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Haditha Transcript: Where Judge Folsum Saw Injustice
CAAFlog.com ^ | transcript

Posted on 06/24/2008 2:08:36 PM PDT by xzins

Now, "the focus is upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public. Thus the appearance of unlawful command influence will exist where an objective, disinterested observer fully informed of all the facts and circumstances would harbor a significant doubt about the fairness of the proceedings." That's U.S. v. Lewis, 63 MJ 405, at 414, 2006, CAAF.

"Where actual or apparent unlawful command influence has been held or found, CAAF has long held that a military judge has wide latitude in discretion of fashioning a remedy. CAAF has recognized and long held the role that dismissal is a drastic remedy and courts must look to see whether alternative remedies are available. However, they have held a dismissal of charges with prejudice is an appropriate remedy where the error cannot be rendered harmless." And that's found at Gore, 60 MJ 198.

Now, earlier, this court determined that the defense had met their initial burden on this motion to raise some evidence, if true, of actual or apparent unlawful command influence in the processing of this case. That ruling had the effect of establishing a rebuttable presumption for the government carried with it a burden of proving one of the three prongs beyond a reasonable doubt; either, first, again, that the predicate facts were not true; two, that the predicate facts did not establish actual or apparent unlawful command influence; or three, that such UCI has not or will not affect the trial.

Well, with regard to the first prong of the government's burden, this court finds that they have failed to prove beyond a reasonable doubt that the predicate facts are untrue.

With regard to the second prong, the government has 25 failed to prove beyond a reasonable doubt that the predicate facts did not establish or do not establish either actual or apparent UCI on either the convening authority or upon the SJA and/or deputy SJA of MARCENT.

The predicate facts have established that Colonel Ewers personally investigated the offenses, questioned the accused, formed opinions as to his guilt, and expressed his views publicly. Later, he attended as a primary legal adviser of a separate command at least 50 to 125 hours of meetings with the convening authority where this and other related cases were discussed and legal advice was rendered.

The court finds that his presence at these meetings was as a legal adviser to the convening authority. The fact that he may not have offered specific legal advice on this case while in these meetings is hollow comfort where the facts indicate that all present knew Colonel Ewers's legal opinion on the guilt of this accused as a result of his personal investigation and personal questioning of this accused.

His legal opinion, along with his unnecessary personal presence at what amounted to in reality MARCENT legal meetings, his status as a prosecution witness, his history of investigating reportable law of war violations for then Major General Mattis, his status as the senior legal adviser at all meetings, his combat record, and stellar reputation as a judge advocate and former military judge, when taken together lead this court to conclude that the government has failed to prove beyond a reasonable doubt that Colonel Ewers was not a disqualified legal adviser whose presence did not contribute to a prosecutorial atmosphere or mindset against this Accused such that the decisions and actions of the convening authorities or the MARCENT SJA or deputy SJA were not influenced and their independent judgment was compromised.

Likewise, the government has failed to prove beyond a reasonable doubt Colonel Ewers's history and presence at these legal meetings where MARCENT cases were discussed, particularly this one, did not chill subordinate legal advisers from exercising independence and providing potential contrary legal Advice in the presence of Colonel Ewers.

With regard to the third prong, the government has likewise failed to prove beyond a reasonable doubt that Colonel Ewers's history, status, and presence at legal meetings has not influenced the decisions of either convening authority in regulating discovery before, during, or after the Article 32 investigation or referral of this case.

Likewise, the government has failed to prove beyond a reasonable doubt that the legal advice and recommendations of the SJA and deputy SJA of MARCENT were not inappropriately influenced.

On these issues, to meet their burden, the government only chose to present two witnesses, Colonel Ewers, whose demeanor as a witness revealed him to be a senior officer who while on the stands was at times frustrated and exasperated and occasionally mumbling under his breath prior to responding to a question that posed a differing version of the facts than his.

General -- and the other witness, General Mattis, was a convening authority who was unconcerned with how the appearance of Colonel Ewers at what were essentially MARCENT legal meetings would look to the outside.

