Category Archives: Article 39A Hearing

Prosecutors Accused of Misconduct, Breach in Controversial Sexual Assault Case Against Army Officer at Fort Campbell

Days after publishing a brief article about the hearing that took place Monday and Tuesday inside a military courtroom at Fort Campbell, Ky. I’m able to share more details about what took place as a military judge heard from attorneys on both sides about whether unlawful command influence and prosecutorial misconduct have tainted the prosecution of Army Maj. Christian “Kit” Martin. This is Part Three of a three-part series.

Army Maj. Christian "Kit" Martin is shown with two of his nephews in this undated photo.

Army Maj. Christian “Kit” Martin is shown with two of his nephews in this undated photo that his sister included in a letter to the general who ordered his court-martial.

First, some background: Major Martin, 47, is an Army Ranger and attack helicopter pilot with a distinguished 29-year military career — including three combat tours in Iraq — under his belt. Soon after telling his “wife” he wanted a divorce, he found himself the target of serious allegations and multiple criminal investigations followed during the next three years. Today, he faces the possibility of 58 years in prison if convicted on the most recent charges stemming from his ex-wife’s allegations of sexual assault and abuse. Because there is much more to it than I can share in one paragraph, I recommend you read the overview article about the case published Sept. 4 before you read any further.

The Article 39A hearing, essentially a pre-trial hearing during which the parties hashed out details in advance of having panel members (i.e., jurors) present, began at 8 a.m. with attorneys on both sides meeting alone with Col. Andrew Glass, the military judge.

Ninety minutes later, attorneys began making arguments about potential evidence to be presented and potential witnesses to be called during the upcoming trial. More than four hours of banter and discussion followed until 2 p.m. when the opposing parties took a one-hour break for lunch. After returning to the courtroom, four hours of testimony began. It continued for more than five hours the following day.

In the space below, I share details of the hearing based, in part, upon reports obtained from hearing attendees, none of whom happen to represent the prosecution which, to date, has opted to remain silent about the case.

BREACH OF ATTORNEY-CLIENT PRIVILEGE?

During the hearing’s second day, Maj. Jenny S. Whyte-Schlack testified she had spoken with Major Martin during a face-to-face meeting in November 2013 and, soon after, had written a memo containing details of the 10-minute meeting and shared it with members of the prosecution staff. In addition, however, she testified that she had not read Major Martin his Booker Rights, a statement read to individuals facing the possibility of nonjudicial punishment. Major Whyte-Schlack’s admissions are significant in light of the fact that Major Martin filed a grievance against her April 15, 2015.

In his grievance, Major Martin explained that he believed Major Whyte-Schlack was not working as a prosecutor at the time they met and that she said nothing to make him think otherwise during the meeting. Further, he claimed that her actions to inform members of the prosecution staff about their conversation constitute a breach of attorney-client privilege.

WITNESS SAYS SHE OVERHEARD PROSECUTORS

Another Army attorney called to testify during the second day of the hearing was Capt. James P. Garrett, the lead prosecutor in Major Martin’s case.

I’m told by a witness to the hearing that Colonel Glass warned Captain Garrett to only answer the questions and to not embellish his answers to questions offered by Major Martin’s counsel, Tucker Richardson III.

Often-heated exchanges between Captain Garrett and Richardson centered on what took place when the prosecutor offered Major Martin a choice between two less-than-appealing options during a meeting in March 2014.

Captain Garrett said he was not familiar with Article 15 procedures when he met with Major Martin soon after the major had left the office of Col. Michael Minor, where Part 1 of Article 15 specifications were read to him by the acting rear division commander. Still, the captain admitted, he had taken it upon himself to meet with Major Martin — without his attorney present — and offer him the choice between accepting the Article 15 — a form of non-judicial punishment that’s deadly to the career of any military officer who accepts it — or, as an alternative, facing a court-martial.

Captain Garrett was also asked about an email message he’d sent to Major Martin’s legal counsel March 26, 2014. In it, he had used words to the effect of “if Major Martin wanted to meet with the commanding general about his Article 15, then he would have to plead guilty first and, if he didn’t, then I would advise further charges could be added. When he did not deny sending the email, Captain Garrett essentially confirmed that he had sent it as a threat aimed at Major Martin (i.e., “Plead guilty to an Article 15 or we’ll find more dirt and prosecute you on more charges”). Apparently, Captain Garrett knew elevating the case to court-martial level would render as inadmissible the results of a polygraph exam Major Martin passed during an earlier investigation.

