  The exact quote is as follows:

"Prior to announcing the findings of this court, I want to make clear that I did not consider the testimony of Special Agent Muelenberg with regard to Sergeant Ehlers electing to terminate the interview and ask for a lawyer during the interrogation of 25 May 2005"

Special Agent Eric Muelenberg admitted at trial that when he was questioning Edwin, and Edwin requested an attorney, Special Agent Muelenberg DID NOT terminate the interrogation immediately.  He stated that he continued to question Edwin until the duty driver arrived.  The exact quote was removed from the Record of Trial prior to the judge authenticating the Record of Trial, which according to the UCMJ- a military judge,sitting alone, is not allowed to do.

By not considering the statement made by Special Agent Muelenberg, the military judge has violated Edwin's Art 31, UCMJ and Miranda rights.  The military judge also abused his authority as the finder of fact in this case.  In the military, the accused enjoys not only the protections of Art 31, but also the Supreme Court's mandate from Miranda.  United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967)

As soon as this was violated, the United States Marine Corps was at fault.

When the process shifts from investigatory to the accusatory-when its focus is on the accused and its purpose is to elicit a confession, our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with a lawyer.  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2nd 694 (1966).

In United States v. Riley, an agent from NCIS made reference to the accused's invocation of his right to remain silent.  The Court of Criminal Appeals recognized that when the prosecution brings such matter to the attention of the finder-of-fact, the usual test for prejudice is the constitutional standard of harmless beyond a reasonable doubt.  United States v. Moore, 1 MJ 390 (CMA 1976); see also United States v. Ward, 1 MJ 176 (CMA 1975) (adopting test of Chapman v. California, 386 U.S. 18 (1967)).  After reviewing the evidence under this standard the court concluded that when considering all the evidence presented at trial, there is a reasonable possibility the erroneous introduction into evidence of the fact the appellant repeatedly exercised his right to remain silent before trial might have contributed to his conviction.  The error if properly reserved, would not have been harmless beyond a reasonable doubt.

The court also noted that failure to make a timely objection would forfeit the ability to make the objection later.  The court analyzed the error and stated that the doctrine of forfeiture does not apply where there is plain error.  SEE MIL.R. EVID. 103(d).  The accused also has to show the court that there was an error, that it was obvious, and it affects a substantial right of the accused.  Citing United States v. Prevatte, 40 MJ 396 (CMA 1994).

Going back to Riley, the court stated:

"This tainted view is especially important when considered in connection with the nature of the Government's case.  As the Court of Criminal Appeals noted, the testimony of the prosecutrix was wavering; there were no other witnesses and no physical evidence or other direct corroboration at trial that an sexual acts too place."  44 MJ at 674.  In opposition to the child's testimony, appellant denied that an sexual activity had occurred and offered evidence of his good military character.  With the record in this state, we conclude that the obvious and substantial error in referring to the appellant's invocation of his right to silence "materially prejudice[d] [his] substantial rights."   ART 59(a).  The decision of the United States Navy-Marine Court of Criminal Appeals is reversed.  The findings and sentence are set aside.  United States v. Riley, 1 MJ at 391."

Does that last paragraph not sound like Edwin's case?  Child says it happened.  There are no other witnesses or evidence that anything happened.  No witnesses (although HS did state the Edwin's ex wife Gloria, her mother Donna, and a boy named James witnessed the event).  Gloria denied all accusations.  Donna and James were never interviewed per Special Agent Gauthier (NCIS Parris Island) and Special Agent Eric Muelenberg (NCIS Camp Pendleton) RECORD AT 290-293.

Special Agent Muleneberg also lied about receiving a confession from Edwin.  After having told the court that there was a video camera available in the room during the interrogation-he (Special Agent Muelenberg) did not consider using it because "his word should be good enough".  Obviously, his word wasn't good enough since it never happened and he has no proof to show that it did.

This was just a sample of the 75+ page document submitted to the Judge Advocate General on Wednesday September 1st.  I made it perfectly clear in the brief that 1. they fucked up BIG time and 2. I am filing a substantial lawsuit because of the fuck up.

The government wanted case cites to support my claims, they got it.  I also let the Government know that there is something called Vicarious Liability, meaning that the lies that started with HS, Paul and Stacey eventually snowballed to this wrongful conviction and everyone from the Prosecution to the Commandant of the Marine Corps has known about this.  By them refusing to remedy the situation, they are all liable and will be named in my upcoming lawsuit.

Pleading ignorance to the law does not excuse violating the law.