Lawyer: Army rushed judgment in fragging case

updated 6:10 p.m. ET Oct. 22, 2008

FORT BRAGG, N.C. - Military prosecutors argued Wednesday the first soldier accusing of killing a direct superior in Iraq — a crime known as "fragging" during the Vietnam war — told other soldiers he hoped his company commander would die in action and he wanted to "burn" him.

New York National Guard Staff Sgt. Alberto B. Martinez was frustrated with Capt. Phillip Esposito's strict oversight of the supply room where Martinez worked, prosecutor Capt. Evan Seamone told jurors during opening arguments of Martinez's court-martial. Charged with two counts of premeditated murder, Martinez could be sentenced to death if convicted.

Defense attorney Maj. John Gregory countered that Army investigators assumed Martinez was guilty after learning of his feud with Esposito, a by-the-book West Point graduate who took over a relaxed National Guard unit. Because of their prejudice, Gregory said, investigators were "likely to miss important evidence that will be lost forever."

Martinez, 41, is accused of planting a anti-personnel mine that detonated June 7, 2005, in a window of the officers' room at Saddam Hussein's Water Palace in Tikrit. The officers died the next day.

Esposito and 1st Lt. Louis Allen, also a National Guard officer in the 42nd Infantry Division, were playing the board game Risk when the mine exploded and sent hundreds of steel balls hurtling, Seamone said. He told jurors that Martinez told another soldier he planned to "frag that (expletive)" before the suspicious blast tore through Esposito's living quarters.

"There was no soldier who voiced as much hatred for Capt. Esposito as Sgt. Martinez," Seamone said.

But Gregory said investigators found no direct evidence linking Martinez to the blast, including fingerprints or DNA. Initially, investigators thought the explosion was caused by a mortar attack, but suddenly changed their minds after one soldier told them that Martinez and Esposito didn't get along, the defense attorney said.

Martinez actually was in a portable toilet outside the building when the blast occurred, Gregory said.

"The investigation is so flawed and so unreliable that it cannot be the basis for a conviction of Staff Sgt. Martinez," Gregory said. "Staff Sgt. Martinez is not guilty of these crimes."

Esposito, 30, worked as an information technology manager in Manhattan and was Martinez's company commander. Allen, 34, was a high school science teacher and the company operations officer. The Espositos had a young daughter, and the Allens had four young sons.

'Seeking justice'
It has taken more than three years to bring Martinez to trial, as his attorneys efforts to spare him a possible death sentence led to several postponements. Cognizant of the delays, the judge has pledged to hear testimony on holidays and weekends to speed up a court-martial that's expected to run through the end of the year.

But on the first day, judge Col. Stephen Henley ended the proceedings early because two of the 14 jurors had a personal matter. The two jurors are married and one of their elderly parents required emergency surgery. Another early end to the courtroom day was planned for Thursday.

The numerous delays before the trial started have frustrated the widows of Esposito and Allen, but they said they were glad the trial had finally started. The widows are expected to testify as early as Thursday.

"We would rather be back with our children. We are here seeking justice for our husbands," said Esposito's wife, Siobhan, who along with Allen's wife, has attended every hearing in the case.

The Army reported hundreds of "fragging" incidents between 1969 and 1971, but only four soldiers have been court-martialed or charged with killing a fellow soldier since the Iraq war began in 2003.

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