JUSTICE DEFERRED: Army deploys soldiers accused of felonies, leaving victims, judges, to wait for court date

DAVE PHILIPPS Updated: January 7, 2011 at 12:00 am • Published: January 7, 2011

The fight that led to Chester Duncan’s arrest started over whether the dog could sleep on the bed.

Duncan was a 27-year-old Fort Carson specialist who had come home to Colorado Springs from a bloody tour in Iraq six months before. He didn’t want the dog on the bed. His wife did. They got into a shouting match. Duncan began throwing things and then, according to police, jumped on his wife and started to choke her.

She scratched at his face as she gasped for breath. Their 8-year-old daughter heard the struggle and ran in, hitting her father and screaming for him to stop. Police said he knocked the girl to the ground with one hand, then she called 911.

Police arrested Duncan that night on suspicion of menacing, harassment and child abuse. It was Sept. 6, 2009.

The soldier made bail the next day and was appointed a lawyer by the state.

When it came time for trial, he did not show.

The Army had sent him to Afghanistan.

A Gazette investigation uncovered four Fort Carson soldiers who, like Duncan, deployed in the past year despite pending felony cases. The Gazette also learned of other cases of soldiers accused of felonies who had deployed as far back as 2006. One soldier was accused of breaking a man’s jaw. Another allegedly pulled a gun on his 21-year-old neighbor. A third soldier is charged with attempted rape. All, like Duncan, went to war instead of court.

The practice is not limited to Fort Carson. Prosecutors near Army posts across the nation report the same. In Junction City, Kan., just outside Fort Riley, a legal assistant for the district attorney said it happens “all the time.” In Killeen, Texas, near Fort Hood, the problem grew bad enough a few years ago that local judges and prosecutors reworded bond agreements to bar deployment.

The deployment of troops accused of felonies is a legally murky and controversial practice that pits the Army against local authorities. The practice is driven by the demands of fighting two wars that have stretched in time and intensity well beyond initial expectations. In Colorado Springs, the constant demand for soldiers overseas has created a disconnect with judges and lawyers who are sometimes unsure how best to proceed, Army officials pointing to channels of communication that are rarely used, and sergeants reciting rules that are not applicable to justify their actions.

The issue is not merely a turf war between local and federal government, it is a question of how much society should sacrifice in the name of national security. Deploying troops accused of felonies is one in a growing list of accommodations, ranging from airport body scans to uncharged detainees at Guantanamo Bay, that the United States has made in the past decade to fight terrorism. And it is one with an ironic twist: The effort to impose civil order abroad is eroding the civil rights of some at home.

The Army says it always gets civilian consent when it deploys a soldier who has been arrested in a felony, but interviews suggest that is not the case.

The Army also says it sends some soldiers accused of crimes to war for the good of the larger mission. But the practice gives the military privileges that no civilian has, while diminishing a basic civil right — the right to a fair and speedy trial.

Beyond that, some experts warn, the Army runs the risk of overstressing soldiers who may be psychologically rattled from numerous previous tours, or deploying unstable soldiers in sensitive missions where they could cause long-term strategic damage.

“It’s a lose-lose situation,” said Allen Gasper, a private attorney who represents one of the soldiers and says local judges, prosecutors and defense attorneys have tried to make the best of it but “don’t really know what to do.”

To be sure, few soldiers who deploy have been charged with felonies. Of the 25,600 active-duty soldiers stationed at Fort Carson, only 50, on average, are arrested each year on suspicion of committing violent felonies in El Paso County.

It is unclear how often soldiers who have been charged with felonies deploy before trial. Neither the Army nor local courts formally track when felony suspects deploy.
Even so, 4th Judicial District Chief Deputy District Attorney Dan Zook, the local prosecutor’s military liaison, said none should deploy without the district attorney’s consent. “If it happens once, it is too much. We just can’t condone it.”

ABOVE THE LAW?

When someone fails to appear for trial, Zook said, it leaves victims in the lurch while letting potentially dangerous criminals roam free. Beyond that, he said, not showing up for court is illegal.

