General's aide refuses to testify in Haditha hearings

By: MARK WALKER - Staff Writer | Monday, May 7, 2007 10:25 PM PDT ∞

CAMP PENDLETON -- A Marine general's top aide is refusing to testify at a hearing that begins today to determine if an additional officer should stand trial for failing to fully investigate the killing of two dozen Iraqi civilians in Haditha.

The aide, Col. R. Gary Sokoloski, is invoking his 5th Amendment privilege that allows people to refuse to testify in court proceedings on the grounds that what they say could incriminate them.

Sokoloski is a lawyer who served as chief of staff for Maj. Gen. Richard Huck, who was in Iraq and in charge of Marine ground forces when the civilians were killed Nov. 19, 2005.

Charles Gittins, an attorney for Capt. Randy Stone, one of seven Camp Pendleton-based men charged with wrongdoing arising out of the Haditha killings, said he learned Monday that Sokoloski was refusing to testify.

It was Sokoloski who approved an initial news release about the killings that investigators subsequently said was "intentionally inaccurate" because it said the civilians had been killed by an insurgent bomb and not at the hands of the Marines.

Huck is expected to testify by videoconference on Wednesday from the Pentagon where he is now working in a planning position.

Another key witness in the case, Lt. William Kallop, will testify this morning during the first day of Stone's hearing. Kallop's testimony comes today because he is headed back to Iraq shortly.

Kallop is the officer who ordered a squad of Marines to assault a series of homes where 19 of the 24 people were killed. He was being deposed by attorneys for several of the defendants at the base Monday.

Kallop has been granted testimonial immunity, meaning anything he tells the attorneys cannot later be used to prosecute him for any crime. He is headed back to Iraq within a matter of days, although base officials could not immediately say when he will leave.

Kallop's deployment, as well as that of two or more other officers listed as witnesses in the Haditha case, is troublesome for some defense attorneys.

One of their concerns is that Kallop, who is considered a crucial witness for three enlisted defendants, may not be available to testify in person should those men be ordered to court-martial. The men are accused of homicide and could face life in prison if convicted.

"Live testimony and cross examination before a panel of military members could be a lot different than having someone testify by telephone," said Joseph Casas, a San Diego attorney assisting in the defense of 1st Lt. Andrew Grayson. "We want live testimony."

Another, more macabre, concern is how the cases could be affected if Kallop or any of the other witnesses were wounded or killed in Iraq.

A defense attorney who asked not to be named said that given the high-profile nature of the Haditha case and the seriousness of the charges, he believes all the witnesses should be kept close at hand.

"You would think these witnesses would be assigned to Camp Pendleton to assure their availability until all the cases are over," the attorney said. "The question is why is Lt. Gen. (James) Mattis allowing this handful to be deployed?"

Mattis is the convening authority over the case as head of Marine Corps forces in the Middle East.

Stone, along with Grayson, Capt. Lucas McConnell and Lt. Col. Jeffrey Chessani, is accused of dereliction of duty for allegedly failing to properly investigate the Haditha killings.

The enlisted men, Staff Sgt. Frank Wuterich and Lance Cpls. Stephen Tatum and Justin Sharratt, face homicide charges for the actual killings and the possibility of life in prison if convicted.

At issue for the enlisted men is whether they committed a war crime by violating the military's rules of engagement in the killing of the civilians after their convoy was attacked by a roadside bomb and small arms fire.

At issue for the officers is whether they willfully failed to ensure that an alleged violation of the law of war was fully investigated and accurately reported. All the defendants are from Camp Pendleton's 3rd Battalion, 1st Marine Regiment and each maintains they did nothing wrong.

Kallop's role in the incident came about as a member of a quick reaction force that responded to the bombing. After arriving and being told the Marines also were coming under small arms fire from a group of nearby homes, he reportedly gave Wuterich the go-ahead to storm the homes, according to a Naval Criminal Investigative Service account of the events.

Wuterich's lead attorney, Neal Puckett of Washington, D.C., said Monday that he was not as worried as some about Kallop's return to Iraq.

"I believe that if we go to trial before his scheduled rotation back to the U.S. that the Marine Corps will make sure he is available to testify in person," Puckett said. "I don't have any more concern for his safety than I do for any other Marine or soldier in Iraq."

Brian Rooney, an attorney for Chessani, said he knows of at least one other officer who has been granted immunity to testify who is now at sea as part of the 13th Marine Expeditionary Unit based at Camp Pendleton.

Based on past experience, it's widely assumed those Marines will wind up in Iraq.

"We requested that some be held back but if not that we at least be able to depose them before they left," Rooney said. "We are concerned, God forbid, that anything should happen to them."

But as a former Marine officer who also has served in Iraq, Rooney said he also completely understands why the witnesses are once again being placed in harm's way.

"We are fighting a war and we need these guys who have experience over there," Rooney said.

Stone's hearing is expected to last through Friday and will help determine whether the 34-year-old Maryland native is ordered to court-martial. Chessani's case is scheduled to start May 30.

Maj. Thomas McCann, the hearing officer assigned to Stone's case, is an assistant legal affairs officer at Miramar Marine Corps Air Station who recently returned from Iraq where he served as part of the staff for the 3rd Marine Aircraft Wing.

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