From the North County Times: “Wuterich Trial Postponed Indefinitely” by Mark Walker

Not much of an article there Mr. Walker. For example, there is no explanation of the descriptor “Indefinitely”.  Where is the rest of the story? …as they say.

What the word “indefinitely” represents to me is a complete leadership failure on the part of the CA (Convening Authority), I MEF Commanding General, Lt General Thomas D Waldhauser; the Commandant of the Marine Corps, General James F. Amos; and the Secretary of Navy, Ray Mabus. The failure in leadership is based on the complete loss of control and failed command responsibilities in SSgt Wuterich’s legal case.

When it comes to leadership the cause of “indefinite” delay is due to either negligent or is intentional. The reason SSgt Wuterich’s court martial is postponed indefinitely is because of these three “leaders” failure to exercise their responsibilities in this legal case. In addition, they now have no idea when the case will stop rattling around the military appellate court system.

When Congress developed the UCMJ in the early 50s, they had to preserve the commander’s right and responsibility to maintain the good order and discipline of his unit. For that reason, the UCMJ is weighted in the commander’s favor, to a point. The point where it shifts to the individual’s favor is when the case moves into the three tiered military appeal court system. The military appeal process is the counter or check to the commander’s influence. Once the case is in the military appellant court system the weight shifts in the favor of the convicted individual by design.

The military appeal process starts with the CA (Convening Authority). The CA is the authority for the court martial and, in this case, the CA is the I MEF Commander. The CA, as a commander, possesses a tremendous amount of power. The CA is responsible for appointing the judge, the prosecutor, the defense counsel and the sitting members of the court martial. Remember, any verdict by a court martial is only a recommendation to the CA. The CA has the command authority to amend, disapprove findings, overturn or grant clemency of any court martial he convenes. In other words, the CA has the authority to make it go away and end the legal case where it stands.

We saw this authority in action recently in Marine Corps General James Cartwright’s case (Vice Chairman Joint Chiefs of Staff) who was dubbed “Obama’s Favorite General”. The general was considered the president’s next pick for Chairman of the JSC. The general fell afoul of allegations (probably political) of a “romantic” relationship with his female aid, a Marine Captain. The Joint Chiefs Inspecting General was ordered to investigate the matter after an anonymous tip to a Pentagon hotline. The investigation found that the young captain has a tendency, after working hours, to get into her “cups”. The investigation “found no evidence of a romantic relationship prohibited under military rules, but it did criticize the general for failing to discipline the woman after she passed out drunk on a bench in his hotel room during a work trip. The investigation recommended administrative action for two lesser infractions: failure to discipline a subordinate and fostering an unduly familiar relationship” and that recommendation went to the Secretary of Navy, Ray Mabus.

Ray Mabus, the Navy secretary and the senior civilian responsible for disciplinary action against high-ranking Navy and Marine Corps officers, reviewed the evidence and found it insufficient to warrant corrective action for even the lesser offenses.

“I do not agree with the conclusion that General Cartwright maintained an 'unduly familiar relationship' with his aide," Mabus wrote.

Nor do I agree that General Cartwright's execution of his leadership responsibilities vis-a-vis his aide or any other member of his staff was inconsistent with the leadership requirements."

 Secretary Ray Mabus made the charges against General Cartwright go away.

SSgt Wuterich’s case has generated two appeals that have worked their way to the CAAF (Court of Appeals for the Armed Forces) of the United States (the third appeal tier after the Navy and Marine Corps Court of Appeal) despite the fact that his court martial has yet to commence. The first time concerned the release of the 60 Minutes out-takes of the SSgt Wuterich interview.

This time the Sgt. Lawrence Hutchins Case presented an opening. Sgt Hutchins and his squad were accused of kidnapping and killing an Iraqi insurgent, April 26, 2006, in Al Hamdania.  The Sgt was convicted of killing the Iraqi and was sentenced to15 years confinement, reduction to Private and a Dishonorable Discharge. The interesting item about this case like SSgt Wuterich’s is Hutchins defense lawyer reached his EAS and was replaced. For this reason, the Navy and Marine Corps Appeal Court (Appeal tier 2) threw the Hutchins Case out because his attorney was improperly dismissed which resulted in Sgt Hutchins returning to active duty while he waited for the CAAF to uphold the dismissal.

