Decision coming June 16, next big day in Haditha case

Defend Our Marines ^ | June 9, 2008 | Nathaniel R. Helms

[RedRover]

Attorneys representing Marine Lt. Col Jeffrey Chessani will find out June 16 whether the presiding judge in the “Haditha Massacre” case will grant a defense motion to dismiss his charges because of undue command influence.

If Folsom denies the defense motion Chessani will stand general court-martial July 21 for alleged dereliction of duty and orders violations, said Richard Thompson, chief counsel of the civilian law firm representing him.

The veteran combat Marine is the highest ranking officer to be charged with a crime in the discredited massacre investigation. Four enlisted men and three officers under his command were also charged with war crimes. Five of them have already been exonerated during pre-trail legal maneuvers and 1st Lt. Andrew Grayson was found not guilty last week of a laundry list of related charges.

The day before Grayson went to trial, military judge Lt. Col. Steven Folsom deferred making a decision on a defense motion by Chessani’s lawyers asking that the case be dismissed “with prejudice” for alleged undue command influence in the convening authority’s decision to prosecute the former commander of 3rd battalion, 1st Marines in Iraq.

Even with a favorable decision by Folsom, Chessani is not out of the woods, Thompson said. Folsom could dismiss the charges “without prejudice,” leaving the door open for Chessani to be charged again.

One member of Chessani’s defense team noted that government prosecutors have already shown they will go to any length to obtain a conviction in the broadest, most expensive criminal investigation in contemporary military history.

“Why wouldn’t they?” he said. “We are talking about prosecutors still trying to maintain the fiction there was no incoming fire after the IED went off and that the huge firefight on Viper was a separate incident.”

Four enlisted members of a rifle squad Chessani command killed 15 civilians and eight insurgents hiding among them after a remotely detonated IED killed a squad member and wounded two others riding in a convoy. About 500 meters away on a road called Viper another squad of Marines was embroiled in a morning-long grenade fight with insurgents that left nine Marines wounded.

The ambushed infantrymen were later accused by Time magazine and Congressman John Murtha with going berserk; hunting down innocent civilians and shooting them in cold blood. The subsequent investigation showed that none of the circumstances cited by Time and Murtha proved to be true.

Last week 1st Lt. Andrew Grayson, the first of three defendants to face general court-martial in the Haditha incident, was found not guilty of obstruction of justice, making false statements, and attempting to obtain a fraudulent discharge by a seven-member jury panel of fellow Marine officers.

His exoneration followed a 30-month, multi-million dollar, world-wide investigation and five-day court-martial at Camp Pendleton that took the panel five hours to dispose of.

Grayson was attached to Chessani’s command in Iraq as an intelligence officer. He is the sixth of eight original defendants cleared of any wrongdoing in the incident. The panel's rapid verdict put the already weak prosecution case in total disarray, several attorneys involved in the case said.

Chessani is awaiting general court-martial for dereliction of duty and orders violations for allegedly failing to investigate and report the incident. He faces dismissal from the service, loss of all retirement benefits, and three years in prison if convicted.

The criminal charges against Chessani stem from a house-to-house, room-by-room battle that four of his enlisted Marines engaged in on November 19, 2005, after being ambushed by insurgents in Haditha. In the day long battle that followed one Marine was killed and 11 others from Kilo Company, 3/1 were wounded.

Folsom’s ruling follows testimony last Monday by Gen. James N. Mattis and the conspicuous absence of Lt. Gen Samuel Helland in the matter. The prosecution called Mattis to refute defense claims he was unduly influenced by Col John Ewers, the Marine lawyer who investigated Chessani’s command in Iraq for an Army general and later became Mattis’ personal legal counselor as Staff Judge Advocate of the 1st Marine Expeditionary Force.

Before being appointed the 1st MEF SJA Ewers was assigned to investigate the alleged massacre at Haditha, Iraq in the winter of 2006 for Army Maj. Gen. Eldon Bargewell. He was ordered to look into the matter following allegations by a Time magazine reporter that Chessani had covered up the November 19, 2005 murders of 24 innocent civilians by a squad of Marines under his command.

Ewers was still Mattis’ personal attorney when Mattis decided to bring charges against Chessani on December 21, 2006. He remained in the position when Helland took over responsibility for prosecuting Chessani after Mattis was promoted to four-star rank last November 1 and transferred.

