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The Pvt. Andre Fisher Case: Handling of Evidence Pt. 1

The Pvt. Andre Fisher Case: Handling of Evidence Pt. 1

December 19, 20111240Views

By John M. Rodgers and Jamie Grimwood

In mid-July as 3WM entered a summer hiatus, the former editor in chief received information regarding the case of Pvt. Andre Fisher from an acquaintance who’d had previous legal difficulties within South Korea. That information was hastily formatted and published. Essentially, it was a plea from Fisher’s family and friends and included a rough petition to parties of interest and links to other reports and the “Bring Andre Fisher Home” Facebook page. No editorial discussion took place regarding the objectivity and presentation of the content. In fact, other editors first learned of the story after it was posted.

Subsequently, an attempt to clarify several essential things took place. First, what actual facts existed in the numerous reports—both in the press and on social networks? Second, who could provide legal documents or official statements to support any assertion made with those reports? Third, were those legal documents and official statements consistent?

With the core 3WM staff scattered and on a scheduled break until mid-August, the process moved at a sluggish pace. Moreover, the path to the facts was littered with one obstacle after another, mostly piles of misinformation and subterfuge. Dates, times, locations, evidentiary details, USFK conduct in relation to the case, Fisher’s treatment in prison—all these things were jumbled up in opinion, translation, interpretation and negligence in research (some of which 3WM initially contributed to). Now 3WM intends to present the clearest possible explanation of Andre Fisher’s case from beginning to end.

In part one of this series, aspects of the evidence from the night of the crime on 18 November 2010 into the early morning of 19 November 2010 will be examined. This information is based on official documents obtained by 3WM including the Yongsan Police Station Arrest Report 24 November 2010, the Seoul Prosecutors’ Office Evidence Record 15 March 2011, the Seoul Central District Court’s 27th Criminal Division’s Judgment 10 June 2011, the Seoul District Court 5th Criminal Division’s Judgment 2 August 2011, a letter from Major General, U.S. Army and Deputy Judge Advocate General, Clyde J. Tate II to Representative Lou Barletta, Pennsylvania (R) 3 August 2011 and the Supreme Court of Korea’s examination of previous interpretations, in addition to discussions held with Lt. Colonel U.S. Air Force and Chief of International Law, Brad Larson, Attorney-at-Law with the Daedong Law Firm and Andre Fisher’s defense lawyer, Lee Jang Han, arresting officer, Korean National Police (KNP), Sgt. Lee Jeong Seob and Pvt. Andre Fisher.

CASE

On 10 June 2011, Seoul Central District Court, convicted 23-year-old Private First Class Andre Michael Fisher, 4th Chemical Company of the United States Army, of both Assault Consummated By A Battery and Larceny Of Private Funds relating to an incident that took place with South Korean law enforcement officers and a South Korean taxi driver on 19 November 2010.

Fisher, who has both declared his innocence and been fighting said allegations since 19 November 2010 was sentenced to two years imprisonment. He had been in South Korea since January 2009.

The charges were filed and upheld over varying appeals hearings, through Seoul Central District Court 27th Criminal Division and 5th Criminal Division.

The charges were based on the accusation that Fisher with a still as of yet unidentified individual took a taxi from around the Hangang Hotel area, Gwangjin district, far eastern Seoul to the Hannnam-Dong, Yongsan-Gu, Seoul area. Fisher then allegedly struck and robbed the driver, making off with W94,000 held together in a pink colored bull-dog clip. Both men fled the scene of the crime.

Documents attached to Fisher’s United States Forces Korea Custody Request and Receipt from 19 November 2010 state that the crimes also included Failure To Pay Just Debt and Wrongful Damaging of Private Property. These additional charges revolve around the private not paying for the taxi journey that he supposedly took and for kicking the rear passenger window of the Korea National Police squad car, once inside and handcuffed, causing it to smash. The latter charge was settled out of court and the police consequently requested leniency in the sentencing of Fisher.

It is important to understand that Fisher claims he was never in the taxi driven by Ahn Seong-gyu, 48, on the night of the crime. Moreover, Fisher further stated that he was at the UN Bar in the central Seoul borough of Itaewon when Ahn claims he picked up Fisher and the other man at approximately 0200 hours. According to court documents, the key pieces of evidence were the CCTV footage—the CCTV camera sits directly above the crime scene next to a Korean BBQ restaurant in Hannam Village—showing two hat-wearing, hooded men fleeing the scene, Ahn’s testimony and statements, the confiscation report and list, and the photographic image of the confiscated cash.

