ACTION

DEPARTMENTOF THEARMYHeadquatters,82d Airborne Division

Fort Bragg, North Carolina28310

OEC 3 1 2014

In the case ofFirst LieutenantClint A. Lorance,

MU.S. Army, Headquarters and

HeadquartersCompany,4th BrigadeCombatTeam, 82d Airborne Division, Fort Bragg,NorthCarolina, only so much of the sentenceextending to forfeitureofall pay and allowances,confinement for 19 years and dismissal from service is approvedand except for that portion ofthe sentencepertaining to dismissal from the service, will be executed.

RI HARD D. CLARKEMajor General, USACommanding

AFVC-JASUBJECT: Addendum to the Post-TrialRecommendationof the StaffJudge Advocate (SJAR)in the Case ofUnitedStates v. First LieutenantClint A. Lorance

ACTION ON PETITION:

I havepersonallyconsidered the petition for cleme e taking action in this case. The

recommendationof the StaffJudge Advocate i rove isapproved.

una )%t C Íe-a-tec N

Major General, USACommanding

5

CHRONOLOGY SHEET'In the case of United States v. First Lieutenant ClintA. Lorance

(Rankand NameofAccused)

Date ofalleged commission of earliest offense tried: 30 June 2012(EnterDate)

Date record forwarded to The Judge Advocate General: 2

(EnîerDa

eanL Whit o , TC P), SinfFKidg"-o"Ad ocate,8 d AirborneDivision s

(Signatureand RankofStaff4udgeßdvocateor LegalOfficer)

In a case forwarded to the Judge Advocateoenemi, the staffjudgeadvocateor legalolliceris responsiblefor completionof the ChronologySheet. Trial counsel should repoit anyauthorized deductions and reasons for anyunusualdelays of the case.

Or officer conducting review under Atticle64(a)(MCM, t984, RCM l112)

In computing days between two dates,disregard firstdayand count last day. Theactualnumber ofdays in each month will be coimted.

Item I is not applicablewhen accused is notrestrained, (See MCM, 1984, RCM 304) orwhen he/she is in confinementundera sentenceor court-martialat time charges are preferred.Item 2 will be the zero date if item I is notapplicable.

8 May not beapplicableto trial by specialcourt-martial

' onlythis item may bededucted

if no further action is mluired, items 1through 8 will be completed and chronologysigned by such convening authorityor his/herrepresentative.

When furtheraction is requiredunder Article64 or service directives.

Action

1. Accused placed under restraintbymilitaryauthority4

2. Chargespreferred (dateofaffidavit)3. Article32 investigation(dateof report)'4. Chargesreceived by conveningauthority5. Charges referred for trial6. Sentence or acquittal

Less days:

Accused sick, in hospital or AWOL -Delay at request ofdefense-Totalauthorized deduction' --

7. Net elapseddays to sentence or acquittal8. Record received by conveningauthority

Action'9. Recordreceived by officer conducting reviewunderArticle 64(a)

Actions

CumulativeDate Elapsed

Days'

15 Jan 13 --1 Feb 13 17

18 Apr 13 93

18 Apr 13 93

1 Aug 13 198

1 Aug 13 198

28 Apr 14 468

31 Dec 14 715

REMARKS

Nutuberofdays from the initial investigationof the most serious offense to the date of arraignment: 563 days (2 Jul 12-25 Apr13).

Post-trial defensedelay: 37 days (9Jul 14-

15 Aug 14). Service completed on 9 Jul 14. Defense requested 20 day extension forRCM 1105s,extensionapproved through8 August 2014. Defense made a second requeston 31 July 2014 for an additional7 dayextensionto the origina120day extension. Defense submitted1105s on 15 August 2014.

Reassigned to thePersonnelControl Facility,UIC: W6CSPR,Fort Sill, OK 73503 with confinementat the United StatesDisciplinaryBarracks (USDB),Ft Leavenworth,KS 66027.