However, that does not end the analysis. Having found that the government hasn't proven their burden of rebutting the presumption of either actual or apparent unlawful command influence, this court has the duty to actually determine if there was the appearance of unlawful command influence based on these facts.

As indicated earlier, the burden is on the government to prove beyond a reasonable doubt that a disinterested member of the public with knowledge of the facts would have a significant doubt as to the fairness of the proceeding against this accused. And again, using that standard, and looking at these facts, the government has failed to meet their burden.

And this court finds, and actually is convinced of one thing beyond a reasonable doubt, that a disinterested member of the public would harbor significant doubts as to the fairness of the proceedings against this accused and the military justice system as a whole if they knew that this accused's main interrogator was during significant portions of this trial prepare -- not only prepared as a government witness but was seated at the side of the convening authority as a trusted legal adviser while prosecutors and subordinate legal advisers discussed the details of this accused's case and offered legal advice and strategy which would determine whether this accused would be prosecuted and, if so, how.

And having found that the government has failed to meet their burden to rebut the presumption of either actual or apparent unlawful command influence, this court must now turn to an appropriate remedy. As I've stated earlier, the appellate courts have given military judges wide latitude and discretion in fashioning a remedy in order to address the unlawful command influence that's present either in the case or in the appearance of it in the courtroom.

As I've said, dismissal is a drastic remedy. But courts have sanctioned that -- actually, they've approved that, when they believed that it was absolutely necessary to not only remove the taint but to ensure that public confidence is continued in the military justice system and in a particular proceeding against any particular accused.

Now, the defense has asked this court to dismiss these charges with prejudice. And frankly, I don't believe that's appropriate. I believe that the accused can receive a fair trial. But I do not -- and consequently, I am not going to dismiss with prejudice.

However, the government has asked this court to, at the worst, order a new Article 34 advice letter if -- so that if there was any taint or any influence, unlawful influence in the independence of the SJA from MARCENT, that it would be cured by having a new Article 34 advice letter. Well, frankly, I think doing that is only addressing half the problem. I think the problems really started when Colonel Ewers was invited or required to be present at the MARCENT meetings. The fact that there was miniscule I MEF business there really is not of much consequence.

But bottom line is that I think that in order to restore the public confidence that this accused is being treated fairly in this prosecution that we need to take it all back to -- and remove any potential influence of Colonel Ewers. So he showed up at February 2007. I believe we need to at least turn the clock back to that. The only remedy available to this court at this point is -- to ensure that occurs is a dismissal without prejudice.

Again, if the government intends to prefer, reprefer, and refer, then you will do so with a different convening authority outside the -- of MARCENT or I MEF or Joint Forces Command. Well, it is now 10 after 10 on Tuesday, 17 June, at Camp Pendleton, California. Government, your 72-hour window pursuant to Article 62(a)(2) of the UCMJ starts now.

TC (LtCol Sullivan): Well, before that, Your Honor, I would make an oral motion for reconsideration.

MJ: Okay. What -- based on what?

TC (LtCol Sullivan): Just -- I'm just making the oral motion. Judge, you're going to deny it. I understand. And then I'll -- I'll -- I know the 72-hour clock starts.

MJ: Okay. Your motion is denied. You've presented nothing.

TC (LtCol Sullivan): Okay. Roger that, judge. And then -- then the 72 hours starts, I understand, today. I'll just give you notice right now that we --

MJ: Wait. No. Sit down. I'm going to be very blunt and direct. Please sit down, Lieutenant Colonel Sullivan.

TC (LtCol Sullivan): Yes, sir.

MJ: Your 72-hour period starts at 10 after 10 on the 17th of June, not "today." You have 72 hours from now.

TC (LtCol Sullivan): Yes, sir.

MJ: All right?

TC (LtCol Sullivan): Yes, sir.

MJ: The rule requires written notification. You intend to file an appeal, you provide written notification to this court within 72 hours, not oral notification, not going to do it on the record. You're not going to do it sometime today. Written notification within 72 hours from this point forward. All right, gentlemen --

TC (LtCol Sullivan): Well, Your Honor, may I have a moment?

MJ: To do what?

