Military Judge Declares a Mistrial in Iraq Prison Abuse Scandal Case

GWEN IFLL:

Now, on to the dramatic day in court for Lynndie England. Three days into the sentencing phase of her trial, the judge threw out her guilty plea today, saying conflicting testimony made that plea impossible. Private First Class England was photographed with prisoners at Iraq's Abu Ghraib prison most famously holding a prisoner at the end of a leash.

Ari Shapiro of National Public Radio has been in the courtroom. He joins us now. Welcome, Ari Shapiro.

ARI SHAPIRO:

Hi, Gwen.

GWEN IFLL:

Hi. Remind us first of all why it is that — what she's being charged with here, what she was standing trial for.

ARI SHAPIRO:

Initially, she was charged with seven counts of abusing detainees at Abu Ghraib Prison. She's the one who was most famously photographed holding a naked detainee on a leash, smiling and pointing at a lineup of naked detainees and posing in front of a pyramid of naked Iraqi prisoners at Abu Ghraib.

Before the trial began, her defense lawyers worked out a plea deal with the prosecution in which the prosecutors agreed to drop two of the counts against her, and in exchange, she would plead guilty to the other seven.

GWEN IFLL:

So by pleading guilty, she was trying — we call it cutting a deal, I suppose here — she was cutting a deal, and even in the military courts?

ARI SHAPIRO:

That's right, exactly. They had worked out a plea agreement, and all that was left to do, really, was the sentencing phase of the court-martial. And in the sentencing phase, the defense had an opportunity to present what's called mitigating and extenuating evidence, which is basically witnesses who give testimony that might convince the jury to hand down a lesser sentence, and that's what's been happening for the last couple of days here.

GWEN IFLL:

So what kind of witnesses have we seen?

ARI SHAPIRO:

Well, the first witness to take the stand was a school psychologist who evaluated Lynndie England when she was very young. And even that very first witness caused some problems with the judge. I should say, first of all, that the judge had warned very early on that if these witnesses gave testimony that crossed the line from mitigation and extenuation into an actual defense, the judge said he had freedom to throw out the guilty plea, throw out the plea deal altogether and impose a not-guilty plea on her, so that was sort of the umbrella under which all this was happening.

This first witness, the school psychologist, said Lynndie England was born a blue baby, deprived of air, and that as she was growing up she had severe learning problems and social-developmental problems. Now the issue with this was that the judge thought the psychologist might have been implying that England was not able to tell right from wrong. He said if that was the case, then England could not plead guilty to these crimes because she wouldn't have known they were wrong when committing them. They were able to work that out, but today when the judge declared a mistrial, he did bring that up, so even that first witness did cause some problems for the defense.

GWEN IFLL:

So the judge had been having problems even before we heard from (Charles) Graner. Now tell us a little bit about what we know of the relationship between Graner and England because it seems odd that they would have called him if he was going to undercut her deal.

ARI SHAPIRO:

Well, Graner had an intimate relationship with Lynndie England. He confirmed that today. In fact, he fathered her child. The seven-month-old infant was outside of the courtroom crying today. England said that she was teething. And Graner was called to testify.

Everyone was really excited to hear his testimony because this was going to be the first time that Graner would make a sworn statement under oath about what happened at Tier 1-A of Abu Ghraib Prison. The defense thought he was going to help their case, but in the end he was the cause of this being declared a mistrial and being sent back to the beginning.

GWEN IFLL:

Now, he apparently passed a note to reporters yesterday, suggesting that he didn't agree with the guilty plea?

ARI SHAPIRO:

That's right. He wrote out a note in which he said he was not allowed to speak with reporters because he's serving a ten-year prison sentence for his role in the abuses, but he said he was allowed to write a note. And in this note he said he was disappointed when he heard that Lynndie England was going to plead guilty. Now, there's no way of knowing for certain, but it's possible that that influenced the testimony he gave today.

GWEN IFLL:

By saying that and by then testifying the way he did today, he was suggesting that the underpinning for her plea deal was inaccurate, which is, she was there, she knew what she was there for, she didn't just happen to be following orders and wasn't aware of the seriousness of her action.

ARI SHAPIRO:

That's right. When Lynndie England submitted the guilty plea on Monday and reviewed it with the judge, he was very careful to make sure she believed that she was doing wrong and knew that she was committing a crime at each point, at each stage of the prison abuse scenario. But when Graner took the stand today, he provided very different testimony.

One of the counts that Lynndie England pleaded guilty to was conspiring to mistreat detainees. Now, as the judge said, a conspiracy requires at least two people. And when Graner took the stand, he said that he was not intending to abuse detainees. He said that when he put that leash — he called it a tether — around the naked detainees' neck and asked England to pose for a photograph with him, he thought he was documenting a legitimate use of force.

That was when the judge called a recess, and after the recess he said if Graner thought he was doing something legitimate, he was not part of a conspiracy to abuse detainees with Lynndie England. In that case, the judge said he had to impose a not-guilty plea on England. The plea deal was scrapped, and the trial was sent back to the very beginning.

GWEN IFLL:

Now, Graner has never himself, even though he's serving this ten-year sentence, he's never really admitted guilt, so what he did today was kind of consistent with that.

ARI SHAPIRO:

It was consistent with that. But it's worth noting as well, that even though Graner made an unsworn statement in his court-martial for the prison abuse trial, this was the first time he spoke having been sworn under oath to speak the truth. Now, presumably, the defense lawyers had gone over the testimony with Graner before he took the stand today, so one would hope that they knew what he was going to say.

It's possible that either they knew he was going to say what he said today, and they simply didn't think that that was inconsistent with Lynndie England's guilty plea, or it was possible that what Graner said today was unexpected. The defense lawyers were not willing to talk after the mistrial was declared, so we still don't know for certain.

GWEN IFLL:

When Lynndie England first went to court on these charges, there was a lot of talk that there was going to be a chain of command defense; they were going to take it all the way to the Pentagon. Whatever became of that?

ARI SHAPIRO:

Well, in the original Article 32 hearing, which took place last August — and an Article 32 hearing is more or less the same as a grand jury appearance in a civilian justice system — in that Article 32 hearing, the defense team submitted a list of witnesses they would like to call that went all the way up the chain of command to Defense Secretary Donald Rumsfeld. Most of the witnesses were not called to testify.

In Charles Graner's trial, a similar situation took place, and so I think that shortly before this court-martial began, the defense team realized that the chain of command defense had not had a good track record so far and that their client was likely to get a better deal if they simply struck a plea bargain, which in the end they did, although now that plea bargain has been overturned.

GWEN IFLL:

So now this is back to square one. What happens next? Is it a mistrial, the same kind of thing that happens in civilian courts? Do they have to recharge her? What happens?

ARI SHAPIRO:

Well, the charges now go to the commander who is in charge of Fort Hood here in Texas, and he has the option of either dismissing the charges or convening another Article 32 hearing. As I mentioned, Lynndie England already had one Article 32 hearing last August.

If that article — sorry, if that Article 32 hearing takes place, then an investigating officer will review the charges again, and potentially another court-martial will convene. That could be weeks or even months in the future.

GWEN IFLL:

Ari Shapiro of National Public Radio, thanks for helping us out.

ARI SHAPIRO:

You're welcome.