Haditha case losing strength

San Diego Union-Tribune:

For months, military officials expressed confidence in their case against several Camp Pendleton Marines accused of murdering 24 men, women and children in Haditha, Iraq.

After conducting two major investigations, they characterized the incident as possibly the most serious example of Iraq war atrocities. The killings sparked concern from President Bush, lawmakers and senior military commanders, who traveled to Iraq and bases nationwide to lecture U.S. troops about combat rules and battlefield ethics.

But now, legal analysts say the prosecution's case is in jeopardy.

They spoke after investigative officers recommended that two of the seven Haditha defendants should be spared courts-martial, largely because of weak evidence.

A third defendant was recommended for trial yesterday.

“I think that unless they get a Marine eyewitness to roll over, they are going to have a hard time prosecuting the cases,” said Jane Siegel, a former Marine judge and longtime defense lawyer in San Marcos. “The government has to know that as the investigation gets older and older, the case gets colder and colder and harder and harder to prove.”

...

Last month, an investigative officer recommended that Capt. Randy Stone not be tried on charges of failing to investigate the Haditha killings. The officer issued his report shortly after Stone's pretrial hearing.

A deeper blow came in a report made public Tuesday by Lt. Col. Paul Ware, a career Marine prosecutor who strongly urged that all charges against Lance Cpl. Justin Sharratt be dismissed.

Sharratt is one of three Marines accused of going on a rampage against the 24 Iraqis after a roadside bomb killed a fellow Marine on Nov. 19, 2005.

In his report, Ware labeled allegations against Sharratt “unsupported” and several times called them “incredible.”

He also suggested that some of the dead Iraqis were insurgents, as the defendants have maintained.

Ware, who presided over the pretrial hearing for Sharratt last month, said accounts by Iraqi witnesses seemed inconsistent with the forensic evidence available.

Such evidence showed that “each was shot facing forward, from a distance, and with a 9 mm pistol, which I find inconsistent with an execution or persons reacting to an execution,” Ware wrote.

He noted that relatives of the dead Iraqis refused to allow the U.S. military to exhume the bodies to conduct autopsies. He also said the Iraqis had a powerful motive to lie, given that the Marine Corps would sometimes pay $2,500 to the family of an Iraqi civilian killed by U.S. forces.

...

“This latest development is obviously very positive, and the dynamics of the case are truly changing,” said Mark Zaid, an attorney for Staff Sgt. Frank Wuterich, leader of the alleged killing spree. “(Ware's) recommendation contains very strong language that no doubt will be taken very seriously by Marine leadership.”

...

While Ware's report focused on Sharratt, his conclusions highlight the challenges of prosecuting war-crimes allegations.

Forensic evidence is often incomplete or unavailable. Witnesses have credibility issues or refuse to testify because they fear retribution. Sometimes, investigations aren't launched until months or years after an alleged crime took place.

...

I think if the evidence in the Tatum and Wuterich Article 32 hearing is similar to that in the Sharratt case those cases will be dismissed too and there will then be no basis for trying Lt. Col. Chessani, the battalion commander who may be charge with dereliction of duty for not investigating the event. The problem with that charge is that those who did investigate the event with much more resources and time than that was available to Lt.Col. Chessani have brought forth a case of very questionable merit with witnesses that lack credibility.

This post gives more details on the remaining hearings.