The government’s case against the last
Marine standing in the so-called “Haditha Massacre” debacle may run
aground on the rocks and shoals of Marine Corps legal precedence, said his
leading civilian attorney.
Former Marine Corps military judge Neal Puckett
says Staff Sergeant Frank Wuterich was denied his inherent right to
retain the military lawyer appointed by the Marine Corps to defend him
so the case must be dismissed.
Wuterich, 30, of Meriden, Conn., faces 12 counts of
voluntary manslaughter and related charges. On Dec. 21, 2006 he was
indicted on 17 counts of unpremeditated murder, two counts of
soliciting another to commit an offense, and make false official
statements for his infantry squad’s actions at Haditha, Iraq. Since
then the government has repeatedly reduced the charges when the
evidence of massacre and cover up failed to materialize. If convicted
Wuterich could still spend most of his life in prison. He has been
waiting almost five years to go to court martial.
“He wants to get it over with,” Puckett said.
There is more at stake than mere legal precedence,
Puckett explained. Also at issue is the overriding principal of
balanced justice, a cornerstone of American jurisprudence. Why is the
government privileged to leave in place a prosecution team long past
the time ordinary personnel procedures dictate they move on, Puckett
rhetorically asked, while insisting a critical Marine defense lawyer
serving the same cause was forced into retirement over his repeated
protests?
For instance, senior prosecutor Lt. Col Sean
Sullivan, a reservist called to active duty to prosecute the Haditha
Eight, has been retained on active duty so long he has obtained
“sanctuary,” a circumstance that makes him eligible for full
retirement and benefits after 20 years of interrupted service instead
of having to wait until he is 62 like most other reservists, Puckett
said. Sullivan has yet to obtain a conviction.
In another instance, Maj. Nicholas Gannon, another
of the prosecutors, has been stationed at Camp Pendleton solely to
prosecute Wuterich far longer than Marine Corps lawyers are usually
left in one place, Puckett said.
To rectify the latest injustice Puckett intends to
file a document Friday he coined the “Hutchins Motion,” a newly minted
phrase that may serve as currency for generations of Marines to come,
he said Thursday during a telephone interview from Camp Pendleton,
Calif. The motion was prepared by Co-counsel and law partner Haytham
Faraj, a retired major who was Wuterich’s military attorney before he
retired, Puckett said.
Defense counsel involuntarily removed
At the heart of the Hutchins Motion is Colby Vokey,
the retired Marine Corps lieutenant colonel involuntarily removed from
defending Wuterich before he could complete his defense. [Read the
Declaration in US vs. Wuterich.in a pdf.]
Vokey was detailed as military defense counsel in
the case on Jan. 11, 2007, three weeks after Wuterich and seven other
Marines were charged with a long laundry list of charges that added up
to massacre and cover up. At the time Vokey was the Regional Defense
Counsel for West Coast Marines. After the case was delayed by appeals
in 2008 the Marine brass told Vokey he would not be permitted to
extend his active duty service beyond Oct. 1, 2008, court records
show.
It wasn’t the first time the Marine Corps tried to
remove Vokey after he was appointed to defend Wuterich. He was fired
as Regional Defense Counsel in September
2007 for assigning too many defense attorneys to the Haditha and
Hamdaniya defendants then facing court-martial in the biggest scandals
in Marine Corps history. At the time Vokey was one of three regional
defense attorneys charged by the Marine Corps with supervising the
defense teams within the various commands of the Marine Corps. At the
same time he was defending Wuterich against 17 charges of
unpremeditated murder at Haditha.
Vokey was fired by
Colonel Rose M. Favors, then the Command Defense Counsel of the entire
Marine Corps after conferring with the one-star Judge Advocate
General, who reports to the Commandant of the Marine Corps. Favors
told Vokey that assigning so many defense lawyers was unnecessary for
them to receive adequate representation. He was rehired after
the legal community inside and outside the Corps erupted in
indignation.
He continued to be a thorn in the Marine Corps’
side after that skirmish. When the media hysteria proclaiming massacre
and cover up spawned the largest investigation in Marine Corps history
proved to be fallacious, the criminal complaints against six of the
Marines from 3rd Battalion, 1st Marines,
including Wuterich’s battalion commander and company commander, were
dismissed. A third officer, an intelligence specialist recommended
for a Bronze Star for his actions with the Thundering Third, was found
not guilty of obstructing justice and trying to sneak out of the
Marine Corps, the single note of hilarity in the otherwise gloomy
dirge.
Puckett said the late date for entering the motion
was not a ploy; rather it is an honest indication of the pain the
Marine Corps’ procedural faux paux caused in the middle of the
most complex case it ever prosecuted. The government has spent untold
millions of dollars and thousands of man hours pursuing an incident
the Iraqis call the “Haditha Accident.”
“We apologized to the court. We didn’t see it until
we were in the last stages of preparing for court-martial and then we
realized ‘Holy crap, we can’t use Vokey in this’ and he handles a
third of our case load,” Puckett said.
Vokey continued to represent Wuterich after he
retired on a part time basis until the defense team discovered he had
a conflict of interest because the Texas law firm he joined also
represents Cpl. Hector Salinas, a former grenadier in Wuterich’s squad
and a designated witness for the prosecution. That tenuous association
makes it legally impossible for Vokey to cross-examine Salinas during
Wuterich’s court-martial, something Vokey has been preparing to do for
almost four years. Therefore Vokey has no option but to withdraw from
the case, a potentially fatal blow for the defense, Puckett opined.
