by Nathaniel R. Helms |
Saturday, January 21, 2012
Oceanside, Calif. -- The second week of testimony ended
Friday afternoon at the court-martial of SSgt Frank D. Wuterich.
So far the government has not proved he unlawfully killed anyone,
much less how, where, or when. What has been firmly established is
that Wuterich is a great Marine infantryman greatly admired both by
his squad and his superiors. The former squad leader is charged with
killing an unspecified number of civilians in Iraq in 2005, assaulting
others, and being derelict in his duties.
Defend Our Marines didn’t report the story Friday night
because the whole day of testimony was so unremarkable it simply
wasn’t worth sharing it until it could be enlivened by the light of
previous findings on a witness, Sgt Humberto Mendoza. The most
extraordinary event on Friday had nothing to do with the court
The day began with Marines busy getting ready for Vice President
Joseph Biden and his wife on the grinder that separates the Media
Center from the court room. Reporters covering the court martial had
to go around them. Questions were neither sought or desired before
The VP was at Camp Pendleton to tell the Marines how much he
appreciates them. His wife met a unit of female Marines destined for
duty in Afghanistan who showed off their new found skills dealing with
Afghan women in their native Pushtun, and a line company in immersion
training who took things in hand at a mock Afghan village. At the
black top grinder, speeches were heard. Their visit concluded at the
Warrior Hope & Care Center where wounded Marines are rebuilding their
bodies and lives.
“We owe you guys more than anything…” the North County Times
reported Biden saying. The flag waving dog-and-pony show somehow
seemed incongruent with the court-martial for a Marine’s life going on
50 yards away.
Inside the courtroom, both sides finished grilling 29-year old
Venezuelan native Sgt. Humberto Mendoza, one of two 3rd Platoon grunts
turned by the government to testify against Wuterich.
Prosecutor Sean Sullivan used Mendoza to try and prove the fire
team of Marines he belonged to ran amuck and wiped of two families of
innocent civilians. Mendoza suffered a rough cross-examination from
defense attorney Haytham Faraj, who strikes really hard sometimes.
Mendoza answered Faraj with a crisp “Yes, sir” and “No, sir” whenever
he could. Where he got into trouble was trying to explain himself. The
Chinese would characterize his style of interrogation as “death by a
Sullivan and Faraj sparred a few times during the interrupted
examination that began last Wednesday. Mendoza admitted lying to
pre-trial investigators in Iraq and back home because he wanted to
“protect” his squad mates. Essentially Mendoza testified Wuterich was
a great Marine who never ordered him to do anything unlawful on Nov.
19, 2005 and helped keep him alive.
After retelling what happened at House 1, Mendoza said he really
didn’t know what went on in House 2 where eight people were killed,
many of them small children that still haunt him today, he said.
“Up to this day I really don’t know what happened in the back
bedroom," he explained.
Mendoza was certain the house was hostile when he attacked it under
Wuterich’s command, he said. He was certain both houses they cleared
were hostile when he killed two men with his rifle and threw some
grenades. One of them may be the “dud” a previous witness said Tatum
later recovered with safety tap still wrapped around the arming handle
and the arming pin missing.
Mendoza said Wuterich was among the Marines who taught him how to
keep himself alive around things that can really hurt if they aren’t
handled correctly. Taping grenades was one of those lessons. He was
less certain of what happened later, what he did and what the other
Marines did after viewing the carnage he discovered inside a tiny room
where most of a young family died. It was his first and only taste of
combat. Mendoza is in administration now. He told Faraj he wanted to
“try something else.”
Mendoza has a closer relationship with prosecutor LtCol Sean
Sullivan that the government apparently wanted to reveal. At least
Sullivan never mentioned it. Somehow Mendoza wrangled a transfer to
Chicago where Sullivan held a reserve commission in a local battalion
until the Marine Corps called him to active duty. Faraj made a few
references to their curious relationship in his cross-examination.
Mendoza acknowledged he visited with Sullivan in Chicago sometime
after being coerced by Naval Criminal Investigative Service agents who
threatened him with deportation if he didn’t cooperate. Both sides
stopped short of asking Mendoza what else happened there.
NCIS unethical tactics: at odds with US law
On July 25, 2007, Defend Our Marines took a look for itself.
The facts have never been challenged so
the story is still on the mark. The member of the defense team was
observed reading it in the court room earlier this week.
