DynCorp and Justin Pope
By David Isenberg at IISS June 14, 2012
On June 6 the Detroit Metro Times published an article, Soldier of Misfortune, that deserves much more attention that it has gotten thus far. So let’s take a look at it. What follows relies principally on and borrows heavily from the article.
In 2006, after surviving one tour of duty in Iraq and another in Afghanistan, Cpl. Justin Pope was honorably discharged from the Marine Corps. In 2007 he took a job with DynCorp, a private military contractor providing security at the American embassy in Erbil, Iraq. Pope completed a one year assignment with DynCorp, before agreeing to a second one-year assignment, beginning in the fall of 2008.
What is not disputed is that on the night of March 4, 2009, Pope was in his room at the embassy compound when a single bullet from a 9-millimeter semiautomatic handgun fired at point-blank range entered his mouth, passed through his brain and exited the back of his skull.
But what his family refuses to believe is the official account of that killing, a story of mutual, reckless gunplay detailed in the files of the U.S. District Court in Gulfport, Mississippi. That is where Kyle Palmer, a young man who went to war with Pope and claimed to love him like a brother, pleaded guilty to one count of involuntary manslaughter and was sentenced to three years in federal prison.
As someone with no special knowledge of the case I can’t say who ultimately was at fault but even if you accept the official version, that Pope’s death happened due to reckless horseplay, it still doesn’t speak well for either corporate professionalism or accountability. As the article notes:
Detroit attorney William Goodman, who along with law partner Julie Hurwitz is representing Pope’s family in a recently filed lawsuit, offers a big-picture look at what he sees at stake: a system designed to protect private military contractors such as DynCorp, even if they are guilty of “gross negligence and deliberate indifference to the rights of their employees, peoples of foreign lands and American public officials.”
“Moreover,” he contends, “this system shields private military contractors from any accountability even when an employee is killed while off duty as the direct result of the contractor’s own wrongdoing, or is killed by another employee of the contractor. This is simply outrageous. Even more disturbing, it extends the immunity that was once reserved to the government, to private corporations, even further reinforcing the notion that we are ruled not by a democratic government but, rather, by avaricious private interests.”
Pope’s family, sickened by the official account of his death which paints him as an irresponsible participant in his own demise, went to court once already in an attempt to force the discovery of information they hope will shed new light on what happened that night in Iraq a little more than three years ago. That first suit, filed in federal court, was dismissed last September. The judge ruled, in part, that any right to sue for negligence had been waived when Pope signed his contract with DynCorp. He also determined that the company was shielded by something known as the Defense Base Act, a 1941 law that creates a “federal compensation scheme for defense contractors and employees when such employee suffers injury or death while working outside of the United States.”
Now Pope’s survivors, a group that includes his wife, 11-year-old son, mother, stepfather, brothers and sisters, have launched a second lawsuit, in the U.S. District Court in Detroit.
This time, instead of claiming negligence, it is being alleged that the company and more than a dozen of its employees at the time conspired to cover up what actually occurred the night Pope was killed.
The company isn’t answering questions about the case. When contacted by Metro Times, a DynCorp International spokeswoman responded with this e-mail:
This was an extremely tragic accident that occurred several years ago, after working hours, when personnel were allegedly drinking alcohol in violation of Company policy. Although our thoughts and prayers go out to Mr. Pope’s family and loved ones, the allegations contained within the suit are without merit. Please be advised that the United States District Court for the Eastern District of Michigan fully dismissed a related lawsuit last year.
When I contacted DynCorp I received the same quote.
Although not named in the suit, the U.S. State Department, which investigated the killing, is part of the cover-up, says the family and its attorneys.
The family first learned that something bad had happened to Justin when his wife, Ashley, received a call from a DynCorp employee around 5:30 p.m. Detroit time on March 4, 2009, informing her that Justin had been in an “accident” — and that it was serious. A second call informed them that he’d been shot in the “neck,” and that he’d been airlifted by helicopter to a hospital. A third call brought the news that Justin had died.
The next day, two women arrived at Ashley’s home where family members had gathered. They were Anne Boffo and her daughter Natalie. Natalie was Kyle Palmer’s fiancée, and the couple had socialized with Ashley and Justin when they all lived in Jacksonville, N.C., where the guys were stationed at Camp Lejeune.
Anne Boffo’s husband and Natalie’s father, Michael Boffo, is a former Marine who, at the time, was project manager for DynCorp International’s protective services unit in Iraq. According to court records, he supervised a group of 151 people. Included in that number were Kyle Palmer and Justin Pope.
