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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. |