Marine Corps appeals Chessani dismissal

NCT:

The Marine Corps is appealing a judge's ruling dismissing dereliction of duty charges against a battalion commander accused of failing to investigate the 2005 shooting deaths of 24 Iraqi civilians.

On Tuesday, Col. Steven Folsom, presiding as the military judge over the case against Lt. Col. Jeffrey Chessani, ordered the charges dismissed after finding that a general was improperly influenced by a legal adviser who also is a witness in the case.

The watershed ruling found that the legal adviser, Col. John Ewers, should not have sat in on meetings and discussions with two generals who have overseen the case. That degree of participation by Ewers, who also investigated the killings in the city of Haditha, Iraq, irreparably tainted the decision to charge and prosecute Chessani, Folsom ruled.

The notice of appeal delays the case indefinitely. The appeal document was signed by the lead prosecutor in the case, Lt. Col. Sean Sullivan, and sent to Chessani's attorneys late Wednesday.

Prosecutors had until Friday morning to decide if they would appeal. If they hadn't and also decided against seeking a review of the accusations against Chessani, this time by a Marine officer with no ties to the case, the ruling would have left only Staff Sgt. Frank Wuterich still facing charges.

One of those attorneys, Brian Rooney, said the appeal wasn't entirely surprising.

"In our opinion, the ruling is appeal-proof," Rooney said Wednesday during a telephone interview. "He spent a lot time saying why he ruled the way he did, citing numerous instances of case law to back up his opinion."

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I think there is another reason that a successful appeal is unlikely. The judges findings turned on a matter of fact, not law. Appeal courts are normally limited to reviewing only errors of law. They cannot overrule findings of fact. There were apparently other cases that supported this finding of fact.