Utah Bar Journal

Deployments never come at opportune times. The Air Force had just transferred my family from Elmendorf AFB, Alaska to Edwards AFB, California in July. The first night after being assigned our quarters and starting to unpack our household goods, my wife went into labor and our daughter Kathryn was born. Now I would leave my wife, ten-year-old daughter, 20-month-old son, and my barely two-month-old daughter in a new place while I answered the call to duty.

I arrived in Iraq and was immediately put to work. My team’s job was to present evidence against suspected terrorists and insurgents to Iraqi judges and to have American soldiers who had already redeployed back home testify via video teleconference. However, because there was such a backlog of cases involving soldiers who were still in Iraq, I was assigned to help that team present cases with live in-person testimony as well.

The Iraqi legal system is very different from our own. It is based on the Napoleonic Code. The system is non-adversarial. Under their system, judges do the investigating to find the truth. There are no rules against hearsay evidence, but hearsay evidence is not highly regarded. We soon discovered what evidence the judges wanted. They wanted at least two eyewitnesses to the criminal act, a sketch of the crime scene and photos. We soon discovered that an out-of-court confession meant very little to the Iraqi judges. They were so accustomed to the old regime torturing and forcing people to confess to crimes that unless a confession was made in court before the judge it was given little evidentiary value.

In a typical case we would review the case file to determine if it contained sufficient evidence to proceed to trial. We would verify that we had photos, sketches and two witnesses who could testify about what had happened. The witnesses had to be precise. We had one case where the witnesses said they were receiving fire from behind a tree and then saw the accused run out from behind a tree with an AK-47 and into a house. Our soldiers went into the house and caught the accused with the AK-47 still warm and with him, but because the witnesses did not actually see the accused pulling the trigger, the court found insufficient evidence to convict.

Our trips to the courthouse were an event. We would suit up in full battle rattle – body armor, sidearm (we kept our sidearm loaded and with us at all times in the courthouse), helmet, gloves, and blast glasses for eye protection. We would then get into our armored vehicles and head to the courthouse in the Red Zone. Although while I was there, our vehicles never came under attack while en route, we often took small arms fire and occasionally mortar fire while at the courthouse. One day after being escorted, an Improvised Explosive Device (IED) destroyed one of our vehicles. Fortunately, no one was killed in the attack.

When we got to the courthouse we would go to the judge’s office with our interpreter and give him our evidence. In the Iraqi system an investigative judge gathers the evidence and takes witness statements. He then submits a report to a three-judge panel that questions the accused after having reviewed the evidence and the investigative judge’s report. An Iraqi prosecutor and a defense attorney then make arguments to the panel. After arguments the panel would recess for five to ten minutes and then return with a verdict. If there were a guilty verdict, the panel would also pronounce a sentence at that time.

My team was involved at the investigative judge level. Once we gave the judge our evidence, the accused was brought up to the judge’s chamber, his handcuffs removed, and he was permitted to sit, listen and observe the witnesses’ sworn testimony. In the Iraqi system, there really is no place for a government attorney at this phase of the criminal process. We were there officially as representatives of the United States. The judge would ask all the questions of the witnesses through the interpreter. Usually after he was finished, he would ask us if we had anything we would like to ask the witness. During the questioning, the judge would dictate a summary of the witness testimony to his clerk who would record the summary.

After the witnesses testified, the accused would move to a chair in front of the judge’s desk, next to his attorney, and would directly face us – so closely that our knees would almost touch. The defendants were accused of anything from illegal weapons possession, to attacks against Americans, to murder, and yet here we sat so close and personal to each other. The judge would then remind the defendant that he had an attorney and had a right not to answer any questions. The judge would then question the defendant and the judge’s clerk would write a summary of the defendant’s statement.

Several weeks after the investigative hearing, the judge would submit his report and recommendation to the three-judge panel that would bring the accused back, question him, hear the arguments from the prosecution and the defense and then render a verdict. Witness testimony usually was not taken at this stage of the proceedings. Usually, the three-judge panel relied on the summarized statements submitted by the investigative judge.

I found the judges very committed to making the criminal justice system under the new Iraqi system work. One judge I worked with constantly received death threats. The uncle of another judge I also worked with was murdered shortly before I left. Both judges still continued to professionally perform their duties.

Serving in Iraq was a unique experience. Where else do you get to wear full body armor to court and work with gunfire, bombs, rockets and mortars exploding nearby? And yet you make a difference by taking murderers, terrorists and insurgents out of the fight and by helping to restore peace and freedom to a war-torn country.