Saturday, January 21, 2012

Oceanside, Calif. — The second week of testimony ended Friday afternoon at the court-martial of SSgt Frank D. Wuterich.

So far the government has not proved he unlawfully killed anyone, much less how, where, or when. What has been firmly established is that Wuterich is a great Marine infantryman greatly admired both by his squad and his superiors. The former squad leader is charged with killing an unspecified number of civilians in Iraq in 2005, assaulting others, and being derelict in his duties.

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Defend Our Marines didn’t report the story Friday night because the whole day of testimony was so unremarkable it simply wasn’t worth sharing it until it could be enlivened by the light of previous findings on a witness, Sgt Humberto Mendoza. The most extraordinary event on Friday had nothing to do with the court martial.

The day began with Marines busy getting ready for Vice President Joseph Biden and his wife on the grinder that separates the Media Center from the court room. Reporters covering the court martial had to go around them. Questions were neither sought or desired before they arrived.

The VP was at Camp Pendleton to tell the Marines how much he appreciates them. His wife met a unit of female Marines destined for duty in Afghanistan who showed off their new found skills dealing with Afghan women in their native Pushtun, and a line company in immersion training who took things in hand at a mock Afghan village. At the black top grinder, speeches were heard. Their visit concluded at the Warrior Hope & Care Center where wounded Marines are rebuilding their bodies and lives.

‘We owe you guys more than anything’ the North County Times reported Biden saying. The flag waving dog-and-pony show somehow seemed incongruent with the court-martial for a Marine’s life going on 50 yards away.

Inside the courtroom, both sides finished grilling 29-year old Venezuelan native Sgt. Humberto Mendoza, one of two 3rd Platoon grunts turned by the government to testify against Wuterich.

Prosecutor Sean Sullivan used Mendoza to try and prove the fire team of Marines he belonged to ran amuck and wiped of two families of innocent civilians. Mendoza suffered a rough cross-examination from defense attorney Haytham Faraj, who strikes really hard sometimes. Mendoza answered Faraj with a crisp “Yes, sir” and “No, sir” whenever he could. Where he got into trouble was trying to explain himself. The Chinese would characterize his style of interrogation as “death by a thousand cuts.”

Sullivan and Faraj sparred a few times during the interrupted examination that began last Wednesday. Mendoza admitted lying to pre-trial investigators in Iraq and back home because he wanted to ‘protect’ his squad mates. Essentially Mendoza testified Wuterich was a great Marine who never ordered him to do anything unlawful on Nov. 19, 2005 and helped keep him alive.

After retelling what happened at House 1, Mendoza said he really didn’t know what went on in House 2 where eight people were killed, many of them small children that still haunt him today, he said.

“Up to this day I really don’t know what happened in the back bedroom,” he explained.

Mendoza was certain the house was hostile when he attacked it under Wuterich’s command, he said. He was certain both houses they cleared were hostile when he killed two men with his rifle and threw some grenades. One of them may be the ‘dud’ a previous witness said Tatum later recovered with safety tap still wrapped around the arming handle and the arming pin missing.

Mendoza said Wuterich was among the Marines who taught him how to keep himself alive around things that can really hurt if they aren’t handled correctly. Taping grenades was one of those lessons. He was less certain of what happened later, what he did and what the other Marines did after viewing the carnage he discovered inside a tiny room where most of a young family died. It was his first and only taste of combat. Mendoza is in administration now. He told Faraj he wanted to ‘try something else.’

Mendoza has a closer relationship with prosecutor LtCol Sean Sullivan that the government apparently wanted to reveal. At least Sullivan never mentioned it. Somehow Mendoza wrangled a transfer to Chicago where Sullivan held a reserve commission in a local battalion until the Marine Corps called him to active duty. Faraj made a few references to their curious relationship in his cross-examination.

Mendoza acknowledged he visited with Sullivan in Chicago sometime after being coerced by Naval Criminal Investigative Service agents who threatened him with deportation if he didn’t cooperate. Both sides stopped short of asking Mendoza what else happened there.

NCIS unethical tactics: at odds with US law

On July 25, 2007, Defend Our Marines took a look for itself. The facts have never been challenged so the story is still on the mark. The member of the defense team was observed reading it in the court room earlier this week.

Defend Our Marines reported that Jack Zimmermann, the Texas attorney representing Lance Cpl. Stephen Tatum, suggested NCIS used the vicious ploy to gain Mendoza’s testimony during his examination of the Marine.