CCTV

CCTV Camera at the scene of the crime in Hannam Village

3WM repeatedly tried to get access to the CCTV footage or any images of the footage (the Prosecutors’ Office document lists the footage as one minute long from 0224 to 0225 on 19 November). Fisher also requested that the footage be released or that he at least be able to review it but was refused. The USFK stated that it did not have access to such evidence held by the Prosecutors’ Office in the Evidence Section and attorney Lee dismissed all requests that he seek access. Thus, all references to the footage comes from court documents and second or third parties.

The 10 June 2011 judgment states, “According to the CCTV CD image, the offenders jumped out of the taxi and ran about 30 seconds after the taxi stopped and the victim Ahn Seong Gyu turned on the interior light.”

The 2 August 2011 judgment further says: “Based on the result of the CCTV CD analysis, before the criminal poked his upper body into the passenger’s seat, hit the victim and took the money, the criminal had come out of the backseat, approached the passenger seat, bent over, poked himself into the passenger’s seat and pulled back out.” According to Fisher and verified by the above appeal ruling in which the judges addressed the individual complaints lodged against the initial June decision, the CCTV footage shows that the amount of time the perpetrator took to enter the front passenger seat, strike the driver in the face, remove the money and exit the taxi was between 1.5 to 3 seconds. In the ruling the judge writes, “Even though it was too short a while for the criminal to hit the victim and take the money as the defendant explained, it is not too short a moment if the criminal had already known where the money was.”

Another aspect of the CCTV is that it shows the “offenders” wearing “orange hood T and gray hood T, respectively,” which prevented any facial recognition. PVT Fisher has contended from the beginning in official statements and in appeal documents that the hoodie in the CCTV was not identical to the one he was wearing. That hoodie was not taken into evidence. The 2 August 2011 judgment states: “It is impossible to make out exactly what shape of clothes that the criminal was wearing, but the overall type is clear enough to say that a hooded shirt in orange-ish color. The description overall matches the clothes the defendant was wearing at the time of his arrest.” In the Seoul Prosecutors’ Office Evidence Record, Fisher writes: A) Can not see face on the camera. B) I was wearing a orange and black hoodie. But only orange was visible on the camera.

Since there was no facial recognition nor any mention or other clothing of identifying factors related to the CCTV, it comes down to the hoodie and how big the figure appeared to be in the footage—PVT Fisher is 6 feet 4 inches and weighs approximately 225 pounds.

CCTV along the Itaewon drag near Itaewon Police Station.

One large question arises: What about other CCTV footage? What did the Itaewon District Police Station footage show when Fisher was brought in? Why wasn’t it requested? The station has a camera right inside its entrance that would have shown a lighted, close-up view of Fisher, setting aside any doubts about what he was wearing as it compared to the Hannam Village footage.

What did the UN Bar—where Fisher claimed to be on the night in question—CCTV show? Why wasn’t it requested? A visit to the UN Bar in September found that the CCTV system had been broken for a week, was being repaired and had previously been working (on the night of the crime), according to a manager surnamed Kang. Nevertheless, footage is not saved after “a week or two” (many private businesses can’t store such massive data) so the warrant would have had to have been expedited.

What did footage near and around Hangangjin Subway Station—where Fisher was apprehended—show? Why wasn’t it requested?

CCTV camera near Hangangjin Subway Station where Fisher was arrested.

All court documents and the detailed arrest report fail to address this lapse in investigation and analysis of evidence. Attorney Lee refused to address questions about such requests. Fisher says he asked several times that the UN Bar footage be requested and checked to which he was told, “That’s not important.”

To this day the CCTV aspect of the case remains mysterious and uncertain. The footage is intensely protected and not even the individual whose conviction and sentence are largely based on the footage can gain access to it. Both the USFK and lawyer Lee insinuated that the footage has probably been disposed of by now.

The Clip

The Arrest Report states that, “A pink-color clip bundling the bills was found in the right front pocket of his pants.” This clip, a so-called bulldog clip, much like the ones most people use to hold documents together, is a central intriguing element in the evidence. And, just like the CCTV footage, it cannot be accessed. LT. Colonel Larson told 3WM, “I do not have access to the money clip and I do not know whether the money clip, or a photo of it was presented at court or has been kept as evidence.” The clip is pivotal because Ahn claimed he owned a clip—the Arrest Report states: “The victim Ahn insisted that the money and the clip found in his [Fisher’s] pockets had been taken by Fisher.” In the 10 June 2011 document it states: “…at the time of apprehension a pink binder clip was found in his pocket, which the victim had allegedly used for 2-3 years to prevent cash from scattering and was taken by the offender with cash.”

