Posted on 06/29/2008 7:38:42 AM PDT by RedRover
Battered by six consecutive exonerations of Marines accused in a highly publicized case, military prosecutors face new difficulties in obtaining convictions against the two remaining defendants charged with wrongdoing in the deaths of 24 Iraqi civilians in Haditha.
The latest blow came June 17, when a judge ruled that unlawful command influence had irreparably tainted the dereliction-of-duty prosecution against the battalion commander at Haditha, Lt. Col. Jeffrey Chessani and that the charges would be dismissed.
The ruling gave the brass three choices: Let it stand, appoint a new convening authority to review the case or appeal the ruling.
A day after the decision, prosecutors said they would appeal. They say they are doing so because of the effect the ruling could have on the primary target in the Haditha prosecutions, Staff Sgt. Frank Wuterich, the Camp Pendleton Marine who led his squad in the killings following a roadside bombing in November 2005.
"He's been the No. 1 guy they've been after from Day 1," said an attorney with intimate knowledge of the case and the discussions that have been taking place in Washington.
What was unlawful in the Chessani case, a judge said, was that a legal adviser to the general overseeing that case and Wuterich's took that job after first serving as an investigator into the events at Haditha, an assignment that also made him a prosecution witness.
Those dual roles constituted a fatal conflict of interest, the judge said, a grievous sin in the military justice system. It's also one that legal experts say was readily avoidable.
Unlawful command influence occurs when a senior military officer knowingly or unknowingly acts in a way that compromises what should be a commander's independent decision.
The Chessani ruling is reverberating throughout the Marine Corps not only because of its potential impact on the Wuterich case, but also because it serves as an indictment of how the Haditha prosecutions have been handled almost from the start.
"The concept of unlawful command influence includes the perception of its presence," Gary Solis, a former Marine Corps judge and prosecutor who teaches military law at Georgetown University, wrote in an e-mail to the newspaper. "Military justice cannot afford even the perception that the government has its fingers on the scales of justice."
Chessani is accused of failing to order a full-scale probe of the civilian deaths and faces two years in prison and dismissal from the service if his case continues and he's convicted and receives the maximum sentence.
Wuterich faces nine counts of voluntary manslaughter and related offenses and the prospect of a lengthy prison term.
A Marine Corps spokesman, Lt. Col. Sean Gibson, said Thursday that the service will not comment on why it is appealing the ruling by Col. Steven Folsom, the senior Marine Corps judge in this region.
What happened
Presiding over the Chessani case at Camp Pendleton, Folsom ruled that then-Lt. Gen. James Mattis was unlawfully influenced by the adviser when he approved the charges in December 2006.
The illegal influence didn't stop there, the judge ruled. By extension, Folsom was saying that the adviser, Col. John Ewers, was wrong to sit in on dozens of subsequent meetings with the general at which the Haditha prosecutions were discussed.
Ewers was known to have formed opinions of guilt and was superior in rank to the prosecutors at those meetings.
"The government has failed to prove beyond a reasonable doubt that Col. Ewers' history and presence at these legal meetings ... did not chill subordinate legal advisers from exercising independence and providing potential contrary legal advice," Folsom wrote.
"This court finds, and actually is convinced of one thing beyond a reasonable doubt, that a disinterested member of the public would harbor significant doubts as the fairness of the proceedings against this accused and the military justice system as a whole if they knew that this accused's main interrogator was ... seated at the side of the convening authority as a trusted legal adviser."
Mattis rejected that conclusion, issuing a statement the day Folsom ruled that he stood by what he said during a court hearing on the issue in May ---- that he made his decisions independently and was not influenced by Ewers.
Ewers was an initial investigator in the Haditha incident and helped write a report on what happened. He then became Mattis' legal adviser while simultaneously serving as a prosecution witness, thus establishing the conflict of interest.
While Ewers is highly regarded, the military law experts say someone should have realized early on that a mistake was being made. The remedy was simple ---- remove Ewers from any meetings or discussions about the Haditha cases and have another lawyer advise the general on those matters.