DNA processingrequired. 10 USC 1565

DEPARTMENTOF THE ARMYHeadquarters,82d AirborneDivisionFort Bragg, NorthCarolina 28310

GENERALCOURT-MARTIALORDER 31 December2014

NUMBER 29

First Lieutenant Clint A. Lorance, U.S. Anny, Headquartersand HeadquartersCompany, 4th Brigade Combat Team, 82d Airborne Division, Fort Bragg, North Carolina, was

arraignedat Fort Bragg,North Carolina on the followingoffensesat a General Court-Martialconvenedby the Commander,82d AirborneDivision.

Charge I: Article 80. Plea: Not Guilty. Finding: Guilty.

Specification: At or near Strong Point Payenzai,Afghanistan,on or about 2 July 2012, attemptto murder a male of apparentAfghandescentbymeansofshooting him with fireanns. Plea:

Not Guilty. Finding: Guilty.

Charge II: Article 107. Plea: Not Guilty. Finding: Not Guilty.

Specification: At or near Strong Point Payenzai,Afghanistan,on or about 2 July 2012, withintent to deceive, make to the Soldiers of 1st Platoon, C Troop, an official statement, to wit: thatthe rules ofengagement for U.S. Forces had changed,that anyone on a two-wheeled motorcycleis considered hostile, and the platoon was authorized to engage them on sight, or words to that

effect, which statementwas totally false, and was tlien knownby Fimt Lieutenant Loranceto be

so false. Plea: Not Guilty. Finding: Not Guilty.

Charge III: Article 118. Plea: Not Guilty. Finding: Guilty.

Specification 1: At or near Strong PointPayenzai, Afghanistan, on or about 2 July 2012, murdera male ofapparentAfghan descent by means ofshootinghim with fireanns. Plea: Not Guilty.Finding: Guilty.

Specification2: At or near StrongPoint Payenzai,Afglianistan,on or about2 July 2012, murdera male ofapparent Afghan descent by means ofshooting him with fireanns. Plea: Not Guilty.Finding: Guilty.

Charge IV: Article 134. Plea: Not Guilty. Finding: Guilty.

Specification1: At or near StrongPointPayenzai,Afghanistan,on or about 30 June 2012,

wrongfullycommunicatein the presenceofSpecialist B.B. and Specialist J.T., a threat to injure a

maleof apparent Afghan descentby stating"Ifyou touch my C-wire,or if there is enemy

activityon your land, we will shoot andkill you, your family, and yourkid," or words to that

effect, and by pointing at the c11ild whilemakingsaid threat, which conductwas of a nature tobring discreditupon the armed forces. Plea: Not Guilty. Finding: Guilty.

AFVC-JAGCMONo. 29, DAHQ, 82d Abn Div, Ft. Bragg, NC 28310, dated 31 December 2014 (continued)

Specification2: At or near StrongPoint Payenzai,Afghanistan, on or about 1 July 2012,

wrongfullyand willfully dischargea fireann, to wit: an M14 rifle, into a populated village, undercircumstancessuch as to endangerhuman life, and that said conductwas of a nature to bringdiscredit upon the anned forces. Plea: Not Guilty. Finding: Guilty.

Specification 3: At or near StrongPoint Payenzai, Afghanistan,on or about 1 July 2012,

wrongfully solicit SergeantD.W. to makea false official statement by tellinghim to report to theC Troop Tactical OperationsCenter that the platoonreceived pot shots while on the roof, orwords to that effect, which conduct was to the prejudiceof good orderand disciplinein theanned forces. Plea: Not Guilty. Finding: Guilty.

Specification4: At or near Strong Point Payenzai,Afghanistan, on or about 2 July 2012,

wrongfullyendeavorto impedean investigationinto the deaths of two males ofapparentAfghandescent, a case in which the accused had reason to believe there wereor wouldbe criminalproceedings by making a false radio report that the platooncould not conduct BattleDamageAssessment (BDA) on two malesof apparentAfghan descent; and by tellingPrivate First ClassJ.S. to falsely state in the company intelligence support team (COIST)report that the patrol wasunable to conduct BDA because the victims' bodieswere removed by local nationals before thepatrol could reach them, which conduct was to the prejudiceofgood order and discipline. Plea:Not Guilty. Finding: Guilty.

