SAN DIEGO — A military judge Monday removed the lead prosecutor accused of misconduct from the case of a decorated Navy SEAL charged with murder.
The move comes after defense attorneys for Chief Special Warfare Operator Edward R. Gallagher argued Thursday and Friday that prosecutors’ attempts to track emails sent to defense attorneys and a Navy Times reporter constitute misconduct so egregious that the charges against their client should be dismissed.
The judge did not dismiss the charges, but ordered the removal of Cmdr. Chris Czaplak.
“The Navy is complying with the judge’s order,” said Brian O’Rourke, a Navy Region Southwest spokesman. “The senior trial counsel will be replaced by a qualified Navy attorney. Chief Petty Officer Gallagher is entitled to a fair trial, and the Navy is committed to upholding that principle.”
Due to a protective order, the text of the judge’s ruling was not released. However, a source close to the case told the San Diego Union-Tribune that the judge, Navy Capt. Aaron Rugh, did not rule that Czaplak violated any rules.
Instead, the judge directed the removal because it’s possible Czaplak could be investigated for wrongdoing, the ruling said. Rugh ruled this was sufficient to create a conflict of interest.
Rugh declined a defense motion to dismiss another prosecutor, Marine Capt. Conor McMahon.
McMahon was removed from the case Thursday at the direction of Marine Col. Breven Parsons, the officer-in-charge of Marine Legal Services Support Section-West, said Carl Redding, a Marine Corps spokesman.
“Capt. McMahon has been directed off of the case and this decision was made due to no adverse conduct of his own,” Redding said in an email.
Gallagher is charged with killing a wounded ISIS fighter in Iraq in 2017 after providing medical care to him. Other charges he faces are related to fellow SEALs’ statements that he shot an old man and a young girl on separate occasions from a sniper tower and, at other times, fired his rifle at Iraqi civilians, according to court documents.
Gallagher denies all the charges and has pleaded not guilty. His court-martial trial is scheduled for June 10 at Naval Base San Diego.
Czaplak has led the prosecution since November, when the Article 32 hearing resulted in a recommendation of criminal charges against Gallagher.
Czaplak recently admitted that he sent emails to defense attorneys and to a Navy Times reporter that contained an embedded link in an image. That link enabled investigators to track when the emails were opened and forwarded.
Investigators were trying to find out who was leaking court documents that were under a protective order.
Thursday Rugh ruled those attempts to track emails violated Gallagher’s Sixth Amendment right to a speedy trial. He ordered Gallagher released from pretrial restriction.
Prosecutors had argued that the email tracking was not an invasive tool and so did not meet the legal criteria of a search or a wiretap and did not require a search warrant.
Gallagher’s lead defense attorney, Timothy Parlatore, refused to comment or answer a Union-Tribune reporter’s questions Monday afternoon.
Rep. Duncan Hunter, R-Calif., has been a vocal advocate of Gallagher, making TV and radio appearances on his behalf and rallying support from some Republican legislators. Hunter’s spokesman issued this statement Monday: “Congressman Hunter is continuing to monitor the developments in the Gallagher case very closely. The Navy’s prosecutorial conduct in this case has been shameful from the beginning and is reflective of the systemic, larger problems we have in the military justice system. Congressman Hunter will continue advocating for our war fighters as long as necessary.”
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