MILITARY: Marine Corps seeks to reinstate Haditha charges

By MARK WALKER - Staff Writer

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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