FILE - This 2018 file photo provided by Andrea Gallagher shows her husband, Navy SEAL Edward Gallagher, who has been charged with murder in the 2017 death of an Iraqi war prisoner. Lawyers for Gallagher are seeking to have the charges dismissed for alleged prosecutorial misconduct. Attorneys for Special Operations Chief Gallagher are scheduled to argue in military court Wednesday, May 29, 2019, that the case against him has been tainted by lies, withholding evidence and conducting surveillance on the defense. (Andrea Gallagher via AP, File)

Judge refuses to toss war crimes case over misconduct claims

June 07, 2019 - 7:13 pm

SAN DIEGO (AP) — A military judge refused to dismiss one of the Navy's most prominent war crimes cases Friday, only days after he removed the lead prosecutor amid allegations of misconduct.

Capt. Aaron Rugh, however, did find meddling by prosecutors and investigators troubling enough to reduce the maximum penalty Special Operations Chief Edward Gallagher could face if convicted of premeditated murder.

Gallagher had been facing life without parole if convicted. But Rugh said he would impose no penalty greater than life imprisonment with the chance of parole.

Defense lawyers argued for the case to be dismissed after discovering prosecutors secretly tracked their emails without court approval.

Rugh found the intrusion cast doubt on whether Gallagher could get a fair trial and "placed an intolerable strain on the public's perception of the military justice system."

Gallagher is scheduled to go to trial June 17 on murder and attempted murder charges.

On Monday, Rugh removed the lead prosecutor, Cmdr. Christopher Czaplak. He said it was not within his power to determine whether Czaplak engaged in misconduct, but the potential for a probe into his actions could present a conflict and required his removal.

It is extremely unusual for a military judge to remove a prosecutor only days before the start of a trial. The military justice system has won few war crime convictions and been criticized for being ineffective.

Last week, Rugh unexpectedly released Gallagher from custody as a remedy for interference by prosecutors in the middle of a hearing that also included accusations they withheld evidence that could help his defense.

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Melley reported from Los Angeles.

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