Haditha Article 32: SSgt. Frank Wuterich

The accused, SSgt. Frank Wuterich, was 26-years-old at the time of the incident, and was on his first combat tour.

Two months after the Haditha incident, an officer recommended Wuterich for a medal. In his memorandum, the officer wrote that Wuterich's "calm and confident decisiveness that day doubtlessly prevented further injury or death to fellow Marines and innocent civilians."

Charge I: Violation of the UCMJ, Article 118 (Unpremeditated murder) (Maximum punishment: such punishment other than death as a court-martial may direct. [Dishonorable discharge, forfeiture of all pay and allowances, confinement for life])

Charge II: Violation of the UCMJ, Article 134 (Soliciting Another to commit an offense) (Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years)

Charge III: Violation of the UCMJ, Article 107 (False official statement) (Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years)

Convening authority: Lt. Gen. James Mattis, commanding general for the 1st Marine Expeditionary Force and Marine Forces Central Commander for Afghanistan, Iraq and Africa.

What to expect at the hearing: At least two Marines will testify against SSgt Wuterich. They are Sgt Sanick Dela Cruz and LCpl Humberto Mendoza. Both also testified against LCpl Tatum (in front of the same IO) and their testimony was simply not believed. Expect headlines from Dela Cruz's testimony, but it should have little effect on the outcome of the hearing. Attorney Neal Puckett has also made statements to press that suggest we could be in for some real surprises.

The biggest challenge for the defense will be house 2. They will have to establish that SSgt Wuterich acted reasonably in continuing to clear the area. To ensure a fair hearing, it is past time that a key witness, Cpl Hector Salinas be given testimonial immunity.

Based on details in media reports, the four incidents involving Sgt. Wuterich look something like this:

1. A Marine in the first Humvee in a convoy motions an approaching taxi to the side of the road.

2. An IED explodes, killing one Marine and wounding two. The Marines come under fire.

3. SSgt Wuterich is charged with killing the five occupants of the taxi. What actually happened will be established in SSgt Wuterich's Article 32 hearing.

The Marines identify fire coming from a house about 50 yards from the road. Lt. William Kallop orders a fire team, led by SSgt. Frank Wuterich, to clear the area.

Cpl Salinas enters house 1 and shoots and kills an Iraqi in the hallway by the stairs.

LCpl Mendoza moves to the room to the right of the hallway. He observes an Iraqi male making a movement toward the closet and kills him.

Cpl Salinas, LCpl Tatum and SSgt Wuterich hear someone rack an AK-47 rifle. LCpl Tatum and Cpl Salinas throw grenades into the room. One of the two grenades explode and SSgt Wuterich and LCpl Tatum enter the room and fire at its occupants.

SSgt Wuterich sees someone run out of the house toward house 2. SSgt Wuterich orders the Marines to pursue the runner into house 2.

SSgt Wuterich, Cpl Salinas and LCpl Mendoza take positions outside house 2 next to one door. LCpl Mendoza kept watch toward a second door. One of the Marines knocked or rang a bell at the door.

As an Iraqi male approaches the second door, LCpl Mendoza shoots through the door and kills him.

SSgt Wuterich, LCpl Mendoza, and LCpl Tatum enter house 2. SSgt Wuterich orders LCpl Tatum to "frag" the next room in the home.

Unknown to the Marines at that time was that there were two adult women and six children in the far back corner room of the house 2.

SSgt Wuterich ordered the Marines to continue to clear house 2. At some point a Marine threw a grenade into the back room but it did not explode. SSgt Wuterich entered the room and fired at the occupants.

1. After the assaults to the South were completed and insurgent activity and firefights had all but ceased, LCpl Sharratt, Cpl Salinas and SSgt Wuterich man an observation post established by 2ndLt Kallop. The Marines notice several men peeking over a privacy wall at the Ahmed houses. The Marines suspect that the men might be forward observers for another assault or IED attack. SSgt Wuterich takes a team of Marines to investigate. p>2. The Marines approach house 3 and find only women and children inside. They ask where the men are and discover that there are two houses within the courtyard. Cpl Salinas stays with the women and children in house 3 while SSgt Wuterich and LCpl Sharratt go to search house 4.

