Haditha Marine cleared of
murder charges will challenge
prosecution
by Nathaniel R. Helms
| February 28, 2008
Camp
Pendleton, California – A vindicated Marine lance corporal accused
of war crimes at Haditha, Iraq has been granted testimonial immunity,
Defend Our Marines has learned. Former Lance Corporal Justin
Sharratt will testify on behalf of two enlisted Marine infantrymen
waiting general court-martial in the infamous case.
It is
expected by both defense teams and courtroom observers that Justin
Sharratt will provide testimony beneficial to Lance Corporal Stephen
Tatum and Staff Sergeant Frank Wuterich, the two Marine enlisted men
still facing trial for unlawfully killing Iraqi civilians. Tatum was
Sharratt’s squad mate during two vicious combat tours in Iraq in 2004
and 2005. Wuterich was his squad leader when the unit was ambushed at
Haditha.
Daniel
Conway, a former Marine and an associate of lead defense attorney Gary
Myers and co-counsel in the Justin Sharratt case, said Sharratt
received word Tuesday that he has been immunized from future
prosecution. The decision was made by Lieutenant General Samuel T.
Helland and Assistant U.S. Attorney Alice S. Fisher.
“This was never a matter
of Justin being threatened if he didn’t cooperate,” Daniel Conway
said. “He always wanted to do that. We simply didn’t want him to risk
the exposure without assurances that he was getting immunity. We had a
duty to protect our client by getting assurances from both the Marine
Corps and the U.S. Attorney that he wasn’t being exposed to anything
that could harm him or his family.”
Two-fisted game for life
Another
guiding hand in the complex legal battle still underway in California
is retired Marine Corps colonel Jack B. Zimmermann, an Annapolis
graduate who served two combat tours in Vietnam before moving on to
law. He is the attorney who filed the motion seeking immunity for
Sharratt. The Houston-based lawyer has emerged as a masterful player
in the two-fisted game for life being played in the stuffed little
courtroom at Camp Pendleton.
Zimmermann, as successful in his civilian career as in his Marine
Corps experience, leads the defense team representing LCpl Stephen
Tatum.
“We are
the ones who asked for LCpl Sharratt to be immunized so that he could
serve as a defense witness in our trial and be protected from any
future prosecution as a result,” Zimmermann said on Wednesday.
Sharratt’s family received word Tuesday that Lieutenant General Samuel
T. Helland granted Zimmermann’s motion to provide their son with
testimonial immunity, Conway said.
Last
September, Sharratt was absolved of unpremeditated murder and other
charges by Gen. James N. Mattis, whom Helland replaced last November
as the convening authority in the 15-month, multi-million dollar
criminal investigation. .
“This
clears the way for us to use him, if it becomes necessary,” Zimmermann
added. “He is a fine Marine and comes from a great family.”
From
combat Marine to witness
In
Haditha, Sharratt and Wuterich encountered four armed Iraqi men inside
house number four (as it was named by investigators). It was the
second time Sharratt was forced into no-quarter death duels with
insurgents in Iraq. He has more first-hand experience in close combat
than any other enlisted Marine involved in the Haditha incident except
for his friend Tatum and several Marines who have been called as
witnesses instead of being charged with crimes in the matter.
In
November 2004 Sharratt survived the vicious Battle of Fallujah where
he distinguished himself at the diabolical Hell House. In that
engagement he was in a room-to-room shootout with an unknown number of
insurgents that left one Marine dead, 10 Marines seriously wounded,
and earned Kilo Company, 3/1 a permanent place in Marine Corps lore.
The
squad’s bloody meetings with insurgents a year later at Haditha
ignited allegations in Time magazine that a gang of out of
control Marines slaughtered old men, women, and children in a revenge
killing following the death of a squad mate.
Subsequently, Sharratt and three other enlisted Marines were charged
with murder, assault, and a laundry list of lesser crimes. In
September 2007, Sharratt was exonerated by Lt. Gen. James N. Mattis,
the original convening authority and final arbiter in the Haditha
matter until he was promoted and transferred.
Four
officers were charged with a cover-up after Pennsylvania Congressman
John Murtha, the powerful Democrat who chairs the Armed Forces
sub-committee, accused the Marine infantrymen with cold-blooded murder
and their officers of covering up the massacre. Two of the officers
still face prosecution for dereliction of duty and other offenses.
Immunity essential
Immunity was an essential
condition for Sharratt’s testimony. Attorney Conway is very conscious
of another case that has set a disturbing precedent. Currently, in a
southern California U.S. District Court, a former combat Marine faces
civilian prosecution for allegedly killing a prisoner of war in
Fallujah in November, 2004. That man, former Sgt. Jose Nazario, was
arrested after he was discharged from eight years of active duty.
Myers and Conway needed to protect their client from that same
possibility. Assurances from an Assistant US Attorney in Washington,
D.C. that the federal government was granting Sharratt immunity in the
public convinced the attorneys to let Sharratt testify, Conway said.