Captain Garrett was also asked how Major Martin’s Article 15 charge morphed into an Army Criminal Investigation Division investigation on the same day the major tried to meet with the commanding general and request an impartial adjudicating authority. This later escalated into 13 new charges, including rape, sexual assault and child abuse, against the major.

The captain responded by saying he contacted the accuser in April 2014 and then spoke with her neighbor, a man whom the defense described as “her lover,” and learned about several instances of alleged abuse. The allegations were followed by a new CID investigation.

Finally, Captain Garrett was asked if had had a discussion with Maj. Jacob D. Bashore, the special victims prosecutor who was the subject of my Aug. 27 article, Army Lawyer Surfaces in New Bogus Prosecution Effort, about Major Martin’s accuser the previous day while both were in the waiting room outside the courtroom. Specifically, he was asked if he had described the accuser as “totally un-credible” and if he had told Major Bashore that “(the prosecution) was only using her accusations as a threat and could drop them later.”

After Captain Garrett vehemently denied having spoken such words, Richardson
called Major Martin’s friend, Laura Spencer, to the stand.

A nursing instructor at a local university, Spencer testified that, one day earlier, she had been asked by the bailiff to wait in a side room. While waiting in that room, she said she overhead Captain Garrett tell Major Bashore the accuser “was totally un-credible as a witness, and that they were using her charges as a threat to Major Martin, and could drop them later.”  She said she also heard Major Bashore agree and that she heard Captain Garrett also say that they “could drop the charges later.”

Not surprisingly, the Army prosecutors denied such a conversation ever took place when asked about the alleged exchange on the witness stand.

To read other articles about Major Martin’s case, click here.

Thanks in advance for reading and sharing the article above and those to follow, and please show your support by buying my books and encouraging your friends and loved ones to do the same.  To learn how to order signed copies, click here.

Click on image above to order Bob's books.

Click on image above to order Bob’s books.

Local Prosecutor Says Fort Campbell Counterparts Tried to Pressure Her to Drop Charge Against Army Officer’s Accuser

Days after publishing a brief article about the hearing that took place Monday and Tuesday inside a military courtroom at Fort Campbell, Ky., I’m able to share more details about what took place as a military judge heard from attorneys on both sides about whether unlawful command influence and prosecutorial misconduct have tainted the prosecution of Army Maj. Christian “Kit” Martin. This is Part Two of a three-part series.

Maj. Christian “Kit” Martin stands in front of his AH-64D Apache Longbow helicopter in Balad, Iraq, in 2008. Though he’s piloted a many of the U.S. Army’s most-sophisticated attack helicopters, nothing prepared him for his battle with the military justice system.

Maj. Christian “Kit” Martin stands in front of his AH-64D Apache Longbow helicopter in Balad, Iraq, in 2008. Though he’s piloted a many of the U.S. Army’s most-sophisticated attack helicopters, nothing prepared him for his battle with the military justice system.

First, some background: Major Martin, 47, is an Army Ranger and attack helicopter pilot with a distinguished 29-year military career — including three combat tours in Iraq — under his belt. Soon after telling his “wife” he wanted a divorce, he found himself the target of serious allegations and multiple criminal investigations followed during the next three years. Today, he faces the possibility of 58 years in prison if convicted on the most recent charges stemming from his ex-wife’s allegations of sexual assault and abuse. Because there is much more to it than I can share in one paragraph, I recommend you read the overview article about the case published Sept. 4 before you read any further.

The Article 39A hearing, essentially a pre-trial hearing during which the parties hashed out details in advance of having panel members (i.e., jurors) present, began at 8 a.m. with attorneys on both sides meeting alone with Col. Andrew Glass, the military judge.

Ninety minutes later, attorneys began making arguments about potential evidence to be presented and potential witnesses to be called during the upcoming trial. More than four hours of banter and discussion followed until 2 p.m. when the opposing parties took a one-hour break for lunch. After returning to the courtroom, four hours of testimony began.

In the space below, I share details of the hearing based, in part, upon reports obtained from hearing attendees, none of whom happen to represent the prosecution which, to date, has opted to remain silent about the case.

LOCAL CIVILIAN PROSECUTOR TESTIFIES

In addition to the testimony highlighted in Part One of this series, more damning testimony surfaced when defense attorney Katherine Demps questioned Katherine (Garber) Foster, the Commonwealth of Kentucky’s Attorney for Christian County (a.k.a., “the local civilian prosecutor”).

