Military Justice Itself May Be On Trial In Camp Pendleton's Last Haditha Case

CAVANAUGH: Combat experience, and the ruling of engagement, both major factors in Camp Pendleton's Haditha trial. And we mark the 100th anniversary of San Diego's free speech fight. This is KPBS Midday Edition. I'm Maureen Cavanaugh. It's Tuesday, January 10th. Our top story on Midday Edition. The Haditha trial is underway at Camp Pendleton. More than six years after 24 Iraqi civilians, including women and children, were killed by a squad of US marines. Opening statements by both prosecution and defense have been delivered. KPBS senior metro correspondent was in the courtroom on Monday. That's Alison St. John. And she joins us now. Hi, Alison. ST. JOHN: Hello, Maureen. CAVANAUGH: You've described the man on trial, Frank Wuterich, as the last man standing in the Haditha case. Why? ST. JOHN: Well, all the other members of his squad who -- some of them actually did go to trial, were either exonerated, acquitted, one was acquitted at trial, or had their cases dismissed for kind of administrative reasons. So it seems like here after all this time, the case has landed firmly on the shoulders of staff Sergeant Frank Wuterich. CAVANAUGH: What were the most compelling points of the prosecution's opening statement? ST. JOHN: Well, the prosecution painted a very photographic picture of what actually happened in the two houses that the Marines stormed. Four marines actually stormed a couple of the houses, and they used extensively the interview on 60 minutes that Wuterich gave back in 2007, and some of the things that he said appear to be somewhat problematic for his case. He did say that there were some -- likely, there could have been women and could have been children in the rooms in the house which he stormed. He said my job is to make sure that no more of my guys died. It all happened after one of his quad was skilled in an IED blast. And so his position there was that his job was to make sure that no more of them died. But the prosecution said that he did not lose control of his squad. They all obeyed him, but that he made some fatal assumptions, in other words about the people in the houses that he killed, because no weapons were found in those homes, subsequently. And that he lost control of himself. CAVANAUGH: What is the defense claiming that it's going to show during the trial? ST. JOHN: Well, they questioned the testimony of some of the witnesses who are going to be put on the stands this month, saying that they were promised immunity and actually characterized them as a bunch of scared marines who were promised immunity. So their attempt to undermine the testimony that is going to be presented. They also said they wanted to show a bigger context, that Haditha was Abuzz with insurgents, and the whole feeling was very keyed up. They wanted to show that this was not just some isolated event where a squad went crazy after one of their members of killed. This was at a time when Haditha was really -- everybody was on -- all the Marines were being warned, there were a lot of incidents going on, so they were very much on their toes when this happened. And then they said that Wuterich's character is really perhaps one of the main things that they're going to build on to show that his character is good, that all he wanted to do was to protect his men. But when he said things like shoot first, ask questions later, that actually he was meaning hesitation kills, and he wanted to protect his men. They ended on the thought that the jury should give Wuterich his life back, that they should put Haditha behind them and move on. CAVANAUGH: Now, as I said in the opening, there are combat veterans, marine combat veterans on this military jury, and that's one reason some people think the prosecution may face an uphill battle. But you spoke with a law professor who gave some other reasons: ST. JOHN: Well, are he did agree that, you know, that having a jury of peers -- people who all had combat experience is a little different from if you were in civilian court with people who had not. They might see this very differently. But Gary Solis who actually has been, and was before he became an academic, he was with Georgetown University now, was a prosecuting attorney on Camp Pendleton. So his perspective is good. And he said that one of the big problems is just the amount of time that has gone by since the incident, because it's very difficult to establish the evidence, corroborate evidence after all dollar time has gone by. And he made the point that defense -- sorry, prosecution, military prosecutors only serve for three years. And then they get replaced. So this particular case has seen more than one team of prosecutors. And the defense on the other hand has a very experienced defense attorney, Neil Puckett, who's been on the case right from the beginning. So he said that the fact that the prosecution took so long to marshal their case and get to this point is a major problem for them, and