Lack of autopsies in Haditha case presents challenges

By: WILLIAM FINN BENNETT - Staff Writer | Monday, June 19, 2006 11:32 PM PDT ∞

CAMP PENDLETON ---- If investigators can't examine the bodies of 24 unarmed civilians allegedly killed by Camp Pendleton Marines in Haditha in November, building a case against the accused could be difficult, according to two military law authorities.

Families of all the victims have declined U.S. and Iraqi requests to exhume the bodies for autopsy, according to news reports. In most cases, exhumation is prohibited under Islamic law.

"You can prove murder without a body, but it's much more difficult," Gary Solis, a 26-year Marine Corps veteran and former judge advocate, said in a Monday telephone interview.

No one has been charged in the case, which centers on allegations that a dozen Marines from the Pendleton-based 3rd Battalion, 1st Marine Regiment's Kilo Company killed the civilians, including women and children, after a roadside bomb killed a young Marine in their convoy.

Autopsies could show whether the victims were shot at close range, execution-style, as some survivors have alleged.

Earlier this month, Marine Corps Commandant Michael Hagee said there is a set of photographs taken by a Marine intelligence team that examined the scene of the killings in Haditha. News reports have said the photos show that civilians in at least two houses were shot in the head and torso at close range.

A Washington attorney representing one of the men under investigation said last week that those photos would not necessarily prove anything. Attorney Neil Puckett said his client, Staff Sgt. Frank Wuterich, told him the Marines invaded two homes after taking fire from one of the houses. Wuterich was the top-ranking enlisted man in Haditha that day.

Puckett said that after throwing grenades into the houses, Marines fired their weapons as they entered the door.

"Imagine a room full of smoke (from the grenades), people might be at various distances, as close as inches," he said.

For the defense, obtaining autopsy reports could be especially important, said Solis, who now teaches the laws of war at Georgetown University Law Center.

Defense attorneys "may want the bodies to back up their defense of random firing," said Solis, who is not representing anyone in the case.

After the killings, Haditha lawyer Khaled Salem Rasayef said he lost several relatives in the alleged massacre.

In an interview with the Associated Press earlier this month, Rasayef said he and his family and other victims' families have refused requests to exhume the bodies for autopsies.

"No way we can ever agree to that," Rasayef said.

Under Islamic teaching, exhuming bodies is generally prohibited. It is allowed on a case-by-case basis, sometimes after a fatwa, or edict, from a senior cleric allowing it to proceed.

However, investigators were able to obtain family permission for exhumation of the victim's body in an April 26 case involving another group of Camp Pendleton Marines.

Early this month, the body of the Iraqi man allegedly kidnapped from his home and killed was exhumed and taken to Dover Air Force Base in Delaware for a forensic examination and autopsy.

The men in that case are from the 3rd Marine Battalion, 5th Marine Regiment and are in a Camp Pendleton brig. The investigation into that case continues.

In the Haditha case, photos could be used in a trial, but only autopsy results would provide solid proof of the cause of death, Solis said.

"Photos won't do," he said. "How are you going to prove the person is dead without a body ---- a coroner's report shows a person is dead and how the person was killed. Otherwise you have to prove (things) based on statements of the survivors or the Marines themselves."

However, the photographs could prove incriminating, if they show that several of the people were shot at point-blank range, he said.

"If you have three of the bodies with holes between the eyes, that is evidence that this was not a random shooting," Solis said. "Random victims are not shot between the eyes."

Even if investigators are able to convince the families to allow exhumations, so much time has elapsed that deterioration of the bodies would make a medical examiner's work much more difficult, the head of the National Institute of Military Justice said Friday.

"You have to establish that the killings were unlawful and without any evidence of the nature or cause of death, it's going to be a very high hurdle for the prosecution to overcome," institute Executive Director Kathleen Duignan said. The nonprofit group works to improve public understanding of the military justice system and is mostly composed of former military attorneys.

"Photos will be a piece of evidence, but without having autopsy results to link to the photos, it will make it more difficult to prove," Duignan said.

Despite those obstacles, "circumstantial evidence can be quite convincing," she said. "They may be able to obtain witness testimony as well as other physical evidence at the scene."

Contact staff writer William Finn Bennett at (760) 740-5426 or wbennett@nctimes.com.