Capt. Robert Semrau Charged With Murder in Afghanistan

[40below]

I hate to see the "Rat" even win this much of what I am sure is satisfaction.

Who's the Rat? Someone who should have lied under oath?

 

[McG]

I hate to see the "Rat" even win this much of what I am sure is satisfaction.

Who's the Rat? Someone who should have lied under oath?

:stop:

There will be no fighting about "guy was a rat" or "would have been a cover-up" or any of that nonesense.  This thread has been down that path before, and those who want to relive it can go back at re-read the olds posts, but we will not be dragging this thread back down that very heated path again.

Cheers,
The Staff.

 

[57Chevy]

Sorta. Courts martial only have the power to sentence an offender to terms of up to two years less a day at Club Ed.

Exactly
So, he could get less than that.
"going on charge" seemed to and somehow always seems to be justified by
"against the good order and discipline..etc".
So........Is the lesser charge related to or somehow weighed by the gravity of the alledged charges
of which he was found not guilty? Thus somehow eyeing the high end of punishment (dismissal) or
for that matter (imprisonment). Or more toward the extreme low end..... reprimand......fine, or less?

 

[40below]

Exactly
So, he could get less than that.
"going on charge" seemed to and somehow always seems to be justified by
"against the good order and discipline..etc".
So........Is the lesser charge related to or somehow weighed by the gravity of the alledged charges
of which he was found not guilty? Thus somehow eyeing the high end of punishment (dismissal) or
for that matter (imprisonment). Or more toward the extreme low end..... reprimand......fine, or less?

I dunno. I'm not a lawyer, let alone a JAG, but I have spent a lot of time in court and he could get off with just a fine and/or reprimand. Given that he wasn't convicted of the principle charges, the judge has a lot of leeway when it comes to sentence. I'm really watching this with interest. And remember his lawyers had already filed a pre-trial objecting to court-martial jurisdiction:

# Decision relating to an application under s. 191 of the National Defence Act  and article 112.03 of the Queen's Regulations and Orders for the Canadian Forces in relation to a violation of ss. 7 and 11d) of the Canadian charter of rights and freedoms seeking an order to amend paragraph 10 of this court martial administrative instruction issued by the court martial administrator on 17 December 2009 with regard to the dress of court martial participants, 25 January 2010 (PDF Version, 34.1 KB)
# Decision respecting an application pursuant to s. 191 of the National Defence Act and article 112.03 of the Queen's Regulations and Orders for the Canadian Forces that the court lacks jurisdiction becuase the trial was convened to take place at a location other than where the alleged offence occurred, 27 January 2010 (PDF Version, 53.9 KB)
# Decision respecting an application that the general court martial is not an independent and impartial tribunal made under ss. 7 and 11d) of the Canadian charter of rights and freedoms, 28 January 2010 (PDF Version, 111.0 KB)
# Decision further to an application alleging a violation of the right to be tried within a reasonable time pursuant to section 11(b) of the Canadian charter of rights and freedoms, 1 February 2010 (PDF Version, 105.0 KB)
# Decision respecting an application that the selection process for the members of the general court martial and the composition of the panel contravenes the rights of the accused under s. 7 and s. 11(d) of the Canadian charter of rights and freedoms, 10 February 2010 (PDF Version, 67.7 KB)
# Reasons for decision relating to an application pursuant to s. 191 of the National Defence Act and article 112.03 and 112.05(5)(e) of the Queen's Regulations and Orders for the Canadian Forces that the ss. 139 to 149.2 and 195 of the National Defence Act violate ss. 7, 11(d), and 12 of the Canadian charter of rights and freedoms, 5 February 2010 (PDF Version, 27.8 KB)

http://www.jmc-cmj.forces.gc.ca/dec/2010/semrau-ra-eng.asp

 

[dapaterson]

Both the prosecution and the defence will make representations about the crime he has been found guilty of, both will make recommenations as to sentencing, together with any relevant precedents, for the judge to consider.

And the judge will craft a sentence.  If it includes a custodial element, the defence may request that he be released pending appeal (that is, not go directly to jail) and rather be kept free until the CMAC (Court Martial Appeal Court) renders a decision.

