by Nathaniel R. Helms | Friday, January 6, 2012 | Day Two: Jury selection complete

Camp Pendleton, Calif. An eight-man panel of four officers and four senior non-commissioned officers will begin listening to testimony Monday morning when the lawyers fighting the final Battle of Haditha offer their opening statements at the General Court Martial of SSgt Frank D. Wuterich, the last Marine standing in the six-year-old fight.

The government is apparently expecting a tough battle in the weeks ahead.

“I can’t think of a single witness desiring of being helpful to the government,” complained chief prosecutor Major Nicholas Gannon at the conclusion the tedious two-day voir dire proceeding. Sitting next to him was LtCol. Sean Sullivan, a Chicago reservist called to active duty to augment the prosecution team the government assembled.

Across the aisle, wearing an air of pleased expectation, were Wuterich’s lawyers: retired Marine military judge Neal Puckett and Haytham Faraj, a retired Marine major and experienced Haditha defense counsel. Assisting them is detailed Marine counsel Major Meridith Marshall, a relative newcomer to the Haditha imbroglio.

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Military judge LtCol. David Jones ordered the trial to begin Monday morning after a colonel and two sergeants were stricken from the pool of potential panelists at the conclusion of the two-day selection process.  

Attorneys in military cases are allowed to request the removal of potential jurors–called “panelists” in military law–for cause or simply because they don’t like what the panel candidates had to say. The Colonel, deemed too close to the convening authority, a Master Gunnery Sergeant who provoked somebody’s ire, and a Gunnery Sergeant who mentioned Hiroshima and Haditha in the same breath were stricken from the roles after the prosecutors and defense attorneys jousted over their continued presence.

During the voir dire proceeding, almost all of the Marines questioned by Sullivan and Faraj stumbled through explanations of what the Rules of Engagement said in November 2005, offering vague impressions of how they were changed after former Marine Commandant General Michael W. Hagee visited Iraq in 2006 following the Haditha fiasco. The potential panelists had an equally tough time explaining when and why escalation of force can be implemented, and what to do when apparent non-combatants find themselves on the firing line. Each of those questions represent fundamental building blocks the panelists must consider when deciding the guilt or innocence of Wuterich, a rookie squad leader who commanded the Marines that counter-attacked their ambushers.

The real Battle of Haditha

The ambush was the beginning of a day long fight at Haditha that left one Marine dead, eleven wounded, and an unknown number of hostiles dead in smoking bomb craters and shredded underbrush covering the battlefield.

“There were several significant incidents going on that day. We destroyed an insurgent safe house down the road with bombs the same morning, turned it into dust. There could have been civilians killed there”, former 3/1 commanding officer Jeffrey Chessani told Defend Our Marines in July 2010 (read the story here. “We found insurgents buried in shallow graves still in their weapons and equipment. We had to bury dead insurgents wearing ammunition vests because they started to stink”.

“We worked closely with our Human Exploitation Teams (HET) and my S-2 (Captain, later Major Jeffrey Dinsmore) was a bulldog. I was so lucky to have him. He knew what was going on. We got those weapons. We took away the enemies ability to attack my Marines and civilians. The people were safer. Not even the insurgents wanted to kill civilians if they didn’t have to. We took away the means,” Chessani added.

At the end of the day Marines, had captured or detained enough suspects who later talked that 3rd Battalion, 1st Marines was able to break the back of the active insurgency in Haditha, Chessani explained.

As reported yesterday, the career infantry officer has been stricken from the witness list for Wuterich’s court martial.

The fight ahead

The eight Marines on the panel will spend as long as three weeks reliving the gruesome November day when 24 Iraqis were killed in Haditha. Two lieutenant-colonels, a major, one captain and four senior non-commissioned officers will ultimately decide whether Wuterich will be allowed to leave Camp Pendleton a free man or spend the rest of his life inside a federal prison in Leavenworth, Kansas. All of the Marines selected to join the jury panel have experienced combat in Iraq or Afghanistan, most of them in both during multiple combat deployments.

For more than five years the 31-year old Marine has waited for his day in court. He was indicted December 19, 2006 upon the conclusion of a world-wide, multi-million dollar criminal investigation of the alleged November 19, 2005 massacre that never happened.

Although eight Marines were initially charged with complaints ranging from murder to cover-up and dereliction of duty, all but Wuterich have been exonerated. During the contentious proceeding in 2006 and 2007 all of them were cleared because of a lack of evidence, a paucity of forensic clues, and the almost certain participation of Al Qaeda financed terrorists who precipitated the incident by attacking the Marines from ambush.

LtCol. Paul Ware, the investigating officer who presided over Wuterich’s Article 32 preliminary investigation pointed out in October 2007 the stumbling blocks the government had to overcome if it had any hope of earning a conviction:

“I am recommending that the Government pursue the lesser offense of negligent homicide and not murder because I believe after reviewing all the evidence, no trier of fact can conclude SSgt Wuterich formed the criminal intent to kill. The evidence is contradictory, the forensic analysis is limited and almost all witnesses have an obvious bias or prejudice. The case against SSgt Wuterich that he committed murder is simply not strong enough to prove beyond a reasonable doubt.”

SSgt Wuterich, a divorced father with custody of his three young daughters, faces a maximum of more than 157 years in prison if convicted on 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 as the prosecution charges. Counted among the victims were Iraqis in homes stormed that day and five unidentified males in the infamous ‘white car’ that will be the focus of much attention in the coming weeks.

The victims were slain after Wuterich’s 12-man squad was attacked while on a resupply convoy, killing one Marine and wounding two more riding in four Humvees.  The defense contends that 14 of the victims were caught in the vicious cross-fire that erupted after Wuterich led his team to the source of the enemy fire and the other five men when the white car they were riding in inexplicably appeared inside the Marine’s security circle seconds before the IED erupted. 

The prosecution claims Wuterich failed to follow the rules of engagement that required the Marines to make positive identification of enemy combatants or be in imminent danger of death or serious bodily injury before opening fire.

During Friday’s proceeding Wuterich remained alert, frequently asking his lawyers whispered questions, occasionally smiling, and listening intently when the gruesome realities of armed conflict were momentarily revealed by potential panelists attempting to answer imponderables that have plagued wars and warriors in perpetuam rei memoriam – in everlasting remembrance


Nathaniel R. Helms
Defend Our Marines
6 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).