The family of a top Marine who died in a now-disputed suicide is charging that the military botched its investigation into the colonel's 1991 death and may have doctored photographs of the scene.
Col. James E. Sabow's survivors filed a $60-million claim against the military last November, nearly two years after Sabow's death touched off a scandal over the use of government airplanes that led to the dismissal of the commanding general at the El Toro Marine Corps Air Station.
Now, as part of its claim, the Sabow family has raised new allegations against the military, saying that officials rearranged key evidence at the scene of Sabow's death, lost fingerprints and failed to cordon off the site until hours after the decorated pilot's body was found.
Family members have claimed in interviews that the colonel may have been murdered because of what he knew about the widening issue of plane misuse. Their legal brief, filed with the military Jan. 22, never addresses that question directly, but it does seek to punch holes in the military's explanation of what happened to Sabow.
"The incompetence and inadequacy of the investigations which resulted in the loss, obliteration and contamination of evidence has, perhaps, made it impossible to establish the true circumstances of Colonel Sabow's death," according to the documents.
Marine officials at El Toro declined comment on the allegations Monday.
Sabow, 51, an assistant chief of staff at El Toro, was found dead in the back yard of his base home on Jan. 22, 1991. Military investigators concluded that he had killed himself with a 12-gauge, double-barreled shotgun because he was upset over his recent suspension for allegedly using U.S. aircraft for personal trips.
Sabow and the chief of staff at El Toro, Col. Joseph E. Underwood, were suspended for allegedly taking base planes for golfing jaunts and other non-military trips around the country.
The Times later disclosed that the military officer who suspended them, Brig. Gen. Wayne T. Adams, had himself used base planes to sign his divorce papers in Florida, visit his fiancee, and take other personal trips. The disclosures led to Adams' dismissal as commander of the Marines' Western air bases. He has since taken early retirement following a formal censure.
Sabow's family has denied that the colonel did anything to warrant his suspension. While some military officials have questioned the family's relentless pursuit of the case, the Sabows defend their actions.
"The military let this man down before his death, and they've let his family down after his death," said John David Sabow, the victim's brother, a South Dakota neurologist who said the family has spent $100,000 on lawyers, investigators and other expenses in the case.
The military has until April to rule on the Sabow family's claim, lawyers for both sides have said. If it is rejected, the Sabows will be able to pursue a civil lawsuit against the military in U.S. District Court, but legal specialists say their effort may be hindered by federal law making the government immune from liability in cases of active personnel injured or killed.
The family's latest legal filing offers its most detailed description of the events surrounding Sabow's death and raises several new issues to support the claim that the military mishandled the case.
The most potentially damaging allegation centers on photographs taken at the death scene.
The brief maintains that when investigators arrived at the scene, they first found Sabow's body lying on its right side, with a lawn chair tipped over two to three feet behind him.
But photographs taken by investigators and given to the Sabows show the chair lying on top of Sabow, the claim alleges. The Sabows maintain that military personnel rearranged the chair and the body in a "misleading" reconstruction of the death, the brief says.
Paul D. Copenbarger, the family's attorney, declined to discuss the basis for this claim, but John David Sabow said the family has obtained several sworn affidavits from eyewitnesses who were at the scene and allegedly saw the evidence rearranged.
The military's photographs also inaccurately reflect the original placement of a carton of ammunition in the Sabow garage, the claim says. The family maintains that the location of the ammunition could prove critical in determining whether Sabow had enough time to kill himself.
Gene Wheaton, a former Army investigator who is working as a consultant for the Sabows, said he was chagrined by the disclosures. "It's improper conduct to go in and dummy up a site and take pictures of things that were not the way you found them," he said Monday in an interview.
The claim also alleges that a Naval Investigative Service agent who was not wearing gloves grasped the shotgun that killed Sabow, thus tainting the evidence. And investigators waited several hours before sealing off the Sabow home, allowing myriad military personnel access to the scene, the documents claim.
Copenbarger was reluctant to draw formal conclusions from the allegations, except to say the military mishandled the case from the start.
"Why it was done, with what motive, with what purpose, I can't say," the lawyer said. "I am not saying that Col. Sabow was murdered, and I am not saying anyone did it. But if and when it is determined with persuasive evidence that he was murdered, we would not shrink from that conclusion."