Hearing set for lieutenant colonel charged in Haditha case [first Article 32 in two weeks!]

CAMP PENDLETON -- A hearing to help determine whether the highest ranking Marine charged in the case of 24 civilian deaths in Haditha, Iraq, in 2005 is set to get under way in two weeks.

The Article 32 hearing for Lt. Col. Jeffrey Chessani will feature as many as 20 witnesses called in his defense, according to one of two civilian attorneys from a Michigan faith-based organization hired to help defend him.

"This is one of the rare times where we have the luxury of defending an innocent man," said Brian Rooney. "The facts are in our favor."

Rooney and Robert Muise from the Thomas Moore Law Center in Ann Arbor, a nonprofit group that works on anti-abortion causes and defends Christians accused of wrongdoing, will represent the 42-year-old Chessani along with appointed military attorneys Lt. Col. Jon Shelburne and Capt. Jeffery King.

Shelburne is a Marine reservist who teaches law at Robert Williams University in Rhode Island and King is a defense attorney stationed at Camp Pendleton.

Rooney said the defense intends to take full advantage of the hearing slated to start on March 21.

The witnesses will show that the former battalion commander charged with violation of a lawful order and two counts of dereliction of duty for the way he handled the initial investigation did nothing wrong, Rooney said.

An Article 32 hearing is comparable to a probable cause hearing in civilian court where prosecutors work to establish that sufficient evidence exists to order and an accused to trial.

"Lt. Col. Chessani was forthright with the investigators and everything he did was proper," Rooney said during a telephone interview Tuesday morning. "We believe that we will be able to show that what Lt. Col. Chessani did that day was sufficient for the situation that occurred."

Chessani was one of eight Camp Pendleton Marines from the 3rd Battalion, 1st Marine Regiment charged on Dec. 21 with offenses arising out of the two dozen civilian deaths that occurred following a roadside bomb explosion in Haditha on Nov. 19, 2005.

Chessani was relieved from his post as battalion commander when the unit returned to Camp Pendleton in April. He remains on active duty at the base and faces up to three years confinement and dismissal from the service if convicted.

Rooney, a former Marine attorney who served with Chessani in the battle for the city of Fallujah in November 2004, said his client is a committed Christian who has faith that the military justice system will exonerate him.

"He is very professional and helpful in his own defense and is not angry at the Marine Corps and not frantic about what is happening," Rooney said.

But as a father of five who has been in the Marine Corps for 19 years, Chessani is concerned about the potential long-term consequences, Rooney said.

"He's worried about how this could affect his retirement and his family," the attorney said. "He has a lot at stake besides having been relieved of command."

Chessani was on his third assignment to Iraq when the Haditha killings took place.

An experienced infantry officer whose name was not immediately available has been assigned to preside over the hearing, Rooney said.

"We believe he will be able to see that what Lt. Col. Chessani did was sufficient for the situation," the attorney said. "He gave reports about what happened after visiting the scene and relying on what subordinates told him."

The hearing for Chessani, a native of Colorado, will be the first for any of the men charged in the Haditha incident.

Three other officers, Capts. Lucas McConnell and Randy Stone and 1st Lt. Andrew Grayson, also are charged with dereliction of duty for allegedly failing to properly investigate and report the incident.

Four enlisted men are charged with the actual killings. They are Staff Sgt. Frank Wuterich, Sgt. Sanick Dela Cruz and Lance Cpls. Justin Sharratt and Stephen Tatum.

Attorneys for all the accused maintain their clients are innocent and that their actions were the direct response of the bombing that killed a lance corporal and injured another Marine.

Rooney said the bombing and subsequent small arms fire from one or more of the four houses the Marines eventually assaulted and where most of the civilians died was one of several insurgent attacks in Haditha that day.

"This was a complex attack that occurred with the terrorists using civilians as cover to launch their assault and then fade away," Rooney said.

