Lawyers battling over charges in murder trial
HEIDELBERG, Germany — The first military murder trial in perhaps a decade in this genteel garrison likely will not focus on simple guilt or innocence.
Instead, the hardest-fought battle between the prosecution and defense could be whether the defendant planned the killing or acted on impulse.
At Pfc. Mario Lesesne’s Article 32 hearing on Friday on premeditated murder, attempted murder and assault charges, the defense did not dispute that Lesesne stabbed and killed Pfc. Valerie Gamboa, stabbed her roommate, fought with the roommate’s boyfriend who’d come to her aid and slammed the knife out of his hand.
That’s because there were many soldiers who were eyewitnesses to the Jan. 21 events in Thomkins Barracks in Schwetzigen.
Spc. Jamie Kaskowitz testified that she watched helplessly as Lesesne slit Gamboa’s throat.
Spc. Larry Thomas testified that he saw Lesesne stabbing Kaskowitz and punched him in the head and put him in a headlock until Lesesne, a 26-year-old medic who had been in the Army nearly seven years, broke free.
And numerous soldiers testified that, hearing screams, they ran out to the hall and saw Kaskowitz collapsed and bleeding in the hall, Lesesne struggling with Thomas or then running out of the barracks.
Defense attorney Capt. Joe Venghaus tried to impress on Maj. Derrick Cooper, the hearing officer, with what he called a lack of evidence that Lesesne had thought about killing Gamboa before he did so.
“What you’re not going to see is anything indicating premeditation,” Venghaus said in his opening statement.
Venghuas hoped to persuade the hearing officer to recommend a charge reduction, and take the issue off of the table before the court-martial.
Premeditated murder in the military justice system carries a mandatory minimum penalty of life in prison, with the possibility of parole.
The penalty for a murder that was not premeditated but was intentional is discretionary, “as a court-martial may direct,” according to the Uniform Code of Military Justice.
In premeditated murder, a panel must find there was a “premeditated design to kill,” or an intent to kill and consideration of the act beforehand. There is no definition for “any measurable or particular length of time” for such consideration.
In unpremeditated murder, “the accused had the intent to kill or inflict great bodily harm.”
Military prosecutors declined say why they believe premeditated murder is the appropriate charge in the case.
But prosecutors and defense lawyers agree privately that the difference is “squishy,” and open to interpretation.
Several theories may come into play from the prosecution at trial if the charge is not reduced.
One is the likelihood Lesesne — who according to court proceedings was accused in 2003 of assaulting a former girlfriend — was considering the killing when he got what’s been identified as the murder weapon. Under questioning from prosecutor Capt. Jacqueline Tubbs, Kaskowitz said the knife had been kept in the kitchen.
Another is that Lesesne had time to reflect on his actions when, according to Kaskowitz, she went to see why her roommate had screamed, and she saw Lesesne pinning Gamboa to the bed. Kaskowitz said she looked at Gamboa, and both Lesesne and Gamboa looked at her. Then, she said, Lesesne drew the knife across Gamboa’s throat.
The prosecution made a point at the Article 32 of asking soldiers who knew about Gamboa’s plans to break up with Lesesne, and of his harassment of her because he was jealous, obsessive and intent on controlling her.
Several witnesses said they saw or heard the two arguing that night. One witness said Lesesne had confronted him hours before the killing about flirting with Gamboa.
Cooper, the hearing officer, is to make a recommendation on how to handle the case to the next person in the chain of command, in this case, the commander of the 30th Medical Brigade.
That commander will add his own thoughts and send the case to the convening authority for general courts-martial, in this case, Lt. Gen. James Thurman. It is Thurman’s decision how charges will be referred against Lesesne at court-martial, said V Corps spokeswoman Hilda Patton.