"He should have recused himself," said Scott Silliman, a former Air Force legal adviser who now teaches law at Duke University and heads the Center on Law, Ethics and National Security. "You have to make sure when you work for a commander that you don't lose a case because you didn't maintain your distance."
Folsom noted that unlawful command influence is a "mortal enemy of military justice." Ewers' role, he said, violated that basic tenet.
"We need to take it all back and remove any potential influence of Col. Ewers," he wrote in his ruling.
The dismissal of charges against Chessani, Solis said, "is a small price to pay to maintain the public's trust in military justice."
One of Chessani's attorneys, Brian Rooney, said Folsom's ruling was unequivocal.
"Unlawful is a strong word and it means there was influence exerted in this case that was illegal," he said. "We were concerned from the beginning that the people making the decision in this case did not presume Colonel Chessani's innocence, which is supposed to be a fundamental precept."
'Disappointed but not surprised'
Chessani, who headed Camp Pendleton's 3rd Battalion, 1st Marine Regiment at Haditha when the civilians were killed as Marines searched for their attackers following a roadside bombing, was relieved of command and is working as an anti-terrorism officer at the base while his case is adjudicated.
"He was hopeful the Marine Corps wouldn't appeal and he is disappointed but not surprised," Rooney said.
Wuterich's attorneys made a similar motion to dismiss the charges against their client, basing their argument on pretrial publicity stemming from remarks by members of Congress early in the Haditha investigation.
Comments such as one made by Rep. John Murtha, D-Pa., that the Marines had "killed in cold blood," fueled the decision to charge Wuterich and also constitutes unlawful command influence, they contend. A ruling on that motion has been delayed.
Wuterich's attorney, Neal Puckett, said last week that a new motion to dismiss charges against his client based on Folsom's finding regarding Ewers will be filed "as soon as we can get back in court."
Judicial courage
Carlsbad attorney David Brahms, a retired Marine general who once was the service's top legal adviser, said he believes the Chessani prosecution should be dropped.
"Is there something more that needs to be done to a make a point in this case? Colonel Chessani has already been punished by being relieved of command, he has become a public figure under cloudy circumstances and his reputation has been adversely impacted.
"Whatever lesson should come from Haditha has been digested."
The Folsom ruling and two from Lt. Col. Paul Ware, who as an investigating officer issued decisions resulting in two other Haditha cases being dropped, represent true courage on the part of the Marine Corps bench, Brahms said.
"The guys who are standing up and doing the right thing are the staff judge advocates," he said in reference to the terminology for military attorneys and judges. "In this chaos of what has been military justice disaster we have had people willing to rise up and call it like they see it."
Another way
One way to avoid command influence issues, said Eugene Fidell, president of the National Institute of Military Justice in Washington, is to adopt systems used in the United Kingdom, South Africa, Canada and Australia, where a chief lawyer and not a combat commander such as Mattis oversees military justice cases.
"Our system is command-centric where nonlawyers play significant roles," Fidell said. "As long as nonlawyers are making key decisions, problems such as unlawful command influence are going to occur."
The fact that six of the eight men charged at Haditha have been exonerated in some fashion with only one minor player, 1st Lt. Andrew Grayson, accused of obstruction and found not guilty, is eroding confidence in military justice, Fidell said.
Solis said the 18 months of Haditha prosecutions have become "a debacle."
"Justice has become elusive," he said. "Charges against the battalion commander are dropped for reasons having nothing to do with his conduct in the case. While there was reason to justify the latest dropped charges, it becomes difficult to maintain that as a whole the Haditha case is approaching a just conclusion."
That said, Solis maintained the Marine Corps was right to charge the case as it did, pointing to multiple investigations that concluded wrongdoing led to the deaths of innocent men, women and children and that commanders largely ignored the carnage.
