Posted on 03/17/2008 4:24:53 AM PDT by RedRover
CAMP PENDLETON ---- On the eve of his trial, the Marine Corps for the third time has ordered a lance corporal charged with killing Iraqi civilians in Haditha to provide testimony against his co-defendant and squad leader.
The order requires Lance Cpl. Stephen Tatum provide the government with ammunition for its case against Staff Sgt. Frank Wuterich, the man who led him at Haditha.
The directive also may signal a weakness in the government's case.
Both men face upcoming courts-martial at Camp Pendleton in the high-profile killing of two dozen Iraqi civilians in November 2006.
The deaths, which included several women and children and spawned an international uproar, followed a roadside bombing that killed one Marine and injured two others.
Tatum is charged with two counts of involuntary manslaughter. Wuterich faces nine counts of voluntary manslaughter. Both men from Camp Pendleton's 3rd Battalion, 1st Marine Regiment have pleaded not guilty.
Tatum's attorney, Jack Zimmerman, calls the directive to testify an attempt to deny his client his constitutional rights.
"It is a diversion, a distraction and horrendous prosecutorial misconduct and overreaching," Zimmerman wrote in an e-mail last week to Lt. Gen. Samuel Helland, the man who issued the order.
Helland oversees the Haditha prosecutions in his role as head of Camp Pendleton's I Marine Expeditionary Force and Marine Corps forces in the Middle East.
Helland has previously issued two orders directing Tatum to talk to Wuterich's prosecutors. Zimmerman and his team of Marine Corps defense attorneys have ignored the directives but may now be forced to make him available.
Zimmerman contends that although anything Tatum might say cannot be used against him at his trial, compelling him to provide testimony against Wuterich is improper. Tatum's lawyer also said he would face disbarment if he let a client facing a similar circumstance in a civilian court talk to prosecutors.
"This deposition effort is so overreaching that in my opinion no civilian prosecution office would contemplate this action," he wrote.
By policy, prosecutors will not comment on the pending courts-martial.
Helland's directive says he considered Zimmerman's objections but stands by the order.
"I have determined that Lance Corporal Tatum's videotaped oral evidence deposition is necessary and mandated under the extraordinary circumstances of this case and I order him to appear," the general wrote.
If Tatum continues to refuse, he could face an additional charge of failing to follow an order.
Attorneys familiar with the case question why Tatum is being pressed so hard, pointing out that the government has granted immunity from prosecution to other Marines who took part in the incident in exchange for their testimony.
Gary Solis, a military law professor at Georgetown University and a former Marine attorney and judge, said ordering one defendant to provide statements against another is unusual.
"I've never heard of a co-accused being ordered to provide testimony against another accused," Solis said in a telephone interview Saturday. "It appears there may well be an issue of self-incrimination, and the unusual nature of the order suggests a lack of testimonial evidence in the prosecution's case."
Mark Zaid, one of Wuterich's attorneys, said Saturday that his defense team also wonders why the prosecution is so adamant about getting a statement from Tatum.
"We do not believe anything he will say will implicate Staff Sgt. Wuterich," Zaid said. "The government has this authority at its disposal, but one could certainly speculate that it reveals cracks in the wall of their case."
Tatum is due in a base courtroom Tuesday for a hearing. His trial before a jury of enlisted men and officers is scheduled to start March 27, but could be delayed as a result of Helland's order.
Wuterich's trial was set to start earlier this month but was delayed at the last minute when prosecutors appealed a ruling denying them access to outtakes of a CBS "60 Minutes" interview with him broadcast last year.
Prosecutors contend that the outtakes could include admissions of guilt. They were denied access to those tapes by a military judge, who sided with CBS attorneys and termed the effort a "fishing expedition."
The outtake issue now sits before a military appeals court with no clear indication on when it may rule.
Two officers who were at Haditha also face courts-martial later this year for charges related to failing to conduct a full-scale investigation into the Haditha killings.
I've created pages with diagrams of the alleged crime scenes: White Taxi | House 1 | House 2 | House 4.
Can someone be forced to give testimony against their wishes? I never heard of that before.
It's clear that Tatum is the only witness present at some of the charges against Wuterich. The prosecution clearly is hoping that Tatum makes some kind of error of speech or recall that they can use. I would bet that they've come up with an entire list of trick questions.
I don't understand why Zimmerman says that a civilian attorney would face disbarment for permitting a client to do what Tatum is being ordered to do. If true, I'd think that would be cause for appeal.
With both Zimmerman and Solis (no friend) saying this is highly unusual and a fishing expedition, it puts Helland's neutrality in question.