3. LCpl Sharratt sees a man with an AK-47 and shoots him. He notices a second man retrieving the AK-47. LCpl Sharratt shoots him as well. There were two more men inside the room. LCpl Sharratt shoots the third man inside the room. The fourth man moves toward the wall locker (closet) as LCpl Sharratt yells that his weapon is empty. SSgt Wuterich moves forward and fires his M16 and kills the fourth man.

Latest from North County Times Wuterich hearing in Haditha killings underway at Camp Pendleton

By: MARK WALKER - Staff Writer

CAMP PENDLETON ---- A Marine lance corporal testified Thursday morning that he never saw his squad leader kill any Iraqis inside two homes that were assaulted by a group of Camp Pendleton Marines in Haditha in 2005 after a roadside bombing.

Lance Cpl. Humberto Mendoza told a packed base courtroom that the homes were stormed on the heels of a roadside bombing that killed one Marine and injured two others.

Mendoza was the first to testify at a hearing for Staff Sgt. Frank D. Wuterich, who is accused of murdering 17 of 24 Iraqi civilians slain after the bombing. An 18th count of murder against the 27-year-old Connecticut native for the slaying of one of four brothers killed inside another house was dropped, prosecutors announced at the start of the hearing.

Mendoza, who was granted immunity in exchange for his testimony, said he shot two men during the assault, including one Iraqi man whom he said Wuterich ordered him to kill.

"Wait until I open the door and shoot," Mendoza quoted Wuterich as saying.

Wuterich has told investigators he was taking small-arms fire from a house near the explosion and ordered his troops to consider anyone inside as an enemy.

"I told them to shoot first, ask questions later," he told authorities last year.

Mendoza testified that he had identified several women and children inside a bedroom of the second house and told a fellow Marine they posed no threat.

But that Marine, Lance Cpl. Stephen Tatum, ordered the then Pvt. Mendoza to kill them, he testified. When he refused the order, Mendoza said Tatum went inside the room and that he soon heard noises and learned later that everyone had been killed.

Wuterich was leading a squad of Marines from the 3rd Battalion, 1st Marine Regiment on a resupply and mail run mission when the bomb exploded about 7:30 a.m. on Nov. 19, 2005.

A short time later, a support force including Kilo Company platoon commander 1st Lt. William Kallop, who has testified in a previous hearing that he ordered Wuterich and his men to "clear" houses near the site of the bombing.

That part of the events at Haditha came after five men who emerged from a car moments after the bombing were shot and killed, resulting in five of the now 17 murder charges against Wuterich.

Mendoza testified only that he saw Wuterich shooting at the car but did not specifically say he saw him shoot any of those men.

Wuterich's attorneys maintain a forensic reconstruction of the scene of the car killings will exonerate their client and that the Iraqis killed inside their homes died as he and his squad members were carrying out a legitimate combat action in response to being attacked.

The hearing began with the tattooed Wuterich answering some perfunctory questions posed by the investigating officer, Lt. Col. Paul Ware. He is the same hearing officer who recommended earlier this summer that charges against two of Wuterich's co-defendants be dropped.

The convening authority over the case, Lt. Gen. James Mattis, concurred with Ware's recommendation in the government's case against Lance Cpl. Justin Sharratt. Last week, Ware also recommended murder charges against Lance Cpl. Stephen Tatum be dropped, a recommendation Mattis has to rule upon.

In his recommendation in the Tatum case, Ware wrote that he did not find Mendoza's testimony credible, basing that determination in part on varying versions of events the lance corporal has given investigators.

The Haditha killings resulted in murder charges against four enlisted men and charges of dereliction of duty against four officers. One of the enlisted men, Sgt. Sanick Dela Cruz, later had the charges against him dropped in exchange for his testimony.