“Yes, soldiers have an important job,” Zook said. “But everyone has to face charges. No one is above the law.”

That is where opinions differ. Fort Carson says its commanders are above the law — at least local law — and can deploy soldiers as they see fit. Federal supremacy trumps local power, and, officials say, the demands of waging war mean some troops can’t be spared.

The Pentagon has a more nuanced take. Col. Tom Collins, an Army spokesman at the Pentagon, said that while Army regulations ultimately give commanders the authority to deploy soldiers awaiting trial, it never happens without the blessing of civilian courts, adding, “They are not supposed to just circumvent the local authorities.”

Sometimes, Fort Carson officials argue, there is no choice. Civilian courts move slowly. Deployments often arrive long before trials. And sometimes, leaders say, it is better to defy the courts than to weaken the fighting force.

“Every Soldier declared non-deployable, for any reason, including pending criminal charges, reduces the overall strength of the force,” wrote Maj. Rob Insani, the lawyer for Fort Carson’s 3rd Brigade Combat Team, 4th Infantry Division, which has two soldiers accused of felonies now serving in Iraq. He answered questions by e-mail from Iraq.

When contacted about the issue, the District Attorney’s Office at first seemed unaware that any soldiers facing felony charges are serving overseas.

“It has never been much of a problem,” said Zook, who meets monthly with officials from Fort Carson. He said there were no soldiers deployed while their violent felony cases were pending, adding, “We have an agreement. If charges are pending, they will not deploy them until we are done.”

When shown specific cases, he chalked them up to soldiers not reporting arrests and commanders deploying them by mistake.

“We can’t blame the military for that,” he said.

But Fort Carson says it is no mistake. It is the Army’s right.

“Brigade commanders are aware of the (soldier’s) circumstances,” Fort Carson spokeswoman Brandy Gill said in an e-mail to The Gazette. “Ultimately, brigade leadership makes the decision on whether or not to deploy Soldiers who are facing charges” after weighing “the seriousness of the alleged offense, the evidence against the Soldier, the steps the Soldier is taking to resolve the matter, and the Soldier’s service history.”

In short, a colonel decides whether a case is serious enough for a soldier to stay behind. And the decision often comes down to how much a unit needs the soldier.

When shown Fort Carson’s e-mail, Zook paused, then said, “That wasn’t my understanding. We have an agreement. I don’t think they know what they’re talking about.”

The deployment of soldiers accused of felonies crosses contradictory legal ground.
“Does the Constitution allow it? Yes,” said Richard Collins, a professor of law at the University of Colorado.

The military is legally protected by authority given the federal government in the Constitution to “raise and support armies.”

“Any valid form of federal authority would override state jurisdiction,” Collins said.

And Army regulations state that deploying soldiers accused of felonies is allowed in special circumstances. Soldiers with pending felony trials in most cases may not deploy, according to Army rules, but if a brigade commander, with advice from the brigade lawyer, decides it is OK, then it is OK.

And though commanders face no legal penalty for deploying troops against local objection, soldiers can face contempt charges when they return.

So it is legal for the Army, but illegal for the soldier in question.

JUDGE: 'IT TROUBLES ME’

In Colorado, anyone arrested on a felony charge typically has a trial date set months after the arrest to give both sides time to investigate the crime and negotiate potential plea deals.

In the meantime, in all but the most serious cases, suspects can bail out of jail by putting up cash intended to ensure they will return. Anyone who does not show for court usually loses the money and goes back to jail. Posting bail requires that the accused not leave the jurisdiction without a judge’s permission.

When the trial date nears, both the prosecution and defense must announce to the judge that they are ready for trial.

Last June, when a judge asked if Chester Duncan’s case would be ready for trial in three weeks, his public defender, Rory Taylor, said no.

Her client was about to deploy to Afghanistan.

Taylor had warned Duncan that deploying could land him in even bigger trouble, and he had brought in his first sergeant, Bobby Simmons, to explain the brigade’s decision.