Defend Our Marines reported that Jack Zimmermann, the Texas
attorney representing Lance Cpl. Stephen Tatum, suggested NCIS used
the vicious ploy to gain Mendoza’s testimony during his examination of
A spokesman for United States Immigration and Customs Enforcement
said the Naval Criminal Investigative Service special agents who
threatened Mendoza with deportation were at odds with current US law.
A spokesman for ICE in Washington, D.C. said NCIS could only make
such a threat if Mendoza was already convicted of a serious crime.
Current immigration law mandates violators must be convicted of a
crime providing for “at least one year in jail or more” before it will
initiate deportation proceedings, according to Pat Reilly, the Public
Affairs Officer for ICE at the time. She noted two exceptions to the
1.) If Mendoza lied about his citizenship status and fraudulently
enlisted in the Marine Corps;
2.) If Mendoza had already been convicted of two or more crimes.
The PAO at the Media Center said Mendoza’s citizenship status was a
question for the Public Affairs Officer for the 1st Marine Division.
The 1st MarDiv PAO never responded. Presumably, given Mendoza’s
unfettered testimony, he remains in good standing in the Marine Corps.
On December 18, 2005, three days before three Marines from his
squad were charged with murder Mendoza was granted immunity from
prosecution in return for his cooperation. During an earlier court
appearance Mendoza devolved from being part of a combat stack of
Marines attacking a hostile objective to a lone Marine apparently
wandering around in a smoke-filled house grenades had just been thrown
into, he testified.
In his post-immunity version of events, Mendoza didn’t shoot anyone
except a couple of fellows who must have deserved it. When he
discovered innocent civilians huddled in a room behind a closed door
he backed away, shutting the door behind him. Despite the early
morning gloom stipulated by both sides, he could see the darkened,
smoke-filled chamber was full of terrified women and children. Tatum
did all the killing, he said.
Zimmermann subsequently suggested during his examination of Mendoza
that the NCIS told Mendoza his citizenship was at stake if he didn’t
cooperate. In any event it was a hollow threat. In most jurisdictions
the court will call that type of behavior coercion.
"60 Minutes" outtakes
The long anticipated outtakes from a 2007 “60 Minutes” broadcast
went a long way toward humanizing the young Marine who was the subject
of Scott Pelley’s interview. It would serve better as a primer for
budding television producers than an indictment of Wuterich. It is
hard to understand why the government spent three years and much
taxpayer money obtaining it. (Read a transcript of the aired "60
The panel got to see three hours of how TV producers and directors
reshoot the same questions over and over while they take tight shots
and wide shots and stick little pieces of paper on a Google map to
show where it all happened. Through it all Wuterich maintains an even
string, even when Pelley calls him a murderer. Perhaps that is where
the prosecutors got the idea to make the Marines who testified do the
same thing on a blown up Goggle map inside the courtroom.
Monday the government brings two Naval Criminal Investigation
Service crime scene reconstructionists to the stand. At least they
won’t get shot at while they are testifying. At Haditha in 2006 an
investigation team with one male and two female agents had to retreat
in disorder after the Marines securing them found an IED near the
alleged death houses. Another time they had to cut short their
interrogations of the surviving victims when local insurgents starting
shooting at them. Nobody seems to like them. Perhaps that is why the
NCIS always seemed so testy when they were abusing the Marines under
the Haditha Dam.
Crime scene reconstruction is a fascinating subject. But listening
to it is like watching corn grow, you can hear it, but it is really
boring to watch. After them four investigative agents who tried to
humiliate the murder suspects in a urine soaked dungeon and badger
them into complicity at Camp Pendleton will appear. Their testimony
will bring the government’s case to a close.
The eight-member panel will no doubt recall the indignities NCIS
agents inflicted on the Marines that came to light during the
presentation. Who can forget SgtMaj Edward Sax saying he told his
Marines to pull out their penises and urinate on the table the next
time the badge-heavy special agents refuse to let them go to the head?
If they don’t, the defense team will probably remind them.
Sources close to the investigation said SSgt Wuterich was on the
verge of cutting a deal when he was encouraged to reconsider his
options and go for broke. He was reportedly swayed by arguments that
he owed both the Corps and the other Marines who paved the way for his
ultimate exoneration. The defense is already displaying a lot of
confidence and it hasn’t even been up to bat.
Military judge LtCol David Jones once again admonished the
government lawyers to move the court-martial along. He anticipates it
will now conclude in the first week of February. Meanwhile court will
last an hour longer each day and will go all day Saturday to make up
the time lost when Wuterich was negotiating a deal that would have
ended it all.
Nathaniel R. Helms
Defend Our Marines
21 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).