MICHELE NORRIS, host:
To learn more about how the military conducts investigations such as the one we just heard about, we're joined by Matthew Freedus. He's a partner at the D.C. law firm Feldesman Tucker in the military practice group. He was a Navy JAG until 2001.
Thanks so much for being with us.
Mr. MATTHEW FREEDUS (Attorney, Washington, D.C.): Thank you.
NORRIS: Now as we've just heard in this case, there was a video that was taken by an Iraqi which shows the alleged aftermath, blood smeared on the floor, bullet holes, what appears to be bits of human flesh. Since that video was taken by an Iraqi civilian, is that usable as evidence?
Mr. FREEDUS: It certainly could be. Questions could be raised as to its authenticity. What you need to have is someone who was on the scene and who can authenticate the footage in the video and you would need someone who saw the scenes within the footage to say yes, that is a fair depiction of what happened at that time. And that's, those are the steps you'd have to achieve to get it into a judicial proceeding.
NORRIS: When they approach the scene of an incident months after something like this has happened, what would they do in that case?
Mr. FREEDUS: Well you, the question is a good one because evidence such as shrapnel or bullet holes or blood on a wall could mean something very different months after the fact than it might mean minutes after the fact. So this might be an investigation where you see a greater emphasis placed on witness interviews and interrogations.
NORRIS: How do you break through the bonds of brotherhood in the military?
Mr. FREEDUS: Well, there's quite a bit of precedent for NCIS and other military investigative law enforcement bodies to get confessions from military members, even in alleged conspiracies and cover ups. You often have very young soldiers and sailors who are easily intimidated and when separated in a room and threatened with criminal sanction and told that there is evidence mounting against them and things look bad, that's a lot of pressure for a young individual and if they have a guilty conscience, you'll see those individuals oftentimes buckle.
NORRIS: You know, among lawyers in a DA's office, for instance, there's a certain protocol for interviewing witnesses. Often they will put them in separate rooms, go back and forth, sort of walk the hallway, talk to someone, use that information, go across the hallway, use that again. Do you follow a similar protocol?
Mr. FREEDUS: It sounds like you're describing the classic Mutt and Jeff routine.
NORRIS: Maybe I've been watching too many criminal shows on TV.
Mr. FREEDUS: It absolutely happens. There's an effort to separate witnesses and you will see NCIS agents taking information obtained from one interview and using it or deciding not to use it in another interview. Whatever they think is going to elicit helpful information they will do and that can include fabricating information.
They can flat out lie to a soldier and say, we have this information. One of your fellow soldiers has come clean. It's about time you do the same. Even if they don't have that it's, lying is one of the tools in the bag of tricks.
NORRIS: But as a Judge Advocate General, it sounds like you have quite a bit of latitude to elicit information from a witness.
Mr. FREEDUS: The law enforcement folks do. These interviews/interrogations are likely not going to be conducted by attorneys. They're going to be conducted by special agents who aren't bound by the same code of ethics that attorneys are.
NORRIS: Murtha's statements this week, how might that complicate this ongoing investigation?
Mr. FREEDUS: It unfortunately can shape public perception before the evidence comes out. I don't know what he has available to him and what the basis for his remarks have been, but I think it would be prudent to wait for the full report before really commenting on the evidence.
NORRIS: Matthew Freedus, thanks very much for coming into talk to us.
Mr. FREEDUS: My pleasure.
NORRIS: Matthew Freedus is a partner at the DC law firm Feldesman Tucker. He was a Navy JAG until 2001.
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