Deal could help Navy photographer of Guantanamo detainees avoid trial

Miami HeraldJune 28, 2011 

A federal judge disclosed Tuesday that the U.S. Attorney’s office has made a secret offer to resolve the curious passport prosecution of a Miami combat veteran who photographed detainees at Guantánamo and is now a detainee himself.

U.S. District Judge Cecilia M. Altonaga revealed the offer of “pretrial diversion” without elaboration in a conference that set a July 12 trial date for Navy Reserves Petty Officer Elisha Dawkins, 26. He’s been in a downtown Miami lockup for more than a month on a felony charge for not disclosing in a 2006 U.S. Passport application that he started to apply for a passport three years earlier.

The case has garnered nationwide attention, including a Facebook page designed to raise his $10,000 bond because Dawkins served as a combat photographer with the rank of Army specialist in Iraq in 2007, and got an honorable discharge. He then signed up with the Navy Reserves, got a secret security clearance and until two months ago was photographing some of the most intimate and enduring photos of Guantánamo captives in the camps.

He returned to the United States to an arrest warrant on the passport violation — a felony punishable by up to 10 years in prison — and the specter of deportation.

Dawkins’ mother was deported to her native Bahamas when the boy was 8, according to his lawyer, Clark Mervis. Relatives raised and schooled him in Miami, where he grew up believing he was an American citizen — and at age 21 obtained a valid Florida Birth Certificate that said as much.

It was unclear what the secret settlement entailed. Neither Mervis nor the federal prosecutor’s office would spell out the specifics, citing ongoing negotiations.

The judge set a July 1 deadline for Mervis to present the offer to Dawkins, who waived his right to appear at Tuesday’s hearing — and to report back on whether he would accept it.

While common in state court, pretrial diversions are so rare in the South Florida federal system that Altonaga said it left her “speechless,” and appeared to reflect “a kinder gentler” prosecutorial office.

They happen so infrequently, she added, that it was unclear whether the clerk’s office in the downtown Miami courthouse knew how to process one.

The idea is to give someone facing charges an opportunity to avoid prosecution through a program designed by the U.S. Probation Services, such as doing community service or perhaps taking a civics class.

Without speaking to the specifics of the Dawkins case, Todd W. Mestepey deputy chief of special prosecutions at the Miami U.S. Attorney’s Office, explained it this way Tuesday:

“Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed. Unsuccessful participants are returned for prosecution.”

Also Tuesday, The Miami Herald obtained a copy of Dawkins’ Guantánamo work evaluations praising his work ethic and performance. He took 7,500 photos during his seven-month stint there, escorted and reviewed the imagery of visiting civilian journalists to decide which merited deletion, and also trailed for photos more than 200 “distinguished visitors” — prison camp jargon for members of Congress and entertainers.

His April 1 evaluation said Dawkins “always” lives up to the core Navy values of “Honor, Courage, Commitment.”

Florida Democratic Sen. Bill Nelson has sought explanations from the Army, Navy, Homeland Security and State Department, an aide said, to determine whether this was part of an ongoing State Department Diplomatic Service crackdown on passport fraud. Nelson took interest because there seemed to be a disconnect in government agency coordination, and because "the kid is a Florida resident," the aide said.

He did not make inquiries of U.S. Attorney Wifredo Ferrer’s office, to preserve the independence of the prosecutorial role.

Mestepey said the Department of Justice and U.S. Attorney’s office consult through their chain of command on a “pretrial diversion” package.

“Politics do not play a role in the decision,” he added.

In court, the case prosecutor, Olivia S. Choe, also raised with the judge the issue of what she called “pretrial publicity” in the case. The New York Times, Miami Herald, CNN and Wired magazine had all put a spotlight on the case of the combat vet turned captive, with the Associated Press distributing a version of The Herald’s article.

The judge seemed unconcerned. “I read one,” she replied, without specifying.

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