Last Friday, October 17th, observers in a packed courtroom filled mostly with Marine officers, intently listened as a Navy appellate lawyer asked the three-judge panel of black-robed Navy officers to reinstate the criminal charges against Marine LtCol Jeffrey Chessani. The location was the Navy-Marine Corps Court of Criminal Appeals located at the Navy Yard in Washington, DC.At issue was a ruling earlier in the year by military judge Col Steven Folsom, USMC, who dismissed all of the charges against Chessani on grounds of Unlawful Command Influence.
LtCol Chessani, a twenty-year Marine veteran, with three tours of duty in Iraq and considered one of the nation’s top combat commanders, sat quietly in the courtroom and listened to the give and take between the lawyers and the panel of judges as they dissected the law concerning his case.
Robert Muise, an attorney with the Thomas More Law Center, a national public interest law firm, based in Ann Arbor, Michigan, argued the case on behalf of LtCol Chessani. The Law Center has been defending Chessani throughout his prosecution alongside his detailed Marine lawyers, LtCol John Shelburne and Captain Jeff King. Captain Kyle Kilian, a Marine appellate defense lawyer who assisted in the appeal, sat at counsel table with Muise.
Chessani is the highest ranking officer facing criminal charges as a result of the much-publicized and ill-described “Haditha massacre.” The criminal charges against him stem from a legitimate combat action taken by four enlisted Marines in his command after they were ambushed by insurgents in Haditha, Iraq, on November 19, 2005. Their actions resulted in the deaths of several ambushing insurgents. Unfortunately, several civilians were also killed in the house-clearing operation.
Even though Chessani wasn’t present during the incident, he was criminally charged with failing to launch a full investigation into the incident. If convicted, he faces 2 ½ years imprisonment, dismissal from the Corps, and loss of all of his retirement pay.
Each side was allotted 30 minutes to present their case. Both sides presented spirited arguments to a fully engaged panel of judges, which peppered both lawyers with questions. Many times appellate judges’ questions reveal concerns they personally have with the legal issues involved.
Richard Thompson, President and Chief Counsel of the Thomas More Law Center, observed the oral arguments. Said Thompson, “Clearly, the court had a command of the facts and legal issues of the case. They seemed concerned with the appearance of unlawful command influence due to the fact that Col John Ewers, the legal advisor to the convening authority, General James Mattis, sat in on hours of discussions the General had with military lawyers concerning the Haditha prosecutions. Col Ewers personally interrogated Chessani during the investigation and co-authored the infamous ‘Bargewell Report’ which became the basis of the Haditha prosecutions.”
Thompson went on to say, “As a portends of a possible problem for the prosecution, seconds after the Government lawyer began his oral argument to reinstate the criminal charges, he was interrupted by the court and asked whether the court even had jurisdiction to hear the case because of a delay in filing the record of trial. However, the primary concern of the judges seemed to be the appearance of unlawful command influence. The judges were also concerned that the government simply did not meet its burden of proving beyond a reasonable doubt that there was not unlawful command influence. As Col Folsom explained in his ruling, the government only called two witnesses.”
It could take the Navy-Marine Corps Court of Criminal Appeals several months to render a decision in this case. Its decision could then be appealed to the Court of Appeals for the Armed Forces (CAAF) and then even to the U.S. Supreme Court.
Because the dismissal of charges against LtCol Chessani was “without prejudice,” indications are that even if the Government lost all its appeals, it would simply recharge him.