By John M. Rodgers and Jamie Grimwood
Editor’s Note: 3WM recently confirmed the details of PVT Fisher’s overall period of incarceration with the USFK. Pvt. Fisher was originally transferred to ROK custody on 21 June 2011. Fisher’s first offense and conviction (taxi incident) was a 24 month conviction which will be completed on 19 June 2013.
Fisher’s second offense and conviction (private property damage) was a 1 million won fine, but to be worked off at 50,000 won per day = 20 days of confinement over his original sentence.
Fisher is estimated for release on 9 July 2013.
SOFA Trial Observer
Each time that Pvt. Andre Fisher sat in a Korean courtroom to have his case heard he was flanked by his attorney, Lee Jang Han, and a Status of Forces Agreement (SOFA) Trial Observer who, according to Major General Clyde J. Tate II, “is a U.S. attorney and Army Judge Advocate, who observed the trial to ensure the presence of fair trial safeguards and to ensure the ROK honored all rights and privileges afforded under the SOFA.” Major General Tate goes on to say, “The Korean proceedings were translated into English for PVT Fisher by a court appointed translator whose performance the Trial Observer monitored and found adequate.”
There is no doubt that ensuring Fisher’s ability to understand and to communicate in the court was of paramount importance. 3WM has already confirmed that numerous legal documents related to the case were not translated for Fisher and that within documents that were translated, there are major inconsistencies. As the investigation process continues and more documents undergo scrutiny, these discrepancies continue to surface. A fair legal process undeniably should ensure that the accused has full access to the information being used to convict him or her.
Surely it is equally important that the legal proceedings being conducted in a foreign country in a language that the accused did not understand be as professionally interpreted as possible and, that such interpretation be monitored by a qualified member of the USFK with SOFA understanding.
The first question that arises here relates to the Trial Observer’s Korean language skills. Secondly, how meticulous is the Observer in monitoring the proceedings (i.e. note taking, report filing and so forth)? And does the Observer have any access to documents related to the case such as evidence reports, written statements, anything that would offer some understanding of what is going on?
When 3WM first presented aspects of these questions to members of the USFK, the answers were rather ambiguous but it was suggested that Korean language skills are not required. On the second question, well, honestly, it’s on a case-by-case basis. On the final question, it was also suggested that it’s not likely.
So whatever the SOFA regulations “guarantee” about ensuring a fair trial and making sure rights and privileges are honored by the ROK in these cases, it’s slightly unsettling, especially for the accused and those concerned about his or her welfare, to know that the appointed Trial Observer really doesn’t do all that much.
In the case of Fisher, this possible disconnect or insouciance appears to go slightly further given the recent speaking out of the individual who claims to have been the Observer at the trial after 3WM posted this series of posts. On December 24, this individual posted a comment on ROK Drop under the pseudonym “I Was At The Trial.” ROK Drop is a respected news source on the Korean peninsula and calls itself the “leading military weblog out of Korea.” The publication has posted a number of posts about the Fisher case and provided necessary clarity when misinformation was abundant. This most recent post provided a look at 3WM’s first part in this series. “I Was At The Trial,” began his comment with:
“I was the SOFA trial observer for this case. There’s a lot of discussion out there based on incorrect or incomplete information, so I think it’s important to establish some good facts. I will stick to the facts and won’t comment on anything I don’t have first-hand knowledge about.”
There is no real reason to doubt the identity of the individual who later adds,
“I sat next to Fisher during the trial, so I saw the video, the pictures of the money and the clip, and heard the testimony. So here it is, based on my notes, and to the best of my recollection.”
He proceeds to present aspects of the evidence that he observed during the trial starting with the mysterious and now unretrievable CCTV footage, writing that it was shown “maybe half a dozen times during the trial.” So he saw it numerous times. He basically confirms what 3WM had heard and seen in some documents. The confusion arises when it comes to the last sentence about the CCTV: “The taxi driver got out of the taxi but did not give chase.”
As previously stated, aspects of the case do not line up and this is one big one. Since the posting of this comment by the claimed Observer, 3WM received the translated “Examination Evidence List 13-1 Execution of the CCTV CD Evidence Investigation.” In Section 3 of this document, “Results of the Evidence Investigation” it states the following:
–Later, at 02:24:51, the aforementioned person [the perpetrator] hurries out of the taxi, and simultaneously, another person gets out of the taxi through the back right door and both run towards the alley behind the taxi.
–Right after, the door to the driver’s seat opens and a man that seems to be the taxi driver gets out and runs towards the direction of the aforementioned two people.
–At approx. 02:25:20 the aforementioned two people and the taxi driver disappear from the screen.
