Court Reinstates Family's Coverup Suit
By BOB EGELKO Associated Press Writer
Aug. 28, 1996
SAN FRANCISCO (AP) - A federal appeals court on Wednesday reinstated a lawsuit by a dead Marine colonel's family accusing the El Toro base commander of trying to intimidate them out of investigating the colonel's death.
Col. James E. Sabow, a decorated Vietnam combat pilot and newly appointed acting chief of staff for Marine aircraft operations in the western United States, was found shot to death at his quarters on the Orange County Marine base in January 1991.
Military investigators found he had committed suicide, noting that Sabow had been told a week earlier that he was a possible target of an investigation into improper personal use of Marine Corps aircraft. But family members, including Sabow's widow, Sarah, and his brother, John, suspected murder.
The 9th U.S. Circuit Court of Appeals said the Sabows could not sue the government for alleged flaws in the military investigation because the investigators made policy judgments that are legally protected from suit. But the court said the family could sue over its treatment by the base commander, Gen. Wayne T. Adams.
According to the suit, Adams met with Sarah and John Sabow for nearly five hours in March 1991, screamed angrily at them and told them James Sabow had killed himself because he was a "crook" and a "felon," charges that had been neither filed nor proven before his death. The general threatened to release damaging information about Sabow if his relatives made their suspicions public, they said.
Later, according to the suit, Adams learned that John Sabow, a neurosurgeon from South Dakota, had made an inquiry about Adams' medical records. The general then asked his staff for help in going after Sabow's medical license and planned to complain to South Dakota medical officials unless Sabow dropped his inquiries, the suit said.
Those allegations, if proven, would show "extreme and outrageous conduct" that would support a claim of intentional infliction of emotional distress, the court said in a 3-0 ruling.
The general's alleged tirade at the meeting was "particularly outrageous given that it allegedly was designed to prevent the Sabows from 'going public' with their concerns about the investigation," said the opinion by Judge Michael Hawkins. Similarly, targeting John Sabow's medical license would be the "use of illegitimate means ... to fulfill impermissible ends (silence criticism and prevent further inquiries)," Hawkins said.
In challenging the Marines' investigation, the Sabows said the crime scene was not secured, evidence was moved before pictures were taken, Mrs. Sabow was not allowed any assistance during a withering interrogation, and the body was left in the sun for more than seven hours.
Hawkins said naval investigators acted "callously" but within their authority.
The entire suit had been dismissed by U.S. District Judge Alicemarie Stotler.
A lawyer for the Sabows said the ruling gave them what they wanted most, a chance to go before a jury. Attorney Daniel P. Sheehan also said the ruling should allow him to seek records of the Marines' investigation into the colonel's death.
Adams "was doing this to stop any further investigation of the death," Sheehan said. "We have to present to the jury the evidence showing he had a good reason to want to stop the investigation."
He said the Marines' finding of suicide was contradicted by medical records obtained later from the Orange County coroner, and made little sense. The allegations against Sabow - that he had used military aircraft to send personal items to his son - were relatively minor and were being closed without formal charges, according to information the colonel learned shortly before his death, Sheehan said.
Assistant U.S. Attorney Julie Zatz said she had not seen the ruling, but "it sounds to me as if most of the case has been disposed of." She declined comment on whether the allegations against Adams were true.