The Marine Corps is appealing a judge's ruling dismissing charges against Lt. Col. Jeffrey R. Chessani. (North County Times file photo) MILITARY: Marine Corps seeks to reinstate Haditha charges
Appeal says judge erred in dismissing case against Lt. Col. Jeffrey Chessani
By MARK WALKER - Staff Writer | ∞
The Marine Corps is appealing a judge's ruling dismissing charges against Lt. Col. Jeffrey R. Chessani. (North County Times file photo) CAMP PENDLETON ---- A judge abused his power when he dismissed dereliction of duty charges against Lt. Col. Jeffrey Chessani in the 2005 slaying of two dozen Iraqi civilians, according to an appeal filed on behalf of the Marine Corps.
Navy Lt. Timothy Delgado argues the charges against Chessani should stand because the judge erred in declaring that Marine Gen. James Mattis was illegally influenced in his handling of the case.
At issue is whether Mattis was guilty of "unlawful command influence" because he allowed his top legal aide, Col. John Ewers, to sit in on meetings with prosecutors. Ewers investigated the killings in the city of Haditha and is a potential prosecution witness.
In his June 17 decision, the judge, Marine Col. Steven Folsom, ruled that Mattis was unduly influenced. The ruling has called into question all seven other Haditha cases and has implications in the only other remaining prosecution, that against Staff Sgt. Frank Wuterich.
"The military judge's findings of fact are clearly erroneous," Delgado contends in a 43-page argument filed with the Navy-Marine Corps Court of Criminal Appeals in Washington. "The military judge abused his discretion in fashioning the sweeping remedy that he did."
Among other reasons he cited when ordering the dismissal, Folsom said Chessani's prosecutors were junior in rank to Ewers and were unlikely to challenge him. That alone created an unfair climate, the judge ruled.
Chessani commanded the 3rd Battalion, 1st Marine Regiment at Haditha when the killings occurred Nov. 19, 2005. He is accused of failing to order a full-scale investigation, and is the highest-ranking officer charged in the incident that spawned a domestic and international uproar.
Ewers' role as an investigator and later appointment as Mattis' chief legal adviser tainted the case beyond repair, Folsom ruled. Dismissal was necessary, he said, to maintain public confidence in the military justice system.
"Unlawful command influence is the mortal enemy of military justice," Folsom said when he ordered the charges tossed on June 17. "The appearance of unlawful command influence is as devastating as actual manipulation of a trial."
But the appeal filed by Delgado, an attorney in the Navy's appellate branch in Washington, says Mattis was never unduly influenced by Ewers.
"There is no evidence that Gen. Mattis relied on Col. Ewers for any information, opinions or legal advice," he wrote. "Instead, the record shows Gen. Mattis to be an independent commander highly unlikely to be prone to manipulation by his staff officers."
Mattis was a lieutenant general at Camp Pendleton in 2006-07 and his duties then included overseeing the case against Chessani and seven other Marines.
Mattis has since been promoted to four-star general and a different job and is no longer overseeing the prosecutions.
The appeal cites several instances in which Mattis, testifying at a hearing at Camp Pendleton on June 2, denied talking to Ewers about the Haditha prosecutions. Instead, Mattis said he relied on another legal aide for advice on those cases.
"Gen. Mattis used the word 'never' 10 times in answering questions about whether Col. Ewers had provided any legal advice with respect to (Chessani's) case or any Haditha case," the appeal points out.
It also quotes Mattis' testimony, in which he stated that Ewers "never spoke to me about this case nor would I have asked him for any information or advice. A strict firewall was maintained. ..."
Chessani faces up to six months in custody and a dismissal from the service without benefits if the charges are reinstated and he is convicted.
His attorneys at the Thomas More Law Center in Michigan have three weeks to file a response. They have refused requests for comment on the Marine Corps' appeal and did not immediately return messagess Monday.
The Navy-Marine Corps Court of Criminal Appeals is an intermediate appellate court in the military justice system.
A date for its three-judge panel to consider the appeal of the Chessani dismissal has not been set. Their rulings are subject to further challenge before the Court of Appeals for the Armed Forces.
