Haditha Transcript: Where Judge Folsum Saw Injustice

CAAFlog.com ^ | transcript

[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.

[river rat]

When (not if) the Republicans LOSE this next election — losing the White House, more seats in the House and the Senate, perhaps the dumb asses in the “GOP” and America will get the message....

Plus - with the nation under another “Carter Administration”, only worse, even the dumb shits who voted for them should see the folly of placing the nation in the hands of ignorant, incompetent, bitchers without solutions and economy wreckers.

The welfare dependent base of the DNC, will get more than a little pissed off when the DNC can’t deliver their welfare checks or food stamps on time, or provide a condo in Malibu and a Lexus to each and every one of the “brothers”......

We are soon to be living in even more interesting times...

The Democrats are a bunch of incompetent nincompoops, who constantly let their alligator mouth overload their hummingbird ass.
There is no question that they will be in power during the most devastating period our history — and get full credit...

[brityank]

My, what a cozy little arrangement existed between the various players.

Indeed -- but only on the prosecution side. I also found this little gem tucked into the statement:

Additionally, this court has seen the need to issue a specific court order to ensure seating in the gallery for media representatives, some of whom the court notes are present today.

Now why does it take a specific court order to ensure seating in the gallery for media representatives and why did Col. Folsom specifically include that in his remarks? Could it be that the prosecution and their enablers have tried to keep much of this under wraps to preclude public dissemination of their nefarious details?

Seems to me that Col. Folsom has thrown up a pretty solid wall for any future prosecution to tunnel through, and by eliminating both of Gen. Helland's command infrastructures from bringing forth new specifications leads me to believe that this case is defunct. Unfortunately, that brings all of the power to bear down on SSgt. Wunterich; I can only hope that his defense team is as successful as LtC. Chessani's.

Many thanks, Red and all, for the info.

[brityank]

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.

I too no longer believe in the truthfulness or honesty of the legal system any longer; the US Supreme Court has held that they can lie and cheat in any way short of bodily injury to get any incriminating statement -- or lie to say you gave one "willingly".

Go watch this three-part video "Talking to the Police" by Professor James Duane of Regent University in Virginia. It was an eye-opener for me.

[smoothsailing]

You might want to hedge your bets a bit. Maybe it's just me, but I sure see no reason to throw in the towel.

This Obama clown is no big deal, and his star is fading faster than dew off a sunrise melon.

[RedRover]

The CAAFLOG is new to me and I spent some time over there tonight. There was very interesting discussion (though much of it way over my head) about a recent decision against SSgt Wuterich in the ongoing battle over the 60 Minutes outtakes. Essentially (if I understand it correctly), Frank's lawyers attempted to stop the fishing expedition and were told that they had no standing to do so: that it was entirely up to the US Government. If you're interested, the discussion about ths terrible ruling is HERE. A copy of the ruling itself is HERE

[RedRover]

BTW, I had to look it up: NMCCA stands for the Navy-Marine Corps Court of Criminal Appeals.

[Always A Marine]

Seems to me that Col. Folsom has thrown up a pretty solid wall for any future prosecution to tunnel through, and by eliminating both of Gen. Helland's command infrastructures from bringing forth new specifications leads me to believe that this case is defunct.

LtGen Helland's I MEF and MARCENT were not the only commands barred from reviving charges against LtCol Chessani. The entire US Joint Forces Command (commanded by Gen Jim Mattis), as well as all of USJFCOM's subordinate commands are also barred from prefering new charges against Chessani. While the UCI clearly came through the person of Col Ewers, Folsom's only thinly veiled his disgust at Gen Mattis for his meddling in the case and for his clear disregard for propriety. I wholeheartedly agree with Folsom's dismissal, and believe that Chessani's case has been irreversibly tainted by UCI. The conduct of LtCol Chessani's prosecution has greatly diminished the great respect which this Marine once held for Mattis. It is past time for the Corps to do the right thing and cease its prosecution of LtCol Chessani.

[xzins]

I just saw this post, Red, but it’s about midnight, so I’ll try to get to it tomorrow.

I have trouble reading legalese early in the morning wide awake on a fresh pot of coffee. :>)

Late at night, it’s realizing after about 30 minutes that you’ve been reading the same paragraph over and over and getting nowhere with it.

[SeaHawkFan]

Go watch this three-part video "Talking to the Police" by Professor James Duane of Regent University in Virginia. It was an eye-opener for me.

I watched it three times two weeks ago. I already knew that one should never talk to the cops. The good professor explains it in a very entertaining and convincing manner.

[pinkpanther111]

Thanks for the ping!

Digging in now!!!

WOW!!!

[brityank]

Not only Professor Duane, but Officer George Bruch from Virginia Beach’s comments also added to that impression. I also liked that he explained that they only “interview” “witnesses”, they don’t “interrogate” them; that “interrogate” is a nasty, vile, nazi-like word!!

[PhilDragoo]

[brityank]

It is past time for the Corps to do the right thing and cease its prosecution of LtCol Chessani.

From what I've seen, in all of the testimony and evidence produced from all of the Haditha Article 32 Hearings and Court Martial cases to date, it is apparent that none of these cases should have been brought. They are all being pursued because of political involvement by those with no concern for the realities of the battlespace, and reliance on propaganda specifically developed to cast the worst light on any action our troops take in defense of themselves and the civilians they are defending. I can only surmise that the entire JAG team is infused with radical leftists from the ACLU socialists, their whole point to sow distrust and dissent among the front line troops and so lose the battles. It's for certain they don't have our troops best interests in heart.

