Monday, June 8, 2015

Ten Years Later, the Haunting Murder of Phillip Esposito and Louis Allen

Ten years ago this week, Army Captain Phillip Esposito, of Suffern, New York, was killed while serving with the 42nd Infantry “Rainbow” Division in Iraq. Killed alongside him was First Lieutenant Louis Allen, of Milford, Pennsylvania.

Staff Sergeant Alberto B. Martinez
Neither soldier died fighting a foreign enemy or by accident. Instead, according to military prosecutors, the two were deliberately murdered by Staff Sergeant Alberto Martinez, a soldier under Esposito’s command. Martinez allegedly detonated a wire-activated landmine in Esposito’s office window and then threw several grenades, all to cover his actions under the guise of an insurgent attack. According to prosecutors, Martinez’s motive was little more than pecuniary: after months of conflict, rather than accept Esposito firing Martinez from his position after Martinez lost accountability for sensitive military equipment, Martinez simply murdered Esposito and Allen, Martinez’s would-be replacement. In 2008, an Army court-martial tried Martinez for two counts of murder. After a two month trial, a panel of fourteen Army soldiers acquitted Martinez of all charges, apparently one vote shy of the two-thirds necessary to secure a conviction. During that trial, I watched Esposito’s daughter, Madeline, then age 5, in Northern Virginia, while Esposito’s widow, Siobhan, attended the proceedings at Fort Bragg.

In the time since Martinez’s acquittal, I have studied his trial in detail. I have read thorough the trial transcript, reviewed the evidence generated by the case, interviewed key witnesses and trial participants, and analyzed the laws in play. My study has led me to the following conclusions: first, that Esposito and Allen’s murders were an utterly needless and preventable product of an undisciplined culture that permeated the 42nd Infantry and set the stage for murder, second, that laws governing Martinez’s court-martial slanted the trial toward an unfair result and have the potential to do so again, and third, that the Army has yet to engage in the soul-searching necessary to prevent similar tragedies in its future.

A Needless and Preventable Death

If the standard that one walks by is the standard that one accepts, evidence shows that in 2004 and 2005, soldiers in the 42nd Infantry Division were perfectly willing to walk by Alberto Martinez’s repeated expressions of contempt and threats made against his commanding officer. According to testimony at Martinez’s trial, Martinez made literally hundreds of threats against Esposito—all behind Esposito’s back, but in front of other soldiers and Army leaders. At trial, some soldiers testified that they almost elected to do something about these threats, with one officer testifying that he informed Esposito that Esposito needed to have a “heart to heart” talk with Martinez, but the record indicates no soldier actually informed Esposito that Martinez had verbally threatened him.

Nevertheless, had soldiers properly responded to Martinez’s threats under long-established standards of military discipline, I believe these soldiers would have likely stopped Martinez before his actions rose to the level of murder. In my view, the inaction of these soldiers helped set the stage for Esposito and Allen’s deaths.

In reviewing Esposito’s personnel file and fitness reports, I found an officer uniquely praised by his superiors. One reviewer found Esposito a “magnificent performer” who “makes everything he does look easy” and remarked that Esposito possessed a drive and maturity “well beyond his years.” Another reviewer found Esposito the best out of the twenty-six lieutenants that he rated and thought that Esposito would “excel in any position where capability and proven performance are necessary for success.” Yet another wrote that Esposito was the best lieutenant in his battalion and “the best S1 my Command Sergeant Major and I have seen in a combined thirty-nine years of service.” Even as a Captain, with less than a year to live, Esposito’s rating superior found him as the type of leader who “puts the good of the soldier always in the forefront” while “providing the catalyst for his unit to do the same.”

In contrast, trial records indicate that Martinez thought Esposito a “Little Mussolini,” a “lunch money victim,” and a “fucking asshole,” and with no one seemingly disagreeing enough to compel Martinez to cease with his words of contempt.

I conclude that when Esposito took command as the 42nd Infantry Division, Headquarters and Headquarters Company Commander, he faced a culture governed more by clique than by professional military standard, and he was the unwelcome outsider. Especially brought in by division leaders to transform his unit out of garrison and prepare it for battle, Esposito’s by-the-book style harshly grated upon the reservists he was tasked to lead.

