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Read the entire report: IO Report on the LCpl. Justin Sharratt Article 32 hearing (pdf)

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________________________________________________________

Investigating Officer's Report

of Charges Under Article 32

LCpl Justin Sharratt

Summary of facts

     On 19 November 2005, LCpl Sharratt fatally shot Jasib Aiad Ahmed, Kahtan Aiad Ahmed and Jamal Aiad Ahmed in the province of Haditha Iraq. LCpl Sharratt engaged each with a M9 service pistol in a back room of a house owned by the Ahmed family. A fourth person, Marwan Aiad Ahmed was fatally shot by SSgt Wuterich after LCpl Sharratt's magazine ran out of rounds. This incident occurred several hours after an IED fatally wounded a Marine and Marines engaged in several firefights and house clearings to the South and East of the Ahmed houses. LCpl Sharratt played a minor role in the assault on houses to the South and spent most of the morning tasked with sector security and focusing his observation to the North.

     After the assaults to the South were completed and insurgent activity and firefights had all but ceased, LCpl Sharratt, Cpl Salinas and SSgt Wuterich manned an observation post established by 2ndLt Kallop. While manning the observation post, the Marines talked and smoked cigarettes while keeping a watch for suspicious activity. The Marines noticed several men peeking over a privacy wall at the Ahmed houses. The Marines suspected that the men might be forward observers for another assault or IED attack. Cpl Dela Cruz fired a "training round" at the men to get them to move. The men initially withdrew but then returned to the wall. SSgt Wuterich then took a team of Marines to investigate. Cpl Salinas, LCpl Sharratt and SSgt Wuterich approached the house where the men were last seen. Unknown to the Marines at the time was that the house was actually two houses separated by a very small alley. Inside the first house the Marines encountered several women. 

     It is at this point that the evidence presents two different versions of events. For simplicity, I will call the Iraqi witnesses' version the government version and LCpl Sharratt's account as the defense version. Common to both versions are the following facts: Four men identified in the first paragraph were killed inside Ahmed's house referred to in the investigation as house four (4); all four were killed inside the same room within house 4; two (2) AK-47's were seized by Marines and removed from the Ahmed's possession; and a suitcase with clothing was removed from house 4 by Marines. 

     The government version alleges that the Marines ordered all the people out of both houses 3 and 4 and asked if they were insurgents and whether they had weapons inside. The Iraqis responded that they had an AK-47 inside each house. A Marine then escorted one couple inside house 3 and retrieved one AK-47. A second Marine then escorted another into house 4 and retrieved the second AK-47. The Iraqis were then ordered into one group with the men standing and the women sitting behind them with an infant and a teenage boy. After two Marines held a private conversation away from the group, the Marines returned and ordered the Iraqis to separate into two groups, women and child in one group and men in another. The teenage boy was initially with the group of men but then switched to the group with women and the child. The group with women was then ordered at gunpoint into house 3 while the men were ordered inside house 4. While inside house 3 the women attempted to open the door but a Marine kept closing the door and yelling at them to stay inside. A short time later, the Iraqis heard gunshots, 4 shots separated by a few seconds. The women tried to leave house 3 but the Marine forced the door shut and smashed the window while yelling at them. The Marines exited house 4, began laughing then the third Marine joined them and they left. The women found the 4 bodies inside house 4. 

