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June 18th,
2008 - Charges Dropped Against Marine Officer News article by the Los Angeles
Times |
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Charges Dropped Against
Marine Officer A military judge dismisses the case against the highest-ranking
officer accused in the killing of 24 Iraqis in Haditha in 2005. By Tony Perry Los Angeles Times June 18, 2008 San Diego - A military judge
at Camp Pendleton on Tuesday dismissed charges against Lt. Col. Jeffrey
Chessani, the highest-ranking officer accused in the deaths of 24 Iraqis in
2005 in the town of Haditha. Col. Steven Folsom, the
judge, made his ruling in response to a motion from defense attorneys
charging that undue influence was exercised on the convening authority in the
case. Folsom dismissed the charges without prejudice, meaning the Marine
Corps could refile them. Defense attorneys had
asserted that Gen. James N. Mattis, while he was the convening authority, was
unfairly influenced by politicians, the media and a Marine lawyer in bringing
charges against Chessani and seven other Marines. Mattis, grilled by defense
lawyers, denied being influenced. "The appearance of
unlawful command influence is as devastating as actual manipulation of a
trial," Folsom said. A major point of contention
was the defense assertion that Mattis erred by allowing Col. John Ewers to be
present while the general discussed the Haditha case with prosecutors at
several meetings. Ewers had been involved earlier with the preliminary
investigation that led to a more thorough investigation by Naval Criminal
Investigative Service agents. Ewers testified that he did
not speak to Mattis about Haditha and only attended the meetings because he
had other cases to discuss with him. But defense attorneys said his presence
at the meeting constituted undue influence. The incident in Haditha
occurred Nov. 19, 2005, after a roadside bomb exploded beneath a Humvee,
killing a Marine and injuring two. Other Marines from Chessani's battalion
killed five men outside their car and then 19 other Iraqis, including three
women and seven children, while searching three nearby houses for insurgents. Chessani was charged with
dereliction of duty and failure to obey an order in not investigating the
killings more thoroughly. He was the highest-ranking Marine officer to face
charges from the wars in Iraq and Afghanistan. Chessani plans to retire but
would be kept on active duty if charges were refiled. Initially four enlisted
Marines were charged with the killings and four officers with dereliction of
duty or related counts. But the prosecution case, from the beginning, was
hampered by contradictory testimony, skimpy forensics and the refusal of
Iraqi witnesses to come to Camp Pendleton for the court proceedings out of
fear for their safety. Chessani is the third
officer to have charges dropped. The only defendant whose case went to
court-martial, Lt. Andrew A. Grayson, was found not guilty by a jury of seven
officers. Charges were dropped against three of the four enlisted defendants
in the case. Staff Sgt. Frank D. Wuterich, the squad leader who led the
charge into the houses, still faces trial. Chessani was on his third
combat tour in Iraq. Devoted to his Marines, the normally mild-mannered
Chessani was quoted by one witness during his preliminary hearing as shouting
at one of his officers that he refused to think his men had committed murder. The criminal cases might
never have been filed except for an expose in Time magazine four months after
the killings. Until then, the deaths had been considered a tragic byproduct
of an attack on a Marine convoy by insurgents. Only when top brass learned
the magazine was investigating did the military launch its own investigation. Three senior officers - a
two-star general and two colonels - received letters of censure for not
investigating the incident further. External link: http://www.latimes.com/news/printedition/asection/la-fg-haditha18-2008jun18,0,6745785.story Charges in Haditha killings
thrown out General's handling of case faulted by judge By Rick Rogers San Diego Union-Tribune June 18, 2008 A military judge yesterday
said the poor judgment of a prominent general prompted him to dismiss all
charges against the highest-ranking Marine being court-martialed in the
killing of civilians in Haditha, Iraq. Col. Steven Folsom made his
ruling in a courtroom at Camp Pendleton during a hearing for Lt. Col. Jeffrey
Chessani. His decision not only marked the latest setback for prosecutors in
the Haditha case, but it also set the military community abuzz because it's
extremely unusual for a judge to second-guess a top general. “It has never happened in
the hundreds of cases I have tried or presided over as a staff judge
advocate,” said David Brahms of Carlsbad, who was a senior legal officer in
the Marine Corps during the late 1980s and works as a lawyer specializing in
military affairs. In December 2006, Lt. Gen.
