By Joseph Ax
NEW YORK (Reuters) – Navy corpsman Michael Carpeso, Marine Corporal Wilfredo Santiago and an Iraqi translator known as “Hollywood” were alone in a trailer at a Marine station in Iraq on Jan. 26, 2008 when a bullet tore through Carpeso’s head, leaving him partially blind and unable to recall the incident.
At first, Santiago told a Marine investigator he had only heard the shot. Days later, however, he said he had accidentally discharged his weapon.
For years, after a series of bureaucratic delays, Santiago was not court-martialed. After he left the military, the case eventually found its way to federal prosecutors in New York, who secured an indictment in January 2013, just 10 days before a five-year statute of limitations was to expire.
On Monday, a jury began hearing evidence against Santiago in what the trial judge has called an “unprecedented” civilian prosecution of a former serviceman for a crime he is accused of committing while on active duty.
Santiago is not charged with the shooting itself. Instead, he faces less serious counts of lying to military investigators in his initial interview.
That is the fault of the Marines, said U.S. District Judge Colleen McMahon, who is overseeing the trial. In a harshly worded opinion in December, she ruled that Marine lawyers deliberately delayed prosecuting the case because they saw it as an “embarrassment.”
As a result, McMahon threw out an assault charge against Santiago, because the lone witness to the shooting, Hollywood, had disappeared in postwar Iraq during the intervening years.
“It is not a tale that inspires confidence in our criminal justice system,” McMahon wrote in December. “This matter was an embarrassment to the Marines; they wanted it to be over and done with â to be left behind in Iraq, along with a lot of bad memories and unfortunate results.”
In a statement on Monday, Marines spokesman Captain Tyler Balzer said the Marines had made major improvements in its prosecutorial procedures in the last four years.
“The Santiago case was an anomaly and does not reflect the current practice of law within the Marine Corps,” he said. “The centralization of prosecution services has dramatically improved supervision and oversight of our prosecutors.”
Prosecutors in New York brought the case under the 2001 Military Extraterritorial Jurisdiction Act, which allows the Justice Department to charge American contractors or other civilians who committed crimes at military bases in foreign countries.
The Santiago case appears to be the first time civilian prosecutors have invoked the law to go after a former serviceman who was active at the time of the alleged crime.
At the trial on Monday, prosecutors told jurors that Santiago must be held accountable for lying.
“When the moment demanded honesty, Santiago chose deception,” Assistant U.S. Attorney Damian Williams said.
But defense attorney Annalisa Miron said Santiago had told the truth as he remembered it at the time.
“The days following a shocking and traumatic event are very sensitive,” she said.
The trial is expected to end this week.
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