Moreover, Esposito wasn’t “one of the cool kids.” In my discussions with those who knew him, I repeatedly heard Esposito described as “bookish” and “nerdy” (yet at the same time, incredibly athletic and fit). I also repeatedly heard Esposito described as earnest, hardworking and dedicated—but clearly not “one of the boys.” I was particularly struck by how those around him reported to me that Esposito repeatedly downplayed his background as a West Point graduate, as if he was aware of the values and reputation that West Point engenders and how those values conflicted with the guardsmen he was tasked to lead. Esposito did not want to be seen as special or somehow above his men—yet in a large scene, he was. In my view, Esposito wasn’t hated for being bad—quite the contrary. Esposito was hated for being good.

In contrast, trial records indicate that Martinez was largely perceived as a clown. In a certain sense, witnesses reported Martinez as hardworking, with several testifying that Martinez always endeavored to keep soldiers properly equipped in his role as supply sergeant—and I believe them. Nevertheless, Martinez was clearly overwhelmed with the responsibility of proper supply accountability, and in my opinion, was unlikely to equal the demands placed upon him. At root, Martinez was given a role that for his personal attributes, he was doomed to fail in.

But therein lies the heart of what I believe is Martinez’s wickedness. If Martinez had simply admitted, like a man, that he was overwhelmed, and that he was put in a position where he could never hope to succeed, Phillip Esposito would have done all within his power to help Martinez overcome his challenges. And if not Esposito, the division’s inspector general, or some other commander, would have helped Martinez to overcome the odds set against him. Martinez would have had to have framed his issues correctly—it would not (and did not) suffice for him to merely blame Esposito as was Martinez's habit. Nevertheless, had Martinez asked properly for assistance, I believe that he would have likely received it.

Yet instead, like a narcissist, trial testimony revealed that Martinez held Esposito responsible for his all problems, focusing on the person of his commander instead of the problem of supply. And here, I believe the evidence shows that Martinez chose to solve his problems via claymore landmine and premeditated murder.

Slanting a Court Martial

In reviewing the evidence and testimony from the trial, I have come to the conclusion that the government did, in fact, prove its case against Martinez as the law requires, and that Martinez did not raise a compelling defense in response. Had I been a panel member at trial, I would have voted to convict Martinez for Esposito and Allen’s murder. And thus for me, the relevant question here is exactly why then did the Martinez panel elect to acquit him.

In studying the members of the panel who sat in judgement and their testimony during voir dire, I am not convinced that all the members of the panel were impartial—that is, I am not convinced that all the members of the panel strictly applied the law, as instructed to them by the judge, to the facts of the case. I suspect that these panel members allowed their opposition to capital punishment to cloud their judgement when it came to determining Martinez’s guilt, either by outright refusing to vote to convict Martinez if death was a possible punishment, or by substituting a higher standard of proof than required by the law.

The refusal to convict Martinez if death was a punishment 

Evidence for my first condition—a refusal to convict Martinez if death was a possible punishment—squares with the voir dire testimony of at least one a panel member who ultimately sat in judgment of Martinez. When asked to explain his affirmative answer on the pre-trial panel questionnaire inquiring if he was “personally, morally, or religiously opposed to the death penalty regardless of the facts and the law in the case,” Major Carmelo Crespo answered by saying “I don’t know all of the law, all the facts, ….[a]nd every situation and circumstances change, but that [affirmative answer] was my—the best answer that I could give at that point and that’s what I believe.” Nevertheless, Martinez’s attorneys successfully rehabilitated Crespo when they elicited him to state his willingness to at least consider the death penalty in his deliberations, based upon Crespo’s view that “nothing is impossible.”

I question the law—here from as august a source as the U.S. Supreme Court—that allows a juror to sit in judgment when they say out of one corner of their mouth that they are opposed to the death penalty regardless of the facts, and then say out of the other corner that they are nevertheless willing to consider applying the death penalty on the grounds that “nothing is impossible.” To me, I see a person utterly rudderless in their principles, and not only did such a person sit on the panel that acquitted Martinez—they sat in judgment alongside their spouse, who also held similar anti-death penalty sentiments.

And I cannot help but notice that if the shoe had been on the other foot—if the panel member had indicated that he supported imposing the death penalty regardless of the facts and the law in the case, but was nevertheless willing to consider not applying the death penalty on the grounds that “nothing is impossible,” such a monster would rightly be thrown off of any murder jury. In fact, there were a host of panel nominees that were rightly excluded from the panel for their inelastic unwillingness to consider punishments other than death for the crimes which Martinez was accused of committing.

But here is the thing about military juries: they are not random, but picked—handpicked even—by the convening authority that initiates the trial. And here, Article 25 of the Uniform Code of Military Justice governs a convening authority’s discretion in selecting panel members. Article 25 states that “[w]hen convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.”