     The defense version contends that the Marines approached house 3 and found only women and children inside. They asked where the men were and then discovered that there were two houses within the courtyard. Cpl Salinas stayed with the women and children in house 3 while SSgt Wuterich and LCpl Sharratt went to search house 4. They found the door open and without announcing their presence, entered the house in a tactical stacked formation. They moved along the walls to the middle of the house by the stairs leading to the roof. LCpl Sharratt then saw a man standing in a doorway with an AK-47 in his hands and pointing the weapon at LCpl Sharratt. LCpl Sharratt attempted to fire his SAW but it jammed. He dropped the SAW and pulling back behind the wall he retrieved his 9mm pistol. He then peered around the wall and saw the same man returning to the doorway holding an AK-47 and shot him. Hitting the man with at least one shot, he noticed a second man behind the door bending over and retrieving the AK-47. LCpl Sharratt moved swiftly toward the door firing his pistol at the second man. Once inside the doorway LCpl Sharratt began firing his pistol from right to left. There were two more men inside the room on the far left side of the room from the doorway. LCpl Sharratt emptied his magazine firing at least 11 rounds fatally shooting the third man inside the room. The fourth man moved from the left toward the wall locker (closet) as LCpl Sharratt yelled that his weapon was empty. SSgt Wuterich then moved forward and fired his M16 weapon at the wall locker fatally killing Marwan. SSgt Wuterich then shot each of the other three men several times to ensure they were all dead. 

     LCpl Sharratt retrieved one AK-47 and found a suitcase on a couch in the room closest to the door. They exited house 4 and met up with Cpl Salinas. Cpl Salinas or SSgt Wuterich found another AK-47 and both AK-47s and suitcase were handed over to another Marine with no accountability of the items. The suitcase contained clothing and 3 or 4 passports which were believed to be Jordanian. 

     It is clear that these accounts are radically different, the government version describing a deliberate execution and LCpl Sharratt's account describing a lawful use of deadly force in either a combat situation or a clearly perceived threat of hostile intent on the part of the Iraqi men. If the government version is true, a charge of premeditated murder with 4 specifications is warranted. If the defense version of events is true, dismissal of the charge is justified.

Analysis of evidence

The elements of the charged offense of Article 118(2) are:

   (a) That a certain named or described person is dead;

   (b) That the death resulted from the act or omission of the accused;

   (c) That the killing was unlawful; and

   (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily
        harm upon a person.

The elements of premeditated murder. Article 118(1) are: 

   (a) That certain named or described person is dead;

   (b) That the death resulted from the act or omission of the accused;

   (c) That the killing was unlawful; and

   (d) That, at the time of the killing, the accused had a premeditated design to kill.

     The evidence presented at the Article 32 satisfies the first two elements for either Article 118(1) or Article 118 (2), that 3 persons are dead and that the accused caused the deaths. Furthermore, it is clear from the evidence that the 4th element of Article 118 (2) is satisfied. Counsel for both sides readily conceded that the killings were intentional.

     The crux of this case centers on the question of whether the government has sufficient evidence to support a finding that there are reasonable grounds to believe that the killings were unlawful and if unlawful, whether they were done with premeditation, the third elements for both Article 118(1) and Article 118 (2) and the 4th element of Article 118(1).

     A reasonable ground is commonly argued as being similar to probable cause. The test is whether there is more evidence for than against. Another commonly used test is a set of circumstances which would satisfy an ordinary, cautious and prudent person, that there is reason to believe an offense has been committed. Reasonable grounds must be more than suspicion or the ability to theorize a criminal act from a set of facts excluding all evidence to the contrary. Inherent in this responsibility is the need to determine the credibility of the witnesses and the evidence. Although the government does not present
all its evidence at the Article 32 hearing and that the burden certainly is much less than beyond a reasonable doubt, government counsel must still present credible evidence to support the conclusion that reasonable grounds exist to believe that a crime was committed.

     Although the government presented a compelling theory tying-in the events and actions by other Marines as a prelude for the actions of LCpl Sharratt in house 4, the information was not particularly relevant to the case at hand and I limited its use to background information.

     In support of its theory, and to satisfy reasonable grounds with regard to the two contested elements, the government offered 4 Iraqi witness interviews, testimony of NCIS agents and statements of LCpl Prentice, Mr. Gravis, Mr. Casiday, LCpl Schaal and PFC Wright.

