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The Pvt. Andre Fisher Case: Evidence, Counsel and the Prison

The Pvt. Andre Fisher Case: Evidence, Counsel and the Prison

December 26, 20111156Views

By Jamie Grimwood and John M. Rodgers

SCENE OF THE CRIME / TAXI

Scene of the crime: left is Cheonggiwa Restaurant which the taxi reportedly was adjacent to at the time of the crime.

A taxi driver was mugged by two passengers, as recorded on a Yongsan-Gu CCTV camera at 0224 on 19 November 2010. The two assailants, caught on film at the scene of the crime, outside building 682-19 Hannam Dong, Yongsan-Gu, whilst not clearly visible to the point of one being able to make a clear identification of the individuals in the footage, can be seen fleeing the scene.

According to a report filed by the arresting officers of Pvt. Fisher on the morning of November 19, Fisher was identified by the taxi driver, who was at the time in the company of the police officers and searching the area for the assailants. The officers stated in their initial report that they had happened to pass by the taxi while patrolling from Hanganjin Substation shortly after the assault and robbery had taken place. The Substation is less than five minutes away from the scene on the main road leading to and from Itaewon proper and within shouting distance from where Fisher was apprehended.

Following the arrest and detention of Fisher, the scene of the crime was not turned into a crime scene, no forensic work was conducted at any point within the vehicle and consequently, there were not any fingerprints or traces of DNA taken into evidence and thus there are not any on file linking Fisher to the scene of the assault and robbery.

Fisher stated to 3WM, “I asked for them to fingerprint the taxi, but they said that it wasn’t important.” When the authors of this article met with individuals from the USFK relating to this case, it was stated that “this isn’t CSI, you know… it’s not who killed Kennedy…we know who killed Kennedy… there’s no conspiracy.” References to Oliver Stone were also made. (It must be added that various members of USFK greatly assisted in the process of the 3WM investigation.)

It is worth noting however under SOFA guidelines a USFK member, once handed over to the South Korean legal system, is then wholly susceptible to it.

The following statement was issued by the United States Army to 3WM in relation to questions surrounding Fisher’s SOFA rights:

“…Pvt. Fisher’s SOFA protections were not violated by his detainment by KNP or prosecution by ROK court. Under the SOFA, although the US and Korea have concurrent jurisdiction for crimes committed by US service members, the ROK has primary jurisdiction for crimes committed against Korean peoples or property. If the ROK decides to waive jurisdiction (usually only on very trivial cases), then the US will assume jurisdiction… When a crime is suspected, the KNP can detain the suspect and will usually release the individual back to the unit for the duration of the investigation and prosecution. This was done in the case of Pvt. Fisher. The ROK may also maintain custody if they feel there is a substantial risk of flight or the crime was especially egregious…Pvt. Fisher’s SOFA protections were not violated by his continued detention by ROK court. Under the SOFA, Article XXII (Criminal Jurisdiction), Para 5(c) states (in part): ‘When an accused has been in the custody of the military authorities of the United States, the military authorities of the United States may transfer custody to the authorities of the Republic of Korea at any time, and shall give sympathetic consideration to any request for the transfer of custody which may be made by the authorities of the Republic of Korea in specific cases.’ The same paragraph also states we normally shall retain custody until the end of all judicial proceedings. In Pvt. Fisher’s case, the ROK requested custody after the conclusion of the hearing on the merits of their case and the fact that the US Military not handed Pvt. Fisher over to ROK custody, on 20 Jul 11, until over a month after he was sentenced in the ROK court, on 10 Jun 11… In most case the U.S military will not impose additional punishment on a Soldier for an offense for which he/she has already been punished by a civilian authority. Pvt. Fisher’s continued active duty service; however, will depend on two things, the ruling of the Court and a decision by Pvt. Fisher’s Commander. All foreign convictions automatically trigger a separation board under Chapter 14 of AR 635-200. If the conviction stands, Soldier may be separated from service or retained on active duty as the board sees fit to recommend to the Commanding General. If Pvt. Fisher remains in prison, the separation board will be completed when he is returned to US military custody. If the appellate court reverses the lower court and remands (with direction to find him not guilty, or correct some error he raises at the appeal) Pvt. Fisher could be retained on active duty or still subject to a separation board (as his command sees fit) based on all the facts surrounding the case… The Chapter 14 Separation board is a an administrative board. Pvt. Fisher would be have a military attorney assigned to assist him prepare his administrative case and would be afforded the right to present evidence and make a statement on his behalf. This is not a trial or a hearing though and the board cannot impose punishment. It is held only to decide if a service member should be retained or separated from the military.”

