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Camp Pendleton Marine goes on trial for Haditha killings.

January 4, 2012 1:13 p.m.


Jeremiah Sullivan, San Diego defense attorney specializing in military issues

Related Story: Camp Pendelton Marine Is Last Solider Facing Charges In Haditha Deaths


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

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ST. JOHN: It's been almost 7 years, but this week, a marine is back in court on Camp Pendleton, on trial for the slaying of 25 civilians in Haditha Iraq.

And some people there's still hope for affordable housing.

This is KPBS Midday Edition. I'm Alison St. John in for Maureen Cavanaugh. It's Wednesday, January the 4th, 2012.

Today on Midday Edition, we'll talk about I trial beginning this week on Camp Pendleton. More than 100,000 Iraq civilians died during the course of the Iraq war that ended last month. But the death of 24 civilians in Haditha in late 2005 is still a looming question for staff Sergeant Frank Wuterich. He was a squad leader back then, and when an explosion ripped apart his convey, killing a squad member, he led the violent reaction that resulted in the deaths of 2-dozen civilians, including unarmed women and children. We have in studio to help us explore this subject. Jeremiah Sullivan, who's a San Diego defense attorney specializing in military issues.

SULLIVAN: Good afternoon.

ST. JOHN: Now, you have served as a criminal defense attorney in the Navy for decades, and you successfully litigated some major cases, including acts as a defense attorney for some of the defendants who have been acquitted in the Haditha case already. Would you say this is one of the most important cases coming out of the Iraq war, raising issues of rules and engagement and how they're interpreted?

SULLIVAN: It's certainly the largest coming out of the Iraq war, and here we are, 6 years later, trying to resolve this issue.

ST. JOHN: Right. And if you have any questions or comments about this issue, you can join us here on Midday Edition at 1-888-895-5727. Or you can make your comments on twitter at KPBS midday. What are the charges actually facing Wuterich?

SULLIVAN: Well, sergeant Wuterich has at least nine counts of voluntary manslaughter, some aggravated assaults, failure to follow lawful orders to essentially follow the rules of engagement, and there may be some other obstruction of justice charges.

ST. JOHN: Are those charges different from the ones that other members of his squad had faced earlier?

SULLIVAN: Some are similar, and there are some additional ones. But as far as the voluntary manslaughter, yes, that is the underlying charge.

ST. JOHN: Let's just sort of outline the events that happened that day very briefly. I know there's still a certain amount of uncertainty about what actually happened. But road-side bomb exploded, killing a marine, and wounding two others. Then a car pulled up. The five Iraqis inside were ordered out, they were unarmed, and Wuterich described the day's events on 60†minutes. He said they started to take off. So I shot them. All five were killed by Wuterich, and another marine. Now, the Marines said they began taking rifle fire. Wuterich thought it was coming from a nearby house. So they tasked grenades, and burst into the house, firing their as a result weapons. And he told 60-minute what is he saw. He said there may have been women in there, there may have been children in there. My responsibility as a squad leader is to make sure that none of the rest of my guys died, he told 60†minutes. And at that point, we were still on the assault. They charged into a second house, no weapons were found. More women and children were inside. In all told, 24 Iraqis were killed, 11 were women and children. That's from the story on Iranian NPR yesterday. So there may be some dispute about the facts, and what -- others have called this a massacre. Others have said the Marines were following the rules of engagement. On what grounds were all the other members of that squad acquitted?

SULLIVAN: Well, they went to article 32 investigations, and evidence was presented by the government, testimony, forensic evidence. And they decided that the case did not warrant prosecution, and they were dismissed out of the -- this was the final marine of eight marines charged. Nobody's been convicted. They had one trial where Lt. Grayson was acquitted of all charges, but this'll be the last and final trial.

ST. JOHN: Just to be clear, it was to do with their interpretation of the rules of engagement?

SULLIVAN: Some of it was. Lieutenant Grayson's trial was a little bit different. Some of it was regarding the investigation of the trial. And then there was lieutenant colonel Chessani, he initially was investigated and then charges were dismissed, and he went to a board of inquiry, but that was regarding failure to adequately investigate the allegations.

ST. JOHN: So it was more to do with how the incident was investigated was the reason for the acquittal. Is that possibly something that will come up also in sergeant Wuterich's trial?

SULLIVAN: Well, Wuterich was one of the Marines who was actually a shooter. So I think it's a very different trial than some of the ones that have already gone forward. This will be -- sergeant Wuterich was the senior man in charge there on the ground. And so he will be -- he's actually charged with the manslaughters of actually shooting.

ST. JOHN: Although he was not the only shooter, I understand.

