Marine Acquitted of Haditha Charges; Judge Delays Trial in LtCol Chessani Case

Wednesday night, a jury panel of seven officers acquitted Marine 1st Lieutenant Andrew Grayson of all charges involving accusations that he covered-up the killings of 24 Iraqis in Haditha on November 19, 2005.  The verdict caused spectators in courtroom on the vast Camp Pendleton Marine facility to erupt in cheers.Chessani Case - Chessani Head Shot - FinalAfter his acquittal, Lt Grayson made comments about LtCol Jeffrey Chessani, one of the two remaining defendants in the Haditha cases, saying he was “one of the most steadfast men… He led by example and he knew the difference between right and wrong.”  LtCol Chessani is being defended by the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan.

Richard Thompson, President and Chief Counsel of the Law Center, observed, “The government ordered these Marines to the front lines, they ordered them to attack the insurgents… Marines, risking their lives, followed those orders without hesitation; their reward ─ criminal prosecution. There must be some righteous person in the chain of command that will say ‘enough is enough.’”

Earlier in the week, in another courtroom on the same Marine facility as Grayson’s trial, two days of motion hearings were concluded in the government’s case against LtCol Chessani, one of the Marine’s most effective combat leaders and the highest ranking officer charged in the Haditha incident.  In that case, Military Judge,   Col Steven Folsom deferred his decision on a crucial defense motion to June 16th, and delayed the actual trial until July 21st.

In May 2008, Col Folsom ruled that he found evidence of unlawful command influence (UCI). Courts consider UCI the mortal enemy of military justice.  The judge’s finding was based upon the evidence that Generals Mattis and Helland, who controlled the disposition of LtCol Chessani’s case, were impermissibly influenced by Marine lawyer Col John Ewers, one of the investigators of the Haditha incident from the beginning.  He was permitted to attend at least 25 closed-session meetings in which Chessani’s case was discussed. 

As a result of that ruling, the burden shifted to prosecutors to prove beyond a reasonable doubt that (1) the facts alleged by the defense are untrue; (2) the facts alleged do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings.  In short, court decisions on unlawful command influence require the military judge to avoid even the “appearance of this evil” in his courtroom. 

To meet their burden, earlier this week, prosecutors presented the testimony of General Mattis and Col Ewers.  Conspicuously absent was the testimony of General Helland.

In what might be a hint of his ruling, earlier in the week Col Folsom asked what remedies to the UCI problem both sides recommended.   Robert Muise, one of the TMLC defense attorneys, asked the military judge to dismiss the case with prejudice (meaning the case could not be recharged against LtCol Chessani).  The prosecution asked for a less severe remedy.   

Chessani Case - Shelbourn, Muise, Chessani, RooneyThe crucial Unlawful Command Influence motion (click here for Motion), which was the focus of this week’s hearing, was filed by the Thomas More Law Center.  Law Center attorneys Robert Muise and Brian Rooney, both former Marines, wrote and argued the Unlawful Command Influence motion on which yesterday’s decision is based.  The two TMLC attorneys, along with two detailed Marine lawyers, LtCol Jon Shelburne and Captain Jeffrey King, are defending LtCol Chessani. 

The criminal charges against LtCol Chessani stem from a house-to-house, room-by-room battle four of his enlisted Marines engaged in on November 19, 2005 after being ambushed by insurgents in the town of Haditha, Iraq.  Even though LtCol Chessani immediately reported the events of that day to his superiors, including the death of 15 noncombatant civilians caught in the crossfire, nobody in LtCol Chessani’s chain of command believed there was any wrongdoing on behalf of the Marines. 

However, months later, a Time magazine story instigated by an insurgent propaganda agent, caused Pentagon officials to order the largest investigation in the history of the Naval Criminal Investigative Services (NCIS).  As a result, LtCol Chessani, now faces dismissal (an officer’s equivalent of a dishonorable discharge), loss of retirement, and imprisonment of up to 3 years. 

According to press reports, 1st Lt Grayson’s attorney, Joseph Casas, said he believed the verdict could influence pending prosecutions. “I think it sets the tone for the overall whirlwind Haditha has been. It’s been a botched investigation from the get-go,” he said. “I believe in the end all of the so-called Haditha Marines who still have to face trial will be exonerated.”

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