A judge has indefinitely delayed the scheduled June 15 court-martial of Marine Lt. Col. Jeffrey Chessani, the highest ranking officer to be charged with a crime in the so-called “Haditha Massacre” case.
The military judge, Lt. Col. Steven Folsom, has deferred making a decision on a defense motion asking that the case against Chessani be dismissed “with prejudice” for alleged undue command influence in the decision to prosecute the seasoned combat commander.
Chessani’s defense team expressed concern that Folsom will dismiss the charges “without prejudice,” leaving the door open for Chessani to be charged again, according to Richard Thomas, president and chief counsel of the civilian law firm representing the officer.
Last week, a seven-member jury found Lt. Andrew Grayson, the first of three defendants to face general court-martial in the Haditha incident, not guilty of obstruction of justice, making false statements and attempting to obtain a fraudulent discharge. His exoneration followed a four-day hearing at Camp Pendleton in California that laid out the government’s multi-million dollar case in its entirety.
Grayson became the sixth of eight original defendants cleared of any wrongdoing in the incident. The panel’s verdict put the already weak prosecution case in total disarray, several attorneys involved in the case said.
Chessani is awaiting general court-martial for dereliction of duty and orders violations for allegedly failing to investigate and report the Nov. 19, 2005 incident in Haditha, Iraq. He faces dismissal from the service, loss of all retirement benefits, and three years in prison if convicted.
The criminal charges against Chessani stem from a house-to-house, room-by-room battle that four of his enlisted Marines engaged in after being ambushed by insurgents in Haditha. One Marine was killed and 11 others were wounded in the fighting.
Charges were filed against the Marines following a published report alleging that they had murdered 24 Iraqis in Haditha.
Folsom’s ruling follows recent testimony at Camp Pendleton by Gen. James N. Mattis. The prosecution called Mattis to refute defense claims that he was unduly influenced to press charges against the Marines by Col. John Ewer, the Marine lawyer who investigated Chessani’s command in Iraq and later became Mattis’ personal legal counselor.
Ewer was assigned to investigate the alleged massacre in the winter of 2006 for Army Maj. Gen. Eldon Bargewell. Ewer was still Mattis’ personal attorney when Mattis decided to bring charges against Chessani on December 21, 2006. He remained in the position when Lt. Gen. Samuel Helland took over responsibility for prosecuting Chessani after Mattis was promoted to four-star rank last November 1 and transferred.
Mattis testified that he was not influenced by Ewer. But Helland did not testify along with Mattis.
“The prosecution made a colossal blunder not calling Lt. Gen. Helland to testify,” opined Thomas, who presides over the Ann Arbor-based Thomas More Law Center.
“Folsom has already decided there is evidence of inappropriate command influence and it is now the prosecution’s burden to prove beyond a reasonable doubt that it didn’t occur. Without Helland’s testimony to corroborate Mattis, they failed to meet that burden.”
Thomas said military courts consider unlawful command influence the most egregious violation of military justice because it irreparably taints the opinions of prospective jurors.
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