“The sergeant told me (Duncan) was a valuable asset, he had experience with combat and finding IEDs (improvised explosive devices),” Taylor said, recalling the conversation. “He said, ‘Look, I need this guy.’”

According to Taylor, the sergeant said he could legally deploy his soldier under what he called “the status of forces agreement.”

In fact, the status of forces agreement is a pact the military makes with foreign host countries, such as Germany or South Korea, to define how local law applies to American troops.

A few days later, Duncan was gone.

The alleged victim, who filed for divorce shortly after the assault, could not be reached for comment.

Duncan’s sergeant and his company commander, Capt. Michael Parks, did not respond to requests for an interview. The spokesman of the 1st Brigade Combat Team, 4th Infantry Division, Maj. Earl Brown, said in an e-mail from Afghanistan in December that the “decision to deploy the Soldier was made with the judge’s understanding.”

That is not what the court says. None of the soldiers identified by The Gazette deployed with the court’s consent. In June, when Duncan’s attorney asked to delay the trial until after his tour, the prosecutor objected. The 4th Judicial District Court judge hearing the case, Deborah Grohs, refused to reschedule. If the soldier failed to show, she said, he would be held in contempt of court.

When the Army deployed Duncan, Grohs reconsidered. She said she felt sympathy for the soldier, who had little choice in the matter. Rather than issuing a warrant, she rescheduled. Duncan is in Colorado Springs on leave, and his trial is set to begin Monday. Duncan is expected to plead guilty to a lesser charge and receive a deferred sentence, which would allow him to return to Afghanistan.

“I have mixed feelings about this situation,” said Grohs, who had two soldiers accused of violent felonies fail to appear in her court because of deployments in 2010. “If a defendant is dedicated to serving, I respect that,” she said. In cases of lesser, nonviolent crimes, the best option is often to defer the trial or reach a plea deal. But, she said, in serious crimes, “It troubles me that the military ignores the fact of a pending case.”

For its part, the civilian justice system has failed to create a unified policy that outlines a response for when the Army deploys soldiers, local lawyers say. Instead, judges and prosecutors often make ad hoc decisions in response to each case.

Spokesmen for brigades that deployed accused felons this year both said it never happens without prior communication with prosecutors and judges. Insani, who is the 3rd Brigade’s staff judge advocate, said the unit would fly soldiers back to Colorado Springs if there were a problem, adding, “We have an open line of communication with the D.A. and when requested, we will return an individual.”

In fact, attorneys and judges often have few clues about soldiers’ whereabouts or how to reach them after they deploy. Two of the soldiers in question did not contact their defense attorneys for several months after deploying, leaving the lawyers uncertain what to tell the judge.

Then in November, after The Gazette notified the Army of its investigation, both contacted their lawyers saying they would be back soon on leave to appear in court.

DECISION CAN BE TOUGH

Whether it is best to keep a soldier in town for trial is not always clear, even in cases alleged to involve violent felonies.

Sgt. 1st Class Trinity Burger is a model soldier with a long list of honors.

In three tours in Iraq and Afghanistan, the 32-year-old mortar platoon sergeant, assigned to the 3rd Brigade, earned 15 commendations, including the rare Meritorious Service Medal.

A month before leaving on his fourth tour, on the night of Feb. 14, 2010, according to police, he drove into his Colorado Springs apartment complex too fast and almost hit a man trying to cross the street. The 21-year-old pedestrian, using graphic language, told him to watch where he was going, yelling, “You almost hit me! I’ll kill you.”

The pedestrian continued to swear at Burger, according to court documents.

Burger allegedly got out of his truck, went up to his apartment and came back with a 9mm pistol.

He allegedly cocked the pistol and said “Don’t ever talk like that to me, bitch!” He was arrested and charged with felony menacing.

Burger could not be reached for comment. His attorney said the menacing charge is a misunderstanding and that Burger was acting in self-defense.

