MILITARY: Key ruling expected in war crime case

By MARK WALKER - Staff Writer

CAMP PENDLETON ---- A military judge has scrapped plans to hear motions in a key 2005 Iraq war crime case, telling attorneys he is limiting discussion Tuesday to a ruling on whether a Marine general was unlawfully influenced by a legal adviser.

The case involves charges against a commander tied to the deaths of 24 Iraqi civilians killed in the city of Haditha following a roadside bombing.

The decision by the judge, Marine Col. Steven Folsom, suggests the case against Lt. Col. Jeffrey Chessani may be over or set for substantial change when Tuesday's court session at Camp Pendleton concludes.

"We were originally scheduled for motions to be heard Monday through Wednesday, but on Thursday night, the judge said he would only take up the unlawful command motion and that it would be the only matter discussed," one of Chessani's attorneys, Brian Rooney, said Friday.

The message from Folsom buoyed the hopes of Chessani's supporters, who say the charges against him are unwarranted.

Chessani faces two dereliction of duty accusations for failing to order a full-scale investigation into the civilian deaths at the hands of a squad of Camp Pendleton Marines under his command.

Chessani, his attorneys and supporters have argued, reported what he knew to his superiors, none of whom suggested an inquiry was necessary.

Rooney declined to publicly speculate why Folsom is limiting Tuesday's session to the unlawful command issue and not taking up other previously scheduled issues.

"Either way, we are prepared to go to trial on July 21," he said.

The Marine Corps and its prosecutors will not talk about ongoing cases.

The issue Folsom is to rule on is whether then-Lt. Gen. James Mattis was unlawfully influenced by a legal adviser when he authorized charging Chessani in December 2006.

Possibile rulings include dismissing the case or ordering a new investigating officer be appointed to review it in its entirety. If charges are dismissed, Chessani would be the seventh of eight original Haditha defendants to be exonerated.

Chessani's attorneys argue that Col. John Ewers took part in an investigation into the killings in northwest of Baghdad, later attended meetings about the case with Mattis and then became the general's legal adviser. That degree of participation and association, they contend, constitutes unlawful command influence.

Mattis, who was the convening authority over the Haditha case in 2005 when he was commander of Marine Corps forces in the Middle East and head of Camp Pendleton's I Marine Expeditionary Force, has since been promoted to general and now works for Joint Forces Command in Norfolk, Va.

In a hearing at Camp Pendleton earlier this month, Mattis denied that Ewer influenced his approval of the charges against Chessani and seven other Marines in the Haditha incident.

"I make my own decisions," Mattis testified during a June 2 hearing.

Rooney said Folsom should dismiss the case.

"We don't believe that the unlawful command influence that we have proven in court can be remedied by any lesser means," he said during a telephone interview.

Short of that, Rooney said, Folsom direct the Marine Corps to appoint a new investigating officer. That officer would then make a recommendation to Lt. Gen. Samuel Helland, who replaced Mattis as the convening authority, as to whether the case should go forward.

Gary Solis, a military law expert, said he was skeptical of the prospect of an outright dismissal.

"I think it is entirely foreseeable that the motion to dismiss on unlawful command influence will be denied and the case will continue," said Solis, a former Marine Corps judge and prosecutor who teaches military law at Georgetown University. "It is very odd to suggest a colonel could have influenced a three-star such as Gen. Mattis. I would be very surprised if the motion were granted."

Chessani commanded Camp Pendleton's 3rd Battalion, 1st Marine Regiment at Haditha when the killings occurred following a roadside bombing on Nov. 19, 2005. Nineteen civilians were shot by members of a squad as it searched houses for those responsible for the bombing and subsequent small arms fire. Five other men who emerged from a car that drove up immediately after the bombing also were shot.

Eight Marines, four officers and four enlisted men eventually were charged with wrongdoing; all denied the charges. The enlisted men originally were charged with murder while Chessani and three other officers faced charges related to failing to order a full-scale probe into the civilian deaths.

Six of the eight accused have been exonerated following hearings or by having the charges withdrawn by prosecutors, leaving Chessani and the squad leader, Staff Sgt. Frank Wuterich, as the remaining defendants.

Chessani is scheduled to go on trial at Camp Pendleton next month. A trial for Wuterich is on hold pending an appellate court decision on whether the government should have access to outtakes of a "60 Minutes" interview with him that aired in March 2007.

The prosecution and defense had been slated to argue next week over whether photographs of the slain Iraqis should be allowed into evidence. The prosecution argues the photos are necessary to underscore the brutal nature of the deaths and that several women and children were among those killed.

The defense argues there is no need for the pictures, which were taken by an intelligence team member to help determine if any of the slain were on military lists of known or suspected insurgents. It was later determined none were.

Five cases alleging unlawful killings in Iraq have been brought against Camp Pendleton Marines since the U.S. invasion in March 2003.

Seven Marines and a Navy corpsman were charged in 2006 with the killing of a retired Iraqi policeman. All were convicted or pleaded guilty to offenses related to that incident.

A continuing case involves the killing of four suspected insurgents that a squad detained during fighting in Fallujah in 2004. Two sergeants are being prosecuted on murder charges at Camp Pendleton in that incident while their squad leader, former Marine Sgt. Jose L. Nazario, is being prosecuted as a civilian in U.S. District Court in Riverside because he is no longer in the military.

Last year, a Marine lance corporal was convicted of killing an Iraqi army soldier after the two got into a fight while standing guard duty at Camp Fallujah on Dec. 31, 2006. Lance Cpl. Delano Holmes was found guilty of negligent homicide, sentenced to time served and given a bad conduct discharge.

Earler this month, the service confirmed that sergeant has been accused of two counts of unpremeditated murder and assault in the killing of two civilians in Iraq last year. A hearing to determine if that case will go foward has yet to be scheduled.

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

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