So according to the Trial Observer, the taxi driver never chased the two men and according to official ROK legal documents he did. Which is it?
Later, in the same comment, the Observer certainly doesn’t clear up the confusion over the actual color of the clip–a central piece of evidence in the case–which was called red and pink in the initial police report and later the taxi driver says he doesn’t know what color it was.
“It was either pink or red – I really can’t remember which,” writes “I Was At The Trial.”
Below the comment another commenter asks, “SOFA trial guy: do you speak Korean? Did you have access to documents? Did Fisher’s explanation about the hoodie make sense to you?”
In response “I Was At The Trial” writes, “the answers to your first two questions are no and no,” thus verifying what the USFK representatives had earlier suggested.
Unless the individual writing the comments is a complete fraud, evident deficiencies exist that are cause for concern for any individual being “observed” in a ROK courtroom.
Witness Deposition of the taxi driver
On the subject of further inconsistency that can be evidenced relating to the case is the Witness Deposition of the taxi driver. Statements made in this Witness Deposition, conducted on the 19 May 2011 at Seoul Central District Court (4th record for public trial, Specialized Crime Division) by the prosecutor were earmarked as a key factor in the 10 June 2011 Seoul Central District Court (27th Criminal Division) decision to uphold judgement against Fisher.
In the initial police report of the 19 November 2010, it is stated that the taxi and driver were found “parked on side streets” by police patrolling the area. The two police officers proceeded to ask the driver what had happened. The three men then searched the area together “the subjects were found” and “the police… ran after Fisher for about 5 meters and apprehended.”
Based on the aforementioned document included in the same file entitled “Examination Evidence List 13-1 Execution of the CCTV CD Evidence Investigation,” the taxi was parked at 682-19 Hannam-Dong when the crime occurred, with the crime being recorded on the council camera overhead. The same document also states that at “02:24:51, the aforementioned person hurries out of the taxi, and simultaneously, another person gets out of the taxi through the back right door and both run towards the alley behind the taxi.”
The driver states in his witness deposition that he gave chase shortly after the crime occurred, but not “simultaneously” and that he (the taxi driver) “ran after… and recognized the clothes’ of the attacker.”
The document detailing the process caught on CCTV states “the aforementioned two people and the taxi driver disappear from the screen” at 02:25:20.
On page 47 of the 19 May 2011 Witness Deposition, issued some five months after the crime occurred, the taxi driver states:
“They were escaping from the alley towards the big street. So when I followed them I did not see those people but a line of taxis stuck in a traffic light. I asked the taxi drivers about the whereabouts of the two foreigners that ran out and they told me they crossed the street. So I crossed the street and couldn’t find them for a long time and got into my taxi again and went back and forth around the alley.”
The driver then goes on to state that “When I was observing the surroundings the police car came.”
In the same document it clearly says that the police met the taxi driver at 741 Hannam-Dong.
The address of the crime scene, 682-19 Hannam-Dong and the address of where the police met the taxi driver, 741 Hannam-Dong are approximately 200m apart. The distance from 741 Hannam-Dong to the address of where PVT Fisher was apprehended, 729-74 is approximately 170m apart.
Various points can be raised relating to these locations and testimony. Whilst nobody disputes that two men were captured on CCTV running from the address of 682-19 Hannam-Dong after debussing a taxi, the following needs to be considered: in the time between the driver walking the area and then driving the 200m from the crime scene to where he met the police, entering the police car and then traversing the 170m by car to where PVT Fisher was apprehended, Fisher would have had to spend approximately twenty minutes loitering on the same street corner, meters from the crime and outside a police station for the duration of the taxi driver’s foot and squad-car journey.
The taxi driver additionally states, relating to his time in the police car, that “…the police car came out to the big street and was about to go right to Itaewon but I coincidentally stared the other direction. That person had orange clothing with a hood… Because they were wearing the same clothes as the taxi passenger… I said they were the offenders.”
3WM has also learned that the taxi driver claimed on-record that a “passersby had already reported (the crime) and the police car had come, knowing that the taxi had been robbed.” The facts presented in this combined deposition contradicts the 19 November 2010 police report stating that while the police “were patrolling Rium-bound or Hangangjin Substation… the victim’s taxi parked on the side streets was found.”
This 19 May 2011 statement was claimed in the 2 August 2011 Seoul District Court (5th Criminal Department) appeal against the sentencing of PVT Fisher as grounds to uphold sentencing, with the reason stated as “Witness… testimony” and the following inclusion:
“In general, in order for an eye witness’ identification of a suspect to be highly credible, the suspect must be someone the witness had previously known, in addition to the witness’ identification other circumstances must be present for the suspect to be believed as the offender, or the investigation agency complied with several standards, i.e. the eye witness should not be allowed to see the suspect before the eye witness sees the suspect with several other individuals who look similar… In this case, immediately after the robbery incident the victim and police officers were looking for the suspect in the area, and the victim directly identified the defendant, who was apprehended at the scene.”