The CAAF found that, despite the fact the replacement of the defense lawyer was not proper; the error was not serious enough to merit a case dismissal. Sgt Hutchins was returned to prison to complete his sentence. We should note that neither Hutchins nor his defense team requested that his defense lawyer stay on active duty (as the Wuterich defense team did) and that seems to weigh heavily with the three judges of the CAAF.

In SSgt Wuterich’s Appeal, because it is an appeal submitted before court martial, his defense team must make the case for “Extraordinary Relief”. The key word here is “Extraordinary” and that means the appeal must present that the client/attorney rights were violated and procedurally the court martial judge has the power to order whatever relief is required. The CAAF judges concentrate some very good questions at both the government and the defense lawyer concerning these two points.

One of the very interesting questions asked by one of the appellant judges to the government’s lawyer, occurred when she stated that the government’s appeal case “may win the battle but lose the war” because of the appearance of unfairness. The judge was referring to the fact that SSgt Wuterich’s defense attorney’s EAS was not extended where the prosecutions attorney’s EAS was extended for the case.

At another point, the government lawyer states that SSgt Wuterich’s Case is like the Hutchins Case. The judges laughing correct the government lawyer in a back and forth that ends with the appeal judges stating this case is nothing like the Hutchins Case. The cases differ in that Hutchins did not request that defense council stay on his case, as did the SSgt Wuterich defense team, and Hutchins defense council left the case post court martial.

Other questions focus on the 6^th Amendment and SSgt Wuterich’s right to counsel that may have been violated when the judge did not take actions to extend the military defense attorney, LtCol Vokey’s, EAS. At one point, because Headquarters Marine Corps Manpower disapproved LtCol Vokey’s EAS extension request, an appeal court judge basically asks should 6^th Amendment rights be resolved by a Colonel at Manpower, Headquarters Marine Corps. The government lawyer answers the question stating that the issue should be resolved in the court system. The appeal court judges seem to accept this, however, I believe that this issue should have been resolved between the Judge, LtCol David M. Jones and the CA, the 1^ST MEF Commander.

The issue of the LtCol Vokey extension is both a legal issue and a command issue. The first place that the command’s legal responsibility and authority intersect is the CA, the 1^st MEF Commanding General. The military judge should have communicated, on the record, to the CA that HQMC Manpower policies presents the appearance of unfairness because they did not extended the EAS of the defense lawyer (and at the same time they extend the EAS of the government lawyer).

Once this issue was referred to the CA, he could then have picked up the phone or used any other of the many communication devices available and talked directly to the Commandant and requested that LtCol Vokey be extended. The Commandant could have ordered the extension to eliminate the appearance of unfairness, no matter what a HQMC Colonel thought or did. The CAAF judges are correct in their inference that HQMC Manpower Colonel’s do not have the authority to adjudicate a Marine’s 6^th Amendment Rights. The CAAF judges seem to have forgotten, however, that there is a chain of command responsibility here to remain fair and impartial and that chain of command should be held accountable.

I say the appeal judges forgot primarily because of the below footnote, taken from the CAAF Order to Judge LtCol. David M. Jones (Wuterich’s Military Judge). The writ that contains this footnote is a legal order to the Wuterich Court Martial Judge to clean up his court procedures and operations. Absent from this footnote, however, is any reference to the CA, whose authority is delegated to the military judge.   

In the event of any such proceeding at Appellant’s court-martial, the military judge should ensure that there is a complete record, including a verbatim transcript of the proceedings.  The military judge also should ensure that the record reflects the pertinent facts regarding any potential conflict; the applicable source of law pertaining to the potential conflict; whether the conflict is actual, imputed, or subject to another characterization under applicable law; whether the conflict requires disqualification or is waivable under applicable law; and, if waivable, whether it has been waived and, if so, by whom.  In the course of any such determination, the military judge should address separately, under applicable law, any conflict arising out of:  (1) representation of an accused by a lawyer whose law firm represents a separate client with a potential conflicting interest; (2) representation of an accused by a lawyer whose law firm formerly represented a client with a potentially conflicting interest; and (3) representation of an accused by a lawyer in light of the attorney’s prior conduct in the case with respect to conflict of interest issues to the extent that such conduct may have been inconsistent with applicable law governing attorney-client relationships.  If the military judge determines that any such determination requires an ex parte proceeding, the military judge should ensure that the record establishes the necessity and basis in law for any ex parte proceeding, including the basis in law for any assertion of privilege as the basis for an ex parte proceeding.  If the accused is not present for any proceeding, the military judge should set forth in the record the basis in law for conducting the proceeding in the absence of the accused.

