Germans withholding evidence in AFN murder case pending death penalty decision
By JENNIFER H. SVAN AND MARCUS KLOECKNER | STARS AND STRIPES Published: July 23, 2014
This story has been corrected.
KAISERSLAUTERN, Germany — German authorities will withhold key evidence in the strangulation death of an AFN broadcaster — including the victim’s throat — unless the U.S. military gives assurances it will not seek the death penalty for the airman accused of the murder.
The U.S. military charged Staff Sgt. Sean Oliver in March with murder in the death of Petty Officer 2nd Class Dmitry Chepusov. German police stopped Oliver on Dec. 14 in Kaiserslautern for driving erratically and found Chepusov’s lifeless body in the passenger seat of Oliver’s car.
After conducting an autopsy, German authorities concluded that Chepusov, a 31-year-old sailor assigned to the American Forces Network at Ramstein Air Base, died of “force to the neck.”
Although German authorities initially cooperated with U.S. military investigators, they withheld the throat and other evidence when they turned Chepusov’s body over to U.S. authorities.
At issue is the death penalty, which Germany abolished in 1949. Like other countries that have outlawed capital punishment, Germany will not cooperate with any other state in the prosecution of a capital case.
The NATO Status of Forces Agreement gives the U.S. military primary jurisdiction over Oliver since the alleged crime was against another military member, said Juan Melendez, a spokesman for the 86th Airlift Wing at Ramstein.
Before handing over all of the evidence to U.S. investigators, the Germans sought — and initially received — assurances from the Americans that the death penalty was not on the table, according to Achim Nunenmann, senior prosecutor for the city of Kaiserslautern.
Before the handover, however, the Americans told Kaiserslautern prosecutors that Oliver could face execution after all.
That prompted the Germans to hold back some of the physical evidence, Nunenmann said.
Under the law, the Germans must do all they can to refrain from cooperating with the guest military, in this case, the U.S., on anything that would lead to a death sentence, said Dieter Deiseroth, a legal expert on the SOFA and a judge at Germany’s federal administrative court.
Based on the constitution and corresponding case law, German authorities can only cooperate “when we know that it will not come to a death penalty,” said Udo Gehring, lead prosecutor in Kaiserslautern. “This is not a matter of interpretation ... it is a clear point of law.”
Air Force prosecutors would not speculate on how missing evidence might affect the strength of their case against Oliver.
Army Maj. Dori Mitchell Franco, the armed forces regional medical examiner who conducted a second autopsy six days after Chepusov’s death, told an Article 32 hearing Friday that without being able to examine the missing tissue, she could not definitively determine the cause of death, although injuries appeared to be “consistent” with strangulation. The missing portion included the hyoid bone, a small U-shaped bone in the neck that can be fractured during strangulation.
The U.S. military has yet to decide whether to seek a death sentence for Oliver, who is alleged to have murdered Chepusov “with premeditation” by strangling him with his hands, according to Oliver’s charge sheet. The Uniform Code of Military Justice says the death penalty can be applied if the murder was premeditated.
Nunenmann, the Kaiserslautern senior prosecutor, said his office is willing to cooperate – if the U.S. military takes the death penalty off the table.
“If they want the exhibit (physical evidence), they need to do something,” he said.
Investigating officer Air Force Lt. Col. Christopher Leavey, who presided over Oliver’s Article 32, a pretrial hearing, is expected to recommend specific charges against Oliver and whether the death penalty should be sought. The final decision is up to the convening authority, 3rd Air Force commander Maj. Gen. Darryl L. Roberson.
The death penalty is a rare outcome in military trials, especially in the Air Force. No military member has been executed since 1961, when Army Pvt. John Bennett was hanged for raping an 11-year-old Austrian girl seven years earlier and attempting to drown her. Andrew Witt, convicted of killing a fellow airman and his wife at Warner Robins Air Force Base in Georgia in 2004, is the only airman on death row at Fort Leavenworth’s prison.
There are five other servicemembers on death row, all soldiers, all enlisted — except for former Maj. Nidal Hasan, who was sentenced to death for a 2009 rampage that killed 13 people and wounded 30 at Fort Hood, Texas.
Chepusov’s brother, Dennis Bushmitch, 43, said his family opposes the death penalty for Oliver and is asking the German authorities to provide full cooperation.
“We are urging the Americans not to pursue the death penalty,” Bushmitch said.
He and younger brother Andrey Chepusov attended Oliver’s Article 32 hearing at Ramstein Air Base. “We ask the German government to fully cooperate … and release any evidence that they’re still holding back, which is important to the case, because justice needs to be served.”
During the Article 32, Air Force Maj. Shane McCammon, defense counsel for Oliver, noted that Franco, the Army medical examiner, first reported Chepusov’s cause of death as undetermined, only later revising her findings after consulting with fellow medical examiners at Dover Air Force Base, Delaware.
“This is an unusual situation, to not have any of that tissue in this area,” Franco said.
McCammon asked whether Franco was able to collect any DNA evidence, either from under the victim’s fingernails or from his neck area. Franco said she was not because the body had been washed before she received it, a week after his death. The victim’s hands were blackened with fingerprint ink.
She said she didn’t know whether the Germans had collected any DNA evidence during their autopsy.
In addition to the victim’s throat, Franco said, the Germans also kept Chepusov’s tongue.
“I’ve been told there were political motivations for retaining” the evidence, Franco testified.
Germany has long been one of the most outspoken critics of the death penalty in Europe, opposing it on ethical, moral and legal grounds.
It outlawed the death penalty after the Nuremberg trials, where the widespread use of the death penalty by Nazi courts within Germany and in occupied territories came to light. Article 102 of Germany’s constitution says simply: “The death penalty is abolished.”
Most European countries have a commitment not to assist human rights violations, including executions, said James Connell III, an attorney at the Pentagon’s Office of the Chief Defense Counsel.
Connell cited the case involving Jens Soering, a German citizen accused of killing two people in Virginia in 1985. Germany fought Soering’s extradition to the United States on the basis that the defendant might be executed if convicted, Connell said. The government of Britain, where Soering had been arrested on check fraud charges, extradited him only after obtaining assurances from Virginia that it would not, in fact, charge him with capital murder.
Stars and Stripes reporter John Vandiver contributed to this report.
The original story had an incorrect rank for the commander of the 3rd Air Force. Darryl L. Roberson is a lieutenant general.