KANEOHE BAY, Hawaii – The court martial of a Marine sergeant accused of hazing a member of his squad who later committed suicide in Afghanistan was delayed Monday after the prosecution said it wanted to add to its list of accusations against the defendant.
Military judge Col. Michael Richardson delayed the start of the trial so Sgt. Benjamin Johns' defense could hear details of the new allegation from the prosecution.
At the center of the case is how the squad responded to a tendency by Lance Cpl. Harry Lew to doze on duty.
The prosecution says some Marines hazed the 21-year-old by forcing him to dig a foxhole, do pushups, and carry sandbags for no other purpose than punishment. In some cases, Marines allegedly punched and kicked Lew and poured sand in his face.
Prosecutors had already accused Johns, the leader of Lew's squad, of ordering Lew to dig a foxhole when Johns had no authority to punish a Marine in that way. Doing that made Johns derelict of his duty to ensure the welfare of Marines under his care, they argued.
But Capt. Jesse Schweig on Monday told the court the government wanted to expand its case by saying Johns was also derelict for failing to prevent other Marines from punishing Lew by forcing him to carry sandbags around their patrol base.
Richardson allowed the amendment, so long as prosecutors outlined their argument to the Marine's defense team.
Tim Bilecki, Johns' civilian defense attorney, said prosecutors added new allegations because they realized they "don't have a case."
"I think the government sees the wheels falling off on their case over the weekend, realizing they're going to have a heck of a tough time proving these charges, so they want to expand the criminality for Sgt. Johns the morning of trial," Bilecki told reporters outside court.
The court martial is due to begin with jury selection on Tuesday at a Marine base in Kaneohe Bay, the home of the 2nd Battalion, 3rd Marine Division, which the accused are assigned to.
Lew, of Santa Clara, Calif., was a nephew of U.S. Rep. Judy Chu, D-Calif., who has called for congressional hearings on the military's efforts to prevent hazing.
The alleged incident happened one night in April while the squad was assigned to a small patrol base in a remote part of Helmand province where the U.S. trying to disrupt Taliban drug and weapons trafficking.
By April 2 — 10 days after Lew first arrived at Patrol Base Gowragi — the Marine had fallen asleep four times while either on patrol or watch duty.
His leaders referred him up the chain of command for punishment and took him off patrols to get more rest so he wouldn't fall asleep.
When Johns discovered Lew had fallen asleep again that night, he told Lew's fellow lance corporals that they should do something about his sleeping problem, saying "peers should correct peers," a command investigation report said.
Johns also ordered Lew to dig a foxhole deep enough for him to stand in, so he would stay awake while on watch.
Prosecutors also plan to present evidence Johns knew another squad member had ordered Lew to carry sandbags around the patrol base as punishment and didn't stop it.
Johns is not accused of assaulting Lew, or of ordering any other Marines to assault Lew.
The first Marine to face trial in the case, Lance Cpl. Jacob Jacoby, last week pleaded guilty to assault for punching and kicking Lew. He was sentenced to 30 days in jail and demoted to private first class.
The third Marine, Lance Cpl. Carlos Orozco III allegedly put his foot on Lew's back, ordered Lew to do pushups, side planks and poured sand into Lew's face. Orozco has been charged with assault, humiliating Lew, and cruelty and maltreatment. His court martial is pending.