The four officers were charged with dereliction of duty for allegedly failing to fully investigate the incident. Charges against one of those officers, Capt. Randy Stone, have been dropped while hearings for two others are pending.

An investigatining officer has recommended that the case of the battalion commander at Haditha, Col. Jeffrey Chessani, go to trial by court-martial. Mattis has not yet ruled on that recommendation.

Wuterich's hearing was recessed at noon and scheduled to resume in mid-afternoon. Shortly before it did, Maj. Haytham Faraj, one of Wuterich's attorneys, asked Mendoza his opinion of the man who led him at Haditha.

"I think he is a great Marine," Mendoza responded.

See Friday's North County Times for a full report.

The editors at the New York Times are losing hope that someone — anyone — will be convicted of “war crimes” in connection Haditha, Iraq.

All three articles are in the NY Times today

http://www.nytimes.com/2007/08/30/world/middleeast/30haditha.html?_r=1&&pagewanted=print&oref=slogin

August 30, 2007
Marines’ Trials in Iraq Killings Are Withering
By PAUL von ZIELBAUER
CAMP PENDLETON, Calif., Aug. 29 — Last December, when the Marine Corps charged four infantrymen with killing Iraqi civilians in Haditha, Iraq, in 2005, the allegation was as dark as it was devastating: after a roadside bomb had killed their buddy, a group of marines rampaged through nearby homes, massacring 24 innocent people.

In Iraq and in the United States, the killings were viewed as cold-blooded vengeance. After a perfunctory military investigation, Haditha was brushed aside, but once the details were disclosed, the killings became an ugly symbol of a difficult, demoralizing war. After a fuller investigation, the Marines promised to punish the guilty.

But now, the prosecutions have faltered. Since May, charges against two infantrymen and a Marine officer have been dismissed, and dismissal has been recommended for murder charges against a third infantryman. Prosecutors were not able to prove even that the killings violated the American military code of justice.

Now their final attempt to get a murder conviction is set to begin, with a military court hearing on Thursday for Staff Sgt. Frank D. Wuterich, the last marine still facing that charge. He is accused of killing 18 Iraqis, including several women and children, after the attack on his convoy.

If the legal problems that have thwarted the prosecutors in other cases are repeated this time, there is a possibility that no marine will be convicted for what happened in Haditha.

Nor is it yet clear whether officers higher up the chain of command than Sergeant Wuterich will be held responsible for the inadequate initial investigation.

At least one of the four Marine officers charged last December for failing to investigate the civilian deaths appears to be headed to court-martial. That officer, Lt. Col. Jeffrey R. Chessani, commander of Third Battalion, First Marines, “did not take personal action to fully investigate the actions leading to civilian deaths,” concluded Col. Christopher C. Conlin, the officer who examined the evidence.

But the case against Capt. Randy W. Stone, the battalion lawyer charged with failing to find out why so many civilians had been killed, was thrown out by Lt. Gen. James N. Mattis, whose decisions in the Haditha prosecutions are final. Charges against First Lt. Andrew A. Grayson, an intelligence officer, are in limbo because of his argument that the Marine Corps has discharged him.

In a wide range of cases involving abuses by American troops in Iraq and Afghanistan, prosecutions have tended to focus on enlisted men and noncommissioned officers — those accused of having personally committed the acts — not on officers who commanded the units. And while there have been numerous convictions, there have also been many cases in which plea arrangements allowed for lesser punishments, or in which charges were dropped or found not to be warranted.

The sole officer to face criminal charges in the abuses of prisoners at Abu Ghraib, Iraq, was convicted Tuesday on only one minor charge and will be reprimanded, Reuters reported, quoting an Army announcement. The officer, Lt. Col. Steven L. Jordan, faced five years in prison and dismissal from the Army, but a court-martial decided on the milder penalty, the Army said.

The court-martial acquitted him of the charge of being responsible for cruel treatment of detainees at Abu Ghraib.

