More inconclusive evidence in Wuterich Haditha case

North County Times:

A federal agent said Wednesday that he couldn't tell if five Iraqi civilians killed nearly two years ago in the city of Haditha were running away when they were shot, as a Marine staff sergeant charged with the killings contends.

Special Agent Thomas Brady said his reconstruction of the scene outside a car where the five men were slain moments after a roadside bomb destroyed a Humvee and killed a lance corporal the morning of Nov. 19, 2005, was inconclusive on that point.

Brady's testimony came on the third day of an Article 32 hearing for Staff Sgt. Frank Wuterich, who is accused of killing 17 Iraqi civilians that day. The hearing will determine whether Wuterich faces court-martial for the largest civilian slaying case to arise out of the Iraq war.

Brady, a Naval Criminal Investigative Service investigator, also said his work clearly showed that two people shot the men, bolstering a defense contention that their client, Wuterich, may not have fired the first shots.

Wuterich's attorneys contend that the reconstruction suggests that while their client shot at those men, it was Sgt. Sanick Dela Cruz and not Wuterich who fired the fatal shots. Wuterich is charged with killing 17 of the 24 Iraqi civilians slain in Haditha and is one of three enlisted men from Camp Pendleton charged in the slayings.

The 27-year-old married father of three maintains he is innocent and that the civilian deaths were an unfortunate result of his Marines carrying out a legitimate action in response to the bombing. Six children and two women were among the civilians killed, slayings that prompted a worldwide outcry when they came to light early last year.

The men from the car were shot moments after emerging from their car. Wuterich maintains that the men were running, a signal he interpreted to mean they were insurgents involved in the bombing and therefore could be lawfully shot.

Dela Cruz has testified the men were not running and several stood with their hands raised over their heads when Wuterich shot them. Dela Cruz also has acknowledged also firing at those men, but testified last week he did not do so until after Wuterich began shooting.

"There were two shooting positions," Brady said under questioning from Wuterich's lead attorney, Neal Puckett, who also attempted to show from the reconstruction that Dela Cruz fired first.

In other testimony, Wuterich was described as a respected squad leader whose dealings with Iraqi civilians prior to the Nov. 19 incident were seen as positive.

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It will be difficult to obtain a conviction on inconclusive evidence. The case against Wuterich turns on whether the men in the car were running away and with out some other evidence it is hard to see how the prosecution prevails. While Wuterich is also charged with the killings of the women and children in the houses, in the previous hearings it was found that the Marines did not violate the law in responding to enemy combat action.

If Sgt. Wuterich avoids court martial, it may raise some questions about the charges against his superior officers for dereliction of duty.