Haditha and Fallujah cases on the 2008 docket
CAMP PENDLETON ---- The first trials in charges arising out of the slaying of 24 men, women and children in the Iraqi city of Haditha are set to take place at Camp Pendleton in 2008.
The two Marines whose cases are headed before a jury are Lt. Col. Jeffrey Chessani and Lance Cpl. Stephen Tatum. They may be joined by the squad leader at Haditha, Staff Sgt. Frank Wuterich, who has been recommended to face trial on seven counts of negligent homicide.
Chessani, 44, stands accused of failing to accurately report and investigate a possible violation of the laws of war by Marines under his command. The veteran of three Iraq deployments and recipient of the Bronze Star medal faces up to 30 months in prison and a dismissal from the service if convicted. His trial is scheduled to begin April 28.
One of Chessani's attorneys, Brian Rooney, said in a recent interview that the defense will press its long-standing argument that the Haditha prosecutions are not driven by simple demands of justice.
"We are going to file a motion alleging undue command influence," Rooney said, citing statements from politicians such as U.S. Rep. John Murtha, D-Pa., who said after the killings came to light that the Marines had killed in "cold blood" and that commanders attempted to cover up the incident.
"We also think there was undue command influence by top Marine Corps officers that affected how the case was investigated and eventually charged," he said.
That motion is set be heard Feb. 15.
Rooney said the defense also will seek to have the case thrown out because Chessani's due process rights would be violated by what he called the impossibility of finding an untainted jury of Marines to hear the case.
"People throughout the Marine Corps have made judgments about Haditha and are now passing that down in classrooms," he said. "That calls into question if we can ever seat an impartial jury."
Marine Corps prosecutors say they will not comment on pending cases.
During a hearing this summer that resulted in Chessani being ordered to court-martial, his attorneys argued that he wasn't the only senior Marine officer who didn't order an investigation into the Haditha killings.
One of those senior officers, Maj. Gen. Richard Huck, who had overall command of the Marine forces in Iraq at the time, testified that he relied on reporting that came up the chain, which said the civilian killings were "collateral damage" arising from combat.
The 24 Iraqis were killed by members of a Camp Pendleton unit after a roadside bomb destroyed a Humvee on the morning of Nov. 19, 2005, killing a lance corporal and injuring two other Marines.
A search for the bomb triggerman and other insurgents led to the civilian deaths.
The other Haditha defendant heading to trial is Lance Cpl. Stephen Tatum, who faces involuntary manslaughter, aggravated assault and reckless endangerment charges. The 26-year-old Oklahoma native faces up to 19 years in prison and a dishonorable discharge if convicted.
Tatum is one of four enlisted men from Camp Pendleton charged last December in the Haditha killings.
He originally faced two counts of unpremeditated murder and four counts of negligent homicide. Those charges were reduced, however, following an Article 32 hearing earlier this year that found the evidence lacking.
Article 32 hearings are akin to probable cause hearings in civilian court.
Still undecided is whether 1st Lt. Andrew Grayson and Wuterich also will be ordered to court-martial.
A hearing officer earlier this year recommended that 17 murder charges against Wuterich be dismissed and that he stand trial on seven counts of negligent homicide.
Another hearing officer has suggested that the dereliction of duty charges and an obstruction of justice charge against Grayson may not be provable.
Grayson and Wuterich's cases are now in the hands of Lt. Gen. Samuel Helland. As commander of Marine Corps forces throughout the Middle East and the "convening authority" under the Uniform Code of Military Justice, Helland has the power to rule whether the cases against those men should go to trial.
Fallujah
Also playing out in a Camp Pendleton courtroom and the U.S. District courthouse in Riverside will be the allegations that a Camp Pendleton squad violated the law of war and killed four insurgent detainees during the second day of a battle for the city of Fallujah in November 2004.
Former sergeant Jose L. Nazario Jr. is being prosecuted on civilian manslaughter charges and faces up to 10 years in prison. His case is being tried in federal court because he is no longer in the Marine Corps and thus no longer subject to the Uniform Code of Military Justice.
Nazario is accused of killing two of the insurgents.
On Dec. 7, the Marine Corps announced it was refiling murder and dereliction of duty charges against active-duty Sgt. Jermaine Nelson, who is accused of killing one of the insurgents.
He faces up to life in prison if convicted.
The Marine Corps originally charged Nelson with murder in September, but Lt. Gen. James Mattis, then of Camp Pendleton, ordered the charge against Nelson withdrawn pending a review of the investigation.
The dereliction charge alleges that Nelson violated a host of rules regarding the treatment of enemy prisoners and the laws of armed conflict.
The Fallujah case raises numerous legal issues. One of the more interesting is that one defendant is being tried in civilian court, the other a military court. While both are accused of essentially the same acts, they face drastically different potential punishments if convicted.
Thanks for posting this.
Thanks, Red, for the update.
I agree with Rooney that it's going to be impossible to find a jury of Chessani's peers who have not been prejudiced by the way the Marine Corps has handled this case.
It is unbelievable to me that they'd permit their schools and pubs to teach the guilt of the Haditha defendants before their trials have even taken place. In fact, and even more condemning, is that it was before their Art 32s were conducted. It would be interesting to see a PowerPoint presentation of all the places in the Marine Corps and in the Media in which the guilt of the Haditha Marines was beyond presumed, but was presented officially as fact.
Also, there's no doubt in my mind that leaks and anonymous comments coming out of the Pentagon definitely give the appearance of unlawful command influence.