It appears that one reason Mathis was moved in the middle of this situation would be to get Helland, a more "friendly" general, in place to affect the outcome.
This, TOO, is evidence of undue command influence from within the DoD. It's another in a long chain of "too good to be true" coincidences that have benefitted the prosecutors of this case, and their (I think) covert intention of salvaging congressman, John Murtha, who holds the Marine Corps purse-strings in his hands from his fortress on the appropriations subcommittee for military appropriations. Murtha has bragged to the effect that he can get the military to do what he wishes.
It again raises the question: "If unlawful command influence were taking place what would one expect to see?"
Answer: one would expect to see highly unusual legal decisions that favor the prosecution.
Answer: one would expect to see a neutral commander replaced at a critical juncture by a commander who makes highly unusual legal decisions that favor the prosecution.
BTTT MAY signal a weakness in the gov’t case? You mean that case that’s based on the conjecture of a former Marine? Yeah. It’s weak alright!!
The military Catch-22 in this one is that the defendant can decide to NOT testify, but that comes at the risk of additional chages of not following orders. Whether the order is lawful is a question for appeal, I’d guess.
All in all, this one still smells to high heaven. These soldiers were in the heat of battle, against an uncivilized enemy who make use of civilian resources to their vile ends. These men had mere seconds to make life and death decisions that have been scrutinized, examined, twisted, pulled and reshaped by armchair commanders since that fateful day.
And, all this from reprehensible comments by John Murtha.
All of this should be immediately halted. It’s Murtha who should be on trial, for slandering these men.
And what are those "extraordinary circumstances", other than saving Murtha's fat ass?
Maybe this current order was typed in capital letters.
Great catch, 300winmag. I read right over top of that and didn't catch it.
As you say, "Just what are those extraordinary circumstances?"
This is saying that Tatum is needed because he's the only witness in the middle of combat. Helland scares me now -- here's a Marine officer signing on to assigning BLAME after having armchair quarterbacks dissect a second-by-second account of what transpired in a hostile setting in a ground campaign.
I fear that Helland is compromised.
I fear the entire prosecution was so compromised by command influence from so many directions since Day One that it makes Jack Nicholson's "A Few Good Men" look like a realistic and sympathetic treatment of the UCMJ. And I despise that movie on so many levels.
The more this case falls apart for the prosecution, the more they try to hang somebody for something just to cover up the fact that they went out on a limb to protect some loudmouth ex(communicated)-Marine pol who just happens to control their budget, and maybe the promotion lists.
Just possibly because the first two were to be conducted outside of the courtroom solely with the prosecutors, whereas this is in front of the Judge and Jury. As such, does Tatum still have the right to claim Fifth Amendment protection for any utterance made at that testimony? Can Tatum get on the stand and simply invoke his right not to testify, and still be charged for disobeying a 'lawful' order?
Obviously, the answer to that last is "Yes"; although it would probably be quashed at appeal, by that time the damage is done and the implication is that there is something for Tatum to hide that would rebound negatively to Wunterich's case.
As to Zimmerman's statement, any other attorney or judge could refer him to the Bar Disciplinary Committee for purposely permitting his client to give statements or testify in that manner.
I also agree with xzins, that Helland's comportment since relieving Mathis evidences Undue Command Influence. It's very apparent that President Bush will not intervene; I also know beyond any shadow of doubt that McCain, Clinton, or Obama will so act to expose and close down such influence -- more likely it would vastly increase under any of them.
It's a sad day when Mark Walker is corrected by me.... November 2005.
I have one of those in my district; Curt Weldon was removed by Vice Rear Admiral Sestak for the PA7 seat in Congress; Sestak was fired by Mullen when Mullen took over as CNO, so they moved him into Curt's slot to shut down Able/Danger and deep-six that whole debacle. I do hope that the Wunterich case is able to get Seditious Murtha on the stand.
Hey, he's a reporter. He got the Century right. Close enough for the MSM!
We wouldn’t have had half the scoops if it wasn’t for Walker...I am glad he does what he does. It’s hard to believe it has gone on this long.
Of course our other source is the wonderful Defend Our Marines team.
Not knowing much military or civilian law I’m curious to know why LCpl Tatum can’t simply be made available for the deposition by his attorney and plead the 5th to every question (stating it’s at the advice of his attorney), immunity or no immunity.
Because Tatum is in the military doesn’t deny him of his constitutional rights and we are all guaranteed that right as I understand.
This might tick off Gen Helland but that’s tough, he should not be able to override our Constitution.
Is this wishful thinking on my part or a real possibility, do you know?
Ha! I didn’t refresh after reading the thread and should have before making my last post. :)
Anyone who thinks most judges are neutral is very naive.
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