POSTED: 1:30 a.m. HST, Feb 10, 2012
LAST UPDATED: 2:30 a.m. HST, Feb 10, 2012
A military jury on Thursday found a Hawaii-based Marine sergeant not guilty of hazing a lance corporal who later committed suicide in Afghanistan.
The general court-martial panel of three officers and five enlisted Marines deliberated for about an hour before announcing its verdict that Sgt. Benjamin Johns was not guilty of violating a lawful order by wrongfully humiliating and demeaning Lance Cpl. Harry Lew.
Tim Bilecki, Johns' attorney, said his client feels relieved and exonerated by the outcome. The sergeant told Bilecki the verdict was a victory for Marines and noncommissioned officers.
Johns will return to regular duty and is looking forward to training once more, Bilecki said.
"He actually wants to be able to go and deploy again," he said. "He would like to be able to go downrange with his unit and continue to serve his country."
Prosecutors alleged Johns hazed Lew by ordering him to dig a foxhole as punishment for falling asleep on guard duty at their patrol base in a remote part of Helmand province. They also charged the 26-year-old from Russelville, Ark., didn't intervene when a corporal punished Lew by making him carry a sandbag around the base.
Bilecki told the jury in closing arguments the foxhole was needed to protect the base, which had already come under attack by Taliban fighters multiple times, and to keep Lew awake while on watch duty.
"If something is necessary for the mission, it's not hazing," Bilecki said.
Johns couldn't allow Lew to finish his shift early and go to sleep because that would reward sleeping on watch, he said.
A guilty verdict would paralyze the noncommissioned officers who lead Marines, he argued.
"It forces a squad leader to do nothing for fear of going to trial," he said.
Bilecki also told jurors Johns stopped the sandbag carrying as soon as he became aware of it.
Johns is one of three Marines accused of hazing Lew in the hours before he fatally shot himself at Patrol Base Gowragi on April 3. The 21-year-old was the nephew of U.S. Rep. Judy Chu, D-Calif.
All were assigned to the 2nd Battalion, 3rd Marine Regiment, based at Kaneohe.
There hasn't been any evidence to prove Lew killed himself because of how he was treated, so the military judge presiding over the trial, Col. Michael Richardson, said jurors wouldn't be told about the suicide. They were only told that Lew, of Santa Clara, Calif., died.
The case focused on what happened as the squad was assigned to a small patrol base in a remote area where the U.S. was trying to disrupt Taliban drug and weapons trafficking.
The night of April 2, Lew was assigned to watch duty. Johns talked to him beforehand about sleeping, because Lew had already dozed four times in the 10 days since he was assigned to the squad.
Lew fell asleep again, despite assuring Johns he would stay awake.
Capt. Jesse Schweig, the lead prosecutor on the case, argued that Johns ordered Lew to dig the foxhole out of anger. Schweig said Johns took Lew's sleeping as a personal slight, and berated the lance corporal, contrasting Lew's actions to the behavior of other Marines.
"The implication is Lew is different — he is no longer a Marine," Schweig said.
Schweig argued Johns was so angry he didn't want to wait for Lew to go through the military disciplinary process — called nonjudicial punishment — for sleeping because it would take too long.
The first Marine to face trial in the case, Lance Cpl. Jacob Jacoby, was sentenced to 30 days in jail and demoted to private first class after pleading guilty to assault last week.
The third Marine, Lance Cpl. Carlos Orozco III, allegedly put his foot on Lew's back, ordered Lew to do push-ups and side planks, and poured sand into Lew's face. Orozco has been charged with assault, humiliating Lew and cruelty and maltreatment. His court-martial is pending.