Murtha-inspired Haditha charges called 'feckless'

By WorldNetDaily

Reinstating or restarting charges against a Marine officer over the military firefight in Haditha, Iraq, in which two dozen Iraqis died could do serious damage to the public's confidence in the military system of justice, according to lawyers for the officer.

"Unlawful command influence is 'the mortal enemy of military justice.' It is the acid that erodes an accused's right to receive a fair trial and the public's confidence in the fairness of the system," says a legal brief filed by lawyers working on behalf of Lt. Col. Jeffrey Chessani.

"Remarkably, throughout the court-martial proceedings in the case, the government utterly failed to apprehend the seriousness of a charge of unlawful command influence. This colossal failure is evidenced by the half-hearted ... way in which it treated the matter ... and the feckless arguments it has presented ... in an attempt to reverse the well-supported and well-reasoned ruling of the military judge," the law firm said.

Chessani had faced charges that he failed to investigate properly the Nov. 19, 2005, incident in which 24 Iraqi men, women and children were killed after U.S. Marines were attacked by insurgents.

The charges – four Marines were charged with murder and another four with not properly investigating the attack – came about after the case was publicized in the media, where it was compared by war critics to the infamous My Lai massacre in Vietnam.

Defense lawyers contend insurgents deliberately attacked the Marines from hiding places where they surrounded themselves with civilians to use as shields. The defense insisted Chessani promptly reported the events to his superiors and that nobody in the chain of command believed there was any wrongdoing on the part of the Marines.

A Time magazine story alleging a massacre by the Marines, according to defense lawyers, was planted by an insurgent propaganda agent. Publishing of the story was soon followed by a May 17, 2006, news conference by Rep. Jack Murtha, D-Pa. The congressman announced he had been told by the highest levels of the Marine Corps there was no firefight and Marines "killed innocent civilians in cold blood."

"All the information I get, it comes from the commanders, it comes from people who know what they're talking about," Murtha told reporters at the time.

But the military judge assigned to the case, Col. Steve Folsom, dismissed the counts June 17 without prejudice, citing defense documentation of unlawful command influence – or the idea that a military judge may be influenced by what a commanding officer may have determined. Under those circumstances, prosecutors then must prove that the influence did not exist.

"The nature of the military makes its system of justice extremely vulnerable to improper influences and pressures; influences and pressures that are systemic in a military command environment," said the appeal brief filed by the Thomas More Law Center, which is defending Chessani.

"This is an important case not only for Lt. Col. Chessani, but for military commanders whose battlefield decisions should not be second-guessed by lawyers and for the military justice system as a whole. Indeed, the Haditha cases have caused a noticeable erosion of public confidence in our military system of justice," said Richard Thompson, president of the Law Center. "Affirming the military judge's ruling will go a long way to restoring the public perception of fairness in the military courts."

The appeal is being heard by a three-judge panel of the Navy and Marine Corps Court of Criminal Appeals in Washington. The Law Center has requested oral arguments in the case, but that ruling hasn't yet been issued.

Chessani has been under investigation and prosecution since March 2006 for his role at the battalion commander of 3rd Battalion, 1st Marines during the battle of Haditha. Of the seven other cases filed after the military investigation, cases against Lance Cpls. Stephen Tatum and Justin Sharratt, Capts. Randy Stone and Lucas McConnell and Sgt. Sanick P. Dela Cruz have been dropped. First Lt. Andrew Grayson has been acquitted, leaving only the case of Staff Sgt. Frank Wuterich untested in court and the appeal of Chessani's case.

The appeal brief said prosecutors are treating the issue of unlawful command influence as "a simple pushover."

"Indeed, Gen. James T. Mattis, USMC, the former consolidated disposition authority/convening authority responsible for referring the present charges to a general court-martial, testified under oath in this case that he was not concerned with appearances," the law firm said.

However, "It is a very serious matter, one going to the very heart and core of the military justice system."

The appearance of such influence was raised by the fact that Col. John Ewers, who was assigned to develop the prosecution in the case against the Haditha Marines, also was ordered to attend meetings at which members of the military judiciary decided how to handle the cases – multiple times.

"It is without serious contradiction that Col. Ewers' presence at these meetings was for the purpose of providing legal advice," the appeal brief said. "It should be noted that these meetings did not include defense lawyers for any of the accused; Appellee's defense counsel were never invited to any of these meetings, which inevitably took on a prosecutorial atmosphere."

Even Ewers expressed concern about the appearance of influence, at one point during his testimony saying, "I just didn't think it was a particularly good idea for me to get involved on giving advice on these cases. ... Just because from the appearance, in a nutshell."

Folsom's ruling said the government failed to prove that there was no inappropriate influence, resulting in the dismissal of charges.