TC (LtCol Sullivan): I want to consult with counsel, sir.

MJ: Go ahead.

TC (LtCol Sullivan): No. Sir, I'll withdraw that.

MJ: Because, quite frankly, there are no other issues in this case. These charges are dismissed without prejudice. You have 72 hours to give your written notice that you want to appeal it. Following that, or failing that, this court is adjourned.

The Article 39(a) session recessed at 1009, 17 June 2008.


TOPICS: Extended News; News/Current Events; War on Terror
KEYWORDS: chessani; haditha
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To: jude24

I never believed those kinds of moments actually happened. But then again...


21 posted on 06/24/2008 4:26:08 PM PDT by RedRover (DefendOurMarines.org | DefendOurTroops.org)
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To: jude24

I believe that Judge Folsum really lowered the boom in this opinion.

Do you concur?

Do you think this is likely to be studied?


22 posted on 06/24/2008 4:30:40 PM PDT by xzins (Retired Army Chaplain -- Those denying the War was Necessary Do NOT Support the Troops!)
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To: river rat

It has been from the start. My family has always served but I will encourage my grandchildren not to. This country does not deserve the honorable men and women serving for us with the support our Congress gives them. It has been this way since Vietnam. America would explode without these Patriots and maybe the Libs will take charge and take us directly to hell and we have begged for it. America is no longer worth defending I am afraid.


23 posted on 06/24/2008 4:30:47 PM PDT by gunnedah
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To: RedRover; jude24

This entire thing is really odd.

Based on what he was saying, Judge Folsum has some brass ones, doesn’t he?

His summary that an impartial observer couldn’t help but consider this unfair and flawed is absolutely clear. But when he adds to that that this is something about which there is no reasonable doubt, one wonders how an appeals court can muster up the courage to over-rule this man.

He’s basically saying that this is so clear that you have to be an idiot to miss it.

But, he left the system an out. Someone else can start the entire process all over again.

I wonder if Ewer’s original investigation would be considered tainted in a new trial? I would argue that Ewers subsequent clear prejudice against Chessani would cast considerable doubt on the neutrality of his investigating.....especially since the Bargewell report found no murders and no coverup. It sounds like Ewers was a dissenting voice in that investigation.


24 posted on 06/24/2008 4:37:18 PM PDT by xzins (Retired Army Chaplain -- Those denying the War was Necessary Do NOT Support the Troops!)
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To: gunnedah
"America is no longer worth defending I am afraid."

The America we received as our birthright, IS worth defending.

The Leftists must pushed back under their rocks, and let the light of the REAL America be restored...

I am not prepared to surrender to the bastards - and before that is forced upon me, there is going to be one hell of a fight FIRST....a bloody fight.

25 posted on 06/24/2008 4:51:21 PM PDT by river rat (Semper Fi - You may turn the other cheek, but I prefer to look into my enemy's vacant dead eyes.)
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To: jude24

BTW, I loved that movie.

Nicholson, while in real life probably a demented, immoral old soul, is also an excellent actor. I like cruise, too, but Cruise’s best movie by far is the “The Last Samurai.”

Nothing else he’s done comes close.


26 posted on 06/24/2008 5:13:07 PM PDT by xzins (Retired Army Chaplain -- Those denying the War was Necessary Do NOT Support the Troops!)
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To: xzins

Agree with your post, Chaplin and especially with the judge on his statement about the impartial observer.

I don’t see how any appeals panel could reverse his ruling.


27 posted on 06/24/2008 5:13:09 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: river rat

BUMP to that!


28 posted on 06/24/2008 5:13:59 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: xzins

Nice catch.


29 posted on 06/24/2008 5:17:53 PM PDT by Mr. Lucky
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To: jazusamo; jude24

You’ve got to wonder what kind of appeals system would overrule a bird colonel judge who says he’s as close to certain as humanly possible that UCI tainted this trial.

The only thing they could say is: “Yeah, Ewers was present, but we don’t think it mattered anywhere close to as much as you think it did. We really do think he was a potted plant and not one soul observed his presence.”


