FILE: Navy SEAL Edward Gallagher, who has been accused of murder in 201
7, died of an Iraqi prisoner of war.
SAN DIEGO –
Attorneys for a naval SEAL accused of killing an Islamic state prison in Iraq in 2017, the case will be thrown out due to alleged prosecution containing restrained evidence and enforcement surveillance.
Lawyers for Special Operations Chief Edward Gallagher plans to set a military court on Wednesday in San Diego to dismiss the case or remove the prosecutor and possibly get the judge himself to go away.
"Gallagher's case has been irreparably destroyed by a government campaign of monstrous and illegal behavior," said lawyer Tim Parlatore in the opening budget of his proposal to reject the charges. "This prosecution threatens to constitute an unambiguous farce in our legal system."
The treatment comes with Gallagher's lawsuit less than two weeks away and opposed to increasing pressure from the defense, after lawyers have discovered prosecutors planted tracking software in emails sent to the defense and a journalist who may have violated the lawyer's privilege and other constitutional rights.
Navy has said it did nothing wrong and has no plans to remove the prosecutor. A spokesman would not comment on the proposals.
Among the evidence apparently preserved by the defense, the results of a Gallagher polygraph examinations were given weeks before his arrest of allegations that he had killed had killed an injured young teenage stylist and fetched civilians from a sniper perch.
Gallager knew at the time he was investigated and refused to commit any war crimes during the test, parlatore said in court papers. Gallagher was told he passed the exam.
Parlatore said he only knew about the exam because his client told him about it and study documents showed attempts to plan the test.
Polygraphs, commonly referred to as lie tests, cannot be admitted to civil or military courts because they are "not an indication of the truth," said Gary Solis, a former military judge and naval prosecutor who teaches law in Georgetown. By conducting such a test, the person answered most key questions without any kind of lie.
It is debatable whether the results would be considered as proof of innocence, and therefore the prosecution would not necessarily have to turn them into defense, Solis said.
The judge could awaken the defense of revealing polygraph results because it could infect the jury in the case, Solis said.
The work of getting the case thrown out as President Donald Trump has contemplated forgiving several deputy members accused of war crimes, including Gallagher, has pleaded guilty.
Gallagher's family has lobbied strongly for his freedom and dozens of Republican lawmakers have rallied to his cause.
Prosecutors have said that Gallagher piled the injured militant and then posed a picture with his corpse for his re-introduction ceremony. He sent a text to colleagues SEALs later and said, "I got this with my hunting knife."
Parlatore dismissed it as a joke that reflects a war's dark humor. No blood was found on the knife by forensic experts, he added.
Parlatore said he is aware of evidence that at least one member of Gallagher's squad practiced medical procedures on the militant when he was dead or nearly dead, indicating he died for another reason.
He said witnesses would be willing to testify, but prosecutors have said they are not aware of anything being done on him who was not medically necessary or any other cause of death.
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Parlatore also claimed that prosecutors cannot prove that Gallagher shot a young girl and an old man because charges of attempted murder are based only on rumors and rebellious hearsay .
Gallagher is facing a lawsuit on June 10.