August 14, 2010

One month from now the longest, most expensive criminal investigation in Marine Corps history will finally come to an end one way or another at the general court martial of SSgt Frank Wuterich, the last Marine accused of unlawful killings at Haditha, Iraq on November 19, 2005.

“When the public sees the truth at this court-martial, it will be one of the biggest news stories of the year,” said Neal Puckett, the lead defense attorney in the upcoming court martial. “The truth of the story is yet to be revealed.”

Almost five years ago, a hidden insurgent remotely triggered a huge bomb that blew apart a lightly armored Marine Corps ‘high back’ Humvee. One Marine and 24 Iraqis died in the gruesome exchange that followed. Eleven Marines were wounded. The virulent press dubbed the incident the ‘Haditha Massacre.’

Nine of the decedents were quickly deemed insurgents for their complicity in staging the attack from a residential neighborhood. The rest of the victims unfortunately got in the way. The Marines Corps declared victory the next day in a bland communiqué. Regrettably it was factually wrong, the first of many factual and procedural mistakes that would follow. The Marine Corps has been on trial ever since. On September 13 it will have one more shot at vindication.


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During an interview on the CBS television news show ’60 Minutes’ Wuterich revealed what happened that day:

“I remember there may have been women in there, may have been children in there. My responsibility as a squad leader is to make sure that none of the rest of my guys died … and at that point, we were still on the assault, so no, I don’t believe [I should have stopped the attack].

We went through that house much the same, prepping the room with grenades, going in there, and eliminating the threat and engaging the targets…There probably wasn’t [a threat], now that I look back on it. But there, in that time, yes, I believed there was a threat.”

At his preliminary hearing two years ago Wuterich said he regretted the loss of civilian life in Haditha, but said he believed he was operating within military combat rules when he ordered his men to attack.

What happened didn’t mean there was criminal intent

Puckett has represented the 30-year old infantryman he calls ‘the last Marine standing’ since 2006. Funded by almost a quarter of a million dollars from generous donors, he has never given an inch. Convicting Wuterich would give the Marine Corps prosecutors who relentlessly pursued his client a scrap of absolution. Puckett doesn’t intend to provide the Marine Corps vindication that easily, he said.

“They were acting in accordance with their training. If errors in judgment were made, you have to give the benefit of the doubt to the Marines. What happened [at Haditha] doesn’t mean there was criminal intent,” Puckett explained.

He says the investigation was flawed, the prosecution ignored exculpatory evidence uncovered by the Naval Criminal Investigative Service, and his client was the victim of undue command influence, the same judicial stain that set Wuterich’s commanding officer free last month.

Wuterich is charged with voluntary manslaughter, aggravated assault, reckless endangerment, dereliction of duty and obstruction of justice for leading the squad that killed the Iraqis. He was the squad leader in Kilo Company, 3 Battalion, 1st Marines who lead three of his men on a house clearing attack after his four vehicle resupply convoy was ambushed.  He is currently assigned to administrative work at 1st Marine Division headquarters at Camp Pendleton. The young Marine who put his future on hold to defend his country has already lost more than most; his wife, his family, and his home. The Marine Corps still wants his life. If convicted Wuterich could spend most of it in prison.

Vast powers of the government versus one Marine

Wuterich has already overcome tremendous odds. The NCIS maintained both a field investigation and an oversight committee in Washington that kept tabs on the progress of the investigation. NCIS officials acknowledged during the preliminary investigation that at least 65 special agents were occupied with the case at its zenith in the summer of 2006. The government has spent untold millions of dollars and thousands of man hours without proving its case. Over time the so-called Haditha massacre that never happened fell off the public’s radar screen.

Closely monitoring the situation was former Secretary of Defense Donald Rumsfeld, who formed a study group to determine what to do after the late Pennsylvania Congressman John Murtha accused the Marines involved of massacre and cover-up. He used the occasion to attack the war policies of former President George W. Bush.

Rumsfeld’s hastily assembled study group’s analysis of the political and legal situation was used to help decide what course of action to take against eight Marines ultimately accused of massacre and cover up in the deaths of the Iraqis.

The group was briefed by high ranking Marine Corps lawyers sent by Brigadier General Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the Marine Corps at the time. Also in the mix was Peter M. Murphy, former General Counsel to the Marine Corps–a civilian who counseled Commandants and their lawyers for 20 years. Both men have since retired. The odds makers said the Haditha Eight didn’t stand a chance.

Puckett wouldn’t say precisely how he plans to prevail, although he offered a few hints. For one thing he’s gathered a Dream Team of experienced military trial attorneys and military law experts. His team includes two retired Marine lawyers, an international law expert, and an active duty major appointed to the proceedings.