“The prosecution made a colossal blunder not calling Lt. Gen. Helland to testify,” opined Thompson, who presides over the Ann Arbor-based Thomas More Law Center. “Folsom has already decided there is evidence of inappropriate command influence and it is now the prosecution’s burden to prove beyond a reasonable doubt that it didn’t occur. Without Helland’s testimony to corroborate Mattis they failed to meet that burden.”

Mattis testified that he was not influenced by Ewers. Last month Ewers testified that he sat in on at least 25 meetings between Mattis and the lawyers from Central Command counseling Mattis about the Haditha investigation while Mattis was in command of both organizations.

Mattis brought the charges against Chessani under the aegis of Central Command where Ewers ostensibly had no authority or influence. At the time Lt. Col. Bill Riggs was the SJA of Central Command.

The defense maintains that Ewers’ mere presence at the meetings by itself represents undue command influence because he outranked the lawyers who were advising Gen. Mattis.

According to both officers’ testimony Ewers was a potted plant that sat mute while Mattis was counseled by Riggs and other attorneys of lesser ranks from Central Command. Mattis told the court he remained an island unto himself and never asked or received legal advice from Ewers while he was formulating his decision.

It is not the first time undue command influence has been charged. Riggs found himself in hot water last summer after he contacted Lt. Col. Paul Ware, the investigating officer in a related case, and criticized him for holding the government to too high of a standard when evaluating the charges against an enlisted Marine.

Ware, the IO in the murder case against exonerated Marine LCpl Justin Sharratt, took the unusual action of revealing what he viewed as an egregious case of undue command influence by Riggs.

“I viewed Lt. Col. Riggs’ comments as inappropriate and imprudent. … I was … offended and surprised by this conversation,” Ware responded in an email.

Subsequently Riggs recused himself from that case.

Military courts consider unlawful command influence the most egregious violation of military justice because it irreparably taints the opinions of prospective jurors, Richard Thompson said.

According to Thompson, Folsom’s determination that there was evidence of undue command influence forces prosecutors to prove beyond a reasonable doubt that: (1) the facts upon which the unlawful command influence is based are untrue; (2) those facts do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings.

[euphoriadev]

If in fact Donahue had a conversation with the convening authority on Hutchins’ case before the decision was rendered, that constitutes unethical behavior on both Donahue and Helland’s part. it’s like the judge in a civilian case discussing his upcoming bench decision with a member of the audience in the courtroom, for God sake. It can help Larry to show that there were behind the scenes meetings going on.

I don’t understand how else to explain it. I don’t understand how YOU don’t understand. Again, not trying to fight with you at all...just explaining why I’m doing what I’m doing. I know that you consider Larry a friend—as do I. But putting up cash for an appeal, when you know you can’t introduce any of the evidence they blocked last time...what does that get you? Especially when you demand that the support system Larry’s known for 2 years just goes away, or you take your money and go home? There’s more to this than you think.

As for lily, again...you forget that I was on the Girouard case for a long, long time. As we say in Oklahoma, this isn’t my first rodeo. (And that in itself is a freaking shame!) I know that case almost as well as I know the P8 case, including lily’s role in the aftermath. I’m not looking to bash her. As I mentioned earlier, I have no beef with lily at all except for how she jumps on people here she doesn’t know. She doesn’t know me, doesn’t know jack about me, and yet talks as if I’m somehow the village idiot who couldn’t possibly know as much as she.

At any rate, you know how to find me if you want to talk about this further. There’s a lot of information that I can share with you that may shed some light on the Donahue situation if you’re interested in knowing the truth. But I’ve no wish to go back and forth on FR with 8 million people jumping on things and thinking this is an internet peeing match.

I trust you care about truth, and so if you want to talk further, my email is 2alpha6@gmail.com.

[ticked]

Hey thanks for posting that link. Good read and I found Jayme Evans site from that site, another one to bookmark.

[xzins]

Jesus said, “A house divided against itself cannot stand.”

Divide and conquer is an ancient tactic. Would that we not see it here.

Lives are at stake, and I do not care who gets credit.

[Girlene]

His piece is well done and shows he was really paying attention during 1st Lt. Grayson’s trial. There are two left to exonerate. Hoping Tuesday brings good news for the Chessani family and defense team.

[jazusamo]

Hoping Tuesday brings good news for the Chessani family and defense team.

BUMP to that, Girl! Praying all charges are dropped.

