Posted on 06/18/2008 7:22:37 PM PDT by RedRover
CAMP PENDELTON ---- The Marine Corps is appealing a judge's ruling dismissing dereliction of duty charges against a battalion commander accused of failing to investigate the 2005 shooting deaths of 24 Iraqi civilians.
On Tuesday, Col. Steven Folsom, presiding as the military judge over the case against Lt. Col. Jeffrey Chessani, ordered the charges dismissed after finding that a general was improperly influenced by a legal adviser who also is a witness in the case.
The watershed ruling found that the legal adviser, Col. John Ewers, should not have sat in on meetings and discussions with two generals who have overseen the case. That degree of participation by Ewers, who also investigated the killings in the city of Haditha, Iraq, irreparably tainted the decision to charge and prosecute Chessani, Folsum ruled.
The notice of appeal delays the case indefinitely. The appeal document was signed by the lead prosecutor in the case, Lt. Col. Sean Sullivan, and sent to Chessani's attorneys late Wednesday.
Prosecutors had until Friday morning to decide if they would appeal. If they hadn't and also decided against seeking a review of the accusations against Chessani, this time by a Marine officer with no ties to the case, the ruling would have left only Staff Sgt. Frank Wuterich still facing charges.
One of those attorneys, Brian Rooney, said the appeal wasn't entirely surprising.
"In our opinion, the ruling is appeal-proof," Rooney said Wednesday during a telephone interview. "He spent a lot time saying why he ruled the way he did, citing numerous instances of case law to back up his opinion."
The appeal goes to the Navy and Marine Court of Criminal Appeals. Prosecutors have 20 days to write their arguments and provide them to the defense, which has 20 days from receipt of that document to respond.
Folsom's rationale, Rooney said, included a finding that prosecutors failed to meet the required proof beyond a reasonable doubt that command influence didn't harm Chessani.
"The court can only overturn the ruling if it's clearly erroneous, and the evidence is clear that it isn't," he said.
The appeals court is not under any time constraint to issue its finding. Whichever way it does rule can be further challenged before the Court of Appeals for the Armed Forces.
"We feel very good about our chances," Rooney said. "The unfortunate thing is that Col. Chessani has to continue to sit behind a desk for an indefinite amount of time while it's decided. I would have hoped someone would have looked at Judge Folsom's ruling and said, 'Enough is enough, let this Marine retire.'"
Gary Solis, a former Marine attorney who teaches military law at Washington's Georgetown University, said he was surprised by Folsom's ruling but understood the perception problem presented by Ewers' participation in the closed-door meetings.
"Military justice cannot afford even the perception that the government has its fingers on the scales of justice," Solis said in a written response to questions.
Chessani, 44, commanded Camp Pendleton's 3rd Battalion, 1st Marine Regiment at Haditha. The two dozen Iraqi noncombatants were shot by a squad from the regiment's Kilo Company as it searched houses for those responsible for a roadside bombing and subsequent small arms fire the morning of Nov. 19, 2005.
Eight Marines, four enlisted men and four officers, were charged with wrongdoing. One officer has since been acquitted at trial while charges have been dismissed or withdrawn for five other accused troops.
I don’t believe the judge would have had the authority to dismiss without prejudice, without the possibility of appeal.
I’d be happy to hear I’m wrong, but I thought that decision could only be made by the Convening Authority, Gen Helland, who is the “supreme” judge in the case. And Helland would act on the advice of his own legal staff.
Also, I don’t believe all miitary lawyers are JAGs. LtCol Sullivan, for instance, is a civilian lawyer and a Marine reservist. I believe he has a separate line of reporting, up to Gen Helland’s Staff Judge Advocate.
Pinging someone who knows far more than me.
Whatever the correct phraseology is, I believe you are correct.
The political situation that these fine Marines have been sucked into is outrageous, but the only way out is through the mud.
I believe these good men can and will get out, by going through.