I suspect the prosecution will push for jail; the defence for a severe reprimand (or similar); whichever side wins out, there will be an appeal to the CMAC.

Or, unlikely, the defence and prosecution will come to an agreement and submit a joint reocmmendation, that the judge is not 100% obliged to follow, but would only go against under very rare circumstances.


Besides, the defence raised numerous procedural grounds in advance of trial (mostly rejected by the judge); any of those can give rise to an appeal as well.

 

[PuckChaser]

I question for those who've spent more time in/around the CF Military Justice System than I have... Can the not guilty finding on the charges be reversed if he went to CMAC for the guilty finding? Or is the court's decision on that matter final, unless the Prosecution appeals the decision (if they have the power to do so)?

 

[40below]

Both the prosecution and the defence will make representations about the crime he has been found guilty of, both will make recommenations as to sentencing, together with any relevant precedents, for the judge to consider.

And the judge will craft a sentence.  If it includes a custodial element, the defence may request that he be released pending appeal (that is, not go directly to jail) and rather be kept free until the CMAC (Court Martial Appeal Court) renders a decision.

I suspect the prosecution will push for jail; the defence for a severe reprimand (or similar); whichever side wins out, there will be an appeal to the CMAC.

Or, unlikely, the defence and prosecution will come to an agreement and submit a joint reocmmendation, that the judge is not 100% obliged to follow, but would only go against under very rare circumstances.


Besides, the defence raised numerous procedural grounds in advance of trial (mostly rejected by the judge); any of those can give rise to an appeal as well.

I claim no inside knowledge of this case, but you're absolutely, positively gonna see a joint sentencing recommendation on this one. I'd bet a truckload of beer on it.

 

[40below]

I question for those who've spent more time in/around the CF Military Justice System than I have... Can the not guilty finding on the charges be reversed if he went to CMAC for the guilty finding? Or is the court's decision on that matter final, unless the Prosecution appeals the decision (if they have the power to do so)?

Well, yeah. Both the prosecution and defence can appeal to CMAC, but only on the facts presented in court. It acts as a military Court of Appeals. No court decision is ever final unless it's the Supremes that issues it.

 

[Gunner98]

It's a bit like Schroedinger's Cat, isn't it? If he pumped rounds into a living body it was murder or attempted murder; if he was shooting a dead body, it's committing an indignity to a corpse.

I challenge you to finding that one in the NDA.  In the CCC yes (Indignity to a Dead Body [182(b)], but he was not in Canada at the time of the offence.  The evidence states that he not only pumped the rounds but then told several people he had done it, would do it again and did not regret it.  Sounds like disgraceful conduct under the NDA.

This is a difference between review and appeal.

As for Review for Courts Martial:

QR&O 116.04 – REVIEW AUTHORITY – COURTS MARTIAL

Subsections 249(1) and (2) of the National Defence Act provide:

“249. (1) The review authority in respect of findings of guilty made and punishments imposed by courts martial is the Governor in Council.
(2) The review of a finding of guilty made and any punishment imposed by a court martial must be on application of the person found guilty or the Chief of the Defence Staff.”

The powers of the Governor in Council to quash a finding of guilty, substitute a new finding for any finding of guilty and alter the sentence of a court martial, which are set out in Part III, Division 11 of the National Defence Act, draw their origins from the Crown Prerogative. These powers are discretionary and may be used to grant exceptional remedies under exceptional circumstances.

 

[1feral1]

If you thought this was just a Canadian incident, think again. This from Australia off the much trusted www.news.com.au ...

Canada, the whole world is watching.

Personally, I am pleased with the verdict in regards to the 'M' charge. I am however disappointed with the other verdict, and I only hope the good CAPT will get the mininum, and take discharge from the CF, and get on with his life. I wish him much success with his future endeavours in whichever profession he chooses.

I view him as a victim of political correctness gone mad. 

I also noted the treatment of the wounded TB by the ANA, as the ANA spat on, kicked and abused him. This is the first I had heard of this.

Shared IAW the usual...  http://www.news.com.au/breaking-news/canadian-acquitted-of-taliban-murder/story-e6frfku0-1225894406301


Canadian acquitted of Taliban murder

From correspondents in Ottawa From: AFP July 20, 2010 9:33AM Increase Text Size Decrease Text Size Print Email Share Add to Digg Add to del.icio.us Add to Facebook Add to Kwoff Add to Myspace Add to Newsvine What are these?