The taxi driver also comments in the Witness Deposition that “the policemen had small physiques like mine so they could not handle one person each… I helped the police hold onto him [ Fisher].”
Media and Family
Back in July when 3WM first became aware of the PVT Fisher case, there was a lack of straight, factual information readily available. The Fisher family sought to draw attention to and scrutiny of the case based on what they thought they knew about it. Now, six months later, it’s clear the family was in a panic about the fate of PVT Fisher. It’s also clear that they had not been told the whole story by PVT Fisher, which led to the subsequent release of misinformation into the mainstream local Hazleton/Scranton media.
On July 8, 2011, WNEP News Channel 16, ran a piece titled “Hazleton Native Arrested in South Korea” by Dave Bohman of the “Action 16 Investigation” unit that began, “A former high school football star from Hazleton is now in a prison in South Korea, and his parents say he is serving time for a crime he did not commit.”
Almost the whole piece uses Fisher’s parents or family friends as the main sources except for the end which cites a U.S. Army spokesman.
The central problem is that most of the information offered is wrong and misleading. To begin the family say Fisher was “outside a night club just off the American military base near the North Korean border when a cab driver claimed Fisher robbed him of $88.” Presumably this would have been in Dongducheon where Fisher was stationed. They also add that the incident took place in January. Fisher was actually apprehended November 19, in front of Hangangjin Subway Station, just outside Itaewon in central Seoul.
Moreover, his father, Robert Fisher, says the police “beat him on the street” but there is no report of the use of excessive force and Fisher only says the handcuffs were too tight.
Later in the piece, a family friend who kept in touch with Fisher is paraphrased: “She believes the Army abandoned him.” A quote from Mrs. Fisher follows: “The Army told us nothing.” Thus began the uncorroborated assertions that the U.S. Army did not handle Fisher’s case by the book.
Certainly, SOFA literature isn’t at the top of most people’s reading lists and does not qualify as easy reading. Yet the family seems to have failed in any attempts to ascertain that Fisher, under the 1966 SOFA, had to face trial under the ROK Ministry of Justice (MOJ) given the following as cited by Major General Tate II:
Fisher’s misconduct constitutes one or more criminal offenses of both the U.S. Uniform Code of Military Justice and Korean Law. Accordingly, both the U.S. military and the ROK could have exercised criminal jurisdiction over the private. Under the SOFA, in cases of concurrent jurisdiction, the U.S. is afforded the primary right of jurisdiction only for “(i) offenses solely against property or security of the United States, or offenses solely against the person or property of another member of the United States armed forces or civilian component or of a dependent: [and] (ii) offenses arising out of any act of omission done in the performance of official duty.” For criminal offenses, like PVT Fisher’s, which do not fall under either of those categories, “the authorities of the Republic of Korea shall have the primary right to exercise jurisdiction.”
Furthermore, the U.S. Army did request that the ROK “waive its primary right of jurisdiction over PVT Fisher, but the ROK denied the request,” according to Major General Tate II.
It is documented fact that Fisher selected an attorney, Lee, from a list of 15 provided to him by the military within a week of his arrest on 26 November 2010. 3WM obtained documents with Fisher’s signature and fingerprint from USFK officials. However, it must be added, that during the discussion about the process of selecting a lawyer from the list of 15, an imitation of covering one’s eyes and randomly pointing to a name on the list was done. Nevertheless, the USFK fulfilled its responsibility under SOFA to give Fisher access to a USFK certified attorney who they’d then pay seven million won per trial stage.
3WM cannot confirm why the Fisher family and friends remained aloof to these facts as Fisher was not incarcerated until 21 June 2011 some seven months after his arrest. As of the time of this post, the family has not responded to a series of questions. Unfortunately it would appear that Fisher provided most of the information to the family.
On July 15, 2011, a second article titled “Area parents ask for help over son’s imprisonment” by Steve Mocarsky came out in the local Times Leader newspaper and with it more misinformation (though a few more facts were mixed in). The location was now correctly Seoul–the nightclub remained. Now the CCTV was “inside the taxi” and showed a “tall, slender” male “reaching inside the cab.” As earlier stated, the CCTV was not inside the taxi but the tall, slender argument has been made by PVT Fisher both in court records and to 3WM (Fisher is not slender–he is 6 foot, 5 inches and weighs 225 pounds).