30 posted on 06/24/2008 5:18:34 PM PDT by xzins (Retired Army Chaplain -- Those denying the War was Necessary Do NOT Support the Troops!)
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To: Mr. Lucky

My understanding is that the Convening Authority must preserve his neutrality. I wondered how he could do that with ANY of the prosecutors in his briefing room.


31 posted on 06/24/2008 5:22:16 PM PDT by xzins (Retired Army Chaplain -- Those denying the War was Necessary Do NOT Support the Troops!)
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To: xzins

WOW!!!!! Thanks for finding and posting this, xzins. There’s a lot in his explanation that will take a bit to digest. I’m impressed with what I’ve read of Judge Folsom’s decision.


32 posted on 06/24/2008 5:33:25 PM PDT by Girlene
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To: xzins
"Colonel Ewers, whose demeanor as a witness revealed him to be a senior officer who while on the stands was at times frustrated and exasperated and occasionally mumbling under his breath prior to responding to a question that posed a differing version of the facts than his."

That Folsum included this is telling. If Ewers couldn't control his mumbling when in a courtroom when someone said something he disagreed with, does one really believe he sat stone-faced in those legal meetings when someone said something he disagreed with.

Or did he "start mumbling under his breath" and all the lawyers then knew they had to go a different direction?


Absolutely, xzins. Col. Ewers couldn't control himself during this "motion hearing" or whatever it was. He blamed the Frontline producer for the words HE said about the Haditha situation. Sounds like the military judge used some plain ol' comman sense in his ruling.
33 posted on 06/24/2008 5:41:56 PM PDT by Girlene
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To: xzins
Colonel Ewers's interview of the accused was preceded by Article 31b rights warnings, which the accused waived,

Chessani is not guilty of anything, but that was a stupid decision. Had he told them to pound sand, he may not be in his current position.

34 posted on 06/24/2008 5:48:53 PM PDT by SeaHawkFan
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To: xzins

Is there any indication of any interest on the part of the prosecution to re-file and start over? Or is the thinking that they’re not inclined to do that?


35 posted on 06/24/2008 5:52:14 PM PDT by Ramius (Personally, I give us... one chance in three. More tea?)
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To: xzins

Chessani will never go to trial. Too many high ranking officials would be called to testify. Appellate court will tell the prosecutor to pound sand.


36 posted on 06/24/2008 5:53:06 PM PDT by SeaHawkFan
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To: xzins

Wow, I don’t think LTC Sullivan has very many friends right now. Don’t think he is ever going to be LTC(P) Sullivan.


37 posted on 06/24/2008 6:03:54 PM PDT by SeaHawkFan
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To: SeaHawkFan; xzins; RedRover
From the Judge's decision,

Colonel Ewers later interviewed the accused's immediate superiore at Regimental Combat Team-2; Colonel Davis; and the Commanding General, 2d Marine Division, Major General Huck; as well as the Chief of Staff, 2d Marine Division, Colonel Sokoloski. At the conclusion of his investigation, Colonel Ewers and other staff officers prepared draft findings and conclusions for the final report.

These findings and conclusions that Colonel Ewers shared ultimately posited that the chain of command including the accused was willfully derelect in the performance for their duties for failing to conduct an investigation into the circumstances surrounding the deaths of Iraqi civilians in Haditha on November 19, 2005.


AMAZING! Who received the three letters of censure that were publicly revealed (which was very unusual to have them made public)? Why, none other than Huck, Sokoloski, and Davis. Three Senior Marines are Censured in Haditha Case
38 posted on 06/24/2008 6:18:05 PM PDT by Girlene
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To: river rat

I am with you and ready. I just hope we can prevail but for the first time in my life I am afraid this country has swung hard left because the Republicans failed to act when they were in charge. It is a real mess.I have no confidence in either party.


39 posted on 06/24/2008 6:25:54 PM PDT by gunnedah
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To: pinkpanther111; 4woodenboats

Pinging the two of you to the judge’s statements on the UCI ruling in the Lt. Col. Chessani case. My, what a cozy little arrangement existed between the various players.


40 posted on 06/24/2008 6:47:20 PM PDT by Girlene
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