Marc Mukasey Featured in New York Times Article

Posted by Mukasey Young LLP | Jul 02, 2019

Navy Seal Chief Accused of War Crimes is Found Not Guilty of Murder
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SAN DIEGO — In a war-crimes trial that roiled the elite Navy SEALs and drew the attention of President Trump, a decorated eight-tour SEAL platoon leader was found not guilty on Tuesday of first-degree murder of a captive ISIS fighter and attempted murder of civilians in Iraq.

But the platoon leader, Special Operations Chief Edward Gallagher, was convicted of one charge: posing for photos with the teenage captive's dead body.

Chief Gallagher, 40, who was serving with SEAL Team 7, became a rallying cause of some Republicans in Congress and members of the conservative media. Mr. Trump said on Twitter in March that he would have the chief released from pretrial confinement “in honor of his past service to our country.”

Because the maximum sentence Chief Gallagher could now face is four months, and he has spent more time than that in pretrial confinement, he was expected to go free after sentencing on Wednesday. But he could still face administrative punishment from the Navy, including an other-than-honorable discharge.

The chief was turned in by his own platoon last spring. Several fellow SEALs reported that their leader had shot civilians and killed the captive Islamic State fighter with a custom hunting knife during a deployment in Iraq in 2017. He was also charged with obstruction of justice by threatening to kill SEALs who reported him.

In the SEALs, Chief Gallagher had a reputation as a “pirate” — an operator more interested in fighting terrorists than in adhering to the rules and making rank. When members of his platoon reported his actions to superior officers, fissures were revealed in the polished image of the SEALs and the unwritten code of silence among members of the secretive force, who see themselves as a brotherhood.

Some of the platoon members who spoke out were called traitors in a closed Facebook group and were threatened with violence. In court, some said they had started carrying weapons for self-defense.

From the beginning, the Navy portrayed the murder case in particular as a simple one with eyewitnesses to the crime and a culprit whose text messages appeared to admit guilt. But the military repeatedly stumbled in investigating and prosecuting the chief.

The SEAL command initially downplayed the platoon members' reports about the chief, and did not start an investigation of the alleged crimes for more than a year, allowing the trail of evidence to grow cold. The lead prosecutor was removed from the case in May after he was caught improperly attaching tracking software to email messages sent to defense lawyers, leaving his replacement with just a few weeks to catch up before trial. And a key witness changed his story on the stand to favor Chief Gallagher.

The witness, Special Operator First Class Corey Scott, a SEAL medic who was given immunity from prosecution by the Navy, stunned prosecutors by testifying that he, and not Chief Gallagher, had killed the captive, by covering a breathing tube inserted in the captive's neck. His testimony also deviated in other significant ways from what he had told investigators before trial; the Navy has indicated it is considering charging him with perjury.

In a courtroom at Naval Base San Diego, close to the harbor where hulking destroyers and missile cruisers dock, a jury of five Marines, a member of the SEALs and a Navy officer, nearly all with combat experience, spent two weeks hearing testimony in the trial, including unvarnished accounts of one platoon in the Navy's celebrated elite commando force. They deliberated for a little more than eight hours before reaching a verdict.

“The jury found him not guilty of the murder, not guilty of the stabbing, not guilty of the stabbings, not guilty of all those things,” one of his lawyers, Timothy Parlatore, told reporters outside the courtroom. “They did find him guilty of taking a photograph with a dead terrorist, which we admitted from the beginning.”

Chief Gallagher sat stoically in the courtroom in a white dress uniform during the trial, with his wife, brother, mother and father, who was a West Point graduate, sitting behind him. He did not testify.

Marc Mukasey, another of his lawyers, said the chief began to cry when the verdict was read. He described the moment as “tears of joy, elation, freedom, absolute euphoria.”

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