Attempted rape case goes to U.S. federal court
By DAVID ALLEN | STARS AND STRIPES Published: March 9, 2003
CAMP FOSTER, Okinawa — The case of Marine Maj. Michael Brown was to move to a U.S. District Court in Washington Friday with the filing of an emergency habeas corpus petition.
Brown, charged with attempting to rape a woman who offered him a ride home from the officers club on Camp Courtney Nov. 2, has been in the Naha Detention Center since his indictment in December. His criminal trial begins Thursday in Naha District Court.
Victor Kelley, a retired Marine officer and president of the National Military Justice Group, based in Birmingham, Ala., is requesting that the U.S. military exercise its right to try the case and attacks the status of forces agreement between the two countries.
Kelley, who was hired to handle the petition, wants the court to order military officials to demand the case be reverted to their jurisdiction and Brown be released from custody.
A habeas corpus is a formal legal document requiring a detained person be brought before a court to decide the legality of the imprisonment.
Handing a defendant over to the Japanese, he claims, is tantamount to sending them to prison.
“In Japan, to be indicted is to be convicted,” he argues in his brief. “The presumption of innocence is a mockery of justice. Almost without exception, all are convicted; no one goes free.”
Kelley, a military judge on Okinawa for three years in the 1980s, considers Brown v. United States to be a landmark case.
“I don’t believe anyone has gone this route before in a case involving a servicemember being charged in a Japanese court,” he said in a telephone interview from his Birmingham office. “It’s clear on its face that these charges against Major Brown are trumped up. And knowing the Japanese system as I do, it’s clear that Major Brown is going to be convicted.
“Why is this being done? It’s because there’s a movement in Japan to have the SOFA changed. They want even more control over Americans charged with crimes.”
Okinawa officials have called for a revision of the SOFA that will, among other things, give them immediate custody of any servicemember accused of a crime. Currently, the U.S. military retains custody until the suspect is indicted, unless Japanese police make the arrest outside the bases.
There is an “operational agreement” to consider the early turnover of suspects charged with murder or rape.
Brown was indicted Dec. 19 on charges of attempted rape and destruction of private property. The woman claimed she offered him a ride after the officers club closed and he directed her to a deserted road where he attacked her. When she resisted and tried to use her cell phone to call police, he snatched the phone away and threw into a nearby stream, she told police.
Brown, a 19-year Marine veteran assigned to the command element of the 3rd Marine Expeditionary Force, claims the woman became angry after he rebuffed her offer for sex. He told police she snatched his wallet and in a struggle to wrest it from her he grabbed her phone and threw it out of the car.
She reported the incident to military gate guards that night, but Brown was not informed he was a suspect until Nov. 8. He was restricted to base during the investigation but regularly brought to an Okinawa police station in Gushi- kawa for interrogation by police.
U.S. officials denied a request to hand over Brown prior to indictment.
In January, Brown fired his original attorney and hired former Okinawa prosecutor Toshimitsu Takaesu and New York attorney Michael Griffith, both of them are specialists in criminal cases involving Americans in foreign courts, to handle the trial in Naha District Court.
Kelley claims Brown’s detention is a violation of the U.S. Constitution and the SOFA. The article pertaining to the handling of criminal cases involving U.S. servicemembers, the brief alleges is “a naive attempt to reconcile two disparate criminal justice systems.”
He said the Japanese system “prizes an ordered society where social harmony triumphs constitutional niceties.”
Such an atmosphere prevents defendants from receiving fair trials in Japanese courts, the petition claims.