No Murder Charges Recommended For Wuterich

From LtCol Paul J. Ware’s Investigating Officer’s Report on SSgt. Frank D. Wuterich:

U.S. Marine Staff Sergeant Frank D. Wuterich is seen at Camp Pendleton August 30, 2007. An investigating officer has recommended that no murder charges be brought against U.S. Marine Corps Staff Sgt. Frank Wuterich in connection with a massacre of civilians in the Iraqi town of Haditha in 2005, defense attorney Mark Zaid said on Thursday.

Recommended disposition of Charges

Charge I:

Specifications 1-5- withdraw and dismiss Specifications 6-12- withdraw and dismiss Specification 13- withdraw and dismiss

Charge II:

Specification 1- withdraw and dismiss Specification 2- withdraw and dismiss

Charge III:

Specification- withdraw and dismiss

Prefer and Refer the Following Charges

Charge I, Article 134 (Negligent homicide)

Seven specifications of negligent homicide, one for each victim within House 2.

Charge II, Article 92

Two specifications of willful dereliction of duty

Two specifications of violating a lawful general order

Charge IV, Article 78

One specification of accessory after the fact for negligent homicide

Charge V, Article 134 (misprision of a serious offense)

One specification of misprision of negligent homicide.

Analysis of Recommendations

Charge I, Specifications 1-5

The charges involving the white sedan are based entirely on the testimony of Sgt Dela Cruz. The evidence does suggest that the men were not running away, but that does not discount SSgt Wuterich’s belief they were running. One or more of the men started to move as Sgt Dela Cruz shot them. The Government points to numerous supportive exhibits but each ties back to Sgt Dela Cruz and his credibility is the key issue. The competence, professionalism and attention to detail by Government counsel are obvious and impressive. However, regardless of how competent the counsel are, the facts remains that these charges rest upon an immunized Marine whose character for truthfulness, incentive to please the Government and obvious self interest are, in my opinion, obstacles too great to overcome. Therefore I recommend withdrawing and dismissing Specifications 1-5 of Charge I and Charge II and its specifications.

Charge I, Specification 6-12:

Although there are reasonable grounds to believe the accused committed the offenses as alleged in Specifications 6-12 of Charge I, confusion as to how the events unfolded, coupled with the unique stresses of combat operations will make proof beyond a reasonable doubt of murder or manslaughter unlikely. The most likely mens rea which may be proved under these circumstances is simple negligence. Accordingly I recommend changing these specifications to the lesser offense of Negligent Homicide and pursue the theory that SSgt Wuterich failed to exercise due care in identifying the occupants of the back room of House 2.

It is my opinion that the accused was in the back room of House 2 and his denial of any participation is born out of a lack of memory of the traumatic events, or a deliberate denial because he is aware he acted criminally within the room. In the event a trier of supervise the Marines as they cleared House 2 was willfully derelict. The Marines had no knowledge of a runner entering House 2. Unlike House 1, no one saw or reported fire coming from House 2. The Marines knocked on the door and LCp1 Mendoza shot an unarmed man through the door that responded to the knocking. It is reasonable to expect SSgt Wuterich to use more due care in searching for a runner he did not see and to halt the assault into House 2 and assess the situation after witnessing LCp1 Mendoza kill an unarmed man through a door.

Finally, if he did not participate in the shooting, he had a duty to report accurately what occurred. If he witnessed these events but willfully failed to take action to accurately report these events to superiors he may be held liable under several alternative charges ranging from accessory after the fact under Article 78 for negligent homicide, misprision of a serious offense under Article 134 and/or Article 92 for willful dereliction of duty and violating a lawful general order.

Charge I, Specification 13

The ambiguity in this investigation with regard to the events in House 1 (Charge I, specification 13) is different from related cases because SSgt Wuterich was in charge and led the fire team in the assault.

What this investigation has demonstrated most clearly is there was, or is, a conflict between what was taught to Marines in Third Battalion, First Marines concerning the  Rules of Engagement (ROE) and the tactics_for clearing a room in Military Operations in Urban Terrain (MOUT).

I still believe that pursuing any charges under the theory that further positive identification after entering a room you reasonably believe contains enemy combatants inside would significantly impact combat operations and is an unwarranted, ill conceived, and dangerous application of restraint. I also believe that SSgt Wuterich and his Marines were taught MOUT techniques that cannot reasonably be used within the ROE in place on 19 November 2005. Our Marines should be able to rely upon being taught tactics which will not later subject them to criminal liability if properly employed. Teaching a Marine to use a tactic and then holding that Marine legally liable when he uses that tactic is simply wrong. If the tactic is illegal, then more education and interaction between the  judge advocates and the tactics instructors is the answer, not prosecuting those that employ the tactic.

Charge II and its specifications:

If a decision to refer specifications 1 through 5 of Charge I is made, then the Government believes that Sgt Dela Cruz is credible, and therefore dismissing Charge II and its specification and preferring and referring an additional charge of Article 134 (obstruction of justice) is recommended. If Sgt Dela Cruz is to be believed, that he provided false information upon advice of SSgt Wuterich, it is illogical to allege that as a solicitation to make a false statement. Clearly it is an obstruction of justice and the Government should draft the specification in general terms, something along the lines of

alleging he “advised Sgt Dela Cruz to provide false information” and supplement that with a bill of particulars.

Charge III and its specification:

I recommend dismissing Charge III as there is no evidence to support reasonable grounds that the statement alleged in the specification, if made, was official.

Conclusion

I am recommending that the Government pursue the lesser offense of negligent homicide and not murder because I believe after reviewing all the evidence, no trier of fact can conclude SSgt Wuterich formed the criminal intent to kill. The evidence is contradictory, the forensic analysis is limited and almost all witnesses have an obvious bias or prejudice. The case against SSgt Wuterich that he committed murder is simply not strong enough to prove beyond a reasonable doubt. What the evidence does point to is that SSgt Wuterich failed to exercise due care in his own actions or in supervising his Marines. When a Marine fails to exercise due care in a combat environment resulting in the death of innocents, the charge of negligent homicide, not murder is the appropriate offense. Accordingly I believe the elements and theory of negligent homicide best fits the evidence of what occurred inside House 2.

Finally, although I believe the Government will fail to prove beyond a reasonable doubt that SSgt Wuterich committed any offenses other than dereliction of duty, due to the serious nature of the charges, I recommend referral to a general court-martial.

This excerpt is taken from a scan of a pdf file of this report forwarded to me by David Allender (aka “RedRover”) who is behind the great site, Defend Our Marines.

Some emphasis has been added for clarity.

Especially note LtCol Ware’s statement that he believes SSgt Wuterich at worst should only be found guilty of dereliction of duty.

This is great news, of course.

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