June 23, 2006

Case Summary

For those of you who have not read the entire Appellate Brief and may not be aware of PFC Edward Richmond's story and case, both are briefly summarized here below:

After 9/11, Edward dropped his studies as a Freshman at the University of Louisiana to join the Army. The Richmond family had a long history of military service, and Edward thought it his duty to volunteer to defend his country after it had been attacked.

On Feb. 27, 2004, PFC Edward Richmond was a 20 year old mortarman assigned to A Company, 1-27th Infantry Regiment. He had been in the Army for approximately 24 months and his unit had been in Iraq for approximately three weeks.

On Feb. 28, PFC Richmond's squad's mission as part of a high priority raid was to set up traffic control points (TCP) at accesses to an Iraqi village where the cordon and search team was expected to locate approximately ten "high value target" Iraqis, former members of Saddam Hussein's regime. During briefings for this mission soldiers were advised that the Rules of Engagement (ROE) for the mission required that any male fleeing the target village would be fired on and killed.

While the cordon and search mission began, SGT Waruch and PFC Richmond were setting up the TCP South of the village. They observed an Iraqi man leaving the village walking out toward an adjacent field. During the raid of the village, shots were fired and doors were breached and women were yelling in Arabic. SGT Waruch inquired by radio whether they should detain the Iraqi seen walking into the field. They were advised, firmly, to detain "all males." SGT Waruch told PFC Richmond to come with him.

During the struggle to apprehend the Iraqi man who appeared angry, uncooperative and resistant to being flex-cuffed or detained, PFC Richmond provided security, holding his weapon at the "high ready" trained on the Iraqi, as ordered by SGT Waruch who instructed PFC Richmond to "put (his) weapon on his head and to shoot him if he fucking moves." PFC Richmond aimed as directed and flipped down his iron sight and turned on his scope aiming sight. SGT Waruch turned to move the Iraqi toward the TCP, took two steps and the Iraqi lost his balance and stumbled into SG Waruch. At that moment, a shot was fired by PFC Richmond that killed the Iraqi.

Immediately after the shot was fired, and in the stress and excitement of the moment, and while he appeared shocked, PFC Richmond stated: "He jumped at you."

On 3-5 August 2004, PFC Edward Richmond was tried at Forward Operating Base Danger, Tikrit, Iraq, before a general court-martial, convened by the Commander, 1st Infantry Division, FOB Danger, Tikrit, Iraq, Lt. Col. Robin Hall, Military Judge, Presiding.

At the general court-martial held in Tikrit, Iraq, PFC Edward Richmond had no civilian legal counsel representing him. He was represented solely by military counsel. He was fortunate to have had by his side his father, a former Air Force pilot who had managed at his own expense to get to Tikrit, a hot combat zone.

In summary the Appellant Brief states:

In repeated, serial statements taken between 28 February and 28 March 2004, PFC Richmond fully cooperated and maintained that the reason he shot the Iraqi was that he believed the Iraqi lunged at SGT Waruch and presented a danger to SGT Waruch.

I. THE EVIDENCE WAS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A CONVICTION OF VOLUNTARY MANSLAUGHTER

The test for factual sufficiency is whether after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant's guilt beyond a reasonable doubt.

Judged against this standard, appellant respectfully submits that the finding of guilty to voluntary manslaughter is legally and factually insufficient to support a conviction.

Appellant was charged with a single specification alleging that he committed unpremeditated murder by unlawfully shooting Muhamad Husain Kadir. Members of the service court acquitted appellant of unpremeditated murder. Members were then immediately required to vote after their acquittal of unpremeditated murder to vote on the lesser offense of voluntary manslaughter. The only difference between voluntary manslaughter and unpremeditated murder is that voluntary manslaughter is committed when an unlawful killing is committed in the heat of sudden passion caused by adequate provocation. The "provocation" must be adequate to excite uncontrollable passion in a reasonable person, and the act of killing must be committed under and because of the passion.

The Government failed to adduce any evidence that PFC Richmond did not honestly believe, at the time, that SGT Waruch was being attacked, justifying acting in defense of SGT Waruch. PFC Richmond acted without malice with but a split-second to make a judgment call.

The Government failed to establish a factual basis to support "heat of passion based upon adequate provocation" to support the offense of voluntary manslaughter. Therefore, the findings and sentence must be set aside. WHEREFORE appellant (PFC Richmond) prays that this Honorable Court set aside the finding of guilty and dismiss the Charge and single Specification.

II. THE MILITARY JUDGE ABUSED HER DISCRETION IN ADMITTING MULTIPLE GRUESOME PHOTOGRAPHS OF THE DECENDENT OVER DEFENSE OBJECTION WHERE THE ONLY CONTESTED ISSUE AT TRIAL WAS WHETHER THE KILLING WAS JUSTIFIED BY DEFENSE OF OTHERS.

III. THE SENTENCE, INCLUDING THREE YEARS CONFINEMENT AND A DISHONORABLE DISCHARGE, WAS INAPPRIOPRIATELY SEVERE.

The killing in this case occurred when an American soldier, participating in the occupation of Iraq, acted too quickly and killed an Iraqi under the pressure of armed combat, believing that he was protecting a fellow soldier. The crime in this case was borne of the circumstances in which appellant was placed: he was in a dangerous place, feared for his own life and that of his fellow soldier, and was required to evaluate the situation and act with alacrity.

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