A MILITARY panel has acquitted a Canadian officer of murder over the death an unarmed and badly wounded insurgent in Afghanistan but sentenced him to up to five years in jail for "disgraceful conduct" for what the soldier described as a mercy killing.

But neither Canadian, nor international law recognises mercy killings.

Captain Robert Semrau, 36, was today in Canada found not guilty of second-degree murder, attempted murder or negligent performance of military duty, despite the four-member military panel concluding he had indeed shot and killed an unarmed Taliban fighter.

The lesser disgraceful conduct charge carries a sentence of up to five years in prison.

The Canadian National Defence Department said Semrau's sentence would be determined at a later date.

The drama unfolded on October 19, 2008, as Canadian soldiers faced an increasingly tough insurgency as they defended key positions in the region.


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Semrau was mentoring Afghan soldiers under a NATO program.

Following several clashes, British and Afghan troops along with their Canadian mentors came across two "presumed" Taliban fighters: one dead, the other was too severely wounded for treatment on site.

According to prosecutors, the wounded man was "insulted, spat upon and kicked" by Afghan soldiers in Semrau's company.

His rifle, ammo and vest were taken and the patrol moved on, deciding to leave his fate "in Allah's hands".

Semrau, and a Canadian private under his command and an Afghan interpreter codenamed Max soon returned to photograph the two insurgents, after deciding they could be "high value targets".

They found the wounded man still breathing, prosecutors said.

The private snapped two pictures of the wounded man as Semrau stood guard.

Semrau then told Max and the private to "head back" as they "should not have to see this", prosecutor Captain Thomas Fitzgerald had said in earlier proceedings.

The pair walked a short distance "when they heard two distinct shots," he added.

The private "whirled around thinking he'd been caught in another ambush", his gun ready. He saw the victim was "no longer moving".

Semrau is alleged to have told the private under his command "that he couldn't live with himself if he had left a wounded human being and nobody should be made to suffer like that".

Later that day, Semrau was overhead saying that he fired the shots that killed the insurgent and that "anyone would do the same for any other human being in that situation. He is still a human being and should not suffer like that".

 

[captloadie]

I'm having a problem understanding some of the sentiments by posters on this subject. People seem upset that he didn't get off scott free. The way I see it, he either did end the TB's suffering, which I'm fine with calling a mercy killing. I'm not even against it, but I know the law says its wrong, and breaking the law means some sort of punishment.

The other option is the TB was already dead, in which case he did, as per the evidence, fire rounds into the corpse, which could be construed as desecrating a body, which is also against the law, and requires that he be punished.

From all I have heard, and the support he has received here, he is an intelligent, decent human being. I think he understands there were going to be consequences, and unless the punishment is grossly unjust, he will accept it and go on with his life.

 

[McG]

It's a bit like Schroedinger's Cat, isn't it? If he pumped rounds into a living body it was murder or attempted murder; if he was shooting a dead body, it's committing an indignity to a corpse. Neither crime of which he was convicted of. Hence my confusion about how he could be convicted of an act for which he was not convicted.

Charge #3, of Behaving in a disgraceful manner contrary to Section 93 of the National Defence Act, was not laid in the alternate to anything.  I do not believe the particulars of this charge are published anywhere readily accessable, so we really do not know what was proven "in that he did ...." 

Without knowing the particulars of the charge under s. 93, we really have nothing to form solid opinions on.

I challenge you to finding that one in the NDA.  In the CCC yes (Indignity to a Dead Body [182(b)], but he was not in Canada at the time of the offence.  The evidence states that he not only pumped the rounds but then told several people he had done it, would do it again and did not regret it.  Sounds like disgraceful conduct under the NDA.

CCC offences can be charged under section 130 of the NDA.  Perhaps the prosecution should have laid such a s. 130 charge as an alternate to the first and second charges.  However (as stated above), the s.93 charge was not an alternate to the first two charges.  He was not found guilty of the third charge by way of just not meeting the threshold of either the other two charges.