Specification5: At or near Strong Point Payenzai,Afghanistan, on or about 2 July 2012,

wrongfully communicate a threat to injure four persons of apparentAfghandescentby stating"Youhave five seconds to leavebefore I shoot you," or words to that effect, in the presenceofPrivate First ClassE.W. and PrivateFirst Class J.S., which conductwas to the prejudiceofgoodorder and disciplinein the armed forces. Plea: Not Guilty. Finding: Guilty.

SENTENCE

The sentencewas adjudgedon 1 August 2013: To forfeitall pay and allowances; to be confinedfor 20 years; and to be dismissed from the service.

ACTION

Only so much of the sentenceextendingto forfeitureofall pay and allowances,confinementfor19 years and dismissal from service is approved and except for that portion of the sentencepertainingto dismissal from the service, will be executed.

2

AFVC-JAGCMO No. 29, DA HQ, 82d AbnDiv, Ft. Bragg, NC 28310, dated 31 December 2014 (continued)

BY COMMAND OF MAJOR GENERALCLARKE:

DEAN L. TFOLTC (P), IAStaffJudge Advocate

DISTRIBUTION:(2) Accused(1) Reference(1)RecordSet(1) MJ-COL Brunson(1) TC-CPT Otto(1) DC-CPTGrady(1) CDR, HHC, 4BCT(1) CDR, 4BCT, 82d Abn Div(2) CDR, HQ, 82d Abn Div, ATTN: SJA(1) CDR, USAEREC,PCRE-FS, ATTN: Locator, 8899 East 56th Street, Fort BenjaminHarrison, IN 46249-5301(10) ClerkofCourt, ATTN: JALS-CCZ,U.S. AnnyLegal ServicesAgency Building 1450,9275 Gunston Road, Fort Belvoir, VA 22060-5546(10)(1)Provost Marshal'sOffice, 16th MP Bde, Fort Bragg,NC 28310-5000(1) Cdr, USACIDC, 2nd Region,Fort Bragg,NC 28310-5000(1) Cdr, USACIDC, ATTN: CIOP-ZC, Russell-Knox Building, 27130 TelegraphRoad,Quantico,VA 22134(1)Director,US Army Crime Records Center,BldgUS Anny Crime Records Center,27130TelegraphRoad, Quantico,VA 22134(1) Cdr, U.S. Anny Criminal InvestigationLab, Fort Gillem, ATTN: CODIS Lab, 4930 North31st Street, Forest Park, GA 30297(1) HQDA, Office ofthe ProvostMarshal General,ATTN: MP DivisionOperations,2800 ArmyPentagon,Washington DC 20310-2800(1) The PersonnelControl Facility, UIC: W6CSPR,Fort Sill, OK 73503 with confinementat theUnited States DisciplinaryBarracks (USDB),Fort Leavenworth,KS 66027(1) 1-Cdr, DefenseMilitaryPay Office, 2175 Reilly Road, Stop A, Fort Bragg,NC 28310-5000(1) U.S. AnnyHumanResources Command,ATTN: ArmySoldier RecordsBranch(PDR-R)Dept420, 1600 Spearhead DivisionAvenue, Fort Knox, KY 40121-5402(1) Army CorrectionsCommand (DAPM-ACC),150 Army Pentagon,Washington,DC 20310-0150

3

DEPARTMENT OF THE ARMYHEADQUARTERS,82D AIRBORNE DIVIS[ON

. FoRT BRAGG, NORTH CAROUNA 28310

AFVC-JADEC 3 1 2014

MEMORANDUMFOR Commander, 82d AirborneDivision, Fort Bragg, North Carolina 28310

SUBJECT: Addendum to the Post-Trial Recommendationof the Staff Judge Advocate(SJAR)in the Case ofUnited States v. First Lieutenant Clint A. Lorance

1. This addendum addressessubmissionsfor clemencyby the Defense in accordancewith Rulesfor Court-Martial (R.C.M.)1105 and 1106, in the GeneralCourt-MartialofFirst Lieutenant ClintA. Lorance, U.S. Anny, Headquartersand HeadquartersCompany,4th BrigadeCombatTeam,82d Airborne Division, Fort Bragg,North Carolina 28310. The defense in this case has

submittedmatters on behalfofFirst Lieutenant Lorance on seven occasions; eachof thosesubmissionswill be outlined and addressed as required below.

