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.
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).
