MILITARY: Marine Corps appealing dismissal ruling for Chessani
Government and defense have 40 days to prepare briefs for military appellate court
By MARK WALKER - Staff Writer | ∞
CAMP PENDELTON ---- The Marine Corps is appealing a judge's ruling dismissing dereliction of duty charges against a battalion commander accused of failing to investigate the 2005 shooting deaths of 24 Iraqi civilians.
On Tuesday, Col. Steven Folsom, presiding as the military judge over the case against Lt. Col. Jeffrey Chessani, ordered the charges dismissed after finding that a general was improperly influenced by a legal adviser who also is a witness in the case.
The watershed ruling found that the legal adviser, Col. John Ewers, should not have sat in on meetings and discussions with two generals who have overseen the case. That degree of participation by Ewers, who also investigated the killings in the city of Haditha, Iraq, irreparably tainted the decision to charge and prosecute Chessani, Folsom ruled.
The notice of appeal delays the case indefinitely. The appeal document was signed by the lead prosecutor in the case, Lt. Col. Sean Sullivan, and sent to Chessani's attorneys late Wednesday.
Prosecutors had until Friday morning to decide if they would appeal. If they hadn't and also decided against seeking a review of the accusations against Chessani, this time by a Marine officer with no ties to the case, the ruling would have left only Staff Sgt. Frank Wuterich still facing charges.
One of those attorneys, Brian Rooney, said the appeal wasn't entirely surprising.
"In our opinion, the ruling is appeal-proof," Rooney said Wednesday during a telephone interview. "He spent a lot time saying why he ruled the way he did, citing numerous instances of case law to back up his opinion."
The appeal goes to the Navy and Marine Court of Criminal Appeals. Prosecutors have 20 days to write their arguments and provide them to the defense, which has 20 days from receipt of that document to respond.
Folsom's rationale, Rooney said, included a finding that prosecutors failed to meet the required proof beyond a reasonable doubt that command influence didn't harm Chessani.
"The court can only overturn the ruling if it's clearly erroneous, and the evidence is clear that it isn't," he said.
The appeals court is not under any time constraint to issue its finding. Whichever way it does rule can be further challenged before the Court of Appeals for the Armed Forces.
"We feel very good about our chances," Rooney said. "The unfortunate thing is that Col. Chessani has to continue to sit behind a desk for an indefinite amount of time while it's decided. I would have hoped someone would have looked at Judge Folsom's ruling and said, 'Enough is enough, let this Marine retire.'"
Gary Solis, a former Marine attorney who teaches military law at Washington's Georgetown University, said he was surprised by Folsom's ruling but understood the perception problem presented by Ewers' participation in the closed-door meetings.
"Military justice cannot afford even the perception that the government has its fingers on the scales of justice," Solis said in a written response to questions.
Chessani, 44, commanded Camp Pendleton's 3rd Battalion, 1st Marine Regiment at Haditha. The two dozen Iraqi noncombatants were shot by a squad from the regiment's Kilo Company as it searched houses for those responsible for a roadside bombing and subsequent small arms fire the morning of Nov. 19, 2005.
Eight Marines, four enlisted men and four officers, were charged with wrongdoing. One officer has since been acquitted at trial while charges have been dismissed or withdrawn for five other accused troops.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
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Injustice Continues wrote on Jun 18, 2008 7:48 PM:When will this nightmare end? Our government has so much money tied up in this railroad job that they just won't give it up.
Lt. Col. Chessani, you deserve so much better than this.
SSGTsSweetie wrote on Jun 18, 2008 9:46 PM:I was breathing a happy sigh of relief only to have the wind knocked out of me today. I can't imagine how the Chessani's are feeling today....... my heart is breaking for them.