2. In the first clemency submission dated 15 August 2014 directed to the former 82nd AirborneDivision Commander,First Lieutenant Clint A. Lorance says in his personal letter that he wouldbe grateful for any clemency you wouldgrant on his behalf. First LieutenantLorance'sDefenseCounsel, in his thirteenpagesubmission,states that First LieutenantLorance requests you grantclemencyin regards to the attemptedmurder and murder charges. Morespecifically, FirstLieutenantLorance'sDefense Counsel requests that you disapprove all findings of guilty,disapprove the adjudgedsentenceto confinementand dismissal,and allowFirst LieutenantLorance to resign from the Army. In the alternative, First Lieutenant Lorance'sDefense Counselrequeststhat you grant meaningfulclemencywhich would allow First Lieutenant Lorancetocontinue education and veterans'benefitsupon beginninghis life anew. Finally, Fimt LieutenantLorance'sDefense Counsel relays requestson behalfofFirst LieutenantLorancethat you talkwithhim personally on video-teleconferencing (VTC) or Skype and he requests on behalfofFirst LieutenantLorance's family that you meet with them in personbefore takingaction on thiscourt-martial and also review nine (9) electronic pages ofpersonal family photos.

3. In a supplementalclemencyrequestdated 24 October 2014 addressedto you, First LieutenantLorance, through his Defense Counsel,requested that the StaffJudge Advocaterecommendcorrectiveaction on the legal errors, findingsof guilt and the sentence. Additionally, a requestwas made that you disapprove all findingsofguilty, disapprove the adjudgedsentence toconfinement and dismissal and allow First Lieutenant Lorance to resign from the U.S. Army. Inthe alternative,First Lieutenant Lorancerequeststhat you release him from confinementimmediatelyand grant clemency which would allow him to continue education and veteran'sbenefits upon beginninghis life anew. In the supplementalclemencymatters First LieutenantLorance's family renewed their requestto meet withyou in person and First Lieutenant Lorancerenewed his request to meet with you via VTC.

AFVC-JASUBJECT: Addendumto the Post-TrialReconnnendationof the StaffJudge Advocate (SJAR)in the Case ofUnited States v. First LieutenantClint A. Lorance

4. In a second supplementalclemency submission dated 15 November2014 First Lieutenant

Lorance'sdefense counsel alleged two additional assigmnentsof error. First Lieutenant

Lorance's defense attomeyalleged that the governmentmay have failed to disclose1) e-mailsthat may havebeen preservedpursuant to a law enforcementrequest and subsequently used forlaw enforcementpurposes, and 2) derogatory infonnationon witnessesobtained from criminalbackgroundchecks. I disagreewith both these allegationsof legal error.

5. In a third supplemental clemency request dated 30 November2014 with a SubjectLinereading"Rule for Courts-Martial(RCM) 1102 Motionto the Convening Authority- NewlyDiscoveredEvidence in United States v. Clint A. Lorance, First Lieutenant, 1" Platoon, C Troop,4-73 Cavalry, 4* Brigade CombatTeam, 82"d AirborneDivision, US Army"First LieutenantLorance's defense submits two additional allegationsof legal error: 1)counseloutlines elevenalleged piecesof "newly discoveredevidence"that werenot consideredat trial and twenty-threealleged instances of the government's non-disclosureof information favorable to the defense. Idisagreewith both these allegations of legal error. First Lieutenant Lorance's defense counsel 1)urges the StaffJudge Advocate to recommendcoirectiveaction on these errors as well as the ten

