RE: Case Advice

["Haytham Faraj" <haytham@puckettfaraj.com>]

Those are some facts.  If you think that this is going to be a capital
referral then it seems to me that saving the client's life is paramount.  If
it is not a capital referral, then going through the 32 and having some time
to explore the mental health condition of the client may give you enough
lack of mental capacity evidence to get over the specific intent the
government needs.  Also if the only way the government gets capital is
through the felony murder route, they don't have it.  Your client uttered
his desire to kill and did, not commit a robbery.  

-----Original Message-----
From: Baker LtCol John [mailto:john.baker1@usmc.mil] 
Sent: Wednesday, March 10, 2010 5:45 PM
To: Baker LtCol John
Cc: Thielemann MAJ Christopher J; Tafoya LtCol Patricio A; Hoover Maj
Forrest W
Subject: Case Advice

Gents,

	Looking for a sanity check and suggestions for a possible plea
offer.  

	Forrest Hoover and I represent a Marine charged with premed murder
and robbery and the government is, at least pre-32, treating this case a
possible capital case (they have already approved a mitigation investigator
and forensic psychiatrist and given us a line of accounting for case related
travel).  Factually, I don't see this as a capital case.  

	Alleged Facts:  

	My client (a 3 yr Pvt), while reading the unibomber's manifesto (I
can't make that fact up), after a long night of drinking and drug use in the
barracks where he was restricted, told a buddy (X) he wanted to kill
someone.  The client is then alleged to have run  down from the second floor
of his barracks, carrying a large metal spike, across the courtyard, and hit
a Marine (who the client did not know) that was sitting in a chair talking
on his cell phone over the head with the spike.  He then yells to his buddy
X to come help him.  X comes over, sees what appears to be a dead body and
takes off for his barracks and wakes up his roommate to tell he just saw my
client murder someone. After X leaves, the client at some point hits the
victim enough times to literally break every bone in his skull and face and
drags and carries the body over a 100 yards across a parking lot and hides
it the woods.  The crime scene photos are gruesome.

	X and his roommate go to the duty and report this and take the duty
to where the body was.  The duty was skeptical until he saw a pool of blood,
at which point the duty called 9-1-1.  My client, who returned to his room
while X was at the duty hut, comes out of his room, jumps over the balcony
on the 2d deck and starts yelling at and chasing X.  The duty yells to my
client to stop and return to his room, which he does (the 9-1-1 recording
captures all of this).  

	PMO arrives on the scene, they eventually enter my client's room
where they find my client in the bathroom with self-inflicted wounds to the
neck and forearms.  PMO also finds the victim's cell phone in the bathroom.
The client is eventually life flighted to a local hospital and when later
questioned by NCIS invokes.  Assume, hypothetically, that the client claims
complete amnesia/blackout between a certain point pre-event until waking up
at the hospital.

	The gov't has a very strong case on the murder ("I want to kill
someone", X is basically an eyewitness and X's story is supported by the
evidence, and there's forensic evidence out the wazzoo tying my client to
the murder).  My defense at this point, is either a complete lack of mental
responsibility defense (which my forensic psych says isn't there - as have
all other psychs I've talked to) or a partial mental responsibility/lack of
proof of pre-med because the client who's life had been spiraling downward
over the last six months was so whacked out on drugs and alcohol that he
didn't premed the murder.

	The gov't have a much weaker case for the robbery - while the client
may have taken the phone, the logical explanation is the phone was picked up
after the murder and may have been a larceny, not that client formed the
intent to steal and then committed the murder.  The robbery charges is
critical as it provides the only basis for a capital referral (murder done
while committing a robbery).

	My mitigation investigators have been hard at work and have the
interviews and records to establish that the client has life long mental
health issues (suicide attempt in 9th grade, a period of in-patient
treatment thereafter, bi-polar diagnosis while in the service, and suicide
ideations throughout this year) and has been a chronic substance abuser
almost his entire adult life (although the command's SACO records don't
support this).  Additionally, the command missed several warning signs that
the client was becoming unstable and did not ad sep him after a number of
NJPs.  All that being said, the client is not going to seem very sympathetic
- he grew up in a middle class family that certainly was dysfunctional but
offered the client many of the advantages in life most Marines don't get.
Plus he's smart.

	The 32, which has been continued since January, is set for
mid-April. 

	Question -- would you try to seek a deal now and if so, for what
cap?  At this point will take any advice (except to bring you onto the
case!).

	Looking forward to seeing many of you next week.

S/F,

JB
Semper Fi,

LtCol John G. Baker, USMC
Regional Defense Counsel, Eastern Region
762 G Street
PSC Box 20087
Camp Lejeune, NC 28542-0087

Office: (910) 451-5996; Cell: (910) 478-7478; Fax: (910) 451-2293 

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