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EXCLUSIVE!

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Court-Martial of Highest Ranking Officer
Charged with Crimes at Haditha
May be Delayed Again

by Nathaniel R. Helms

May 1, 2008 The court-martial of the highest ranking Marine Corps officer accused of crimes in the infamous incident at Haditha, Iraq will face further delays if the Military Court of Appeals grants motions filed there by his defense team today.

The Thomas More Law Center that represents Lt. Col Jeffrey Chessani announced today that it has filed a “Petition for Extraordinary Relief” with the United States Navy-Marine Corps Court of Criminal Appeals in Washington, D.C on his behalf.

The petition asks the military appellate court to reverse the judge’s order denying the defense counsel’s request for evidence it deems essential to his defense. Along with the petition, the Law Center is asking the military appellate court to stay the trial until the issue is resolved and to stop the proceedings until the evidence is produced.

The former commanding officer of 3rd Battalion, 1st Marines is presently scheduled to stand general court-martial for dereliction of duty and failing to obey orders on June 17 at Camp Pendleton, California.

Chessani is facing a court martial based on allegations that he did not accurately report or thoroughly investigate a combat action between his Marines and insurgents that resulted in the deaths of 15 Iraqi civilians.  The November 19, 2005 incident sparked international outrage when it was characterized in the press and by politicians as a massacre.

In December 2007, Chessani’s defense counsel requested that government prosecutors turn over evidence that was critical to the preparation of his defense, including the computer hard drives used by the officers in LtCol Chessani’s direct chain of command during the period of time alleged in the criminal charges. 

The drives reportedly contain evidence that would exonerate Chessani by showing that his immediate superiors had all of the relevant information regarding the Haditha incident within a few days of the insurgent ambush that triggered the affair.

The evidence includes emails, daily journal entries, and notes written by the division commander and other senor officers “memorializing” their conversations with Chessani that detail the events as they happened. All of this information was routinely gathered and included in the daily situation report the 2nd Marine Division’s senior officers prepared for their superiors in Baghdad and elsewhere.

In January 2008, the government refused to produce the evidence, claiming that it was not “material or relevant” to the case.  Chessani’s joint military-civilian defense team filed two motions with the military judge, requesting that he order the prosecutors to produce the evidence.  The military judge denied the requests on April 15, forcing Chessani’s attorneys to seek immediate review by the appellate court, according to Brain Rooney, an associate at the law center who represents the decorated infantry officer.

“The relief we are seeking in the military appellate court is truly extraordinary.  Appellate courts typically do not intervene at this stage of the proceedings over matters dealing with the production of evidence.  However, the denial of this evidence will essentially deprive LtCol Chessani of his fundamental right to a fair trial, and we feel strongly about that,” Richard Thompson, President and Chief Counsel for the Law Center, commented it the center’s press release.

Along with the petition, the Law Center is asking the military appellate court to stay the trial until the issue is resolved and to abate the proceedings until the evidence is produced.

Meanwhile, on the Fallujah case

In the unrelated Fallujah murder investigation also underway in California a federal judge Tuesday denied a defense motion to have the case against former Marine squad leader Sergeant Jose Nazario dismissed on the grounds the civilian authorities did not have jurisdiction in the case. Nazario, now a civilian, is being charged in US District Court for Central California with two counts of voluntary manslaughter for shooting two Iraqi prisoners his squad had captured.

Nazario, 28, is charged under a new law called the Military Extraterritorial Jurisdiction Act (MEJA), passed by Congress in 2000 in part to give the federal government a means to prosecute former service members who commit crimes while serving in the military.

Defense Attorney Kevin B. McDermott had filed the motion two weeks ago seeking to dismiss the indictment on the grounds that Congress did not intend MEJA to apply to cases in which a service member was acting under orders during combat.

U.S. District Judge Stephan G. Larson dismissed the motion in a four-page opinion. “…This Court declines defendant’s invitation to explore the thicket of congressional intent surrounding the statutes implementation,” Larson wrote.

On Wednesday Nazario’s defense team revealed that the government is now seeking to charge Nazario with murder and the unlawful use of a firearm in the commission of a felony. They were advised Nazario’s case is being sent back to the Grand Jury to discover if the government can enhance the charge to murder and using a firearm in the commission of a felony, a charge usually reserved for street criminals. If it is successful Nazario will be the first American citizen ever charged with murder when there was no identifiable victim, his lead counsel Kevin B. McDermott said..

Nazario, a squad leader in 3rd Platoon, Kilo Company, belonged to the same battalion that Chessani would command a year later. Coincidentally, two Marines who fought with Nazario at Fallujah would later be charged with crimes at Haditha and then exonerated.

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Nathaniel R. Helms
Defend Our Marines
1 May 2008

Note: Nat Helms is a Contributing Editor to Defend Our Marines. He is a Vietnam veteran, former police officer, war correspondent, and, most recently, author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).

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© Nathaniel R. Helms 2008

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