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.
No it’s not a joke. If you hate President Bush then that’s your problem. So you think President Bush should have used undue command influence here, the very thing the prosecution did resulting in this case being thrown out. That about cover it?
I’m glad you brought up Presidential Pardons. They never had the best reputation in town but after Clinton they now mean the person is guilty as anything but not a criminal anymore. IIRC even having one may not restore military benefits, just negate all convictions.
What a day.
Murtha ought to be sued for harrassing a citizen of the United States.
With respect, I'm fed up and out of patience with excuses for President Bush's constant failures of command and leadership. While cowering behind a "pretext" of not wanting to give "the appearance of a cover up" he has given us and, more importantly, these brave men for whom he was responsible and their families, the nightmare reality of being prosecuted/persecuted and their lives ruined simply for doing their duty.
I do believe if needed, President Bush would step in at the appropriate time. Right now he's let the legal system do it's job and up till now it's worked with this one.
Oh, it's "worked" alright. These men's lives and careers have been ruined and their families put through hell, both emotionally and financially. Even if they are all cleared eventually, that damage is irreversible. Worse than that, it's inexcusable, because everyone involved, including the prosecutors, the Marine Corps chain of command, Jack Murtha AND President Bush have known for a long time that this case was bogus, and that these men were operating properly under the rules of engagement.
Worst of all, this case, and the disgraceful spectacle of others of this type which the Bush administration has allowed to fester and refused to challenge in the court of public opinion have been devastating to the morale of our military and their families, and of immense aid and comfort to our enemies.
The moment Jack Murtha went on national television and publicly proclaimed that Marine generals had personally told him that these men committed "cold-blooded murder" President Bush had a responsibility to act. First he should have made a public condemnation of Murtha's prejudicial comments and demanded a public retraction and apology.
If Murtha refused, he next should have ordered both the military and the Justice Department to begin an investigation with a view to prosecution of either Murtha or the "generals". The logic is simple: either Murtha was lying, and thus tampering with and trying to influence an ongoing trial, or "certain generals" were in violation of the USMJC. Either way, those SOB's should have been the ones being hounded by the legal system...
This course of action would have provided President Bush with a perfect platform to use the bully pulpit to sell the American people on his war-time agenda and to put our "enemies domestic" on the defensive. Instead he passively sat back, allowed our enemies to frame the debate, and to his eternal shame, left those servicemen who looked to him for leadership twisting in the wind...
It is my hope that these men will all be ultimately cleared. Unfortunately, I believe that unlikely because the government's agenda is not justice at all. Moreover, others not so well connected, in other similar cases, have not escaped the corrupt military justice system.
And again, worst of all, these cases should not have happened at all...
I hope you're right, but I doubt it... Go talk to Scooter Libbey about how well Bush defends his people...
Get a grip.
First, I don't "hate" Bush and in fact proudly voted for the man twice. But I still believe that his handing over of the prosecution of the war to to a pack of ACLU lawyers and soft, military political hacks is disgraceful.
Second, the Commander-in-Chief, by definition, cannot use "undue command influence" - - he's the guy at the top of the heap and he can pick up the frigging phone any time he finally gets a clue and end this disgusting railroad job, instantly.
Correct that President Bush could have picked up the phone and stopped this anytime he wanted. Then those men would have still went through tons of hassles and had this following them around for the rest of their lives. It would always be said that “ Daddy Bush saved them but they’re still monsters.” Now most have been cleared by the courts the best result they can get out of this.
You need to read more carefully - nowhere did I say President Bush "should have stopped this" or interfered with the proceedings. However, it was his duty to stop Murtha et al. from interfering with those proceedings as well.
What I said is that he should have stepped up and defended his troops (and coincidentally, the rule of law) by challenging Murtha's totally out-of-line public pronouncements and by investigating Murtha and his alleged general's comments.
Murtha's actions were on public television, not on the floor of the House, and he has no Congressional immunity for such blatant attempts to interfere with and prejudice an ongoing investigation and trial. Murtha is not above the law, and neither are these alleged generals.
If either of these parties did as claimed it would have been perfectly appropriate for Bush to go after them legally.
Even better, it would have also been good politics...
Best of all, it would have been the right moral and ethical thing to do...
Yes, what a day it was! I am still shaking my head, banging it against the wall, etc. But, having seen Sullivan “in action” I am not surprised that the appeal happened. He is one mean son of a bit## with an ego to match who hates to lose and will do anything to try to “save his axx!”
The point is that this idiotic charade should never have even gotten off the ground in the first place... But because military and civilian commanders right on up the chain of command ran like cowards from a frigging TIME Magazine story that was planted by insurgent propagandists with the help of an incompetent, deer-in-the-headlights “reporter”, the terrorists have achieved a victory - - eight heroic Marines have been permanently removed from the field of battle.
And the buck stops at Dubya’s desk.
I won’t be happy until charges are preferred on Murtha!
It may be, as someone has peculated, the Murtha has the brass running scared. After all, he intimidates not only his own party but many Republicans who seek earmarks.
Murtha will pay for his remarks and already is. He has been seriously challenged ever since he made them in the last election as well as this one.
No! I say that the president standing up and defending these Marines before this case is over, is most certainly undo command influence. If he had I would venture to say that several convictions would had to have happened just to prove his influence didn’t taint these trials.
President Bush did the right thing, in matters of military justice he must remain aloft and seemingly uncaring, I don’t like it, but I understand the need for it to be that way.
They’ve lost control of the situation and as a result one of the most powerful members of congress has egg all over his face. If the Republicans weren’t cowards, they could help run Murtha out of Congress.
Irrelevant. I'm not talking about "undue command influence", I'm talking about political and public relations warfare, in which the Bush administration has been woefully inept.
Any public statement in this case at all by President Bush would be construed as undue influence until this is all resolved.
That's simply nonsense. It all depends on exactly what the President says. Specifically, while it would have been inappropriate for the President to speculate on the guilt or innocence of those charged, it would have been completely appropriate for him to publicly condemn Murtha for doing precisely that. You need to reread my post.
Nor I, HS and it ‘s exactly what should be done but I doubt it’ll happen. He’s been avoiding charges by the skin of his teeth for neatly 30 years.
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