In a ruling that could lead to a new trial, a military appeals court has ordered a fresh look into the evidence used to convict Army Staff Sgt. Calvin Gibbs, the mastermind of the “kill team” that murdered three Afghan civilians in 2010.
Gibbs, a former soldier at Washington state’s Joint Base Lewis-McChord, is serving a life sentence at the military prison at Fort Leavenworth, Kansas. His so-called kill team gained international attention after photographs showed them posing with Afghan corpses.
Nearly five years after Gibbs’ conviction, the Army Court of Criminal Appeals said Monday that it wanted to know why some witnesses in the case were granted immunity and others were not and whether those decisions were made “in a discriminatory or improper fashion.”
“This is the first step to Cal getting a new trial, a fair trial where all the evidence is presented and considered by the jury,” said Phil Stackhouse, Gibbs’ attorney.
This is the first step to Cal getting a new trial, a fair trial where all the evidence is presented and considered by the jury.
Phil Stackhouse, attorney for Army Staff Sgt. Calvin Gibbs
In March, Stackhouse asked the three-judge panel in Fort Belvoir, Virginia, to grant Gibbs a post-trial hearing, citing new evidence, including statements from two fellow soldiers who now back Gibbs’ contention that at least one of the killings was due to legitimate combat engagement.
In addition, one of the witnesses who was not granted immunity and did not testify is challenging the account of the government’s primary witness, calling him “a liar.”
“While we knew this appeal was going to be an uphill battle . . . we are very pleased that the appellate court saw the necessity to actually hear from witnesses that the government literally prevented us from calling during Cal’s trial as part of their strategy,” Stackhouse said.
During oral arguments at the March hearing, Anne Hsieh, an attorney for the government, argued that Gibbs’ request for a post-trial hearing should be denied, citing “overwhelming evidence” to support his conviction. She said the new statements showed only a “minor inconsistency” and that even if they were considered as possible evidence, it was unlikely there would be a different verdict.
Gibbs was found guilty of leading a team of Stryker soldiers in a scheme to slay innocent people while on patrol in a remote outpost in southern Afghanistan.
During court proceedings in 2010 and 2011, Gibbs said he’d shot one Afghan who had fired at him first. After killing the man, Gibbs said, he cut a finger off the body because he was “pretty pissed off” that the man had tried to kill him.
Gibbs, a veteran of deployments to Iraq, testified that he was trying to look tough for junior soldiers on their first combat missions.
During court proceedings in 2010 and 2011, Gibbs said he’d shot one Afghan who had fired at him first. After killing the man, Gibbs said, he cut a finger off the body because he was "pretty pissed off" that the man had tried to kill him.
While Gibbs got a life sentence, another member of the “kill team,” Spc. Jeremy Morlock, received a 24-year sentence, also at Fort Leavenworth. Morlock testified in court that Gibbs had planned one of the killings and planted an AK-47 on his victim to make it look as though the Afghan had fired first.
Gibbs was found guilty of 15 criminal counts by a military jury in November 2011. Along with three murder charges, he was convicted of conspiring to kill innocent civilians, assaulting a junior-ranking soldier, keeping body parts from corpses and illegally possessing “off the books” weapons.
Twelve soldiers from Gibbs’ platoon in JBLM’s 5th Brigade, 2nd Infantry Division, came home accused of criminal misconduct.
Rob Hotakainen: 202-383-6154, @HotakainenRob