A month after Burger pulled the gun, he deployed to Iraq. Fourth Judicial District Judge David Prince issued a warrant for his arrest.

Burger’s case illustrates the wedge that war drives between the Army and local courts.
Burger is a decorated, experienced leader of a specialized platoon. His absence could diminish his unit’s fighting ability and even possibly endanger the lives of other soldiers.

Insani, through a spokesman for the 3rd Brigade, said in an e-mail, “Each individual Soldier is important to the unit’s ability to successfully accomplish the assigned mission.”

Brigade commanders don’t consider all soldiers critical. Most with pending cases remain at Fort Carson, working in their units’ rear detachments until their cases are resolved. A spokesman estimated Burger’s brigade left behind six such soldiers.

Burger’s commanders declined interview requests.

Burger flew back to Colorado Springs in November to appear in court and ran into an unexpected problem.

His outstanding warrant meant he would be arrested going through customs in Texas.
He made a rush call to his lawyer, Gasper, to ask the judge to quash the warrant.

“If he hadn’t, it would have been a real mess,” Gasper said. “They would have held him for extradition for weeks, and he would have not made it back from leave. He would have been AWOL.”

The judge quashed the warrant and set Burger’s trial for April, but he just as easily could have had him arrested, leaving his platoon with no senior sergeant.

While the Army argues that it needs key soldiers to fight overseas, other experts warn that deploying those soldiers could hinder the war effort just as much, if not more.

In counterinsurgencies like those in Iraq and Afghanistan, good relations with civilians are vital. Impulsive, aggressive troops who shoot too soon and kill civilians can undo months of progress.

Soldiers arrested for crimes at home seem especially likely to do that, said Jonathan Shay, a clinical psychologist and MacArthur Foundation “genius award” winner who has advised the Army’s deputy chief of staff on mental health in war.

“This is leadership malpractice,” he said. When you deploy a soldier accused of a violent crime, “You are taking someone whose self-restraint seems to be obviously deficient, whether for some pre-existing reason or as a result of combat experiences, and you are putting this person in a war zone with a weapon where he could do something abhorrent and have a disastrous effect on the larger mission.”

“There is a saying that you are stronger in the broken places, and it is not true,” Shay said. “The effects of trauma can build up over each event.”

A PENDING TRIAL ‘WEIGHS HEAVY’

The soldiers The Gazette identified were decorated soldiers with no history of violent crime, and all served multiple violent tours of duty. Then all were arrested after alleged violent outbursts.

Spc. Roberto Avila, a 25-year-old power-generator mechanic assigned to the 3rd Brigade Combat team, earned two Army Commendation Medals in as many tours in Iraq. One night in April 2009, two months after returning from Iraq, he was arrested and charged with attempting to rape his wife.

His trial was set for May, but he deployed in March. Reached on his MySpace page, Avila declined to comment.

When he did not show up for court, the judge, Deborah Grohs, issued a warrant for his arrest. She has not heard from him or his brigade since.

His lawyer did not return repeated calls, but his bondsman, Bobby Brown, said he learned the soldier was leaving, and skipping out on a $25,000 bond, only three days before deployment.

Brown says he has seen the number of soldiers who deploy in violation of court rulings increase dramatically since the start of the Iraq war. He said he now petitions local courts two or three times a month to recover bail money on soldiers who have deployed.

“I don’t agree with the military sending someone to war with a serious felony pending,” Brown said. “Guilty or not, it has to weigh on them. And it’s a tough situation for victims involved. Their life goes on hold for a year. It weighs heavy on both sides.”

Spokesmen for the brigades of Avila and Duncan said both soldiers are critical to their missions.

“I understand the pressures of commanders who have to fill their ranks,” Shay, the clinical psychologist, said. “But they are using people up, and it is going to end in tears down the line.”

In Colorado Springs, it already has.

In May 2006, a Fort Carson soldier named Kenneth Eastridge was arrested in Colorado Springs on accusations he put a gun to his girlfriend’s head. In a previous tour in Iraq, Eastridge had been a model, decorated soldier. But after multiple roadside bomb blasts that injured him and killed close comrades, he was suffering from a traumatic brain injury, depression and post-traumatic stress disorder, according to Army records. Instead of going to court, he went back to Iraq.

