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Judge blasts Corps for botched prosecution of Marine who shot corpsman in the eye

Charge against Cpl. who shot corpsman in the eye is dismissed

Jan. 13, 2014 - 03:29PM   |  
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Following a federal court’s dismissal of a criminal assault charge against a former Marine who was accused of shooting a Navy corpsman in the eye in 2008, the Marine Corps is distancing itself from its own officers’ handling of the case.

In a scathing opinion published Dec. 19, New York Southern District Court Judge Colleen McMahon faulted Marine Corps legal officers for incompetence in the case of former Cpl. Wilfredo Santiago, who allegedly shot Hospital Corpsman 3rd Class Michael John Carpeso with his sidearm in what appeared to be an act of negligence in Iraq.

After the Jan. 26, 2008, incident, Santiago was questioned but never placed on legal hold, and he left the Marine Corps four months later at the end of his service contract with an honorable discharge and no pending charges. The Iraqi interpreter who was the only witness to the shooting disappeared after the Marines left Iraq a few years later, possibly depriving Santiago of his strongest defense testimony.

“I come away from this exercise with the firm conviction that HM3 Carpeso did not really matter much to the people who should have been fighting for justice for him,” McMahon wrote in the opinion, which dismissed the most serious charge against Santiago, reckless assault, on the grounds of delay. “ Frankly, I think Michael John Carpeso deserved a little more ‘Semper Fi’ than he got from the United States Marine Corps.”

A Marine Corps spokesman, Capt. Tyler Balzer, said Jan. 2 that the case is not representative of the Marine Corps justice system.

“The Santiago case was an anomaly and does not reflect the current practice of law within the Marine Corps,” he said. “During the past four years, the Marine Corps has made a number of improvements to elevate the practice of law by our judge advocates.”

These, he said, included a comprehensive case tracking system and centralization of prosecution services.

The facts of the Santiago case do look bad for the Marine Corps. According to court documents, the shooting occurred in a billeting container at Joint Security Station One in northern Diwaniyeh, Iraq. Carpeso, who was partially blinded but survived the shooting, could not remember what had happened but didn’t think he’d shot himself.

Questioned by Naval Criminal Investigative Service, Santiago, who other Marines said had a habit of toying with and “dry firing” his gun, confessed to the shooting. The intepreter, “Hollywood,” who was also questioned, said he recalled seeing Santiago pull his M9 pistol out of his holster a few times, but was not sure he had shot Carpeso.

After the initial investigation, proceedings stagnated. Col. Vincent Stewart, head of II Marine Expeditionary Force (Fwd), the parent command of Santiago’s Camp Lejeune-based unit, 1st Battalion, 8th Marines, did not convene a court-martial for him. When he returned home in March, he was transferred between commands, and nobody placed him on legal hold. And when he reached his end of active service date in June, no one moved to recall him, McMahon wrote.

In November 2008, she said, JAG officers were still researching whether Santiago could be recalled to active duty to face charges.

“This is symptomatic of something that happened repeatedly in this case: Marine lawyers taking months to make the most modest progress on tasks that any halfway competent second year law student could complete in a matter of hours,” she wrote.

Later, she said, Marine officials turned their attention to finding out who was responsible for allowing Santiago to leave active service without facing charges.

A II MEF command investigation found, among other things, that Santiago’s case “got lost in the shuffle of multiple commands as well as an investigative process that could not keep pace with those movements.”

But officials signed off on the investigation results and recommended “no further actions” be taken to rectify the matter, she said.

In June 2010, then-2nd Marine Division commander Maj. Gen. John Toolan ordered that papers be prepared to recall Santiago to active service, according to court documents. But delays continued into 2011 — past the end of Santiago’s term in the Individual Ready Reserve and the point at which he could have been recalled.

The only option remaining was a civilian federal indictment, which took place in January 2013. But McMahon said the undue delay had unfairly prejudiced proceedings against Santiago. Neither he nor Carpeso received justice under the Marine Corps system, she wrote.

“While NCIS did its job, JAG only talked the talk — it did not walk the walk,” she wrote. “ Wilfredo Santiago has due process rights that must be respected and enforced, but nothing in this decision can or should be read to excuse what occurred in that container on January 26, 2008.”

A former Marine Corps attorney, Charlie Gittins, who left his career in military justice in frustration with the system in 2012, said the lack of action by the Marine Corps in 2008 was “shocking to the conscience.” There is no excuse for what happened in the Santiago case, he said.

“The prosecutors and staff judge advocates’ handling of the hot potato, which nobody seemed to want to get a grip on, is pretty appalling,” he said.

According to Navy and public records, Carpeso, 28, was discharged in 2011 after seven years of service and now lives in Princeton, Texas. Santiago, who lives in Bronx, New York, with his family, served five years and deployed three times to Iraq, Marine offficials said.

Carpeso did not return calls. Attempts to reach Santiago directly and through his attorneys were unsuccessful.

Balzer said he did not know if any Marine officers had been punished or counseled for their handling of the case, but he is looking into it.■

Staff writer Kevin Lilley contributed to this story.

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