[PhilDragoo]

We encourage the prisoners to be frank.

A line from a book of fifty years ago.

Kim Jong Il endorses Obama.

In 1997 a Chinese Communist official cited the speeches of Hillary Clinton as textbook propaganda.

The "media" is merely the ministry of propaganda.

Folsom has done a monumentally courageous thing here, a real destruction of a real Matrix.

Far from the stuff of Jack Nicholson "truth", the prosecution here is more closely aligned to the current crop of cowardly decapitators in black hoods.

Of course Murtha should be in the Yuri I. Nosenko Hospitality Inn for the duration.

[Shelayne]

Whoa! Folsum really lays the hammer down. (Or I should say gavel.) I can “hear” the anger in the transcript.

This is the end of the line for the case against Lt. Col Chessani. No way do these charges go anywhere. That is how it sounds to me, anyhow.

[Shelayne]

That jumped out at me as well. Folsum sounds totally disgusted with this whole thing. As he should be.

[Shelayne]

That is a curious court order. Hmmmm.

Thanks for the ping, Brit. I think this is the end of this particular witchhunt. IANAL, but this looks like a solid ruling to me. I only pray that the tentacles of this reach the trial of SSgt Frank Wuterich, and his case is dismissed WITH prejudice.

[brityank]

Essentially (if I understand it correctly), Frank's lawyers attempted to stop the fishing expedition and were told that they had no standing to do so: that it was entirely up to the US Government.

Seems to me that CAAFlog has it right, they blew it on this point.

    Whether an accused has standing to challenge evidence is generally analyzed in the context of Fourth Amendment rights and the reasonable expectation of privacy.
    An accused may also have standing to object to evidence when some action of the Government has impacted the reliability of the evidence, such as in cases of "'coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination,' or [interference with] 'the right to present evidence.'"
    Similarly, some courts have recognized standing to challenge subpoenas issued to third parties on grounds other than Fourth Amendment. These cases turn on whether there is some other constitutionally recognized privacy or property interest.

    The appellee raises none of the aforementioned interests, but asserts that his standing in the dispute between the Government and CBS derives from his having been charged with an offense, and because the Government designated him "appellee" in the caption of the Government's interlocutory appeal. These are wholly inadequate as the basis for standing. We, therefore, conclude that the appellee lacks standing.

So here we have a case titled UNITED STATES OF AMERICA v. FRANK D. WUTERICH STAFF SERGEANT (E-6), U.S. MARINE CORPS wherein these illustrious Judges decide that the Titled Party has no standing. If so, then there was nothing for that panel to decide, as the primary reason for their meeting, they disqualified by their ruling. Their Court is not the correct venue to hear anything about a case of the USA against a non-military entity, CBS. I also have to question as to why they did not raise the UCI scenario -- do the various defense teams not talk amongst themselves? It's for damn sure the prosecutors do.

Further on, in a footnote there is the following:

    3     Additionally, the military judge was placed on notice by the appellee that he intended to object to the admission of the 60 Minutes broadcast on the basis of a lack of ompleteness. MIL. R. EVID. 106; Record at 26. The rationale, of course, is that the appellee’s statements have been taken out of their original context in the editing process. Certainly, the military judge would have to resolve this objection prior to admitting the broadcast into evidence. How he intended to address this is not clear from the record before us. What is clear is that CBS also served notice that, in response to a defense request for access to the out-takes, CBS would again seek to assert privilege over the material. Record at 27. Judicial economy would seem to require all necessary fact-finding about this evidence be completed pre-trial. The in camera review ordered herein will serve to address the completeness issue as well, if and when it is raised.

What is interesting here is that the Defense team is saying that the Prosecution wants to go on a fishing expidition, but even if that gets turned back, the entry into the evidentiary record of the broadcast part of the 60 Minutes Interview is incomplete and "taken out of context" -- the very thing that the Prosecutors are trying to establish. I still don't understand why SSgt. Wunterich's team allowed him to go on camera -- with Scott Pelley of all people -- before his case was decided; seems he did more harm than good, even though to my mind he acquitted himself well.

[brityank]

I only pray that the tentacles of this reach the trial of SSgt Frank Wuterich, and his case is dismissed WITH prejudice.

In that, I fully join you, Amen.

[4woodenboats]

I was out of town so am just trying to catch up while I'm sleep walking, but this woke me up a bit;

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.

Someone call the Darwin Society, tell 'em you've found the Missing Link! (And he even mumbles under his breath - I believe the consensus scientists predicted that)

I think it's pretty obvious now that Ewers is and has been all along Secretary Winter's boy. The drafts went to Winter, who immediately and publicly censured Davis, Huck, and Sokoloski, then Ewers gets assigned (by Winter would be my guess) to sit on Mattis's knee - when he's not off publicly damning the Haditha Marines - making sure everyone in those meetings comes up with the proper collusion - er, "conclusion".

I'm looking forward to reading the whole transcript once the sun rises - I can see that the Judge was pissed, and I'm wondering if he wants the media in on this so this stain on the Corps can be burned away by the light of day.

GREAT fact mining & summarizing as always, Girl!