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.
Just shakin my head
Wonder what chain of command LtCol Sullivan is in? How high up did he need to go for approval to file this appeal?
I had hoped the Corps would have taken the opportunity to just scrape this mess off its shoe.
Having mucked my way through some of the foulist smelling stuff on Parris Island I will have to say that to achieve a goal Marines will have to crawl through the cesspools of hell to complete a mission.
We just aren’t there yet but we are damned close to the end.
I believe the entire decision is being appealed—including that part of the ruling.
Ping to the appeal at Post #5
Well, we can help make that happen. BTW, I heard Black Five had kind words for Defend Our Marines today but I haven’t had time to look.
Bump to that!
Yeah, buddy.
Now would be a very good time.
I hoped for that as well, cobra. I still don't see the appeal amounting to much. The problem it creates is the limbo LTCol Chessani and his family are now back in. That's just plain cruel.
I was surprised he didn’t.
Not me. Unfortunately, most Americans are still either unable to perceive or simply unwilling to acknowledge the depth and breadth of the malevolent evil which has infiltrated and metastasized throughout our so-called national leadership classes, including, sadly, our military.
The prosecutions of these men has never been about justice or truth - they're merely pawns being sacrificed to further a political agenda. There are powerful forces pushing this travesty, and they mean to have their way, whatever it takes...
It's a shame these men have had to serve under a Commander-in-Chief who lacked the courage and integrity to step up and defend those under his command...
Well said, Smooth. It’s clear to most everyone there’s an appearance of UCI.
Sullivan and his higher ups seem to be prolonging this to spite Lt. Col. Cessani, it’s not right.
No. They just don’t know when to quit. I assume the prosecution, led by Lt. Col. Sean Sullivan had this prepared by the weekend. They could read the tea leaves just like th defense attorneys when the 2/3 day hearing was announced changed to a 1 hour decision.
Sullivan was probably a little miffed given all the positive coverage for LT. Col. Chessani vs. the prosecutions’ failures. He needs to ask himself, is it worth it for his ego, or is it time to let it go?
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