Major Setback for Prosecutors in Chessani Court Martial [Haditha]

Defend Our Marines ^ | May 21, 2008 | Thomas More Law Center Press Release

[RedRover]

ANN ARBOR, MI – Prosecutors yesterday hit a major speed bump in their rush to convict Marine LtCol Jeffrey Chessani when the Military Judge ruled that he found evidence of unlawful command influence. Courts consider unlawful command influence the “mortal enemy of military justice.”

Although the case is far from over, yesterday’s ruling now forces prosecutors to prove beyond a reasonable doubt that: (1) the facts upon which the unlawful command influence is based are untrue; (2) those facts do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings.

The Unlawful Command Influence motion (click here for Motion) was brought before Military Judge, Colonel Steven Folsom, by the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan. Law Center attorneys Robert Muise and Brian Rooney, both former Marines, wrote and argued the Unlawful Command Influence motion on which yesterday’s decision is based.

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, commented, “Considering the politically charged nature of this case – and particularly this motion – Colonel Folsom made a courageous decision.”

Thompson went on to say, “The taint of unlawful command influence started from the inception of the investigation, when high-ranking Pentagon officials decided to make LtCol Chessani a political scapegoat to appease a liberal anti-war press and politicians. This ill-conceived prosecution has resulted in the removal of one of America’s most effective combat commanders in Iraq by the Marine Corps’ own standards. Although nothing can undo the harm caused to our Nation and to LtCol Chessani and his family, this ruling gives us hope that the military justice system will rise above the politics that fomented this prosecution and allow LtCol Chessani, who devoted more than 20 years to the Marine Corps and to the defense of our Nation, to get on with his life.”

Colonel Folsom found that the defense met its burden of presenting “some evidence” of actual and apparent unlawful command influence. His decision was based upon the evidence that the Generals who controlled the disposition of the case were apparently or actually impermissibly influenced by Marine lawyer Colonel John Ewers, who was permitted to attend numerous, closed-session meetings in which LtCol Chessani’s case was discussed.

Colonel Ewers was one of the investigators of the Haditha incident from the beginning. He is a witness that the prosecutors plan to call in its case against LtCol Chessani. Consequently, he should not have been involved in any of the meetings in which the disposition of the Haditha cases was discussed with the Generals who convened the court martial. During the hearing, the defense called Col Ewers as a witness. Col Ewers admitted that he was present during at least 25 meetings in which LtCol Chessani’s case and the other Haditha cases were discussed with the Generals and other legal advisors.

The criminal charges against LtCol Chessani stem from a house-to-house, room-by-room battle four of his enlisted Marines engaged in on November 19, 2005, after being ambushed by insurgents in the town of Haditha, Iraq. Even though LtCol Chessani promptly reported the events of that day to his superiors, including the deaths of 15 noncombatant civilians caught in the battle, nobody in LtCol Chessani’s chain of command believed there was any wrongdoing on behalf of the Marines.

However, months later, a Time magazine story planted by an insurgent propaganda agent, caused Pentagon officials to order the largest investigation in the history of the Naval Criminal Investigative Services (NCIS). As a result, LtCol Chessani, one of America’s most effective combat commanders in Iraq, now faces dismissal (an officer’s equivalent of a dishonorable discharge), loss of retirement, and imprisonment of up to 3 years.

Thus far, after 30 months of investigation costing millions of dollars, the cases against three of the four enlisted men charged for their part in the Haditha incident have been dismissed.

The Law Center, along with two detailed Marine lawyers, LtCol Jon Shelburne and Captain Jeffrey King, is defending LtCol Chessani, the highest ranking military officer charged in the November 19, 2005, Haditha incident.

The Thomas More Law Center defends and promotes the religious freedom of Christians, time-honored family values, and the sanctity of human life through litigation, education, and related activities. It does not charge for its services. The Law Center is supported by contributions from individuals, corporations and foundations, and is recognized by the IRS as a section 501(c)(3) organization. You may reach the Thomas More Law Center at (734) 827-2001 or visit our website at www.thomasmore.org.

