by Nathaniel R. Helms | June 9, 2008 | Note: This story was updated on June 13.
Attorneys representing Marine Lt. Col Jeffrey Chessani will find out Tuesday June 17, 2008 at 9:00 am PST whether the presiding judge in the Haditha Massacre case will grant a defense motion to dismiss his charges because of undue command influence.
Originally, as we reported, the hearing was scheduled for three days, June 16- 18. But the presiding judge, Col. Steven Folsom, USMC, has informed counsel that the hearing has been changed to only one hour on Tuesday. The only business the judge will address is his ruling on the defense motion to dismiss.
If Col. Folsom denies the defense motion, Lt. Col. Chessani will stand general court-martial July 21 for alleged dereliction of duty and orders violations, said Richard Thompson, chief counsel of the civilian law firm representing him.
The veteran combat Marine is the highest ranking officer to be charged with a crime in the discredited massacre investigation. Four enlisted men and three officers under his command were also charged with war crimes. Five of them have already been exonerated during pre-trail legal maneuvers and 1st Lieutenant Andrew Grayson was found not guilty last week of a laundry list of related charges.
The day before Grayson went to trial, Folsom deferred making a decision on a defense motion by Chessani’s lawyers asking that the case be dismissed ‘with prejudice’ for alleged undue command influence in the convening authority’s decision to prosecute the former commander of 3rd battalion, 1st Marines in Iraq.
Even with a favorable decision by Folsom, Chessani is not out of the woods, Thompson said. Folsom could dismiss the charges ‘without prejudice,’ leaving the door open for Chessani to be charged again.
One member of Chessani’s defense team noted that government prosecutors have already shown they will go to any length to obtain a conviction in the broadest, most expensive criminal investigation in contemporary military history.
“Why wouldn’t they?” he said. “We are talking about prosecutors still trying to maintain the fiction there was no incoming fire after the IED went off and that the huge firefight on Viper was a separate incident.”
Four enlisted members of a rifle squad Chessani command killed 15 civilians and eight insurgents hiding among them after a remotely detonated IED killed a squad member and wounded two others riding in a convoy. About 500 meters away on a road called Viper another squad of Marines was embroiled in a morning-long grenade fight with insurgents that left nine Marines wounded.
The ambushed infantrymen were later accused by Time magazine and Congressman John Murtha with going berserk; hunting down innocent civilians and shooting them in cold blood. The subsequent investigation showed that none of the circumstances cited by Time and Murtha proved to be true.
Last week 1st Lt. Andrew Grayson, the first of three defendants to face general court-martial in the Haditha incident, was found not guilty of obstruction of justice, making false statements, and attempting to obtain a fraudulent discharge by a seven-member jury panel of fellow Marine officers.
His exoneration followed a 30-month, multi-million dollar, world-wide investigation and five-day court-martial at Camp Pendleton that took the panel five hours to dispose of.
Grayson was attached to Chessani’s command in Iraq as an intelligence officer. He is the sixth of eight original defendants cleared of any wrongdoing in the incident. The panel’s rapid verdict put the already weak prosecution case in total disarray, several attorneys involved in the case said.
Chessani is awaiting general court-martial for dereliction of duty and orders violations for allegedly failing to investigate and report the incident. He faces dismissal from the service, loss of all retirement benefits, and three years in prison if convicted.
The criminal charges against Chessani stem from a house-to-house, room-by-room battle that four of his enlisted Marines engaged in on November 19, 2005, after being ambushed by insurgents in Haditha. In the day long battle that followed one Marine was killed and 11 others from Kilo Company, 3/1 were wounded.
Folsom’s ruling follows testimony last Monday by Gen. James N. Mattis and the conspicuous absence of Lt. Gen Samuel Helland in the matter. The prosecution called Mattis to refute defense claims he was unduly influenced by Col John Ewers, the Marine lawyer who investigated Chessani’s command in Iraq for an Army general and later became Mattis, personal legal counselor as Staff Judge Advocate of the 1st Marine Expeditionary Force.
Before being appointed the 1st MEF SJA Ewers was assigned to investigate the alleged massacre at Haditha, Iraq in the winter of 2006 for Army Maj. Gen. Eldon Bargewell. He was ordered to look into the matter following allegations by a Time magazine reporter that Chessani had covered up the November 19, 2005 murders of 24 innocent civilians by a squad of Marines under his command.
Ewers was still Mattis, personal attorney when Mattis decided to bring charges against Chessani on December 21, 2006. He remained in the position when Helland took over responsibility for prosecuting Chessani after Mattis was promoted to four-star rank last November 1 and transferred.
“The prosecution made a colossal blunder not calling Lt. Gen. Helland to testify,” opined Thompson, who presides over the Ann Arbor-based Thomas More Law Center. “Folsom has already decided there is evidence of inappropriate command influence and it is now the prosecution’s burden to prove beyond a reasonable doubt that it didn’t occur. Without Helland’s testimony to corroborate Mattis they failed to meet that burden.”
Mattis testified that he was not influenced by Ewers. Last month Ewers testified that he sat in on at least 25 meetings between Mattis and the lawyers from Central Command counseling Mattis about the Haditha investigation while Mattis was in command of both organizations.
Mattis brought the charges against Chessani under the aegis of Central Command where Ewers ostensibly had no authority or influence. At the time Lt. Col. Bill Riggs was the SJA of Central Command.
The defense maintains that Ewers mere presence at the meetings by itself represents undue command influence because he outranked the lawyers who were advising Gen. Mattis.
According to both officers testimony Ewers was a potted plant that sat mute while Mattis was counseled by Riggs and other attorneys of lesser ranks from Central Command. Mattis told the court he remained an island unto himself and never asked or received legal advice from Ewers while he was formulating his decision.
It is not the first time undue command influence has been charged. Riggs found himself in hot water last summer after he contacted Lt. Col. Paul Ware, the investigating officer in a related case, and criticized him for holding the government to too high of a standard when evaluating the charges against an enlisted Marine.
Ware, the IO in the murder case against exonerated Marine LCpl Justin Sharratt, took the unusual action of revealing what he viewed as an egregious case of undue command influence by Riggs.
“I viewed Lt. Col. Riggs comments as inappropriate and imprudent. I was offended and surprised by this conversation,” Ware responded in an email.
Subsequently Riggs recused himself from that case.
Military courts consider unlawful command influence the most egregious violation of military justice because it irreparably taints the opinions of prospective jurors, Richard Thompson said.
According to Thompson, Folsom’s determination that there was evidence of undue command influence forces prosecutors to prove beyond a reasonable doubt that: (1) the facts upon which the unlawful command influence is based are untrue; (2) those facts do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings.
Nathaniel R. HelmsDefend Our Marines
9 June 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).