Haditha defendant ordered to talk

By: MARK WALKER - Staff Writer
Directive may signal a weakness in government's case against accused Marines

CAMP PENDLETON ---- On the eve of his trial, the Marine Corps for the third time has ordered a lance corporal charged with killing Iraqi civilians in Haditha to provide testimony against his co-defendant and squad leader.

The order requires Lance Cpl. Stephen Tatum provide the government with ammunition for its case against Staff Sgt. Frank Wuterich, the man who led him at Haditha.

The directive also may signal a weakness in the government's case.

Both men face upcoming courts-martial at Camp Pendleton in the high-profile killing of two dozen Iraqi civilians in November 2006.

The deaths, which included several women and children and spawned an international uproar, followed a roadside bombing that killed one Marine and injured two others.

Tatum is charged with two counts of involuntary manslaughter. Wuterich faces nine counts of voluntary manslaughter. Both men from Camp Pendleton's 3rd Battalion, 1st Marine Regiment have pleaded not guilty.

Tatum's attorney, Jack Zimmerman, calls the directive to testify an attempt to deny his client his constitutional rights.

"It is a diversion, a distraction and horrendous prosecutorial misconduct and overreaching," Zimmerman wrote in an e-mail last week to Lt. Gen. Samuel Helland, the man who issued the order.

Helland oversees the Haditha prosecutions in his role as head of Camp Pendleton's I Marine Expeditionary Force and Marine Corps forces in the Middle East.

Helland has previously issued two orders directing Tatum to talk to Wuterich's prosecutors. Zimmerman and his team of Marine Corps defense attorneys have ignored the directives but may now be forced to make him available.

Zimmerman contends that although anything Tatum might say cannot be used against him at his trial, compelling him to provide testimony against Wuterich is improper. Tatum's lawyer also said he would face disbarment if he let a client facing a similar circumstance in a civilian court talk to prosecutors.

"This deposition effort is so overreaching that in my opinion no civilian prosecution office would contemplate this action," he wrote.

By policy, prosecutors will not comment on the pending courts-martial.

Helland's directive says he considered Zimmerman's objections but stands by the order.

"I have determined that Lance Corporal Tatum's videotaped oral evidence deposition is necessary and mandated under the extraordinary circumstances of this case and I order him to appear," the general wrote.

If Tatum continues to refuse, he could face an additional charge of failing to follow an order.

Attorneys familiar with the case question why Tatum is being pressed so hard, pointing out that the government has granted immunity from prosecution to other Marines who took part in the incident in exchange for their testimony.

Gary Solis, a military law professor at Georgetown University and a former Marine attorney and judge, said ordering one defendant to provide statements against another is unusual.

"I've never heard of a co-accused being ordered to provide testimony against another accused," Solis said in a telephone interview Saturday. "It appears there may well be an issue of self-incrimination, and the unusual nature of the order suggests a lack of testimonial evidence in the prosecution's case."

Mark Zaid, one of Wuterich's attorneys, said Saturday that his defense team also wonders why the prosecution is so adamant about getting a statement from Tatum.

"We do not believe anything he will say will implicate Staff Sgt. Wuterich," Zaid said. "The government has this authority at its disposal, but one could certainly speculate that it reveals cracks in the wall of their case."

Tatum is due in a base courtroom Tuesday for a hearing. His trial before a jury of enlisted men and officers is scheduled to start March 27, but could be delayed as a result of Helland's order.

Wuterich's trial was set to start earlier this month but was delayed at the last minute when prosecutors appealed a ruling denying them access to outtakes of a CBS "60 Minutes" interview with him broadcast last year.

Prosecutors contend that the outtakes could include admissions of guilt. They were denied access to those tapes by a military judge, who sided with CBS attorneys and termed the effort a "fishing expedition."

The outtake issue now sits before a military appeals court with no clear indication on when it may rule.

Two officers who were at Haditha also face courts-martial later this year for charges related to failing to conduct a full-scale investigation into the Haditha killings.

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

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