Judge refuses to dismiss court-martial for conscientious objector
Thursday, August 14, 2003   

NEW ORLEANS -- A judge declined on Thursday to throw out the Marines' case against a conscientious objector who claims he is being court-martialed because he publicly criticized the war in Iraq.

Navy judge John A. Maksym also denied Lance Cpl. Stephen Funk's lawyer access to Marine files on who else may have been absent without leave, or AWOL, and how they were punished.

"A mere statement that the accused believed he was specifically targeted is not sufficient to make a showing of selective prosecution or even to compel this court to mandate additional discovery to advance such a theory," Maksym wrote in his ruling, which stemmed from a pretrial hearing on Monday.

Funk's lawyer, Stephen Collier, had noted Monday that a Marine sergeant said the Marines wanted to make an example out of Funk, who attended war rallies and criticized certain Marine training methods in the media.

But Maksym said a sergeant who may have made an inappropriate comment would not have the authority to initial court-martial proceedings.

"There is simply no evidence before the court that anyone with real authority within the Marine Corps or a department of the Navy targeted the accused for prosecution," Maksym said. "In the face of such an anemic showing, this court has no choice but to deny the accused's motion."

Collier said the judge's decision will leave open the question in the minds of many as to whether Funk was treated differently from other Marines who missed training in the months leading up to the Iraq war.

"Now we have no way of knowing for sure," Collier said.

Marine spokesman Capt. Patrick Kerr said Thursday's ruling "reinforced our belief that Funk is guilty of desertion and that we in no way singled him out."

Funk, a Seattle area native, missed 47 days of training with his San Jose, Calif.-based unit last February as it mobilized for the war in Iraq. When Funk turned himself in to the Marines he applied for discharge as a conscientious objector. Funk also made public that he was gay, although he said that was not his reason for wanting to leave the Marines.

Funk was then transferred to New Orleans with other conscientious objectors for processing. But unlike the others, Funk now faces a court-martial in September on the charge of shirking important duty, a charge that could carry up to a year in military prison if Funk is found guilty.

On Monday, the same judge said he would allow Funk to introduce evidence concerning his conscientious objector beliefs. Funk has argued that he was not skipping "important duty" because Marine policy is not to force conscientious objectors to perform combat-related assignments.

The Marines say it was not up to Funk to interpret those rules and that he should have reported for duty when first called because he was under oath to do so.

Funk said the trial, scheduled for Sept. 4, could come down to how "important duty" will be legally defined.

"I think the government is stretching to define a new standard that, whenever there's an activation for any military duty, that is important service," Collier said. "We are in a time when the military increasingly is called to go overseas ... and we could very much see that as a state of perpetual alert, and everyone who misses a call would be considered a deserter. I think that's sort of a dangerous road to go down."


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