that they could have an uphill battle establishing what really happened. CAVANAUGH: We do have a clip from Gary Solis, I think that's you included in your news earlier today. That's hear that clip right now. NEW SPEAKER: The prosecution is swimming against the tide. Not necessarily because of the facts of the case, which are pretty strong in favor of the prosecution. The prosecution, however, has taken six years to come to trial, and the benefit of the delay accrues to the defense. CAVANAUGH: And so he mentions that timeframe once again. ST. JOHN: Right, and Maureen, I think it's worth mentioning, in terms of the timing that we are just a few weeks out from the final withdrawal of US troops from Iraq. And this obviously has had an effect too, in the sense that there won't be any US troops in that country to take any time of reaction if people over there are unhappy with the conclusion of this. CAVANAUGH: Alison, we have to leave it there with you. I want to thank you so much, I know that you're going to be following this trial. ST. JOHN: Yes. CAVANAUGH: Thank you. And I would like to welcome David Michael Brahms, a retired Marine Corps brigadier general, also a practicing military attorney with an office in Carlsbad. And thanks for coming in. BRAHMS: My pleasure, Maureen. CAVANAUGH: There often seems to be a difference in the way the military views law and justice, and civilians do. Do you see there's a difference there, and if there is, could you explain that to you us? BRAHMS: When you come to the fundamental roots, they're the same. They all start with the constitution of the United States , a long-standing tradition of justice in the Anglo American experience. It differs from terms of procedures. We don't have a prosecuting attorney as we have here in San Diego. Two of them, who make judgments about what cases should go to trial and how to proceed. That's a commanding office's determination. Someone who presumptively has a lot of military experience, and combat experience, in a sense. The rules of evidence, they have fundamental due process rights are exactly the same. CAVANAUGH: You made the point of the combat military experience, and that was a big point in choosing the members of this 8-man jury in this proceeding up in Camp Pendleton. What does someone with combat experience sigh in this story that we're hearing from staff sergeant Frank Wuterich about what happened on that day, that perhaps a civilian would not comprehend? BRAHMS: In fact, we did have a case involving facts not unlike these in the civilian courts in Riverside. And that former marine was a policeman at the time was acquitted by a civilian jury who seemed to understand what was going on. These are people who have been there. They understand the horrific nature of war and the craziness which attains in a combat environment. It is like no other environment, save perhaps in a microcosm of a policeman on the street faced with extraordinary danger at 2:00 in the morning and an armed suspect. You have to make judgments in a split second. You have to make judgments predicated upon your training, you have to make judgments based on the intelligence information that you have. CAVANAUGH: I'm sorry, go ahead. BRAHMS: Well, we don't like to talk about it. You're scared to death. This is crazy, crazy setting. And you make the best judgment you can. And after the fact, when they're put under a microscope sometimes, it just don't look very good. Particularly when we have a bad result. CAVANAUGH: And particularly when I think people are -- either they don't know or are sort of put off by what they hear about the rules of engagement in a combat situation. I know that staff sergeant Wuterich said that he was basically -- the rules of engagement as he understood that was that if someone -- if there was an adult male who was not obeying commands, that you could shoot that person. And that sounds really sort of outrageous, I think to a lot of civilians. Is that a rule of engagement? BRAHMS: Have you ever been in a situation where people you don't know hate yer guts, are armed, and want to kill you? I mean, that's the setting for these kinds of judgments. You do not have time to do a complete analysis, no regression analysis in this one. You make the best choice you can. Yes, people who, say, come up on a roadblock, where you're trying to sort out the good guys from the bad guys, you give them instructions. You tell them assume a posture, which is not threatening to you. And if they don't, the rules often allow you to shoot them. Ugly? Yes. War is ugly. CAVANAUGH: We have a clip from staff sergeant Frank Wuterich from that 60 minutes interview, that Alison alluded to he gave in 2008. NEW SPEAKER: Everyone visualizes me as a monster, a baby killer, cold-blooded. You know, that sort of thing. And it's -- that's not accurate, and neither is the story that most of them know about this incident. They need to know the truth. CAVANAUGH: And you alluded to -- he talks about the truth, but you