KANEOHE BAY, Hawaii – A Hawaii-based Marine accused of hazing a fellow Marine who later committed suicide in Afghanistan was sentenced Monday to 30 days in jail and a reduction in rank.
Navy Capt. Carrie Stephens, the judge in Lance Cpl. Jacob Jacoby's special court-martial, handed down the sentence after Jacoby pleaded guilty to assault.
Jacoby's rank will be reduced by one grade to private first class.
Two other Marines have also been accused of hazing Lew and face courts-martial.
Jacoby admitted he punched and kicked Lance Cpl. Harry Lew. As part of the plea deal, prosecutors withdrew charges that Jacoby humiliated and threatened Lew.
Jacoby said he acted out of anger and frustration that his fellow Marine had repeatedly fallen asleep while on watch for Taliban fighters.
He told the court he wanted to talk to Lew, to find out why he kept falling asleep, and to help him stay awake. But Jacoby said he got angry when Lew spoke to him in a disrespectful manner, even though Lew was putting the lives of the Marines at their patrol base in danger by dozing off.
Marine Capt. Jesse Schweig said the government was confident Jacoby is capable of rehabilitating himself.
But Schweig asked the judge to sentence Jacoby with an eye on deterring similar behavior. He said Jacoby should be given a bad conduct discharge.
"If this is how you're going to approach and motivate your peers, then you do not need to be a part of the service," Schweig said in closing remarks at the sentencing hearing.
Navy Lt. John Battisi, Jacoby's attorney, said Jacoby lost his temper and struck Lew — but argued Jacoby made sure to hit Lew on his body armor where he was best protected.
He also asked the judge to keep in mind the circumstances the Marines were in, and that the chain of command hadn't addressed Lew's sleeping problem and instead had left the issue in Jacoby's hands that night.
"We're asking him to control his emotions and gain emotional maturity in the heat of battle," Battisi said in his closing remarks.
Lew committed suicide April 3 at a patrol base in Helmand province, shortly after the abuse. The 21-year-old was a nephew of U.S. Rep. Judy Chu.
Two other Marines also are accused of hazing Lew before he shot himself with his machine gun in his foxhole. Sgt. Benjamin Johns, the leader of the squad the Marines belonged to, and Lance Cpl. Carlos Orozco III will have their own separate courts-martial later.
Both Marines watched the court proceedings Monday.
Lew's father, Allen Lew, said his family wants to see what sentence is given to Jacoby.
"We just couldn't believe (his) own peers would do something like that to their own people. Very sad," he told reporters. "It's a tragedy for us. Never able to repair our broken heart."
Chu, D-Calif., attended the hearing. "I want to make sure that there is justice for Harry. And I want to support these brave persons, his parents," she said.
The attorney representing Johns said he was concerned the presence of a politician will taint the process and interfere with justice.
"How do I get a fair jury? What implicit message is she trying to send to those panel members?" said Tim Bilecki, a defense attorney who specializes in military clients.
Chu said that wouldn't be the case. "I'm not going to be saying anything in the trial. All I'm doing is being here. I'm here for the family to support them," she said.
The case involves the actions of Marines at an isolated patrol base the U.S. was establishing to disrupt Taliban drug and weapons trafficking in Helmand province.
At an Article 32 hearing — the equivalent of a grand jury hearing for civilians — Marines testified in September that Lew repeatedly fell asleep while he was on watch duty and patrol looking for attacking insurgents. Squad members and officers had tried different methods to get him to stay awake, including referring him up the chain of command for discipline and taking him off patrols so he could get more rest.
But on Lew's last night, when he fell asleep again, those efforts escalated into alleged acts of violence and humiliation, according to charges outlined at the hearing. The Marines were accused of punching and kicking him, making him do pushups and pouring sand in his face.
A significant share of the questions raised at the Article 32 hearing focused on whether the accused intended to humiliate and harm Lew or discipline him so he would stop falling asleep while on watch duty.
Before Lew put the muzzle of his machine gun in his mouth and pulled the trigger, he scrawled a note on his arm: "May hate me now, but in the long run this was the right choice I'm sorry my mom deserves the truth."
A Marine commander in retrospect speculated Lew may have been nodding off because he suffered from depression or some other medical condition.
Chu discussed her nephew's death during a House Armed Services hearing on suicide prevention in September, held at the same time as the Article 32 hearing. She told military witnesses that Lew was "a very popular and outgoing young man known for joking and smiling and break dancing."
Chu also issued a statement saying no one deserves being "hazed and tortured" like her nephew was, and that the military justice system must hold "any wrongdoers accountable."