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Friday, May 14, 2004; Page A1

In Iraq Prison Trial, Defense May Rely On Photos of Abuse

Lawyer for One Guard Claims Picture Shows His Client Taking Orders From Others - Will Generals Take the Stand?


HOUSTON -- The photograph, taken from the gangway of Tier 1 Bravo in Iraq's now-infamous Abu Ghraib prison, seems damning. Army Specialist Charles Graner Jr. watches impassively as an overweight man in American military fatigues arranges a pile of naked Iraqis nearby.

But lawyer Guy Womack plans to make that photo a cornerstone of Spc. Graner's defense. Spc. Graner, who gave Mr. Womack the photograph, scratched in hand-drawn numbers on each of the figures, some of whom are identified in an accompanying caption. Four of the soldiers in the photograph are from military intelligence, according to information Spc. Graner provided Mr. Womack. And the out-of-shape man adjusting the Iraqis, Spc. Graner told his lawyer, is a civilian under contract to military intelligence. "Look at that guy, he's too fat to be in the Army," Mr. Womack says. "And look at my MP -- he's not giving orders, he's taking them."

The photo goes to the heart of Mr. Womack's argument -- that military-intelligence officers and civilian interrogators were barking the orders at the prison, and low-ranking military police such as Spc. Graner were simply following them. If Spc. Graner's identifications are accurate, the photo is one of the few made public so far that depict intelligence personnel with naked Iraqis and not just military police. It could be key to determining who was in charge.

Turning seemingly incriminating evidence on its ear is something of a specialty for Mr. Womack, a Houston lawyer and former Marine judge advocate, or military prosecutor. As a civilian defense lawyer, Mr. Womack once defended a prison guard for kicking a prone and naked prisoner in an incident caught on videotape. The guard was acquitted. In Korea, Mr. Womack took a videotaped military reconstruction of a negligent-homicide case and turned it to his client's favor, resulting in another acquittal, and sparking rioting among local students.

The track records of Mr. Womack and other lawyers retained by the other implicated soldiers suggest that the Bush administration's plan to win quick convictions may be wishful thinking. In military court, defendants are permitted to bring in high-octane lawyers such as Mr. Womack in addition to the military counsel they get automatically. Furthermore, Spc. Graner's jury will be drawn from soldiers in the war zone, who are unlikely to have much sympathy for Iraqi detainees. Under military rules, if Mr. Womack is able to convince more than a third of the panel that the prosecution failed to prove his client guilty, Spc. Graner walks.

PHOTO CAPTION: Spc. Charles Graner etched numbers into this photo in order to identify himself and others at Abu Ghraib prison. Spc. Graner is labeled No. 1 in the photo, which shows Iraqi prisoners bound together. According to Spc. Graner, No. 2 is a civilian contractor for military intelligence, Nos. 4, 5, 7 and 8 are military-intelligence soldiers, and Nos. 3 and 6 are military police. No. 9 is not identified. Lawyers are expected to use the photo in Spc. Graner's defense. Some notes by Spc. Graner have been cropped out of the photo.

Spc. Graner says what he has come to fear most in this case is the other soldiers involved. In military courts, all defendants go on trial separately, which might prompt some to point the finger at others.

"Over the past two years, I have learned soldiers like to stab each other in the back," Spc. Graner says in an e-mail sent via his attorney. "The higher the rank, the bigger the knife."

Spc. Graner, who is expected to be formally charged with maltreatment and indecent acts at a hearing on May 20, hired Mr. Womack by e-mail on May 1. Two other lawyers he contacted refused to go to Iraq, where the courts-martial will be held. He now sends Mr. Womack a half-dozen missives a day. "It may sound silly to the average person but Mr. Womack is also a Marine," Spc. Graner wrote in an e-mail sent via his attorney. "I felt better having a Marine sit next to me in the courtroom than anyone else."

Some of the other Abu Ghraib defendants have attracted a dream team of military attorneys. The list includes Gary Myers, onetime lawyer for Lt. William Calley, the Vietnam soldier accused of ordering the My Lai massacre 30 years ago. He's representing Staff Sgt. Ivan "Chip" Frederick, one of the soldiers implicated in the scandal. Frank Spinner, who represented Air Force pilot Kelly Flinn in 1997 when she was charged with adultery, is handling the defense of Spc. Sabrina Harman. Lt. Calley was convicted and sentenced to life; Spc. Flinn received a general discharge, rather than the honorable one she requested.

The defendants who are talking say they were simply taking orders from military intelligence officers, Central Intelligence agents and government contractors who told them to "soften up" prisoners for interrogation. Many top officials at the Pentagon have rejected this defense, saying they have seen no evidence suggesting the incidents of abuse at Abu Ghraib were anything more than the independent acts of an undisciplined cadre of military police.

Citing longstanding policy, a Pentagon spokesman refused to discuss Mr. Womack's tactics or any specific aspect of the legal proceedings. But in a recent congressional hearing, Gen. Peter Schoomaker, the Army's chief of staff, said he believes the soldiers caught up in the scandal were rogues, and that their case is an isolated one. "I think this is a great example of the confluence of a leadership void and people that deliberately were participating in things they knew to be wrong," he said. "And I am convinced that this notion that there is somehow a systematic program to do this is incorrect."