“If he [military judge
Lieutenant Colonel David Jones] finds in our favor the defense
will ask the judge to dismiss all the charges against Wuterich,
arguing that his defense has been compromised," Puckett said, adding
that Vokey was the only defense lawyer to go to Iraq and witness the
scene of the killings. “The prosecution will appeal the judges’
ruling, it wouldn’t drop the charges.”
Vokey isn’t now available only because the Marine
Corps forced him to retire over his strongest protestations, Puckett
added.
“If he hadn’t had to take a job with the first law
firm he could find to take care of his family after being forced to
retire, the conflict would not have occurred. Vokey actually went to
Haditha with Wuterich and covered the ground, examined the location
where the ambush occurred, examined the alleged crime scene. That is
all essential to our defense and now Wuterich has been deprived of a
critical member of the team because of the Marine Corps’ insistence he
retire,” Puckett explained.
The judge could rule anytime after the formal
motion is submitted Friday and Wuterich’s trial date still set for
Sept. 13, Puckett said.
The
Hutchins decision
In Hutchins’ case, the appellate court overturned
the infantryman’s conviction because the Marine Corps allowed his
appointed defense co-counsel to obtain discharge in the critical days
before Hutchins was tried.
“The multiple errors and inattention leading to
deprivation of counsel in this case reflect something of a perfect
storm,” the court said.
In an 8-1 decision the highest court of military
judges ruled that the departure of one of his primary attorneys
shortly before the court-martial began resulted in an unfair trial. It
decided the Marine Corps legal system failed Hutchins when it allowed
the discharge of one Capt G. Bass; the Marine Corps lawyer appointed
co-counsel in Hutchins’ defense.
“On 31 Aug 2006 ... Captain Bass tendered a request
to resign his commission for an effective date of 1 July 2007,”
according to court records.
Bass however did not represent Hutchins after May
25, 2007 when he began a terminal leave period that ended upon his
release from active duty on July 1, 2007. Hutchins was scheduled for
court-martial in July. Bass also failed to inform his client he was
leaving until the day he disappeared from Hutchins’ defense team for
good, the court record shows.
Puckett called the action an “egregious error” that
revealed itself in what happened to Hutchins after his lawyer was
discharged.
Thirty-five days later Hutchins was convicted of
murder for leading his squad in the alleged April 2006 kidnapping and
execution of an Iraqi civilian in Hamdaniya,
Iraq. On Aug. 3, 2007 he was sentenced to 15 years in Leavenworth. His
sentence was later reduced to 11 years by a clemency board, court
records reveal.
After having his conviction overturned Hutchins was
restored to his former rank and remains on duty in Calif. pending the
appeal decision. Meanwhile the government still asserts the victim was
abducted from his home and killed by Hutchins and his men. It alleges
his squad placed a shovel and weapon next to the dead man so it would
appear he was planting an improvised explosive device. Hutchins was
also found guilty of conspiracy to commit murder, making a false
official statement and larceny.
Both of the Marines convicted with him apparently
had adequate counsel. Cpl. Marshall L. Magincalda was found guilty of
larceny, housebreaking and conspiracy to commit murder, kidnapping,
larceny, obstruction of justice, making a false official statement and
housebreaking. He was sentenced to 448 days confinement and reduction
in rank to Private. He had been in the brig at Camp Pendleton for 450
days and therefore released immediately. Cpl. Trent D. Thomas
was sentenced to reduction in rank to Pvt.
E-1 and a bad conduct discharge.
According the appellate court’s April, 2010
Hutchins decision:
“After this early May 2007 meeting between
Captain Bass and the appellant [Hutchins], the appellant never saw
Captain Bass again.”
“The appellant was never advised that he could
request that Captain Bass be extended on active duty to complete the
appellant’s trial.”
“The appellant never signed a document releasing
Captain Bass from active duty
“Captain Bass never ‘requested’ that the
appellant release him as his counsel; instead, Captain Bass
presented the situation to the appellant as one in which there was
no other option to remain on active duty.”
The government has appealed the Hutchins decision
to the U.S. Court of Appeals for the Armed Forces; the highest court a
military member can seek a remedy before the issue goes to the US
Supreme Court.
Puckett said the Marine Corps made the same
egregious errors when it forced Vokey to retire.
“Because it is a new precedent doesn’t make any
less of a law, the law is the law,” Puckett said. “The Marine Corps
made a mistake forcing Vokey to retire.”
The prosecution has already stopped the proceedings
several times while it appealed motions incited by its relentless
prosecution of the last enlisted man facing court-martial. The case
was stopped cold for almost two years while the prosecution fought it
out with CBS television over out takes Wuterich made during his
controversial appearance on 60 Minutes the broadcasting company
refused to give up to the prosecution. Ultimately CBS prevailed in
that fight after the issue went all the way to the U.S. Court for the
Armed Forces in Washington, D.C.
Wuterich was charged on Dec. 21, 2006. Since then
the last combat troops have left Iraq, making the war essentially
over. At his preliminary hearing, Wuterich said he regretted the loss
of civilian lives but believed he was operating within military combat
rules when he ordered his men to attack.
Wuterich
is accused of commanding a squad of Marines who killed 15 civilians –
primarily women and children – as well as nine insurgents operating
among them after his 12-man squad was ambushed at Haditha. During a
lightning counter-attack Wuterich and three of his men swept through
two houses where the civilian deaths occurred.
Last
Wednesday, Iraqi insurgents indiscriminately killed more than 50
people in bombings and shootings in 11 towns and cities across the
country.
__________________________________________
Nathaniel R. Helms
Defend Our Marines
28 August 2010
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).