AWcryinoutloud wrote on Jun 18, 2008 10:25 PM:The Marines persecuting this man and other Marines like him, should be ashamed to claim they ever took an oath to protect their own. I'd hate to be in a family that failed to stand by its loved ones the way these prosecutors have failed their fellow Marines. Just as with Sgt. Hutchins, these prosecutors don't try to seek the truth or to just prosecute; they are vicious and vindictive. This government is vicious and vindictive. There is zero respect given to the years of service to this country by good, decent Marines such as Lt. Col. Chessani and Sgt. Hutchins. One Sergeant has already taken the fall for the failed policies of his own government and one Sergeant remains who apparently will be expected to do the same. Why in Hades does the UCMJ even have a judge if no one is going to abide by his decision? So, how high up does it go? Better yet....WHY?
Mom of a Marine wrote on Jun 19, 2008 1:11 AM:The only comfort here is that Chessani's lawyer said that the ruling is "appeal-proof." I believe that is the case. The prosecution failed...hence Col. Folsom made this ruling. And Murtha should PAY big time. In appointing himself jury, judge and executioner in this and the Hamdania case...He tained the entire process for all these Marines. He should be ashamed...but I think he is too far gone...to even fathom that.
JustosMom wrote on Jun 19, 2008 4:53 AM:The USMC needs to get their act together and make sure all cases are treated properly from the very beginning! Without prejudice from the press & others and with proper investigation from day one, this case would have never been brought in the first place.
CAPT. AMERICA wrote on Jun 19, 2008 6:21 AM:Give it Marine Corps!!!!! Let the man live in peace and focus more on protecting our counry, which is your job. Arrogrance is a man downfall.
Mamba- wrote on Jun 19, 2008 6:49 AM:Evidently, the Marine Corps fears looking foolish for charging these men in the first place - because of undue pressure from politicians. They HAVE to convict somebody of something, or their actions will be seen for what they are: pandering to the vocal left. I wonder how this makes the rank and file Marines feel about their "leaders"?
Bob wrote on Jun 19, 2008 7:47 AM:“The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional to how they perceive the Veterans of earlier wars to be treated and appreciated by their nation.”
—George Washington
AWcryinoutloud wrote on Jun 19, 2008 8:46 AM:Right On, Bob! And when the day comes that our young people say No, the press can take half the credit.
OORAH wrote on Jun 19, 2008 8:51 AM:Thank you awcry and Mom,I couldn't have said it better.Enough is Enough.Let this fine example of a Hero alone,He did nothing wrong to begin with.Check out his preformance record over the past 20 years(listed on Thomas More Law Center web page)He is a HERO and no one can take that away from him.
My heart goes out to Col.Chessani and his family.I thank him for his Service and all the Sacrificies they make on a daily basis.
Thank you, The Thomas More Law Center. You did a great job and that should have been the end of this.
SHAME on you Murtha and the likes,our Government and our high ranking Marine Corps.Some one with some balls needs to put a stop to this.
Thank you Judge Col. Steven Folsom,at least someone in the Marine Corps has something between his legs and is not afaird to uses them.
This whole thing of bringing charges against our HEROES makes me SICK and Ashamed to be an American.
Everone in this great land of ours should be OUTRAGED.
ENOUGH is ENOUGH,its way past time for everyone to do the right thing.
FREE-SGT.HUTCHINS,COL.CHESSANI,SSGT.WUTERICH
Daniel wrote on Jun 19, 2008 9:39 AM:By now I'm wondering what's going on inside Prosecutor Sullivan's noodle? Is this personal? Does he hate those who actually risk their lives for his right to sit behind a desk? Or is he looking for a political life post-military. Perhaps from now on his new nickname should be Nifong. Sullivan's actions have tarnished the military justice system. Perhaps if he recused himself from the proceedings and let someone come in with a new set of eyes... and perhaps a little objectivity and credibility.
MarineGunner wrote on Jun 19, 2008 10:39 AM:I have a theory and this may sound crazy but hear me out. What are the chances that the Marine Corps is allowing this prosecution to move forward in order to set a precedence? By doing so they would ensure that no member of the military is ever brought up on charges like this again. Just a thought...
Pamela wrote on Jun 19, 2008 11:15 AM:CAN'T THEY JUST DROP ALL OF THIS NONSENSE AND LEAVE THESE GUYS ALONE!
