Despite a Navy magistrate`s order that he be released, an Army soldier charged in his wife`s slaying remained in the brig Monday after an Army appeal of the judge`s ruling, officials said.
Charles David Garner, who was taken last week to a detention center at Great Lakes Naval Training Center after being flown to Chicago from his base in Germany, was ordered freed pending a possible court-martial on murder and other charges in the slaying last year of his wife in Inverness.
But Army lawyers appealed the release order, saying they had acquired additional evidence to warrant his detention. Under military law, Garner will remain in custody until a second hearing is held within three days to review the Army`s new evidence, said Dan Trew, public affairs officer at Ft. Sheridan.
”Based upon the seriousness of the charges, the Army feels that he`s a risk to others and that he`s also a flight risk,” Trew said. ”Apparently, the magistrate didn`t feel that way.”
Garner is charged in the slaying last Halloween night of his 28-year-old wife, Catherine, who was shot to death in the driveway of her parents` home upon returning from a trick-or-treat outing with her 2-year-old son.
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Shortly after, police arrested Kevin Miller, 20, of Clay City, Ky., and charged him with the murder.
Miller, who is being held in Cook County Jail, allegedly told police at the time that Catherine Garner was killed after his shotgun accidentally went off during a robbery attempt.
Barrington police interviewed Garner, who had spent time in the same howitzer company as Miller, when he returned home on emergency leave after his wife`s death. Saying they had no evidence to detain him, authorities allowed Garner to return early this year to his Army post in Bad Hersfeld, Germany.
But investigators continued to question scores of soldiers who knew Garner or Miller, and military police arrested Garner Friday morning at the base in Germany.
On Tuesday, Col. Robert Frizzo is expected to name an investigating officer to examine the evidence against Garner, the first step in a process that will likely lead to an Army court-martial, Trew said.
Frizzo is the general courts-martial convening authority at Ft. Sheridan. The Army will appoint a defense attorney for Garner sometime this week, Trew said. Garner may also request that a second military lawyer be appointed, and he may hire a civilian attorney as well.
Garner, a specialist fourth class, is charged with murder, conspiracy to commit murder, violation of Army regulations and making false official statements. He could face the death penalty.
A private Chicago lawyer who has represented defendants in other courts- martial said Monday that the accused have the same rights as civilian defendants but that the odds can be stacked in the prosecution`s favor.
For example, Dan Coyne said, only a two-thirds vote of the jury, or panel, is required to convict in military courts, compared to a unanimous decision needed in civilian trials.
Moreover, attorneys in civilian courts have seven peremptory challenges, in which they can dismiss potential jurors for no reason. In courts-martial, lawyers are given only one such challenge.
And even though defendants can ask that court-martial panels include enlisted personnel as well as officers, ”a military panel is not exactly like a jury of your peers,” Coyne said.
”Panels are usually made up of lifer types, and as such most of them . . . will be looking out for the good of the Army or Navy, not the good of the defendant,” Coyne said.
Military lawyers also may feel inhibited in their questioning of witnesses or dealings with a judge, and that can work against the defense, Coyne said.
”While they may not be formally constrained, there really is this undercurrent view that `I can`t scream at a full captain of a ship on the witness stand because someday it`s going to come back to haunt me,` ” Coyne said.
Coyne added, however, that civilian attorneys are often given wide latitude during courts-martial, so much so that their military counterparts sometimes marvel at what the judge allows them.
If found guilty, defendants can eventually appeal to a civilian court, the five-member U.S. Court of Military Appeals. After that, they can appeal to the U.S. Supreme Court.