by Nathaniel R. Helms |
Thursday, January 5, 2012 | Day One: Voir Dire |
Camp Pendleton, Calif. – LtCol. Jeffrey
Chessani, battalion commanding officer of the Thundering Third at time
of the so-called “Haditha Massacre", will not be testifying at the
court-martial of SSgt Frank Wuterich, the military judge said
Thursday. Chessani was the highest ranking Marine charged with a crime
in connection with the deaths of 24 Iraqi citizens following a
roadside ambush in the dusty Iraqi city during November 2005.
“Chessani will not be a witness,” announced
military judge LtCol. David Jones.
“We lost that battle,” said chief defense
attorney Neal Puckett, himself a former Marine military judge.
Chessani was one of the witnesses the government
objected to during pre-trial negotiations to determine who and who
would not be called to testify. When asked if the defense was
disappointed by the decision, Puckett, a retired lieutenant colonel,
said his defense team had tried vigorously to bring Chessani back to
Camp Pendleton one last time. Puckett is assisted by his partner
Haytham Faraj, a retired Marine major and experienced Haditha defense
counsel who achieved a high profile during the often contentious
Article 32 hearings in 2007. Wuterich’s detailed Marine counsel is
Maj. Meridith Marshall.
The government is represented by veteran
prosecutors Maj. Nicholas Gannon assisted by LtCol. Sean Sullivan,
well known during the early pre-trial investigations for his fiery
temper and forceful court room manner.
investigation of the November 19, 2005 incident at Haditha, Iraq,
Chessani commanded 3rd Battalion, 1st Marines.
He was frequently quoted during the reporter’s feeding frenzy that
followed the accusations as vehemently saying, “My men are not
murderers” when apprised of massacre allegations by a Time
magazine reporter. The story Tim McGirk wrote, dubbed the “Haditha
Massacre” by the excitable scribes who followed, morphed into a
full-blown criminal investigation that changed the way Marines in Iraq
fought the war.
Chessani, a career infantry officer with a
brilliant combat record, left the Marine Corps with his rank and
retirement privileges intact after being exonerated of all criminal
charges. Six other defendants, three officers and three enlisted
Marines, have also been exonerated by various means. Wuterich is the
last Haditha defendant to face charges and the second whose case is
being disposed of by general court-martial.
[Note: Chessani spoke out about the case for
the first time to Defend Our Marines on
July 21, 2010. Read the first
in a three-part article
The business of the day however was not disposing
of the charges. It was voir dire day, the first of two days the
lawyers will apparently need to decide who will be seated on the
“panel,” the name military courts use to identify the jury.
Eleven senior Marines, five officers and six
non-commissioned officers, have been detailed as potential jurors –
“panelists” in military parlance – to determine the guilt or innocence
of SSgt Frank D. Wuterich. They include a full-bird colonel, two
lieutenant colonels, a major, one captain, a master gunnery sergeant,
a first sergeant, two master sergeants and two gunnery sergeants. Military law considers them to be Wuterich’s peers, and therefore
eligible to judge him.
The gunnery sergeants are the two potential
jurors closest in rank to Wuterich, who is entitled to a panel in
which one-third of the members are enlisted men. Staff sergeants such
as Wuterich hold the pay grade of E-6. Gunnery sergeants, commonly
referred to as “gunnys,” are E-7s. Although the pay grade numbers are
close, the status and influence of a gunnery sergeant vastly surpasses
that of his E-6 subordinates.
Based on the assortment of decoration visible in the assemblage, there
are a lot of hardcore fighting men among the Marines who will
ultimately decide Wuterich's fate.
According to testimony offered Thursday, the potential panelists were
given a questionnaire to complete during the Christmas holiday season
by the chief of staff of the 1st Marine Division. After a
review of their answers, the potential panelists were notified last
week they would be part of the pool of potential jurors now being
quizzed in the cramped courtroom at Camp Pendleton. Most of them said
they did not know they would be involved in the Haditha matter until
they were selected for the panel pool.
Lawyers from both sides of the courtroom spent
most of Thursday tediously and repetitively grilling the potential
panelists to determine whether they will ultimately decide Wuterich’s
fate. First they asked the entire 11-member pool general questions and
then cleared the court room and summoned each individual in for a
The process is similar to a civilian court’s
voir dire procedure, with both sides trying to select Marines that
seem sympathetic to their side of the infamous case. As simple as it
sounds, it is not an easy process, lawyers are quick to admit.
Pre-hearing procedures, rules of law, and judges who want to get on
with the proceeding dictate what kind of questions will be asked and
in what manner they may be phrased.
At the conclusion of the voir dire
process, as few as five or as many as all eleven of the potential
panelists will be seated, said Marine Corps PAO LtCol Joseph Kloppel.
In the meantime the attorneys will try and divine from the answers of
the jury pool who they want on the panel.
Common wisdom says enlisted men prefer enlisted
panelists and prosecutors prefer officers, who they believe more
closely follow the customs and traditions of their caste, Kloppel
“At least that’s what I think,” he explained.
The 31-year old Marine infantryman and former
squad leader, is charged with nine counts of Voluntary Manslaughter,
two counts of Assault with a Dangerous Weapon, and three counts of
Dereliction of Duty for his role in the deaths of 19 Iraqi citizens
who were killed after Wuterich’s 12-man squad was ambushed on November
19, 2005 while on a resupply convoy.
LtCol. Jones Thursday morning asked the potential
panelists whether they could give “fair consideration” to sentencing
Wuterich to a dishonorable discharge and more than 157 years in prison
for his role in leading a fireteam of Marines that killed the
civilians more than six years ago. All raised their hands in
SSgt. Wuterich was present during the day,
listening intently and occasionally making notes.
During the proceedings, potential panelists heard
a laundry list of familiar names, all players in the six year
investigation of the alleged massacre that captured the attention of
the world when it was revealed in early 2006. The government is
expected to call about 40 prosecution witnesses, including several
Marines who were granted testimonial immunity in exchange for their
LtCol. David Jones told the potential panelists they should expect to
be in the tiny, austere courtroom at Camp Pendleton for as long as
Note: A correction was made in this article
after it was first posted. Like the rest of the media, Defend Our
Marines misreported the name of SSgt Wuterich's Marine counsel as
Major Meredith Nelson. It is actually Major Meridith Marshall. We
regret the error.
Nathaniel R. Helms
Defend Our Marines
5 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).