Clemency is last hope for a more normal life

By SETH ROBSON | STARS AND STRIPES Published: May 12, 2009

GRAFENWÖHR, Germany — The fates of three U.S. soldiers sentenced to long prison terms for the premeditated murder of four detainees in Baghdad in 2007 lie in the hands of Brig. Gen. David R. Hogg.

Earlier this year, Master Sgt. John Hatley, Sgt. Michael Leahy and Sgt. 1st Class Joseph Mayo — all former Company A, 1st Battalion, 18th Infantry Regiment noncommissioned officers — were convicted in separate courts-martial in Vilseck, Germany. As the Joint Multinational Training Command chief, and convening authority in local courts-martial, Hogg must decide whether to grant clemency to the three soldiers, who were all reduced in rank to private.

Leahy was sentenced to life in prison with the possibility of parole on March 28. Hatley received the same sentence when his court-martial ended on April 16. Under a pre-trial agreement, Mayo’s sentence was reduced to 35 years in prison when his conviction was handed down on Feb. 21.

According to the soldiers’ lawyers, Hatley and Leahy face 20 years in prison before they are eligible for parole, while Mayo must serve at least 10 years.

But Hogg has a wide discretion to either uphold, reduce or overturn the sentences.

The commander is expected to make clemency decisions within 120 days of the end of each soldier’s trial, according to the JMTC public affairs officer, Maj. Jennifer Johnson.

The clemency process includes the preparation of a written record of each trial, which is reviewed by lawyers from both sides before it is presented to the convening authority along with supporting material that defense lawyers think will help their clients, Johnson said. Supporting material might include letters from family, friends and other soldiers testifying to the soldiers’ good character and the effect their confinement will have on the families, according to a legal source.

Hatley’s wife, Kim, for example, wrote an eight-page letter to Hogg, pleading for clemency for her husband. Her letter can be read at Stripes.com.

There was evidence presented at the trials that the men suffer from post-traumatic stress disorder, along with physical injuries, including brain trauma. Evidence also suggests that, at the time of the killings, they were sleep-deprived.

Testimony contended that the men they are accused of killing were most likely insurgents, caught with weapons shortly after an attack on U.S. troops. And there was evidence that dangerous detainees were being released for lack of evidence in the weeks before the incident.

However, Hogg will balance those factors with other considerations.

During the courts-martial, government lawyers made the point that, because the victims have never been identified, the impact on the victims’ families cannot be gauged.

Another consideration raised by prosecutors is the impact of the case on good order and discipline in the Army. Capt. John Riesenberg, assistant government trial counsel, told one jury that its sentence should be aimed at stopping other soldiers from doing what the Company A soldiers did.

"These facts have confronted American soldiers in past wars, they confront American soldiers in this war and they will confront them in the future," he said.

Perhaps the most significant thing for Hogg to consider might be the message that the soldiers’ punishment will send to Iraqis and the world.

"Send a message to the world that this is an Army that recognizes that it is different, that American soldiers just don’t do this," Riesenberg said during one of the trials. "They don’t execute detainees in the middle of the night by shooting them in the back of the head when they are bound and blindfolded and dump their bodies in a canal."

Riesenberg told the court that the detainee killings had undermined America’s war effort in Iraq.

There is a precedent of at least one soldier being granted clemency for war-time crimes.

After the 1968 My Lai massacre of hundreds of civilians, including women and children, in the Vietnam War, there was an attempted coverup.

At the time, Stars and Stripes reported that "U.S. infantrymen had killed 128 Communists in a bloody day-long battle."

Eventually, the killings were exposed by whistle-blowers and private media organizations.

In his book "A Soldier Reports," the field commander of U.S. forces in Vietnam at the time of the massacre, Gen. William Westmoreland, described the killings as: "the conscious massacre of defenseless babies, children, mothers and old men in a kind of diabolical slow-motion nightmare that went on for the better part of a day, with a cold-blooded break for lunch."

Westmoreland states in his book that only one person, a platoon leader by the name of 1st Lt. William Calley Jr., was convicted of premeditated murder of "at least" 22 people following the incident at My Lai. He was sentenced to life in prison.

In that case, Westmoreland writes, Calley was granted clemency that reduced his sentence to 10 years.

Ultimately, Calley served only three and a half years of house arrest at Fort Benning, Ga.