At least one of the soldiers, Spc. Jeremy C. Sivits, due to go to trial May 19, is widely expected to plead guilty and become a cooperating witness. But Mr. Womack, who plans to fly to Iraq in two weeks to see his client, vows no such strategy. "We're going to trial," he says. "And I plan to call a lot of generals."

The Graner case has practically overwhelmed Mr. Womack's tiny suite in downtown Houston. On any given day in the past two weeks, a camera crew was filming in his office.

A Georgia transplant who favors wearing hand-tooled burgundy cowboy boots with his single-breasted suits, Mr. Womack, a 51-year-old father of three, joined the Marines after finishing law school in 1980. He spent 10 years on active duty, the bulk of it as a military lawyer. Consumed with the law and military justice, Mr. Womack brought his children up with an unorthodox assortment of bedtime stories. "Other kids got fairy tales, but Dad always told us about the cases he was prosecuting," says his daughter Paige Caddle, who is now his legal assistant. "It was always, 'Once upon a time, there was a soldier who murdered a man...' "

In 1990, Mr. Womack resigned his Marine commission and did a stint in the reserves, landing a job as a federal prosecutor in Houston. He later switched to private practice, handling drug cases and whatever else he could scrounge up. In 1999, Mr. Womack took on the court-appointed case of Robert Percival, a Brazoria County prison guard accused of attacking a group of Missouri inmates who had been sent to Texas because of prison overcrowding.

The incident occurred in 1996, though it took a year for the videotape to surface. After smelling marijuana, a group of guards, including Mr. Percival, entered the cellblock where the Missouri inmates were housed and began shaking the place down for contraband. The situation quickly escalated into bedlam. The guards retreated from the cellblock but returned armed with a dog and a shotgun, Mr. Womack says.

A young convicted murderer named Tony Hawthorne got the worst of it, according to Mr. Womack. Forced to the floor, Mr. Hawthorne can be heard screaming when a police dog attacks him. Mr. Percival's contribution was a vicious kick to Mr. Hawthorne's backside as the guards struggled to subdue him.

Mr. Womack says he took one look at the tape and blanched. "It looked like a civil-rights violation," he says. "I thought we were in deep kim-chee, as they say over in Korea." (Kim-chee is a Korean delicacy.)

Mr. Womack decided to confine his research to the question of proper use of force, a mushy subject that's nearly always defined by individual circumstances. An expert he found concluded that Mr. Percival's technique was lousy. But the proper technique for the occasion -- a knee drop to the back -- would almost certainly have left Mr. Hawthorne crippled for life, Mr. Womack argued.

Of the four guards charged, one took a plea and was sentenced to a year in prison. A second was convicted of kicking Mr. Hawthorne and received a total of 3* years in prison, after being convicted in an unrelated prisoner-abuse case. The jury came back hung on the dog handler. And Mr. Percival was acquitted outright. The dog handler immediately hired Mr. Womack to handle his retrial. Federal prosecutors dropped the case.

If Mr. Womack learned anything from the case, it was that repetition could render virtually anything mundane. While the prosecution had used the most explosive excerpts of the videotape in presenting its case, Mr. Womack let the machine run, screening all 90 minutes of the tape for the jury and replaying it every chance he got.

"With the video -- with these Graner pictures -- you got to show them a lot," he says. "They're like crack cocaine: The first time, it's powerful stuff. But the effects diminish every time you do it again."

In another case, Mr. Womack represented Sgt. Mark Walker, an American soldier in Korea, who in June 2001, ran over two 13-year-old schoolgirls with a 60-ton military vehicle. To many Koreans, the incident crystallized resentment toward the 37,000 American soldiers stationed in the country. In late 2002, Sgt. Walker was brought before a court-martial on two counts of negligent homicide.

The case again turned on a videotape, this time a reconstruction of the accident that had been prepared by military investigators. Parsing the tape, Mr. Womack was able to prove that Sgt. Walker's field of vision was so limited that he couldn't have possibly seen the Korean girls standing on the road shoulder. The jury was convinced. Sgt. Walker was acquitted. Rioting in Seoul went on for weeks.

Unlike many of the other pictures made public, the Graner photo is an overhead shot taken from the upper deck of Tier 1 in Abu Ghraib that appears to have been taken covertly. It shows at least eight people dressed like soldiers milling about in a corridor, many of them seemingly oblivious to the three naked Iraqis lying on a concrete floor about midframe, arranged in stylized, prone poses. Spc. Graner, rubber-gloved hands on hips, coolly observes the scene while an overweight man in Army fatigues appears to make minor adjustments to the human tableau on the floor. (Spc. Graner has appeared in numerous other Abu Ghraib photos.)

It remains to be seen whether Mr. Womack can prove that his client actually received such orders from other people in the photo, since the orders clearly weren't written down and Spc. Graner is unlikely to testify himself.

Another complication, Mr. Womack says, is the pressure in Washington for convictions. President Bush has already said the soldiers in the pictures will be punished, which Mr. Womack considers tantamount to convicting his clients before trial. In response to this, Mr. Womack has embarked on an aggressive publicity campaign, granting up to a half-dozen television interviews a day. He's discounting his usual fee for Spc. Graner, but he's already picked up one new client from all the attention. "It's like an ad in the Super Bowl, only it's been going on for 10 days," he said.

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