Crossposted from Defend Our Marines

“Hutchins Motion”in the SSgt Wuterich Case

by Nathaniel R. Helms | August 28, 2010

Read the Loss of Counsel, Hutchins Motion (pdf).

The government’s case against the last Marine standing in the so-called “Haditha Massacre” debacle may run aground on the rocks and shoals of Marine Corps legal precedence, said his leading civilian attorney.

Former Marine Corps military judge Neal Puckett says Staff Sergeant Frank Wuterich was denied his inherent right to retain the military lawyer appointed by the Marine Corps to defend him so the case must be dismissed.

Wuterich, 30, of Meriden, Conn., faces 12 counts of voluntary manslaughter and related charges. On Dec. 21, 2006 he was indicted on 17 counts of unpremeditated murder, two counts of soliciting another to commit an offense, and make false official statements for his infantry squad’s actions at Haditha, Iraq. Since then the government has repeatedly reduced the charges when the evidence of massacre and cover up failed to materialize. If convicted Wuterich could still spend most of his life in prison. He has been waiting almost five years to go to court martial.

“He wants to get it over with,” Puckett said.

There is more at stake than mere legal precedence, Puckett explained. Also at issue is the overriding principal of balanced justice, a cornerstone of American jurisprudence. Why is the government privileged to leave in place a prosecution team long past the time ordinary personnel procedures dictate they move on, Puckett rhetorically asked, while insisting a critical Marine defense lawyer serving the same cause was forced into retirement over his repeated protests?

For instance, senior prosecutor Lt. Col Sean Sullivan, a reservist called to active duty to prosecute the Haditha Eight, has been retained on active duty so long he has obtained “sanctuary,” a circumstance that makes him eligible for full retirement and benefits after 20 years of interrupted service instead of having to wait until he is 62 like most other reservists, Puckett said. Sullivan has yet to obtain a conviction.

In another instance, Maj. Nicholas Gannon, another of the prosecutors, has been stationed at Camp Pendleton solely to prosecute Wuterich far longer than Marine Corps lawyers are usually left in one place, Puckett said.

To rectify the latest injustice Puckett intends to file a document Friday he coined the “Hutchins Motion,” a newly minted phrase that may serve as currency for generations of Marines to come, he said Thursday during a telephone interview from Camp Pendleton, Calif. The motion was prepared by Co-counsel and law partner Haytham Faraj, a retired major who was Wuterich’s military attorney before he retired, Puckett said.

Defense counsel involuntarily removed

At the heart of the Hutchins Motion is Colby Vokey, the retired Marine Corps lieutenant colonel involuntarily removed from defending Wuterich before he could complete his defense. [Read the Declaration in US vs. Wuterich.in a pdf.]

Vokey was detailed as military defense counsel in the case on Jan. 11, 2007, three weeks after Wuterich and seven other Marines were charged with a long laundry list of charges that added up to massacre and cover up. At the time Vokey was the Regional Defense Counsel for West Coast Marines. After the case was delayed by appeals in 2008 the Marine brass told Vokey he would not be permitted to extend his active duty service beyond Oct. 1, 2008, court records show.

It wasn’t the first time the Marine Corps tried to remove Vokey after he was appointed to defend Wuterich. He was fired as Regional Defense Counsel in September 2007 for assigning too many defense attorneys to the Haditha and Hamdaniya defendants then facing court-martial in the biggest scandals in Marine Corps history. At the time Vokey was one of three regional defense attorneys charged by the Marine Corps with supervising the defense teams within the various commands of the Marine Corps. At the same time he was defending Wuterich against 17 charges of unpremeditated murder at Haditha.

Vokey was fired by Colonel Rose M. Favors, then the Command Defense Counsel of the entire Marine Corps after conferring with the one-star Judge Advocate General, who reports to the Commandant of the Marine Corps. Favors told Vokey that assigning so many defense lawyers was unnecessary for them to receive adequate representation. He was rehired after the legal community inside and outside the Corps erupted in indignation.