In the Supreme Court document Fisher writes: “Paper Clip— A) Cab driver says it is his. B) How can he say it is his if it has no distinguishing marks? C) I used that same paper clip to hold my work documents earlier that day and had it in my pocket.”

Among several confusing things related to the clip is the fact that the Arrest Report in Korean and written at 05:20:02 on 19 November states that the taxi driver says he lost a red (“빨간”) clip. Later, in the same document, it says Fisher was found with a pink (“핑크색”) clip. Interestingly, the English translation—not time stamped but dated “19 Nov 10”—omits the red clip detail altogether, only including the pink color. Then, at 0655 on the same day in an interview with the Yongsan Police and after apparently seeing the clip, Ahn uses the word pink (“분홍색”) in his statement. From this point forward, this detail is never questioned and Fisher is never informed of the discrepancy as the detail is in Korean. Moreover, in the March 2011 interview with Prosecutors, when asked about the clip again, Ahn states: “I don’t remember the exact color. When police searched Fisher’s pocket that night, the clip that came out was mine.” Now, Ahn claims to have used the clip for 2-3 years but he can’t remember the color.

Furthermore, the clip was never sent to forensics. No fingerprints were taken. Fisher insists that he asked for the clip to be analyzed. Fisher’s written statement indicates he asked for the clip to be fingerprinted by the Prosecutors but, “The prosecutors said No.” At the 25 August Seoul High Court hearing, 3WM tracked down attorney Lee outside the courthouse after the hearing in order to inquire about the decision. Among the questions were several about the clip. “Was the clip fingerprinted?”

“No,” Lee curtly responded.

“Why not?” No answer.

“Where is the clip?”

“I don’t know,” Lee answered. “Maybe with the prosecution.” And that was it.

In later parts of this series 3WM will present an overview of its interaction with Fisher’s counsel. What can be said now is that an previous cooperation from the lawyer ended on this day outside the High Court.

Thus the clip also is in legal evidence limbo or possibly in a metal scrap yard by now. The image included in the Prosecutor’s Record is a flat, grainy, black and white picture leaving no possible identifying characteristics. If the taxi driver used it for “2-3 years” it would have had noticeable wear. Fisher states to this day that it was a new clip. If fingerprints were taken and the taxi driver’s prints were on it, then the case is closed. If not, well then that would help Fisher’s case.

The Money

Once detained, Fisher had his pockets searched and was in possession of the clip and a sum of cash. The taxi driver stated to the police that he had kept his money, the W94000, bundled as eight W10,000 notes one W5000 note and nine W1000 notes in, as aforementioned a pink, or red, stationary clip.

PVT Fisher was found to be in possession of one W5000 note and one W1000 note, both in his back pants pocket and a pink colored clip in his front right pants pocket. Or W14000, or W12000, depending on which report is read in Korean and English and at different times.

The original arrest report, filed at 0520 on 19 November 2010, states that Fisher was apprehended with W6000 upon his person, with one W5000 note and one W1000 note.

It is believed that this translation was written post initial interviews but still on 19 November, due to it being compiled by a member of USAG 112nd MP Company who were not informed of PVT Fisher’s detainment until 0750 that morning. Fisher was later released to his unit at 1331.

On the subject of time stamps, the KNP evidential photography of items confiscated from PVT Fisher on the night of the crime, acquired by 3WM, clearly displays one W5000 bill and nine W1000 bills, totaling W14,000. This is coincidentally the same sum of money owed to the taxi driver as the unpaid taxi fare.

Whilst this partially matches the description of the break-down of money allegedly taken from the taxi, it does not match the evidenced photograph without a time stamp of W14000, which is not concurrent with the initial recorded interview given by the taxi driver at 0655 the same day, after he had seen the pink clip confiscated from Fisher and identified it as his own.

In this interview, the driver alleges for the first time that the clip stolen was pink and that W12,000 found to be on Fisher had been removed from the stolen W94,000. The taxi driver then goes on to state that the remaining funds had been taken by the unidentified accomplice, whom police have stated fled the scene upon the private’s arrest and is “still at large.”

Fisher consistently pointed out the differences in the money taken from the driver 20 minutes earlier and the amount he was found with and that which was reported.

These multiple inconsistencies in official legal documents that were relied on to make future decisions presents a rather murky picture of what occurred on the night and thereafter.

End of Part 1.

The next part will look at further evidence in the Fisher case.

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