"The acquittals and the dismissals of charges are the workings of the military justice system," he said. "It isn't perfect, but no justice system is."
Have We Been Wrong? [Free Republic and Defend Our Marines in Haditha story]
Commanders Preoccupied with Haditha Legal Battles While Their Marines Fight on Two Fronts
Maybe they can nail them for jaywalking, or lying to the FBI or something.
I believe there is only one remaining defendant. Also, prosecutors save the hardest for last in hopes of getting “the easy” convictions to roll on the more difficult. The prosecutors will not win this remaining case.
END this Leftist assault on the effectiveness of our warriors - and focus on the sonuvabitch who caused it all: Murtha.
Unless and until it is made PAINFUL and EXPENSIVE for a POS like Murtha to pop off and lie at will -— it will continue..
If anyone DESERVES investigation and prosecution — go after Murtha and his POS fellow travelers..
Secondly — Don’t send Marines into populated areas until you want the population destroyed or driven off.
One thing people should remember is that most “senior” military officers are quite often military academy graduates, and that military academy appointments are primarily made by people in Congress — liberal Democrats included.
One for instance, is Wesley Clark.
Need I say more?
Yes, one man left standing (unless the government can find some way to proceed against LtCol Chessani which seems very doubtful).
I agree with that going after the weak links first was a sound strategy for the prosecution, and now they've shot their bolt and can't get a conviction against SSgt Wuterich. It's hard to argue (in front of a jury of Marines) that a squad leader committed a crime when the men he led, who did most of the shooting and grenade tossing, have been exonerated.
Kudos to retired Gen. David Brahms, a man who's been there and done that and has some common sense.
I see Gary Solis is still saying these Marines were at fault for civilians being killed and not the terrorist insurgents. He can't get it through his head that an insurgent battlefield is different that his law classroom.
Have I mentioned lately how much I despise Gary Solis?
So it sounds like Col. John Ewers should he be tried, stripped of rank and hanged like a dog at the Pendelton gates...
Sound like the Marine Corps owe these innocent men restitution as well.
“Leftist assault on the effectiveness of our warriors - and focus on the sonuvabitch who caused it all: Murtha.”
You got the point. The company in Haditha, Kilo 3/1 had been part of the worst urban fighting since Hue City 12 months earlier. They knew how to clear buildings and appear to have done so.
What happened in the aftermath remains cloudy. Sgt Wuterich and his squad did not line up civilians against a wall and murder them (as was being done by jihadist just across the Euphrates River in Barwana at about the same time). However, after the fight ended a story was developed that that tried to recreate Mai Lai.
The jihadist got their story out and were assisted by the American press that sought anything that could create a sensation. People like Murtha jumped in and tried to gain political leverage by declaring opinion about something that they really knew nothing about.
The lives of these Marines were altered as a result. They weren't hit with bullets, they were injured with words. The Marines, including General Mattis, sought to deal with this in the traditional, professional way. Appoint investigators and find out the facts, prosecute those who violate laws or regulations or orders. The problem was that the fight was already over.
Haditha was a battle fought in the press after the fact to influence the will of the American people. We lost.
READERS' FORUM 6/28 | Murtha owes ‘cold-blooded killers’ apology
June 26, 2008 09:39 am
— “Murder is murder, and is never right. Those who criticize U.S. Rep. John P. Murtha for wanting a full and open investigation of a mass slaying of civilians in Iraq last November should keep that in mind.”
“The Marines accused are our American servicemen, it is true, but from what is known now, they were entirely wrong to turn to wanton murder in retaliation – if that was the motive.”
Those two paragraphs were in a June 2, 2006, Tribune-Democrat editorial headlined, “We must learn the truth: Full probe into killings is justified.”
We have heard the truth, at the trials of seven brave Marines, soon to be eight, who were either acquitted, found not guilty or had the charges dropped.
This newspaper, with about every other reporter in the mainstream media in this country – along with Murtha – had these Marines tried and convicted before they had the right to defend themselves in a court of law.
