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August 4th,
2008 - Marine Corps Seeks to Reinstate Haditha Charges |
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Marine Corps Seeks to Reinstate
Haditha Charges Appeal says judge erred in dismissing case against Lt. Col. Jeffrey
Chessani By Mark Walker North County Times August 4, 2008 Camp Pendleton - A judge
abused his power when he dismissed dereliction of duty charges against Lt.
Col. Jeffrey Chessani in the 2005 slaying of two dozen Iraqi civilians,
according to an appeal filed on behalf of the Marine Corps. Navy Lt. Timothy Delgado
argues the charges against Chessani should stand because the judge erred in
declaring that Marine Gen. James Mattis was illegally influenced in his
handling of the case. At issue is whether Mattis
was guilty of "unlawful command influence" because he allowed his
top legal aide, Col. John Ewers, to sit in on meetings with prosecutors.
Ewers investigated the killings in the city of Haditha and is a potential
prosecution witness. In his June 17 decision, the
judge, Marine Col. Steven Folsom, ruled that Mattis was unduly influenced.
The ruling has called into question all seven other Haditha cases and has
implications in the only other remaining prosecution, that against Staff Sgt.
Frank Wuterich. "The military judge's
findings of fact are clearly erroneous," Delgado contends in a 43-page
argument filed with the Navy-Marine Corps Court of Criminal Appeals in
Washington. "The military judge abused his discretion in fashioning the
sweeping remedy that he did." Among other reasons he cited
when ordering the dismissal, Folsom said Chessani's prosecutors were junior
in rank to Ewers and were unlikely to challenge him. That alone created an
unfair climate, the judge ruled. Chessani commanded the 3rd
Battalion, 1st Marine Regiment at Haditha when the killings occurred Nov. 19,
2005. He is accused of failing to order a full-scale investigation, and is
the highest-ranking officer charged in the incident that spawned a domestic
and international uproar. Ewers' role as an
investigator and later appointment as Mattis' chief legal adviser tainted the
case beyond repair, Folsom ruled. Dismissal was necessary, he said, to
maintain public confidence in the military justice system. "Unlawful command
influence is the mortal enemy of military justice," Folsom said when he
ordered the charges tossed on June 17. "The appearance of unlawful
command influence is as devastating as actual manipulation of a trial." But the appeal filed by Delgado,
an attorney in the Navy's appellate branch in Washington, says Mattis was
never unduly influenced by Ewers. "There is no evidence
that Gen. Mattis relied on Col. Ewers for any information, opinions or legal
advice," he wrote. "Instead, the record shows Gen. Mattis to be an
independent commander highly unlikely to be prone to manipulation by his
staff officers." Mattis was a lieutenant
general at Camp Pendleton in 2006-07 and his duties then included overseeing
the case against Chessani and seven other Marines. Mattis has since been
promoted to four-star general and a different job and is no longer overseeing
the prosecutions. The appeal cites several
instances in which Mattis, testifying at a hearing at Camp Pendleton on June
2, denied talking to Ewers about the Haditha prosecutions. Instead, Mattis
said he relied on another legal aide for advice on those cases. "Gen. Mattis used the
word 'never' 10 times in answering questions about whether Col. Ewers had
provided any legal advice with respect to (Chessani's) case or any Haditha
case," the appeal points out. It also quotes Mattis'
testimony, in which he stated that Ewers "never spoke to me about this
case nor would I have asked him for any information or advice. A strict
firewall was maintained. ..." Chessani faces up to six
months in custody and a dismissal from the service without benefits if the
charges are reinstated and he is convicted. His attorneys at the Thomas
More Law Center in Michigan have three weeks to file a response. They have refused
requests for comment on the Marine Corps' appeal and did not immediately
return messagess Monday. The Navy-Marine Corps Court
of Criminal Appeals is an intermediate appellate court in the military
justice system. A date for its three-judge
panel to consider the appeal of the Chessani dismissal has not been set.
Their rulings are subject to further challenge before the Court of Appeals
for the Armed Forces. After Folsom's ruling,
Wuterich's attorneys said they will seek to have his case dismissed, arguing
the finding that Ewers illegally influenced the Chessani prosecution equally
applies to their case. His trial is on hold pending resolution of a ruling
denying the government access to outtakes of a March 2007 interview with the
CBS news magazine "60 Minutes." Wuterich led a squad in the
slayings after a roadside bombing during a resupply run killed a Marine lance
corporal. Initial charges of murder have been reduced to nine counts of
voluntary manslaughter. Three other officers and
three other enlisted men charged with crimes at Haditha have been exonerated
through dismissal or withdrawal of charges and one not guilty finding at
trial. External link: http://www.nctimes.com/articles/2008/08/04/military/z24633184f0a151da88257494006dd5f0.txt |