Decision coming June 16, next big day in Haditha case

Defend Our Marines ^ | June 9, 2008 | Nathaniel R. Helms

[RedRover]

Attorneys representing Marine Lt. Col Jeffrey Chessani will find out June 16 whether the presiding judge in the “Haditha Massacre” case will grant a defense motion to dismiss his charges because of undue command influence.

If Folsom denies the defense motion Chessani will stand general court-martial July 21 for alleged dereliction of duty and orders violations, said Richard Thompson, chief counsel of the civilian law firm representing him.

The veteran combat Marine is the highest ranking officer to be charged with a crime in the discredited massacre investigation. Four enlisted men and three officers under his command were also charged with war crimes. Five of them have already been exonerated during pre-trail legal maneuvers and 1st Lt. Andrew Grayson was found not guilty last week of a laundry list of related charges.

The day before Grayson went to trial, military judge Lt. Col. Steven Folsom deferred making a decision on a defense motion by Chessani’s lawyers asking that the case be dismissed “with prejudice” for alleged undue command influence in the convening authority’s decision to prosecute the former commander of 3rd battalion, 1st Marines in Iraq.

Even with a favorable decision by Folsom, Chessani is not out of the woods, Thompson said. Folsom could dismiss the charges “without prejudice,” leaving the door open for Chessani to be charged again.

One member of Chessani’s defense team noted that government prosecutors have already shown they will go to any length to obtain a conviction in the broadest, most expensive criminal investigation in contemporary military history.

“Why wouldn’t they?” he said. “We are talking about prosecutors still trying to maintain the fiction there was no incoming fire after the IED went off and that the huge firefight on Viper was a separate incident.”

Four enlisted members of a rifle squad Chessani command killed 15 civilians and eight insurgents hiding among them after a remotely detonated IED killed a squad member and wounded two others riding in a convoy. About 500 meters away on a road called Viper another squad of Marines was embroiled in a morning-long grenade fight with insurgents that left nine Marines wounded.

The ambushed infantrymen were later accused by Time magazine and Congressman John Murtha with going berserk; hunting down innocent civilians and shooting them in cold blood. The subsequent investigation showed that none of the circumstances cited by Time and Murtha proved to be true.

Last week 1st Lt. Andrew Grayson, the first of three defendants to face general court-martial in the Haditha incident, was found not guilty of obstruction of justice, making false statements, and attempting to obtain a fraudulent discharge by a seven-member jury panel of fellow Marine officers.

His exoneration followed a 30-month, multi-million dollar, world-wide investigation and five-day court-martial at Camp Pendleton that took the panel five hours to dispose of.

Grayson was attached to Chessani’s command in Iraq as an intelligence officer. He is the sixth of eight original defendants cleared of any wrongdoing in the incident. The panel's rapid verdict put the already weak prosecution case in total disarray, several attorneys involved in the case said.

Chessani is awaiting general court-martial for dereliction of duty and orders violations for allegedly failing to investigate and report the incident. He faces dismissal from the service, loss of all retirement benefits, and three years in prison if convicted.

The criminal charges against Chessani stem from a house-to-house, room-by-room battle that four of his enlisted Marines engaged in on November 19, 2005, after being ambushed by insurgents in Haditha. In the day long battle that followed one Marine was killed and 11 others from Kilo Company, 3/1 were wounded.

Folsom’s ruling follows testimony last Monday by Gen. James N. Mattis and the conspicuous absence of Lt. Gen Samuel Helland in the matter. The prosecution called Mattis to refute defense claims he was unduly influenced by Col John Ewers, the Marine lawyer who investigated Chessani’s command in Iraq for an Army general and later became Mattis’ personal legal counselor as Staff Judge Advocate of the 1st Marine Expeditionary Force.

Before being appointed the 1st MEF SJA Ewers was assigned to investigate the alleged massacre at Haditha, Iraq in the winter of 2006 for Army Maj. Gen. Eldon Bargewell. He was ordered to look into the matter following allegations by a Time magazine reporter that Chessani had covered up the November 19, 2005 murders of 24 innocent civilians by a squad of Marines under his command.

Ewers was still Mattis’ personal attorney when Mattis decided to bring charges against Chessani on December 21, 2006. He remained in the position when Helland took over responsibility for prosecuting Chessani after Mattis was promoted to four-star rank last November 1 and transferred.

