MILITARY: Judge dismisses charges against Marine (Haditha)

NC Times ^ | June 17, 2008 | AP

[jazusamo]

CAMP PENDLETON ---- A military judge has dismissed charges against a Marine officer accused of failing to investigate the killings of 24 Iraqis.

Col. Steven Folsom dismissed charges Tuesday against Lt. Col. Jeffrey Chessani after defense attorneys raised concerns that a four-star general overseeing the prosecution was improperly influenced by an investigator probing the November 2005 shootings by a Marine squad in Haditha.

The charges were dismissed without prejudice, meaning they can be refiled, but Folsom excluded Marine Forces Central Command from future involvement.

Chessani was the highest-ranking officer implicated in the case.

[Girlene]

Here's a great writeup of the judge's ruling yesterday from San Diego Union Tribune,

General's handling of case faulted by judge By Rick Rogers

"A military judge yesterday said the poor judgment of a prominent general prompted him to dismiss all charges against the highest-ranking Marine being court-martialed in the killing of civilians in Haditha, Iraq.

Col. Steven Folsom made his ruling in a courtroom at Camp Pendleton during a hearing for Lt. Col. Jeffrey Chessani. His decision not only marked the latest setback for prosecutors in the Haditha case, but it also set the military community abuzz because it's extremely unusual for a judge to second-guess a top general.

“It has never happened in the hundreds of cases I have tried or presided over as a staff judge advocate,” said David Brahms of Carlsbad, who was a senior legal officer in the Marine Corps during the late 1980s and works as a lawyer specializing in military affairs.

In December 2006, Lt. Gen. James Mattis decided to press charges against four Camp Pendleton Marines for killing 24 men, women and children Nov. 19, 2005, in Haditha. He also charged another four Marines for not properly investigating the incident.

The charges followed months of international outrage and concern over the Iraqis' deaths, including remarks from President Bush, Iraq's prime minister and senior military officials who stressed the importance of ethical behavior on the battlefield.

Yesterday, only one of those defendants, Staff Sgt. Frank Wuterich, still faced charges.

Folsom allowed the military to consider refiling charges against Chessani by Friday morning, but he banned any units linked with Mattis in the past two years from participating in the process.

Folsom ruled that Mattis acted wrongly in allowing Col. John Ewers, a subordinate who helped investigate Chessani and thus became a potential witness for the prosecution, to join deliberations about whether to file charges in the case. Folsom said the general created a real or perceived conflict of interest by doing so.

“Unlawful command influence is the mortal enemy of military justice. The appearance of unlawful command influence is as devastating as actual manipulation of a trial,” said Folsom, who described his ruling as drastic but necessary. “To restore public confidence ... we need to turn the clock back.”

When prosecutor Lt. Col. Sean Sullivan stood up to speak, Folsom told him to sit down. When Sullivan said he wanted to raise other issues, Folsom cut him short.

“Quite frankly, there are no other issues in the case,” Folsom said.

With a crack of the gavel, the hourlong hearing ended. "..........

............."While scrutinizing details of the Haditha case, Mattis held two-to five-hour meetings at least once a week with assistants knowledgeable about the incident. One of those people was Ewers.

During a June 2 hearing at Camp Pendleton, Mattis testified that he neither sought nor received advice from Ewers concerning the Haditha killings. “He never offered it, and I wouldn't have accepted any,” Mattis said.

Yesterday, Navy Capt. Denny Moynihan, a spokesman for the Joint Forces Command, said Mattis testified “under oath that he did not speak to (Ewers) about the case and was not influenced by him. He stands by his statement under oath.”

Folsom said he found it hard to fathom that “not one person in a room full of lawyers” stood up to tell Mattis that Ewers' presence during the strategy sessions suggested at least the appearance of undue command influence. "..............

WOW!!!!! (There's more at the link) The military judge Col. Steven Folsom sent some heads spinning with his decision. That took character and backbone.

[Gene Eric]

>> I’m disappointed that he didn’t come out strongly against this injustice that’s taken place.

The accusations and circumstances had most everyone silent.

People suffer political persecution as they suffer from illness, war, and crime. But for political persecution, society must remain silent in fear.

[Lancey Howard]

Yikes! Kudos to Folsom.
Thanks for the ping.

[roaddog727]

The gift that keeps on giving.

Did you hear that Murtha? Case Dismissed!

You A@@hole.

[jazusamo]

Folsom said he found it hard to fathom that “not one person in a room full of lawyers” stood up to tell Mattis that Ewers' presence during the strategy sessions suggested at least the appearance of undue command influence. "..............

Thanks, Girl. Good article and some pretty strong stuff.

Correct me if I.m wrong but I believe LtCol Bill Riggs was Gen. Mattis' legal advisor for much of this time period and he recused himself from a case because he took an IO to the woodshed over a decision the IO made.

