Attorney: Haditha leak could lead to dismissal request

By: WILLIAM FINN BENNETT - Staff Writer | Tuesday, January 30, 2007 10:09 AM PST ∞

The leak of a detailed report into the killing of 24 Iraqis in Haditha in 2005 may have a wide-ranging impact on the prosecutions of eight Camp Pendleton-based troops charged in the incident, a longtime military attorney said Monday.

Depending on the outcome of the investigation, "a lot of legal motions will be filed to dismiss the charges," because the leaks and their press coverage could make it difficult for the defendants to obtain a fair trial, said Jane Siegel, a retired Marine Corps attorney.

The attorney, who now works in private practice in San Marcos, is representing another Marine who recently pleaded guilty for his role in the death of an Iraqi policeman in the village of Hamdania.

According to news reports, initially seen in the Washington Post, the Naval Criminal Investigative Service document is thousands of pages long and contains interviews with Marines and Iraqi villagers who allegedly witnessed the attack. The report also included many gruesome photographs of the victims.

A spokesman for Marine Corps Headquarters in Washington said Monday that the service's Inspector General's office has received a request from Lt. Gen. James Mattis to find the source of the leak. Mattis is the convening authority over the Haditha case as commander of Marine Corps Forces Central Command and Camp Pendleton's I Marine Expeditionary Force.

The spokesman, Capt. Jay Delarosa, said it's not immediately clear when the investigation will start.

Siegel said that if the source of the leak turns out to be someone in the military "that person could be subject to a court martial for obstruction of justice or impeding a trial."

If it turns out the person who leaked the information is a civilian, the Marine Corps Inspector General's office could only ask, not force, that person to talk with Marine investigators, Siegel said. The office could refer the matter to a U.S. attorney's office for a decision on whether to pursue a case against that person, she said.

Jack Zimmerman, an attorney representing Haditha defendant Lance Cpl. Stephen Tatum, said that regardless of who leaked the information, "I would want to see the fullest measure of sanctions available be applied."

He declined to state whether he plans to file a motion, saying he didn't want to discuss his strategy.

In a Jan. 6 Washington Post story, the newspaper cited testimony from a massive investigation report by the NCIS -- a report that was leaked to the Post by an undisclosed source. The witnesses allegedly said they had seen Marines gun down five men who were standing next to a taxi near the site of a roadside bomb explosion that left one of 13 Marines in a convoy dead on Nov. 19, 2005.

According to news reports, after the alleged shooting of the men in the taxi, the Marines in the convoy stormed several nearby homes in search of what they said they believed were insurgents. None were found, but by the time the smoke had cleared, another 19 people were dead.

Charges ranging from unpremeditated murder to negligent homicide were filed last month against four enlisted men in Pendleton's 3rd Battalion, 1st Marine Regiment in connection with the deaths. Four officers have also been charged with dereliction of duty and related offenses for the way they handled the initial investigation.

The eight men are with Camp Pendleton's 3rd Battalion, 1st Marine Regiment. The enlisted men are: Tatum, 25; Staff Sgt. Frank Wuterich, 26; Sgt. Sanick Dela Cruz, 24; and Lance Cpl. Justin Sharratt, 22. The officers are: Lt. Col. Jeffrey Chessani, 43; Capt. Randy Stone, 34; 1st Lt. Andrew Grayson, 25; and Capt. Lucas McConnell, 31.

Siegel said that defense attorneys for the accused may be right when they complain that it will be difficult for their clients to get a fair trial as a result of the leak and the resulting press coverage.

She said that when such a story comes out, it is immediately picked up by Internet bloggers, and military personnel around the world see it.

"And people assume that what is in the newspaper is true when it comes from a very credible source like the Washington Post," Siegel said.

Mattis is to be commended for calling for the investigation, she said.

"It shows real sensitivity on his part, trying to maintain the bright light of fairness," for these defendants, Siegel said.

A Washington-based attorney who specializes in military justice had a slightly different take on the effects of the leak.

"It's premature to say this will scuttle the prosecution," said Gene Fidell, who also serves as president of the Washington thinktank National Institute of Military Justice.

Officials with the organization say that it is a nonprofit dedicated to advancing the fair administration of military justice and fostering improved public understanding of the military justice system.

"The real question is whether the affected individuals can obtain a fair trial and the military justice system has a variety of protections," Fidell said.

One option is a change of venue, another is the right to examine potential jurors and "find out if they are indeed impartial or exposed to prejudicial pretrial publicity and if so get rid of them," he said.

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

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