“The prosecution made a colossal blunder not calling Lt. Gen. Helland to testify,” opined Thompson, who presides over the Ann Arbor-based Thomas More Law Center. “Folsom has already decided there is evidence of inappropriate command influence and it is now the prosecution’s burden to prove beyond a reasonable doubt that it didn’t occur. Without Helland’s testimony to corroborate Mattis they failed to meet that burden.”

Mattis testified that he was not influenced by Ewers. Last month Ewers testified that he sat in on at least 25 meetings between Mattis and the lawyers from Central Command counseling Mattis about the Haditha investigation while Mattis was in command of both organizations.

Mattis brought the charges against Chessani under the aegis of Central Command where Ewers ostensibly had no authority or influence. At the time Lt. Col. Bill Riggs was the SJA of Central Command.

The defense maintains that Ewers’ mere presence at the meetings by itself represents undue command influence because he outranked the lawyers who were advising Gen. Mattis.

According to both officers’ testimony Ewers was a potted plant that sat mute while Mattis was counseled by Riggs and other attorneys of lesser ranks from Central Command. Mattis told the court he remained an island unto himself and never asked or received legal advice from Ewers while he was formulating his decision.

It is not the first time undue command influence has been charged. Riggs found himself in hot water last summer after he contacted Lt. Col. Paul Ware, the investigating officer in a related case, and criticized him for holding the government to too high of a standard when evaluating the charges against an enlisted Marine.

Ware, the IO in the murder case against exonerated Marine LCpl Justin Sharratt, took the unusual action of revealing what he viewed as an egregious case of undue command influence by Riggs.

“I viewed Lt. Col. Riggs’ comments as inappropriate and imprudent. … I was … offended and surprised by this conversation,” Ware responded in an email.

Subsequently Riggs recused himself from that case.

Military courts consider unlawful command influence the most egregious violation of military justice because it irreparably taints the opinions of prospective jurors, Richard Thompson said.

According to Thompson, Folsom’s determination that there was evidence of undue command influence forces prosecutors to prove beyond a reasonable doubt that: (1) the facts upon which the unlawful command influence is based are untrue; (2) those facts do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings.

[freema]

You are so adept at keying what’s in my head.

[bray]

This Me Lie only had one liar, Murtha!

Pray for W and Our MARINES!

[Lancey Howard]

If his statements and appearance on Frontline were his idea of not talking about Haditha, it is illustrative of how he claims he didn't "advise" on Haditha, as well.

That is one of the best points I ever read. Case closed.

[Girlene]

I found this one comment on the discussion forum for the PBS Frontline, Rules of Engagement quite enlightening.

"Dear FRONTLINE,

I am interested in the comments made by that full-bird Lawyer. He thinks it is a cop-out for an infantryman to say that the infantry does not receive the level of training sophisticated enough to give him the ability to distinguish between civilian and enemy every time. The lawyer says "we are the Marines; we're the biggest baddest guys on the block. To say we can't do something is a cop-out." I wonder if that lawyer's last infantry training occurred at The Basic School and would caution him not to believe his own legend.

The true mark of the warrior is humility. A warrior knows where he is strong and where he is weak. If the grunts are saying they are not good enough in an area of training (perhaps because they were given only two months of real training between deployments to Fallujah and Haditha), then maybe someone with his rank should listen to them and not accuse them of being less of a warrior than they are.

Everyone knows the famous Reagan quote about the Marines, about not having the problem of wondering if they did something in life. I'd like to borrow that thought and extend it one step further: Some Marines go their entire careers wondering if they have what it takes to succeed in combat. The Marines of Kilo Company, 3/1, don't have that problem. They are allowed to admit insufficiencies because they are true warriors.

Take heed, Colonel, and remember your place in the warfighting establishment.

Well done, Arun, and all of Frontline.

Atlanta, GA"

[jazusamo]

Good points and insight by you all.

We know there has been the appearance of UCI from the moment Murtha shot off his big mouth about the Marines being guilty of murder and that he was informed of it by DOD officials and then Gen. Hagee.

It seems the different judges and prosecutors in these cases have tried to split hairs and say that potential Marines for jury panels have not been contaminated (for lack of a better word) by it so that the appearance of UCI should not be considered.

