Navy Judge Capt. Aaron Rugh has removed the lead prosecutor in the war crimes trial against Navy SEAL Chief Eddie Gallagher days after he said the government had violated Gallagher's right to a fair trial.
Navy Cmdr. Chris Czaplak was dismissed from the prosecution team on Monday, threatening to further derail the government's case against Gallagher, who has been accused of murdering a wounded and unarmed ISIS fighter and indiscriminately firing at innocent civilians during the 2017 Battle of Mosul.
The removal of Czaplak came in response to a defense motion last month seeking the ouster of the prosecution team. Defense attorneys sought relief after it was learned that an NCIS investigation into media leaks in the case had involved Czaplak sending emails to Gallagher's attorneys and a Navy Times reporter without obtaining a warrant. The emails had some kind of tracking software hidden in Czaplak's signature block.
"The court concludes that the matter related to Cmdr. Czaplak's participation in the NCIS operation may reasonably create a conflict requiring his withdrawal under due process," Rugh said in his Monday ruling.
"While it is not within the purview of this court to conclude whether the actions of a trial counsel violated the rules of professional responsibility, the court must determine whether the fear of or potential danger of a professional responsibility complaint and follow up investigation is sufficient to create such a conflict."
Rugh added: "Conceding that this area remains both nuanced and unresolved under the ethical rules, still the court concludes that the danger of investigation is sufficiently real that any trial counsel so situated might be motivated by factors unrelated to his position as trial counsel."
Rugh granted the defense motion to have Czaplak removed, but declined to remove Marine Lt. Conor McMahon, who was also on the prosecution team. However, the San Diego Union-Tribune reported Monday that McMahon had already been directed off the case by his unit last week.
"Capt McMahon has been directed off of the case and this decision was made due to no adverse conduct of his own," a Marine spokesman told the Union-Tribune.
"The Navy is complying with the judge's order," Brian O'Rourke, a Navy spokesman, told Task & Purpose. "The senior trial counsel will be replaced by a qualified Navy attorney. Chief Petty Officer Gallagher is entitled to a fair trial and the Nav is committed to upholding that principle."
The Monday ruling is the latest in a string of wins for Gallagher's defense team: In addition to the judge ruling that the SEAL Chief's constitutional rights were violated by the email tracking issue, he also ordered Gallagher released from pretrial confinement last week.
Czaplak is also the lead prosecutor in a related case against Navy Lt. Jacob Portier, Gallagher's platoon leader. It was not clear on Monday whether he would be dismissed from that case, which is being overseen by a different judge.
The trial is still scheduled to begin on June 10, O'Rourke said.