To me, a judicial temperament, in terms of armed service, speaks to a servicemember’s steadfast willingness to uphold the law on the grounds that the rule of law under our Constitution is the one consideration that properly trumps all others. It means, in plain terms, that you are personally willing to support our form of government and its laws, even in disagreement—and that is why we as a people entrust  you with the tools of war. In my view, not all of the panel members nominated by the convening authority were fit to serve on the panel—or even as soldiers. If the military’s rules nevertheless allow such individuals to sit in judgement, and if a commander can be so blasé as to think that such people have the requisite “judicial temperament,” then I submit that the laws underpinning such a pretense require change.

An impossible standard of proof 

If I have some evidence to justify that there may have been a refusal to convict Martinez if death was a possible punishment, I argue that my second conclusion—that some on the panel may have substituted a higher standard of proof for conviction than required by the law, is properly inferred by the evidence presented by the government at trial and Martinez’s answer to it.

When I first read through the record of Martinez’s trial, I must admit that I hoped that my reading would reveal a cogent and believable argument in favor of Martinez’s innocence. After all, if Martinez had not murdered Esposito and Allen, the door would then be open to prosecute whomever actually did.

My review of the evidence did not sustain my hope. While a largely circumstantial case, the government was nevertheless able to show that Martinez had a powerful, long-standing, and ultimately overwhelming animus against Esposito, that Martinez had unique access to the murder weapon, that Martinez was present at the scene of the crime, and that Martinez displayed guilty behavior after the attacks. 

In defense, Martinez merely argued that others in the unit disliked Esposito and that they, instead of Martinez, had motive to kill him. Much ado was made over the possibility that the claymore landmine used in the attacks could have been detonated from the roof of the building where Esposito and Allen were killed, but for me, that claim evaporated when I considered the unique manner in which the landmine was emplaced, through a metal window grate and wrapped with wire—an emplacement only possible from the ground, where Martinez was ultimately found. And while not presented in argument, I dismissed the idea that Martinez acted in concert with others, for once Martinez was on trial for murder, he had a powerful incentive to turn against any co-conspirator in hopes of securing a better outcome for himself than what a trial might deliver.

Futher ado was made over Esposito’s sometimes fractious relationship with his first sergeant, but here, I could see a clear distinction between the friction between these two and the friction between Martinez and Esposito. Other possible suspects were mentioned—more like thrown against the wall in hope that perhaps something would stick, and miscues in the investigation and witness testimony were of course presented as grounds for reasonable doubt. But for me, after taking in all the evidence presented at trial, I can only reach one conclusion: Staff Sergeant Alberto Bas Martinez murdered Phillip Esposito and Louis Allen, and that the evidence of Martinez’s crime met both the burden of production and the burden of persuasion necessary to convict Martinez under our law. I thus conclude that some on the panel that judged Martinez, knowing that Martinez could be eligible for death, either voted “not guilty” to strategically nullify a possible guilty verdict, or held the government to such a high standard of proof so as to squelch any proof presented short of either eyewitness or DNA-like evidence. 

Perhaps, one day, the panel members who voted to acquit Martinez will come forward, and each explain his or her reasons, for better, or for worse. It will not make for pleasant conversation. I believe it is a conversation that is necessary all the same. Until then, I am only able to conclude that Martinez's acquittal is the result of gross error on the part of the jury that judged him. 

The Need for Soul-Searching

If one reaches back to the circumstances behind the murders of Esposito and Allen, the tragedy of needless and preventable death combined with the seemingly unjustified acquittal of the accused murderer creates a literal worst-case scenario of horrific injustice. Phillip Esposito and Louis Allen were each laid to their eternal rest in the uniform of their military service, yet in almost every aspect of their case, their fellow soldiers utterly disgraced that very uniform. That two widows and five children, along with the parents and brethren of the dead, all must live in the face of this stunning injustice shocks the conscience. This is not how such people are properly treated. This is not who we are as a people grateful to those who serve in the armed forces and defend our way of life.

Because the members of the Armed Forces will forever have to confront the challenge of facing down the criminals within their ranks, there are clear lessons from the tragedy of Esposito and Allen that we should apply to the struggle. First, that standards of military discipline exist in order to protect servicemembers from those who would let their base ends detract from the military’s proper focus and mission. Second, that compromising these standards of discipline can easily lead to unforeseeable, yet horrific outcomes. Third, that responsible military leadership demands that one insist upon a military where members are held both to account for their actions, and for their failures to act. Fourth, that even when judging from the outcome of this one tragic case, it is clear that the method for selecting the panel members of courts-martial is fundamentally unbalanced, unfair, and unjust, and demands reform.

