Dismissed murder conviction of Marine is setback for feds in prosecuting Iraqi war crimes

Dismissed murder conviction setback for military

SAN DIEGO — The overturning of a Marine’s murder conviction on a judicial mistake is a stinging setback for the government and comes after a string of defeats in its prosecution of U.S. troops accused of killing unarmed Iraqis.

The case of Sgt. Lawrence Hutchins III represented one of the most significant murder convictions for the U.S. military and was among the biggest criminal cases to come out of the war. But a military appeals court dismissed that conviction Thursday because a military judge agreed to relinquish one of the lead defense attorneys for Hutchins before his 2007 court-martial.

The government has to decide within 30 days whether to appeal or seek a new trial or the Camp Pendleton Marine will go free.

Prosecutors say Hutchins led a squad of six other Marines and a Navy corpsman that dragged a 52-year-old man from his home in the Iraqi village of Hamdania in 2006, put him in a ditch and shot him, then planted a shovel and AK-47 to make it appear as if he were an insurgent planting an explosive. Hutchins was sentenced to 11 years.

The case was particularly troubling because it demonstrated a serious breakdown in Marine Corps leadership and tied it to murder, said Lt. Col. Paul Hackett, a judge advocate in the Marine Corps reserve.

Hamdania was among three top Iraqi war crimes cases the government has tried to prosecute in recent years.

The other two highly visible Iraqi war crimes cases involved unarmed people killed while Marines under attack were defending themselves.

“As an active reservist speaking to my peers, Hamdania is viewed as a very bad page in the Marine Corps,” Hackett said, adding that: “What’s really troubling about Hamdania is that there were multiple admissions to the general set of circumstances that spelled out an unlawful killing.”

While the reason the U.S. Navy-Marine Corps Court of Criminal Appeals threw out the conviction may seem “hyper technical,” Hackett said it also shows the military justice system is working by adhering strictly to the rules of law.

“A trial judge erred, they may have to try it again, and that’s a real problem, but that is also a testament to the fortitude and competency of the Navy-Marine Court of Appeals,” he added.

Hutchins’ appellate defense counsel, Marine Capt. S. Babu Kaza, said the court determined the error denied Hutchins a fair trial by relinquishing a highly respected military attorney who had spent three years on the case and had knowledge that was critical to the outcome, which would have proven his innocence.

“As a matter of law, they have no basis to appeal,” Kaza said.

He said Hutchins already was found not guilty of breaking into the home of Hashim Ibrahim Awad or kidnapping him because he was not with the squad, which radioed Hutchins to tell him they had shot a man they believed to be an insurgent leader, Kaza said. Hutchins, he said, learned of the mistake after the investigation.

Hutchins, 26, has spent nearly four years in prison. The others in his squad served less than 18 months in jail.

In another top case, eight Marines were initially charged with murder or failure to investigate the killings of 24 Iraqis that occurred after a roadside bombing that killed a Marine. Six have had charges dropped or dismissed, and one was acquitted.

Marine Staff Sgt. Frank Wuterich, the squad leader, is scheduled to go to trial Sept. 13 on reduced charges of voluntary manslaughter in nine of the 24 deaths and other crimes in the November 2005 shootings in the town of Haditha.

Last year, a Marine accused of killing an unarmed Iraqi detainee during a 2004 battle to recapture the city of Fallujah pleaded guilty to dereliction of duty after the government dropped a murder charge as part of a plea agreement.

The other two defendants were acquitted, one by a military jury and the other by a civilian court after he completed his military obligations and was beyond the reach of a court-martial.

While civilian court cases hit similar snags, experts say war cases are challenging because there are often no independent witnesses or autopsies.

“We go to war to kill the enemy, and there are terms and guidelines on what is a lawful killing and what is an unlawful killing, and then there is a gray area,” Hackett said. “It’s an extraordinarily complex area to define because it ultimately relies on subjective circumstantial evaluation of a Marine in a very difficult situation.”

What’s more, problematic troops are often given administrative discharges instead of sent to court-martial. As a result, charges have sometimes been dismissed on procedural errors because military lawyers lack the experience of these kinds of contested trials, said Gary Solis, a former Marine Corps prosecutor and judge who teaches law of war at Georgetown University Law Center.

Military trial judges make mistakes just as civilian judges do.

“You would hope in cases like this, the Marine Corps would cross its legal Ts and dot its legal Is, but you know sometimes that doesn’t happen,” he said.