A federal appeals court Wednesday handed a partial legal victory to a family fighting to prove that a former base commander at El Toro Marine Corps Air Station covered up evidence that a decorated Marine colonel was murdered in 1991.
In a decision that criticized the military's investigation as "unprofessional," the 9th Circuit Court of Appeals ruled 3-0 to reinstate a portion of a lawsuit filed by the family of Col. James E. Sabow.
Sabow's widow and brother refuse to believe the military's claim that Sabow killed himself because he faced allegations of wrongdoing, including using military aircraft for personal business. Sabow's survivors contend he was murdered because he discovered military officials illegally importing drugs and exporting weapons.
"We're going to court now, and we're going to get them," said Dr. David Sabow, a South Dakota neurologist who has spent the last six years personally investigating the death in the hopes of clearing his brother's name. "This is a great victory for us."
Military officials could not be reached for comment. Assistant U.S. Atty. Julie Zatz, who is handling the case, said she has not seen a copy of the court's ruling.
The lawsuit accuses the military of conducting a slipshod investigation and alleging the then-base commander, Brig. Gen. Wayne T. Adams, mistreated the family and tried to intimidate them when they questioned the suicide finding.
U.S. District Judge Alicemarie H. Stotler dismissed the suit after military officials argued the court had no jurisdiction over the case. The Sabows appealed.
The appeals court affirmed the family's right to sue over Adams' alleged efforts to intimidate the family.
"United States Marines are justifiably proud of many moments in more than two centuries of service. . . . The Corps' treatment of the Sabow family following the Colonel's death was not one of those proud moments," the ruling stated.
Among other things, the suit alleges that Adams screamed at the family members and told them the Vietnam War and Persian Gulf veteran was a "crook" and a "felon," threatening to release damaging information about Sabow if they went public with their claims about the investigation.
The suit maintains that when Adams learned David Sabow had made inquiries about Adams' personal medical records, the general threatened to have David Sabow's medical license revoked.
The court said those allegations, if proved, would constitute "outrageous conduct" supporting the lawsuit's claim of intentional infliction of emotional distress.
However, in a setback for the family, the court upheld the lower court's decision to dismiss the portion of the suit that targeted the investigation itself. The court concluded that investigators were acting within the authority of the military's investigation guidelines.
But the court took investigators to task for acting "callously" and being "unprofessional, ineffective and blindly insensitive to the concerns of the family."
Still, David Sabow and his Santa Barbara-based attorney, Daniel Sheehan, said they were elated with the decision because they can return to court and seek the military's investigation records about the 51-year-old colonel's death.
"The family is pleased with the open door they have here," Sheehan said.
The Sabow family doesn't believe that James Sabow killed himself, in part because he was a devout Catholic but also because the allegations against him were minor errors at best, not the type that would drive a man to suicide.
One allegation was that Sabow carried his son's stereo equipment aboard a military aircraft because he was meeting him at the end of his flight.
Family members say there is evidence of murder, including blood found in the lungs and a recently discovered X-ray showing that a portion of Sabow's skull was crushed in at the time of his death.
Those findings, Sheehan said, indicate the officer was bludgeoned before suffering a single shotgun blast that would have made it impossible to take a breath--the only way blood could have gotten into the lungs.
"We just don't believe it," David Sabow said. "And I'm going to prove it."
Adams was later dismissed as head of the Marines' Western air bases after it was discovered he used military aircraft for personal use.
"I feel very relieved," said Sara Sabow, who said she is determined to continue the fight on behalf of her late husband. "I feel like there is hope here."