IT IS COSTING WAY TOO MUCH MONEY AND FOR NOTHING! LEAVE THEM ALONE.
Patriot wrote on Jun 19, 2008 11:49 AM:This guy is a general, not some low level soldier. He can handle this stress. I can't believe all of these comments which only call for the case to be dropped; are you kidding me? 24 people, including children huddled together SCARED OUT OF THEIR MINDS were killed. This is America, not Soviet Russia. Let the review happen; it can only make the Marines stronger.
DESERT BUG wrote on Jun 19, 2008 11:49 AM:Prediction: The prosecution will withdraw its appeal. Failing that, the appeal will be denied. I see at least one bright light here and that is that once this appeal is gone, any thought of then refiling charges against Col. Chessani would then be totally out of the question. This so-called appeal is the last gasp of a dying, soon to be dead, prosecution. Now, on to better things: Drop the charges against Sgt. Wuterich and free Sgt Hutchins on the same grounds that Col. Chessani has prevailed. Wishful thinking? I don't think so.
MarineGunner wrote on Jun 19, 2008 12:39 PM:To Patriot
No, he is not a General. He is a Lt. Col. or 'Light Bird'. Either way, it really is not relevant what rank he is. No man should have to go through what he is on these trumped up charges.
You are right... THIS is America but THAT is Iraq.
Have you not read that many of those pictures were staged by the insurgents? Do you only believe what you want to believe or are spoon-fed by a biased media with an agenda? What about the 'suicide bombers'? Are they innocents? When the insurgents use their own people as shields...et cetera ad nauseam. Yet we still have people that are willing to condemn and convict without looking at the whole picture.
Bill wrote on Jun 19, 2008 1:49 PM:As a former Marine, this makes me sick.
Im not going to second guess men in combat given the fact that the Bathe party loyalsists blended in when we invaded.Also, they dont wear a uniform.
This is just another example of using people as shields and our beloved Corps should stand firm and back its own. This is a sell out to a man that served his country and a shameless attempt to connect this to higher ups.
The Commandant needs to stand up and resign in protest.
This is a black eye on the Marine Corps.
I can only interpret this to mean that CMC is complicit in this political game of cowardice.
Chesty Puller is turning over in his grave.
Forgive them Chesty, the cowards that run the Marines now are fools and know not what they do.
Forgive them Chesty!
I need a drink!
Chris wrote on Jun 19, 2008 3:08 PM:Oh my, how we have all these bloggers moaning about these Marines who killed or had something to do with convering up the killing of these Iraqis. Again where is any concern for the dead Iraqis and their families. Maybe all you moaners could try to get these Marines who are charged in the deaths of the Iraqis to undue the terrible thing they have done. As far as I am concened the people moaning over these Marines going to trial are a good example of what I hate about the United States of America.
Stryker Mom wrote on Jun 19, 2008 3:28 PM:I do believe that for Lt. Col. Sean Sullivan this is a personal vendetta. Nothing else makes sense. Sullivan has become the Nifong of the Marine Corps. I just hope and pray he meets the same fate.
Stryker Mom wrote on Jun 19, 2008 3:42 PM:Chris/Patriot(in name only) - If you hate the U.S. so much, planes leave this country hundreds of times a day. Find on and get on it.
Proud Infidel wrote on Jun 19, 2008 3:51 PM:Chris - one would hate to confuse you with the facts, but there was no cover up. You could have found that out by reading the reports that have been published. Insurgents used women and children as human shields knowing they would get the reaction they wanted from our looney left. Photos were staged to get the effects needed. The truth doesn't fit your template; therefore, you can't handle the truth. Don't serve on any juries, please.