The lives of these brave men were turned upside down for nothing but pure political gain on the part of Murtha and the media who oppose the war in Iraq.
Is The Tribune-Democrat, which was so quick to judge, going to be as diligent in calling for an apology from Murtha for calling these Marines cold-blooded killers?
An apology is the least he can do. But what he should really do is resign.
Jeff Hoover
Berlin
...............
Marines are owed an apology
Fox television news reported that all but one of the Marines accused of killing innocent Iraqi civilians were acquitted. And the one was convicted of a minor charge – disobeying orders.
These are the Marines that U.S. Rep. John Murtha accused of these crimes.
I haven’t seen Murtha apologizing to these Marines who have gone through so much torture and even jail time. John Kerry made the same accusations against fellow servicemen in Vietnam.
Being anti-war doesn’t mean being anti-military.
I heard a remark about the fighting men in Iraq that made me really angry. A liberal Democrat said the men ought to be thankful that the United States gave them a job. They have no skills and are uneducated and that’s why these men sign up in the National Guard.
How low can a human being be?
All veterans better vote against the Democrats in this presidential election or we will be going down hill. Barrack Obama has no military experience, no foreign political experience, and he wants to run this country during a critical time.
John McCain is a real hero who was in one of the most brutal prisons in Vietnam.
Jane Fonda knows a lot about the Hanoi Hilton. She was there, mocking McCain and his buddies.
Stephen R. Sakmar
Johnstown
“One way to avoid command influence issues, said Eugene Fidell, president of the National Institute of Military Justice in Washington, is to adopt systems used in the United Kingdom, South Africa, Canada and Australia, where a chief lawyer and not a combat commander such as Mattis oversees military justice cases.
“
I’ve always considered having a combat commander overseeing military justice cases as a plus, not a minus.
Good for these two men for speaking out against the despicable Murtha, and in his hometown newspaper no less!
It seems that hometown paper has a little begging your pardon to do also, in June of 2006 the investigation was far from being completed and no charges had yet been filed. At that time the Tribune-Democrat only knew rumors but that didn’t stop them from printing that libel.
We may have lost a firefight or two -- but the battle is still engaged and the forces are beginning to align themselves for an assault against Murtha and his fellow travelers...
I am more concerned over the outcome of the "battle"....
As far as the long range effect on the Marines -- I remain convinced: At the Core, it's STILL the Corps.
I am more concerned as to where in hell the moronic Congress and Public will come down in the final analysis.
IF The Tribune-Democrat were to call for an apology from Murtha, their advertising revenue would dry up overnite and they would be out-of-business in no time. If you think Murtha wouldn't do this, lean on the advertisers, you're giving him too much credit for being a decent guy.
"He's been the No. 1 guy they've been after from Day 1," said an attorney with intimate knowledge of the case and the discussions that have been taking place in Washington.
What was unlawful in the Chessani case, a judge said, was that a legal adviser to the general overseeing that case and Wuterich's took that job after first serving as an investigator into the events at Haditha, an assignment that also made him a prosecution witness.
Many prayers for SSgt Wuterich. We saw this as this travesty of a case unfolded, they are deperate to get him. If they can take him down, they can "justify" this horrific witch hunt. They need a head for their mantle. It makes my blood run cold.
Ping
LOL! Worry not, penowa, I don't give Murtha credit for having even one decent bone in his body.
Agreed. I don’t know how it works in other countries, but the idea of a commanding lawyer (shudder) sifting through every After Action report just doesn’t sound good to me.
1. Solis said the 18 months of Haditha prosecutions have become "a debacle." "Justice has become elusive," he said. "Charges against the battalion commander are dropped for reasons having nothing to do with his conduct in the case. While there was reason to justify the latest dropped charges, it becomes difficult to maintain that as a whole the Haditha case is approaching a just conclusion."
Solis just said that Chessani and the other Marines are guilty. Apparently, he hasn't read one line of evidence that has been presented. Solis is no friend.