After Folsom's ruling, Wuterich's attorneys said they will seek to have his case dismissed, arguing the finding that Ewers illegally influenced the Chessani prosecution equally applies to their case. His trial is on hold pending resolution of a ruling denying the government access to outtakes of a March 2007 interview with the CBS news magazine "60 Minutes."
Wuterich led a squad in the slayings after a roadside bombing during a resupply run killed a Marine lance corporal. Initial charges of murder have been reduced to nine counts of voluntary manslaughter.
Three other officers and three other enlisted men charged with crimes at Haditha have been exonerated through dismissal or withdrawal of charges and one not guilty finding at trial.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
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Jeff wrote on Aug 4, 2008 6:16 PM:Why can't the brass just admit they're wrong and leave this officer alone. This whole situation reeks like rotten fish!
Prosecution Bus wrote on Aug 4, 2008 7:34 PM:They just won't quit til' they put this honest American hero in jail. These are the same type of prosectors who put Ramos and Campean in prison. They did their job and protected the US and when they wouldn't lie for the benefit of the prosecution they were sent up the river. This is nothing but a load of garbage!
bob wrote on Aug 4, 2008 9:59 PM:good
How Sickening wrote on Aug 4, 2008 11:50 PM:Enough!
Retired Navy Chief wrote on Aug 5, 2008 8:24 AM:USMC Justice, Navy Justice? What a joke! To make the liberal politicians and liberal media happy, the ranking military officers cater to their sickness. Leave these Hero's Alone! When you're being shot at and bombs are going off, people are going to die! In this case "innocent" civilians died. Why not court martial all those military personnel and politicians involved in the bombing of Hiroshima, Nagasaki, fire bombing of Tokyo, Dresden, other German and Japanese Cities. Innocent Civilians were killed and the "powers that be" knew this would happen before giving the orders. Oh, it was war? What the heck do you think is going on in Iraq and Afghanistan? War sucks, people die, good people and bad people. That is war.
not amused wrote on Aug 5, 2008 8:32 AM:Makes one feel like joining up doesn't it? Just like any career that requires action / decisions in seconds, and based upon real time and resources. As such, you will then be judged by your "superiors" who take much more time than you had, in the comfort of their offices to disect your judgement, and tell you what you should have done.
senorlechero wrote on Aug 5, 2008 9:10 AM:My respect for Gen. Mattis is severly diminished by his handling of the Hadith case. I wonder if he caved to political pressure in order to be "approved" for promotion to 4 Star status.
Robert wrote on Aug 5, 2008 9:54 AM:USMC retired
Enough already! This witch hunt should stop! Trying to make a scapegoat of Chessani is ridiculous. His superiors are not charged and he did report to them.
War is Hell! Governmental pressure being applied to the Prosecutors or this would have been over with.
God Bless our Marines!!!
AWcryinoutloud wrote on Aug 5, 2008 10:06 AM:Mattis relied on another legal aide? Well, Mattis also had another legal aide who was forced to take himself out of the picture because he abused his power. If the prosecution can't win this one, then Sgt. Hutchins conviction will have been a wrongful conviction due also to unlawful command influence through same aide and through Congressman Murtha. This is not just about Chessani. Kind of like a marriage gone bad where one becomes expendable to the other. All of these Marines are expendable to their own government. It doesn't matter if lives are ruined. So much for taking an oath to stand by your own. Over 200 years shot to hell!
Bill wrote on Aug 5, 2008 11:44 AM:Enlist in our military, go fight for your country and then get used as a sacraficial lamb to appease the Eric Parrish's and Chris Pulse's of the world.
Second guessing our heroes in combat?
This guy deserves more benefit of the doubt than the Gitmo prisoners do but there are some that are awfully silent when it comes to our Marines.
Happy Chris?
Pieter wrote on Aug 5, 2008 1:04 PM:My stepson was very clear on this issue, there are no innocent civilians in that hell hole. That was before one of them pushed the button that blew him and his Humvee up. Those pokes need to leave the real Marines alone, go back to your office and stop bothering the real man in uniform.
Captain wrote on Aug 5, 2008 1:24 PM:The Retired Navy Chief has got it right!
Marines should conduct themselves with courage, honor and morality but this is so much easier to judge from afar. If you are going to err in combat, make it in favor of your fellow Marines. To prosecute that is to weaken the Marine Corps.