[Just A Nobody]

Ahhhhh, tanks Red!

[jazusamo]

I’m going to send him some too after June 1. Hope he’s getting a team together, haven’t seen anything in the local rags about him lately.

[xzins]

It’s not just what Col Ewers testified to on the record. Wouldn’t also be all those unknown things he said to convening generals behind closed doors in 25 separate meetings.

The last item to be disposed of, that “(3) the unlawful command influence will not affect the proceedings” seems the easiest to manipulate. (Sorry for looking on the gloomy side, but I simply don’t trust these people.)

I still think there’s the appearance of a conflict of interest between DoD releases and Chessani’s right to a fair trial.

[Paperdoll]

>You got that right! I just sent HIS OPPONENT a couple of bucks yesterday<

Thanks, JAN. I just sent him $25.00, too.

[muawiyah]

Look, all the general grade officers in the US military who are on duty (not the retirees) are selected precisely because they are smart enough to know how to follow orders and to REJECT outside inappropriate command influence (e.g. Murtha asking for somebody's head).

You don't expect that sort of standard of behavior with colonels, of course, but, then they aren't generals are they.

Still, there's the Benedict Arnold tradition and we've had some of that over the centuries. Plus, there's lots of money loose around there. Saddam's daughter and her lackeys could easily bribe anyone to do or say anything ~ even one of our generals.

The first criticism out of the chute is going to be "You are attempting to denigrate the honor of our troops", and all I can say is that sometimes there's a bad apple ~ otherwise how would Obama or Clinton get retired military advisors, or General Clark?

Now is not a time to be niggardly in the use of thought processes to figure out who it was got manipulated into prosecuting these guys, and why.

[bigheadfred]

Col Ewers admitted that he was present during at least 25 meetings in which LtCol Chessani’s case and the other Haditha cases were discussed with the Generals and other legal advisors.

Does this mean anything to Frank Wuterich?

[sailor4321]

Yes! Outstanding!

[Just A Nobody]

Thank YOU, doll!

I was looking to assist in the defeat of j Eff'n, but the only challenger I've found is THIS GUY.

The best thing I can say about him with very little research is; He is not j Eff'n. Heck of a theme the republicans have going this year..."But our guy is not their guy"

[Just A Nobody]

Like I said, you may be on to something, it was just not what I was thinking when I wrote the post you responded to.

[Constitutions Grandchild]

I don't think anyone's contrary opinion would make the slightest difference to him. I was stunned to find out long after the fact that even while he was making official visits to D-I schools, he had been in contact with recruiters from his Junior Year in high school. I've never seen him more determined and motivated than he is now. Passing a football was fun, but this is something I certainly can't describe.

He's lost the 35 pounds they made him gain to play football in three months’ time, he passed his ASVAB and studied so hard (it was like passing a brick to get him to study for his SATs), he is up at the crack of dawn, works 40 hours a week, attends college full-time and is running, doing his pull-ups and crunches like he's up for MVP. Nothing has had the alure this has for him, not even when his name was tossed in the hat for Notre Dame. Go figure.

Thanks for your prayers. I know I'll be wearing out my kneecaps once he deploys.

[brityank]

“Considering the politically charged nature of this case – and particularly this motion – Colonel Folsom made a courageous decision.”

Whoa! Isn't that the truth. Looks as if Col. Folsom just whacked the prosecution, JAG, and NCIS right in the knees.

So now what's the scenario going forward?

• Assuming the prosecution fails to overcome this wall, do they have any avenue to appeal?
• Assuming the prosecution is able to convince the court that the UCI is unfounded and they can proceed, does Col. Chessani and his team have any avenue to appeal before the conclusion of the Court Martial?