Evidence offered to support reasonable grounds

     I find that the Iraqi witnesses' statements are unsupported by scientific evidence and are incredible for the following reasons:

1. Evidence not Consistent with an Execution. Without question, the forensic evidence demonstrates that three of the men were shot in the head while facing forward from a distance of at least 2 feet. The three men in the specifications of the Charge all suffered fatal head wounds consistent with 9mm rounds fired from a distance beyond 2 feet. It is difficult, if not impossible to believe, that trained and experienced Marines would decide to execute 4 unarmed men by leading them into a house, moving them to the a back room with no light (curtains were closed) and allow them to move about the room while trying to shoot them with the least effective weapon in their arsenal. In addition, forensic evidence proves that one person was standing in the doorway and shot to the face while the other three men were further inside the room. Under such circumstances one would reasonably expect that the others would then attempt to run or fight. None of the victims received defensive wounds to their hands or arms nor did they receive wounds to their backs or rear of their heads. Each was shot facing forward, from a distance, and with a 9mm pistol which I find inconsistent with an execution or persons reacting to an execution. Furthermore, there is no evidence to suggest LCpl Sharratt attempted to hide the fact that he shot these individuals. To the contrary, SSgt Laughner testified that he was aware that people were shot in house 4 due to reports from the field.

2. Witness Accounts are not Credible. The Iraqis' first statements to NCIS were taken in a group setting, five months after the events occurred and with knowledge that other families in Haditha had received monetary compensation from the United States for events that occurred on 19 November 2005. The interview that resulted in the witness statements were taken by Special Agent Mannle in a group setting, with each witness adding details and discussing the events in Arabic with one another in front of Special Agent Mannle who does not speak Arabic. Additionally, although $ 10,000 does not appear to be a large amount of money, testimony from Maj Hiatt suggested that such a sum of money was equal to 4 times the average annual salary of a typical resident of Haditha. Prior to making these claims, no payments were made to the Ahmed family.

The Ahmed family was represented by an attorney who represents other families who received compensation for Marines killing their family members. Shortly after making these claims, the Ahmed family was paid $10,000 in Solatia payments.

3. Timeliness of Interviews. The interviews of Khalid, Nagham, Nagia and Ehab by Maj Erickson were conducted almost a year later in January 2007. These witnesses were placed under oath, although the form of the oath was translated in three different manners, the witnesses were not subject to American law of perjury and testimony by Dr. Salmoni suggested that cultural and religious beliefs in Iraqi suggests that these statements would not be considered under oath in an Iraqi court. In addition, Dr. Salmoni opined that women and children statements are considered inheritably less reliable than a man's statement in Iraqi law. Although such discrimination is not recognized in our society, the fact that these Iraqis have this cultural understanding suggests that they would believe United States authorities would likewise view their statements as less reliable and may suggest they would feel less need to be fully truthful. Finally, each witness was accompanied by the attorney who represented the family for Solatia payments, and the interviews were conducted in Arabic through a translator and Maj Erickson could not understand the Arabic conversations, relying on translation and in parts, interpretation by Mr. Alkaysey.

The statements made in Jan 2007 are contradictory to each other in parts. Some of the key contradictions are:

            Khalid states that the Marine with a pistol guarded them and did not go
into house number 4 (see pages 6-8 of IE 39). He also describes the Marine who guarded him and the women in house 3 as having a weapon on a tripod (SAW) and that he heard only 4 shots separated by a few seconds. He describes the men who left house 4 both had AK-47's slung on their shoulders. He later claims that the men also had pistols in their holsters but only after several prompting questions by Maj Erickson. Ultimately, he could not identify where the pistols were, but concluded that all the "men" had pistols. LCpl Sharratt had a SAW and pistol, SSgt Wuterich and Cpl Salinas had Ml6s only. Khalid's description suggests that LCpl Sharratt was the one guarding them at house 3 and that can not be factually supported. Khalid's account of seeing 2 AK-47s begin removed from house 4 further supports LCpl Sharratt's account that two of the Iraqi men had AK-47s when he shot them.