Coincidentally, Jose
Nazario is from the same platoon in Kilo Company, 3rd
Battalion, 1st Marines that Sharratt served in at Fallujah.
Nazario was a probationary patrolman on the Riverside Police
Department in August, 2007 when he was arrested for voluntary
manslaughter by the Naval Criminal Investigative Service and indicted
by a civilian federal Grand Jury.
Sharratt is expected to testify about his direct knowledge of
conversations he had with Wuterich, then a sergeant and his squad
leader. He is also expected to shed some light on the squad’s state of
mind, what he knows of the white car incident, and what he knows about
the firefight and killing at the first two houses the Marines swept
through.
Countering prosecution witnesses
Former Haditha defendant
Sergeant Sanick Dela Cruz has already testified that before Wuterich
and his squad was ambushed on a road called Route Chestnut, the rookie
squad leader promised revenge if anyone in his squad was hurt or
killed. Dela Cruz, a two-tour combat veteran and then a corporal in
Wuterich’s squad, testified that Wuterich
and another Marine were smoking cigarettes during down-time at Haditha
dam when Wuterich uttered the threats. A roadside bomb had gone off
that day and injured several Marines, Dela Cruz said.
“Everybody was pretty much upset,” Dela Cruz
told prosecutor Lt. Col. Sean Sullivan. “We were smoking outside ...
for whatever reason Staff Sergeant Wuterich made this comment that if
we ever got hit again we should kill everybody in that vicinity, sir,
to teach them a lesson.”
About a week later, on November 19, 2005, an
IED killed Lance Cpl. Miguel Terrazas of El Paso, Texas. In the
aftermath of the IED blast, Dela Cruz, Salinas and Wuterich shot dead
five Iraqi men who were suspiciously on the scene in a white car.
The squad received small arms fire at the
ambush site, and was ordered by a lieutenant to clear the houses from
which the fire was coming. Wuterich led a fire team that included
Sharratt and Tatum in a sweep through two houses where nine men, women
and children died during the 30-second clearing operation using
grenades and automatic weapons to clear the rooms. Thirteen months
later, Wuterich, Tatum, Sharratt and Dela Cruz were charged with
murder, assault and lying to cover up the incident.
In April 2006, Dela Cruz was given immunity
from prosecution and all his charges were dismissed in return for his
testimony against Wuterich. Since then Dela Cruz has become somewhat
of an embarrassment for the prosecution. During the summer-long
investigation last year, Dela Cruz admitted urinating on one of the
men he shot in a fit of pique. Then, his testimony at Wuterich’s
Article 32 hearing, Dela Cruz was repeatedly discredited on the
witness stand to the point that the investigating officer publicly
announced he had no faith in the sergeant’s credibility. Sharratt is
expected to add his voice to that chorus of skeptics.
Other developments
Last
week, Helland, the convening authority and final arbiter in the
Haditha investigation, ordered Tatum to appear at Wuterich’s trial and
tell the jury his version of the events at Haditha on November 19,
2005. Apparently the prosecution needs something to bolster their
sagging case against the enlisted infantrymen.
Helland’s decision is the latest in a series of pre-trial defense
motions that are slowly grinding away the government’s case against
the four Marines still scheduled for general court-martial.
Tatum,
26, a rifleman in Sharratt’s fireteam at Haditha, is currently charged
with two counts of involuntary manslaughter, reckless endangerment and
aggravated assault. Despite the seriousness of the charges he is in
far better shape than on December 21, 2006 when he was charged with
two counts of unpremeditated murder, four counts of negligent
homicide, and assault. In response to numerous defense motions and
other maneuvers the convening authority subsequently reduced the
charges. Tatum is scheduled to go on trial March 28, though that date
is likely to change.
Wuterich, 27, is charged with nine counts of voluntary manslaughter,
aggravated assault, reckless endangerment and obstruction of justice.
He faced 17 counts of unpremeditated murder and several lesser
offenses before his charges were reduced. He is expected to go on
trial in early to mid-March. Already his trial date has been postponed
twice.
Last
week Zimmermann’s defense team was caught by surprise when the
government unilaterally granted Tatum immunity to testify in
Wuterich’s court-martial and removed the chief prosecutor from his
case. Zimmermann learned of the government’s move during a motion
hearing for Wuterich. At the hearing, Wuterich's attorneys Neal A.
Puckett and Mark Zaid attempted to quash statements Tatum made to
investigators.
Zimmermann says he is filing more motions in addition to ones he filed
last week to suppress all the statements Tatum made to Naval Criminal
Investigative Service agents after Tatum asked for an attorney during
a May 9, 2006 interview.
The
battle for justice continues.
__________________________________________
Nathaniel R. Helms
Defend Our Marines
28 February 2008
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam veteran, former police officer, war
correspondent, and, most recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).
