Wuterich hearing to address Haditha issues

By: MARK WALKER - Staff Writer | Saturday, August 25, 2007 10:05 PM PDT ∞

CAMP PENDLETON ---- More answers to questions arising from the largest civilian killing incident since the start of the Iraq war are expected this week when the man at the center of the case, Staff Sgt. Frank Wuterich, makes his first court appearance since being charged with murdering 18 people in the city of Haditha nearly two years ago.

"He has nothing to hide," Wuterich's lead attorney, Neal Puckett, said last week. "We have faith that the military justice system will support split-second decisions made during combat," said Puckett.

For Wuterich, a jail sentence isn't the only thing at stake. Also in the balance are history books, and whether they will record him as the only mass murderer in Marine Corps history or as a relatively inexperienced squad leader carrying out orders.

The Haditha incident is the watershed case among four murder allegations filed against Camp Pendleton-based troops since the war began in March 2003, prompting the Marine Corps to order increased battlefield ethics training throughout the service.

Wuterich's hearing starts in a base courtroom Thursday morning before Lt. Col. Paul Ware, who is presiding as the case's investigating officer. Ware will help decide whether Wuterich, a 27-year-old Connecticut native and a married father of three daughters, should be ordered to trial on some or all of the charges he faces.

Ware did the same job earlier this summer for two other men who had faced murder charges in connection with the deaths in the city of Haditha, Lance Cpls. Justin Sharratt and Stephen Tatum.

Ware ruled last month that Sharratt was acting within the rules of engagement because of his belief those men were insurgents and that the charges against him should be dropped. Camp Pendleton's Lt. Gen. James Mattis, who has the final word in the case, upheld Ware's ruling.

On Thursday, Ware recommended to Mattis that the charges against Tatum also be dismissed, citing insufficient evidence and suggesting that he was simply following his squad leader, Wuterich.

What happened
The hearing will include accounts of the morning and early afternoon of Nov. 19, 2005, when Wuterich and his squad were on a resupply run to a traffic checkpoint in Haditha.

During the short journey from their base, a roadside bomb exploded, destroying a Humvee in the four-vehicle convoy and killing a lance corporal.

Moments later, a car that drove up was stopped by the Marines. Five unarmed Iraqis who emerged from the vehicle were shot by Wuterich and Sgt. Sanick Dela Cruz, according to testimony from Wuterich and government accounts. Which man shot first and whether the Iraqis were fleeing have been key points of contention.

Dela Cruz was charged five counts of murder, but saw those dismissed in exchange for his testimony.

Within minutes, Wuterich and several of his men attacked two nearby houses. The men have said they believed the bomb's "triggerman" and other insurgents were hiding in a house and using it as a base for a rifle attack on the Marines.

During those attacks on the houses, 12 people were killed, including several women and children.

A few hours later, Wuterich and Sharratt stormed another house where they have said they believed insurgents were hiding. Inside that home, the facts and testimony show they killed four brothers in a bedroom, resulting in one additional murder charge against Wuterich and three against Sharratt.

All the killings were initially ruled by Marine commanders as "collateral" deaths ---- the results of combat action. It wasn't until several weeks later, after a Time magazine reporter began asking questions, that a full investigation was ordered.

The Marine Corps eventually filed dereliction-of-duty charges against four officers and murder charges against the four enlisted men, all from Camp Pendleton's 3rd Battalion, 1st Marine Regiment --- known as the "Thundering Third."

Wuterich has declined to give any interviews beyond his explanation of the killings made during a "60 Minutes" TV interview broadcast in March. He said during that interview that while he regretted the civilian deaths, he believed he and his men acted within the rules of engagement.

Wuterich's interview is scheduled to be rebroadcast next Sunday, airing over the Labor Day weekend break in what is expected to be a five-day hearing for the Marine.

Twists in the case
When the Haditha killings came to light, worldwide condemnation followed, fueled by words such as those used by Rep. John Murtha, D-Pa., who said the Marines "killed in cold in blood."

The exoneration of Sharratt and one of the officers charged in the case, Capt. Randy Stone, as well as the dropping of charges against Dela Cruz, have reduced the overall number of defendants to five.

A hearing officer has recommended that the former battalion commander at Haditha, Lt. Col. Jeffrey Chessani, face trial for dereliction of duty.

Investigative hearings are in the works for two other officers, Capt. Lucas McConnell and 1st Lt. Andrew Grayson.

Now it's Wuterich's turn in court. At issue are not only the murder charges but also the expectations placed on noncommissioned officers in combat, according to military law authority Gary Solis.

"Prosecutorial interest has centered on him, and now we will see if the government can make the charges it has brought against him stick," said Solis, a former Marine attorney and judge and now a professor at Georgetown University. "The Marine Corps expects more of its squad leaders, and you don't get a break-in period in combat."

Expected testimony
The killing of the five men who emerged from the car is expected to be a highly contested part of the case.

Dela Cruz has testified the Iraqis were shot as their hands were raised. Wuterich fired first, according to Dela Cruz, who says he also then began shooting.

Wuterich's attorneys are expected to argue that Dela Cruz fired first at those men. They point to a forensic reconstruction by the Naval Criminal Investigative Service, which used aerial surveillance tapes to reconstruct what happened near the car.

A government investigator is expected to testify that the Iraqis were running away, leading Wuterich to believe they were insurgents involved in the attack. Attorneys for Wuterich say the tapes show Dela Cruz is the more likely killer based on his position and Wuterich's in relation to the slain men.

"The forensic evidence rules out to a scientific certainty Dela Cruz's version of events," attorney Puckett said.

Wuterich's attorneys have not decided if their client will make a statement during the hearing. If he does, Puckett said it will come in the form of an unsworn statement, meaning it will not be made under oath and that he cannot be questioned by prosecutors.

With the dismissal of charges against Sharratt in the killing of three of four brothers inside the last house that was attacked, it is likely that a count of murder against Wuterich for the killing of a fourth brother could be dropped.

That would leave charges involving the killing of the five men from the car and the 12 Iraqis in the first two homes that were attacked.

'Momentum on his side'
Military jury members have shown that they may be reluctant to punish one of their own for battlefield incidents. Three military juries showed leniency to accused troops earlier this summer in the unrelated killing of an Iraqi man in the village of Hamdania last year.

If Wuterich is ordered to trial, it will be up to a jury of his peers to decide his guilt.

Thad Coakley, a former Marine Corps attorney and prosecutor who fought in Fallujah before leaving the service, said the charges revolving around the men from the car boil down to a "credibility contest" between Wuterich and Dela Cruz.

Lt. William Kallop, who also was granted immunity, was the man who ordered the assault, something he has testified to repeatedly. In Coakley's view, at issue is whether Wuterich's actions were proper based on the order he was given and whether he should have done more to determine who was inside those homes.

"The question will be whether the techniques he used met the rules of engagement," Coakley said.

But in light of the recent jury rulings and a subsequent decision by Mattis to grant clemency in sentencing for some of the men who had pleaded guilty in the Hamdania case, Wuterich has reason to be optimistic, Coakley said.

"He has the momentum on his side now," Coakley said.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

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