He continued to be a thorn in the Marine Corps’ side after that skirmish. When the media hysteria proclaiming massacre and cover up spawned the largest investigation in Marine Corps history proved to be fallacious, the criminal complaints against six of the Marines from 3^rd Battalion, 1^st Marines, including Wuterich’s battalion commander and company commander, were dismissed. A third officer, an intelligence specialist recommended for a Bronze Star for his actions with the Thundering Third, was found not guilty of obstructing justice and trying to sneak out of the Marine Corps, the single note of hilarity in the otherwise gloomy dirge.

Puckett said the late date for entering the motion was not a ploy; rather it is an honest indication of the pain the Marine Corps’ procedural faux paux caused in the middle of the most complex case it ever prosecuted. The government has spent untold millions of dollars and thousands of man hours pursuing an incident the Iraqis call the “Haditha Accident.”

“We apologized to the court. We didn’t see it until we were in the last stages of preparing for court-martial and then we realized ‘Holy crap, we can’t use Vokey in this’ and he handles a third of our case load,” Puckett said.

Vokey continued to represent Wuterich after he retired on a part time basis until the defense team discovered he had a conflict of interest because the Texas law firm he joined also represents Cpl. Hector Salinas, a former grenadier in Wuterich’s squad and a designated witness for the prosecution. That tenuous association makes it legally impossible for Vokey to cross-examine Salinas during Wuterich’s court-martial, something Vokey has been preparing to do for almost four years. Therefore Vokey has no option but to withdraw from the case, a potentially fatal blow for the defense, Puckett opined.

“If he [military judge Lieutenant Colonel David Jones] finds in our favor the defense will ask the judge to dismiss all the charges against Wuterich, arguing that his defense has been compromised,” Puckett said, adding that Vokey was the only defense lawyer to go to Iraq and witness the scene of the killings. “The prosecution will appeal the judges’ ruling, it wouldn’t drop the charges.”

Vokey isn’t now available only because the Marine Corps forced him to retire over his strongest protestations, Puckett added.

“If he hadn’t had to take a job with the first law firm he could find to take care of his family after being forced to retire, the conflict would not have occurred. Vokey actually went to Haditha with Wuterich and covered the ground, examined the location where the ambush occurred, examined the alleged crime scene. That is all essential to our defense and now Wuterich has been deprived of a critical member of the team because of the Marine Corps’ insistence he retire,” Puckett explained.

The judge could rule anytime after the formal motion is submitted Friday and Wuterich’s trial date still set for Sept. 13, Puckett said.

The Hutchins decision

In Hutchins’ case, the appellate court overturned the infantryman’s conviction because the Marine Corps allowed his appointed defense co-counsel to obtain discharge in the critical days before Hutchins was tried.

“The multiple errors and inattention leading to deprivation of counsel in this case reflect something of a perfect storm,” the court said.

In an 8-1 decision the highest court of military judges ruled that the departure of one of his primary attorneys shortly before the court-martial began resulted in an unfair trial. It decided the Marine Corps legal system failed Hutchins when it allowed the discharge of one Capt G. Bass; the Marine Corps lawyer appointed co-counsel in Hutchins’ defense.

“On 31 Aug 2006 … Captain Bass tendered a request to resign his commission for an effective date of 1 July 2007,” according to court records.

Bass however did not represent Hutchins after May 25, 2007 when he began a terminal leave period that ended upon his release from active duty on July 1, 2007. Hutchins was scheduled for court-martial in July. Bass also failed to inform his client he was leaving until the day he disappeared from Hutchins’ defense team for good, the court record shows.

Puckett called the action an “egregious error” that revealed itself in what happened to Hutchins after his lawyer was discharged.

Thirty-five days later Hutchins was convicted of murder for leading his squad in the alleged April 2006 kidnapping and execution of an Iraqi civilian in Hamdaniya, Iraq. On Aug. 3, 2007 he was sentenced to 15 years in Leavenworth. His sentence was later reduced to 11 years by a clemency board, court records reveal.

After having his conviction overturned Hutchins was restored to his former rank and remains on duty in Calif. pending the appeal decision. Meanwhile the government still asserts the victim was abducted from his home and killed by Hutchins and his men. It alleges his squad placed a shovel and weapon next to the dead man so it would appear he was planting an improvised explosive device. Hutchins was also found guilty of conspiracy to commit murder, making a false official statement and larceny.

