by Nathaniel R. Helms | February 28, 2008
Camp Pendleton, California A vindicated Marine lance corporal accused of war crimes at Haditha, Iraq has been granted testimonial immunity, Defend Our Marines has learned. Former Lance Corporal Justin Sharratt will testify on behalf of two enlisted Marine infantrymen waiting general court-martial in the infamous case.
It is expected by both defense teams and courtroom observers that Justin Sharratt will provide testimony beneficial to Lance Corporal Stephen Tatum and Staff Sergeant Frank Wuterich, the two Marine enlisted men still facing trial for unlawfully killing Iraqi civilians. Tatum was Sharratt’s squad mate during two vicious combat tours in Iraq in 2004 and 2005. Wuterich was his squad leader when the unit was ambushed at Haditha.
Daniel Conway, a former Marine and an associate of lead defense attorney Gary Myers and co-counsel in the Justin Sharratt case, said Sharratt received word Tuesday that he has been immunized from future prosecution. The decision was made by Lieutenant General Samuel T. Helland and Assistant U.S. Attorney Alice S. Fisher.
“This was never a matter of Justin being threatened if he didn’t cooperate,” Daniel Conway said. He always wanted to do that. We simply didn’t want him to risk the exposure without assurances that he was getting immunity. We had a duty to protect our client by getting assurances from both the Marine Corps and the U.S. Attorney that he wasn’t being exposed to anything that could harm him or his family.
Two-fisted game for life
Another guiding hand in the complex legal battle still underway in California is retired Marine Corps colonel Jack B. Zimmermann, an Annapolis graduate who served two combat tours in Vietnam before moving on to law. He is the attorney who filed the motion seeking immunity for Sharratt. The Houston-based lawyer has emerged as a masterful player in the two-fisted game for life being played in the stuffed little courtroom at Camp Pendleton.
Zimmermann, as successful in his civilian career as in his Marine Corps experience, leads the defense team representing LCpl Stephen Tatum.
“We are the ones who asked for LCpl Sharratt to be immunized so that he could serve as a defense witness in our trial and be protected from any future prosecution as a result,” Zimmermann said on Wednesday.
Sharratt’s family received word Tuesday that Lieutenant General Samuel T. Helland granted Zimmermann’s motion to provide their son with testimonial immunity, Conway said.
Last September, Sharratt was absolved of unpremeditated murder and other charges by Gen. James N. Mattis, whom Helland replaced last November as the convening authority in the 15-month, multi-million dollar criminal investigation. .
“This clears the way for us to use him, if it becomes necessary,” Zimmermann added. “He is a fine Marine and comes from a great family.”
From combat Marine to witness
In Haditha, Sharratt and Wuterich encountered four armed Iraqi men inside house number four (as it was named by investigators). It was the second time Sharratt was forced into no-quarter death duels with insurgents in Iraq. He has more first-hand experience in close combat than any other enlisted Marine involved in the Haditha incident except for his friend Tatum and several Marines who have been called as witnesses instead of being charged with crimes in the matter.
In November 2004 Sharratt survived the vicious Battle of Fallujah where he distinguished himself at the diabolical Hell House. In that engagement he was in a room-to-room shootout with an unknown number of insurgents that left one Marine dead, 10 Marines seriously wounded, and earned Kilo Company, 3/1 a permanent place in Marine Corps lore.
The squad’s bloody meetings with insurgents a year later at Haditha ignited allegations in Time magazine that a gang of out of control Marines slaughtered old men, women, and children in a revenge killing following the death of a squad mate.
Subsequently, Sharratt and three other enlisted Marines were charged with murder, assault, and a laundry list of lesser crimes. In September 2007, Sharratt was exonerated by Lt. Gen. James N. Mattis, the original convening authority and final arbiter in the Haditha matter until he was promoted and transferred.
Four officers were charged with a cover-up after Pennsylvania Congressman John Murtha, the powerful Democrat who chairs the Armed Forces sub-committee, accused the Marine infantrymen with cold-blooded murder and their officers of covering up the massacre. Two of the officers still face prosecution for dereliction of duty and other offenses.
Immunity was an essential condition for Sharratt’s testimony. Attorney Conway is very conscious of another case that has set a disturbing precedent. Currently, in a southern California U.S. District Court, a former combat Marine faces civilian prosecution for allegedly killing a prisoner of war in Fallujah in November, 2004. That man, former Sgt. Jose Nazario, was arrested after he was discharged from eight years of active duty. Myers and Conway needed to protect their client from that same possibility. Assurances from an Assistant US Attorney in Washington, D.C. that the federal government was granting Sharratt immunity in the public convinced the attorneys to let Sharratt testify, Conway said.