We have all heard of Blackstone’s famous formulation that “[i]t is better that ten guilty persons escape than that one innocent suffer.” But if justice is to give a person what they deserve, and if human life is the standard through which we make our determination, no one ought to be satisfied with an otherwise guilty man living his life free and unpunished. No one ought to be satisfied that two men lay slain, and yet the institution to which they dedicated their lives has yet to learn and apply the necessary lessons from their loss.

In this article, I have glanced upon just a handful of the controversies that surround this tragedy, leaving unaddressed still-lingering questions surrounding the competency of courts-martial to justly adjudicate capital murder, the competency and experience of the military bar to prosecute and defend these cases, the seemingly inordinate delay between the offense and trial, and the inherent conflict of interest when an institution at fault is nevertheless left to police itself. None of these questions and the problems they represent will go away on their own.

And thus the legacy of Phillip Esposito and Louis Allen must be an increased devotion to justice, to those who serve our nation under arms, and to the families that help make such service possible. Echoing Lincoln and applying his thoughts here, “let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace.”

6/8: minor edits for grammar and clarity.


Voodoo7 said...

I was on FOB Danger and a member of the 42nd MP Company. We secured that crime scene as well as Martinez. That was on of the most difficult times for my platoon as many of our members were replacements that trained with Lt. Allen and knew him well. Having to notify them of his death was gut wrenching and something that I will never forget.

The system certainly failed the families of CPT Esposito and Lt. Allen however, I do not think that you can place blame on all members of the 42nd Division. There may have been issues with HHC 42nd ID but, that's just one company out of many. The overwhelming majority members of that division performed their missions spectacularly and with great success.

In hindsight much more certainly could have been done to prevent these murders but, as they say hindsight is 20/20. The real blame here should be focused on the trial and more importantly on Lt. Gen Vines and how he rejected a plea bargain that had Martinez pleading guilty. Everyone knew (and still knows) that Martinez did it but, Vines rejects the plea and Martinez walks with an Honorable Discharge? Really? Talk about dereliction of duty. It's bad enough that these families had to go through the death of their loved ones and Vines adds insult to injury.

Just my two cents. Thank you for there article. RIP brothers.....

Nicholas Provenzo said...

Thank you for your comment. I'll answer a couple of point that you bring up. You write:

>There may have been issues with HHC 42nd ID but, that's just one company out of many. The overwhelming majority members of that division performed their missions spectacularly and with great success.

No doubt many in the 42nd Infantry performed heroically while serving in Iraq as the time of the murders. Even so, I think that the slayings of Esposito and Allen taint them as well.

Some of course will argue that my negative moral judgement here is undeserved, but I look at the problem like this: I think that even the most honored and well respected soldier in 42nd should look at the murders with a certain sense of ownership and shame. As an American, I am ashamed by what happened here. I am ashamed of what Martinez did to the victims. I am ashamed of the culture that allowed it to happen. I am ashamed of the criminal justice system that failed to deliver.

In contrast, I think it's wrong to say something akin to, "Hey, that was over there, and I wasn't part of it," for such a response certainly isn't going to fix the underlying issues that drive this case.

I also reject the "hindsight is 20/20" argument. Just because things are clearer looking backward doesn't imply that one should stop looking. There are lessons to learn from this case and ten years out, they still require teaching.

But I also think it's a mistake to say that only in hindsight could one see that Martinez was trouble. It might have been hard to predict that Martinez would murder, if only because murder is so extraordinary a reaction to the pressures Martinez faced. Nevertheless, one could easily see that Martinez was well out of bounds with his threats, and here, the proper response is not "hindsight is 20/20," but "the standard you walk by is the standard you accept."

Have Major General Joseph Taluto repeat that 10,000 times and maybe, just maybe, the Army will start to learn its lessons.

Robert Allen said...

It must be remembered that, in 2006, Martinez submitted a Request to Plead Guilty to Murder in the 2nd degree and that request was signed by both of his attorneys. The Convening Authority denied the request and the prosecution was ordered not to tell the families of my son and Capt. Esposito.
We have copies of said request.

Nicholas Provenzo said...

One of Two

Thank you for your comment, Mr. Allen, and please accept my sincere condolences for the unpunished murder of your late son. Of course you are correct; Martinez offered to plead guilty to second degree murder in April of 2006. Unfortunately, in my opinion, the government was right to reject Martinez’s plea, precisely because it was an offer to plead guilty to second, and not first degree murder—a crime with a significantly more severe punishment and the crime that I think we both believe Martinez actually committed.

