(Courtesy U.S. Army)
VICENZA, Italy — In an Italian court last month, Pvt. Darius McCullough was convicted of rape and sentenced to six years in prison.
But he’s also scheduled to rotate out of Italy on Saturday, so it’s possible he’ll never see the inside of a cell.
The disconnect comes from a painfully ponderous Italian justice system, a reluctance to jail U.S. military defendants, and the obscure workings of the status of forces agreement — the legal framework governing U.S. troops in Italy.
McCullough’s case is not unique.
Sgt. James Michael Brown was sentenced by the same Vicenza court to six years in prison, also for rape, in 2005. But a few months later, he flew back to the U.S., and he hasn’t been seen in Italy since. He is just one of many soldiers who — over the decades — has been prosecuted and convicted by Italian authorities of serious crimes, then flew home and resumed his life stateside.
U.S. troops assigned here have long committed crimes with what amounts to impunity. In the past five years, there have been some 200 Italian prosecutions of U.S. troops, including cases involving assault, sexual assault and negligent homicide. But as of early this year, only one servicemember was jailed in Italy.
According to Cmdr. David Lee, SOFA expert at the U.S. Region Legal Service in Naples, the U.S. has no authority to prevent troops facing prosecution in Italy from leaving when their two- or three-year tours are over. The exception, he said, is for troops in custody, either in an Italian jail or the U.S. military jail in Germany.
What’s more, Lee said, Italians do not object to this state of affairs.
The relationship between U.S. and Italian legal officials is so “mature,” Lee said, that in minor cases — traffic offenses, minor assaults, thefts — Italian prosecutors don’t expect to even be told when a troop is due to rotate, either to leave the service or go to another base.
In more serious cases, Italian prosecutors are informed, but “a lot of the time, the prosecutor will say, ‘Va bene,’ ” Lee said. “‘It’s fine.’ ”
The Italian system frequently allows defendants to remain free — or under house arrest — while the case works its way through the justice system, a process that for criminal cases takes an average of five years to complete.
“Why aren’t we keeping the servicemember in Italy? It’s not our case,” Lee said. “We’re giving respect to the Italian system.”
Vicenza prosecutor Antonino Cappelleri declined to comment, and the Italian Justice Ministry did not respond to emails seeking comment.
But Vicenza criminal lawyers suggested that, at least at the local level, the view is that military defendants leave Italy, never to return, primarily because the powerful U.S. does as it pleases.
Paolo Mele, McCullough’s lawyer, said that in 23 years of working with U.S. military defendants, he’d never heard prosecutors say it was fine that a defendant was leaving.
“Never!” he said.
Mele said he’d recently represented another U.S. soldier already back in the U.S. when he was convicted of an assault and sentenced to six months in jail. In his view, if the U.S. actually showed respect to the Italian system, military defendants would be extended past their rotation dates. They’d be paid, fed and housed by the military like any troop until the case was finished, no matter how long it took.
The Americans “are not able to open their minds and understand that there are different ways to deal with situations,” he said.
Nicola Canestrini — another Italian defense lawyer who represented a U.S. soldier facing rape charges who disappeared back to the U.S. — called the system farcical.
“It doesn’t make sense to have a trial if there will be no sentence served,” he said. “It is just a fiction. Everybody knows he is not going to serve one day.”
McCullough, with one guilty verdict, is entitled to two more trials: an appeals trial in Venice and final trial in Italy’s highest court in Rome. Mele estimated the case could be completed in two years.
But Italian criminal cases can take far longer. The infamous Amanda Knox case, in which the American student was twice convicted and twice acquitted, for instance, took almost eight years before a final decision by Italy’s highest court in March.
Knox spent nearly four years in an Italian jail.
In some cases the statute of limitations runs out during the process, and the case is dropped. Mele said his previous cases with U.S. military defendants had ended that way.
With McCullough’s rotation date approaching, it was not clear what would happen next.
Vicenza-based Army authorities have declined to comment on the case.
Mele said the Army told the judge that McCullough could not remain on base past his transfer date. His continuing presence was reportedly considered detrimental to good order and discipline.
Army officials have repeatedly offered to confine McCullough at the U.S. military jail in Germany, but Mele said the judge declined.
Judges rarely want to send defendants outside their own jurisdiction, Mele said, let alone another country.
“Would a U.S. judge agree to send someone to a jail in Mexico?” Mele said.
Why doesn’t the Italian judge simply order McCullough into Italian jail?
McCullough, who has complied with his house arrest, shouldn’t have to be jailed, Mele said.
“Jail is the last choice,” he said.
In 2013, the European Court of Human Rights ruled that Italy’s overcrowded prisons violated inmates’ human rights, and sex offenders are targeted for especially harsh treatment. An airman sent to jail by mistake a few years ago, for example, was underfed, often threatened and routinely doused with urine, according to an Air Force lawyer who declined to be identified because he was not authorized to speak to the media.
McCullough’s co-defendant, Pfc. Jerelle Gray, violated the judge’s house arrest order and left the base. He then got drunk, went to the red-light district and allegedly assaulted two more women. Gray had already been accused of raping a 17-year-old girl in the fall of 2013 and is currently on trial in that case.
When the judge ordered him into jail in December, Gray became the only U.S. servicemember in an Italian jail.
