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. As 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.
NEW TESTIMONY
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.
EXCULPATORY EVIDENCE?
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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