prejudicialerrors previously identified, 2) asks you, as the ConveningAuthority, to disapprovethe findings, the sentence, and allow 1LT Lorance to resign honorablyfrom the U.S. Army, 3)offers to meet with us to discuss these important matters before action, and 4) requeststhat in the

event you do not believe the newly discoveredevidence invalidates the court-martial entirely,notify the defense and provide them the opportunityto prepare and file appropriatepost-trialmatters, includingbut not limited to a fully-developedR.C.M. 1102 motion with the ConveningAuthority seeking a post-trial Article 39(a)session in front ofa militaryjudge,a U.C.M J Article60, R.C.M. 1107 requestfor rehearing,and/or a request for a new trial.

6. A fourth supplementalclemency request is dated 17 December2014. In this submission thedefense counsel informsyou that the Criminal Investigation Command (CID) denied hisFreedomof InfonnationAct (FOIA) request for the completeReportof Investigationpertainingto First LieutenantLorance. He requests that you direct CID to releasethe report

7. A fifth supplementalclemency request is dated 18 December2014. In this submissionthedefense counsel asserts that an investigationinto suspectedmisconduct by the formerChiefofMilitaryJusticeat 82d AirborneDivision during 2012 and 2013 and now pending court-martialproceedingsis relevant to the pending clemency requests. He requeststhat you provide any andall documents relating to the AR 15-6 investigation, UCMJ Article32 investigation, and alliedpapers relating to the officer's tenure as ChiefofMilitary Justice and the pending court-martial.

8. A sixth supplemental clemency request is dated 22 December 2014. In this submission thedefense counsel alleges additional newly-discovered_informationpurportedly linkingmilitary-aged males to dozens of IED emplacements,events,and IED cells throughout Kandaharprovince. The submissionstates that a "roll call release"is attached, but no such documentwasattached. Defensecounselalso renews his request for the release of the CID investigationandrelevantdocumentsrelating to the formerChiefof Justice at the 82nd AirborneDivision during2012 and 2013.

2

AFVC-JASUBJECT: Addendum to the Post-TrialRecommendationof the StaffJudge Advocate(SJAR)in the Case ofUnited States v. First LieutenantClint A. Lorance

9. AllegedLegal Errors: First LieutenantClintA. Lorance, throughhis Defense Counselallegesnumerouslegal errors in the conductofthe court-martial. Defensecounsel in their thirdsupplemental clemency request notes that there are ten material legal errors alleged in the case;taken together with the other submissions, there are fourteen allegationsof legal error. Theallegationsare: 1) the guilty findings for attemptedmurderandmurder are legally and factuallyinsufficient;2) there are fatal variancesbetween the allegations and the evidence at trial forattemptedmurder,murder, and discharging a firearmoffenses; 3) the guilty fmdings forcommunicating threats and obstructing justice are legally and factually insufficient; 4) there wasillegal Article 13 pre-trialpunishment; 5) the militaryjudge failed to provide the panel with all ofthe instructions, to include instructions on witnesseswho receivedimmunity, the lesser includedoffenses, and the affinnative defense ofjustification;6) lead DefenseCounsel was ineffective; 7)the militaryjudge failed to instruct the panel that the intentto inflict greatbodilyharm or whileengaged in an act which is inherentlydangerous to others and evincesa wantondisregard forhuman life are not sufficient for attempted murder; 8) allegationsofeleven piecesof "newlydiscovered evidence"; 9) twenty-three allegationsof the government'snon-disclosureofinformationfavorable to the defense; 10)government'sfailure to disclose e-mails that may havebeen preserved pursuant to a law enforcement requestand subsequentlyused for lawenforcementpurposes; 11)government'sfailure to disclosederogatoryinformationon witnessesobtained from criminalbackgroundchecks; 12)improperargumentby the trial counsel on page855 of the Record ofTrial; 13)specifications with allegationsrelatingto persons "ofAfghandescent" are constitutionally invalid for notice and doublejeopardypurposes; and 14)unlawfulpost-trialprocessing delay. I disagree with all allegations of legal error except the finalallegation regarding post-trial processing delay. I agree that post-trialprocessing delayamountedto legal error in this case. In accordance with U.S. v. Moreno, to compensate FirstLieutenantLorance for this violationI recommendreducing the periodof confmementby sixmonths.

