Wuterich Defense – 16th May 08

by Nathaniel R. Helms | May 16, 2008

The Marine Corps attorneys representing Staff Sergeant Frank Wuterich in the so-called ‘Haditha Massacre’ investigation are expected to step down without closure more than a year after their client was charged. Baring unseen events, they will be off the defense team by August 1 and likely earlier than that, according to civilian co-counsel, Mark Zaid.

Meanwhile, Wuterich remains in limbo at Camp Pendleton while government prosecutors wrangle with 60 Minutes lawyers over video outtakes the government says will help prove the incident at Haditha was a crime. Wuterich’s trial will take place sometime in the fall.

Lieutenant Colonel Colby C. Vokeyand Major Haytham Faraj are scheduled to leave the Marine Corps this summer. They have represented Wuterich since being assigned to defend him in December 2006.

It’s going to cause a big problem in the case,” says Wuterich’s lead civilian attorney, Neal Puckett, a retired Marine Corps military judge. “Technically and legally, they’re allowed to retire and leave the case behind. But I think there has never been a case this complex with so much at stake where both detailed military counsel were to be summarily released from the case. Ethically, I think both of them feel bound to figure out a way to stay on the case. But that puts their second careers and families on hold.

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The Marine Corps is required to provide Wuterich with a military lawyer. Already stretched thin by a series of complex criminal cases including one explosive case yet to be revealed the Marine Corps legal system is stretched so thin that it is routinely recalling reservists to act as prosecutors and judges. Zaid is concerned that Wuterich will be assigned a military lawyer without the knowledge and acumen of the lawyers that are departing.

“All of the senior defense counsels from Camp Pendleton are likely ‘conflicted out’ due to representation on other cases. The fact is that they are irreplaceable given their knowledge and skills,” Zaid explains. “This is a significant detriment to the defense of Staff Sergeant Wuterich. The magnitude of the impact is off the scale.”

Marine Corps spokesman Lt Col Sean Gibson is currently unavailable for comment and there was no one else to provide a comment, a deputy PAO at Camp Pendleton said Friday morning.

In an ideal world Vokey and Faraj would join the civilian defense team but that costs big bucks the Wuterich defense team doesn’t have. Puckett and Zaid depend on contributions from Wuterich supporters to sustain his complex defense.

Vokey, a smooth, polite interrogator with a disarming manner, has been a thorn in the prosecution side of the tight-knit Marine Corps legal system for a long time.  

The former artilleryman caused quite a ruckus last September when he was fired from his jobas Regional Defense Counsel for West Coast Marines for assigning too many defense attorneys to the Haditha and Hamandiyah court-martials.

Vokey’s ignominious departure stirred retired Marine Corps Staff Judge Advocate Brigadier General David M. Brahms to comment, “I am pissed.”

The Harvard graduate, who rose to become the Marine Corps top lawyer, said Vokey’s firing bode ill for the Corps.

“The danger here is not malevolence; it is the appearance of evil and the effect upon those in the defense bar,” Brahms said.

Vokey caused a similar stir while representing a 15-year old Canadian citizen accused of terrorism in Afghanistan. At the time the defendant was locked up at the controversial detention facility at Guantanamo Bay, Cuba.

Major Faraj, a former infantryman, performed brilliantly on several occasions during the summer-long evidentiary hearings last year. At the same time, Faraj was defendingCpl. Trent D. Thomas, a 25-year-old Marineaccused of kidnapping and conspiring to murder an Iraqi civilian at Hamandiyah, Iraq. Faraj convinced the judge that Thomas deserved a bad-conduct discharge rather than the life sentence the prosecution sought.

Trial delay over 60 Minutes outtakes

Last February,Marine prosecutor Captain Nicholas Gannon said in court documents that unaired60 Minutesfootage is vital to the case because it contains admissions by Wuterich of crimes in the attack in Haditha, Iraq, on Nov. 19, 2005. The news show’s parent network CBS is trying to quash the prosecution’s subpoena.

The 28-year old former squad leader is currently accused of unlawfully causing the deaths of nine Iraqi civilians while leading a counter-attack against insurgents. The government claims that 60 Minutes recorded admissions by Wuterich that he intentionally killed the Iraqi victims.

Wuterich was initially charged with unpremeditated murder, but the investigating officer in his case recommended last year that the more serious charge be dropped. Wuterich is charged with nine counts of voluntary manslaughter and related offenses arising out of the Haditha killings.

Neal Puckett has called the tactic an intentional delaying action as well as a ‘fishing expedition’ since the government moved on February 29 to overrule the presiding judge’s decision not to compel CBS to produce the video.

“Admissions of guilt don’t end up on the cutting room floor,” Puckett said at the time.

Soaring costs

Already the combined defense costs of the eight Marines accused of crimes in the infamous case more than a million dollars and the government more than three million for the prosecution merely to stage the initial hearings, authorities on both sides of the issue have said.

The Marine Corps and the Department of Defense have repeatedly refused to divulge how much it has already cost taxpayers to mount the world-wide, two-year dragnet that thus far has netted nothing.

The government did reveal that 65 Naval Criminal Investigative Service special agents, numerous forensic experts, most of the available prosecutors in the Marine Corps, and military judges from as far away as Hawaii have been brought to Camp Pendleton to hear the case.


Nathaniel R. Helms Defend Our Marines
16 May 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).