A spokesman for United States Immigration and Customs Enforcement said the Naval Criminal Investigative Service special agents who threatened Mendoza with deportation were at odds with current US law.

A spokesman for ICE in Washington, D.C. said NCIS could only make such a threat if Mendoza was already convicted of a serious crime. Current immigration law mandates violators must be convicted of a crime providing for ‘at least one year in jail or more’ before it will initiate deportation proceedings, according to Pat Reilly, the Public Affairs Officer for ICE at the time. She noted two exceptions to the law;

1.) If Mendoza lied about his citizenship status and fraudulently enlisted in the Marine Corps;

2.) If Mendoza had already been convicted of two or more crimes.

The PAO at the Media Center said Mendoza’s citizenship status was a question for the Public Affairs Officer for the 1st Marine Division. The 1st MarDiv PAO never responded. Presumably, given Mendoza’s unfettered testimony, he remains in good standing in the Marine Corps.

On December 18, 2005, three days before three Marines from his squad were charged with murder Mendoza was granted immunity from prosecution in return for his cooperation. During an earlier court appearance Mendoza devolved from being part of a combat stack of Marines attacking a hostile objective to a lone Marine apparently wandering around in a smoke-filled house grenades had just been thrown into, he testified.

In his post-immunity version of events, Mendoza didn’t shoot anyone except a couple of fellows who must have deserved it. When he discovered innocent civilians huddled in a room behind a closed door he backed away, shutting the door behind him. Despite the early morning gloom stipulated by both sides, he could see the darkened, smoke-filled chamber was full of terrified women and children. Tatum did all the killing, he said.

Zimmermann subsequently suggested during his examination of Mendoza that the NCIS told Mendoza his citizenship was at stake if he didn’t cooperate. In any event it was a hollow threat. In most jurisdictions the court will call that type of behavior coercion.

“60 Minutes” outtakes

The long anticipated outtakes from a 2007 ’60 Minutes’ broadcast went a long way toward humanizing the young Marine who was the subject of Scott Pelley’s interview. It would serve better as a primer for budding television producers than an indictment of Wuterich. It is hard to understand why the government spent three years and much taxpayer money obtaining it. (Read a transcript of the aired “60 Minutes” piece here.)

The panel got to see three hours of how TV producers and directors reshoot the same questions over and over while they take tight shots and wide shots and stick little pieces of paper on a Google map to show where it all happened. Through it all Wuterich maintains an even string, even when Pelley calls him a murderer. Perhaps that is where the prosecutors got the idea to make the Marines who testified do the same thing on a blown up Goggle map inside the courtroom.

What’s ahead

Monday the government brings two Naval Criminal Investigation Service crime scene reconstructionists to the stand. At least they won’t get shot at while they are testifying. At Haditha in 2006 an investigation team with one male and two female agents had to retreat in disorder after the Marines securing them found an IED near the alleged death houses. Another time they had to cut short their interrogations of the surviving victims when local insurgents starting shooting at them. Nobody seems to like them. Perhaps that is why the NCIS always seemed so testy when they were abusing the Marines under the Haditha Dam.

Crime scene reconstruction is a fascinating subject. But listening to it is like watching corn grow, you can hear it, but it is really boring to watch. After them four investigative agents who tried to humiliate the murder suspects in a urine soaked dungeon and badger them into complicity at Camp Pendleton will appear. Their testimony will bring the government’s case to a close.

The eight-member panel will no doubt recall the indignities NCIS agents inflicted on the Marines that came to light during the presentation. Who can forget SgtMaj Edward Sax saying he told his Marines to pull out their penises and urinate on the table the next time the badge-heavy special agents refuse to let them go to the head? If they don’t, the defense team will probably remind them.

Sources close to the investigation said SSgt Wuterich was on the verge of cutting a deal when he was encouraged to reconsider his options and go for broke. He was reportedly swayed by arguments that he owed both the Corps and the other Marines who paved the way for his ultimate exoneration. The defense is already displaying a lot of confidence and it hasn’t even been up to bat.

Military judge LtCol David Jones once again admonished the government lawyers to move the court-martial along. He anticipates it will now conclude in the first week of February. Meanwhile court will last an hour longer each day and will go all day Saturday to make up the time lost when Wuterich was negotiating a deal that would have ended it all.