            Nagham states that the Marine with the pistol was in charge giving orders to the other two (see page 11 of IE 37). She also says that no one moved the bodies before the Marines arrived to take photographs. Finally, she stated that they were planning on taking a trip to Baghdad later that day and that is why Kahtan's suitcase was packed with clothes and a shaving kit (see page 15 of IE 37). It is highly unlikely that two senior Marines, SSgt Wuterich and Cpl Salinas would defer in authority to LCpl Sharratt and allow him to issues orders to themselves and the Iraqis. Because we know that only LCpl Sharratt had a pistol, her account that the one with the pistol was in charge appears to be factually false. Forensic evidence clearly proves that the bodies must have been moved from the location where they fell to where they were covered with sheets and later photographed. Finally, it is incredible to believe the family was traveling to Baghdad that day if only Kahtan was packed and ready for the trip. 

           Nagla states that the man with the pistol was in charge telling the other Marines what to do (see page 7 of IE 38). Again we see the theme that the "one with the pistol" was the person in charge. Clearly by now, these witnesses know that their loved ones were killed with 9mm rounds from a pistol and that LCpl Sharratt is the one accused. To facilitate a story of execution, placing LCpl Sharratt in charge would make the story more plausible except for the fact it is incredible to believe that two senior Marines would subjugate themselves to LCpl under these conditions. 

           Ehab states that Kahtan was about to travel to Trabeed (ph) and that she assisted in packing his suitcase so she knew what was inside it (see page 8 of IE 40). This contradicts Nagham who said the "family" was traveling to Baghdad. Again she reiterates that the "one with the pistol was in charge" (see page 6 of IE 10).

     There are other inconsistencies between the four statements and with the "group statement" to NCIS. NCIS was unable or chose not to conduct further research into the following significant issues:

Whether Kahtan was employed on the Jordan border as claimed by the Iraqi witnesses?

Whether Marwan was an engineer at the Haditha dam and had a properly issued CAG card? The Iraqi witnesses claimed Marwan tried to show this card to the Marines but the Marines were uninterested. NCIS investigation revealed no CAG card was ever issued to Marwan and NCIS did not follow up on whether Marwan was employed at the dam.

Whether Jasib was a traffic officer? There was no uniform found at house 4 and there was no formal recognized police force in Haditha in November 2005.

Whether Jamal was a local businessman? No NCIS follow up to determine if he was a businessman and if so, what business he was involved in.

     Not following up on these claims supports the defense contention that NCIS did not critically examine the credibility of these witnesses during its investigations. If these claims are untrue, then the credibility of these witnesses is further eroded.

      Finally, the family's unwillingness to allow NCIS to exhume bodies and conduct an autopsy prevents the defense from discovering exculpatory evidence. Failure to examine the bodies does not in itself raise reasonable doubt, but coupled with inconsistencies in statements and apparent fabrications in the Iraqi witness statements the government's version is seriously deficient. Furthermore, the Ahmed family stated to Special Agent Mannle that they would rather forgive the Americans than allow the bodies to be exhumed and examined.

4. Government evidence of confessions or admissions. The government further offers statements of Marines to support its version of facts. LCpl Prentice testified under oath that he did not tell NCIS that LCpl Sharratt "made up" a story, only that LCpl Sharratt had a story. The practice of NCIS agents typing up complete statements then having a witness review can often lead to Special Agents "assisting" with language and coloring the intent of the witnesses. Regardless of which version is true, LCpl Prentice is now on record as providing two contradictory sworn statements.

     Mr. Gravis' testimony was offered primarily to set the stage for the events in house 4 with emphasis on whether shots were fired from the South. The events to the South had little to no relevance to this investigation. Mr. Gravis testified that LCpl Sharratt said he lied to NCIS. It is unclear whether this conversation between Mr. Gravis and LCpl Sharratt was an admission that LCpl Sharratt lied about the events in house 4, things he witnessed earlier in the day, random non-essential information or whether this was simply LCpl Sharratt bragging and or exaggerating the truth, (see IE 98).

     The government provided a sworn statement of Mr. Casiday with graphic stories which simply can not be supported in facts. The statement tells of prisoners beaten by LCpl Sharratt, evidence being planted by 2nd Lt Kallop, LCpl Sharratt executing people that were in a white vehicle along with bravado concerning the role of infantry Marines in Iraq. His statement exudes exaggeration and immaturity. I find the statement wholly incredible and not particularly relevant.