Coincidentally, Jose Nazario is from the same platoon in Kilo Company, 3rd Battalion, 1st Marines that Sharratt served in at Fallujah. Nazario was a probationary patrolman on the Riverside Police Department in August, 2007 when he was arrested for voluntary manslaughter by the Naval Criminal Investigative Service and indicted by a civilian federal Grand Jury.
Sharratt is expected to testify about his direct knowledge of conversations he had with Wuterich, then a sergeant and his squad leader. He is also expected to shed some light on the squad’s state of mind, what he knows of the white car incident, and what he knows about the firefight and killing at the first two houses the Marines swept through.
Countering prosecution witnesses
Former Haditha defendant Sergeant Sanick Dela Cruz has already testified that before Wuterich and his squad was ambushed on a road called Route Chestnut, the rookie squad leader promised revenge if anyone in his squad was hurt or killed. Dela Cruz, a two-tour combat veteran and then a corporal in Wuterichs squad, testified that Wuterich and another Marine were smoking cigarettes during down-time at Haditha dam when Wuterich uttered the threats. A roadside bomb had gone off that day and injured several Marines, Dela Cruz said.
“Everybody was pretty much upset,” Dela Cruz told prosecutor Lt. Col. Sean Sullivan. “We were smoking outside … for whatever reason Staff Sergeant Wuterich made this comment that if we ever got hit again we should kill everybody in that vicinity, sir, to teach them a lesson.”
About a week later, on November 19, 2005, an IED killed Lance Cpl. Miguel Terrazas of El Paso, Texas. In the aftermath of the IED blast, Dela Cruz, Salinas and Wuterich shot dead five Iraqi men who were suspiciously on the scene in a white car.
The squad received small arms fire at the ambush site, and was ordered by a lieutenant to clear the houses from which the fire was coming. Wuterich led a fire team that included Sharratt and Tatum in a sweep through two houses where nine men, women and children died during the 30-second clearing operation using grenades and automatic weapons to clear the rooms. Thirteen months later, Wuterich, Tatum, Sharratt and Dela Cruz were charged with murder, assault and lying to cover up the incident.
In April 2006, Dela Cruz was given immunity from prosecution and all his charges were dismissed in return for his testimony against Wuterich. Since then Dela Cruz has become somewhat of an embarrassment for the prosecution. During the summer-long investigation last year, Dela Cruz admitted urinating on one of the men he shot in a fit of pique. Then, his testimony at Wuterich’s Article 32 hearing, Dela Cruz was repeatedly discredited on the witness stand to the point that the investigating officer publicly announced he had no faith in the sergeant’s credibility. Sharratt is expected to add his voice to that chorus of skeptics.
Last week, Helland, the convening authority and final arbiter in the Haditha investigation, ordered Tatum to appear at Wuterichs trial and tell the jury his version of the events at Haditha on November 19, 2005. Apparently the prosecution needs something to bolster their sagging case against the enlisted infantrymen.
Helland’s decision is the latest in a series of pre-trial defense motions that are slowly grinding away the government’s case against the four Marines still scheduled for general court-martial.
Tatum, 26, a rifleman in Sharratt’s fireteam at Haditha, is currently charged with two counts of involuntary manslaughter, reckless endangerment and aggravated assault. Despite the seriousness of the charges he is in far better shape than on December 21, 2006 when he was charged with two counts of unpremeditated murder, four counts of negligent homicide, and assault. In response to numerous defense motions and other maneuvers the convening authority subsequently reduced the charges. Tatum is scheduled to go on trial March 28, though that date is likely to change.
Wuterich, 27, is charged with nine counts of voluntary manslaughter, aggravated assault, reckless endangerment and obstruction of justice. He faced 17 counts of unpremeditated murder and several lesser offenses before his charges were reduced. He is expected to go on trial in early to mid-March. Already his trial date has been postponed twice.
Last week Zimmermann’s defense team was caught by surprise when the government unilaterally granted Tatum immunity to testify in Wuterich’s court-martial and removed the chief prosecutor from his case. Zimmermann learned of the government’s move during a motion hearing for Wuterich. At the hearing, Wuterich’s attorneys Neal A. Puckett and Mark Zaid attempted to quash statements Tatum made to investigators.
Zimmermann says he is filing more motions in addition to ones he filed last week to suppress all the statements Tatum made to Naval Criminal Investigative Service agents after Tatum asked for an attorney during a May 9, 2006 interview.
The battle for justice continues.
Nathaniel R. HelmsDefend Our Marines
28 February 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).