September 5, 2007

Lieutenant Colonel Colby C. Vokey has been fired as Regional Defense Counsel for West Coast Marines for reportedly assigning too many defense attorneys to the Haditha and Hamandiyah defendants. Vokey was one of three regional defense attorneys charged by the Marine Corps with supervising the defense teams within the various commands of the Marine Corps. He is currently defending Staff Sergeant Frank Wuterich against 17 charges of unpremeditated murder at Haditha, Iraq.

“I am pissed”

Retired Marine Corps Brigadier General David M. Brahms is among the lawyers enmeshed in the Haditha murder investigation who have exploded into anger over the firing.

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

Brahms is a Harvard Law School graduate who climbed through Marine Corps ranks after completing the Platoon Leaders Course to become the Director of the Judge Advocate Division for three years prior to his retirement in 1988.

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Vokey was fired by Colonel Rose M. Favors, the Command Defense Counsel of the entire Marine Corps. She reports to the Staff Judge Advocate. Favors reportedly fired Vokey for allowing each of the defendants in the Haditha and Hamandiyah murder and dereliction of duty cases to have more the one Marine Corps lawyer assigned to represent them. Favors reportedly told Vokey that assigning so many defense lawyers was unnecessary for them to receive adequate representation.

At least a dozen civilian and military defense attorneys have been in communication deciding whether to join in a letter being circulated for endorsements and signatures decrying Favors action. Three attorneys who sought temporary anonymity said they will sign a prepared missive demanding an end to undue command influence in the judicial process. In part the strongly worded letter demands the end of inappropriate command influence before it corrupts the defense process so badly it cannot adequately function.

Five Marines charged with crimes alleged in the Haditha incident are still waiting to discover their fate. In addition to Wuterich facing 17 counts of unpremeditated murder, Lance Cpl. Stephan Tatum is waiting to discover if Mattis will follow his Investigating Officer’s recommendation to dismiss multiple counts of murder against him. Three officers charged with dereliction of duty at Haditha are in various stages of the judicial process. All of them have Marine Corps and civilian attorneys representing them.

Former 3rd Battalion, 1st Marines commanding officer Lt. Col. Jeffrey Chessani faces the most serious situation among the four officers originally charged with professional malfeasance. Chessani is waiting to discover if Mattis will order him to stand general courts-martial for five counts of dereliction of duty. His Investigating Officer Col. Christopher Conlin has recommended he stand trial on all the charges. Capt. Randy Stone, formerly the battalion SJA, and LCpl Justin Sharratt, a SAW gunner, have been cleared of all charges.

Making waves

Both Vokey and Brahms have earned the ire of their more conservative colleagues on a number of issues since the Marine Corps became involved in prosecuting and defending foreign terrorists and fighting Marines at the same time. Vokey got worldwide attention at Guantanamo Bay, Cuba while defending a terrorist before a hearing officer there. Vokey reportedly erupted in frustration, shouting, “Every time we come down here there is an incredible burden just to do my job. There are no rules here.”

On more than one occasion Brahms has bashed Marine Corps participation in the Guantanamo Bay proceedings. On September 7, 2004 Brahms and seven other retired officers wrote an open letter to President George W. Bush expressing their concern over the number of allegations of abuse of prisoners in U.S. military custody.

In the Haditha case, Brahms represented former 3/1 officer Lt. William Kallop during his testimony. Kallop is the officer who ordered a squad of Marines to assault a series of homes where 19 of the 24 Iraqis who were killed. Kallop was granted testimonial immunity, meaning anything he tells the attorneys cannot later be used to prosecute him for any crime.

A stretched legal system

All the disparate demands on the Marine Corps’ modest legal structure has stretched the Corps’ resources to the limits, several lawyers said. For example, Lt. Col. Sean Sullivan, who is prosecuting Wuterich, is a Chicago-based reservist who is a partner in private practice in the Windy City. On the defense side, each SJA carries a large case load. Their circumstances are further exacerbated because each Marine defendant needs at least two Marine Corps trial attorneys to counter the numbers the prosecution fields

The prosecution enjoys a built-in home court advantage. In addition to enjoying the services of the most experienced trial attorneys among the SJAs, the prosecution can call upon the resources of Naval Criminal Investigative Service investigators, other federal law enforcement officials, and apparently unlimited funds to travel world-wide interviewing witnesses and otherwise investigating frequently specious allegations. 