It was through their connection to Michael Boffo that Kyle and Justin went to work for DynCorp. Kyle had two previous drunk driving arrests that had to be expunged from his record before the company would hire him. When the Boffos arrived, Ashley didn’t yet know it was Palmer who had shot and killed her husband. In fact, other than learning that he’d been shot, she had no information about how he died.
The next to arrive was DynCorp employee Mike Kehoe who’d flown to Michigan from Iraq. Ashley says Kehoe initially told her that Justin was alone in his room when he died.
“He asked me if Justin had been depressed about anything,” Ashley recalls.
The implication, she says, was that Justin might have committed suicide.
No one in his family believed that to be remotely possible.
Then the story changed, says the family. Justin was cleaning his weapon, they were told, and it accidentally misfired. Family members say they immediately dismissed that possibility as well. Justin, they say, had an intense concern regarding firearm safety.
Kevin Pope, Justin’s oldest brother, made handwritten notes as events unfolded. Among other things, he remarked about how Keho had shown up with paperwork for Ashley to sign. There were two insurance policies — one for $250,000 and other for $50,000 — that had to be processed.
“Mike [Kehoe] also said it would be probably two or three more days before we would have word on how he died.”
That claim was made even though court records would reveal that State Department investigators, who were in the area working on another case, were on the scene within an hour.
Palmer showed up in Michigan four days after the shooting to attend services for his friend. It was then that he confessed to Ashley that he was somehow involved, but that he had been too drunk at the time of the shooting to have a clear recollection of it. He did remember seeing someone else’s hand on the gun.
According to Kevin Pope’s contemporaneous notes, “Sunday the 8th Palmer was here in the Courtyard Marriott where I met him in the afternoon. I talked with Palmer alone in the hotel room. … He said both of their hands were on the gun. He said he was convulsing after that. He said he thinks Justin only had one Corona. I think he made it sound like he had a lot more to drink. He did say there was another guy in the room.”
Three days later Kevin wrote: “Palmer and Natalie came to Ashley’s on Wednesday night the 11th around midnight. I asked Palmer how long Justin’s blood was pumping after he was shot. Palmer answered that he didn’t remember anything until he woke up several hours later. … I told Palmer my brother loved him and I do too. I told him I forgive him if he’s living with guilt and he told me it means a lot.”
However, the stories being told to the family kept changing. They say now that it is difficult to keep track of all the versions of Justin’s death that were presented to them by both Palmer and DynCorp officials. The scenario evolved from Pope being alone in his room to him being there with Palmer and “possibly” one other person to there being a room full of people.
It wasn’t until Palmer, fired from DynCorp because of the killing, was back in the United States, in Gulfport, Miss., that investigators were able to extract a confession from him. He was charged with involuntary manslaughter, a felony that carries a maximum prison sentence of eight years. Under the original plea agreement, prosecutors agreed to request that Palmer serve no prison time whatsoever. Five years of supervised probation would be his penalty.
Before sentencing, the prosecutor read into the record what he says the government would be able to prove if the case were to go to trial.
The defendant and Pope were close friends who had served together in the U.S. Marine Corps during the battle of Fallujah back in Iraq in 2005. Both had been trained as snipers and were well versed in firearms, including their function and procedures for safely handling weapons.
The evidence would also show that in the late evening hours of March 4th and continuing into the early hours of March 5th of 2009, an informal party or get-together was taking place at Justin Pope’s embassy-provided residence inside the State Department embassy compound in Erbil. Pope, the defendant, and others had been escorting the U.S. Ambassador to Iraq during the day.
There were approximately eight to ten contractors in this small bedroom. Most had consumed alcohol. Indeed, the defendant had drank two bottles of wine, several beers, and some whiskey by himself before and during the party. The defendant himself believed that he was so drunk that he would not have been able to legally operate a motor vehicle. Pope was not drunk that night, and some people present believed he may have had one beer, but a toxicology report reflected there was no alcohol present in Pope’s system at the time of his death.
During the party, Justin Pope and the defendant had engaged in some playful and friendly wrestling on Pope’s bed. After that wrestling had concluded, the evidence would show that the defendant [Palmer] went to a bed at the opposite end of the room and stood there while Pope went to his desk. From his desk, Pope retrieved his 9-millimeter Glock 19 handgun. The evidence would show that Pope then went over to the bed where the defendant was standing. Pope pulled back the slide of his Glock handgun at least once, expelling an unfired round of ammunition. The defendant never saw Pope removing the magazine from the weapon, and the action, in the absence of seeing the magazine removed, made it clear that the gun was in fact loaded.