Interestingly, 3WM is aware that the USFK did request to handle PVT Fisher’s case in-house, but the request was denied by the Republic of Korea judicial system, forcing PVT Fisher to be handed over to face the ROK justice system. One week after Fisher was apprehended he signed a document stating that he had secured attorney Lee Jang-han as his council. As stated in part one of this series, Lee is a certified lawyer on a list of 15 that the USFK provided to PVT Fisher once it was determined that the ROK would not hand the case over.

Despite there seemingly being no apparent conspiracy to convict Fisher on behalf of the USFK and regardless of innocence or guilt in this case, elements of conviction by convenience appear to have reared their head within the South Korean legal system.

ATTORNEY AND PRISON

3WM first met USFK-appointed Attorney Lee in July at Seoul District Court following the first appeal hearing of Fisher’s trial.  Lee, 59, graduated Seoul National University with a Law Degree and also completed the Judge Advocate General’s (JAG) School in 1986.

After exchanging business cards and introducing ourselves, Attorney Lee was genuinely and generally courteous. He asked of the origin of our relationship to and interest in, the case. 3WM informed Lee at the scene that we had been informed of some unease regarding the initial sentencing of PVT Fisher from his supporters, that we were an online news service largely for the expatriate community and that if he did not object, could we please take his contact details.

Lee obliged.

Following the hearing, 3WM started researching the case in detail and deduced pretty quickly that given all of the inconsistencies in the case, from all imaginable angles, having a chat with PVT Fisher was of rather paramount importance. Upon placing a call to Lee, the address of the prison and the visitation  hours were promptly provided.

On our first visit to the facility, two staff members attended. The large sign stating that no press were allowed in raised a number of questions. We stated that we were friends of the family. This story stuck and over the five following visits as our intention to gather as much information from Fisher as possible (given that one is not allowed to talk about to a subject about their case) became apparent, hostilities arose. Guards became increasingly hostile.

Regardless, the courteous exchange between 3WM and Lee continued for a number of weeks. We visited PVT Fisher, told him that we wanted access to his court documents, he agreed, told his attorney and Lee provided us with log-in details for the court system; this allowed for retrieval of the a set of appeal court reports relating to PVT Fisher, only in Korean.

Then one morning in August, 3WM contacted the attorney to inquire about the process of having Fisher agree to and sign a release form for the police reports pertaining to the case. This would essentially open up his law enforcement file, legal and, in part, military, to our editorial staff. At this point the stonewalling began. Initially and in fairness, we were asked why we would possibly need to do that.  We informed the attorney that should his client agree, we were legally able to do so and that for the sake of potentially finding some clarity in the case, we wished to take advantage of that law.

Lee stated that he would deliver the forms to his client the same week. A week passed and 3WM visited PVT Fisher again. No forms (relating to our request) had been delivered. This was verified by Fisher himself and various members of the detention facility. The August appeal hearing was weeks away and it appeared as if Fisher’s attorney was not particularly keen to enable an interested third party to start analyzing the legal paperwork that put his client in prison.

Fisher stated immediately that no documents pertaining to his consent for a release of information had been delivered to him. Perhaps they had been misplaced by the prison guards?

The process of acquiring a straight answer to whether the documents had ever in fact been delivered to the facility bordered on the surreal. The guards refused to look for the paper work.

3WM and Fisher informed them that these documents were from a legal representative to a third party, via an inmate and that consequently, if they were in the facility, they should be handed over. A simple, straight and firm, “No!” was given.

After engaging in a moderately intense shouting match and being further informed that the 3WM staff member had to leave, that no documents were going to be looked for (let alone handed over) and that really, it was not that important anyway, PVT Fisher managed to insist that a guard with whom he had struck up a rapport be brought to the interview room. This guard then listened, used his radio to contact the mail room and deduced that in fact, no, no documents had been delivered for Fisher.

The 3WM staff member left. The attorney was contacted immediately and informed that a room full of prison guards, the facility mail room and the client himself had stated that said documentation had not been passed on. So why not and where was it?