2. That said, Solis maintained the Marine Corps was right to charge the case as it did, pointing to multiple investigations that concluded wrongdoing led to the deaths of innocent men, women and children and that commanders largely ignored the carnage.
There are no multiple investigations that concluded "wrongdoings in the deaths of innocent..." The Watt and Bargewell investigations concluded just the opposite.
3. "Is there something more that needs to be done to make a point in this case? Colonel Chessani has already been punished by being relieved of command, he has become a public figure under cloudy circumstances and his reputation has been adversely impacted.
Again, here is another one who has concluded that Chessani is guilty. Moreover, he's happy that a presumed innocent man is being made to suffer. What a jerk. I almost wish LtCol Chessani would stay in the Corps, if the UCI is upheld, just so he can make a court case about returning to command, being promoted, and advancing in responsibility.
4. "The guys who are standing up and doing the right thing are the staff judge advocates," he said in reference to the terminology for military attorneys and judges. "In this chaos of what has been military justice disaster we have had people willing to rise up and call it like they see it."
This guy is in never-never land. The guys standing up are guys like Chessani, Wuterich, Sharratt, Grayson, Dinsmore, etc. They folks playing puppet are the JAGS and the puppet-masters are from Congress, DOD, SecNav, Marine Corps, and on down to the Generals.
5. Comments such as one made by Rep. John Murtha, D-Pa., that the Marines had "killed in cold blood," fueled the decision to charge Wuterich and also constitutes unlawful command influence, they contend. A ruling on that motion has been delayed.
Congress makes the regs. Congress gives the money. Congress gives the promotions. Rigghhhhhttt....they have no influence over generals.
6. "Unlawful is a strong word and it means there was influence exerted in this case that was illegal," he said. "We were concerned from the beginning that the people making the decision in this case did not presume Colonel Chessani's innocence, which is supposed to be a fundamental precept."
Actually, Chessani's chain of command believed there was nothing wrong with the firefight in Haditha at the time it happened. Two investigations said there was nothing wrong. Most were observing the fight via eyes in the skies.
7. "The government has failed to prove beyond a reasonable doubt that Col. Ewers' history and presence at these legal meetings ... did not chill subordinate legal advisers from exercising independence and providing potential contrary legal advice," Folsom wrote. .....Mattis rejected that conclusion, issuing a statement the day Folsom ruled that he stood by what he said during a court hearing on the issue in May ---- that he made his decisions independently and was not influenced by Ewers.
Mattis should say, "I was not in a conspiracy with Col Ewers. That would be a bit more accurate thing to deny. He doesn't know if his other legal advisors were influenced by Ewers, and in effect, that influenced him by those things that they did and/or did not counsel.
8. A day after the decision, prosecutors said they would appeal. They say they are doing so because of the effect the ruling could have on the primary target in the Haditha prosecutions, Staff Sgt. Frank Wuterich, the Camp Pendleton Marine who led his squad in the killings following a roadside bombing in November 2005. "He's been the No. 1 guy they've been after from Day 1," said an attorney with intimate knowledge of the case and the discussions that have been taking place in Washington.
This should be grounds for dismissal, given that it is a battlefield and there's no way "from day 1" that they anything other than Time Magazine's article.
I believe one of the Marines has already filed suit against Murtha.
Murtha’s lawyers have stated that whatever Murtha said as a “congressman” cannot be litigated. However, I distinctly recall Murtha making those same statements IN A PUBLIC FORUM - and THAT MAKES HIM LIABLE.
Also .. somebody is running against Murtha in the coming election .. and I’ve been trying to find out who that is so I can support them. All present and past Marines everywhere should be supporting removal of Murtha from congress.
It sounds familiar to me also though there was so much trash being printed at the time I can’t say I remember it specifically.
I’d bet it was discussed on a thread here being Murtha was in the hot seat at that time for his antics.
Solis has been a scumbag from the beginning.
