Haditha Transcript: Where Judge Folsum Saw Injustice

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.

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.

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.

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

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 --

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.

His lawyers would disagree with you, sayong the interview did a lot of good in the court of public opinion. Maybe, but most other lawyers are strongly with you.

I’m not sure what the judge’s “specific court order to ensure seating in the gallery for media representatives” was about, brit. That is quite curious.

There are a lot of interesting points made in Judge Folsom’s ruling. I don’t have time to really dig into it right now.....hoping others will. Without rereading the whole thing, my impression was that Colonel Ewers was the “go to guy” for Gen. Mattis. After returning to Camp Pendleton, he was at more meetings, in person, than any other legal advisers. After Col. Ewers performed the initial interviews with officers, attended all those meetings, discussed his testimony with prosecutors, and spoke out publicly about the incident....Gen. Mattis denial that there was any appearance of UCI was just that. Denial.

Short version, SSgt. Wuterich didn’t have any right at stake in the litigation between the US and CBS. In order to suppress evidence, the party has to show it to be irrelevant or wrongfully obtained in such a way the party’s reasonable expectation of privacy.

Reds a tough customer, not only a fine journalist but a great investigator. Kinda reminds me of agent 86, his lips are sealed. ;-)

LOL! It's just confirmation of what we were kicking around last night. Unless the prosecution or CBS caves, we could be for a loooooong time. More HERE.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.