Throughout the case one thing that stands out is Fisher’s unrelenting insistence of his innocence. In the Times Leader article, Mrs. Fisher says her son “refused to plead guilty against his South Korean lawyer’s advice.” This has been confirmed numerous times through court documents and Fisher’s attorney. From the very beginning, Fisher insisted he never took a taxi, never stole anything and reacted aggressively when the police arrested him without stating why. It is a widely known fact that it benefits one to admit guilt, accept justice and move on. Most courts around the world welcome this and the case is much the same in South Korea. Though one slightly different aspect of the Korean system is that it’s often better to just pay a settlement and avoid trial altogether, whether innocent or not–this is called habuigeum. Simply, avoid lawyers, avoid court and settle things. Throughout Fisher’s case his attorney, interrogators and other judicial figures suggested he make a deal with the taxi driver. Even in his 15 March 2011 interrogation, he is randomly asked near the end if he wishes to make a deal with the taxi driver. Fisher again states that he didn’t take the taxi and didn’t take the money so he has no deal to make.
Further on in the Times Leader piece a man by the name of Michael Keslosky is brought up. Reportedly, Keslosky, a veterans’ advocate and a veteran of the Vietnam era and Operation Iraqi Freedom, had been “acting as a liaison with the Army, Judge Advocate General attorneys and elected officials for the Fishers.” Keslosky was apparently “appalled” that “the Army didn’t even request to obtain jurisdiction of the case, especially because the alleged crime would be considered minor, given that no weapon was involved.”
Again, more misinformation and this time from someone supposedly with connections within the military. As Major General Tate II stated and other documents support, the USFK did request primary jurisdiction. They were denied. Keslosky then expresses his dismay over “alleged violations of the SOFA such as Andre not being allowed to call defense witnesses and not having military representation present during his questioning and at the trial.”
In a later part of this series the witness aspect will be further explored but, in short, Fisher was not, according to documents, prevented from calling witnesses but, contrariwise, he was encouraged to locate individuals. Additionally, the suggestion that he didn’t have military representation present—though the caliber and capability of that representation is questionable—during questioning and trial is mendacious.
Finally July 18, 2011, Fisher’s parents and sister contacted a local division of Entercom Communications Corp, the Avoca, Pennsylvania-based radio station, WILK 103.1 AM/FM News Radio. In a phone-in on-air interview with Anchor L.A. Tarone (who is incidentally News Director at sister-station WYLN-TV, so presumably somewhat responsible for fact checking), Fisher’s father and sister stated their understanding of the situation. This was interjected by highly professional baiting from the radio host.
Amongst the comments made, were that the private was issued a “Court appointed lawyer… (the) army didn’t get his lawyer.” This has been proven to be false. Americans were seen in South Korea as “cash cows,” that “He [Fisher] is going to have a battle in federal court over theft and they are probably going to try and convict him in military court and court martial him.”
According to this radio interview and relating to the alleged incident between Fisher and the taxi driver: Fisher was out with three other servicemen at the time, he used public transport to get back to base, he was on the phone to someone when he noticed three or four people outside the taxi and that “Police beat him pretty well,” as previously stated by Mr. Fisher.
In the WILK 103.1 AM/FM interview it was further stated that Fisher’s SOFA Agreements had been violated, that if he is released he will then have to go to a United States Federal Court and that it had been proposed in South Korea that if family pay what is tantamount to a bribe, Fisher would be released.
This information was understandably jumped on as nonsense by a large proportion of people.
The radio host, L.A. Tarone asked the following question of the Fisher family:
“…is it true that, he and by extension you and Sandy have been offered what amounts to a deal, that if you’ll pay I don’t know if it’s the cab driver or the prosecution a couple of grand they’ll forget about it and let him out of jail.”
The answer, given by Fisher’s father was as follows:
“That’s exactly right… the lawyer said to him Andre plead guilty, you can repay the cab driver and everything will go away… he is going to have a battle in federal court over theft and they are probably going to try and convict him in military court and court martial him.”
Overall, these series of articles only served to irk the military, to attract negative publicity outside of Hazleton and to incite an online community skeptical of the purported “facts.”
The Fisher family later reiterated that the only contact that they had had with the military was from their son’s CO ringing to acquire an address to forward belongings to. It appears as though their information was either fabricated, or came from Fisher himself.
End of Part 3.
Currently 3WM is waiting for more documents to be released and for others already obtained to be translated. Moreover, 3WM is in the process of establishing contact with individuals of interest. Due to this, Part 4 will be published in two weeks. Editors.
Dae-hyun Ji and Elena J contributed research and translation.