Ser TJC/024
9 March 2001

From: CDR James P. Winthrop, JAGC, USN
To: Commander Naval Air Force ITS Atlantic Fleet


Ref: (a) COMNAVAIRLANT ltr 5800 Ser N02L/300 of 20 December 1999

1. In reference (a) you directed me to conduct a pretrial investigation in the subject case. As the investigating officer it is my duty to investigate the charges impartially and to recommend an appropriate disposition of those charges. Although I recognize this is an extraordinary step in light of the fact that the investigation is not complete, I am compelled to recommend that you dismiss the charges in this case now. I do not make this recommendation lightly, as I recognize the serious nature of the charge of espionage and the other offenses. Nonetheless, when balancing the government's severe difficulties in preparing and presenting its case, the nature of the case against the accused, and the accused's lengthy period of pretrial confinement, I believe dismissal is warranted in the interests of justice.

2. I want to emphasize at the outset that it is not my intention or desire for this recommendation to direct blame at any specific government personnel, as there is plenty to go around. I too have made errors. When this case is over I strongly recommend that government participants review the case and determine the lessons learned from the case so the mistakes committed will not be repeated.

3. It has become apparent to me over the past five months, however, that the government has not been able to effectively prosecute this case. I make this statement based on my participation in the case over that period, understanding, of course, that the government had this case for eleven months prior to my involvement.

4. Any recommendation must include my evaluation of the government's case against the accused. Although, I have not reviewed all the documents in the case, I have reviewed many in the course of the Grunden proceedings, to include the key government exhibits. Although the evidence may surmount the low threshold of an Article 32 investigation, and that is by no means certain, I don't believe the government evidence on any of the charges in this case is strong. On the other hand, the defense evidence in extenuation and mitigation is significant.

5. In the meantime, as of today, the accused has spent 498 days in pretrial confinement. That total is even higher if the defense's contention that the conditions on the accused's liberty are found to be tantamount to confinement as they contend. Of course, as indicated by the Navy-Marine Corps Court of Criminal Appeals, roughly 300 of those days are attributable to the defense. Nonetheless, the fact remains that the accused has spent a considerable amount of time in pretrial confinement. I do not believe that it is unrealistic to estimate that the time the accused has already spent in pretrial confinement would be on the low end of any sentence of confinement he might receive if convicted of some, or all, of the offenses at a court-martial.

6. Frankly, while I would like to propose alternative remedies, I cannot recommend any that would not extend these proceedings further and to no apparent end. Perhaps I was remiss in not communicating these concerns sooner, but I was, and remain, very sensitive to my obligation to remain impartial in this case, and I was concerned that any such communication could have been viewed as implicit advice to the government on how to proceed with their case. Thus, at this late date, continuing these proceedings further, after considering all the facts I have discussed, seems contrary to the interests of justice from the perspective of both the accused and the United States Navy.


Copy to:
CDR Jowers
Professor Turley
LT Bailey
LT Freedus