Have to add a couple of cents on the poor OJ jury -- we on the outside were not restricted, nor sequestered, as they were to all of the evidence or shenanigans from both sides; I can see why they made the decision they did in the criminal case. That he was finally held to book in the civil case is just, if not fair. I say not fair as he was able to squirrel away a considerable amount of his assets thus preventing the court from attaching them.

My point here is that there is no way that any of the remaining cases can be thought to have an untainted jury panel; the amount and excessive volume of accusation and innuendo will be hard to overcome -- I doubt there is any service member anywhere on or off Earth that has not heard some of this.

Many thanks, Red, for your info, and God bless and protect Col. Chessani, Lt. Grayson, and SSgt. Wunterich.

[brityank]

... sometimes there's a bad apple ~ otherwise how would Obama or Clinton get retired military advisors ...

Sometimes they just plant them on us!

RAdm. Joe Sestak, USN(Ret)[fired!] - Congressman PA-07

[jazusamo]

According to this piece in the NC Times if the prosecution cannot prove there was not undue command influence the process has to start all over and Gen. Helland would have to recharge LtCol Chessani, at least that's the way I read it. I could be wrong or the article could be, Mark Walker wrote it.

CAMP PENDLETON: Undue influence cited in Chessani case

[brityank]

Thanks for that link, Jaz -- the pertinent section:

Gary Solis, a military law expert who teaches at Washington's Georgetown University and is a former Marine Corps attorney, prosecutor and judge, said the ruling could have a major impact on the prosecution.

"It most likely means the Marine Corps will have to re-initiate the charging process because you cannot proceed with a case in which there is a finding of unlawful command influence," Solis said Wednesday during a telephone interview. "In a sense, the Marine Corps is fortunate that the ruling comes now. If it came after the case was decided and there was a conviction, that conviction would have to be set aside."

Solis also said the ruling could mean that a new convening authority overseeing the case may have to be appointed. Under the Uniform Code of Military Justice, the convening authority decides what charges should be brought, relying on the advice of a military prosecutor. The convening authority over the Chessani case is Camp Pendleton's Lt. Gen. Samuel Helland.

Seems Prof. Solis has modified his stance a little more, I thought his earlier pronouncements were very strongly pro-prosecution. As the brief mentioned, the Convening Authority [was originally Gen. Mattis] had the direct responsibility and final authority to lay the charges, yet he was over-ridden by SecNav. I wonder if his onward move was by his request to get out from under?

[jazusamo]

You bet, brit. As this whole fiasco has progressed I’ve gotten the feeling that Prof. Solis has somewhat backed off his original stance favoring the prosecution which he did, IMO.

As to Gen. Mattis, I just have a hard time believing he made any kind of request to get out from under this but I sure don’t base that on any fact that’s taken place, it’s just my own feeling.

[freema]

Ping.

[brityank]

As to Gen. Mattis, I just have a hard time believing he made any kind of request to get out from under this but I sure don’t base that on any fact that’s taken place, it’s just my own feeling.

You could well be right, it's all we can go by -- our own underlying feelings. (Ugh! Makes us sound like liberals. [Ptui!])Maybe I'm too soft-hearted; tend to believe the best of everyone, but most of the comments at the start of this debacle WRT Mattis had him listed as eminently fair but stern -- a typical Marine. Now we find that he was over-ridden by his upper chain of command, that has to add a new wrinkle to the viewpoint.

[jude24]

Murtha isn’t in the chain of command, so he can’t legally cause “unlawful command interference,” regardless of his committee assignment. Legally, it is far more significant that the military brass suggested a desired outcome in the case theleough those meetings. Lt. Col. Chessani might just be acquitted on those grounds.

[xzins]

Are the president, secdef, secnav, CoSNav, in the chain of command?

I would offer a suggestion that the Constitution gives regulatory responsibility controlling the military to the Congress.

[jude24]

theleough = through. Darned iPhone autocorrect.