Foster testified Tuesday afternoon that she had been contacted in October and November 2014 by two of the Army attorneys involved in prosecuting Major Martin: Maj. Jacob D. Bashore, the special victims prosecutor who was the subject of my Aug. 27 article, Army Lawyer Surfaces in New Bogus Prosecution Effort; and Capt. James P. Garrett, the lead prosecutor.

Foster also told the court she had felt pressured by both officers to drop her bigamy case against Major Martin’s accuser who, it turns out, appears to have never gotten a divorce from the father of her two youngest children before she married the major.

Regarding Major Bashore, specifically, Foster testified that he had contacted her repeatedly by email and phone.

One example of Major Bashore’s pressure can be found in the wording of an email exchange between Foster and the SVP, a copy of which I obtained. The exchange began with Foster contacting Major Bashore about an Army-related “bigamy and fraud question.” The words of her initial inquiry, stamped Oct. 7, 2014, at 4:19 p.m., appear below with the name of the accuser redacted and only minor formatting modifications:

“Major Bashore, I hope all is well at Fort Campbell! I have a rather interesting case, the victim being a soldier, Major Chris Martin, and his ex-wife, who is charged with bigamy. I am aware that he is under investigation by the military for claims of sexual assault by the ex-wife. Long, long, long story short, I was wondering if the military would ever prosecute the ex-wife for fraud since she obtained military benefits as a spouse while actually being married to another man. Thoughts?”

Barely 24 hours later (Oct. 8, 2014, at 5:04 p.m.), Major Bashore replied as follows:

“Hey, sorry for the delay. Been in trial the last two days. MAJ Martin is being court-martialed for the sexual abuse of his children, for assaulting his children and his former wife, and for some purely military offenses. MAJ Martin seems to be making a cottage industry for himself on being a ‘victim.’ But, no, we couldn’t prosecute the wife even if we wanted to as the military does not have jurisdiction over civilians.”

He closed his email with a telling question:

“Are y’all really going after her?”

Appearing to hold no punches while maintaining her demeanor, Foster replied the following day at 9:13 a.m:

“Yes, sir. Right now she has bigamy charges, and we are also looking to indict her on Tampering with a Witness stemming from her hearing in Family Court in 2012. Although I have only met with (Major Martin’s accuser) in the past and had not spoken with Major Martin until this week, I’ve been aware of their issues for the past two years, and I honestly find her behavior concerning. Major Martin’s attorney has been unsuccessful in finding any certificate for divorce on file in the four different counties in which (Major Martin’s accuser) has alleged that her divorce may have been granted. Additionally, (Major Martin’s accuser) and her attorney have not been able to produce any documents pertaining to a divorce despite repeated requests from Major Martin’s attorney. Judge Fleming annulled the marriage on June 11, 2014, and a finding of fact in that action is that (Major Martin’s accuser) was still married to (name of first husband of Major Martin’s accuser) when she married Major Martin.”

Regarding Captain Garrett, Foster testified she felt he had been “intense” with her and said she was insulted by his demeanor. In addition, she told the court she had spent 45 minutes telling Captain Garrett she had personally witnessed the Sept. 18, 2012, hearing during which Major Martin’s “wife” attempted to obtain an Emergency Protective Order against Major Martin. She told the court she concluded that Major Martin’s accuser was untruthful and had committed witness tampering with her children.

Apparently, Army prosecutors don’t like the local civilian prosecutor’s plan to prosecute Major Martin’s accuser because it weakens their case against the Regular Army officer.

On the second day of the hearing, Captain Garrett was asked why he had contacted Foster and why he should not be held in account for an apparent Brady Violation for waiting 60 days to inform the defense of his communication with Foster.

Worth noting: Major Martin’s attorneys have filed disciplinary complaints against Major Bashore and Captain Garrett in the states of Tennessee and Texas where they are, respectively, licensed to practice law. Also worth noting is the fact that Foster’s testimony seems to dovetail with the information I shared in my aforementioned Sept. 4 article, including news about the arrest of Major Martin’s accuser, her release on $5,000 bond and an Oct. 22 trial date being set for her case.

The local civilian prosecutor wasn’t the only person to testify about having an uncomfortable conversation with Army prosecutors. Two Army officers at Fort Campbell testified about the advice they received from the legal officers.