Among them is Colby Vokey, another retired Marine lieutenant colonel that was so effective representing Wuterich and the other defendants during the preliminary hearings in 2007 he was fired until the uproar from prominent military jurists forced the Marine Corps to reinstate him.

Also on the team is retired Major Haytham Faraj, Puckett’s partner and a dogged interrogator. Faraj served 22 years in the Corps before retiring as the senior military defense counsel at Camp Pendleton, CA.

Also on board is Mark S. Zaid, an international law expert who usually takes on government intelligence agencies for a living. All three lawyers were familiar names and faces when the international press descended on Camp Pendleton after the hearings began in May, 2007.

The latest addition to the team is Major Merideth Marshall, the senior defense attorney at Miramar Naval Air Station. She was appointed by the Marine Corps as military counsel for Wuterich. She is the only newcomer in the mix and the only female lawyer to participate in the case.

Arrayed against them is the prosecution team led by Lieutenant Colonel Sean Sullivan, a former reservist who decided to remain in the Corps and give up his civilian practice in Chicago. He has the resources of the entire prosecutorial apparatus of the Department of Defense at his disposal. Sullivan and his stable of prosecutors have tangled with Puckett before. There is no love lost.

Wuterich didn’t kill anyone

At stake is a lot more than the guilt or innocence of Wuterich. Puckett plans to put the proceedings on trial as well. Seven times the government has brought Marines who fought at Haditha before the bar and seven times they have been set free (the eighth had charges dropped against him). That by itself says something, he noted.

“The mindset of those guys was no being policemen. Cops go through scenarios about shoot or not shoot during a hostage rescue. This was not a hostage rescue. They had received fire from those houses and that made them hostile and a hostile house is a target. They could have called an airstrike on House #1. That has always been an integral part of our case,” Puckett said.

The forensic evidence gathered at the crime scene months after the engagement will show that Wuterich did not kill anyone, Puckett added.

“In a murder investigation the deceased usually has one or more bullet holes in them. The cops like to match the bullets that made them to a handgun and the gun to the suspect. It is the same thing here. When you charge a Marine with shooting someone – murder – you want to be able to say who did it; the weapon with this serial number was issued to this Marine who was there on a certain day. There are no bullets or other forensic evidence that shows Wuterich shot anyone,” Puckett said.

Another issue is the onus of command influence that is yet to be resolved, Puckett said

On March 23, 2010 Wuterich won a key ruling that still could lead to the dropping of the case. Lieutenant Colonel David Jones, a military judge who heard the motion to dismiss the charges against Wuterich ruled his lawyers had successfully shown that there was the evidence of the same undue command influence that set his commanding officer free. Even so Jones ruled against a motion to dismiss the case during a hearing at Camp Pendleton and ordered Wuterich to stand trial.

During the two-day hearing General Mattis and retired Lieutenant General Samuel Helland, who supported Mattis’s decisions when he took over command form the distinguished officer was promoted testified the government was not improperly influenced. Faraj said it was to the Marine Corps’ credit that Mattis was ordered to undergo cross-examination about the case. It is unusual for a four-star general to be called to the witness stand.

A military judge dismissed charges of dereliction of duty and orders violations against Lieutenant Colonel Jeffrey Chessani in June 2008 after finding that undue command influence had sullied his case. Chessani the highest ranking and last officer to be accused of criminal behavior retired in July. The father of seven was the battalion commander of 3/1 before being relieved for cause in late March 2006.  Twice the government unsuccessfully appealed the ruling and ordered him before a non-judicial Board of Inquiry before it finally called off its relentless pursuit.

 “Unlawful command influence is the mortal enemy of military justice,” said military judge Colonel Steven Folsom at the time. “In order to restore the public confidence, we need to take it back. We need to turn the clock back.”

Folsom determined General James N. Mattis had tainted the proceedings when he was the convening authority who sent Chessani and the other defendants to court-martial.

The charges against two other 3/1 officers were dismissed during preliminary hearings when the government could not produce enough evidence to make their case. Lieutenant Andrew Grayson, an intelligence officer and the only Marine to go to court martial, was found not guilty of impeding the investigation and trying to sneak out of the Marine Corps, perhaps the zaniest charge the case spawned.

At the time Puckett said his client “is in good spirits. He hasn’t complained at all. He loves the Marine Corps and wants to make it a career.”

Puckett said the court martial is scheduled to last three weeks. The government has called 47 witnesses, including former defendants, forensic investigators, and immunized 3/1 Marines who testified in the past. Among the witnesses on the list is Jeffrey Chessani, Wuterich’s battalion commander who retired in July after being exonerated of criminal charges.