In Baghdad, several former soldiers say, Eastridge began killing unarmed civilians, stealing Iraqi weapons and selling them back to insurgent militias. Shortly after returning to Colorado Springs in late 2007, he was arrested and charged with armed robbery and murder. His menacing case never went to trial.

In retrospect, Eastridge said from prison, the Army missed warning signs and never should have let him go back to Iraq.

Eastridge’s immediate commander, Staff Sgt. Michael Cardenaz told The Gazette in spring 2009 that repeated deployments had driven Eastridge to crime, and that his psyche was “a casualty of war.”

A short time later, Cardenaz, 29, who had served four combat tours, was arrested in an assault. He had been drinking at his battalion’s formal ball and allegedly got in a fight on Tejon Street. When a bystander named Seth Rippee asked Cardenaz why he had hit the other man, Cardenaz allegedly punched him, breaking his jaw in two places.

“I had my jaw wired shut for two months. I couldn’t eat solids. I couldn’t really work at first. I lost my job,” said Rippee, who was employed as a house painter.

Rippee showed up in court three months later, hoping he could ask the judge to order the sergeant to pay $15,000 in medical bills.

“But he never showed up. He had deployed,” said Rippee. “And the D.A. seemed to just let it slide. I couldn’t believe it. I understand these guys have a job to do, but had it been anyone else, no matter how important, he would be in jail.”
 
JUSTICE DELAYED?

Dan Zook, the deputy district attorney who oversees soldiers in local courtrooms, downplays the potential negative outcomes of deploying soldiers accused of felonies.

“It’s not a great problem,” he said. “It’s not happening enough that it warrants even tracking. I mean, if it happens once, that is way too much, if I were a victim I’d say ‘Hey, where are my rights?’”

But, he said, because soldiers are under the constant watch of their commanders while deployed, and the Army always returns them, it is a case of justice delayed, not justice denied.

“We tell victims: ‘This isn’t over; eventually the defendant will face the music.’”

That is not necessarily true, others say.

“Delaying a trial is bad,” said Gasper, a former district attorney who is now a private defense attorney. “Memories grow stale, victims recant, witnesses move and disappear. The longer it goes, the less likely there will be justice.”

And sometimes, war cuts justice short.

Cardenaz was killed by an enemy grenade in February 2010 in Afghanistan.

Rippee, who still has debt collectors call him almost daily about the medical bills he feels he should not have to pay, said it was hard to know how to feel when he heard the news.

“I feel bad for him. I feel bad for me,” Rippee said. “It’s just a bummer. I wish he had stayed so we could have resolved this.”


Contact the writer at 636-0223.

 

EDITOR'S NOTE
Reporter David Philipps is married to an attorney who works for the Colorado Public Defenders Office. She has had no involvement in these cases, nor in the reporting of this article.

 

4TH ID SOLDIERS DEPLOYED IN 2010 AND ACCUSED OF VIOLENT FELONIES

Spc. Chester Duncan
1st Battalion, 22nd Infantry Regiment, 1st Brigade Combat Team
Occupation: combat engineer
Number of combat tours: 2
Arresting charges: harassment, menacing and child abuse

Sgt. 1st Class Trinity Burger
1st Battalion, 68th Armored Regiment, 3rd Brigade Combat Team
Occupation: mortar platoon sergeant
Number of combat tours: 3
Arresting charge: menacing with a deadly weapon

Spc. Roberto Avila
64th Brigade Support Battalion, 3rd Brigade Combat Team
Occupation: generator repairer
Number of combat tours: 3
Arresting charge: attempted rape

Staff Sgt. Michael Cardenaz
2nd Battalion, 12th Infantry Regiment, 4th Brigade Combat Team
Number of combat tours: 5
Occupation: infantry squad leader
Arresting charge: assault

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