The problem again rests with the law. According to the Rules of Military Courts-Martial, a defendant is barred from pleading guilty "to an offense for which the death penalty may be adjudged by the court martial."* The principle is straightforward: a defendant may not plead themselves into a death sentence. If death is a possible a punishment, there must be a trial.

It is unclear to me if the rule outright prohibited Martinez from pleading to first degree murder as such, or if it merely prohibited Martinez from pleading himself into death. It is also unclear to me if the rule would have allowed the court to waive death as punishment if the court had also been party to the agreement.

An issue here is just who is bound by a proposed plea agreement. For example, a “two-party” plea agreement is an agreement between the government and the defendant, but not the court. In a two-party plea agreement, the court is not a party to the agreement and is not bound by the terms of the agreement. If a defendant pleads guilty, pursuant to a two-party agreement, the court may impose any sentence, notwithstanding the agreement. In contrast, a “three-party” plea agreement is one to which the state, the defendant, and the court have all agreed upon the plea, and the court has bound itself to the terms of the agreement. If Martinez’s plea had been a three-party agreement, perhaps the agreement would have avoided the problem imposed by the rule.

And while I haven’t examined the issue in depth, it nevertheless seems pretty clear that in regards to Martinez’s plea, the negotiation was between Martinez and the government, and did not yet involve the court. As such, I do not think it was possible for Martinez to offer a plea to first degree murder under the rules. And if rule was the only barrier to Martinez offering to plea guilty to first degree murder (and for a sentence other than death), then the rule needs rewrite. As is, the rule seems to short-circuit the plea process in capital cases against agreements and in favor of trials. As I think we would both agree, trials are their own can of worms.

Nicholas Provenzo said...

Two of Two

You also bring up the issue of the government withholding knowledge of the plea offer from the families, as was the case here. When I put the question to the prosecutors in my interviews with them, they pointed out that as an offer to plea to second degree murder, Martinez’s offer wasn’t particularly substantive. Specifically, Martinez wasn’t admitting his murderous premeditation, and as such, they rightfully dismissed his offer as insufficient. Given the claim that Martinez planted the claymore in the window, unspooled the wire, attached the detonator, and then finally detonated the mine and threw the grenades, the idea that the crime was something other than premeditated is absurd. In my opinion, Martinez’s alleged crime was the essence of premeditation. It deserved punishment as such.

Thus I have to ask if it would have been wise for prosecutors to reveal, before trial and to the victim’s families, that Martinez had made an offer, but an incomplete offer, and that the rules foreclosed further negotiation. Such information almost certainly would have escaped quarantine. Once public, it likely would have made a fair trial much more difficult—a fact that would have only played to Martinez’s later advantage.

In that light, I am disinclined to support a rule that would force the government to reveal rejected plea negotiations to a victim’s family. If a plea offer is accepted by the government, victims should of course speak to its sufficiency. But if an offer has been rejected, I can only conclude that the government must be left free to exercise discretion in regards to with whom it shares such information.

In short, I say fix the bad rule, but leave the government’s discretion intact.

* R.C.M. 910(a)(1).

Tony Skala said...

I wish there was something I could say to ease your pain. But I have a feeling this will not help much as it is a hard reality that is accurate.

Your husband should not have died. But we should not have been in Iraq either. However the decision to be involved in this Iraq was made by elected officials and I have to respect that.

In theory your husband donned a uniform to protect certain values we deem important and label American. A portion of which is the American Justice system. And this system is based on a set of rules we universally accept. And those rules state to convict a person of a charge there must be min level of proof, and that was not done in this case. I am not sure if Mr. Martinez is innocent or not. But he was aquitted in our system of courts, and these courts derive their power from folks like your husband, and I putting on a uniform and saying we will lay our lives down to defend this system. That must be respected. The system must be respected for it to work. It is the only reason the system remains powerful.

So I am not sure looking at the system we entrust to render justice with distain and doubt and saying we want to invalidate it because it gave us a judgment we don't like honors your husbands service to his country. Invalidating that system t in-validates your husbands service and my service at the same time.

That being said I am sorry your husband is gone and I hope the only real memories you have left of him are the one that bring you joy and happiness.

And not that you are reading this but Mr. Martinez you do not appear to have been a very good soldier. I hope you take the opportunity bestowed onto you to improve your life and your reputation.