10. I now recommendthat you only approve so much of the sentenceextendingto forfeitureofall pay and allowances,confinementfor 19 years 6 months and dismissalfi·om service andexcept for that portionof the sentence pertaining to dismissal fi·om the service, order it executed.

11. I recommend that you deny the request for oral presentationsand for noticeand opportunityto submit a request for post-trial proceedings. TheproceduresunderR.C.M. ChapterXII,Appeals and Review, allow for oral presentations and proceedingsaddressing the.allegationsoflegal error raisedby defensecounseland the accused. Ifyou detennine that oral presentationswould not further the interests ofjustice, mission requirements,or other appropriatereasons, indetenniningclemency, you properlymaydeny the request.

12. I recommendthat you deny the request that you direct the U.S. Army Criminal InvestigationCommandto providea copy of the investigationreport to defense counsel. The defensecounsel's request for a copyunder the Freedom of Information Act properlywas addressed tothat command,and redress for the denial he received properlyis addressed through its appealprocesses.

13. I recommendthat you not act to deny or grant the request to provide investigation and court-martial documents related to the allegationsagainstthe formerChiefofMilitaryJustice. The

3

AFVC-JASUBJECT: Addendum to the Post-TrialRecommendationof the StaffJudge Advocate (SJAR)in the CaseofUnited States v. First Lieutenant Clint A. Lorance

case has been handledby Headquarters,XVIII Airborne Corps and Fort Bragg, and the request

properly is addressed to that headquarters and its servicingFreedom of InformationAct office.

14. You are advised that in additionto the ResultofTrial and mypost-trial recommendation,you must considerall written post-trialmatters submittedby the accused and counsel indeterminingwhat action to take in this case. I have attached the Record ofTrial for your review.

26 Encis DEAN L. ITFO1. Memo from DC, dtd 15 August2014 LTC (P),JA2. HandwrittenLetter from LT Lorance StaffJudge Advocate3. Letter from Anna Lorance4. Table of Contents, Letters5. 92 Letters Requesting Clemency6. 5:45 DVD from Cody Lorance7. Electronic Pages ofPersonal Photos,Awards, and DecorationsviaFLICKRhttp://m.flickr.com/#/photos/clintlorance/8. Onlinepostingsat http://www.change.org/petitions/us-anny-lt-sentenced-to-20-years-

charged-with-murder-for-protecting-his-men-from-taliban9. SupplementalSubmission dtd 24 October 2014, from Mr. John N. Maherand CPT C. Warner10. Email from Counsel Mr. Maherdtd 24 October201411. Letter fromMrs. Anna Lorance dtd 23 October201412. Letter from Mr. TracyLorance dtd 23 October 201413. Letter from Mrs. Alta Monroe dtd 23 October201414. Letter from Ms. Rose Lipscomb15. Attachments to Mrs. Rose Lipscomb'sLetter (withher handwrittennotes and highlighting)16. Second-Supplemental Submission dtd 15 November2014 from Mr. John M. Maher17. Third-SupplementalClemency Submissiondtd 30 November 2014 from Mr. John M. Maher18. Fourth-SupplementalClemencySubmissiondtd 15 December2014 fromMr. John M.Maher19. Fifth-Supplemental ClemencySubmission dtd 18 December2014 from Mr. JohnM. Maher20. Sixth-SupplementalClemencySubmissiondtd 22 December2014 from Mr. John M. Maher21. Emails from Mr. Gary Sinise to GEN John Campbell, dtd 24 November201422. Letter from Mr. Richard Timothy Leever, dtd 2 December 201423. Letter from Mr. Bob Rettie, dtd 11 November201424. StaffJudgeAdvocate'sRecommendation25. Report ofResultofTiial26. Record ofTrial

