Haditha case continues to crumble

North County Times:

A hearing officer is recommending that murder and negligent homicide charges against a Marine lance corporal accused of killing six Iraqis, including three children, nearly two years ago be dismissed.

Lt. Col. Paul Ware made the recommendation in a report released Thursday by the attorney for Lance Cpl. Stephen Tatum, a 26-year-old Oklahoma native accused of killing civilians in the Iraqi city of Haditha.

"There is insufficient evidence to find reasonable ground for offenses charged," Ware wrote in the report, which will be sent to Camp Pendleton's Lt. Gen. James Mattis. "I believe (Lance Cpl.) Tatum's real-life experience and training on how to clear a room took over and his body instinctively began firing while his head tried to grasp at what and why he was firing.

"By the time he could recognize that he was shooting at children, his body had already acted," Ware wrote of Tatum's role in the events at Haditha on Nov. 19, 2005.

Ware's lengthy analysis concludes that Tatum was following the lead of the man in charge of his squad, Staff Sgt. Frank Wuterich.

The Iraqis were killed by Wuterich and members of his Kilo Company squad from Camp Pendleton's 3rd Battalion, 1st Marine Regiment after a roadside bomb took the life of a lance corporal and the unit was attacked by small-arms fire.

Five Iraqis who drove up after the bombing were killed first, followed by the slaying of 19 others inside three homes where the Marines have said that they believed insurgents were hiding. The Iraqis who Tatum was charged with killing were inside two of those homes.

If Ware's recommendation is upheld by Gen. Mattis, the convening authority over the case as head of Marine Corps forces in the Middle East, that would leave only Wuterich still facing murder charges in a case that attracted worldwide condemnation and accusations that the Marines had "killed in cold blood."

Charges against a third defendant, Lance Cpl. Justin Sharratt, who was accused of killing three Iraqis, were dropped earlier this month by Mattis.

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A hearing for Wuterich is scheduled to start at Camp Pendleton next Thursday with Ware also presiding over that case.

A fourth defendant originally charged by Marine prosecutors with murder in the deaths, Sgt. Sanick Dela Cruz, later had those charges dropped in exchange for his testimony.

Tatum's lead attorney, Jack Zimmerman, said in a written statement that he and Tatum were happy with Ware's findings.

"We are pleased with the report of the investigating officer and concur with his recommendation to withdraw and dismiss all charges," Zimmerman wrote, declining further comment.

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Ware's references to Wuterich taking the lead in storming the houses suggest that the staff sergeant may have more difficulty explaining away the charges, Solis said. (Solis teaches military law at Georgetown University.)

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Gen. Mattis has already followed Ware's recomendation in dismissing charges against Lance Cpl. Justin Sharratt. I think Solis's predictions about Sergeant Wuterich are premature, since Ware has not heard his side of the story. The pre hearing buzz on the evidence of Lance Cpl. Stephen Tatum's conduct was just as damning and was wrong.

BTW, Jack Zimmerman is an excellent criminal defense attorney who is also a former Marine.

I would not be surprised to see a vigorous defense put forward for Sergeant Wuterich. It should be noted that many of the witnesses who testimony was rejected by Ware in the Tatum case will be testifying against Wuterich. With the credibility of the witnesses already in question don't be surprised if a similar recommendation is made in the sergeant's case.

Also don't be surprised if congressman Murtha refuses to eat his words. He was using these Marines as props in his anti war spiel. His conduct was disgraceful, but he is not a guy to admit he was wrong. Also don't expect any apologies from Time Magazine which was responsible for the atrocity hoax to begin with.

Update: From the LA Times story on Ware's finds:

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Lt. Col. Paul Ware, the hearing officer, rejected the prosecutor's view that despite hearing gunfire, Tatum should have checked to see if women and children were in the line of fire.

"Such restraint might be good practice for law enforcement or special operations forces conducting hostage rescue operations, but not in combat," Ware wrote to Lt. Gen. James N. Mattis, commanding general of the Marine Force Central Command.

If adopted as policy, that level of restraint could lead insurgents to increasingly use civilians as shields, Ware said.

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I don't think Gen. Mattis will disagree with that analysis. I know I don't. It is a point I have been making since this case began. When an enemy camouflages himself as a civilian and uses civilian shields he endangers all civilians. To require what the prosecution asked for would just encourage the use of civilian shields.

Bruce Kessler also comments on the Haditha decisions.