     The government offered the sworn statement of PFC Wright alleging LCpl Sharratt said they assaulted the Iraqis "punisher style." Although unfamiliar with the movie from which this term originates, PFC Wright places the comment into context stating that is just the way LCpl Sharratt talks "thinking nothing" about it. IE 92. PFC Wright's statement is not particularly relevant.

      LCpl Schaal's sworn statement was also offered to demonstrate that LCpl Sharratt was out for vengeance. The statement, however, is full of incredible stories and contains not one sentence directly relating to LCpl Sharratt and house 4 in IE 94. Instead, I read much of the same, exaggerated tales of killing by Marines even though LCpl Sharratt was not an active participant on the assaults on the houses to the South.

      The defense provided a sworn statement by HN Whitt to support its claim that LCpl Sharratt has a habit of exaggerating, and telling "war stories" along with an immaturity or ability to handle with solemnity the act of killing another human. The defense portrays these statements as "gallows humor", exaggeration, and youthful lies as a result of LCpl Sharratt's desire to exaggerate his actions to heroic levels. It also suggests a difficulty or immaturity in coping with killing humans. A common coping mechanism with dealing with stress or fear is to use humor, however distasteful, to make one sound immune to the human emotions of caring, fear and despair over killing others.

      None of the statements offered comes close to being a confession or admission that the actions of LCpl Sharratt on 19 November 2005 were criminal. Although I suspect LCpl Sharratt has not been entirely truthful concerning all the events on 19 November 2005, the statements submitted by the government are rife with rumors, hearsay within hearsay, and unclear, confusing and often inadmissible opinions.

 Evidence offered against reasonable grounds

      In contrast, LCpl Sharratt's version of events is fully supported by the independent scientific evidence. NCIS agent Maloney described the account of LCpl Sharratt as "not fully supported or contradicted." By that he meant that he could not determine if two of the individuals were moving toward LCpl Sharratt when he fired his weapon, that he could not conclude if the victims had weapons on them before being shot and that he was unsure of the position of the number 3 victim when he received his fatal wounds. Upon further examination. Special Agent Maloney conceded that LCpl Sharratt's account of what occurred is the most reasonable and plausible explanation supported by the forensics. Although science will never be able to remove all doubts, with a high degree of certainty, the science supports the statements of LCpl Sharratt as the most plausible, possible and most likely.

Legal Issues

     All witnesses that testified at the Article 32 indicated no problems with availability for trial.

     Khalid, Nagham, Nagia, and Ehab indicated to government counsel they would cooperate, but the extent of their cooperation to include whether they would travel to the United States and testify at a court-martial has not yet been determined. These witnesses have indicated a willingness to testily at a trial in Iraq. If these witnesses were called to testify at trial, steps to incorporate Iraqi procedures for oaths to include reference to Allah and the Koran should be reviewed in order to ensure such testimony is under an oath which is substantially similar in its application to cause the witness moral and legal pressure to testify truthfully.

      The defense asked for comment on a doctrine they call "qualified combat immunity" based on the United States Supreme Court cases Graham v Connor 490 U.S. 386 (1989) and Saucier v Katz 533 U.S. 194 (2001). Although such a motion may be ripe for litigation in a court of law, the proposed doctrine is not applicable to my analysis of the evidence. Furthermore, such comment by a military judge currently assigned to hear cases would, in my opinion, constitute an advisory opinion. As such, I am declining the request, although the defense analysis of the cases and position for consideration begins on page 55 of IE 104.

