Pt. 5 in a series
Former 1LT Clint Lorance is serving time in prison at Ft. Leavenworth after a military court martial on murder and other charges. Lorance’s trial should be placed among the most controversial military trials in recent history for a number of reasons. At present, his fate rests in the hands of Brig. Gen. Richard D. Clarke who became commander of the 82nd Airborne Division at Ft. Bragg (North Carolina) in early October.
Clarke has the power to not only correct a case where justice went awry. He also has the power to offset what must surely be a loss of confidence in our military justice system.
Lorance’s best hope is for clemency. Clarke can grant it. If it isn’t granted, Lorance will remain entangled in a complex justice system for years to come—appellate courts, the US Army court of Criminal Appeals, the civilian oversight court, the US Court of Appeals for the Armed Forces. It is a given that this process could become even more expensive for the former lieutenant from a middle class family in Oklahoma.
A source close to the family, a legal expert who has followed all the information about Lorance’s trial from transcript to court martial, said he had not seen a case like Lorance’s “in 18 years of practice, where the General Court-Martial Convening Authority is so rightly positioned to apply the corrective power of clemency.”
LEGAL ERRORS; VITAL FACTS WITHHELD FROM JURY PANEL
What put Clarke in that unique position? The source said it’s because of “a record with so many legal errors at trial, government action in at least twice refusing to identify the decedents, and keeping from the jury the fact that material witnesses for the prosecution were originally murder suspects and subsequently given immunity.”
Lorance is in prison for giving an order—he never fired a shot. Some witnesses who did fire shots are those who were granted immunity. Lorance took responsibility for the decision he made that day.
It’s unfathomable that the jury was never told about the grants of immunity. The judge knew. The trial counsel or prosecutor knew. The defense counsel knew. If you study the transcript, you see at once how deft the prosecution was in convincing the judge to keep this information away from those who sat in judgment. The judge decided not to instruct jury panel members about the immunity. As our source noted, “Despite her [the judge] inclination to give the instruction, the prosecution recognized a potential advocacy advantage and instead cogently persuaded the judge not to give the instruction.”
There’s a bizarre dimension to this court martial—no autopsies, no forensics, no followup investigations. The government refused to “pursue the identities and affiliations of the deceased,” said the source. “We will never truly know who those men were. Because of this active declination to pursue the evidence, there is not only reasonable doubt as to their affiliation and nationalities, but the government was also actively involved, twice, in stopping the evidence gathering and then prosecuting an otherwise unblemished officer with murder.”
The jury was not told the government refused—in one sense, obstructed—an investigation.
MURDER RAP FOR A JUDGMENT CALL
Lorance’s trial didn’t receive much publicity, but news travels in military circles. How much confidence will a soldier have if he faces a potential enemy? Will he hesitate and jeopardize his safety and that of the men he commands?
Lorance made a judgment call based on intel he received from his soldiers near a small hostile village in Afghanistan in 2012. Troop deaths were escalating. The political climate was volatile. Troops had taken serious injuries in that area recently, and Lorance believed the men on the motorcycle his soldiers reported were enemy combatants. He gave permission for engagement, and that ultimately led to his facing murder charges.
If ever there was a case deserving of clemency, it would be the case of 1LT Clint Lorance. Brig. Gen. Clarke is newly arrived at Ft. Bragg, but he is a seasoned warrior. If he reads the whole file and transcript on Lorance, he will see exactly how an exemplary soldier was railroaded purely for a judgment call. Hopefully, Clarke will see that the justice that was denied Lorance in the court martial is rendered him now.
Within the proceedings, my source documented 8 serious legal errors in Lorance’s trial. One of the most egregious was the prohibition on including “the affirmative defense of justification.” How did a panel pass judgment without even considering rights to self-defense?
CLEMENCY IS DUE LORANCE
There was enough reasonable doubt in Lorance’s case to acquit him. Now Brig. Gen. Clarke can right this wrong.
Lorance’s plight and the ordeals of others in the military whose cases I have reported on suggest members of the military need an advocacy organization similar to criminal justice organizations who help civilians. Even if Lorance is granted clemency, what he has lost is irretrievable.
Moments after Lorance’s men engaged individuals believed to be enemy, in a nearby area, the platoon killed two men who were using two-way radios to help the enemy maneuver around the platoon.
We don’t know what the men on the motorcycle heading towards Lorance’s patrol were doing in the area. We don’t know their names or their nationalities. We think they were killed, but we have no evidence from the bodies. We just know that a young lieutenant made a judgment call in hopes of protecting his men from horrific injuries similar to those some members had suffered recently under the former platoon leader in the same general area.
We certainly know enough to support reasonable doubt. Clemency is the only just action our government can take in the case of Clint Lorance. Hopefully, Brig. Gen. Clarke will grant it.
Official pages for Clint Lorance
Previous stories in series on Clint Lorance
Confusion at heart of Lorance case… (pt. 4)
Government secret: Witnesses had immunity (Pt. 3)
Political prisoner Clint Lorance… (Pt. 2)
Dilemma facing boots on the ground (Pt. 1)
(Analysis by Kay B. Day/Nov. 3, 2014)