[RedRover]

I gave YOU Tim’s number, not you gave me Nat’s. If you have a copy of the e-mail otherwise, please advise. Cuz, Tim got called by Nat.

What a waste of time. Still, if I don't reply, you'll start calling me a liar. So here's the chain of events in all its tedious detail.

You FRmailed me on January 4...

Tj needs to talk to you
From RaceBannon | 01/04/2008 3:09:37 PM PST replied
He is working close with people associated with x.
Also, he needs to get Ned Helms corrected, something he wrote indicates he missed some things
Tim’s numbers: xxx-xxx-xxxx. cell = xxx-xxx-xxxx

I wrote you back...

Re: Tj needs to talk to you
To RaceBannon | 01/04/2008 3:37:40 PM PST sent
I got a “not in service” message on the cell phone. Is there another number other than xxx-xxx-xxxx?
I left a message on his home answering machine.
If you speak to Tim before I do, Nat Helms’ number is xxx-xxx-xxxx.

So then Nat calls me. Said Tim had called to say he should stop working with me, that I was being paid off by the generals, or some Goddamn thing. Basically the same message that Bones had e-mailed Nat earlier.

Satisfied?

Cuz, my ability to actually give a shite is running low.

[RedRover]

I do know some people researched you and found some rather questionable things

Name one.

Nice little insinuation. You really are a piece of work, Race.

I've never claimed to be anyone other than someone whose mission was to keep people informed about the Haditha case. And I've done that, to the best of my ability. That's how I judge myself.

Oh, BTW, I don't trust Walt Fitzpatrick more than I trust Ray's family. And to keep harping on this "ex-lover" stuff is really pretty gross.

[Girlene]

I have a question (about Haditha, that is). Ewers and Mattis said they never talked about the Chessani or other Haditha Marines' cases during those long and many meetings about Haditha. However, Ewer not only performed the interviews for the officers in Haditha (to include the three that were censored), but he testified at Stone's trial and telegraphed his opinion of both Stone, Chessani and other officers at Haditha. From North County Times, Legal affairs officer: Haditha decision not criminal

The testimony from Col. John Ewers came on the sixth day of a hearing to determine if Capt. Randy Stone will be ordered to trial for dereliction of duty. Stone was the battalion's legal officer and stands accused of criminal conduct for not investigating the killings, which took place on the morning of Nov. 19, 2005.

"He didn't cover himself with glory ... but without being asked by his commander to do an investigation, I didn't think it rose to the level of criminal dereliction," Ewers said, addressing the heart of the accusations against Stone.

Ewers was assigned in early 2006 to find out why no one from Camp Pendleton's 3rd Battalion, 1st Marine Regiment nor any higher Marine Corps authority ordered an investigation of the incident, which was not probed until after questions were raised in January 2006 by a reporter from Time magazine.

Ewers said his initial determination was that the incident, in which members of the battalion's Kilo Company killed 24 Iraqi civilians after a roadside bomb destroyed a Humvee and killed a Marine, was a "reckless application of the rules of engagement."

As for the decision by battalion commander Lt. Col. Jeffrey Chessani and others not to order an investigation, Ewer said he was "astonished," adding there was "plenty of responsibility to go around" for that decision.

Stone's attorney Charles Gittins called Ewers to testify to establish that he never read the 34-year-old Maryland native his rights before interviewing him in Iraq on March 20, 2006.

Ewers was assigned by the Marine Corps to assist U.S. Army Maj. Gen. Eldon Bargewell in a review of how commanders responded to the news that civilians had been killed after the bombing.

He also testified that he did not believe Chessani placed much reliance on Stone and that Stone was "set up to fail" because he had joined the battalion after its deployment and was never fully integrated into the command staff.

So even if Ewers never talked "directly" to Mattis about Haditha during those meetings,
- He told Mattis his opinion of Chessani's guilt quite directly through Stone's Article 32.
- After attending all those meetings, he brought the knowledge of Mattis' opinion on each Haditha Marine into the courtroom as he testified.

We know Gen. Mattis must have thought highly of Col. Ewer to make him his top legal adviser after his Bargewell assignment. If Gen. Mattis or Col. Ewers think they got around the "appearance" of UCI, they failed (IMO). It's written all over the indirect communications between the two.

