Motion from the SSgt Wuterich defense-28AUG10

August 28, 2010

The government’s case against the last Marine standing in the so-called “Haditha Massacre” debacle may run aground on the rocks and shoals of Marine Corps legal precedence, said his leading civilian attorney.

Former Marine Corps military judge Neal Puckett says Staff Sergeant Frank Wuterich was denied his inherent right to retain the military lawyer appointed by the Marine Corps to defend him so the case must be dismissed.

Wuterich, 30, of Meriden, Conn., faces 12 counts of voluntary manslaughter and related charges. On Dec. 21, 2006 he was indicted on 17 counts of unpremeditated murder, two counts of soliciting another to commit an offense, and make false official statements for his infantry squad’s actions at Haditha, Iraq.  Since then the government has repeatedly reduced the charges when the evidence of massacre and cover up failed to materialize. If convicted Wuterich could still spend most of his life in prison. He has been waiting almost five years to go to court martial.

“He wants to get it over with,” Puckett said.

There is more at stake than mere legal precedence, Puckett explained. Also at issue is the overriding principal of balanced justice, a cornerstone of American jurisprudence. Why is the government privileged to leave in place a prosecution team long past the time ordinary personnel procedures dictate they move on, Puckett rhetorically asked, while insisting a critical Marine defense lawyer serving the same cause was forced into retirement over his repeated protests? 

For instance, senior prosecutor Lt. Col Sean Sullivan, a reservist called to active duty to prosecute the Haditha Eight, has been retained on active duty so long he has obtained sanctuary, a circumstance that makes him eligible for full retirement and benefits after 20 years of interrupted service instead of having to wait until he is 62 like most other reservists, Puckett said. Sullivan has yet to obtain a conviction.


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In another instance, Maj. Nicholas Gannon, another of the prosecutors, has been stationed at Camp Pendleton solely to prosecute Wuterich far longer than Marine Corps lawyers are usually left in one place, Puckett said.

To rectify the latest injustice Puckett intends to file a document Friday he coined the Hutchins Motion, a newly minted phrase that may serve as currency for generations of Marines to come, he said Thursday during a telephone interview from Camp Pendleton, Calif. The motion was prepared by Co-counsel and law partner Haytham Faraj, a retired major who was Wuterich’s military attorney before he retired, Puckett said.

Defense counsel involuntarily removed

At the heart of the Hutchins Motion is Colby Vokey, the retired Marine Corps lieutenant colonel involuntarily removed from defending Wuterich before he could complete his defense.

Vokey was detailed as military defense counsel in the case on Jan. 11, 2007, three weeks after Wuterich and seven other Marines were charged with a long laundry list of charges that added up to massacre and cover up. At the time Vokey was the Regional Defense Counsel for West Coast Marines. After the case was delayed by appeals in 2008 the Marine brass told Vokey he would not be permitted to extend his active duty service beyond Oct. 1, 2008, court records show.

It wasn’t the first time the Marine Corps tried to remove Vokey after he was appointed to defend Wuterich. He was fired as Regional Defense Counsel in September 2007 for assigning too many defense attorneys to the Haditha and Hamdaniya defendants then facing court-martial in the biggest scandals in Marine Corps history. At the time 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. At the same time he was defending Wuterich against 17 charges of unpremeditated murder at Haditha.

Vokey was fired by Colonel Rose M. Favors, then the Command Defense Counsel of the entire Marine Corps after conferring with the one-star Judge Advocate General, who reports to the Commandant of the Marine Corps. Favors told Vokey that assigning so many defense lawyers was unnecessary for them to receive adequate representation. He was rehired after the legal community inside and outside the Corps erupted in indignation.

He continued to be a thorn in the Marine Corps side after that skirmish. When the media hysteria proclaiming massacre and cover up spawned the largest investigation in Marine Corps history proved to be fallacious, the criminal complaints against six of the Marines from 3rd Battalion, 1st Marines, including Wuterich’s battalion commander and company commander, were dismissed.  A third officer, an intelligence specialist recommended for a Bronze Star for his actions with the Thundering Third, was found not guilty of obstructing justice and trying to sneak out of the Marine Corps, the single note of hilarity in the otherwise gloomy dirge.

Puckett said the late date for entering the motion was not a ploy; rather it is an honest indication of the pain the Marine Corps procedural faux paux caused in the middle of the most complex case it ever prosecuted. The government has spent untold millions of dollars and thousands of man hours pursuing an incident the Iraqis call the “Haditha Accident.”

We apologized to the court. We didn’t see it until we were in the last stages of preparing for court-martial and then we realized “Holy crap, we can’t use Vokey in this and he handles a third of our case load,” Puckett said.

Vokey continued to represent Wuterich after he retired on a part time basis until the defense team discovered he had a conflict of interest because the Texas law firm he joined also represents Cpl. Hector Salinas, a former grenadier in Wuterich’s squad and a designated witness for the prosecution. That tenuous association makes it legally impossible for Vokey to cross-examine Salinas during Wuterich’s court-martial, something Vokey has been preparing to do for almost four years. Therefore Vokey has no option but to withdraw from the case, a potentially fatal blow for the defense, Puckett opined.

