Seasoned combat veterans who described losing comrades and taking war prisoners were questioned Monday as possible jurors in the trial of a decorated Navy SEAL charged with killing a wounded Islamic State captive in Iraq.
All but one of the potential jurors in the court-martial of Special Operations Chief Edward Gallagher had served in a war zone and all but two were veterans of conflicts in Afghanistan and Iraq.
A jury is likely to be seated Tuesday and opening statements presented, defense lawyer Tim Parlatore said outside court.
The trial of Gallagher comes after the lead prosecutor was removed from the case earlier this month for tracking the defense team’s emails and President Donald Trump has suggested he may pardon Gallagher.
Gallagher has pleaded not guilty to premeditated murder in the killing of the prisoner in his care and attempted murder in the shootings of two civilians in Iraq in 2017. Gallagher says disgruntled platoon mates fabricated the allegations because they didn’t like his tough leadership.
Seven Marines, including one woman who is a major, four sailors and one Navy SEAL were seated in the jury box Monday, given copies of the charges and asked a series of questions about the case.
Each said they thought it possible that Navy SEALs could lie and that they could turn in a comrade on false allegations.
They also said they could convict someone in the killing of a member of the Islamic State and in the case where no body was recovered. The prisoner’s corpse was never found.
If Gallagher is convicted, the panelists said they would consider post-traumatic stress disorder and traumatic brain injury at sentencing, if relevant, along with his military record.
Gallagher has been treated for a brain injury after serving eight tours of duty. He was twice awarded the Bronze Star for valor in combat.
Parlatore said he hoped to have a panel made up of troops who understand what it’s like to be in the thick of battle.
Five jurors said they had personally faced the enemy, including a Marine master sergeant who had been in 30 straight days of firefights in Fallujah, Iraq, in 2004. He said he lost his best friend who was shot in the heart by a sniper in Baghdad.
In total, eight had lost friends or fellow troops in combat.
Gallagher also lost friends and comrades in battle.
Five jurors said they had experience escorting or transporting detainees, including those who were wounded and resisted capture.
Defense lawyers unsuccessfully sought to have a Navy judge dismiss the case because they say investigators and prosecutors withheld evidence that could help Gallagher and violated his rights to a fair trial by embedding tracking software in emails sent to them.
The judge, Capt. Aaron Rugh, refused to dismiss the case. But he took steps to make sure Gallagher gets a fair trial and remedy violations of his constitutional right against illegal searches and the right to counsel. Rugh released Gallagher from custody, removed the lead prosecutor and reduced the maximum penalty he faces if convicted to life imprisonment with parole — instead of no chance of parole.
Evidence at hearings last month showed an intelligence specialist from Naval Criminal Investigative Service conducted criminal background checks on three of Gallagher’s civilian lawyers and a Navy Times journalist who has broken several stories based on documents that are only to be shared among lawyers in the case.
Prosecutors downplayed the effort to find the source of news leaks, saying it only gathered data, such as internet protocol addresses, and did not snoop on the content of emails. The government said the investigation did not find who leaked the documents.
Gallagher’s family maintains he cannot get a fair trial. “The court’s ruling, recognizing a direct violation of Chief Gallagher’s constitutional rights but not dismissing the case, sends a chilling message to every man and woman in uniform,” his family said in a statement.
The prosecution also tracked emails of the lawyers of Gallagher’s commanding officer, Lt. Jacob Portier, who faces charges of conduct unbecoming an officer after being accused of conducting Gallagher’s re-enlistment ceremony next to the Islamic State militant’s corpse.