New details in the case against a Navy SEAL charged with multiple war crimes emerged Friday during a marathon motion hearing at Naval Base San Diego.
The hearing revealed that seven Navy SEALs have been granted immunity to testify for the prosecution during the upcoming trial of Edward R. Gallagher, a chief special warfare operator alleged to have murdered a wounded teenage ISIS combatant by stabbing him in the neck.
The trial phase is scheduled for Feb. 19. Prosecutors expect to call the seven SEALs and up to 13 additional witnesses of the May 2017 incident in Mosul, Iraq.
Defense attorneys asked the judge, Navy Capt. Aaron Rugh, to suppress some aspects of those witnesses' expected testimony, particularly the numbers of people Gallagher allegedly bragged about killing.
Witnesses told NCIS investigators that Gallagher bragged about killing up to 200 people during the 2017 deployment. Another witness said Gallagher told him he killed “three a day” and to “do the math” for the total number he killed.
The defense argued that these figures would prejudice a jury panel. The judge denied the motion.
Defense attorneys also asked that evidence seized from three of Gallagher's cell phones be suppressed. All evidence in the case is under a protective order, but photos, videos and text messages are part of the government's case against the SEAL.
Gallagher took the stand and testified that when he was arrested on Sept. 11, he was not allowed to call his attorney. NCIS interrogators asked him to use his fingerprints to unlock his phone, he said, and investigators watched Gallagher enter his pass code, which they then used to unlock his other devices.
The judge had not ruled on that motion as of late Friday evening.
Prosecutors also revealed they have a knife recovered from Naval Special Warfare Group 1 in Coronado and that it tested positive for DNA. They did not say whose DNA or that it was the murder weapon, though it was undergoing further testing.
More details about the battle that precipitated that alleged murder also came to light.
Prosecutors said the incident began May 3, 2017, with a drone strike and two Hellfire missiles hitting two sides of a home in Mosul.
Witness statements conflict about whether the injured ISIS fighter was inside the home when it was struck. The prosecution says he was, but the defense said their witnesses say he was injured by gunfire, not the drone strike.
Both sides agree, Iraqi forces loaded the combatant onto the hood of a Humvee and delivered him to Gallagher's team. Gallagher, a medic, began treating him.
Prosecutors say Gallagher stabbed the fighter, estimated to be between 15 and 17 years old. Gallagher also is accused of posing for photos with the corpse, operating a drone over it and, sometime later, celebrating his reenlistment next to it.
The defense, which consisted of six lawyers Friday, said their witnesses will testify that the fighter was either already mortally wounded when he was brought to Gallagher or he was alive when Gallagher left the scene.
There was at least one witness who said the fighter's injuries were not that serious before Gallagher treated him.
In unrelated incidents, Gallagher is charged with shooting two civilians — an old man and a little girl — and with shooting indiscriminately at civilians throughout his deployment.
One witness told investigators Gallagher told him it was “OK to shoot at women.”
Information leaks have been an issue in this case. The judge reimposed a protective order after the prosecution complained that a leak to the Navy Times led to publication of an NCIS agent's name; the agent had to be pulled from the field.
“Neither side is supposed to try their case in the media,” said Commander Chris Czaplak, the Navy's lead prosecutor.
It was unclear when the judge will rule on other motions in the case.
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