DESERT BUG wrote on Jun 19, 2008 4:11 PM:To Chris: You hate our country? You sympathize with our country's enemies. It tells a lot about you when you take a half-baked allegation and without due process of law turn it into a conviction. Now that's the way Saddam Hussein operated. No trial, just take a person out and kill him based on suspicion alone. You and the Jane Fondas of this world defend our foes and attack our defenders. Pathetic Chris. You pretend to know all of the facts in these cases, but you are so clueless it's laughable. Do you think it's OK for an investigator who therefore is sypathetic to the prosecution to also act as an advisor to the Convening Authority, polluting General Mattis's supposedly independent and unbiased judgment? Well, an expert in military law, namely the Judge in the Chessani case, Colonel Folsom, doesn't think that was OK at all. Have you no sense of patriotism and loyalty to Marines caught up in the horror of face to face combat? It's so easy for people like you Chris to sit back in comfort and condemn those who are innocent until the entire legal process has run its course, only because for some reason you hate your own country. It's trite to suggest that you go live in Iraq, but man I think that's where you belong. That's where you would find solace and contentment fraternizing with the "insurgents" and the buddies of Osama Bin Laden. Jane Fonda kissed up to the Viet Cong, maybe you could do the same with a nasty enemy of our country who would fly a planeload of innocent people into the World Trade Center or the Pentagon, killing thousands of innocent people or an enemy who takes delight in beheading innocent prisoners. We are fighting an invisible enemy who masquerades as civilians and uses children as suicide bombers and who ambushes our troops with roadside bombs and stealthy gun fire. Fairness and perspective cry out for the exoneration of our military who have been pilloried and made the scape goat for our Government's wrongs.
MarineGunner wrote on Jun 19, 2008 4:25 PM:To Chris...yet again.
So I will just reiterate what I said in the other thread:
Do you honestly believe that all the civilians are innocent? I am sure that some are, but what do you think the 'male and female suicide-bombers' are?
They are 'civilians'... until they blow up and take many of the innocent civilians you are crying about with them. Do you see uniforms on them? Do you see uniforms on any of the insurgents? No, you don't. Why is that? Because those insurgents use thier OWN people as shields. That is a heinous crime in my eyes, as it should be in yours. They obviously cannot stand up and face our forces 'mano-e-mano' so they rely on subterfuge and cheap tactics. As Stryker Mom said, if you hate this country so much then leave...PLEASE.
Stryker Mom wrote on Jun 19, 2008 4:42 PM:Desert Bug and MarineGunner - Well said. I can't add another thing except that it is people like you who keep us free. We owe you a debt of gratitude we can never repay. God bless you and the many, many like you.
God bless our troops!
Proud Infidel wrote on Jun 19, 2008 5:17 PM:"Let no man call himself a patriot who does not love the Father or his country." George Washington
Massachusetts Democrat wrote on Jun 19, 2008 5:18 PM:Pathetic.
Speaking from experience wrote on Jun 19, 2008 5:22 PM:People, please...pay no attention to Chris and really, don't waste one iota of energy responding or trying to educate him. He is uneducatable! Many have tried. He is too ignorant to know that EVEN if he would move to Iraq to be with those enemies that he tries to defend and loves soooo much...that they would cut off his head shortly after his arrival. It is a shame that CLOSED MINDS DO NOT COME WITH CLOSED MOUTHS!!! Mom of A Marine
AWcryinoutloud wrote on Jun 19, 2008 5:46 PM:God gave man a brain. And then there was Chris.
AWcryinoutloud wrote on Jun 19, 2008 6:29 PM:To Chris: Ayman al Zawahiri, Bin Laden's second in command, to al Zarqawi: "....I say to you that we are in a battle and that more than half of this battle is taking place in the battlefield of the media." Chris, an illiterate Iraqi can understand this. What's "your" problem?
Old Student wrote on Jun 26, 2008 3:59 PM:I'm rather disappointed in this newspaper. Time Magazine, Mr. Murtha, and an Iraqi "human rights organization" alleged that civilians were intentionally shot by these Marines. Six of eight have had charges dismissed or been acquitted, and the paper says they were shot by our Marines? Maybe, but the difference is cold-blooded murder, or unintentional casualities in a fire-fight between them and Iraqi insurgents, who do not dress in uniforms, and do hide among civilians. What really happened here? When people are shooting at you, and you shoot back, it is NOT murder. The accusation is that they commited murder.
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