Decision coming June 16, next big day in Haditha case

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.

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.

That could be part of it, brit. There slso seemed to have been a strong reaction pretty early on from the Marine leadership. This incident was revealed about the time COIN was being pushed as the way forward in Iraq (I think). Here's how WaPo describes Lt. Gen. Chiarelli's reaction to the incident. In Haditha Killings, Details Came Slowly

.........."That same month, a top military official arrived in Iraq who would play a key role in the case: Lt. Gen. Peter W. Chiarelli, the new No. 2 military officer in the country. He is an unusual general in today's Army, with none of the "good old boy" persona seen in many other top commanders. He had praised an article by a British officer that was sharply critical of U.S. officers in Iraq for using tactics that alienated the population. He wanted U.S. forces to operate differently than they had been doing.

Not long after Chiarelli arrived in Baghdad, an Iraqi journalism student gave an Iraqi human rights group a video he had taken in Haditha the day after the incident. It showed the scene at the local morgue and the damage in the houses where the killings took place. The video reached Time magazine, whose reporters began questioning U.S. military officials. Pool, the Marine captain, sent the reporters a dismissive e-mail saying that they were falling for al-Qaeda propaganda, the magazine said recently. "I cannot believe you're buying any of this," he wrote. Pool declined last week to comment on any aspect of the Haditha incident.

But Army Lt. Col. Barry Johnson, a more senior spokesman in Baghdad, notified Chiarelli of the questions. The general's response to his public affairs office was short: Just brief the Time magazine reporter on the military investigation into the incident that Chiarelli assumed had been conducted.

The surprising word came back: There had been no investigation.

Chiarelli told subordinates in early February he was amazed by that response, according to an Army officer in Iraq. He directed that an inquiry commence as soon as possible. He wanted to know what had happened in Haditha, and also why no investigation had begun."............

I think there were many factors why this thing took off, and not just because of the number of deaths.

I think there were many factors why this thing took off, and not just because of the number of deaths.

Exactly so Girlene. The transition from the stick to the carrot had to have been completely disjointed. Where one outfit was employing the stick, another was giving out the carrot. And as the carrot became more prevalent, incidents involving the stick were easier to scrutinize.

IMO, Haditha would never have been investigated or scrutinized if the prevailing methodology was all stick.

Makes sense to me. Carrots/sticks. Haditha was not at the point of carrots from all the reporting coming out of that area at the time. How many Marines were killed in August, 2005 before Kilo company came in? I don’t think the investigative report on the 20 something deaths within two days in that month was ever released (primarily from Lima company out of Ohio).

It was not a friendly area at the time.

I understand the Major Donahue (the one who has been so badly and unduly trashed around here) is planning on a trip to Leavenworth to see Sgt Evan Vela and Sgt Larry Hutchins very soon after his wife heals from her surgery.

At his own expense as well.

I wonder who else that has been trashing this patriot will go to such lengths?

Excellent question. The unwarranted attacks on Major Donohue make my blood boil.

On the other hand, the very idea that a retired major could exert “command influence” over an active lieutenant general shows the trashers don’t know what they’re talking about. Neither did they have any understanding of the kind of man that Major Donohue is.

It should be a simple matter of considering the source, but I find it impossible to let these kinds of attacks go unchallenged. Especially since I know very well the good that Major Donohue has done and continues to do.

Doesn’t it make one wonder why the attacks? Maybe, just maybe, it is a matter of pure ego. Major Donahue does his great work behind the scenes. He is no chest thumper but I can’t say the same for those who have incessently attacked him...and all without proving one allegation?

Now that Larry Hutchins is “out of California”, I wonder who and how many will leave CA and actually go see him.

I know one that will...a retired Marine Major who could care less about getting any “credit”. And at his own cost to boot.

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