Pope then began to dance on the bed with the defendant while Pope was waiving the gun around. Justin Pope, in a joking manner, pointed the gun at the defendant’s head. So the evidence that the government would have collected would show that this was consistent with a game that is sometimes played with a semiautomatic handgun among Marines, a game sometimes referred to as a “Trust Me” game, where a loaded handgun is pointed at a friend and the friend is expected to trust the possessor of the weapon not to shoot him.
After that pointing of the weapon at the defendant, the defendant and Pope began wrestling, although not wrestling for possession of the gun, but friendly wrestling. After that wrestling concluded, the defendant at some point took the firearm from Pope. Then, as Pope had done, the defendant at some point took the firearm from Pope. Then, as Pope had done, the defendant pointed the gun at Justin Pope’s head. Witnesses are prepared to testify that Pope then said, in substance and in part, either ‘Do it’ or ‘Pull the trigger’ or something in that manner.
The defendant, still extremely intoxicated, pulled the trigger of the gun without checking to see whether the gun was loaded. The gun discharged a bullet, and the bullet struck Justin Pope in the head. Justin Pope collapsed on the bed. Although others in the room immediately provided medical assistance and attention and Justin Pope remained alive for a short period of time, he died soon after without regaining consciousness.
Pope’s family members say the official version of Justin’s death is as far-fetched as the stories that he’d possibly killed himself, or that his gun had accidentally misfired while being cleaned.
Which is why, after their first lawsuit had been dismissed (which they are appealing, acting as their own lawyers), they found new attorneys and are trying to get back in court again. Because this, in essence, is what they are being asked to accept: that a stone-cold sober Justin Pope — a guy who had never been anything less than intense about handling firearms safely — danced around waving a loaded pistol, and then “playfully” wrestled with another man while holding the weapon. And then, the most incredible part: that he would take that gun, knowing it was loaded, and hand the weapon to a guy wasted on alcohol and, with that gun maybe three feet from his face say, “Go ahead, pull the trigger.”
Aside from the family’s disbelief based on Justin’s character, there is an autopsy — conducted by the Armed Forces Institute of pathology in Rockville, Md. — that appears to call into doubt that official version of events.
As part of the first lawsuit, forensic pathologist Dr. Werner Spitz reviewed the autopsy report and a CD containing photographs of the body. In a sworn affidavit, Spitz reported that “in addition to the injuries directly associated with the gunshot wound, Justin suffered bruising in the upper eyelid, bridge of his nose, inside of his upper lip, outside of his left arm and the back side of his right hand as well as two fractured teeth.”
That raises the possibility that the “playful wrestling” described by the prosecution may really have been a fight.
Also of concern to the family is a conversation they say took place with State Department investigator Scott Banker and prosecutor David Jaffe at the U.S. federal building in Detroit just before the official version of events was presented to the court in Mississippi.
The family was told in that meeting that the truth of what happened might never be known because the DynCorp employees present when the shooting occurred either weren’t talking or were providing conflicting stories.
If the government wasn’t sure what the truth really was, why didn’t they press on with the investigation? The family says they have never been given an answer to that question.
The fact that it makes no sense is what has the family searching for a more plausible explanation.
One possibility says Pope’s mother, is that her son had a problem with something that had occurred among members of the security detail, or was concerned about something improper involving DynCorp.
She says that, shortly before his death, Justin told her he was considering asking for a transfer to a new assignment in Pakistan, even though that job would pay less than the one in Iraq. She says too that he seemed troubled by something on his last visit home a few weeks before he died.
Meanwhile while many people who worked with Kyle Palmer wrote letters testifying to his good qualities there is, however, another side to Palmer that isn’t revealed in these letters. It is a side of him captured on a video camera while he was still working for DynCorp in Iraq. Kevin Pope found it on his brother’s laptop computer when it was returned to the family after Justin’s death. It is a video posted on YouTube showing yet another party taking place among DynCorp employees at their Ebril quarters. Kyle is in that video — which features some raucous beer-bonging — even though alcohol consumption was, officially anyway, strictly prohibited.)
The video found on Justin’s computer was provided to the judge in Mississippi. It too is part of the court record. At the start of the five-minute recording, Palmer is clearly pictured. The cameraman sounds to be drunk, hiccupping frequently before putting the camera down before leaving the room because he has to “go pee.”
