KANEOHE BAY, Hawaii — A Hawaii-based Marine lance corporal will spend 30 days in jail and have his rank reduced to private first class for punching and kicking a fellow Marine who killed himself shortly afterward, a judge ruled late Monday, saying she found no evidence the abuse led to the suicide.
Lance Cpl. Jacob Jacoby, 21, who pleaded guilty to assault, acknowledged he punched and kicked Lance Cpl. Harry Lew, of Santa Clara, Calif., out of anger and frustration that the fellow Marine repeatedly fell asleep while on watch for Taliban fighters.
The case involves the actions of Marines at an isolated patrol base the U.S. was establishing to disrupt Taliban drug and weapons trafficking in Helmand province.
Jacoby, one of three Marines accused of hazing, told a judge he wanted to talk to Lew to find out why he kept falling asleep and to help him stay awake. But Jacoby said he got angry when Lew spoke to him in a disrespectful manner, even though Lew was putting the lives of the Marines at their patrol base in danger by dozing off.
Squad members and officers had tried different methods to get Lew to stay awake, including referring him up the chain of command for discipline and taking him off patrols so he could get more rest.
But on Lew's last night, when he fell asleep again, those efforts escalated into alleged acts of violence and humiliation, according to the charges. The Marines were accused of punching and kicking him, making him do pushups and pouring sand in his face.
A central issue in the case has been whether the Marines intended to humiliate and harm Lew or discipline him so he would stop falling asleep while on watch duty.
Before Lew put the muzzle of his machine gun in his mouth and pulled the trigger, he scrawled a note on his arm: "May hate me now, but in the long run this was the right choice I'm sorry my mom deserves the truth."
Navy Capt. Carrie Stephens, the judge in Jacoby's special court-martial on Monday, said she found no evidence that Jacoby's abuse of Lew caused Lew to kill himself. She said she didn't take the suicide into account when determining the sentence.
As part of the plea deal, prosecutors withdrew charges that Jacoby humiliated and threatened Lew.
Before sentencing, Jacoby said he was sorry and that he wanted to take responsibility for his actions.
"I allowed my emotions and frustrations to get the best of me, and acted out against a fellow Marine," Jacoby said.
He said he will never forget the pain and humiliation of being court-martialed and believes he can use his experience to help other Marines.
Marine Capt. Jesse Schweig said the government was confident Jacoby is capable of rehabilitating himself.
But the prosecutor asked the judge to sentence Jacoby with an eye on deterring similar behavior. Jacoby should be given a bad conduct discharge, he said.
"If this is how you're going to approach and motivate your peers, then you do not need to be a part of the service," Schweig said in closing remarks at the sentencing hearing.
Navy Lt. John Battisi, Jacoby's attorney, said Jacoby lost his temper and struck Lew. But Battisi argued Jacoby made sure to hit Lew on his body armor where he was best protected.
Battisi also asked the judge to keep in mind the circumstances the Marines were in, and that the chain of command hadn't addressed Lew's sleeping problem and instead had left the issue in Jacoby's hands that night.
"We're asking him to control his emotions and gain emotional maturity in the heat of battle," Battisi said in his closing remarks.
Lew committed suicide April 3 at a patrol base in Helmand province, shortly after the abuse. The 21-year-old was a nephew of U.S. Rep. Judy Chu.
Two other Marines also are accused of hazing Lew before he shot himself with his machine gun in his foxhole. Sgt. Benjamin Johns, the leader of the squad the Marines belonged to, and Lance Cpl. Carlos Orozco III will have their own separate courts-martial later.
Both Marines watched the court proceedings Monday.
Lew's father, Allen Lew, testified during the sentencing hearing that his son wanted to join the Marines because he felt it was "the best."
He said was shocked to hear about his son's death, and his legs buckled when Marines came to his house at 7:30 a.m. with the news in April.
"My son died — I have only one son," Lew said. He said he doesn't understand how Marines could do the things they did to their own.
Chu, D-Calif., attended the hearing. "I want to make sure that there is justice for Harry. And I want to support these brave persons, his parents," she told reporters beforehand.
The attorney representing Johns said he was concerned the presence of a politician will taint the process and interfere with justice.
"How do I get a fair jury? What implicit message is she trying to send to those panel members?" said Tim Bilecki, a defense attorney who specializes in military clients.
Chu said that wouldn't be the case. "I'm not going to be saying anything in the trial. All I'm doing is being here. I'm here for the family to support them," she said.
In September, Chu testified about Lew's death at a House Armed Services hearing on the status of suicide prevention programs in the military. Leaders from the Navy, Army, Air Force and Marine Corps answered lawmakers' questions about identifying service members at risk and other steps they are taking to stop suicides.
The military witnesses spelled out several steps — from sharing information with Veterans Affairs and working with the National Institutes of Health to focusing on peer-to-peer mentoring.