By United American Patriots | Wednesday, December 15th, 2010
A report from Attorney Daniel Conway:

United American Patriots,
Major Bill Donahue and Heather Fields
Thanks again for all of your tremendous support over the years.
Here is an update on Evan Vela’s case. The government has responded to our appellate brief. We are simply waiting for the Army Court of Criminal Appeals to either order oral arguments or to render a decision. We do not know when that will be, but we expect a decision soon. Evan’s appellate brief was well-done and raised a number of important legal issues. The brief was 50 pages long. We challenged whether the facts were sufficient to support a conviction on all charges. We are also challenging whether the government violated his 5th Amendment right against self-incrimination by forcing him to testify under oath twice and then prosecuting him for murder. We also raised a number of procedural issues related to the selection of the jury and presence of the Iraqi Minister for Human Rights at the trial. As I’m sure you are aware, nearly the entire jury pool came from the general’s headquarters. It was a truly conflicted jury.

The problem with juries in the military is reoccurring and there is substantial room for procedural abuses. The general picks the pool of eligible jurors. The government only needs a 2/3 vote to convict. We saw the same problem in Justin Boyle’s case – where the prosecutor was the legal advisor to over 55% of the jury. You would never have a jury comprised of 55% of the defense attorney’s clients. The not-guilty verdict with such a jury would be quite predictable. We will be filing an appellate brief in Justin Boyle’s case this month vigorously attacking the jury selection there. Thankfully, Justin was recently granted clemency and has been released from confinement.
Unfortunately, the parole board in Evan Vela’s was not successful. We were very disappointed. We were able to have a potential employer physically present at the hearing. The hearing went very well and Evan is an excellent candidate for parole. Unfortunately, the board determined that Evan had not served enough time for the conviction. In our view, locking a person in a cage merely for the sake of locking a person in a cage is never a compelling reason for continued confinement. Prolonged confinement should be reserved for those most violent offenders that cannot be trusted back in society. If a person is a strong candidate for parole, then he should be released.
As far as Andy Holmes’s case is concerned, there is much work to be done. On 15-16 November 2010, we travelled to Tacoma, Washington for the Article 32 Investigation. The hearing went quite well. There was a witness that we were able to locate that the prosecutors had never interviewed before – SPC Ryan Mallett. It is breath-taking that Army CID failed to fully interview all of the eye-witnesses prior to charging Andrew with premeditated murder. Once again, CID has demonstrated that they are not competent to handle homicide investigations.
SPC Mallett basically testified that Andy was on one knee pulling security facing the opposite direction of the engagement behind a 5-foot high wall when CPL Morlock threw a grenade at the victim. He testified that he heard Morlock yell for Andy to fire. He testified that Andy stood up and fired about 8 rounds that missed the man from a distance of about 9 feet. He knows that it was 8 rounds because they counted Andy’s magazine for missing rounds after the engagement. Eight rounds from a M249 machine gun takes less than one second. In other words, Andy probably barely pulled the trigger.
Most importantly, SPC Mallett testified that the grenade detonated when the machine gunfire stopped and that the grenade nearly killed Andy. A grenade has a fuse of 4-5 seconds. This means that the grenade may have been on the ground for 3-4 seconds while Andrew was kneeling behind the wall. That is an eternity for a live grenade and is further evidence that Andy did not know that Morlock had thrown the grenade.
SPC Mallett heard Morlock yell for Andy to get down and then Morlock pulled him down by the back of his uniform. Andy almost took shrapnel to the head. SPC Mallett testified that Andy was pretty shaken up by the entire event. Andy was so surprised by the grenade that when Morlock pulled Andy down behind the wall, he left the machine gun on top of the wall. The machine gun fell onto Andy’s head.
SPC Mallett’s testimony is critical. The government’s theory is that Andy knew that the killing was staged. That Andy and Morlock had talked about staging the killing, that Morlock told Andy to get ready, that Morlock threw the grenade, Andy then fired, and then both Andy and Morlock took a knee behind the wall. The government’s entire theory is based on the statement of CPL Morlock. SPC Mallett’s testimony directly undermines the government’s case. Part of our defense is that if Andy knew the killing was staged, he never would have missed the man from 9 feet with a machine gun. Further, the grenade – with a fuse of 4-5 seconds – would not have nearly killed Andy. In other words, Andy did not know that the killing was staged; he was simply in the wrong place at the wrong time trying to do his job.
We have also secured the assistance of Dr. Michael Baden as the defense forensic pathologist. As you may know, Dr. Baden is one of the most renowned pathologists in the world. Dr. Baden is the Chief Medical Examiner for the State of New York. Dr. Baden was the Chairman of the Forensic Pathology Panel of the U.S. Congress Select Committee on the Assassinations that re-investigated the deaths of President Kennedy and Dr. Martin Luther King, Jr. He also examined the remains of Tsar Nicholas II and the Romanov family for the Russian government. He has been an expert witness in the cases of Medgar Evers, John Belushi, Billy Martin, Christian Brando, O.J. Simpson, Jayson Williams, and Kobe Bryant. He was kind enough to travel to Iraq in Evan Vela’s case. Dr. Baden is a true patriot and we are very excited to have him on the team.
Dr. Baden has already reviewed two photos from this case and, so far, is of the opinion that no bullets from Andy’s machine gun could not have caused any of the wounds present on the victim. There are more photos that will have to be viewed and that the government is refusing to provide copies to the defense. We are attempting to have the photos sent to the FBI office or Department of Justice Office in New York City for Dr. Baden to analyze. If we can have them sent to NYC, I will travel to the city to be present when Dr. Baden examines the additional photos.
Likewise, we have basically filed an appeal with the Army Court of Criminal Appeals asking the court to force the government to allow us to introduce certain photos at the Article 32 Investigation. The Army Court has granted a stay in our case pending resolution of this issue. This is an extraordinary event for an appeals court to order a stay in proceedings prior to referral to court-martial. There are many in the legal community following this issue. We view it as an issue of Constitutional dimensions. Without defense access to those photos, Andy is being denied due process.

As you can see, we are attacking Andy’s case from many different angles. There has been extensive media attention that has been fairly positive given the sensationalized charges. We have posted some of the articles on our website: http://www.mcmilitarylaw.com/news.php#stryker. Dana Holmes was also featured on CNN: http://news.blogs.cnn.com/2010/10/26/tuesdays-intriguing-people-34/?iref=allsearch.

Our multi-pronged attack, though, is resulting in significant dedication of time, resources, and additional travel expenses not incurred in most cases. It would not be possible for us to dedicate the amount of resources needed without the assistance of the UAP.
Sincerely,

Daniel Conway