Haditha trial postponed for week

NCT:

The court-martial of Staff Sgt. Frank Wuterich has been delayed at least a week so recent statements by witnesses and survivors of a group of Iraqi civilians slain in Haditha two years ago can be translated from Arabic to English.

The long-anticipated trial testing the proper application of the military's rules of engagement also is running into other witness issues and a renewed attempt by prosecutors to get the outtakes of a "60 Minutes" interview with Wuterich.

On Monday, one of Wuterich's two civilian attorneys, Mark Zaid, wrote in an e-mail that the Camp Pendleton Marine was in Iraq with other members of his defense team last week when the Iraqi witness statements were recorded.

Prosecutors also were in Haditha recently talking with witnesses and survivors of the killings that took place on Nov. 19, 2005.

Wuterich's court-martial was to begin on March 3 and is now tentatively slated to start on March 10, said Lt. Col. Sean Gibson, a Marine Corps spokesman. Wuterich is charged with nine counts of voluntary manslaughter and related offenses arising out of the Haditha killings.

Prosecutors have said the Iraqi witnesses won't come to the U.S. for Wuterich's trial or the upcoming court-martial for one of Wuterich's squad mates, Lance Cpl. Stephen Tatum. Tatum's trial on two counts of involuntary manslaughter for the deaths of two children at Haditha is scheduled to start in late April.

But the Iraqis agreed to talk with attorneys if they traveled to Iraq, prosecutors have said during pretrial court hearings.

Defense attorneys have complained that the Iraqis' refusal to appear in court harms their ability to confront them and challenge what they say. If their testimony is limited to recorded videotape, the Iraqis cannot be cross-examined and cannot be questioned by the jurors, a practice allowed in military courts.

Other witness issues are emerging as the trial nears. One surrounds whether Tatum will comply with an order that he testify against Wuterich under a grant of immunity, meaning anything he says on the stand cannot be used against him at his own trial.

Last week, a prosecutor, Capt Nicholas Gannon, said he had not been able to confirm if Tatum will abide by the order. Attempts to resolve the issue with his attorneys have not been successful, Gannon said.

Tatum's attorney Jack Zimmerman declined to comment when asked about the issue. But Zaid said the Wuterich trial team has been told that Tatum will not testify at their client's trial.

Another potentially key witness is Sgt. Sanick Dela Cruz, who had murder charges against him dropped last April in exchange for his testimony.

Zaid said that Dela Cruz is resisting defense attorneys' attempts to question him in advance of Wuterich's trial.

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The testimony from these witnesses present some interesting legal issues. Defendants are permitted to confront witnesses against them. Will a confrontation during a deposition be adequate to meet the constitutional test. I suspect defense attorneys will argue that it does not. Dela Cruz refusal to talk with defense attorneys is another interesting question. Sort of an order from the judge he is not required to talk with the attorneys. On the other hand Tatum has been ordered to testify for the prosecution but will apparently raise fifth amendment grounds despite the limited immunity contained in the order.

We now have another week to argue these issues while they translate the new transcripts from Haditha.