MILITARY: Haditha cases continue to unravel

Unlawful-influence finding may have domino effect

By MARK WALKER - Staff Writer | Saturday, June 28, 2008 11:13 PM PDT ∞

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."

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

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