Don't remember all the details but at the time it sounded like Riggs recused himself at the urging of the good General.

If Riggs was his senior legal adviser it would seem now that he wasn't the brightest bulb in the fixture.

[xzins]

In a nutshell, Mattis/Ewers make it look like Mattis was conspiring with the investigators and prosecution to bring about a desired end. I think Mattis’ prior comment about Chessani’s guilt sealed the deal.

Like Folsum said, wasn’t there one lawyer in a room full of lawyers that couldn’t see that this looked like a set-up?

Now....the same for Rumsfeld’s “Shadow Group.”

The “Shadow Group” UCI really hasn’t been dealt with. I’ll bet Folsum used the local UCI with Ewers and simply ignored the other. He had easy access to Ewers, so he didn’t need to go after the big civilian fish.

[RedRover]

If you haven't seen this yet, I bet it makes you smile: If you don't understand this, you've never met a Marine‏.

[RedRover]

Whoops, you left out the link! Here it is!

[Lancey Howard]

Ha! That’s great!

[romanesq]

Okay, I just knew he was mouthing off before the charges were even revealed.
He was so proud of himself coming out and slamming our Marines before they even had a hearing of any kind.

Despicable.

I’m calling again. And then asking him how his latest Abscam bribes are going and who is paying him now to slur the Marines.

[4woodenboats]

BTW Winters is also the principle causative factor in the government losing the Guantanamo suit. And it was exactly the same behavior - putting his very heavy thumb on the scales of justice

I'd sure like some more detail on that if it's available. Winter's been my pet peeve for quit awhile, now, thinking of upgrading him to project status.

[RedRover]

You’re so right to bring up ABSCAM. Murtha skated because he was cautious. And like a viral microbe that an antiboditic doesn’t kill, Murtha adapted his methods. But the prize is still the same.

[Girlene]

Thanks for providing that link, Red.

[RedRover]

Yep, it’s handy to have a Rover around the thread.

[Girlene]

Yes, Lt. Col. Bill Riggs was Gen. Mattis legal adviser for the Haditha cases. He took the IO Lt. Col. Paul Ware to “the woodshed”, as you said, over his comments about the gov’t’s case against LCpl Sharratt. Riggs then recused himself from advising Mattis about LCpl Tatums’s recommendations from his Article 32.

Col. Ewers was actually Gen. Mattis’ top legal adviser. He just wasn’t supposed to deal with the Haditha cases since he had been involved with investigating them and could/would be a prosecution witness.

The judge, Col. Folsom, took ALL of Gen. Mattis’ legal advisers to task for not stopping what should have been an obvious appearance of UCI when Col. Ewers was involved in so many of the Haditha meetings.

[Girlene]

HAHAHAHA. Let us know how that goes.

[AndyJackson]

Winters is also the principle causative factor in the government losing the Guantanamo suit..... putting his very heavy thumb on the scales of justice..... I'd sure like some more detail on that if it's available.

From the SC Opinion in Boumediene v. Bush p37-38, Kennedy writes how in Eisentrager, the detainees were accorded full rights to a vigorous defense, including representation by an attorney, the right to present evidence and to cross examine. In Guantanamo Winter's implementing regulations turned it into a kangaroo court (no right of counsel, limited evidenciary rights, and presumption given to the government!). Specifically, Kennedy wrote:

the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].” In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, ...there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test thelegality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer,Jan. 21, 1946 (establishing “Regulations Governing theTrial of War Criminals” in the China Theater), in Tr. ofRecord in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.34–40.

In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a “Personal Representative” to assist him during CSRTproceedings, the Secretary of the Navy’s memorandum makes clear that person is not the detainee’s lawyer or even his “advocate.” See App. to Pet. for Cert. in No. 06– 1196, at 155, 172. The Government’s evidence is accorded a presumption of validity. Id.[the Secretary of the Navy’s memorandum ], at 159. The detainee is allowed to present “reasonably available” evidence, id., at 155, but his ability to rebut the Government’s evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings [i.e. issues of fact and evidence]. See Part V, infra.

[AndyJackson]

In brief, Winters implementing regulations gutted the CSRT process of the due process that was necessary for it to constitute a military tribunal equivalent of a habeas hearing. The consequence is they lost.

Much of the dissent about the majority creating an ambiguous is a valid criticism of the majority opinion, but at the end of the day, if Winters (and the administration) had not been so quick to deprive the Guantanamo detainees of a fair hearing under the prescribe military tribunals, this probably would not have happened. Americans don't do kanagaroo courts, not under my Constitution, anyway.

[RedRover]

At the sound of the tone. the goverment’s first 24 of 72 hours is up.

[jazusamo]

Yeah, but who’s countin’. :)