Staff Sgt. Calvin Gibbs, the Joint Base Lewis-McChord Soldier who was convicted
of a litany of crimes as the orchestrator of the infamous 2010 "kill
team" murders, has just been granted an appeal hearing.
Stars and Stripes reports, the hearing has been granted by the Army Court of Criminal Appeals based
on the submission of new evidence.
Gibbs was tried and convicted in 2011 for the murder of three Afghani civilians
in the Kandahar province during the Afghanistan war. According to the
testimony of fellow Soldiers, Gibbs would plan the slaying of his victims
by instigating combat engagements (by throwing a fake grenade) and then
later plant "off the books" weapons to fake the legitimacy of
the encounter. Gibbs and one alleged collaborator, Spc. Jeremy Morlock,
are currently serving time in Fort Leavenworth.
Gibbs was convicted of 15 crimes associated with the three "kill team"
murders, but now his defense counsel, Phil Stackhouse, wants to introduce
new testimony that alleges that one of the killings was a result of a
legitimate combat engagement. In that encounter, Gibbs had maintained
that the Afghani had fired on him first and he was able to return fire
when the assailant's weapon jammed.
Another Soldier also fired on that Afghani, but was cleared of all charges
when Gibbs was convicted. The second Soldier has now come forward with
testimony that Stackhouse believes will clear Gibbs of the one murder charge.
It will be interesting to see how the Army Court of Criminal Appeals rules.
The evidence the defense attorney is citing to legitimize one of the killings
is potentially exculpatory. That exculpatory evidence needs to be compelling
enough for the Court to take action.
In this case, if the witnesses can legitimize the killing as consistent
with the prevailing Rules of Engagement at the time the killing occurred,
the Court could take favorable action towards the Soldier on that particular
charge pertaining to that killing. Generally, exculpatory evidence found
after a conviction is enough to either overturn a verdict on a particular
charge, or at the very least order a new trial.
I would expect that the Court would look at how this evidence was obtained,
why the evidence was not turned over before the original trial, who had
knowledge of the evidence, the corroboration of the evidence as well as
any internal prejudices with the witnesses who are making favorable statements
towards the convicted Soldier. It’s not clear where this new evidence
came from, but it mitigates strongly in the convicted Soldier's favor
if the government had this evidence and failed to turn it over.
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