[brityank]

The last two paragraphs in Will They Ever Apologize? tell it all:

One thing is clear: resignations and perhaps prison cells are in order for those who allowed this to happen. We can never fix the wrongs committed against these Marines, but the very least we could do is give them a nationwide public apology, legal costs, lost compensation and damages and to see to it that whores such as John Murtha and Dennis Kucinich who sell slander to their constituents in return for votes pay for their wickedness and those who consider following on their footsteps think twice.

The indelible stain that the Haditha incident will leave upon the US Marine Corps and indeed the country is not from the actions of our heroic Marines. It is not from the deaths of innocent civilians, the terrorists who ambushed our Marines bear that responsibility. It is from the rush to judgment; it is from one of the Marines' own --a sitting congressman-- telling the world that he heard from the highest echelons of the Marine Corps that Frank Wuterich's squad committed cold-blooded murder and four officers covered it up. That single, treasonous statement has inflicted more damage to our military than terrorists ever could.

Seems that not only the Marines, but also the Army is infected with propaganda-driven actions by political scum who have sold out our freedom for venal gain.

[RedRover]

he brought the knowledge of Mattis' opinion on each Haditha Marine into the courtroom as he testified.

That's interesting and I never considered that angle of command influence on Ewers' testimony.

Of course, it's possible that this could have a bearing on admissible testimony in the LtCol Chessani trial--if it doesn't get spiked Tuesday.

[jazusamo]

Interesting point, Girl and I think you’re correct.

There’s no doubt that there’s at least the appearance of UCI.

That puts it right back to whether it was appropriate for Gen. Mattis to have chosen Col. Ewers as his legal advisor when Ewers investigated the incident early on and then tesified in Art. 32 hearings knowing that Gen. Mattis had to read and thoroughly study the transcripts from those hearings.

In this light I don’t believe it was appropriate.

[Girlene]

I don't think Col. Ewers testified during Lt. Col. Chessani's Article 32. However, according to Thomas More, Major Setback, He is a witness that the prosecutors plan to call in its case [the upcoming trial] against LtCol Chessani.

Maybe the judge, Folsom, will decide that Col. Ewers cannot be a prosecution witness if the trial goes forward?

[brityank]

Good point, Girl.
I believe this whole debacle for the Haditha Marines falls back to this:

The Marine Corps initially said that 15 civilians died in crossfire and that eight insurgents had been killed.

Despite that first report, when the Marines were charged nine months later, the service said that 24 civilians were killed and did not identify any of the victims as suspected insurgents.

In the end, the Marine Corps made death benefit payments to survivors of all 24, Stone's attorney Gittins said Monday.

IIRC, the Division PIO initially stated that all of the civilian deaths were as a result of the IED, and was lax in issuing a correction until after the story had been reported. Also, the fact that they paid off ALL of the decedents families with maximum solatia payments means they need someone to account for that expenditure. I believe evidentiary statements showed that there were AK47 weapons by the car, and 7x39 cartridge cases were collected in two of the houses.

To live in Haditha during that time, you either accepted or were an insurgent, or you didn't survive. Seems too many REMFs are making front-line decisions they are totally unqualified to make.

[Girlene]

I think that's right. Death benefits were eventually paid for all 24 killed that day. It was easier. The families of those killed in the last house (that LCpl Sharratt was found innocent of any wrongdoing) were paid after NCIS took their statements.

IIRC, the Division PIO initially stated that all of the civilian deaths were as a result of the IED, and was lax in issuing a correction until after the story had been reported.

I don't think the official press release has ever been modified. Go figure.

[brityank]

I have to question how, if Folsom does rule that UCI was in fact evident in the prosecutions charge statements, he can allow a ruling “without prejudice” and permit a refiling.

[jazusamo]

I don't think Col. Ewers testified during Lt. Col. Chessani's Article 32.

That's correct. I was referring to him testifying in Capt. Stone's hearing specifically and any other hearing he "might" testify in.

If he was going to testify in any of the hearings I believe it was improper for Gen. Mattis to appoint him his top legal counsel due to the appearance of UCI.

[smoothsailing]

My pleasure, glad to do it.

[smoothsailing]

Hoping Tuesday brings good news for the Chessani family and defense team.

As do I, my hopes and prayers are with the fine Marine and his family.

[smoothsailing]

Thanks for the post, yank. I'm glad you read the article.

The orchestrated and deliberate environment that these fine Marines have been forced to deal with and endure is an abomination. I can't begin to contemplate the full damage this has caused. It's truly heartwrenching.