Both of the Marines convicted with him apparently had adequate counsel. Cpl. Marshall L. Magincalda was found guilty of larceny, housebreaking and conspiracy to commit murder, kidnapping, larceny, obstruction of justice, making a false official statement and housebreaking. He was sentenced to 448 days confinement and reduction in rank to Private. He had been in the brig at Camp Pendleton for 450 days and therefore released immediately. Cpl. Trent D. Thomas was sentenced to reduction in rank to Pvt. E-1 and a bad conduct discharge.

According the appellate court’s April, 2010 Hutchins decision:

• “After this early May 2007 meeting between Captain Bass and the appellant [Hutchins], the appellant never saw Captain Bass again.”

• “The appellant was never advised that he could request that Captain Bass be extended on active duty to complete the appellant’s trial.”

• “The appellant never signed a document releasing Captain Bass from active duty

• “Captain Bass never ‘requested’ that the appellant release him as his counsel; instead, Captain Bass presented the situation to the appellant as one in which there was no other option to remain on active duty.”

The government has appealed the Hutchins decision to the U.S. Court of Appeals for the Armed Forces; the highest court a military member can seek a remedy before the issue goes to the US Supreme Court.

Puckett said the Marine Corps made the same egregious errors when it forced Vokey to retire.

“Because it is a new precedent doesn’t make any less of a law, the law is the law,” Puckett said. “The Marine Corps made a mistake forcing Vokey to retire.”

The prosecution has already stopped the proceedings several times while it appealed motions incited by its relentless prosecution of the last enlisted man facing court-martial. The case was stopped cold for almost two years while the prosecution fought it out with CBS television over out takes Wuterich made during his controversial appearance on 60 Minutes the broadcasting company refused to give up to the prosecution. Ultimately CBS prevailed in that fight after the issue went all the way to the U.S. Court for the Armed Forces in Washington, D.C.

Wuterich was charged on Dec. 21, 2006. Since then the last combat troops have left Iraq, making the war essentially over. At his preliminary hearing, Wuterich said he regretted the loss of civilian lives but believed he was operating within military combat rules when he ordered his men to attack.

Wuterich is accused of commanding a squad of Marines who killed 15 civilians – primarily women and children – as well as nine insurgents operating among them after his 12-man squad was ambushed at Haditha. During a lightning counter-attack Wuterich and three of his men swept through two houses where the civilian deaths occurred.

Last Wednesday, Iraqi insurgents indiscriminately killed more than 50 people in bombings and shootings in 11 towns and cities across the country.

__________________________________________

Nathaniel R. Helms
Defend Our Marines
19 August 2010

Note: Nat Helms is a Contributing Editor to Defend Our Marines. He is a Vietnam veteran, former police officer, war correspondent, and, most recently, author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).

Justice! Innocent until proven guilty! The right to a fair trial!

These are basic civilian rights our warriors have sworn to defend. These are also the rights our soldiers are not guaranteed while serving in our country’s military. A military defendant is “presumed guilty” and must prove his or her own innocence. Left with the burden of not only finding adequate legal representation, but also paying for it.

While our enemies are given civilian rights, provided with teams of attorneys paid for with our tax dollars, and given civilian trials; our warriors are read their Article 31 Rights on the battle field, and now sit in prison. They are not given court appointed attorneys. Their families must beg, borrow and mortgage their homes in order to retain an attorney that will defend their loved ones from the very country, for many generations, our sons and daughters have proudly fought and died for.

Most families send their loved ones to war with the prayer, “God, please watch over our soldiers and bring them home safely”. Today, America has taken a different approach. We allow the media to watch over our soldiers, bring them home labeled as murderers, and adorn them with steel bars, handcuffs and shackles.

The Warrior Fund

Crossposted from WarChronicle.com

DEFEND OUR MARINES

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“I had a feeling there was an agenda.”
– LtCol Jeffrey Chessani, USMC (Ret.)

By Nathaniel R. Helms | July 21, 2010

This is the first in a three-part series. Read part two here. The third part is coming soon.
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Retired Marine Corps lieutenant colonel Jeffrey Chessani broke more than five years of silence Tuesday to tell Defend Our Marines what it was like to finally leave the Marine Corps he loves without ever being entirely exonerated of failing to adequately investigate an alleged massacre that never happened.