SULLIVAN: That is correct. He had given the orders to clear the houses or pass that word down, and the houses were cleared.

ST. JOHN: Okay. So there were some other people who are up shooters, but they've all been acquitted.

SULLIVAN: Yes, some of them the cases were dismissed, and they were giving grants of immunity to testify at this trial. So there'll be some marines who were present that day who will be called to testify next week.

ST. JOHN: Okay. So today the trial actually begins, I understand. But tomorrow, jury selection begins? ; is that right? And who is on the jury for this trial?

SULLIVAN: Well, they will -- the community authority will select a number of active duty marines since sergeant Wuterich is enlisted, he's elected a 1/3 enlisted composition of his jury, his members, they call them the military. So the government, the defense will spend probably all day tomorrow, maybe part of Friday questioning a lot of marines to see if they are unbiased and can sit on this case. And one of the issues that have come up, have you heard about this trial? I mean --

ST. JOHN: How could they not?

SULLIVAN: How could you find a marine who hasn't? So they're going to spend a lot of time questioning this panel at length to see if they can sit as unbiased, fair and impartial juror.

ST. JOHN: Is that even an issue? Perhaps if they can't, they may have to move the trial?

SULLIVAN: I think every marine in the Marine Corps has heard about this case. So the issue will be, can they still be unbiased? It's going to be a challenge, but I think they can do it.

ST. JOHN: And what will the prosecution and the defense be looking for in this jury?

SULLIVAN: Well, for the defense, I'm sure they're going to want to see if what potential members have combat experience. Have they actually deployed, have they been in combat, have they been shot at? It's a different situation, sitting back here in our comfortable seats in San Diego to second guess these marines, but if you've actually been in combat, been fired upon, had senior friends been killed, it's a different perspective. They're going to want to make sure that they have members on that jury who have been there, and have firsthand witness the carnage of war.

ST. JOHN: And we should clarify this is military justice we're talking about. This is not the same as going to court in the civilian justice system. Can you identify some key differences?

SULLIVAN: That is correct. There are some differences. This will be a trial that will take place at Camp Pendleton in a general court martial. There are some distinctions. For instance, in San Diego Supreme Court, you need 12 members for a unanimous conviction. In the military, the minimum is going to be five. But they just need a majority of the vote. I anticipate they're gone on bring in many marines to sit in the panel, and they could have as many as 12, 15.

ST. JOHN: So how many jurors will there be all together?

SULLIVAN: It has to be more than five, and it could be between five and 12, five and 15.

ST. JOHN: On the jury. And does it have to be unanimous?

SULLIVAN: No, majority.

MAUREEN ST. JOHN: Majority. So that's one of the differences.

SULLIVAN: That's a big difference.

ST. JOHN: Was there -- has there ever been an issue raised that this could be end up in a civilian court?

SULLIVAN: No. The Marines had been investigating the case for over 6†years. No, that issue has not come up.

ST. JOHN: So he's going to be basically judged by a panel of his peers.

SULLIVAN: Correct of the.

ST. JOHN: And a lot will depend, perhaps, as you say, on how many of them have been in combat. I wanted to ask you, whether you think as an attorney who's defended many people in difficult situations, where you feel that what Wuterich told 60†minutes was a mistake, or was that a wise action on his part?

SULLIVAN: You know, it's -- any time you talk to the press, you're taking a calculated risk. There are a lot of facts to this case. And I think we really need to see what comes out of trial this week. Certainly some of the statements appear -- there can be some conflicting statements. However if staff sergeant Wuterich testifies, he can explain them. And again, this is a very large investigation. There's gonna be -- there's always conflicts in the testimony. Of how the material, was he really lying? He'll have an opportunity if he elects to testify.

ST. JOHN: We're speaking with Jeremiah Sullivan, a San Diego defense attorney, talking about the Haditha trial beginning this week on Camp Pendleton. And Will is calling from point loam A. Thanks for joining us. Go ahead.

NEW SPEAKER: My question deals with gathering the witnesses, both for the prosecution and the defense. We're talking about a 7-year delay or 6-year delay, thousands of miles of distance. And I'm thinking about the Iraqi civilians. What provisions are being made to provide both sides an opportunity to gather all the necessary witnesses in this case?

ST. JOHN: Mr. Sullivan?

SULLIVAN: Thank you for the question. It certainly highlights the complexity of this case. Here you have a -- these crimes committed in a war zone during a time of war with Iraqi civilians, and 7†years later, where are they? It's my understanding that they're not going to have any live Iraqis testify. They may have some testimony preserved through depositions. But it certainly is extremely complicated, trying to -- if they wanted to bring Iraqi citizens over, do they want to come? Do we have subpoena powers over them? But trying cases overseas, and on the battlefield is extremely challenging.

