Prosecution Report Thrown Out for Bias Against Sargeant
he court-martial of an Army mechanic who refused to deploy to Iraq came to a sudden halt Wednesday when a military judge ordered a new investigative hearing for the soldier.
Sgt. Kevin Benderman was to stand trial Thursday on charges of desertion and missing movement, but the judge, Col. Stephen Henley, ruled that the investigating officer who recommended trying him in a general court-martial had compromised her impartiality in an e-mail to a military prosecutor.
Fort Stewart commanders decided to press ahead immediately with the new Article 32 hearing to determine whether to send Benderman’s case back to a general court-martial. Benderman said he had been ordered to report to the hearing Thursday morning.
“This is very rushed,” Benderman told reporters. “I wish it would go ahead and be over with, but I think now we’re going to get a more fair hearing.”
Maj. Pamela Stephens, chief of administrative law at Fort Stewart, said the ruling does not throw out the charges against Benderman - for which he could face up to seven years in prison, reduction in rank to private and a dishonorable discharge.
Benderman, a Fort Stewart armored-vehicle mechanic, skipped his 3rd Infantry Division unit’s deployment flight Jan. 8, just 10 days after giving his commanders notice that he was seeking a discharge as a conscientious objector.
Benderman, 40, had already served one tour in Iraq during the U.S.-led invasion in 2003. The 3rd Infantry Division soldier says what he saw there - a young girl clutching a badly burned arm, dogs feeding on corpses in a mass grave and Iraqi civilians drinking from mud puddles - left him morally opposed to returning to war.
Thursday May 12, 2005 1:16 AM
By RUSS BYNUM FORT STEWART, Ga. (AP)
Sgt. Kevin Benderman starts anew
appearance of bias in the desertion case of the 3rd ID soldier.
U.S. Army judge granted a defense request and threw out a crucial report Wednesday in the desertion case against Sgt. Kevin Benderman.
The conclusions, which formed the basis for the case against the 10-year veteran, may have revealed an opinion on his guilt by the officer who conducted the official inquiry, the judge said.
The ruling means Benderman's general court-martial - scheduled to begin this morning - will not go forward today.
Instead, a second investigative inquiry will begin at 8 a.m., according to Benderman.
The sergeant was charged with desertion shortly after applying for conscientious objector status in December. After having served one tour in Iraq, Benderman has said he cannot fight there again.
Col. Stephen R. Henley, Circuit Judge for the 2nd Judicial Circuit, said "it may be reasonably perceived" that Lt. Col. Linda Taylor "expressed an opinion" in an e-mail and fax she sent to the post's top prosecutor and his assistant assigned to Benderman's case.
Taylor, formerly the top prosecutor at Ft. Stewart who is now assigned as the legal adviser to the post's hospital, said from the witness stand Wednesday that she used a "poor choice of words" in her memos to her former co-workers.
In the January 27 e-mail and fax, Taylor told Lt. Col. Charles Walters and Capt. Jonathan DeJesus that while she held Walters' job from January to August in 2003 during the first deployment of Operation Iraqi Freedom, "Sgt. Benderman did not desert."
Taylor did not send the defense lawyers the e-mail or fax, which included a list of her qualifications to serve as the investigative officer in the inquiry, called an Article 32.
Taylor put together the list after Maj. Scot Sikes, one of the sergeant's lawyers, challenged her appointment because she had so recently been a prosecutor.
Military law prohibits an "accuser" from being in charge of an Article 32.
Sikes said he became aware of her memos only after he raised those objections about Taylor's appointment by Lt. Col. Noel Nicholle to serve as the investigator. While arguing his motion to have Taylor's report thrown out, Sikes questioned her ethics and characterized her communications as ex parte, a legal taboo. Henley didn't reach that far in his ruling.
"I find her testimony credible," Henley said. "I make no finding of actual bias."
Benderman was visibly pleased by the judge's ruling. He and his wife, Monica, left the courtroom to consult with his attorneys.
"We're starting all over again," Benderman told reporters. "I think now we're going to get a more fair hearing."
It's not known who Taylor's replacement will be, but Benderman said "I hope that officer is as fair as the judge today."written by Kelly Cramer
On the Net:
Sgt. Kevin Benderman
Benderman Defense Website