Haditha defendent again ordered to testify

NCT:

On the eve of his trial, the Marine Corps for the third time has ordered a lance corporal charged with killing Iraqi civilians in Haditha to provide testimony against his co-defendant and squad leader.

The order requires Lance Cpl. Stephen Tatum provide the government with ammunition for its case against Staff Sgt. Frank Wuterich, the man who led him at Haditha.

The directive also may signal a weakness in the government's case.

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Tatum's attorney, Jack Zimmerman, calls the directive to testify an attempt to deny his client his constitutional rights.

"It is a diversion, a distraction and horrendous prosecutorial misconduct and overreaching," Zimmerman wrote in an e-mail last week to Lt. Gen. Samuel Helland, the man who issued the order.

Helland oversees the Haditha prosecutions in his role as head of Camp Pendleton's I Marine Expeditionary Force and Marine Corps forces in the Middle East.

Helland has previously issued two orders directing Tatum to talk to Wuterich's prosecutors. Zimmerman and his team of Marine Corps defense attorneys have ignored the directives but may now be forced to make him available.

Zimmerman contends that although anything Tatum might say cannot be used against him at his trial, compelling him to provide testimony against Wuterich is improper. Tatum's lawyer also said he would face disbarment if he let a client facing a similar circumstance in a civilian court talk to prosecutors.

"This deposition effort is so overreaching that in my opinion no civilian prosecution office would contemplate this action," he wrote.

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If Tatum continues to refuse, he could face an additional charge of failing to follow an order.

Attorneys familiar with the case question why Tatum is being pressed so hard, pointing out that the government has granted immunity from prosecution to other Marines who took part in the incident in exchange for their testimony.

Gary Solis, a military law professor at Georgetown University and a former Marine attorney and judge, said ordering one defendant to provide statements against another is unusual.

"I've never heard of a co-accused being ordered to provide testimony against another accused," Solis said in a telephone interview Saturday. "It appears there may well be an issue of self-incrimination, and the unusual nature of the order suggests a lack of testimonial evidence in the prosecution's case."

Mark Zaid, one of Wuterich's attorneys, said Saturday that his defense team also wonders why the prosecution is so adamant about getting a statement from Tatum.

"We do not believe anything he will say will implicate Staff Sgt. Wuterich," Zaid said. "The government has this authority at its disposal, but one could certainly speculate that it reveals cracks in the wall of their case."

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Whether he could be accused of failure to follow an order would turn on whether it was seen on appeal as a lawful order. The story does not discuss any precedent for such an order so its hard to say which way an appellate panel would go. Jack Zimmerman is an outstanding attorney. It is possible that he could order his client to not answer the questions and appeal the order before the case goes to trial. Wuterich's trial has already been delayed over an attempt to get the out takes from a 60 Minutes interview. Both of these last minute attempts to get evidence suggest a lack of confidence by the prosecution.