The camera continues to roll, but the screen goes dark. What gets captured, however, is the audio, resulting in a sort of theater of the absurd.
Palmer is clearly wasted, and one of his co-workers is trying to assist him.
There are two voices, one of which Pope’s family says is clearly Palmer’s. It’s not known who is trying to help him as he lays in bed, a trash can placed alongside in case he has to vomit.
“Stop touching me now,” Palmer says.
“Why are you so fucked up?”
“I’ll kill you now,” Palmer says.
“I’m going to fuckin’ fuck you up now.”
It goes on in that vein for a few minutes, with Palmer telling the man who’s trying to help him that he “smells like a nigger.” The man starts jabbing him.
“Goddam it, quit hitting me in the ribs,” Palmer yells.
“It’ll be a lot worse if you keep that up,” is the reply.
After a few more minutes someone else enters the room and you hear Palmer say, “Ah, shit, the boss man. We’re fucked now.”
“Just hit the can,” says the new voice, apparently that of a supervisor.
“Leave me alone,” Palmer says.
“It’s happened to me more than once,” the supervisor says, laughing.
And then, apparently referring to the assignment completed earlier, “Good fucking job tonight guys. Good fucking job.”
He then notices the camera.
“Don’t leave that on,” he says.
“Oh, shit,” says the other man.
And then it ends.
The article concludes with this, “Avoiding a trial has been the sole objective of DynCorp and they have changed their explanation of this tragedy several times. They continue to resist any testimony that might reveal the truth.”
Even if one believes that Pope was killed due to the horseplay between him and Palmer that leaves other questions unanswered. For example, why would DynCorp even hire someone with two drunk driving arrests on their record? Is that what DynCorp calls doing due diligence when vetting prospective employees? And what were DynCorp supervisors doing in terms of checking for alcohol, which never should have been there in the first place?
Also, I am not a lawyer, but Pope’s employment agreement with DynCorp (as mentioned in the case dismissal last September) states:
The Employee understands and accepts the fact that he or she will be exposed to dangers due to the nature of the mission. The Employee agrees that neither Employer nor its affiliates will be liable in the event of death, injury, or disability to Employee. Employer will obtain the insurance described in Attachment A on behalf of the Employee and the Employee agrees to accept these insurance benefits as full satisfaction of any claim for death, injury, or disability the Employee or the Employee’s representatives and heirs may have against Employer and its affiliates.
But if DynCorp supervisors were negligent in allowing alcohol use at their facility when it was banned is that not a “danger” that DynCorp created? After all, even the judge, while dismissing the suit, conceded that Pope’s death occurred during the course of DynCorp employment:
With respect to whether his death occurred in the [*25] course of employment, Pope was in Iraq at DynCorp’s premises based on the “obligations” and “conditions” of his Employment Agreement. See O’Leary, 340 U.S. at 507. Pope had just returned from his shift for the day and was positioned in his room provided by DynCorp on DynCorp’s premises. He was placed in a “zone of special danger” in which an accidental shooting by Palmer occurred based on such “obligations” and “conditions” of Pope’s employment with DynCorp. See id. Whether Pope and other DynCorp employees were participating in recreational activities is irrelevant as it is not necessary that Pope be engaged in an activity for the benefit of DynCorp at the time of his killing. See id. Therefore, Pope’s death occurred within the “course of his employment.” Accordingly, Pope’s death is one which is covered by the DBA.
Furthermore, even though this suit was dismissed it raises important questions, which to my mind have yet to be answered, such as:
a. Failure to ensure that the gun was properly unloaded and stored away from individuals.
b. Improperly allowing DynCorp individuals to consume alcohol and be under the influence of alcohol on DynCorp property.
c. Improperly allowing DynCorp to pull their loaded weapons on DynCorp property.
We should also note that even though that the federal suit was dismissed it didn’t exactly absolve DynCorp of wrongdoing. It didn’t say that Pope was at fault or that DynCorp was innocent. What it did say was this:
Defendants’ Motions for Summary Judgment are essentially identical with respect to their substantive arguments. They seek dismissal of Plaintiff’s action for two reasons. First, Defendants argue that the DBA and Longshore Act bar Plaintiff’s wrongful death suit against DynCorp and Palmer. Second, Defendants alternatively argue that the Employment Agreement contains a liability waiver provision barring Plaintiff from bringing any claim against DynCorp and Palmer for the death of Pope.
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