PAUL von ZIELBAUER of the New York Times has access to the Ware’s report
Published: October 5, 2007
In his 37-page report on Sergeant Wuterich’s case, Colonel Ware again struck a skeptical tone about the evidence presented by prosecutors, said someone who had reviewed the document, and seemed inclined to give the accused infantryman the benefit of the doubt.
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“The case against Staff Sergeant Wuterich, that he committed murder, is simply not strong enough to prove beyond a reasonable doubt,” Colonel Ware wrote, according to a person who read the report and quoted portions of it to a reporter.
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In the report, Colonel Ware said he believed that a jury would probably decline to convict Sergeant Wuterich of any crime other than dereliction of duty, for failing to ensure that his men followed the rules of engagement when they fired their weapons, according to a person who has read the document.
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“I believe after reviewing all the evidence no trier of fact can conclude that Staff Sgt. Wuterich formed the criminal intent to kill,” Colonel Ware wrote, the person who reviewed the report said. “The evidence is contradictory, the forensic analysis is limited, and almost all the witnesses have an obvious bias or prejudice.”
I am recommending that the Government pursue the lesser offense of negligent homicide and not murder because I believe after reviewing all the evidence, no trier of fact can conclude SSgt. Wuterich formed the criminal intent to kill. The evidence is contradictory, the forensic analysis is limited and almost all witnesses have an obvious bias or prejudice. The case against SSgt. Wuterich that he committed murder is simply not strong enough to prove beyond a reasonable doubt. What the evidence does point to is that SSgt. Wuterich failed to exercise due care in his own actions or in supervising his Marines. When a Marine fails to exercise due care in a combat environment resulting in the death of innocents, the charge of negligent homicide, not murder, is the appropriate offense. Accordingly I believe the elements and theory of negligent homicide best fits the evidence of what occurred inside House 2.
Finally, although I believe the Government will fail to prove beyond a reasonable doubt that SSgt. Wuterich committed any offenses other than dereliction of duty, due to the serious nature of the charges, I recommend referral to a general court-martial.