Haditha prosecutors may not need to name all dead Iraqis

By: MARK WALKER - Staff Writer | Tuesday, January 2, 2007 9:39 PM PST ∞

NORTH COUNTY -- The fact that four of the 24 Iraqi civilians allegedly killed by a group of Marines in Haditha, Iraq, in 2005 have not been identified by prosecutors may mean that there isn't a solid enough case to tie those victims to the accused, a military law expert said Tuesday.

Gary Solis, a military law professor at Washington's Georgetown University and a former Marine Corps lawyer and judge advocate general, said the government's not naming the four may be meaningless.

"It's speculation, but if I'm the prosecutor and the evidence is weak with regard to one victim of a multiple crime, I might not charge that case," he said. "Having 20 identified victims is as good as having 24."

Solis' comments came after Marine Corps officials last week acknowledged that 24 Iraqis died -- allegedly at the hands of the four Marines from the 3rd Battalion, 1st Marine Regiment's Kilo Company -- but that only 20 had been identified in charging documents.

"The charges that have been preferred reflect the deaths that are supported by the investigation at this point," Marine Maj. Jeff Nyhard said in a prepared statement. "The investigation is ongoing and there is always the potential for additional charges."

Another possibility, according to Solis, is that there might not be sufficient evidence to establish that the four unnamed Iraqis were innocent civilians, as some witnesses contend that all the victims had been.

In charging documents filed Dec. 21, Marine Corps prosecutors allege that the civilians died under the direction of Staff Sgt. Frank Wuterich, who is accused at one point of ordering his men to "shoot first and ask questions later."

Attorneys for Wuterich and three other enlisted Marines, Sgt. Sanick Dela Cruz and Lance Cpls. Stephen Tatum and Justin Sharratt, contend their clients did nothing wrong in Haditha on Nov. 19, 2005. The men face unpremeditated murder and negligent homicide charges.

The attorneys contend that the Marines at Haditha followed established "rules of engagement" after a large, hidden bomb in the roadway destroyed one of four Humvees passing through the city that morning. The explosion killed 20-year-old Lance Cpl. Miguel Terrazas.

In addition to the four enlisted men, four officers in the battalion's chain of command at the time face dereliction of duty charges for allegedly failing to adequately investigate what happened.

Grayson speaks

One of those officers, 25-year-old 1st Lt. Andrew Grayson, told an Ohio newspaper over the weekend that he was saddened by the charges against him.

"I'm sad, taken aback and definitely surprised by the allegations," Grayson, a native of Springboro, Ohio, told the Dayton Daily News. "I know that this is going to take away from all the wonderful things that the Marines on the ground have done there."

Grayson, an intelligence officer, said that he had been ordered to investigate the bombing that killed Terrazas and the Marines' report that they then had come under small-arms fire. It was those two events that led to the killing of five men who came upon the scene in a taxi cab and the eventual slayings, with grenades and small-arms fire, of an additional 19 Iraqis in Haditha, including nearly a dozen women and children.

Like the enlisted men, civilian attorneys hired by the accused officers maintain their clients are innocent.

With the case still under investigation, some Marines not charged in the Haditha incident have hired attorneys as a precautionary step. Jeremiah Sullivan, a San Diego attorney, said last week that he is representing a Marine he would not identify and who has not been charged.

Solis, the military law professor, said that retaining an attorney is a wise step for any service member who worries that he may be implicated.

"With the Marine Corps indicating at least that more could be charged, it's a prudent move for anyone within the scope of the investigation," he said.

Accused get more help

This week, the Marine Corps is expected to name military defense attorneys who will assist the civilian attorneys hired by the eight Marines charged in the Haditha incident.

Last week, the civilian defense attorneys were given computer disks containing thousands of pages of investigative material, which they say will take them weeks to sift through.

The next formal step for each of the accused will be pretrial court sessions known as Article 32 hearings. Prosecutors and defense attorneys will present their cases, and a hearing officer will then recommend whether their cases should advance to courts-martial.

Pretrial hearings over evidentiary matters and related issues could take place before the Article 32 hearings, which are not expected to begin for two to three months.

For any cases that are not resolved at the Article 32 hearing or by a plea agreement and that move forward to courts-martial, the defendants are entitled to a trial before a military judge or jury. If they opt to have their fate determined by a jury, the defendants have the right to demand that one-third of the panel include their peers, meaning, in the cases of the enlisted men, that one-third of the juries would composed of troops who are not officers.

As the convening authority over the case, 1st Marine Expeditionary Force Lt. Gen. James N. Mattis would have final say on the selection of the jurors.

If a case results in a conviction, Mattis has the power to throw out a guilty finding, suspend all or part of a sentence or lower a sentence.

A conviction at trial is subject to an automatic appeal to the Court of Criminal Appeals if the sentence includes confinement for a year or more, a bad conduct or dishonorable discharge, or a dismissal from the service in the case of a commissioned officer.

-- Staff writer William Finn Bennett contributed to this report. Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

First name only. Comments including last names, contact addresses, email addresses or phone numbers will be deleted. All comments are screened before they appear online, so please keep them brief. Comments reflect the views of those commenting and not necessarily those of the North County Times or its staff writers. Click here to view additional comment policies.