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Marines Involved In Haditha Killings Face Dismissal For Lying TO Investigators

April 23, 2012 1:36 p.m.


Neal Puckett is the attorney who represented former Staff Sgt. Frank Wuterich during his court marshal.

Related Story: Haditha Marines Face Dismissal For Lying To Investigators


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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CAVANAUGH: Lies surrounding the Haditha massacre investigation lead to two dismissals for two marines. And the challenges ahead for NPR's new CEO.

This is Midday Edition.

I'm Maureen Cavanaugh, it's Monday, April 23rd. Our top story on Midday Edition, are the continuing rep cushions of the Haditha case at Camp Pendleton. The secretary of the Navy ordered the Marine Corps to begin the process of dismissing two marines who testified at the trial of former staff sergeant Frank Wuterich. He pleaded guilty to one count of negligent dereliction of duty stemming from the 2005 Haditha case. In the case, 24 unarmed Iraqis were shot by members of a U.S. marine squad headed by Wuterich. Now the focus of the administrative action is on two of the Marines who testified at Wuterich's trial. Sanick Dela Cruz, and Mendoza. The two admitted to initial relying to investigators about the incident at Haditha. Joining me is the attorney who represented Frank Wuterich during his court martial, Neal Puckett. Welcome to the program.

PUCKETT: Good to be back, Maureen. How are you?

CAVANAUGH: I'm quite well, thank you for doing this. The defense hammered Sergeant Dela Cruz for lying to investigators about what happened at Haditha. During the trial, Dela Cruz said Mendoza had already admitted to first lying to investigators before the trial; isn't that right?

PUCKETT: That is right. In fact they were both interviewed as early as 2006, and then testified in the article 32 investigation hearing in 2007, and both admitted lying there as well.

CAVANAUGH: Now, is it surprising to you then that the Marines have been ordered to begin separation proceedings now against Dela Cruz and Mendoza for lying to investigators?

PUCKETT: Well, I'm surprised about two things. One is that it took the secretary of the Navy to order this action. Obviously he got some kind of after-action report or brief or post trial investigation about this and was shocked to learn that they were relying on the testimony of lying noncommissioned officers. But it was clear even to the NCIS agents at the time that these people were lying. In fact they told us, they told the prosecutors. So what's surprising is that the prosecutors themselves didn't refer these two sergeants for disciplinary action to their individual units immediately after the Court martial.

CAVANAUGH: Right. Obviously the prosecutors in the case against Frank Wuterich knew Dela Cruz and Mendoza initial relied to investigators, and they decided to put them on the stand. But they changed their stories. They told different stories than the lies they told to the investigators. Do you think there's anything wrong with that?

PUCKETT: Well, as an attorney, one of the things that -- one of the functions we all serve is as an officer of the Court. So none of us are allowed, whether on defense or prosecution, to perpetrate a fraud upon the Court. And I was concerned from the very beginning that the prosecutors were sponsoring perjury, essentially to try to prove their case, and even confronted them about this, and they seemed to sort of brush it off and talked around it and said we have an obligation to put all the evidence in front of the jury. Yet there, is an ethical obligation to prevent attorneys from sponsoring, in other words putting up witnesses on the witness stand, who they know are lying. So I've been concerned about that since the trial.

CAVANAUGH: However, these two men as the secretary of the Navy has issued this idea of starting these dismissal proceedings against these two marines, perjury is not among the charges. So what they said during the trial is not at question here as far as the Navy secretary is concerned.

PUCKETT: Well, that's kind of mixing terminology there. Something becomes perjury once there's testimony to a materially false statement under oath in a proceeding like court martial. There are also other charges like false swearing and make a false official statement. But the bottom line from the secretarial point of view is that the individuals who are noncommissioned officers in the Marine Corps lied when it was their duty to tell the truth.

CAVANAUGH: Why was this action, do you think, taken by Navy secretary and not by the Marine Corps? Is that unusual?

PUCKETT: Well, actually it's fairly unusual for people who are witnesses cooperating with the government to be prosecuted after they testify, even if they are lying. And where we see come up is sometimes we get false allegations of sexual assault, and they feel the need to press it onto court martial, yet they have a sense that the individual is lying. But because the individual is in a quote unquote victim statute, they never pursue charge was make a false statement because they're in a victim status. Also we find -- also we find the military justice system rarely goes after people because it's not common for them to do so. They might feel it's difficult for them to prove. But in this case, this was a really, really big case, went on for six year, a lot of money was spent in prosecuting staff sergeant Wuterich, and these people, these two noncommissioned officers, were people who helped the government make their case, and maybe there wasn't any incentive for them to refer them for actual prosecution.

CAVANAUGH: Now, the investigators in this case realized these two marines were not telling the truth in their initial investigation. They've known for that years. And the action being taken is by the Navy secretary to ask they be separated from the corps now. Why do you think this is happening?

PUCKETT: That's a really good question. There may have been just a kind of a sense of moral outrage from him or by him, when he read whatever report was given to him after these cases were finally completed. The fact that -- you know, one of the reasons the case fell apart, and we were offered a plea bargain, if you will, by the prosecutors, was because these witnesses were so obviously lying, and they weren't going to bible to make a case on the charging they had brought to the Court. Maybe he saw that as a way of maybe putting things right in the military justice system because it had been so tragically flawed from the investigation through the prosecution phase, and been so badly handled by the chief prosecutors.

CAVANAUGH: Now, Neal Puckett, you're an attorney that deals quite often with military matters. What is the procedure that has to take place to separate Dela Cruz and Mendoza from the Marines?

PUCKETT: What happens now?

PUCKETT: Because they've both been in as long as they have been, and they're both entitled to a hearing before a board before they could be separated, first a prosecutor is going to have to present the case against them, and the board is going to have to vote by majority to substantiate the allegations. Let's just call it lying for now. And if the allegations are substantiated, the second level of analysis is, should that warrant their separation from the Marine Corps? If the answer is no, they're simply retained. If the answer is yes, then the board has to make pay determination as to how to characterize their service. And there are three characterizations, honorable, general under honorable conditions, and other than honorable conditions.

CAVANAUGH: So this is not a done deal. There needs to be a procedure that needs to be followed?

PUCKETT: It's not a done deal. There say power that the secretary of the Navy holds by statute, and by regulation, that even sometimes if a board recommends if somebody be retained in the service, he has authority to separate individuals from the naval service, which of course including the Marine Corps, it's called a plenary authority, a super authority to override the regulations, if it's justified as being in the best interests of the naval service. Even if they are recommended to be retained in the Marine Corps by either of the two boards, you know one of the other of them, the secretary of the Navy can still require them to be separated. And I suspect that since he's giving the order to have that done, that's ultimately going to be what's going to happen. Probably by mid-summer, both of them will be civilians.

CAVANAUGH: Let me just ask you, my last question to you, the Iraqi government is still quite upset about this case. 24 unarmed Iraqis dead, no one really held accountable for that incident. Do you think this action against the two marines has something to do with trying to placate the Iraqis?

PUCKETT: It's possible that it does in some disjointed or disconnected way, but I fail to see how any Agrieved Iraqi survivor or victim would feel appeased in any way by hearing that two of the Marines who were there that day and fired their weapons are being fired because they lied in a court martial. I don't think that is any kind of justice for the loss of those 24 people that day.

CAVANAUGH: Neal Puckett, thank you so much for speaking with us.

>> Thank you.