“Praise God, this has taken care of everything,” Chessani said during an in-depth telephone interview from his home near Camp Pendleton, California. In the background the tiny voices of some of his seven children could occasionally be heard.

After more than four years of legal wrangling, Chessani was forced to retire last week after Secretary of the Navy Ray Mabus accepted a December 2009 ruling by a Camp Pendleton military board of inquiry that found Chessani was not guilty of misconduct after more than 23 years of exemplary service. The BOI ruled Chessani must retire anyway because he displayed “substandard performance” by failing to conduct a more detailed investigation of the civilians killed…” as a result of a house clearing counter-attack by four of his Marines.

The criminal charges against Chessani were dismissed in June 2008 when Marine Corps military judge Colonel Steven Folsom ruled that Chessani was the victim of undue command influence by General James Mattis while the distinguished general was considering whether to charge Chessani and his men with crimes. After two appeals courts refused to overturn Folsom’s ruling, Chessani was forced to endure a Board of Inquiry last December to determine whether he would be allowed to retire at his present rank.

I’m not bitter

During 2005 and 2006 Chessani commanded 3^rd Battalion, 1^st Marines (3/1)–the Thundering Third–a reinforced infantry battalion of roughly 1,900 Marines and attached Army and Iraqi units tasked with pacifying 4,000 square miles of Al Anbar Province when the incident at Haditha erupted on November 19, 2005.

“I’m not bitter. I am not necessarily glad these things happened, but it worked out for the best,” Chessani said. “I was on my third deployment in three years and got prideful. I thought I might be selected for a top level school and colonel so I decided to give it a try. Before my third deployment we were looking at retirement when I came back. The deployments were so hard of my family. That was going to be the plan. Now we can do it.”

Chessani completed his final day of active duty service on July 16, 2010, more than four and a half years after he was charged with dereliction of duty and orders violations for allegedly covering up the deaths of 24 Iraqi citizens killed by Marines under his command at Haditha. The Iraqis–including women and children–died in a Marine counterattack after insurgents, hiding among them, triggered an IED ambush that killed one passing Marine and left two others severely wounded.

The IED ambush was part of a coordinated city-wide insurgent attack that shattered the morning dawn. The embattled Marines’ platoon leader ordered four men from the weakened squad to clear houses of gun-wielding insurgents who were firing on the Marines. The coordinated counterattack took less than a minute to clear two houses where the ambush was sprung, using rifle fire and grenades. The infantrymen’s devastating textbook assault was straight out of Marine Corps training manuals that didn’t address what to do when the enemy is using innocent civilians for shields. That oversight would cost Chessani and his Marines dearly.

On December 19, 2006, after refusing multiple prosecution offers to accept non-judicial punishment and early retirement instead of a career ending court martial, Chessani was charged with dereliction of duty and two counts of orders violations for failing to adequately investigate and report the incident. By doing so he placed his retirement pension, reputation, and family’s welfare on the line.

Isolate the force they want to destroy

“My Marines had done nothing wrong. I had done nothing wrong. The regimental commander Colonel [Stephen] Davis and Major General [Richard] Huck [2^nd Marine Div. commanding general] had all the information in their hands by either the evening of the 19^th or the next morning,” he said. “My operations officer and S-2 [intelligence officer] then personally briefed them at Haditha Dam a day or two later. We were told we were doing a great job. We received notes of congratulations from General Huck and other officers at division.”

Then everything crashed down around his command, Chessani said. In late February it became apparent that the senior commanders in Baghdad were looking for scalps to appease a Time magazine reporter named Tim McGirk that was hounding the senior commanders in the Green Zone with allegations of murder and mayhem at Haditha by unrepentant 3/1 Marines. First an Army colonel came for a look, followed by a team of investigators led by an Army major general, Chessani said. Meanwhile the first of dozens of Naval Criminal Investigative Service special agents began ruthless interrogations of the 3/1’s enlisted men in a urine soaked dungeon beneath Haditha Dam. It was a text book effort of divide and conquer.