Attorney Kevin B. McDermott, who represents Capt. Lucas McConnell, said Favors decision, particularly her timing, is prejudicial to the performance of the defense lawyers,  particularly active duty Marines, who must serve two masters.

Currently the Article 32 investigation of Staff Sergeant Frank Wuterich is underway at Camp Pendleton. He is represented by Vokey and Maj. Haytham Faraj, who simultaneously defended Cpl. Trent Thomas in the unrelated Hamandiyah murder investigation.

Command influence?

It is the second time in as many months as Marine lawyers defending Marines at Camp Pendleton have gotten angry over matters curiously similar to inappropriate command influence. Charges have also been hurled in hearing rooms as well when the defense and prosecution lawyers wrangle over allegedly extralegal antics.

Last week Sullivan pointed the finger and later apologized last week for accusing defense attorney Maj. Haytham Faraj of unethical conduct during Wuterich’s Article 32 hearing at Camp Pendleton.

Another salvo was fired when Investigation Officer Lt. Col. Paul Ware accused Lt. Gen. J. N. Mattis’s senior legal advisor Lt. Col. Bill Riggs of making “inappropriate and imprudent” comments during his investigation of LCpl Stephan Tatum. Riggs is a senior legal adviser to the general overseeing the prosecution of five Marines charged in the slayings.

Riggs recusal came after he contacted Lt. Col. Paul Ware, the investigating officer who had reviewed evidence against another Marine facing murder charges. Riggs allegedly criticized the officer for being too stringent in assessing the government’s case against Lance Cpl. Justin Sharratt. Sharratt was later exonerated by Mattis.

“He believed my report … adjudicated facts like in a trial and was interpreted by some as a declaration that Lance Cpl. Sharratt is innocent,” Ware wrote in an Aug. 1 e-mail to several attorneys. “I viewed Lt. Col. Riggs’ comments as inappropriate and imprudent. … I was … offended and surprised by this conversation.”

Ware also heard the evidence against Tatum; ultimately recommending the dismissal of all the charges against him as well.  

Riggs never was available for comment. He recused himself from the Tatum case “to make sure there was no appearance of impropriety,” Marine spokesman Lt. Col. Sean Gibson said.

Sullivan, who is prosecuting Wuterich, may eventually face some heat of his own for how and why star prosecution witness LCpl Humberto Mendoza managed to get transferred to Sullivan’s Chicago-based reserve unit as a driver after he was granted immunity. The defense also wants to know if Sullivan intervened in making Mendoza’s immigration problems disappear. Last week Mendoza stumbled his way through a day of testimony under Sullivan’s tutelage.

At one point during cross-examination Vokey tried to discover if Mendoza’s civilian attorneys had ever made any deals with the prosecution. An unidentified female representing herself as Mendoza’s civilian attorney from Philadelphia rose from the gallery to speak, but was cut off by multiple objections from Sullivan. The answer was left hanging when Ware called for a recess. Later on one of the defense attorneys was heard to mutter, “This isn’t the end of that.”

And finally, the defense wants to know if Mendoza’s lawyers allowed their client to be interviewed by prosecutor’s hunting for a ‘perfect witness’ before they decided to grant him immunity and provide him the alleged benefits of serving in Chicago instead of staying at Camp Pendleton where he was easily accessible. If they did than Mendoza’s remarkable about face against his former squad mates could be more easily explained.

Meanwhile, the saga continues.

Nathaniel R. Helms
Defend Our Marines
September 2007

Note: Nat Helms is a Contributing Editor to Defend Our Marines. He is a Vietnam vet, journalist, combat reporter, and, most recently, author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).