by Nathaniel R. Helms & David
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
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 2012
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).