Motion Hearings

by Nathaniel R. Helms | February 19, 2008

Ann Arbor, Michigan — A team of lawyers representing Lieutenant Colonel Jeffrey Chessani have filed five significant motions at Camp Pendleton, Calif. that will undoubtedly open a literal Pandora’s Box if they are granted by the military judge overseeing the Marine officer’s general court-martial. Chessani is the highest ranking Marine officer charged with crimes in the so-called ‘Haditha Massacre.’

“Potentially, the case could be thrown out if we prevail on one or some of these motions,”  said Richard Thompson, President and Chief Counsel of the Ann Arbor, Michigan-based Thomas Law Center that represents Chessani., the former battalion commander charged with dereliction of duty in the notorious case.

The five motions include: a motion to compel the deposition of Congressman John Murtha; a motion to dismiss all of the charges due to their Constitutional vagueness; a motion to dismiss some of the charges because the same allegations have been charged in multiple ways; a motion to compel further discovery the government has kept from the defense that the government has deemed not relevant; and, a motion for a new Article 32 hearing because the last hearing was defective.

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The motion to compel the deposition of Congressman John Murtha is the most colorful of the legal maneuvers a 3-man legal team from Thomas More intends to introduce. The powerful Pennsylvania Democrat accused a squad of Marines of “cold blooded murder” in the deaths of 24 Iraqi citizens killed more than two years ago during the day-long complex attack on a company of Marines operating in fractious al Anbar Province. Murtha later amended his allegation to include claiming a conspiratorial cover up as well. So far Murtha has refused to reveal how he knew alleged facts that were never introduced into evidence.

Murtha went on international television in May 2006 accusing the Marines of a killing spree on December 19, 2005 at Haditha after LCpl Miguel Terrazas was killed there by a remotely detonated IED. According to Murtha, a squad of Marines from Kilo Co., Third Battalion, 1st Marines wantonly murdered 24 old men, women and children in retaliation for the attack. Murtha claimed that retired General Michael W. Hagee, at the time the Commandant of the Marine Corps, had personally briefed him on the facts of the case. A spokesman for Hagee later denied Murtha’s claim.

Murtha was sued on August 2, 2006 in federal court by Staff Sergeant Frank Wuterich, the squad leader of the embattled enlisted Marines. Washington, D.C. based lawyers Neal Puckett and Mark Zaid filed the lawsuit for libel, invasion of privacy/false light, and republication of defamatory statements by third parties for Murtha’s remarks. Murtha, the Chairman of the House Armed Service sub-committee, is currently the subject of several motions filed by Haditha defendants also demanding he appear in court to explain his allegedly specious allegations.

The Justice Department, which is representing Murtha in the case, claims Murtha is covered under the Federal Tort Claims Act, which protects government officials from legal actions for official duties. Under FTCA, the United States would be substituted for Murtha as the defendant in the case, essentially ending it, because the government has sovereign immunity that protects it.

In December nine premeditated murder charges against Wuterich were reduced to voluntary manslaughter by the convening authority, removing once and for all the onus of war crimes from the table. Rep. Murtha despite numerous ploys aimed at provoking a response for his allegedly libelous indiscretions, has refused to comment, claiming the matter is still under criminal investigation.

Hearings on the motions will begin on Wednesday morning, February 20, 2008 and should last until Thursday, February 21, 2008.  Thomas More attorney Rob Muise and detailed military defense counsel, Lt. Colonel John Shelbourne, USMC, will present oral arguments on the five motions at Camp Pendleton, California to military judge Colonel Stephen Folsom, USMC.

Chessani’s lawyers will call several witnesses in support of its motions, spokesman Brian Rooney said.  Particularly dramatic testimony is expected from a key witness, Marine intelligence officer, Major Jeffrey Dinsmore, recently the subject of an unsuccessful motion by the prosecution to prevent his appearance in another defendant’s trial. The Thomas More Law Center has three of its lawyers working on the case–all former Marine officers–Muise, Rooney and Brandon Bolling.

“We are scheduled for at least one more motion hearing date, but there most likely will be two more, one in March and another in April.  Of those two dates, we expect to file an ‘unlawful command influence’ motion, and a ‘selective prosecution’ motion, as well as several others,” Thompson said in a statement Tuesday.  

LtCol Chessani is charged with ‘dereliction of duty’ and ‘orders’ violations stemming from the running battle in Haditha, Iraq on November 19, 2005.  In addition to Terrazas death, thirteen other Marines were seriously wounded during the day-long fight. The defense claims the insurgents were hiding in civilian homes among women and children when they ambushed the Marines, thereby causing the death of fifteen civilians when the Marines struck back.

Informants and Al Qaeda led insurgents captured subsequent to the attack told their captors that the ambush was intended to incite a forceful response from the Marines. The insurgent’s goal was to create as many casualties as possible to foster ill-will toward the Marines.

As a result of a Time magazine story foisted on reporter Tim McGirk by an insurgent propaganda agent, LtCol Chessani and seven other Marines, four officers and four enlisted men,  were charged with war crimes and cover up. So far charges against four of the Marines have been dismissed. Chessani and three other Marines still face a variety of charges stemming from the attack.

Chessani faces dismissal (an officer’s equivalent of a dishonorable discharge), loss of retirement, and imprisonment of up to 3 years if he is convicted. He is the father of six children and has been a Marine infantry officer for twenty years.

The actual court-martial trial is scheduled to begin April 28, 2008 at Camp Pendleton.


Nathaniel R. HelmsDefend Our Marines
15 February 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).

© Nathaniel R. Helms 2008