4

JOHNN. MAHERAttorney-at-law

2033 West Roscoe Street * Chicago,Illinois 60618 * johnmaher8724@hotmailcom* (312) 804-9912

MEMORANDUMTHRU Staff JudgeAdvocate,82"d Airborne Division 10 January 2015

FOR CommandingGeneral, Headquarters, 82"d Airborne Division

SUBJECT: Rule for Courts-Martial (RCM) 1107 Request for Modification of Initial Action in UnitedStates v. Lorance

1. BACKGROUND. Major General (MG) Clarke took initial action on this case 31 December 2014.RCM 1106 provides the defense 10 days from the date of service of the action to present commentary onany "new matter" the Staff Judge Advocate(SJA) may raise in his Addendum.Accordingly, the record oftrial should not be forwarded for review until that timeframe has elapsed. RCM 1107 empowers the

convening authority to "recall and modify any action at any time prior to forwarding the record forreview."

2. REQUEST.We respectfully request that the SJA recommend and that MG Clarke recall and modifythe initial action. This request is based upon evidence discovered after trial, afterMG Clarke's action, butbefore the record has been forwarded.The evidence is detailed in Appendices A, B, and C. At all timesrelevant, the information in Appendices A & B has been in the government's possession and retrievableby a relatively straightforwarddatabase search.

3. THE BASES FOR THIS REQUEST. The prosecution is duty-bound to disclose to the defense

exculpatory evidence. Exculpatory evidence is that which is favorable to the defense and material toeither guilt or punishment.The evidence offered here by the defense identifies the Afghan military-aged-males on the field that day to include the three motorcycle riders 1LT Lorance was convicted ofmurderingand attempting to murder. It associates each with improvisedexplosive device (IED) eventsand terror networks in Kandahar provinceduring the relevant timeframe.To date, the prosecution has notdisclosed these identities. Nor has the prosecution disclosed their affiliations with bombings and terrornetworks. That 1LT Lorance did not get a fair trial is made clear where the prosecution argued in closingthat there is "no suggestion" that the alleged victims were Taliban. (R. 855). As it turns out, there is a

good bit suggesting that they were/are associatedwith terror. Because the prosecutionfailed to turn overthe evidence but instead urged the jury that the evidencedid not exist at all, this is legal error. The legalerror is so momentousthat the law requires a new trial. U.S. v. Bagley, 473 U.S. 667 (1985).

a. CONSTITUTIONALLEGAL ERROR. Generally, where a federal government prosecutionfails to disclose exculpatoryinformation it violates the 5* AmendmentDue Process Clause of the UnitedStates Constitution. This type of legal error is so significant that an entire body of law has developed

around it called "the Brady doctrine" after a widely known Supreme Court holding, Brady v. Maryland,373 U.S. 83 (1963). The United States SupremeCourt has long held that the remedy for a Brady violation

- the failure to disclose exculpatoryinformation - is a new trial. Strickler v. Green, 527 U.S. 263 (1999).And, the Brady process is not just for pre-trial. The prosecution has an ongoingconstitutionalobligationto turn over all Brady material wheneverthey find it. Imblerv. Pachtman,424 U.S. 409 (1976). Here, theinformation the defense has acquired after-the-fact casts serious doubt on the correctness of theconvictionsand the sentence, but it was never disclosed.

b. PROSECUTION'S KNOWLEDGE. Sharing Brady material is so fundamental to a fair trialthat the courts have held that the prosecutiondoes not have to have actual knowledgeof the evidence tocommit a Brady violation. Giglio v. United States, 405 U.S. 150 (1972); United States v. Mahoney, 58M.J. 346 (CAAF 2003). What is more, the governmenthas an affirmative duty to learn of any favorableevidence known to the other people and agencies acting on behalf of the government.Kyles v. Whitley,514 U.S. 419 (1995). A reasonable prosecutorwould have coordinated with the CID and/or intelligenceofficers to conduct relatively straightforward database searches to identify purported victims andwitnessesand theiraffiliations.