Toss Murtha wrote on Aug 5, 2008 2:28 PM:on trail! This is political and everyone knows it! Maybe time to start charging some of the military here and when they are convicted along with Murtha take away all pensions and toss them all into the brig.
Try some of these arm wrote on Aug 5, 2008 2:30 PM:chair warriors who call themseleves officers with TREASON!
Write to your law makers wrote on Aug 5, 2008 2:32 PM:demand these yokels and Murtha be placed into the brig for treason against the United States Marines and the American People!
Bo wrote on Aug 5, 2008 2:42 PM:The only abuse of power occurred in the White House. Put Bush, Cheney, Rice, and Rumsfield on trial!!
DESERT BUG wrote on Aug 5, 2008 3:08 PM:It looks like my last attempt to post flopped, so I will try again. I can't believe that this appeal will succeed. It will fail. Mattis, the convening authority, denied that potential prosecution witness Ewers (a Mattis advisor) influenced his decision to order a trial. Well, what else would Mattis say when confronted? "Yes, I was swayed by Ewer's comments, so I should have withdrawn and notified my superiors to appoint a new convening authority." NOT IN A MILLION YEARS would he have said that, EVEN IF IT WERE TRUE. Admit he was wrong? NEVER. Mattis is good at military politics, after all he's a four star general now. He does what's good for Mattis, not what's necessarily right. This appeal is the dying gasp of a series of prosecutions that were wrong from the gitgo. Colonel Folsom's ruling MUST prevail which means that Colonel Chessani is free; Sgt Wuterich will not be prosecuted and the conviction of Sgt Hutchins will be reversed. DOD needs to realize it's over, cut their losses, admit their mistakes and move on.
crazy indin wrote on Aug 5, 2008 3:18 PM:another officer attempting to advance his career at the expense of another marine. some marine officers are no longer marines they have become politicians.
Dario wrote on Aug 5, 2008 3:34 PM:We send our Marines to fight and sometimes die; And we prosecute them when they defend themselves. War isn't always fair but it's always ugly. Let this Marine do his job. Don't send him to war and then restrict his ability to defend his men! Semper Fi, Colonel
crazy indin wrote on Aug 5, 2008 5:03 PM:well so much for semper fideles it seems it doesn't mean anything any more.
One of wrote on Aug 5, 2008 6:36 PM:Having been there, it pains me every day to watch the best Battalion Commander I have ever met go through this. He is a man of Honor and Loyalty. I have never questioned this man's integrity and never will....ever. LtCol Chessani may be a father of six, but it should be known that he is a mentor and Brother to hundreds. May peace come to him and his family. May shame spread amongst those who peruse this for personal gain. Stay the course, Sir...you a man of Courage and I will never forget what you have done for me and our Country.
go wrote on Aug 5, 2008 7:58 PM:What level of detail or evidence did Gen Hagee share with Mr Murtha in the meeting moments before his 'in cold blood' public statement??? .... we'll never know.
Disappointed wrote on Aug 6, 2008 10:10 AM:It's sickening to me that after this case was already drug out for years, that these politicians won't let it be. Mattis clearly was working for his own agenda.
Daniel wrote on Aug 7, 2008 4:25 AM:Again, we're not getting the whole picture, only what NCTimes has written here, and others. But it seems the bottom line is that Mattis let one of the prosecution investigators / witnesses sit in on a lot of meetings where he shouldn't have. Whether Mattis was influenced or not isn't really the issue for me -- it's the clarity of the process. Would Chessani receive Due Process? Not if the witnesses are being allowed to take part in the decision making process. His testimony could be easily tainted by information he found out sitting in those meetings.
TheFewTheProud wrote on Sep 15, 2008 10:46 AM:JOHN MURTHA SHOULD BE THE ONE ON TRIAL, NOT LTCOL CHESSANI WHO HAD A GLOWING FITNESS REPORT PRIOR TO AND AFTER THE HADITHA EVENT, AND PRIOR TO BEING BROUGHT UP ON CHARGES. HE WAS RECOMMENDED FOR PROMOTION AND A PRIORITY SCHOOL BY HIS SUPERIORS.
SOMETHING STINKS AND I THINK IT IS THE USUAL SMELL ... POLITICS.
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