by Nathaniel R. Helms | Thursday, January 5, 2012 | Day One: Voir Dire | Day Two
Camp Pendleton, Calif. LtCol. Jeffrey Chessani, battalion commanding officer of the Thundering Third at time of the so-called “Haditha Massacre”, will not be testifying at the court-martial of SSgt Frank Wuterich, the military judge said Thursday. Chessani was the highest ranking Marine charged with a crime in connection with the deaths of 24 Iraqi citizens following a roadside ambush in the dusty Iraqi city during November 2005.
“Chessani will not be a witness,” announced military judge LtCol. David Jones.
“We lost that battle,” said chief defense attorney Neal Puckett, himself a former Marine military judge.
Chessani was one of the witnesses the government objected to during pre-trial negotiations to determine who and who would not be called to testify. When asked if the defense was disappointed by the decision, Puckett, a retired lieutenant colonel, said his defense team had tried vigorously to bring Chessani back to Camp Pendleton one last time. Puckett is assisted by his partner Haytham Faraj, a retired Marine major and experienced Haditha defense counsel who achieved a high profile during the often contentious pre-trial Article 32 hearings in 2007. Wuterich’s detailed Marine counsel is Maj. Meridith Marshall.
The government is represented by veteran prosecutors Maj. Nicholas Gannon assisted by LtCol. Sean Sullivan, well known during the early pre-trial investigations for his fiery temper and forceful court room manner.
During the investigation of the November 19, 2005 incident at Haditha, Iraq, Chessani commanded 3rd Battalion, 1st Marines. He was frequently quoted during the reporter’s feeding frenzy that followed the accusations as vehemently saying, ‘My men are not murderers’ when apprised of massacre allegations by a Time magazine reporter. The story Tim McGirk wrote, dubbed the ‘Haditha Massacre’ by the excitable scribes who followed, morphed into a full-blown criminal investigation that changed the way Marines in Iraq fought the war.
Chessani, a career infantry officer with a brilliant combat record, left the Marine Corps with his rank and retirement privileges intact after being exonerated of all criminal charges. Six other defendants, three officers and three enlisted Marines, have also been exonerated by various means. Wuterich is the last Haditha defendant to face charges and the second whose case is being disposed of by general court-martial.[Note: Chessani spoke out about the case for the first time to Defend Our Marines on July 21, 2010. Read the first in a three-part article here.
The business of the day however was not disposing of the charges. It was voir dire day, the first of two days the lawyers will apparently need to decide who will be seated on the ‘panel,’ the name military courts use to identify the jury.
Eleven senior Marines, five officers and six non-commissioned officers, have been detailed as potential jurors, panelists, in military parlance, to determine the guilt or innocence of SSgt Frank D. Wuterich. They include a full-bird colonel, two lieutenant colonels, a major, one captain, a master gunnery sergeant, a first sergeant, two master sergeants and two gunnery sergeants. Military law considers them to be Wuterich’s peers, and therefore eligible to judge him.
The gunnery sergeants are the two potential jurors closest in rank to Wuterich, who is entitled to a panel in which one-third of the members are enlisted men. Staff sergeants such as Wuterich hold the pay grade of E-6. Gunnery sergeants, commonly referred to as ‘gunnys,’ are E-7s. Although the pay grade numbers are close, the status and influence of a gunnery sergeant vastly surpasses that of his E-6 subordinates.
Based on the assortment of decoration visible in the assemblage, there are a lot of hardcore fighting men among the Marines who will ultimately decide Wuterich’s fate.
According to testimony offered Thursday, the potential panelists were given a questionnaire to complete during the Christmas holiday season by the chief of staff of the 1st Marine Division. After a review of their answers, the potential panelists were notified last week they would be part of the pool of potential jurors now being quizzed in the cramped courtroom at Camp Pendleton. Most of them said they did not know they would be involved in the Haditha matter until they were selected for the panel pool.
Lawyers from both sides of the courtroom spent most of Thursday tediously and repetitively grilling the potential panelists to determine whether they will ultimately decide Wuterichs fate. First they asked the entire 11-member pool general questions and then cleared the court room and summoned each individual in for a personal interrogation.
The process is similar to a civilian court’s voir dire procedure, with both sides trying to select Marines that seem sympathetic to their side of the infamous case. As simple as it sounds, it is not an easy process, lawyers are quick to admit. Pre-hearing procedures, rules of law, and judges who want to get on with the proceeding dictate what kind of questions will be asked and in what manner they may be phrased.
At the conclusion of the voir dire process, as few as five or as many as all eleven of the potential panelists will be seated, said Marine Corps PAO LtCol Joseph Kloppel. In the meantime the attorneys will try and divine from the answers of the jury pool who they want on the panel.
Common wisdom says enlisted men prefer enlisted panelists and prosecutors prefer officers, who they believe more closely follow the customs and traditions of their caste, Kloppel opined.
“At least that’s what I think,” he explained.
The 31-year old Marine infantryman and former squad leader, is charged with nine counts of Voluntary Manslaughter, two counts of Assault with a Dangerous Weapon, and three counts of Dereliction of Duty for his role in the deaths of 19 Iraqi citizens who were killed after Wuterich’s 12-man squad was ambushed on November 19, 2005 while on a resupply convoy.
LtCol. Jones Thursday morning asked the potential panelists whether they could give ‘fair consideration’ to sentencing Wuterich to a dishonorable discharge and more than 157 years in prison for his role in leading a fireteam of Marines that killed the civilians more than six years ago. All raised their hands in affirmation.
SSgt. Wuterich was present during the day, listening intently and occasionally making notes.
During the proceedings, potential panelists heard a laundry list of familiar names, all players in the six year investigation of the alleged massacre that captured the attention of the world when it was revealed in early 2006. The government is expected to call about 40 prosecution witnesses, including several Marines who were granted testimonial immunity in exchange for their testimony.
LtCol. David Jones told the potential panelists they should expect to be in the tiny, austere courtroom at Camp Pendleton for as long as four weeks.
Note: A correction was made in this article after it was first posted. Like the rest of the media, Defend Our Marines misreported the name of SSgt Wuterich’s Marine counsel as Major Meredith Nelson. It is actually Major Meridith Marshall. We regret the error.
Nathaniel R. Helms
Defend Our Marines
5 January 201
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).