Experts on military law said the difficulty in prosecuting the marines for murder is understandable, given that action taken in combat is often given immunity under the Uniform Code of Military Justice.

“One could view this as a case crumbling around the prosecutor’s feet, or one could see this as the unique U.C.M.J. system of justice in operation,” said Gary D. Solis, a former Marine judge who teaches the laws of war at Georgetown University Law Center and at West Point.

Prosecuting the Haditha case was especially difficult because the killings were not thoroughly investigated when they first occurred. Months later, when the details came to light, there were no bodies to examine, no Iraqi witnesses to testify, no damning forensic evidence.

On the other hand, some scholars said the spate of dismissals has left them wondering what to think of the young enlisted marines who, illegally or not, clearly killed unarmed people in a combat zone.

“It certainly erodes that sense that what they did was wrong,” Elizabeth L. Hillman, a legal historian who teaches military law at Rutgers University School of Law at Camden, said of the outcomes so far. “When the story broke, it seemed like we understood what happened; there didn’t seem to be much doubt. But we didn’t know.”

Walter B. Huffman, a former Army judge advocate general, said it was not uncommon in military criminal proceedings to see charges against troops involved in a single episode to fall away under closer examination of evidence, winnowing culpability to just one or two defendants.

When Sergeant Wuterich, the soft-spoken squad leader who faces the most extensive murder charges in the Haditha matter, walks into court here on Thursday, “all the prosecutorial attention is now going to center on him,” Mr. Solis said.

Sergeant Wuterich’s lawyers have an uphill legal fight. First, unlike the other marines who faced murder charges, Sergeant Wuterich is charged with the close-range killing of five unarmed men who were ordered out of a vehicle that rolled up near the scene.

Also, as a noncommissioned officer and the ranking member of the squad, Sergeant Wuterich may be used by prosecutors to argue that he had a greater responsibility to discern proper targets and avoid civilian casualties. He also led the attack against or was present in every house where civilians were killed.

But the earlier cases show that the defense has some opportunities, too.

The presiding officer, Lt. Col. Paul J. Ware, is the same Marine lawyer who conducted hearings for Justin L. Sharratt and Stephen B. Tatum, two other lance corporals accused of killing a total of five Iraqis in three homes in Haditha.

Colonel Ware later recommended dismissing the charges against those two men, and he has said the killings should be viewed in the context of combat against an enemy that ruthlessly employs civilians as cover. He warned that murder charges against marines could harm the morale of troops still in Iraq.

General Mattis’s statements expressing sympathy for the plight of other enlisted marines whom he cleared of wrongdoing in Haditha may indicate his willingness to see Sergeant Wuterich’s case in a similar light.

Regardless of what happened to charges against the other defendants, there is still great public pressure on the Marine Corps to investigate and punish any wrongdoing in a case in which so many civilians died.

“We can’t say those guys didn’t commit a crime,” said Michael F. Noone Jr., a retired Air Force lawyer and law professor at Catholic University of America. “We can only say that after an investigation, there was not sufficient evidence to prosecute.”

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http://www.nytimes.com/aponline/us/AP-Marines-Haditha.html

August 30, 2007
Haditha Squad Leader in Military Court
By THE ASSOCIATED PRESS
Filed at 1:40 p.m. ET

CAMP PENDLETON, Calif. (AP) — Wearing his desert camouflage uniform, Staff Sgt. Frank Wuterich confirmed his name in a loud, clear voice Thursday as a military hearing began to decide if he should face trial for murder in an attack that left 24 Iraqis dead.

Wuterich faces unpremeditated murder charges in 18 of the deaths in Haditha, making his case the biggest to emerge against any member of the U.S. military to have served in Iraq.

Among those killed in the town on Nov. 19, 2005, were women and children who were scrambling for cover around a bed.

The killings occurred after a military convoy was hit by a roadside bomb that fatally wounded a Marine driver. Wuterich and another Marine shot a group of five men by a car at the scene. The squad leader then directed his men to clear several houses in hopes of killing whoever had set off the bomb. It was Wuterich’s first combat engagement.

