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MILITARY: Court upholds dismissal of Haditha prosecution
"In a key ruling, a military appeals court has upheld the dismissal of dereliction of duty charges filed by the Marine Corps against the highest-ranking officer accused of wrongdoing in connection with the 2005 shooting deaths of two dozen civilians in Haditha, Iraq.
The unanimous decision by the United States Navy-Marine Corps Court of Criminal Appeals in Washington upholds a finding that unlawful command influence improperly tainted the government's case against Lt. Col. Jeffrey Chessani.
On its face, the ruling would seem to apply to all eight of the Camp Pendleton Marines charged with wrongdoing at Haditha, even though six of those men had already been exonerated.
Last June, the military judge presiding over Chessani's prosecution at Camp Pendleton, Col. Steven Folsom, dismissed two counts of dereliction of duty against Chessani for his alleged failure to order a full-scale investigation into the Haditha killings that occurred Nov. 19, 2005.
Folsom ruled a senior legal adviser to then-Lt. Gen. James Mattis, who was overseeing the Haditha prosecutions, should not have had any role in shaping the case.
The adviser, Col. John Ewers, had been one of the military's initial investigators into the killings and was a potential prosecution witness. Folsom ruled Ewers'
mere presence at meetings between Mattis and prosecutors created an unacceptable perception of unlawful command influence in the general's decisions.
"Praise God and amen," was the 43-year-old Chessani's reaction Tuesday when informed of the ruling by one his attorneys, Brian Rooney at the Thomas More Law Center in Ann Arbor, Mich.
"He was very happy and appreciative," said Rooney, whose firm provides free representation to Christians. Lt. Col. Dave Griesmer, a Marine Corps spokesman, said the ruling that can be appealed to the Court of Appeals for the Armed Forces in Washington was being reviewed "to determine our responsibilities as the ... disposition authority."
The three Marine officers who comprise the Navy-Marine Corps Court of Appeals ruled prosecutors failed to show Ewers' participation in the case did not taint it and therefore the dismissal of charges by Folsom was proper.
"It is the duty of the military judge to act as the last sentinel and protect the court-martial from the pernicious effects of unlawful command influence," the appeals court concluded.
Rooney said he hopes that the Marine Corps decides against any appeal or move to reopen the case. "We have always said that we have had the luxury of defending a truly innocent man and remain confident the facts are on our side," Rooney said. "I wouldn't be surprised if they do appeal, but I do believe it would be a waste of military resources and taxpayer dollars. The Marine Corps needs to move on and Lt. Col. Chessani needs to move on."
Besides appealing the ruling, the Marine Corps has the option of asking that an entirely new investigation be opened into Chessani's role in the Haditha incident.
If it takes that course, it would have to find a convening authority outside of Camp Pendleton who would then decide whether reopening the case is justified.
Four Camp Pendleton officers and four enlisted men were charged with crimes at Haditha. All but Chessani and Staff Sgt. Frank Wuterich, who led his squad in the assault that led to the civilian deaths following a roadside bombing, have since been exonerated.
Wuterich's attorneys have said they plan to seek a dismissal of the nine counts of manslaughter and related charges against their client on the same unlawful command influence found in the Chessani prosecution."