by Nathaniel R. Helms |
Friday, January 6, 2012 | Day Two: Jury selection complete
Camp Pendleton, Calif. – An eight-man
panel of four officers and four senior non-commissioned officers will
begin listening to testimony Monday morning when the lawyers fighting
the final Battle of Haditha offer their opening statements at the
General Court Martial of SSgt Frank D. Wuterich, the last Marine
standing in the six-year-old fight.
The government is apparently expecting a tough
battle in the weeks ahead.
“I can’t think of a single witness desiring of
being helpful to the government,” complained chief prosecutor Major
Nicholas Gannon at the conclusion the tedious two-day voir dire
proceeding. Sitting next to him was LtCol. Sean Sullivan, a Chicago
reservist called to active duty to augment the
prosecution team the government assembled.
Across the aisle, wearing an air of pleased
expectation, were Wuterich’s lawyers: retired Marine military judge
Neal Puckett and Haytham Faraj, a retired
Marine major and experienced Haditha defense counsel. Assisting them
is detailed Marine counsel Major Meridith Marshall, a relative
newcomer to the Haditha imbroglio.
Military judge LtCol. David Jones ordered the
trial to begin Monday morning after a colonel and two sergeants were
stricken from the pool of potential panelists at the conclusion of the
two-day selection process.
Attorneys in military cases are allowed to
request the removal of potential jurors--called "panelists" in
military law--for cause or simply because they don’t like what the
panel candidates had to say. The Colonel, deemed too close to the
convening authority, a Master Gunnery Sergeant who provoked somebody’s
ire, and a Gunnery Sergeant who mentioned Hiroshima and Haditha in the
same breath were stricken from the roles after the prosecutors and
defense attorneys jousted over their continued presence.
During the voir dire proceeding, almost
all of the Marines questioned by Sullivan and Faraj stumbled through
explanations of what the Rules of Engagement said in November 2005,
offering vague impressions of how they were changed after former
Marine Commandant General Michael W. Hagee visited Iraq in 2006
following the Haditha fiasco. The potential panelists had an equally
tough time explaining when and why escalation of force can be
implemented, and what to do when apparent non-combatants find
themselves on the firing line. Each of those questions represent
fundamental building blocks the panelists must consider when deciding
the guilt or innocence of Wuterich, a rookie squad leader who
commanded the Marines that counter-attacked their ambushers.
The real Battle of Haditha
The ambush was the beginning of a day long fight
at Haditha that left one Marine dead, eleven wounded, and an unknown
number of hostiles dead in smoking bomb craters and shredded
underbrush covering the battlefield.
“There were several
significant incidents going on that day. We destroyed an insurgent
safe house down the road with bombs the same morning, turned it into
dust. There could have been civilians killed there…” former 3/1
commanding officer Jeffrey Chessani told Defend Our Marines in July
2010 (read the story here).
“We found insurgents buried in shallow graves still in their weapons
and equipment. We had to bury dead insurgents wearing ammunition vests
because they started to stink".
“We worked closely with
our Human Exploitation Teams (HET) and my S-2 (Captain, later Major
Jeffrey Dinsmore) was a bulldog. I was so lucky to have him. He knew
what was going on. We got those weapons. We took away the enemies’
ability to attack my Marines and civilians. The people were safer. Not
even the insurgents wanted to kill civilians if they didn’t have to.
We took away the means,” Chessani added.
At the end of the day Marines, had captured or
detained enough suspects who later talked that 3rd
Battalion, 1st Marines was able to break the back of the
active insurgency in Haditha, Chessani explained.
career infantry officer has been stricken from the witness list for
Wuterich’s court martial.
The fight ahead
The eight Marines on the panel will spend as long
as three weeks reliving the gruesome November day when 24 Iraqis were
killed in Haditha. Two lieutenant-colonels, a major, one captain and
four senior non-commissioned officers will ultimately decide whether
Wuterich will be allowed to leave Camp Pendleton a free man or spend
the rest of his life inside a federal prison in Leavenworth, Kansas.
All of the Marines selected to join the jury panel have experienced
combat in Iraq or Afghanistan, most of them in both during multiple
For more than five years the 31-year old Marine
has waited for his day in court. He was indicted December 19, 2006
upon the conclusion of a world-wide, multi-million dollar criminal
investigation of the alleged November 19, 2005 massacre that never
Although eight Marines were initially charged
with complaints ranging from murder to cover-up and dereliction of
duty, all but Wuterich have been exonerated. During the contentious
proceeding in 2006 and 2007 all of them were cleared because of a lack
of evidence, a paucity of forensic clues, and the almost certain
participation of Al Qaeda financed terrorists who precipitated the
incident by attacking the Marines from ambush.
LtCol. Paul Ware, the
investigating officer who presided over Wuterich’s Article 32
preliminary investigation pointed out in October 2007 the stumbling
blocks the government had to overcome if it had any hope of earning a
recommending that the Government pursue the lesser offense of
negligent homicide and not murder because I believe after reviewing
all the evidence, no trier of fact can conclude SSgt Wuterich formed
the criminal intent to kill. The evidence is contradictory, the
forensic analysis is limited and almost all witnesses have an obvious
bias or prejudice. The case against SSgt Wuterich that he committed
murder is simply not strong enough to prove beyond a reasonable
SSgt Wuterich, a divorced father with custody of
his three young daughters, faces a maximum of more than 157 years in
prison if convicted on 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 as
the prosecution charges. Counted among the victims were Iraqis in
homes stormed that day and five unidentified males in the infamous
“white car” that will be the focus of much attention in the coming
The victims were slain after Wuterich’s 12-man
squad was attacked while on a resupply convoy, killing one Marine and
wounding two more riding in four Humvees. The defense contends that
14 of the victims were caught in the vicious cross-fire that erupted
after Wuterich led his team to the source of the enemy fire and the
other five men when the white car they were riding in inexplicably
appeared inside the Marine’s security circle seconds before the IED
The prosecution claims Wuterich failed to follow
the rules of engagement that required the Marines to make positive
identification of enemy combatants or be in imminent danger of death
or serious bodily injury before opening fire.
During Friday’s proceeding Wuterich remained
alert, frequently asking his lawyers whispered questions, occasionally
smiling, and listening intently when the gruesome realities of armed
conflict were momentarily revealed by potential panelists attempting
to answer imponderables that have plagued wars and warriors in
perpetuam rei memoriam - in everlasting remembrance.
Nathaniel R. Helms
Defend Our Marines
6 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).