In determining whether the case should go to trial, the hearing officer, Lt. Col. Paul Ware, must decide if Wuterich strayed from military rules of engagement.

‘’These Marines were doing exactly as they were trained to do,’’ Wuterich’s defense attorney, Lt. Col. Colby Vokey, said earlier this week. ‘’They were responding to an attack and a threat.’’

Wuterich, 27, of Meriden, Conn., was among four Marines charged with murder and four officers charged with dereliction of duty for failing to investigate the deaths. Prosecutors have dropped charges against two of the enlisted Marines and one officer.

Wuterich told investigators in February 2006 that he believed he was taking small-arms fire from a house near the explosion so he told a four-man team to treat the building and its occupants as hostile, meaning they did not need to identify the occupants as insurgents before opening fire.

‘’I told them to shoot first, ask questions later,’’ he told investigators.

Wuterich is also charged with making a false official statement and telling another Marine to do the same. He faces a possible life sentence and dishonorable discharge if convicted at court-martial.

Ware already has presided over two separate hearings in the case, when he listened to evidence against two of Wuterich’s lance corporals — Stephen Tatum and Justin Sharratt — who were charged with murder. In both cases, Ware found prosecutors could not prove the Marines operated outside combat rules, and he recommended the charges be dismissed.

The general overseeing the case dismissed charges against Sharratt but has yet to rule in Tatum’s case.

Tom Umberg, a former Army prosecutor, said Ware’s assessment that Tatum and Sharratt did not deliberately violate combat rules could help Wuterich because he was involved in some of the same actions.

But, Umberg said, military officials often look with greater scrutiny at the actions of higher-ranking troops.

‘’The person in charge always bears the most significant responsibility,’’ Umberg said.

A former squad mate was to testify against Wuterich. Sgt. Sanick Dela Cruz was initially charged with murder, but prosecutors dropped the charges and gave him immunity to testify against Wuterich.

According to testimony in a previous hearing, Dela Cruz claims Wuterich shot the men by the car while they had their hands in the air.

‘’They were just standing, looking around, had hands up,’’ Dela Cruz said at a hearing in May. ‘’Then I saw one of them drop in the middle. I didn’t know what was going on, sir. Looked to my left, saw Staff Sgt. Wuterich shooting.’’

Neal Puckett, one of Wuterich’s nonmilitary attorneys, said he was not concerned about Dela Cruz’s testimony and was confident that forensic evidence would contradict his version of events.

‘’It’s a Dela Cruz/Wuterich credibility contest,’’ said Thad Coakley, a major in the Marine reserves and a former Camp Pendleton prosecutor.

http://www.nytimes.com/reuters/news/news-usa-marine-haditha.html

August 30, 2007
Marine Testifies Against Alleged Haditha Ringleader
By REUTERS
Filed at 3:16 p.m. ET

CAMP PENDLETON, California (Reuters) - A U.S. Marine testified on Thursday that he shot at least two unarmed Iraqi civilians in the town of Haditha after a roadside bomb killed a fellow Marine in his squad in November 2005.

Lance Cpl. Humberto Mendoza told a military hearing at the Camp Pendleton Marine base in southern California that he helped squad members “clear” Iraqi houses after the bomb ripped apart his comrade Lance Cpl. Miguel “T.J.” Terrazas.

Mendoza was testifying at a hearing against Staff Sgt. Frank Wuterich, accused of being the ringleader of the troops who prosecutors say massacred 24 unarmed civilians in Haditha in retaliation for the death of Terrazsas on November 19, 2005.

The hearing, which is expected to last several days, will determine whether Wuterich should face a court martial for his part in the shootings.

The Haditha killings were among a series of apparent abuses by U.S. soldiers in Iraqi towns and at the Abu Ghraib prison that caused outrage in Iraq and internationally.