I don't know about the intent of the way that appearance of UCI is written in the UCMJ but when we read and saw telecasts over the last two years there has certaintly been that appearance to us so I don't understand why that would not be true for any potential panel member.

Not having any training in the law myself that's the way I see it, how many Marines have training in the law that are potential panel members?

[smoothsailing]

Here's a link to the article Jaz alerted us to earlier. I thought it should be part of the record here.

Haditha judge to rule on motion to dismiss

[Girlene]

Good points, jaz. The article that smooth linked says,

...."Folsom only recently ruled that there was evidence in the Chessani case of unlawful command influence, which is considered the "mortal enemy" of justice within the military judicial structure.

The judge's conclusion was based on evidence two generals who controlled Chessani's case were influenced by Marine lawyer Col. John Ewers, one of the investigators assigned to the case. Ewers was allowed to attend at least 25 closed-session meetings in which Chessani's case was discussed.

Defense lawyers note that shifted the burden of proof to prosecutors to convince the judge that the facts presented by the defense were untrue, don't constitute unlawful command influence or would not affect the proceedings....."

Actually, I thought the judge concluded that there "may" have been an "appearance" that the case/two generals "might" have been influenced by Col. Ewers attendance of meetings where Lt. Col. Chessani's case was discussed, and that it was up to the prosecution to prove they were not influenced. But, I haven't seen the judge's ruling. This will be an interesting decision on Tuesday.

[freema]

Bump. The only disgrace here is the prosecution.

[Marine_Uncle]

It is coming down to the wire. Hopefully in a few more days we shall have reason to rejoice yet again regarding the Haditha fiasco.

[Eagles6]

Odd. It looks like this story was pulled from the other story and the title changed and nothing in it supports the title.

Keep the prayers going.

[Gene Eric]

>> One member of Chessani’s defense team noted that government prosecutors have already shown they will go to any length

Prayers.

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[RaceBannon]

there’s a new scandal brewing in the Pendleton 8 circle’s too, regarding General Hellend and former Maj Donahue

Seems Donahue had been talking to Helland as soon as 3 weeks before trial and told him there were 3 lawyers lined up to demand a appeal, retrial or dismissal of charges against Hutchins.

Helland in his decision reduced the time from 15 to 11 years.

Now, Donahue has some questions to be answered: did he reveal something as far as a legal stretegy and cause Helland to make his decision to be a forward acting motion to deflect an appeal?

Donahue once claimed someone was a liar and threatened a lawsuit for saying that Donahue DIDNT know Helland, now, Donahue is calling people liars and threatening lawsuits against people who say Donahue DOES know Hellend and spoke to him.

The politics and backstabbing in this have been phenominal, with family members getting romantically involved with those trying to help and then go online to trash them, to family members driving new cars after receiving money for their son’s legal defense...

[Girlene]

Girl telepathy!

[freema]

Dudes and Dudettes, I’m LMAO:
http://euphoricreality.com/2008/06/12/donahue-denies-conversation-with-lt-gen-helland-in-hutchins-caseand-still-gets-caught/

[freema]

But you’ve got some kind of force field that keeps my fingers from getting the points out first : P

[Mr. Silverback]

Freema, that pic is a hoot. My son, daughter and I almost fell down laughing.

I’m glad my beloved Air force bought them, too!

[RedRover]

Should have been, “But to go after people the way you and your friends do...”

[RedRover]

Sorry for any confusion. Back on June 9, a hearing was scheduled for June 16. The judge was to give his decision on the motion to dismiss the Chessani case. That's what the original article, and this thread, was about.

Then, the judge announced a change in the schedule. The heating was moved from June 16 to June 17. So the article at the link was updated, and I also posted the update above.

It is a big day in the Chessani case. The judge will either dismiss the case (unikely, in my opinion) or a court martial will commence on July 21.

[freema]

Probably should have had it’s own thread.
But it didn’t...economical use of time and space in updating on the Pendleton 8. I don’t find any of what these other FReepers are doing disgusting, but shoot, I keep weird company (see tag line). This isn’t a game. This is war. War is ugly. I’d damn sure want them in my foxhole. Ilario Pantano didn’t seem to mind having one of them in his foxhole. Otherwise, all that’s left is to set a date for Larry Hutchins and Evan Vela to have high tea together.
http://euphoricreality.com/2008/06/11/sgt-hutchins-undue-command-influence/