He’s always been a scumbag.
LOL, that’s the best (( ping )) I ever saw!
THIS old Marine favors a lot more that firing the bastard, I'm all for hanging the POS.
I'm off watching the Pirates now with Mrs. but I'll see if I can dig it out later. Cheers!
Go Bucs and congrats on the win last night! :)
This is really chilling--though only confirming what's been suspected. Discussions in Washington (I'd like some names please) about the need for a conviction of a staff sergeant while we're in the middle of a WAR? Something's grotesquely wrong with this picture.
You’ll need to forgive me for pinging you. But I’ll bump that.
Thanks, Lance. Seemed strangely appropriate.
BTW, the A32 for Sgt John Winnick, the Marine sniper, is Tuesday. Don’t know yet whether we’ll have a man on the ground or not. In any event, scuttlebutt is that it’s a whole lot of nothing. Four Syrians were shot (two fatally) by Sgt Winnick because they appeared to be planting an IED. Winnick is now being second guessed over whether he had PID.
According to scuttlebutt, there are no adverse witnesses. So it’s all a bit of WTF at the moment. We’ll see on Tuesday.
Answer; the Pentagon is not in Washington, it's in Arlington, VA. Who's in Washington? Well, John Murtha for starters. This attorney is trying to tell us something, Red.
And just to make sure this doesn’t slip into the memory hole....
Published: May 31, 2006 04:40 pm
We must learn the truth
Full probe into killings is justified
The Tribune-Democrat
Murder is murder, and it is never right. Those who criticize U.S. Rep. John P. Murtha for wanting a full and open investigation of a mass slaying of civilians in Iraq last November should keep that in mind.
All the details are not available, possibly because of a Marine Corps or Defense Department cover-up, but it appears there was no justification for the killings.
From the facts now known, it appears that a roadside bomb killed one Marine on Nov. 19 in the town of Haditha. The Marines at the scene then allegedly shot unarmed civilians in a nearby taxi, and then went to two nearby homes and shot men, women and children.
The number of casualties is uncertain, but could be as many as two dozen; and there is no indication any were armed.
When Murtha, who has been briefed by officials, called for a full inquiry, he was criticized by more than a few people for being less than patriotic. How absurd can anybody get?
We commend the congressman for wanting to let fresh air into an investigation that doesn’t smell so good already.
The Marines accused are our American servicemen, it is true, but from what is known now, they were entirely wrong to turn to wanton murder in retaliation – if that was the motive.
We are concerned about the deed itself, but we also are concerned that those officers or officials who tried to sweep the killings under the rug be punished for their action – or lack of action – as well.
Those words should be shoved right back down their throats.
Good job finding that, Smooth.
It’s actually worse than the letter writer made it out to be. It’s evident they didn’t have a thing to go on except Murtha’s pitiful accusations, the Trib-Dem is a pathetic rag.
I think you’ve made a good point on your other post about the attorney trying to tell us something, I’m a lot more skeptical of politicians than I am of the majority of our military leaders.
As am I, brother. The politicians control the purse strings and far too many of them abuse that responsibility. Those like Murtha get some personal warped satisfaction out of holding the appropriations over the heads of our warriors. It's perverse, and can leave our warriors with little chance of honest access to the funding process.
I found the name of the guy who is running against Murtha:
William T. Russell (Lt Col USAR)
c/o William Russell for Congress
PO Box 96632
Washington DC 20090
He served in the Army for 28 years, active and retired - including six tours in hostile fire zones.
He and his wife were both working in the Pentagon on the morning of 9/11.
He supports all the key issues for conservatives: No gun control; complete border control; Tax cuts made permanent; elimination of the death, marriage and capital gains taxes; protection of the life of the unborn 100%; and national security (which includes supporting the troops with the proper funding).
Sounds like a much better representative for PA than Murtha ever thought of being.
Perhaps the government will start to back off as public opinion mounts and they see the errors of their ways regarding the Haditha cases.
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