A Robins Air Force Base, Georgia, airman who faces the death penalty if convicted at court-martial later this year has asked the trial judge to recuse himself.
Why? Because the judge, Col. Vance Spath, has also been tapped to preside over an upcoming trial at Guantanamo Bay.
In a motion filed Jan. 15, defense counsel Lt. Col. David Frakt cites a regulation change signed this month that he says makes Spath ineligible to oversee any other trial until the conclusion of his duties at Guantanamo.
The Jan. 7 revision signed by Deputy Defense Secretary Robert Work states that once detailed to the Military Commissions Trial Judiciary, "military commissions shall be the military judge's exclusive judicial duty."
"We have what appears to be a disconnect," Frakt said in a Jan. 20 interview with Air Force Times. "We have an order that appears to direct Col. Spath to stop judging, and yet he's still judging."
The government, in a response filed late Tuesday, disputes the defense's motion, arguing "there is no evidence that the change was meant to force judges to disqualify themselves from courts-martial on which they are presently presiding."
Frakt's client, Senior Airman Charles Amos Wilson III, is charged with killing his fiancee and her unborn child in August 2013. Wilson's next motion hearing is scheduled for March 9 — days after the two-week period Spath reserved for pretrial hearings in the Guantanamo case, according to the Miami Herald, which first reported on the defense motion.
Spath scheduled the Georgia hearing and appears to be planning to preside over it, Frakt said.
At Guantanamo Bay, Spath will preside over the case of Abd al-Rahim al-Nashiri, the alleged mastermind behind the October 2000 suicide bombing of the USS Cole while docked at a port in Yemen, killing 17 U.S. sailors and injuring scores of others.
No trial date has been set for Nashiri, according to the Miami Herald.
"I don't believe Col. Spath would take it upon himself to defy a lawful order from the deputy secretary of defense," Frakt said. "So I am assuming that someone has given him permission to continue judging or has directed him to continue judging, which suggests that there has been some kind of deal worked out. What we would like to know is what deal has been made."
In an email statement, Air Force spokesman Maj. Pete Hughes said the Judge Advocate General's Corps is working with its counterparts across the services as well as the military commission to comply with the regulation change.
"While we work the details of implementation, Col. Spath remains the Chief Trial Judge of the [Air Force] Judiciary," Hughes said.
In its Jan. 20 response to the defense motion, the government argues that Frakt has misinterpreted the Jan. 7 regulation change, which Frakt refers to as an order.
The revision "does not state ... that all military judges are to refrain from serving as a trial judge on any case not arising from the Military Commissions. It certainly is not an 'order' to do so or even a non-binding request," according the 8-page response. "A plain, practical reading ... shows that it is intended to allow the individual services to determine their trial judges' duties."
There is also no evidence Spath's role at Guantanamo will conflict with his duties in the Georgia case, the response continued. "In the absence of evidence by the defense that there is a basis for disqualification of Colonel Spath, the defense's claims fail."
But Frakt called the Nashiri case "tremendously complex ... with certainly scores of very complex motions. It's tremendously time-consuming," Frakt said. "The Wilson case is also very complex. We anticipate dozens of pre-trial motions," including at least 30 at the March hearing.
"There is a legitimate question of whether this is too much for one judge to handle. Obviously, given enough time, he can handle it. But the question is what kind of time pressures or constraints is Judge Spath being placed under," Frakt said. "Our overriding concern is to have a judge who is able to devote the necessary time and attention to our case without external pressures or any time constraints."
As the judge presiding over the Georgia case, Spath will decide at the March motions hearing whether or not to recuse himself. The defense can appeal the ruling.
The case against Wilson
Wilson, a support team member with the 461st Aircraft Maintenance Squadron, was arrested in August 2013 and charged with killing his fiancée, Tameda Ferguson, who was 8-1/2 months pregnant. Ferguson was found shot to death at her home in Dawson, Georgia, about 100 miles south of Robins.
The case was referred to court-martial as a capital case in October, although it is highly unlikely that Wilson would be put to death if convicted. The military last executed one of its own more than 50 years. The Air Force has not carried out a death sentence since 1954, when two airmen were executed for the rape and murder of a Guam citizen. Only one airman sits on death row: Former Senior Airman Andrew Witt, who was also stationed at Robins when he stabbed to death a fellow airmen and his wife and nearly killed a third person in 2004.
In addition to the charges stemming from the slaying of Ferguson, Wilson also faces arson and murder charges in connection with a fire in his rental home nearly two years earlier, in October 2011. Authorities have alleged Wilson conspired with Demetrius Hardy, a civilian employee at Robins, to set fire to Wilson's trailer to collect insurance money. Hardy died several days later from injuries sustained in the blaze.
Wilson was accused in a separate incident in July 2012 in which he allegedly held a gun to the head of a technical sergeant in a threatening manner, discharged it in her presence by shooting out of the window into a vacant field behind his home and, later, driving his pickup toward her in a threatening manner.
Both cases were being handled by civilian authorities at the time Ferguson was killed. The Air Force has since taken over jurisdiction.
A court-martial for Wilson has tentatively been scheduled for June 22, the Miami Herald reported.