Decision coming June 17,
next big day in
by Nathaniel R. Helms |
June 9, 2008 | Note: This story was updated on June 13.
Attorneys representing Marine Lt. Col Jeffrey
Chessani will find out Tuesday June 17, 2008 at 9:00 am PST whether the presiding judge in the
“Haditha Massacre” case will grant a defense motion to dismiss his
charges because of undue command influence.
Originally, as we reported, the hearing
was scheduled for three days, June 16–18. But the presiding judge,
Col. Steven Folsom, USMC, has informed counsel that the hearing has
been changed to only one hour on Tuesday. The only business the judge
will address is his ruling on the defense motion to dismiss.
If Col. Folsom denies the defense motion, Lt. Col. Chessani will
stand general court-martial July 21 for alleged dereliction of duty
and orders violations, said Richard
Thompson, chief counsel of the civilian law firm representing him.
The veteran combat Marine is the highest ranking
officer to be charged with a crime in the discredited massacre
investigation. Four enlisted men and three officers under his command
were also charged with war crimes. Five of them have already been
exonerated during pre-trail legal maneuvers and 1st
Andrew Grayson was found not guilty last week of a laundry list of
The day before Grayson
went to trial, Folsom deferred making a
decision on a defense motion by Chessani’s lawyers asking that the
case be dismissed “with prejudice” for alleged undue command influence
in the convening authority’s decision to prosecute the former
commander of 3rd battalion, 1st Marines in Iraq.
Even with a favorable
decision by Folsom, Chessani is not out of the woods, Thompson said.
Folsom could dismiss the charges “without prejudice,” leaving the door
open for Chessani to be charged again.
One member of Chessani’s
defense team noted that government prosecutors have already shown they
will go to any length to obtain a conviction in the broadest, most
expensive criminal investigation in contemporary military history.
“Why wouldn’t they?” he
said. “We are talking about prosecutors still trying to maintain the
fiction there was no incoming fire after the IED went off and that the
huge firefight on Viper was a separate incident.”
Four enlisted members of
a rifle squad Chessani command killed 15 civilians and eight
insurgents hiding among them after a remotely detonated IED killed a
squad member and wounded two others riding in a convoy. About 500
meters away on a road called Viper another squad of Marines was
embroiled in a morning-long grenade fight with insurgents that left
nine Marines wounded.
The ambushed infantrymen
were later accused by Time magazine and Congressman John Murtha
with going berserk; hunting down innocent civilians and shooting them
in cold blood. The subsequent investigation showed that none of the
circumstances cited by Time and Murtha proved to be true.
Last week 1st
Lt. Andrew Grayson, the first of three defendants to face general
court-martial in the Haditha incident, was found not guilty of
obstruction of justice, making false statements, and attempting to
obtain a fraudulent discharge by a seven-member jury panel of fellow
His exoneration followed
a 30-month, multi-million dollar, world-wide investigation and five-day
court-martial at Camp Pendleton that took the panel five hours to
Grayson was attached to
Chessani’s command in Iraq as an intelligence officer. He is the sixth
of eight original defendants cleared of any wrongdoing in the
incident. The panel‘s rapid verdict put the already weak prosecution
case in total disarray, several attorneys involved in the case said.
Chessani is awaiting
general court-martial for dereliction of duty and orders violations
for allegedly failing to investigate and report the incident. He faces
dismissal from the service, loss of all retirement benefits, and three
years in prison if convicted.
The criminal charges
against Chessani stem from a house-to-house, room-by-room battle that
four of his enlisted Marines engaged in on November 19, 2005, after
being ambushed by insurgents in Haditha. In the day long battle that
followed one Marine was killed and 11 others from Kilo Company, 3/1
Folsom’s ruling follows
testimony last Monday by Gen. James N. Mattis and the conspicuous
absence of Lt. Gen Samuel Helland in the matter. The prosecution
called Mattis to refute defense claims he was unduly influenced by Col
John Ewers, the Marine lawyer who investigated Chessani’s command in
Iraq for an Army general and later became Mattis’ personal legal
counselor as Staff Judge Advocate of the 1st Marine
Before being appointed
the 1st MEF SJA Ewers was assigned to investigate the
alleged massacre at Haditha, Iraq in the winter of 2006 for Army Maj.
Gen. Eldon Bargewell. He was ordered to look into the matter following
allegations by a Time magazine reporter that Chessani had covered up
the November 19, 2005 murders of 24 innocent civilians by a squad of
Marines under his command.
Ewers was still Mattis’
personal attorney when Mattis decided to bring charges against
Chessani on December 21, 2006. He remained in the position when
Helland took over responsibility for prosecuting Chessani after Mattis
was promoted to four-star rank last November 1 and transferred.
“The prosecution made a
colossal blunder not calling Lt. Gen. Helland to testify,” opined
Thompson, who presides over the Ann Arbor-based Thomas More Law
Center. “Folsom has already decided there is evidence of inappropriate
command influence and it is now the prosecution’s burden to prove
beyond a reasonable doubt that it didn’t occur. Without Helland’s
testimony to corroborate Mattis they failed to meet that burden.”
Mattis testified that he
was not influenced by Ewers. Last month Ewers testified that he sat in
on at least 25 meetings between Mattis and the lawyers from Central
Command counseling Mattis about the Haditha investigation while Mattis
was in command of both organizations.
Mattis brought the
charges against Chessani under the aegis of Central Command where
Ewers ostensibly had no authority or influence. At the time Lt. Col.
Bill Riggs was the SJA of Central Command.
The defense maintains
that Ewers’ mere presence at the meetings by itself represents undue
command influence because he outranked the lawyers who were advising
According to both
officers’ testimony Ewers was a potted plant that sat mute while
Mattis was counseled by Riggs and other attorneys of lesser ranks from
Central Command. Mattis told the court he remained an island unto
himself and never asked or received legal advice from Ewers while he
was formulating his decision.
It is not the first time
undue command influence has been charged. Riggs found himself in hot
water last summer after he contacted Lt. Col. Paul Ware, the
investigating officer in a related case, and criticized him for
holding the government to too high of a standard when evaluating the
charges against an enlisted Marine.
Ware, the IO in the
murder case against exonerated Marine LCpl Justin Sharratt, took the
unusual action of revealing what he viewed as an egregious case of
undue command influence by Riggs.
“I viewed Lt. Col. Riggs’
comments as inappropriate and imprudent. … I was … offended and
surprised by this conversation,” Ware responded in an email.
recused himself from that case.
Military courts consider
unlawful command influence the most egregious violation of military
justice because it irreparably taints the opinions of prospective
jurors, Richard Thompson said.
According to Thompson, Folsom’s determination that there was evidence
of undue command influence forces prosecutors to prove beyond a
reasonable doubt that: (1) the facts upon which the unlawful command
influence is based are untrue; (2) those facts do not constitute
unlawful command influence; or (3) the unlawful command influence will
not affect the proceedings.
Nathaniel R. Helms
Defend Our Marines
9 June 2008
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).