 

[40below]

Charge #3, of Behaving in a disgraceful manner contrary to Section 93 of the National Defence Act, was not laid in the alternate to anything.  I do not believe the particulars of this charge are published anywhere readily accessable, so we really do not know what was proven "in that he did ...." 

Yeah, well this was an open trial and the jury made its decision based solely on the facts entered as evidence at that well-reported trial, so we pretty much should know at this point on what facts he was convicted. Star Chambers and silent convictions have no place in the legal system.

 

[armyvern]

Yeah, well this was an open trial and the jury made its decision based solely on the facts entered as evidence at that well-reported trial, so we pretty much should know at this point on what facts he was convicted. Star Chambers and silent convictions have no place in the legal system.

Did you even understand the context of his statement? It isn't "published anywhere readily accessible" as to why they convicted him & what the particulars of that charge were. "Star Chambers and silent convictions."  :

Needless to say ... there was testimony to the fact that he fired 2 rounds into either a live person or a dead body. Apparently, the preponderance of the evidence given at CM did not support a finding of Guilty to murder or attempted murder. That testimony however of firing the two rounds, could indeed have been the preponderance of the evidence enough to convict on the disgraceful conduct (the conduct which occured when he fired two rounds into that body).

I was happy with the outcome. I was expecting worse given the LOAC that we are all subject to.

 

[40below]

Thanks for that input, Vern, but "Preponderance of evidence" means absolutely nothing in a criminal trial. That's the sort of 'evidence' that gets thrown out in the pretrials or causes hasty voir dires if a lawyer is stupid enough to try and introduce it. You're confusing it with civil lawsuits.

The standard in criminal trials, and I encourage you to look this up to clear your thinking, is "beyond a reasonable doubt."

 

[Ammo]

Murder acquittal doesn’t go far enough: Worthington
Good comments in the today's Toronto Sun
http://www.torontosun.com/comment/2010/07/19/14760511.html

 

[observor 69]

Excellent article Ammo thanks for the link.
Which leads me to ask can anyone describe what would be the correct scenario that the Capt. should have carried out?
Is it not correct that he had radioed for instructions and was told to try and help the injured TB. Any path of action that I can see still ends up with the TB dead even if of natural causes.
Seems very analogous to a Doctor in a hospital being constrained by law from committing euthanasia on a dying patient but rather forced to watch the patient suffer a lingering painful death.

 

[armyvern]

Thanks for that input, Vern, but "Preponderance of evidence" means absolutely nothing in a criminal trial. That's the sort of 'evidence' that gets thrown out in the pretrials or causes hasty voir dires if a lawyer is stupid enough to try and introduce it. You're confusing it with civil lawsuits.

The standard in criminal trials, and I encourage you to look this up to clear your thinking, is "beyond a reasonable doubt."

Suggest that you read up on Military Law ... even Semrau's lawyer used the term in it's proper context within our Law. Google it.

 

[McG]

The standard in criminal trials, and I encourage you to look this up to clear your thinking, is "beyond a reasonable doubt."

This is the same standard for courts martial.

 

[Ammo]

Semrau breaks silence - Ready to return to Afghan war, officer says in exclusive interview
By PETER WORTHINGTON, Toronto Sun

As he uneasily awaits sentencing for “disgraceful behaviour” in the shooting death of a wounded Taliban insurgent in Afghanistan, 2008, Capt. Robert Semrau has for the first time expressed his feelings on the case.

In an e-mail, he clearly hopes he can continue to serve his country in the army, and is both surprised and grateful for the support he’s received from all parts of Canada — and certainly from both serving and retired soldiers everywhere.

Although found “not guilty” of murdering the critically wounded Taliban fighter who ambushed the patrol he was mentoring, Semrau knows the court martial judge, Lt.-Col. Jean-Guy Perron, will determine his fate on Monday, in Gatineau, Que., when he imposes a sentence that could be five years in jail, or one that will enable him to continue soldiering.

As for the Afghanistan mission, Semrau is positive: “I’ve always maintained that if called upon, I’d go back in a heartbeat! And not just to stay out of jail. That’s the job, that’s what I’ve signed up for, and if the country calls, off I go.”

More here http://www.torontosun.com/news/columnists/peter_worthington/2010/07/21/14784436.html