Chessani's background includes having served in the first Iraqi war in 1991. He later attended the Command and Staff College in Quantico, Va., where he earned a master's degree in military studies.

He was promoted to lieutenant colonel in 2004 and assigned to the post of operations officer for the 1st Marines in Iraq.

His first combat command came in May 2005, when he took over the base's 3rd Battalion.

Chessani majored in meteorology at the University of Northern Colorado and received his Marine Corps commission in 1988.

During the U.S. invasion of Panama in 1989, he captured several of former President Manuel Noriega's top officers.

I never said anything about a panel sending a message with their verdict. I indicated a panel would use their knowledge and experience to decide a case. The more you understand an issue, hopefully, the better you are able to make a rational judgement with the evidence presented.

Part of the defense strategy, I would assume, is to apply public/political pressure prior to the panelled hearing. It could be a reminder to those who may be involved in the panel what the real issues are. It could be a message to Americans to bring pressure on their elected officials. It could be a reminder to higher ups what message would be sent to other Marines in harms way, if these men are found guilty. It's all freedom of speech at this point.

Based on what you know about this case, what would be your defense strategy in the court room? Bear in mind, if these hearings are public, a little courtroom gamesmanship does come into play. This was all too evident in the Hamdania hearings with the prosecution's tactics.

Part of the defense strategy, I would assume, is to apply public/political pressure prior to the panelled hearing.

Unethical. Manipulating pretrial publicity is forbidden by the bar. (The fact that some unscrupulous shysters do so does not justify me to do so.)

Based on what you know about this case, what would be your defense strategy in the court room?

It would be to try to demonstrate that the defendants acted consistent with the ROEs.

Bear in mind, if these hearings are public, a little courtroom gamesmanship does come into play.

Gamesmanship is what happens on TV. Real trial work isn't that way.

You said, "Unethical. Manipulating pretrial publicity is forbidden by the bar. (The fact that some unscrupulous shysters do so does not justify me to do so.)"

What? The Media, Murtha, NCIS or Pentagon leaks; this whole case has been manipulated publicly, pre-trial, for almost a year. A civilian lawyer is allowed to speak publicy in defense of their client. Maybe a military defense lawyer is not (don't know). That's why these guys need civilian attorneys. That's not unethical, that's smart.

You said, "It would be to try to demonstrate that the defendants acted consistent with the ROEs."

Please expound. Last time I checked, I think I read there were 60 NCIS agents involved; don't know how many prosecutors have been assigned to each hearing. How does a defendant adjust, financially, to come up with expert witnesses in blood-pooling, video tape analysis, witness interrogation (in Iraq, mind you, with language barriers), photo analysis, shrapnel experts, etc.? Thousands of pages of documented evidence need to be addressed by the defense to demonstrate the accused were following ROE, and those in charge were not derelict in accepting the explanations.

You said, "Gamesmanship is what happens on TV. Real trial work isn't that way."

I beg to differ. As just evidenced in the Hamdania cases which were made public, media latched onto tittilating soundbites which have aided in burying the remaining accused's defense strategies. A comment like "Congrats, Gents, we just got away with murder", or testimony that a Marine was playing with the victim's dead hand is pure gamesmanship by the prosecution. It may have been totally legal, but it was quite effective in turning public support (both finanical and political) and thus, plea arrangements for the next accused.

That's what I was asking about. Could you think of any tactis the defense could use in "legal" gamemanship (the soundbites that media loves to print)? I'm sure they are there.

Thankyou (sorry, I'm not as advanced as putting stuff in italics; hope this makes sense.)

The Media, Murtha, NCIS or Pentagon leaks;

They're not lawyers. They're not bound by the same ethical rules lawyers are. (I've also not seen any NCIS leaks - only a leak of the NCIS report. It does not follow that the NCIS was behind the leak).

A civilian lawyer is allowed to speak publicy in defense of their client.