Recommended disposition of Charge

     Due to the disparate accounts, it is tempting to simply conclude that this case should be tried to either exonerate LCpl Sharratt or convict him of a crime. However, to adopt the government's position that because there are two differing accounts, a general court-martial is warranted is an abdication of the necessary process of determining whether reasonable grounds exist to warrant a court-martial. It is not as simple as stating there are two accounts so a trial is necessary. Analysis of these two versions must provide reasonable grounds that the Government version of events may be true. In analyzing the evidence, I read several hundred pages of interviews, documents, articles and statements (IE 33-105). Ultimately, there is only one statement by an eye witness to the events, LCpl Sharratt, and his version of events is strongly corroborated by independent forensic analysis of the death scene. The government version is unsupported by independent evidence and while each statement has within it corroboration, several factors together reduces the credibility of such statements to incredible. In addition, the statements of the Iraqis are unclear, contradictory in part, and simply state self-interested conclusions as to what occurred within house 4. Finally, to believe the government version of facts is to disregard clear and convincing evidence to the contrary and sets a dangerous precedent that, in my opinion, may encourage others to bear false witness against Marines as a tactic to erode public support of the Marine Corps and mission in Iraq. Even more dangerous is the potential that a Marine may hesitate at the critical moment when facing the enemy.

     Much effort during the Article 32 focused on whether the victims were insurgents. Although determining if they were may have some bearing on the credibility of the Iraqi witnesses and may support that LCpl Sharratt did perceive a hostile situation within house 4, such determinations are not necessary to conclude that LCpl Sharratt is truthful in his account. From as early as February 2006 LCpl Sharratt's statements are supported by the forensic evidence. It is likely that members of the Ahmed family were either insurgents on 19 November 2005, or that they were attempting to defend their house and family when Marines entered house 4 uninvited and unannounced. On that fateful afternoon, Jasib heard someone enter house 4. He investigated with his AK-47 in his hands. LCpl Sharratt saw him and perceived him as a threat. Using his training he responded instinctively, assaulting into the room emptying his pistol. Whether this was a brave act of combat against the enemy or tragedy of misperception born out of conducting combat with an enemy that hides among innocents, LCpl Sharratt's actions were in accord with the rules of engagement and use of force.

     Accordingly I recommend that the Charge and specifications be dismissed without prejudice. I further recommend that LCpl Sharratt be given testimonial immunity and ordered to cooperate with ongoing investigations concerning the events of 19 November 2005.

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Exclusively on Defend Our Marines...

Who's Who at the Hearing...

Amir Alkaysey: Translator for Iraqi civilian interviews, taped 23 January 2006 at Haditha, Iraq.

LCpl John Casiday: Member of the second QRF that arrived on the scene of the IED blast at approximately 1300. LCpl Casiday provided two statements to NCIS, recalling a long conversation with LCpl Sharratt a few hours after the incident. Currently inactive.

Sgt Sanick Dela Cruz: Uncharged member of the 3/1.

LCpl Trent Graviss: A-Driver for Vehicle # 3 in the 1st Squad convoy the morning of the incident. Currently inactive.

2ndLt William Kallop: First officer on the scene in Haditha, shortly after the IED explosion. Ordered Marines to clear houses in the vicinity.

SSgt Justin Laughner: One of two HET assets assigned to Kilo Co., 3/1 on 19 November 2005.

LCpl James Prentice: Uncharged member of the 3/1. Currently deployed in Iraq.

Sgt Hector Salinas: Uncharged member of the 3/1. Present during every significant action on 19 November 2005.

LCpl Maximillion Schaal: On R&R at Haditha Dam on November 19. Overheard converations a week after the incident which NCIS believed would clarify other testimony extracted from Kilo Co. Marines.

HN Brian Whitt: Corpsman on temporary assignment to 3rd Platoon the morning of 19 November 2005. He rode in the rear of Vehicle # 3. After the IED explosion, he took cover and fired at an individual to the North of the blast area. Thereafter, he was able to attend to the wounded. While he was assisting LCpl Crossan and LCpl Guzman, he could still hear AK-47 and M16 fire and at least one M203 round go off. HN Whitt rode with the team out to the LZ to transport the wounded and never returned to the IED site that day.

LCpl Andrew Wright: Uncharged member of the 3/1. Currently receiving medical treatment in California.

SSgt Frank Wuterich: Co-accused.

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