“It was just like the battlefield,” Chessani explained. “They [the Marine Corps prosecutors] wanted to isolate the force they wanted to destroy. That is why they did it. That is what Marines are taught. When I tried to explain, to put the ambush at [Routes] Chestnut and Viper in context they said ‘I don’t want to hear about that.’ All they wanted to know was what happened at the IED site. There were several significant incidents going on that day. We destroyed an insurgent safe house down the road with bombs the same morning, turned it into dust. There could have been civilians killed there. They didn’t care; they didn’t want to hear about that. We found insurgents buried in shallow graves still in their weapons and equipment. We had to bury dead insurgents wearing ammunition vests because they started to stink. They didn’t want to know how it was related to what happened on Viper and Chestnut. I had a feeling there was an agenda.”

Chessani was the highest ranking Marine charged with crimes stemming from the November 19, 2005 incident in the war-torn province. In addition to Chessani, eight other Marines, five enlisted men and three officers serving under him were charged with unpremeditated murder, manslaughter, aggravated assault, dereliction of duty, lying to investigators and a host of lesser offenses. Instead of taking the offer for a slap on the hand so the Marine Corps could “throw them under a bus”, Chessani chose to close ranks with them.

It was not a tough decision to make, Chessani said. By then he knew that the brotherhood which ostensibly binds all Marines together apparently didn’t include the generals and colonels who were supposed to watch out for the welfare of their men. Major General Richard Huck, Chessani’s immediate superior, 2^nd Regimental Combat Team commander Colonel Stephen Davis and 2^nd Marine Division Chief of Staff Colonel Richard Sokoloski were already looking for alibis.

The most devastating day of my life

Ultimately both colonels “took the 5^th” to avoid prosecution and Huck chose to claim ignorance, ensuring Chessani and his men were going to become unwilling speed bumps in the Marine Corps’ futile attempts to put its best face forward. Eventually all three officers received letters of censure from the Secretary of the Navy before they were allowed to retire with full rank and benefits. Chessani knew what that meant for him and so did his wife. It crushed her to see him and his brave Marines pilloried, Chessani said.

Instead of promotions and honors Chessani, now 46, and his eight subordinates were accused of participating in the unprovoked massacre of 15 innocents and the suspicious killings of at least nine suspected insurgents and then conspiring to cover the incident up. A few months after the charges were leveled on December 19, 2006, one enlisted Marine indicted for murder and assault accepted immunity to testify against his squad mates. Another enlisted Marine, never charged but frequently named as a possible suspect, ended up working in a cushy billet for the prosecution. As expected, he later surfaced long enough to testify against his fellow Marines. It was a dirty business. In the end their rambling, disconnected testimony was soundly discredited.

Now, more than four and a half years later one enlisted Marine, Staff Sergeant Frank Wuterich, the squad leader who led the counterattack against the two houses where the civilians died, still faces 12 counts of involuntary manslaughter. Wuterich’s court martial is scheduled to begin September 13^th at Camp Pendleton.

The charges initially surfaced in an inflammatory March 2006 Time magazine report claiming Chessani’s Marines executed an unprovoked assault on two houses harboring sleeping women and children in revenge for the IED explosion near their homes. Relying primarily on the word and video provided by two known insurgent operatives to make the charge, Time reporter Tim McGirk painted a blood spattered scene full of cold blooded Marine killers bent of revenge for the death of their comrade. Privately, in a long stream of e-mails to various senior commanders and public affairs officers in Baghdad McGirk claimed Chessani’s young Marines had literally executed the victims after hunting them down like rabbits. In the subsequent furor Chessani and his men were singled out for more than three years of accusations, innuendo and character assassination by the world press. Through it all Chessani never uttered a public word.

“We heard McGirk wanted to talk to us, to visit Haditha. I didn’t want to talk to the guy but we invited him. After an ABC reporter–I believe Bob Woodruff–was wounded by an IED (January 29, 2006) he said he wasn’t going to come. We received an email that said he had no more interest in coming. He never did.”

Apparently it didn’t matter. McGirk wrote his specious stories anyway. They stirred up a political firestorm. Taking their cue from the late Pennsylvania Congressman John Murtha and a vociferous press, former President George Bush and former Secretary of Defense Donald Rumsfeld took a special interest in seeing the Marines were prosecuted. Chessani said he knew he was going to be relieved and probably court-martialed for “something” when he got the word President Bush had asked for a command briefing while the battalion was standing down at Haditha Dam in February or March, 2006.

