I first came to the firm in 2005. I was prior enlisted in the Marine Corps - having made it to the rank of Staff Sergeant. By the summer of 2006, a number of Marines from 3/1 were under investigation related to 24 deaths in the city of Haditha, Iraq.
Mr. Myers had started his Army career in 1969. By 1971, he was involved in the trial of Captain Ernest Medina. Captain Medina was the company commander of the unit that committed atrocities in the Vietnamese hamlet of My Lai on 16 March 1968. The Wikipedia entry for Captain Medina states:
"Medina's defense team, led by F. Lee Bailey and a support staff that included Gary Myers, alleged that his men killed Vietnamese noncombatants under their own volition and not under Medina's orders. Medina also testified that he did not become aware that his troops were out of control at My Lai until it was too late."
Captain Medina, unfortunately, was charged with killing a woman hiding in the bushes that Captain Medina believed had a grenade. A jury found him not guilty - deliberating for about 60 minutes.
On 19 November 2005, several Marines from 3/1 came under attack in the city of Haditha, Iraq. An improvised explosive device destroyed one of their vehicles - killing a Marine. The Marines then came under attack by small arms fire. Several of the Marines had performed heroically in the Battle of Fallujah in the previous deployment. The Marines went house to house. In the aftermath, there were 24 Iraqi casualties.
Haditha was far different than My Lai, but not so different from Captain Medina's case. The Marines in Haditha were acting in good faith when they applied their training under the Rules of Engagement to the source of small arms fire. They responded exactly how they had been trained to respond.
By 2006, the US had not really had a mass casualty engagement involving potential noncombatants resulting from ground forces. The firm was retained to represent one of the Marines. We were successful in that representation.
The lessons of US v. Medina; however, would be invaluable in the Haditha case. When we took on the Hadith case, Mr. Myers immediately recognized that US v. Medina involved an application of the Rules of Engagement in combat. In the Medina case, F. Lee Bailey famously argued that killing on the battlefield is not the same as killing on the street.
Mr. Bailey argued for a justifiable homicide instruction in the Medina case. When the Haditha case came about, Mr. Myers immediately sent me on a mission to find the record of trial in US v. Medina. We wanted to look at the arguments that F. Lee Bailey made in favor of the justifiable homicide instruction. I wound up speaking to two of the former prosecutors in the My Lai case who had a copy of the record of trial.
Mr. Myers' experiences really guided all of the defense teams in the Haditha case as we all crafted defenses that argued the actions of the Marines were justified under the Rules of Engagement.
There a number of public documents available on the internet from both cases. As a result of both cases, I quickly learned that killing on the battlefield is not the same as killing on the street. I've spent the better part of the last 10 years thinking about combat use of force and advocating for Soldiers and Marines that act in good faith in combat.
Here is a copy of the jury instruction in US v. Medina.
"INSTRUCTIONS TO THE COURT MEMBERS UNITED STATES v. CAPTAIN ERNEST L. MEDINA
[Starting with page 7 of the instructions.]
You are again advised that the killing of a human being is unlawful when done without legal justification or excuse. As to this offense, the defense has raised the issue of self-defense and that the killing was therefore lawful as being justifiable. I will cover this matter later in these instructions in greater detail.
[Self-defense instructions are continued on page 10.]
As to each level of the offense charged in Specification 1 of Charge 1, that is premeditated murder, unpremeditated murder, and assault with intent to commit murder (and I inform you now that there are no other lesser offenses to those mentioned reasonably raised by the evidence); but that as to those three offenses, I have advised you in order to find the accused guilty of any one of those offenses, in addition to the other elements of those offenses, you must be satisfied beyond a reasonable doubt that the acts of the accused were without legal justification or excuse.
In this regard, you are advised that the issue of self-defense has been raised by the evidence with respect to all levels of the offense charged in Specification 1 of Charge 1. In determining this issue, you must consider all relevant facts and circumstances including but not limited to the following recitation of facts bearing upon this issue. I propose to do this by first outlining the relevant evidence that the military judge can recall that was offered by the defense tending to show that the act of shooting at the woman was in defense of his own safety and therefore justifiable, and then outlining evidence offered and argued by the Government as indicating the act was not in self-defense and thus unlawful. You must bear in mind that my recitation of this evidence does not give such evidence any greater weight than any other evidence. Nor does this purport to hold up all the evidence on this issue but only such as I remember. Nor does my singling out this evidence indicate that my recollection of the evidence is necessarily correct. You have the independent and affirmative duty of considering all the evidence offered in this case and it is your recollection of nature and extent if any, and all the evidence upon which you must rely and not mine. The defense has elicited testimony by which it seeks to show that the accused and his command group had received orders to proceed to the areas marked with smoke grenades which indicated VC with weapons for the purpose of recovering the weapons. Upon approaching the woman, soldiers saw no signs of life. After a visual inspection of the area which revealed no weapons, they turned to go. Captain Medina and several of the members of the command group have testified that they saw movement, and they felt apprehension. Captain Medina stated that he feared the woman had a hidden weapon of grenade, whirled around and fired at her. One witness testified that the accused said out loud, “Oh, my God, the son of a bitch has got a grenade.” The Government has elicited testimony by which it seeks to show that the woman was alive at the time her location was marked. The command group approached, the officer wearing the insignia of a captain either nudged the woman or turned her over with his foot, stepped away, then turned and shot her. The only movement observed consisted of blinking eyes, expanding chest or moving limbs which the government contends are only normal signs of life. Nobody dove for the ground and no effort was made to turn the woman over after she was shot to determine she was indeed armed.
