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http://www.bayarea.com/mld/mercurynews/news/6508891.htm
Marine reservist and war objector fights court-martial
By BRETT MARTEL
Associated Press Writer
August 12. 2003 1:42AM
NEW ORLEANS --
A Marine reservist facing a possible court-martial because he skipped training for the war in Iraq will be able to introduce evidence that he is a conscientious objector if he is tried.
A military judge made the ruling Monday in a preliminary hearing for Lance Cpl. Stephen Funk, who is charged with "shirking important duty" for missing 47 days of training with his San Jose-based unit in February.
Marine prosecutor Maj. Mike Sayegh asked the judge to exclude evidence that Funk is a conscientious objector, arguing that it is not relevant to the fact that Funk nonetheless was obliged by his own oath to show up for duty when called.
There are at least 22 other Marine reservists who have declared themselves conscientious objectors to war. All had been transferred to reserve headquarters in New Orleans for processing, but none are being prosecuted, the Marines have said, because they continued to report for duty while their applications for conscientious objector status were under review.
Funk's lawyer, Stephen Collier, said Judge John A. Maksym's denial of Sayegh's motion could be critical to Funk's defense if the case goes to trial because the government is required to prove Funk intended to skip out on duty of a special or important nature.
Collier argued that Funk knew it was Marine policy to assign conscientious objector applicants to duties that do not conflict with their beliefs. Therefore, while Funk perhaps should have reported for training on time, he had no specific intention to "shirk important duty," Collier said.
The Marines argued that the simple act of reporting for training is "important" during war time. The judge decided that argument deserves to be heard at trial.
"I'm not going to manacle the accused" as he tries to defend himself against the charge, Maksym said.
Marine spokesman Capt. Patrick Kerr said Maksym's decision was a small setback for the prosecution, "but the command is confident the charge of shirking important service is absolutely justified in this case and we're hopeful the judge will agree."
"The facts speak for themselves," Kerr said. "Lance Cpl. Funk was mobilized for active duty in support of Operation Iraqi Freedom and he failed to show up for that mobilization when all his other peers in the Marine Corps and all the other services very willingly showed up and agreed to fight for their country."
Funk was at trial and said he was pleased with the judge's ruling on Monday, but his lawyer asked him not to discuss specifics of the case.
Collier also is trying to have the charge dismissed, saying that Funk is being selectively prosecuted because he attended anti-war rallies, publicly criticized certain Marine training methods and publicized soldiers' options of seeking conscientious objector status. Funk also has stated publicly that he is gay since declaring himself a conscientious objector.
Going absent without leave, or AWOL, often is punished by loss of pay or confinement to barracks for a short time. If Funk is convicted, he could face up to a year in military prison and be given a bad conduct discharge.
Maksym said he would rule on the motion to dismiss by Wednesday evening. If Maksym allows trial to proceed as scheduled on Sept. 4, then Collier wants access to marine records and witnesses in an effort to determine how many other marines were AWOL and how they were punished. The Marines have so far denied Collier those records, and Sayegh said the judge should limit Collier to specific requests and not allow a "fishing expedition."
Both sides have agreed that Funk's sexual orientation should not be brought up at trial. Collier, however, asked the judge to allow prospective jurors to be asked whether they knew Funk was gay and whether that knowledge would affect their ability to be fair. Maksym agreed.
It is not known whether any others who applied for conscientious objector status are being prosecuted in other branches of the service. The Center on Conscience and War in Washington, D.C., has no statistics on applications because of privacy issues and because each branch of the service treats the subject differently.