ST. JOHN: Have there been efforts on the part of Iraqis in the past through some of the previous court cases to come to testify?

SULLIVAN: I have had Iraqis testify telephonically in other cases, and we're obtaining testimony, article 32. So we have had them, Iraqi citizens testifying telephonically.

ST. JOHN: Has there been a case where they have been unable to obtain a visa to come join the proceedings?

SULLIVAN: I'm unaware of that.

ST. JOHN: Okay. So I got to ask about the timing am you've made the point that it's very difficult to prosecute this, more than 6†years later, nearly 7†years later. So it happened in 2005. Why has it taken so long to come to this point?

SULLIVAN: I think there's probably many answers to that. I do know that this case has languished in our appellate courts. Of the defense or the government had filed writs regarding the 60†minutes footage. They wanted to get the entire footage. They spent a considerable amount of time litigating that matter. There have been a number of continuances based on the complexity of the case. But 6†years later is a long time.

ST. JOHN: Well, is there any connection between the fact that just a couple of weeks ago, US troops finally withdraw from Iraq?

SULLIVAN: I don't believe there's any connection there at all. I believe that the government wants to move this forward in the defense, the defense and the government's interests don't always align. And they've spent some time litigating the collateral matters to include the 60†minutes footage. That's one example. But they have had other issues and motions come up.

ST. JOHN: One can't help but wonder if the case was delayed so reaction to any verdict wouldn't have repercussions on American troops in the country.

>> That's a possibility. I'm not aware of any sound evidence that would establish that.

ST. JOHN: So in your experience, has the Marine Corps responded to this whole episode by changing the way it's training marines? What effect do you have this case has had on the Marine Corps?

SULLIVAN: Certainly you hope it doesn't have a detrimental impact on our marines. They're over there in combat, and if you hesitate, you can get killed. There are marines and our sailors and solars are over there in combat operations, and they have to act fast. And if they don't, you can die.

ST. JOHN: I mean obviously the stress that combat troops face Sone of the things that's brought up as being a factor you have to consider. But combat troops are trained and trained some more to deal with stress. Do you think one of the key issues is the rules of engagement?

SULLIVAN: Well, are the rules of engagement are critical and central. But one of the most important things is you always have a right to self defense. And you're going into a battle zone where unfortunately the terrorists don't always wear uniforms, and they do hide in civilian homes, and they do use civilians as human shields. And they do kill our marines. And our soldiers. So it's -- the rules of engagement are critical.

ST. JOHN: I'd like to get a quick call in. We've got a call from al from Coronado. Are you actually with the Navy, al?

NEW SPEAKER: I was in the Navy. And I have a question about the Marines that are being selected to be the jury. Marines are tight. And they don't want to see a fellow marine go down for something like this. How hard is it going to be to prosecute this case?

SULLIVAN: Well, I think the government prosecutor and the defense will spend quite a bit of time asking those questions. Do you think you can fairly sit as an impartial member of a trial that involves combat operations in Iraq where civilians were killed? I'm sure everyone who's going to sit on this jury, this members trial, is going to know of this case. That's a central issue. The defense is going to want to insure that they have somebody who's combat qualified, who spent some time in theatre. But I think most of the Marines have spent a lot of time in several tours in combat. So it'd be beneficial to have exactly those marines on the jury. But I think they're going to want to do the right thing.

ST. JOHN: Al's question, I think lies at the heart of this case. And I wanted to ask you, Mr. Sullivan, if sergeant Wuterich is acquitted, does his military career continue unaffected?

SULLIVAN: Well, as far as the Court martial goes, he's acquitted. Administratively, he's been held back. He's not been able to deploy. So he has fallen behind his peers. This'll always be a question in his mind. It would be interesting to see what he has in store for the future, but he certainly has the ability to continue to serve if he wanted to. But again, I think there's administrative consequences of this whole case am even if he's acquitted, he's still going to have a heavy burden on his shoulders.

ST. JOHN: Right, he is just 1†man, but he was the squad leader, and to some degree, the reputation of the United States is kind of tied up in this verdict. How long will it take till they reach a verdict?

SULLIVAN: Oh, that's pure speculation. It depends how many witnesses, how long it takes, if there's any continuances, it could be a week, it could be 3†weeks, it could be a month.

ST. JOHN: Well OKAY, well, we've come to the end of our time here so I'd like to thank you so much for coming in. Jeremiah Sullivan, San Diego defense attorney specializing in military issues am appreciate you being with us.

SULLIVAN: Thank you.