James Mattis decided to press charges against four Camp Pendleton Marines for
killing 24 men, women and children Nov. 19, 2005, in Haditha. He also charged
another four Marines for not properly investigating the incident. The charges followed months
of international outrage and concern over the Iraqis' deaths, including
remarks from President Bush, Iraq's prime minister and senior military
officials who stressed the importance of ethical behavior on the battlefield. Yesterday, only one of those
defendants, Staff Sgt. Frank Wuterich, still faced charges. Folsom allowed the military
to consider refiling charges against Chessani by Friday morning, but he
banned any units linked with Mattis in the past two years from participating
in the process. Folsom ruled that Mattis
acted wrongly in allowing Col. John Ewers, a subordinate who helped
investigate Chessani and thus became a potential witness for the prosecution,
to join deliberations about whether to file charges in the case. Folsom said
the general created a real or perceived conflict of interest by doing so. “Unlawful command influence
is the mortal enemy of military justice. The appearance of unlawful command
influence is as devastating as actual manipulation of a trial,” said Folsom,
who described his ruling as drastic but necessary. “To restore public
confidence ... we need to turn the clock back.” When prosecutor Lt. Col.
Sean Sullivan stood up to speak, Folsom told him to sit down. When Sullivan
said he wanted to raise other issues, Folsom cut him short. “Quite frankly, there are no
other issues in the case,” Folsom said. With a crack of the gavel,
the hourlong hearing ended. Mattis' oversight of the
Haditha case was one of his many high-profile tasks at Camp Pendleton, where
he was stationed between mid-2006 and late last year. During that time, Mattis
oversaw Marines at bases in California and Arizona as commander of the 1st
Marine Expeditionary Force. He also led the Marine Corps Forces Central
Command, a job that required regular trips to Iraq, Afghanistan and other
countries. Now, as a four-star general,
Mattis develops war strategies and plans combat exercises as head of the U.S.
Joint Forces Command. He supervises more than 1 million service members, civil
servants and contract employees in that role. In addition, he is Supreme
Allied Commander of Transformation for the North Atlantic Treaty
Organization. The job's description includes making changes to NATO's
military structures, forces and doctrines. While scrutinizing details
of the Haditha case, Mattis held two-to five-hour meetings at least once a
week with assistants knowledgeable about the incident. One of those people
was Ewers. During a June 2 hearing at
Camp Pendleton, Mattis testified that he neither sought nor received advice
from Ewers concerning the Haditha killings. “He never offered it, and I
wouldn't have accepted any,” Mattis said. Yesterday, Navy Capt. Denny
Moynihan, a spokesman for the Joint Forces Command, said Mattis testified
“under oath that he did not speak to (Ewers) about the case and was not
influenced by him. He stands by his statement under oath.” Folsom said he found it hard
to fathom that “not one person in a room full of lawyers” stood up to tell
Mattis that Ewers' presence during the strategy sessions suggested at least
the appearance of undue command influence. Chessani showed no emotion
as the judge read his ruling. Outside the courtroom, defense attorney Brian
Rooney spoke on behalf of Chessani and his wife, Alissa, who stood nearby. “They are happy. Like all of
us, they are cautiously optimistic,” Rooney said. “Essentially, the judge
said that if they want to file charges, they have to start back at square
one.” Chessani, who wasn't at the
site of the Haditha killings, was charged with not following a lawful order
and dereliction of duty. The Folsom decision sent
ripples through the circles of military and legal analysts. Some talked about
what circumstances could have led to the stunning ruling, while others
pondered what it might mean for the military's legal system. “First, this should not have
happened,” said Tom Umberg, a former military prosecutor who is in private
practice in Costa Mesa. “But people can become lax in terms of responsibility
to the system or become intimidated and fail to voice their concerns.” Eugene Fidell, president of
the National Institute of Military Justice in Washington, D.C., said criminal
investigations can create highly sensitive situations, such as fact-gatherers
who later become involved in other phases of a case. But that's when it's most
important to pay attention to conflict of interest and other matters of legal
propriety, he said. “I think any time roles get
confused, it has a terrible effect on the administration of justice,” Fidell
added. “The whole goal of independent decision making is eroded.” Brahms also wondered why
Ewers didn't object to attending the strategy meetings with Mattis, saying
that Ewers is one of the most experienced staff judge advocates in the Marine
Corps. “My concern is that people
are going to look at this and say that the military justice process cannot be
trusted,” Brahms said. “I think that is the wrong message, but it might be
the one that is taken away.” Yesterday's ruling could
portend a full collapse for the prosecution of the Haditha case, which has
seen generals drop charges against one defendant after another because of
factors such as lack of evidence and plea deals in which the government
exonerates a Marine in exchange for his future testimony. Prosecutors have argued that
Wuterich, the staff sergeant, led some members of his squad in attacking
Iraqi civilians as revenge for a roadside bomb that killed one Marine and
wounded two others. The defendants said they
couldn't avoid killing the civilians during a legitimate battle that broke
out with insurgents after the blast. Wuterich's attorneys have hinted that
they might also allege undue command influence. “The question is, will there
be different outcomes?” Brahms said. “I don't think people have the same
stomach chasing after Chessani as they do Wuterich.” External link: http://www.signonsandiego.com/news/military/20080618-9999-1n18haditha.html |