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thedrifter
07-12-07, 06:47 AM
Haditha hearing officer has more work ahead

By: MARK WALKER - Staff Writer

CAMP PENDLETON -- The military hearing officer who has recommended murder charges be dropped against one of three Marines charged in the 2005 slaying of 24 Iraqi civilians in Haditha will also preside over hearings for the other two.

Lt. Col. Paul J. Ware's knowledge of the case and the manner in which he conducted a recent hearing for Lance Cpl. Justin Sharratt could help their clients, attorneys for the remaining two defendants said Wednesday.

In a report released Tuesday, Ware cited self-defense and insufficient evidence in recommending that three murder charges against Sharratt be dropped.


Proceeding to trial without a strong case would set a dangerous precedent and could affect the actions of Marines in Iraq today, Ware wrote.

Ware, the senior military judge at the Marine base in Hawaii, also has been designated as the hearing officer for the case against Lance Cpl. Stephen Tatum, whose Article 32 hearing gets under way Monday. Article 32 hearings are akin to civilian probable-cause hearings and determine if sufficient evidence exists to warrant trial.

Tatum is charged with two counts of unpremeditated murder and four counts of negligent homicide.

Ware also is scheduled to preside over the hearing for Staff Sgt. Frank Wuterich, the man who led the assault in Haditha. Wuterich faces 13 counts of unpremeditated murder and two counts of soliciting another to commit an offense.

One of the 13 murder counts against Wuterich is for shooting the fourth man inside the home after Sharratt had emptied a 9 mm pistol.

Neither man disputes taking part in the shootings, and each contends he was responding to a threat.

Wuterich's lead attorney Neal Puckett said Ware's recommendation in the Sharratt case was a good sign for his client.

"It does generally bode well for the notion that at least we can expect a full and fair hearing," Puckett said.

Tatum's attorney Jack Zimmerman said he was impressed with Ware after watching the Sharratt hearing.

"He asks cogent questions, and he gets right to the point," Zimmerman said. "I was encouraged by the fair way he conducted the hearing."

Former Marine attorney and judge Gary Solis, a widely recognized military law authority, said he did not believe Ware's recommendation in the Sharratt case will have any direct impact on the Wuterich and Tatum cases.

"Having been a military judge, I know that it is possible for an experienced judge to ignore the elephant in the room," Solis said. "Each case will get considered on its individual merits."

After reading Ware's report, Solis said he was impressed with the reasoning and conclusions.

"He's very firm, straightforward and clear," Solis said, adding that he expects Camp Pendleton's Lt. Gen. James Mattis to follow the recommendation.

The Haditha killings resulted in charges against eight Kilo Company men from Camp Pendleton's 3rd Battalion, 1st Marine Regiment known as the "Thundering Third."

Sgt. Sanick Dela Cruz was charged with five counts of murder, but charges against him were dropped in exchange for his testimony against the other defendants.

Four battalion officers were charged with dereliction of duty for failing to fully investigate and report the incident.

A hearing officer who heard the evidence against one of those officers, Capt. Randy Stone, recommended his case be handled administratively and not proceed to trial.

Col. Christopher Conlin, an infantry officer who presided over the hearing earlier this year for the battalion commander at Haditha, Lt. Col. Jeffrey Chessani, is recommending he face trial, saying he failed to carry out his responsibilities.

The Sharratt case

In his report on Sharratt, Ware concluded that his killing three of four Iraqi brothers inside a bedroom was justified. He said Sharratt's decision to open fire was within the rules of engagement because two of the men were holding AK-47 assault rifles.

"To believe the government's version of facts is to disregard clear and convincing evidence to the contrary and sets a dangerous precedent that, in my opinion, may encourage others to bear false witness against Marines as a tactic to erode public support of the Marine Corps and its mission in Iraq," Ware wrote. "Even more dangerous is the potential that a Marine may hesitate at the critical moment when facing the enemy."

He also said that statements taken in Iraq from relatives of the slain brothers alleging that the men were marched into a room and executed by Sharratt and Wuterich were wholly inconsistent with physical evidence collected by agents from the Naval Criminal Investigative Service.

In recommending the charges be dropped, Ware also called for the Marine Corps to grant Sharratt immunity to testify at other hearings.

A final decision on what happens to Sharratt will come from Mattis, who is the convening authority as head of Marine Corps forces in the Middle East and commander of the base's I Marine Expeditionary Force.

Mattis has followed hearing officer recommendations in similar cases.

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

Ellie