Mendoza said he was a member of Wuterich’s squad and was in a four vehicle convoy when the roadside bomb went off in Haditha and joined Wuterich and two other Marines in “clearing” nearby Iraqi homes afterward.

In one case, Mendoza said Wuterich knocked on the door of one house and told him; “Just wait until he opens the door and shoot.”

In another instance Mendoza said he opened fire on an unarmed Iraqi man. “I got scared thinking he was trying to get a weapon so I started to shoot until he went down ... After all those rounds I was pretty sure he wasn’t going to get up,” Mendoza testified.

Mendoza, who is not among the eight Marines charged in the Haditha case, was the first witness at the hearing.

Attorneys for Wuterich are expected to argue that the civilians died during a chaotic house-to-house battle in the western Iraqi town.

“The argument is quite simple, that the Marines that day were reacting to a hostile and dynamic environment and that their conduct, although it led to tragic results, was completely lawful,” Wuterich attorney Mark Zaid told Reuters ahead of Thursday’s hearing.

“The civilians who died were collateral damage as part of a combat operation where insurgents would intentionally place civilians into harm’s way,” Zaid said.

Military authorities earlier this month dismissed charges against two of the Marines, Lance Cpl. Justin Sharratt and Capt. Randy Stone, citing battle conditions against a “shadowy” insurgent enemy.

Murder charges were dismissed in April against Sgt. Sanick Dela Cruz in exchange for his testimony. Four other Marines have still to be dealt with.

IRAQ MURDER CASE NEAR COLLAPSE

By Tony Perry Los Angeles Times

_________________

The Al-Hadithah charges represent the most serious case of alleged war crimes committed by Marines in Iraq or Afghanistan. But what looked to some like a slam-dunk murder case against four enlisted Marines could be on the verge of collapsing.

_________________

Lt. Col. Paul Ware, the hearing officer in the cases of Lance Cpl. Justin Sharratt and Lance Cpl. Stephen Tatum, recommended that Mattis dismiss the charges, citing a list of problems with the prosecution's case, including:

• Inconclusive forensics, making it difficult to determine where the victims were when they were shot.

• An incomplete investigation by the Naval Criminal Investigative Service.

• The reluctance of Iraqi witnesses to come to Camp Pendleton to be cross-examined.

Ware added that the Iraqi witnesses, in statements to investigators who visited their homes where the killings occurred, may have been coached or otherwise influenced by tribal elders.

The Iraqis also received condolence payments from the Marines, which may have tainted their version of events, he said.

Ware, an attorney without combat experience, said in his reports to Mattis that he was loath to second-guess infantry Marines who have had to make split-second decisions about the use of deadly force. Mistakes in combat, even if they lead to horrific results such as the killing of women and children, are not criminal acts, Ware wrote.

Ware will preside over Wuterich's preliminary hearing, called an Article 32.

Signs that the Al-Hadithah case might flounder have long been evident.

_________________________

To bolster their case against Wuterich, Sharratt and Tatum, prosecutors sought and received permission from Mattis to grant immunity to six Marines who had not yet been charged. Once given immunity, the Marines were compelled to testify for the prosecution. So far, the tactic has not worked.

Ware found the testimony lacking in credibility, noting in some cases it marked a reversal of their earlier statements to investigators.

____________________

Their star witness will be Sgt. Sanick Dela Cruz, who was charged with murder but had the charges dropped in exchange for testimony. Defense attorneys will seek to show that the five were running away when Wuterich and Dela Cruz shot them.

Under the rules of engagement for Marines in Iraq, suspects running away from a roadside bomb explosion can be shot in the back even if they are unarmed and there is no immediate proof of their involvement in the explosion, according to testimony from a Marine attorney called by the prosecution in Tatum's preliminary hearing.

____________________

Marines ordered to search two nearby houses for insurgents who may have been involved in the roadside attack killed 15 Iraqis, including three women and children. An hour later, in searching two more houses, Marines killed four brothers.

http://www.mercurynews.com/nationworld/ci_6757554

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