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by Nathaniel R. Helms & David Allender | Thursday, January 19, 2012

Camp Pendleton, Calif. -- Defend Our Marines has learned there is a deal on the table inside a Camp Pendleton courtroom where SSgt Frank D Wuterich now balances choices that will determine the rest of life. The 31-year-old father of three can bite the proverbial bullet and ask for administrative separation, or he can dig in his heels and fight for the principles he has already proved he is willing to die for.

Another option, considered less likely but more compelling, is a “Directed Verdict,” in which the judge tells the government it hasn’t made its case in all or some of the specifications of the criminal complaint. Military lawyer Kevin McDermott, an Orange County-based attorney who has been defending Marines for his entire career, says a directed verdict sends a potent message to panelists that the government has it wrong. ”A snippet of evidence in every charge” is all military judge LtCol David Jones has to take umbrage with to cast doubt on the entire prosecution case, he said.

Within his own defense team, lead attorney Neal Puckett, a retired military judge, and co-counsel Haytham Faraj, a retired Marine lawyer, reportedly seem to be at odds over exactly what to do. Puckett is prepared to cash in his client’s chips, cut his losses so to speak, so Wuterich can go home to his three little girls. Proponents of “what is best for the client must always prevail” say that is hard to dispute. There is much to be gained from this approach.

Faraj, a tactically brilliant attorney who has shredded the government’s case thus far, reportedly wants Wuterich to stick it out to the end. Faraj is a go-for-the-throat fighting Marine who has literally captured the government’s witnesses and turned them into his own. The benefits of this approach are far less tangible although no less important. Faraj knows Wuterich is innocent. Implicit is his position however is the honor of the Corps. Even the crustiest Marine knows absolute absolution is the only way the institution they proudly serve can remove the virulent stain of the debacle at Haditha.

Co-defendant LtCol Jeffrey Chessani fought for that principle. He gave up his promising career rather than fold. Loyalty up and down the chain of command is central to the spirit of the Marine Corps. There are many within the Corps who feels Wuterich still owes a heavy obligation to it.

Absolution without a “not guilty” verdict however comes with a heavy price. There is still no guarantee Wuterich won’t find himself in jail.

The easiest way for ending it all is called SILT, a murky mechanism Wuterich must initiate himself. The acronym means Separation in Lieu of Trial, a commonly used device that allows Wuterich and the Marine Corps to save face.

SILT stipulates Wuterich must admit he did something wrong. For saying so, the government can provide him either a General Discharge under Honorable Conditions or remain persnickety and only agree to release him with a General Discharge under Less than Honorable Conditions; many say a mean spirited mechanism that provides the Marine Corps with a way to save face without even a taste of mercy. If the government discharges him under less than honorable conditions the Marines who risked his life will lose his veteran’s benefits and still be guilty of a crime. It is not the only option out there, but it is the most likely, several lawyers said. In essence, Wuterich bites the bullet and take a less than honorable discharge in return for unfettered freedom. The alternative is digging in his heels to fight the good fight for a principle he joined the Corps to preserve.

James Culp, an Austin-based attorney who specializes in military law, explained the SILT procedure. Either way it is a Hobson’s choice, he said. Wuterich must say he either committed a specified offense, or a lesser included offense to make a deal. He doesn’t have to identify which offense he admitted to; he simply has to agree he did something wrong. Lesser included offenses include a list offense almost as long as the list of potential charges included in the Uniform Code of Military Justice. In any event, it will follow him the rest of his life.

The only other alternative is to resume the trial. It is fraught with imponderables. Will the panel remember the haunting faces of the dead children, will it recall the vicious treatment of the Marines set upon by the chain dogs from the Naval Criminal Investigative Service who decided to build a case based on presumption and political intrigue, or will it return to the fundamentals of military service, where good order and discipline is not about justice, it is about holding together an institution that would otherwise fall apart.

Court resumes at 0830 Friday.



Nathaniel R. Helms
Defend Our Marines
19 January 201

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 2012

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