I believe that those with eyes to see, will see - will see the ultimate value of men that endure.
I believe that the value of men that endure is eternal and incalculable.
And you're right about the value of endurance. Somehow these men and their families have found a strength they probably never knew they had. It's allowed them, by and large, to stand together. And that has been crucial.
Thomas More Law Center to Government - Time to End the Haditha "Fiasco"
ANN ARBOR, MI – For over two years, the federal government, the Far Left media and anti-war politicians have smeared the names of loyal Marines, spent millions of dollars to uncover the “Haditha massacre” that never occurred, and employed an army of Naval Criminal Investigative Service (NCIS) agents in what it described as the largest investigation in that agency’s history. To show for their efforts military prosecutors have lost 7 of the 8 cases they charged, the eighth case is still awaiting trial.
Earlier this week, the prosecutors suffered their latest setback when military judge Colonel Steven A. Folsom, USMC, dismissed all charges against LtCol Jeffrey Chessani, USMC, the highest ranking Marine officer facing “Haditha” charges. Despite this ruling, the government has indicated that it intends to pursue an appeal, which will continue the case and the expense of taxpayer money for many more months, if not longer.
Richard Thompson, President and Chief Counsel of the Thomas More Law Center, which is representing LtCol Chessani in the court martial, commented, “The investigation and prosecution of the Haditha Marines has been a fiasco. A military command decision should end it now—for the sake of the Corps, our nation and the Marines involved.”
Thompson continued, “Colonel Folsom’s ruling is rock-solid. If the government wants to continue wasting taxpayer dollars pursuing this case on appeal, we are more than committed to defending the military judge’s ruling, even if it means taking the case to the U.S. Supreme Court. We intend to fight as tenaciously as LtCol Chessani’s Marines fought in Iraq. Enough is enough—it’s time to end this fiasco.”
In a detailed ruling, which took the military judge over an hour to deliver from the bench, the judge dismissed the charges on the basis of unlawful command influence, which he described as “the mortal enemy of military justice.” The government’s appeal will be heard initially by the Navy-Marine Corps Court of Criminal Appeals (NMCCA), which is located in Washington, D.C. A decision by that court could then be appealed to the Court of Appeals for the Armed Forces (CAAF) and then even to the U.S. Supreme Court.
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.
We eat your own during war? I don’t get it.
I did my bit and my son’s doing his now, and I always told him before he went in that once your in, you’ll understand how the military watches out for their people, something that civilians will never understand.
And then the chickenshit starts...
“What part of “sit down” by the military judge, Col. Folsom, did Lt. Col. Sullivan not understand?”
I’m afraid you misunderstood the judge. If he had meant the prosecution to sit down, he’d have dismissed WITH prejudice. That would mean they couldn’t refile charges. Essentially, he told them to do it over, and have someone make the decision to charge or not charge who wasn’t influenced by someone who was part of the investigation, or just give it up.
That, ladies and gentlemen, is what is truly motivating this entire debacle. It's a shame my generation didn't use more hard-core drugs and off themselves before they pulled this on another generation. I do so sincerely apologize and pray for justice. Son is still waiting to hear, but hope to be able to say “Semper Fi” shortly and truly have a dog in this hunt. Right now, I'm still just Civilian Jane feeling lower than whale caca that there are still folks who can do so much damage to those who are so brave.
“Any idea if the judge had filed WITH prejudice, if the prosecutors could still appeal?”
If he had ruled it dismissed with prejudice the prosecutors could NOT appeal. Basically, it looks to me, he smacked them upside the head and said do it right!
What I resent is that so many people don't know this, despite the many, many years we've been discussing it. I was a kid when Lt. Calley was tried and convicted. I enlisted several years afterward, and a couple of years before we pulled out of Vietnam. I spent 24 years in the Air Force, and I've been retired for over a decade, and the people who depend on us to protect them still don't understand how things work. They watch JAG on TV and think that's it! I am starting to get really, really irrigated over this.
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