Request for Modification of Initial ActionJanuary 10, 2015Page 2

c. RULE FOR COURT-MARTIAL & REGULATORYERRORS.RCM 701(a)(6) requires, evenin the absence of a defense counsel request, that the prosecution disclose, as soon as practicable,"evidence which reasonably tends to negate guilt; reduce the degree of guilt; or reduce the punishment."AR 27-26 goes further and states that prosecutors "will" disclose this type of evidence. Here, that thepurported victims are associated with terror reasonably tends to negate ILT Lorance's guilt, reduce thedegree of any guilt, and reduces any punishment. The prosecution has the opportunity to correct these

critical legal errors by acknowledgingthem for what they are and recommending correctiveaction.

d. BURDENS OF PRODUCTIONAND PROOF.Because these legal errors are of constitutionalimportance,we do not get as far as assessing whetheror not 1LT Lorance's conduct was right or wrong.The court-martial should not have begun without this important information having been disclosed. The

government took over one year to bring this case to court-martial. Additionally, it is not the defense'sburden to produce the evidence now presented.Nor is it the defense's obligation to prove conclusivelytheevidence now presented.These burdens always remain with the government.What is central to this issueis that armed with this knowledge,the command may have decided differently and/or the jury would havedecided differently. Now that the government has actual knowledge of this Brady material, it is well-positioned to honor its obligations to do justice and follow the Constitution's requirements bydisapprovingthe findings and the sentence as the result of an incompleteinvestigationand flawed trial.

4. SUMMARYOF THE BRADYMATERIAL.

a. APPENDIX A. The Criminal InvestigationDivision (CID) interviewedAbdul AHAD on thedate of the shootings. He identified the three men on the motorcycle as his uncle, Haji KARAMULLAH(attempted murder), his brother GHAMAI (murder), and his father Mohammad ASLAM (murder). He

also stated that his cousin Jam MOHAMMAD was killed and his brother-on-law,MohammadRAHIMwas shot in the arm in the second engagement (l" Platoon shot them after observing ICOM radio use -consistent with scouting). When the CID interviewed Haji KARAMULLAH, he stated that he knewAbdul AHAD. Page 3 of AppendixA graphicallydepicts these relationships in a link-chart.'

b. ABDUL AHAD. What the CID did not discover, or what to date remains undisclosed to thedefense, is that Abdul AHAD was incarcerated at the Detention Center in Parwan, released in 2009, and islinked to four separateIED events spanning 2010 -2013.

c. HAJI KARAMULLAH. lLT Lorance stands convictedof attemptingto murder this man as thethird rider from the motorcycle. What the governmenthas not disclosed is that he is linked to a commonIED event with AIDULLAH which occurred in August 2012 in the Zharay district of Kandahar.AIDULLAHis linked to 14 other IED events in the area of operations.Page 7 of AppendixA graphicallydepicts KARAMULLAH'sassociation to AIDULLAHand 6 other IED emplacers.

d. GHAMAIABDUL HAQ. Clint stands convictedof murderingthis man, one of the motorcycleriders. What the government has not disclosed is that he is linked to a common IED event with Gul NAZI.Gul NAZI is linked to 13 other IED events in the Zharay district of Kandahar. Gul NAZI was convicted atthe Justice Center in Parwan by Afghan prosecutors and Judges. He received a 20 year sentence toconfinement.Not only is he linked with GHAMAI for the common IED event, he is also associatedwithat least 6 other co-conspirators as depicted on page 4 of Appendix A.

The graphical depictions are not intended to be sensational whatsoever.The graphical depictions used here are those known tobe used in the investigation and prosecutionof Afghan males linkedto terrorand violence againstcoalitionforces in Afghannational securitycourts. Further, it is quite possible that additional information remains availableon classifieddatabaseswhichthe governmentstill has access to. The governmentcan and shoulduse this defense after-acquiredinformationand run its ownsearches and fulfill its Brady disclosure obligations which remain outstanding.