Actually, they are not. They cannot publicly talk about facts other than procedural matters or a reminder that the defendant is innocent until proven guilty. See, for example, the ABA's Model Rules of Professional Conduct, Section 3.6. (Most state's individual ethics rules track this requirement. As far as I know, all states have a substantially similar ethical rule.) Failure to comply is grounds for discipline, up to and including disbarment. (This is one thing that got Mike Nifong, the Duke Lacrosse prosecutor, in trouble.)

How does a defendant adjust, financially, to come up with expert witnesses in blood-pooling, video tape analysis, witness interrogation (in Iraq, mind you, with language barriers), photo analysis, shrapnel experts, etc.?

It's not easy. Sometimes the Court will pay for expert witness fees and other fees. I don't know the specifics.

You said, "Gamesmanship is what happens on TV. Real trial work isn't that way." I beg to differ.

Feel free. I can tell you what I know of trial work, based on education and a little experience.

A comment like "Congrats, Gents, we just got away with murder", or testimony that a Marine was playing with the victim's dead hand is pure gamesmanship by the prosecution

As far as I am aware, the prosecution (specifically the JAGs and the NCIS) have not leaked any such material. The only leaks I am aware of were from Congressman Murtha. The jurors selected will be vetted to make sure that they had not been exposed or tainted by this publicity. It's pretty straight-forward to select a jury pool (in this case, military officers) who didn't read the pretrial media coverage.

I'm not as advanced as putting stuff in italics

That's straightforward. What you want to see in italics will be done by < I > putting whatever you want inside < / I > (but take out the spaces).

Pretty soon, this is gonna be two pages long with you said, I say, somebody said.....:-)

Your comment, ..."It does not follow that the NCIS was behind the leak)."

Maybe they can put 60 investigators on the case to determine who all was involved. Haven't heard any results on this investigations yet. Hope the perp is found before the Haditha Marines begin their hearings.

A civilian lawyer is allowed to speak publicly in defense of their clients as the Thomas More Law Center did. They reviewed Murtha's behavior (he's not on trial), they reminded the public (which could include a panel member, General Mattis, Mr. and Mrs. Every Day American) of the stakes of the case, and they gave a nice overview of Lt. Col. Chessani's background. That's legal.

My comment: How does a defendant adjust, financially for ......
Your comment "It's not easy. Sometimes the Court will pay for expert witness fees and other fees."

This makes no sense. The prosecution doesn't have to beg the courts for hundreds of thousands of dollars for 60 NCIS investigators, trips to Iraq, etc. We the taxpayers are paying to come up with the evidence to convict our Marines. Why not a fair system? Every man-hour of subsidized prosecution expert provides the defense with similar subsidized expert witness. Both the prosecution and the accused Marine are payed by "We the People". Got any fancy work-around ideas to get this accomplished in front of the IO?

Next issue - the Gamesmanship issue. The "Congrats, Gents"... and hand slapping stuff was from the Hamdania case, not the Haditha case. My point was that the prosecution used their testimony to play games knowing these would be leading lines for the media. Do you have any ideas for the Haditha defense based on what you know of the case?

You said, "As far as I am aware, the prosecution (specifically the JAGs and the NCIS) have not leaked any such material. The only leaks I am aware of were from Congressman Murtha."

Well, No. 1, who in the chain of evidence leaked to Murtha in the first place? No. 2, who leaked all the NCIS evidence to the Washington Post (to include photos)? I don't think Murtha had the photos; These photos came from the culmination of a hunt by 60 investigators that "spanned the globe". Since an investigation was initiated by the military on the NCIS leaked evidence, wouldn't it be prudent to finish this investigation prior to hearings for any of the accused?

You said, "It's pretty straight-forward to select a jury pool (in this case, military officers) who didn't read the pretrial media coverage."

Now that's just plain scary. Who in the military is unaware of this coverage except someone who's been in outer space for the last year?

I don't want to argue each and every point. I'm looking for some thoughtful ideas on some creative ideas to help defend these Marines. Okay?

Thanks

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