Military judge rebukes prosecutors in Chen suicide case
By Steve DeVane | The Fayetteville (N.C.) Observer/MCT | Published: November 16, 2012
FAYETTEVILLE, N.C. — A military judge said Thursday that prosecutors cannot call 11 additional witnesses in the Pvt. Danny Chen suicide case.
Prosecutors notified defense lawyers for Staff Sgt. Andrew J. VanBockel of the additional witnesses Wednesday, after the court-martial had started.
VanBockel is accused of hazing, maltreatment and dereliction of duty. Army officials say hazing and mistreatment at the hands of Chen's platoon drove the 19-year-old to kill himself last year at Combat Outpost Palace in Kandahar province in Afghanistan. Eight soldiers from Chen's Alaska-based unit were charged.
Lead prosecutor Maj. Joshua Toman said he wanted to call the additional witnesses in an effort to introduce evidence that the judge, Col. Tara Osborn, had ruled inadmissible Wednesday.
Osborn rebuked Toman's efforts, saying prosecutors were trying to get around one rule of military court because they failed to follow another one.
"Two wrongs do not make a right," she said.
Osborn said the defense lawyers should have been notified about the potential witnesses so they could interview them before the court-martial.
"We don't practice trial by ambush or trial by surprise in this court," she said.
VanBockel's civilian lawyer, Colby C. Vokey, said in an interview that the case might have been delayed until February if the witnesses had been allowed.
"I'm not necessarily afraid of the witnesses," he said. "I just don't know what they would say."
Osborn apologized to jurors, saying the court-martial was delayed by more than an hour and a half because of the prosecutors' negligence.
The judge admonished Toman again after testimony began Thursday. When the prosecutor asked a former Army criminal investigator about photographs, Vokey objected and asked for a hearing.
After the jury left the courtroom, Vokey said the photos were from Chen's autopsy. Osborn ruled before the court-martial started that the jury will not hear about Chen's suicide.
Osborn asked Toman why he was using the photo. Toman said it was proof that agents investigated Chen's injuries and would serve to prove that VanBockel knew or should have known about the injuries.
The judge told Toman he was getting close to a line he should not cross and said the photos would not be allowed.
"Do not use these," she said.
The former agent, Lee Mish, testified about the investigation he led in 2011. He said several times he couldn't recall details and Toman asked him to look at reports to refresh his memory.
Vokey asked Mish about his resignation from the Army when it appeared he was going to be forced outbecause he was accused of making false statements, failing to obey regulations and conduct unbecoming an officer. Vokey said Mish had wrongfully created a military email account, too.
Mish said during the court-martial Thursday that he did not know his actions were wrong.
But, "I chose not to fight it," he said.
Vokey also asked Mish about an incident in Colombia where he was accused of drinking and going to a hotel with women.
Mish said he was drugged while on a protection mission for a four-star general, and said he had to spend two days in the hospital.
Several soldiers from Chen's unit also testified Thursday. Under questioning by Toman, they said Chen was called racist nicknames, such as "dragon lady" and "fortune cookie." Chen was Chinese-American.
When questioned by Vokey, the soldiers said nicknames were common in the unit, and that several of the nicknames had disparaging or racist overtones.
The soldiers described Thursday how Chen was made to low-crawl or do push-ups or sit-ups as punishment. They also said Chen was a weak soldier who kept making mistakes and needed training.
VanBockel's court-martial continues today.
He is the seventh of the eight soldiers to face court-martial related to Chen's death.
The soldiers are from the 25th Infantry Division's 1st Stryker Brigade Combat Team at Fort Wainwright, Alaska. The proceedings are at Fort Bragg because the unit was attached in Afghanistan to the 82nd Airborne Division.
Four of the six other soldiers who have been punished for treatment of Chen were convicted in courts-martial. Two reached plea agreements.