Maj. Lance Fountain, acting commander of the unit to which Major Martin was assigned, testified that Captain Garrett had advised him to not allow the accused officer to take leave (a.k.a., “earned vacation time”) so that he could meet with his defense attorneys two weeks prior to his first court-martial-related hearing in April 2015. Soon after Major Fountain testified, an audio recording of a conversation between the two majors was played in the courtroom for all to hear. The subject: Captain Garrett and the prosecution team’s efforts to block Major Martin from taking leave since June 2014. According to courtroom insiders, it clearly shows prosecutorial misconduct.

Another officer, Lt. Col. Nickolaus Guran, testified that he, too, had refused to approve some of Major Martin’s leave requests based upon advice from Army prosecutors. In addition, he testified that the major had not received initial written counseling and had not been assigned a duty position until six months after he had been assigned to his battalion.

To read other articles about Major Martin’s case, click here.

Thanks in advance for reading and sharing the article above and those to follow, and please show your support by buying my books and encouraging your friends and loved ones to do the same.  To learn how to order signed copies, click here.

Click on image above to order Bob's books.

Click on image above to order Bob’s books.

Officer’s Accuser Described as ‘Untruthful Since Childhood’

Days after publishing a brief article about the hearing that took place Monday and Tuesday inside a military courtroom at Fort Campbell, Ky., I’m able to share more details about what took place as a military judge heard from attorneys on both sides about whether unlawful command influence and prosecutorial misconduct have tainted the prosecution of Army Maj. Christian “Kit” Martin. This is Part One of a three-part series.

This graphic tells Maj. Christian "Kit" Martin's story in a nutshell. If justice doesn't prevail, he faces the possibility of spending 58 years in prison for something he did not do.

This graphic tells Maj. Christian “Kit” Martin’s story in a nutshell. If justice doesn’t prevail, he faces the possibility of spending 58 years in prison for something he did not do.

First, some background: Major Martin, 47, is an Army Ranger and attack helicopter pilot with a distinguished 29-year military career — including three combat tours in Iraq — under his belt. Soon after telling his “wife” he wanted a divorce, he found himself the target of serious allegations and multiple criminal investigations followed during the next three years. Today, he faces the possibility of 58 years in prison if convicted on the most recent charges stemming from his ex-wife’s allegations of sexual assault and abuse. Because there is much more to it than I can share in one paragraph, I recommend you read the overview article about the case published Sept. 4 before you read any further.

The Hearing

The Article 39A hearing, essentially a pre-trial hearing during which the parties hashed out details in advance of having panel members (i.e., jurors) present, began at 8 a.m. with attorneys on both sides meeting alone with Col. Andrew Glass, the military judge.

Ninety minutes later, attorneys began making arguments about potential evidence to be presented and potential witnesses to be called during the upcoming trial. More than four hours of banter and discussion followed until 2 p.m. when the opposing parties took a one-hour break for lunch. After returning to the courtroom, four hours of testimony began.

In the space below, I share details of the hearing based, in part, upon reports obtained from hearing attendees, none of whom happen to represent the prosecution which, to date, has opted to remain silent about the case.

ACCUSER’S SISTER TESTIFIES

The first witness called Tuesday afternoon was an older sister of Major Martin’s accuser. She was patched into the courtroom by phone from her California home.

During her time on the virtual witness stand, she began by telling the court she did not want to testify and had no opinion as to her sister’s credibility.  In addition, she testified she had not seen her 40-something sister much since leaving home many years earlier but had visited her in 2006 when Major Martin was assigned to a unit in Germany. In part due to “issues” that surfaced during that European vacation, she said she and her sister have had little contact since 2006.

At the conclusion of the woman’s testimony, Major Martin’s attorneys presented an audio recording that revealed damning statements she had made during an April 2015 interview with a private investigator. The audio recording included a statement by the woman that her sister, Major Martin’s accuser, had been untruthful since childhood, had a propensity for making up stories for no apparent reason and could not be believed.

Damning indeed.

To read other articles about Major Martin’s case, click here.

FYI: Parts 2 and 3 of this series will be published Sunday at 8 a.m. and Noon Central, respectively.

Thanks in advance for reading and sharing the article above and those to follow, and please show your support by buying my books and encouraging your friends and loved ones to do the same.  To learn how to order signed copies, click here.

Click on image above to order Bob's books.

Click on image above to order Bob’s books.