A military judge has found that top Marine Corps officers were unlawfully influenced by a general's legal adviser when they decided to file criminal charges against a colonel whose troops killed two dozen civilians in the Iraqi city of Haditha in 2005I think the taint of command influence goes all the way to the Commandant's office because of the things that Rep. Murtha has said about the case. The defense should be entitled to discovery on these issues and if they don't get it they should be able to claim reversible error on appeal.
The impact of this week's ruling by Col. Steven Folsom in the case against Lt. Col. Jeffrey Chessani was not immediately clear, but his attorneys described it as a "major speed bump."
A legal expert with no ties to the case said it may mean the case will have to start anew.
The ruling forces prosecutors to prove beyond a reasonable doubt that no unlawful command influence led to charging Chessani, according to his attorneys. The Colorado native faces charges of dereliction of duty and violating a lawful order for failing to conduct a full-scale investigation into the civilian deaths.
Eight Marines from Camp Pendleton's 3rd Battalion, 1st Marine Regiment were originally charged with wrongdoing at Haditha. Four enlisted men were charged with murdering the Iraqi civilians and four officers were charged with offenses related to failing to investigate the incident. The dead included several women and children.
Chessani is the highest-ranking officer charged in connection with the incident, which came after a roadside bomb destroyed a Humvee, killing a lance corporal and injuring another Marine.
The ruling in part found that Marine generals overseeing the case were influenced by the legal adviser during closed-door discussions about Chessani's role.
Brian Rooney, one of Chessani's attorneys, said Wednesday that the ruling creates a steep hurdle for prosecutors.
"They have to be able to show conclusively that there was no unlawful command influence, which which the judge found that there was," Rooney said during a telephone interview.
Lt. Col. Sean Gibson, a Marine Corps spokesman for the Haditha trials, said the service would have no comment on the ruling. Prosecutors are barred by policy from commenting on any aspect of an ongoing case.
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Thompson also said that "the taint of unlawful command influence started from the inception of the investigation when high-ranking Pentagon officials decided to make Chessani a political scapegoat to appease a liberal, anti-war press and politicians."
Gary Solis, a military law expert who teaches at Washington's Georgetown University and is a former Marine Corps attorney, prosecutor and judge, said the ruling could have a major impact on the prosecution.
"It most likely means the Marine Corps will have to re-initiate the charging process because you cannot proceed with a case in which there is a finding of unlawful command influence," Solis said Wednesday during a telephone interview. "In a sense, the Marine Corps is fortunate that the ruling comes now. If it came after the case was decided and there was a conviction, that conviction would have to be set aside."
Solis also said the ruling could mean that a new convening authority overseeing the case may have to be appointed. Under the Uniform Code of Military Justice, the convening authority decides what charges should be brought, relying on the advice of a military prosecutor. The convening authority over the Chessani case is Camp Pendleton's Lt. Gen. Samuel Helland.
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What this story reveals is a little piece of the sausage making in these prosecutions. I think there is probably more. A new convening authority would be wise to drop the charges. It was a weak case to begin with.
Bruce Kessler has more on the new developments.
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