Self-defense, as I will explain that term to you, is a complete defense to all levels of the offense charged in Specification 1 of Charge I. Self-defense is a defense of necessity, not simply an excuse. It is composed of two elements. First, the defense is looked at through an objective test, what would a reasonable man have feared. Secondly, the defense is looked at subjectively, that is, through the eyes of the accused, to determine if he believed the force he used was necessary. So to this affirmative defense then, you must determine: First, the surrounding circumstances must have been such that reasonable grounds existed to make it apparent that death or grievous bodily harm might be inflicted on the accused and the accused must, in fact, have had such an apprehension. The test for the first element, insofar as it related to reasonableness is whether, considering all the circumstances, a reasonable and prudent person on the battlefield would believe that there was ground to apprehend death or grievous bodily harm. This determination is made from the viewpoint of an ordinary prudent adult male.
As I indicated, this aspect of the defense, therefore, is objective in nature. Secondly, the accused, Captain Medina, must have believed that the force he used was necessary for protection against death or grievous bodily harm. Thus the test for this element is subjective in nature. Captain Medina, therefore, because of the subjective nature of this second aspect of the defense, is not objectively limited to the use of reasonable force. The accused’s experience, age, level of education, intelligence, emotional control, and prior combat experience are all relevant in determining his actual belief as to the degree of force necessary to thwart any attack. Here the situation is in effect viewed “through the eyes of the accused.”
The burden is on the Government to establish the guilt of the accused by legal and competent evidence beyond a reasonable doubt. Consequently, unless you are satisfied beyond a reasonable doubt that the accused did not act in self-defense, as I have defined that for you, you must acquit the accused of Specification 1 of Charge I and of Charge I."
"JUDGE REFUSES TO DISMISS CASE AGAINST MEDINA IN MYLAI DEATHS
By HOMER BIGART
Special To New York Times
FORT McPHERSON, Ga., Sept. 10
The military judge in the trial of Capt. Ernest Medina denied today defense motions to dismiss the case. He said that the Government had produced "some substantial evidence" in support of all the charges against the captain in the Mylai killings.
The judge, Col. Kenneth A. Howard, also refused to direct the five-man court-martial to return a verdict of not guilty.
F. Lee Bailey, representing Captain Medina, said he was ready to open the defense case on Monday. He has asked the Government to produce as defense witnesses First Lieut. William L. Calley Jr., one of Captain Medina's platoon leaders, who was convicted last March of the premeditated murder of 22 South Vietnamese civilians at Mylai, and Col, Oran K. Henderson, former commander of the 11th Brigade, American Division, no on trial at Fort Meade, Md., for attempting to cover up the mass slaying of March 16, 1968.
Lieutenant Calley, whose sentence has been reduced to 20 years, will be brought here Monday morning from Fort Benning, Ga., where he is confined pending appeals.
Colonel Henderson will not be available until late next week.
Arguments for Dismissal
It has arguments for dismissal, Mr. Bailey contended that the Government had failed to support its charge that Captain Medina had committed premeditated murder when he shot a Vietnamese woman lying in a rice paddy outside Mylai. There was a difference, he said, between a "battlefield homicide" and "murder in the street."
There was no dispute, he said, that Captain Medina shot the woman. But the Government failed to prove that the shooting was without justification, he said. Captain Medina fired instinctively, Mr. Bailey went on, when he saw the woman move after he had been ordered to check the "Vietcong suspect" for arms.
Captain Medina felt bad after shooting the woman and reported the incident by telephone to Colonel Henderson, who told him not to worry, according to Mr. Bailey.
As for the charge that Captain Medina shot a small boy, no witness contended that Captain Medina discharged his rifle, Mr. Bailey said. I was conceded that the captain, reacting to a "sudden movement," had shouted something and that a member of his command group had shot the child, but there was "only the rankest speculation" that Captain Medina intended that the boy is shot, Mr. Bailey said.
Over-All Responsibility
Similarly, the Government failed to prove Captain Medina had over-all responsibility for the mass slaying. Mr. Bailey said. There was no proof, he said, that the captain was aware of excessive killings until he saw a large number of bodies on a trail sometime between 10 A.M. and 10:30 A.M. and he then ordered a cease-fire.
For the Government, Maj. William G. Eckhardt argued that the evidence submitted by 31 witnesses "Clearly showed Captain Medina had knowledge of the killings and calculatingly chose to ignore what was happening." By his inaction, Captain Medina "aided and abetted" in the slayings, Major Eckhardt said.
Frederick J. Widmer, a 23-year-old welder of Lower Burrell, Pa., will continue his refusal to testify as a Government witness in the Medina case despite a contempt citation, his Army attorney, Capt. Gary Myers, said today.
Mr. Widmer was cited for contempt Aug. 25 when, despite a grant of immunity, he invoked the Constitutional privilege against self-incrimination. He obtained a temporary order restraining the Government from prosecuting him on the contempt charge. The order was dissolved this morning by a Federal judge. Mr. Widmer was a member of Captain Medina's company at Mylai. A witness testified two weeks ago that Mr. Widmer shot a small boy during the attack."