If he [military judge Lieutenant Colonel David Jones] finds in our favor the defense will ask the judge to dismiss all the charges against Wuterich, arguing that his defense has been compromised,” Puckett said, adding that Vokey was the only defense lawyer to go to Iraq and witness the scene of the killings. The prosecution will appeal the judges ruling, it wouldn’t drop the charges.

Vokey isn’t now available only because the Marine Corps forced him to retire over his strongest protestations, Puckett added.

If he hadn’t had to take a job with the first law firm he could find to take care of his family after being forced to retire, the conflict would not have occurred. Vokey actually went to Haditha with Wuterich and covered the ground, examined the location where the ambush occurred, examined the alleged crime scene. That is all essential to our defense and now Wuterich has been deprived of a critical member of the team because of the Marine Corps insistence he retire, Puckett explained.

The judge could rule anytime after the formal motion is submitted Friday and Wuterich’s trial date still set for Sept. 13, Puckett said.

The Hutchins decision

In Hutchins case, the appellate court overturned the infantryman’s conviction because the Marine Corps allowed his appointed defense co-counsel to obtain discharge in the critical days before Hutchins was tried. 

The multiple errors and inattention leading to deprivation of counsel in this case reflect something of a perfect storm,” the court said.

In an 8-1 decision the highest court of military judges ruled that the departure of one of his primary attorneys shortly before the court-martial began resulted in an unfair trial. It decided the Marine Corps legal system failed Hutchins when it allowed the discharge of one Capt G. Bass; the Marine Corps lawyer appointed co-counsel in Hutchins defense. 

“On 31 Aug 2006 … Captain Bass tendered a request to resign his commission for an effective date of 1 July 2007,” according to court records.

Bass however did not represent Hutchins after May 25, 2007 when he began a terminal leave period that ended upon his release from active duty on July 1, 2007.  Hutchins was scheduled for court-martial in July. Bass also failed to inform his client he was leaving until the day he disappeared from Hutchins defense team for good, the court record shows.

Puckett called the action an “egregious error” that revealed itself in what happened to Hutchins after his lawyer was discharged.  

Thirty-five days later Hutchins was convicted of murder for leading his squad in the alleged April 2006 kidnapping and execution of an Iraqi civilian in Hamdaniya, Iraq. On Aug. 3, 2007 he was sentenced to 15 years in Leavenworth. His sentence was later reduced to 11 years by a clemency board, court records reveal.

After having his conviction overturned Hutchins was restored to his former rank and remains on duty in Calif. pending the appeal decision. Meanwhile the government still asserts the victim was abducted from his home and killed by Hutchins and his men. It alleges his squad placed a shovel and weapon next to the dead man so it would appear he was planting an improvised explosive device. Hutchins was also found guilty of conspiracy to commit murder, making a false official statement and larceny.

Both of the Marines convicted with him apparently had adequate counsel. Cpl. Marshall L. Magincalda was found guilty of larceny, housebreaking and conspiracy to commit murder, kidnapping, larceny, obstruction of justice, making a false official statement and housebreaking. He was sentenced to 448 days confinement and reduction in rank to Private. He had been in the brig at Camp Pendleton for 450 days and therefore released immediately.  Cpl. Trent D. Thomas was sentenced to reduction in rank to Pvt. E-1 and a bad conduct discharge. 

According the appellate court’s April, 2010 Hutchins decision:

  • “After this early May 2007 meeting between Captain Bass and the appellant [Hutchins], the appellant never saw Captain Bass again.”

  • “The appellant was never advised that he could request that Captain Bass be extended on active duty to complete the appellant’s trial.”

  • “The appellant never signed a document releasing Captain Bass from active duty”

  • Captain Bass never “requested “that the appellant release him as his counsel; instead, Captain Bass presented the situation to the appellant as one in which there was no other option to remain on active duty.

The government has appealed the Hutchins decision to the U.S. Court of Appeals for the Armed Forces; the highest court a military member can seek a remedy before the issue goes to the US Supreme Court. 

Puckett said the Marine Corps made the same egregious errors when it forced Vokey to retire.

“Because it is a new precedent doesn’t make any less of a law, the law is the law,” Puckett said. “The Marine Corps made a mistake forcing Vokey to retire.”

The prosecution has already stopped the proceedings several times while it appealed motions incited by its relentless prosecution of the last enlisted man facing court-martial. The case was stopped cold for almost two years while the prosecution fought it out with CBS television over out takes Wuterich made during his controversial appearance on 60 Minutes the broadcasting company refused to give up to the prosecution. Ultimately CBS prevailed in that fight after the issue went all the way to the U.S. Court for the Armed Forces in Washington, D.C.

Wuterich was charged on Dec. 21, 2006. Since then the last combat troops have left Iraq, making the war essentially over. At his preliminary hearing, Wuterich said he regretted the loss of civilian lives but believed he was operating within military combat rules when he ordered his men to attack.

Wuterich is accused of commanding a squad of Marines who killed 15 civilians primarily women and children as well as nine insurgents operating among them after his 12-man squad was ambushed at Haditha. During a lightning counter-attack Wuterich and three of his men swept through two houses where the civilian deaths occurred.

Last Wednesday, Iraqi insurgents indiscriminately killed more than 50 people in bombings and shootings in 11 towns and cities across the country.