Five years after his conviction for masterminding the murders of three Afghan civilians in 2010, former Staff Sgt. Calvin Gibbs will get another chance to prove his innocence when he returns to a military courtroom in Fort Leavenworth, Kansas, next Tuesday.
The U.S. Army Court of Criminal Appeals ordered a four-day hearing for a court-martial judge to help determine whether the government botched its case and whether Gibbs, who headed the so-called Afghan kill team, should be allowed to enter new evidence.
Phil Stackhouse, Gibb’s attorney, said in an interview Wednesday that Gibbs will not be among the 15 or so witnesses who will be called to testify but that he will attend the proceedings. Gibbs, a former soldier at Washington state’s Joint Base Lewis-McChord (JBLM), is serving a life sentence at the military prison at Fort Leavenworth.
“He’s excited that the truth is finally coming out,” said Stackhouse, adding that he’s “cautiously optimistic” that next week’s hearing will ultimately lead to a new trial.
“The appellate court could have just said this isn’t newly discovered evidence and what the government did was OK, so it is a good sign that the court is at least engaged and listening and curious,” Stackhouse said.
Gibbs’ team attracted international attention after photographs showed them posing with Afghan corpses.
But Stackhouse said that two of Gibbs’ former teammates now are offering statements supporting his argument that at least one of the killings took place in legitimate combat.
And the court said it also wants to know why some witnesses in the case were granted immunity and others were not and whether those decisions were made “in a discriminatory or improper fashion.”
To further examine the case, the appellate court ordered a DuBay hearing, a rare post-trial fact-finding process that’s unique to military justice. Witnesses are expected to testify both in person and by video teleconference.
Col. J. Harper Cook, who serves as the Army Court-Martial Judge of Fort Leavenworth, is expected to hear the testimony and then report his findings back to the Court of Criminal Appeals, which will then decide what to do. No decision is expected next week.
Gibbs’ appeal has a long history.
During oral arguments last March in Fort Belvoir, Virginia, Stackhouse first asked for a post-trial hearing.
Anne Hsieh, an attorney for the government, argued then that Gibbs’ request for a hearing should be denied, citing “overwhelming evidence” to support his conviction. She said any new evidence would show only a “minor inconsistency” and that even if they were considered as possible evidence, it was unlikely there would be a different verdict.
Reached at her office on Wednesday, Hsieh declined to comment.
“I’m not going to say anything on the record,” she said.
Gibbs was found guilty of 15 criminal counts by a military jury in November 2011. Along with three murder charges, he was convicted of conspiring to kill innocent civilians, assaulting a junior-ranking soldier, keeping body parts from corpses and illegally possessing “off the books” weapons.
Twelve soldiers from Gibbs’ platoon in JBLM’s 5th Brigade, 2nd Infantry Division, came home accused of criminal misconduct. Four were convicted of participating in unlawful killings, including two who testified against Gibbs.
During court proceedings in 2010 and 2011, Gibbs said he’d shot one Afghan who had fired at him first. After killing the man, Gibbs said, he cut a finger off the body because he was “pretty pissed off” that the man had tried to kill him.
Stackhouse said he’s participated in only three or four DuBay hearings during his 18-year career as a defense attorney.
And he said the fact that the appellate court is reopening the case by ordering the hearing can only be interpreted as good news for his client.
“They’re relatively rare,” Stackhouse said. “And the circumstances of which Gibbs was convicted of are not particularly popular types of offenses. It’s not like there would be a public outcry if they upheld the conviction, so I think they’re doing what is right, quite frankly. And so that’s good for us because we think we’re on the right track.”
Adam Ashton of the Sacramento Bee contributed.