United States Court of Appeals for the Armed Forces Order; Frank D. Wuterich Appellant vs. David M. Jones LtCol USMC in his official capacity of Military Judge and United States as Appellees; USCA Misc Dkt. No. 11-8009/MC; Crim. App. Dkt. No. 200800183, p. 4-5.

What the CAAF judges are actually saying in the above is that this court martial is so confused and so far off the legal procedural reservation in regards to the defendant’s rights, they can not figure it out and make a judgment. Both the Judge, LtCol. David M. Jones and Lt Gen Thomas D. Waldhauser (1^st MEF Commander) should be professionally embarrassed. Discussions between the lawyers and judge have not been entered into the record and also the accused is absence from the unrecorded discussions violating his rights. The judge, the CA and the Commandant have made a mess out of this case and the only question is it due to neglect or it is done to purposely influence the case in the governments favor.

A court martial delay plays into the government hands because sooner or later SSgt Frank Wuterich’s resources and patience will run out. I stated a long time ago that this will be an endurance contest. This case has endured for almost six years and through five MEF Commanders (Sattler, Mattis, Helland, Dunford and now Waldhauser), three USMC Commandants (Hagee, Conway and now Amos) and five Secretaries of the Navy (England, Aviles, Winter, Penn and now Mabus). I am convinced that somewhere early in this series of general officers and civilian authorities a commitment was made to a political authority. The commitment is that SSgt. Wuterich should be court-martial to silence those critics who claim the Marine Corps is unresponsive to politically perceived criminal acts. The fundamental assumption to this commitment is wrong. Combat actions are not criminal acts and are governed by the Law of War and not the Rule of Law. The 3/1 Haditha Marines followed their ROE, their training and their doctrine. The generals are following a misguided dogma. 

SSgt Frank Wuterich is the last of the original eight Marines charged in Haditha, Kilo Company, 3/1 combat action.  Six cases were dropped completely with only one going to court martial and that case was dismissed. Between 1997 and 2010, the US Navy and Marine Corps conducted 5,161 General Courts Martial with convictions in 4,765 of those cases establishing a conviction rate of 92% Yet, the generals have not moved this case to trial. In the light of the other seven lost cases and despite a 92% conviction rate, the generals know there is no chance of a conviction. If they know they cannot get a conviction then the only tactic the generals have is to delay and hopefully wait out SSgt Wuterich.

Lt General Waldhauser, as Convening Authority, should make this case go away. Delay and the appearance of indifference makes the US Marine Corps leadership look bad. The Marine Corps reputation is based on combat actions in battle and not legal court room proceedings.

If Lt General Waldhauser does not make this case go away, the embarrassing waiting and delay will continue. I suspect that the waiting will come to an end at some point when the CA finally says, enough is enough. At that point the CA will approach SSgt Wuterich with a deal. The deal will be; as CA, I will let you get on with your life; as CA, I will release you and your family from all this pressure of a pending court martial; provided you accept NJP. When that happens, SSgt Wuterich will know he has won. SSgt Wuterich will know the end is near because if the generals cannot get you with a court martial, they will offer you NJP where they can get you without evidence. Hang in there SSgt, sooner or later a real leader will say enough is enough, dismiss all charges and state “let’s move on” despite any unofficial misguided political deal.

Semper Fi,
 

Bob Weimann LtCol, USMC Ret.
Former Commanding Officer, Kilo Company 3/1

 

General Conway, Commandant of the Marine Corps, salutes Rep. John Murtha’s casket
as the only Joint Chiefs of Staff representative at the Murtha funeral.