“When I was in theater I heard they [the Marine Corps] were briefing the President of the United States. I knew I was going to be relieved and probably charged. I even told my X.O. [executive officer] to be standing by if I was relieved. But I didn’t expect what happened. Some things I heard second-hand, like: ‘Don’t do anything to the Marines until after we (senior Marine Corps commanders) have briefed Congress.’ I thought, ‘What does that have to do with the Marine Corps? They are not in my chain of command.’”

In late March, soon after the battalion returned to Camp Pendleton from Iraq, 1^st Marine Division Major  General Richard F. Natonski summoned Chessani and several members of the battalion staff to his office. Chessani said he was expecting the call.

“They called me and told me to bring Captain [Lucas] McConnell, the C.O. of Kilo Company with me. Then they called again and told me to bring Captain [James] Kimber, commander of India. I thought that was too much. I wondered what they wanted him for. [When] I asked and they said they didn’t know. I was also told to bring my X.O. and the Sergeant Major.”

The next morning after a terse meeting with Natonski the three officers were relieved of their commands. On April 7, 2006 the Marine Corps issued a press release stating they were relieved “due to lack of confidence in their leadership abilities stemming from their performance during a recent deployment to Iraq.”

“It was the most devastating day of my life,” Chessani recalled.

After a time, Chessani obtained civilian counsel to support his appointed Marine Corps defense team. The Thomas More Law Center in Ann Arbor, Michigan, at the urging of law center associate and former Marine Corps lawyer Brian Rooney, agreed to represent Chessani pro bono. Its website (www.thomasmore.org) says the advocacy law firm “defends and promotes America’s Christian heritage and moral values, including the religious freedom of Christians, time-honored family values, and the sanctity of human life.” Rooney, a fellow Marine who served with Chessani at the battle of Fallujah in 2004, said he was determined to find justice for the brilliant Marine officer. Thomas More Law Center provided a possible solution.

“It really was a Godsend,” Chessani said. “I wasn’t expecting it. I didn’t know Brian was at Thomas More. The letter saying they wanted to represent me didn’t mention him; it just said it wanted to represent me. I was grateful to accept their help. After that I didn’t talk to anybody. I learned to trust God more than men.”

Rooney has repeatedly said the pressure to prosecute Chessani and the other Marines came from on high, at the level of the Commandant or higher. In his view there is no other explanation for Natonski cashiering one of the most experience infantry officers in the Marine Corps when they are so desperately needed to fight the war. Chessani had spent almost three years fighting in Iraq by the time he was dropped in the grease.

“I don’t know and I probably never will know why,” Chessani said. “That was too far above my pay grade.”

Rooney, now running for the U.S. House of Representatives as a Republican from Michigan, believed that the pressure to prosecute the Haditha Marines came from a Defense Department so consumed by fears of bad press that it allowed it warriors to be sacrificed on the altar of public relations. Later revelations would prove his suspicions correct.

“It is like playing a pickup basketball game with your big brother,” Rooney reasoned. “You win so he says you have to play another game or he will beat you up. You keep playing and winning until he finally wins. The same thing happened to Chessani.”

Read part two of the interview here.

Coming soon: Part III,  The White Car and other mitigating evidence that was never revealed.

Crossposted via FOXNews.com

Published July 19, 2010 | Associated Press

CAMP PENDLETON, Calif.

A Camp Pendleton Marine officer who was accused of failing to investigate the killings of 24 Iraqis by a squad in the town of Haditha has left the service.

Attorney Jon Shelburne says Lt. Col. Jeffrey Chessani’s last day in the Corps was Friday.

Shelburne said Monday that Navy Secretary Ray Mabus recently upheld a ruling that the former battalion commander displayed substandard performance in response to the deaths but should maintain his rank.

Chessani, of Rangely, Colo., was accused of failing to investigate the 2005 killings but a judge dismissed a charge of dereliction of duty.

In all, eight Marines were charged with murder or failure to investigate. Six had charges dropped or dismissed, and one was acquitted. The squad leader faces reduced charges of voluntary manslaughter and other crimes.

Below is a full copy of the Memorandum submitted to the Clemency Board on behalf of PFC Corey Clagett. It came to our attention yesterday, June 8, 2010, that the Board has denied clemency. Please take the time to read the memorandum so you can understand the implications of the Board’s decision.

Read the petition in PDF format.