alluded to the fact that truth is a rare commodity when you get into a situation like that, and there's that expression "fog of war". What does that mean? BRAHMS: That means you don't have all the information you'd like. This is not a PhD. Dissertation where you can sit and weigh and balance the evidence. You take what you got, which is a snapshot of time, lock in fundamental information, sometimes, and you're obliged to act. The question in this case is can the government prove that Frank Wuterich acted unreasonably in the circumstance? CAVANAUGH: I think a lot of people question who speaks for the people who lost their lives in this incident? We have American military tribunal -- or court martial court looking with combat veterans making judgments about the actions of a marine. But who speaks for the Iraqis that lost their lives. BRAHMS: Well, I don't know major Gannon's, who is the southern prosecutor, game plan. I know in a similar case, the Iraqis were presented via a video. But the prosecutor's job is to stand for the community, whether it's in Iraq or here in beautiful San Diego. He has the voice of those people who are victims. Whether there will be an opportunity for family members later to present remains -- I simply don't know whether they will do that. CAVANAUGH: Now, why was this trial delayed for such a long time? BRAHMS: There are some delicious issues that presented, not the least of which pertain to the 60 minute interview, from which you played an excerpt. The excerpt presented on the part of the prosecutor that they wanted the remainder -- they didn't want just the broadcast clips. They wanted all of the outtakes and some other things. And CBS basically told them to go to hell. And the defense objected to all of that. And ultimately, the government was -- went to the military appellate court system with an extraordinary writ, and that issue was ultimately sorted out by that court and by the then sitting military judge. It took forever! Then there was an issue which pertained to whether Frank Wuterich had been deprived of his military counsel. The counsel who had actually visited Iraq who was a stalwart member of the defense team was retired, forcibly retired. And by virtue of that fact was no longer available. CAVANAUGH: Because military trials are usually much faster than this, aren't they? BRAHMS: That's correct, that's correct. And by virtue of -- by then, it was about four years since the event. This stalwart defense counsel was lost, and the question was should the trial be abated by virtue of the government's lack of diligence? And the answer came back, no. So here we are. CAVANAUGH: Here we are. And Frank Wuterich faces counts of voluntary manslaughter. That's the highest charge against him. Does that surprise you? BRAHMS: No, no. That's -- if the government's view of the evidence is correct, that's an appropriate charge. The men sitting as members of the Court martial panel will have to make a determination whether the government has proven its case beyond a reasonable doubt. Note, the standards the same as the civilian standard. CAVANAUGH: Even though the manslaughter is the highest count, Wuterich could face, I believe, over 100 years in prison. BRAHMS: Oh, yes. We do like -- oh, my gosh, numbers! If, God forbid, he gets convicted, a lot is not in the ball park. There might be some confinement. CAVANAUGH: And you say God forbid his convicted, and you don't think if he is convicted he's going to face very much time incarcerated. There have already been political ramifications from this particular trial. It's been reported that the acquittals and delays in this case have led Iraqis to demand that they be allowed to try US forces in Iraq. The US said no. And that was a deciding factor that made is impossible for the US to maintain a long-term presence in Iraq. Do you think a friendly foreign government should be allowed to conduct a trial like this? BRAHMS: That's a three hundred law school course. And I'll spare you that. We around the world have treaties, status forces agreements which sort out what kind of things are going to be primarily tried by the host nation, and what will be tried by us, and then some gray ones in the middle. I would not want that to happen. We've got a very serious problem in terms of attracting young men and women to our armed forces. If I, as I always do, speak of mothers of America who make the decisions, I'm one of those mothers of America. I'd have some hesitation to send my son or daughter into the armed forces, with the thought process that if something like this happened, that in a foreign nation, under a very different system, we'd be trying them. I don't think we'd ever agree to that. CAVANAUGH: Well, I want to let our audience know that we will be following the developments in the Haditha trial at Camp Pendleton right here on KPBS. I've been speaking with retired marine brigadier general, David Brahms. Thank you so much for coming in and speaking with us. BRAHMS: It's my pleasure.