Lee asked 3WM if we had any proof of this accusation and was informed that we did have a prison guard, the moderator of interviews and visits, stating that he was in the room the previous week, during the attorney-client meeting and that these documents had not been handed over, but other documents relating to the upcoming appeal had been.

Lee then told us to “Go and fuck yourselves,” called our staff member a bitch, stated that we had no reason to be interested in the case anyway, warned us not to call him again and hung up the phone.

So we had our main translator call him back a day later to ask the same questions in a different way.  Lee gruffly told the man that he’d delivered the documents, that he was busy and that it was a good idea to “never call again.”

Seoul Detention Center.

3WM then returned to the detention facility a week later and strangely, the whole process repeated itself. Except this time, the private stated that his attorney had delivered some new paperwork—the release forms. Again, the guards would not look for the paperwork. However, this time, the debate became quite heated. It was made apparent that the staff at the facility had no intention of allowing 3WM to leave with the documentation. We were asked, over and again, why we needed it. The same answer was given, “It’s a release form.”

“No; no Fisher document to you,” said the eldest member of the prison staff, a surly, middle-aged man who always turned up to yell at someone.

Then, again, we were told to leave. We stated that we were not leaving without the documentation. More guards were brought to the room, some with their hands resting on their batons, looking more confused than anything else. The helpful individual from last time, despite our request to talk to him, was not brought in. People started screaming, doors were blocked and Fisher sat with his head in his hands. A table was head-butted, which seemed to attract some attention and bring a moment of silence. 3WM took advantage of the break; “How do we get this document?” we asked.

“No document.”

“Ok, phone the attorney.”

“No; you leave right now,” and someone beckoned Fisher to leave the room.

We left.

The next visit to the facility was far calmer but not without further obstruction. 3WM asked Fisher a number of questions about hugely gaping holes in his story, was informed by a prison guard that we could not talk about his case, ignored him and carried on. Fisher told us that (again) he had requested to see the CCTV in question again, that he had requested for third parties to be able to see the CCTV and, as previously stated in an earlier article, that there be DNA work conducted on the clip. He then wrote a statement, in ink, signed, stating that this had happened and that he had been told that it was “not important.” As he handed this statement to us, it was taken by the prison guard and pocketed. That, quite clearly, was not happening.

Again, we left. The last visit to PVT Fisher we asked about the mysterious hooded sweatshirt. He stated that he had once been asked to provide this sweatshirt at an early point in the investigation and could not find it due to his room-mate on base having put it somewhere. He further claimed that this hoodie had since been found, that he had told his attorney of this and was informed that it was “too late.” Fisher then asked 3WM if they had any ideas as to how to acquire the sweatshirt as he was positive that it would be in a box of his belongings packed by the Army and held in storage somewhere.

After this time, a family friend from Fisher’s hometown visited Seoul to see him in person and to visit the attorney.  During her week-long visit she visited Fisher nearly every day.  When she inquired about Lee, Fisher said he had not seen him in some time and did not know when his Supreme Court hearing was going to be.  She decided to visit the attorney’s office unannounced and arrived, luckily (or not) to find Lee there.  When she asked about the case, he answered that he could not provide any info.  When she asked about getting the arrest report and other documents, he stated that PVT Fisher had them.  When she asked why he hadn’t been to the prison, he became agitated, basically indicating that he didn’t have to answer anymore questions.  That was that and coincides with the behavior Lee exhibited earlier after the wrong questions were asked and the wrong requests made.

A future look at other details of the case, especially regarding appeals, will show that the specific elements of the appeals appear to be written by Fisher with little to no expert oversight from Lee.

Again, for those who seem stuck on the very first announcement of this case by 3WM, we are attempting to detail, highlight and clarify the case as a whole in an effort to determine if PVT Fisher received a fair and unbiased trial and professional representation.  Moreover, we are still in the process of obtaining more records through the military, a process that has been long and filled with extensive red tape.

Due to a staff error, the map that previously ran in this story has been removed.  3WM takes such matters seriously and will work to prevent further graphic errors.  All addresses within the story have been rechecked.  It must be noted that the police indicated that Fisher was apprehended at Hangangjin Subway Station; stations are normally identified by the exit/entrance markers (the station has only 3 exits).  Moreover, the taxi driver said he was is the 741 area (he gives no specific address).

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