Marine’s defense to seek dismissal of Haditha killings case because of loss of military lawyer

By Julie Watson, AP
Thursday, August 26, 2010

Marine’s defense to seek dismissal of Haditha case

CAMP PENDLETON, Calif. — Lawyers for a Marine sergeant whose squad killed 24 Iraqis said Thursday they are preparing a motion that will seek to have the case dismissed because the Marine Corps retired his military attorney.

Attorney Haytham Faraj, a civilian lawyer representing Staff Sgt. Frank Wuterich, told a military judge that the Camp Pendleton Marine’s defense has been compromised because the retirement violated attorney-client relationship rights.

Another civilian defense attorney, Neal Puckett, told The Associated Press after Thursday’s hearing that their aim is to have the case thrown out.

Puckett said the Marine Corps retired Marine Lt. Col. Colby Vokey in 2008 despite the objections of Vokey, who wanted to stay on the case as his detailed military counsel until after the trial.

Defense lawyers are calling their filing the “Hutchins Motion” after Marine Sgt. Lawrence Hutchins III, whose murder conviction was thrown out this spring by a military appeals court that ruled he was given an unfair trial because his military defense attorney was relinquished before his 2007 court martial.

Wuterich’s lawyers told military judge Lt. Col. David M. Jones on Thursday that they will send the motion to him immediately. Prosecutors declined to comment after the motion hearing.

Wuterich’s defense attorneys said the military in the past routinely retired military attorneys when their active duties were up, even if their cases were not finished, and no one questioned such practices. But that changed with the Hutchins’ case, which the Navy is appealing.

Wuterich, 30, of Meriden, Conn., faces reduced charges of voluntary manslaughter. He is accused of leading his men on a rampage that killed two dozen civilians in Haditha, Iraq, in November 2005 after a roadside bomb killed a Marine. Eight Marines were initially charged with murder or failing to investigate the killings. Six have had charges dismissed, and one was acquitted.

Wuterich has pleaded not guilty to all the charges. He is the last defendant in the case, considered to be the biggest to emerge out of the Iraq war. The trial is scheduled to start Sept. 13.

After retiring from the military, Vokey continued to represent Wuterich as a civilian lawyer. But Puckett said that is no longer possible because Vokey now works for a firm that has represented another Camp Pendleton Marine who is being called by the prosecution to testify in Wuterich’s trial.

That presents a conflict of interest and would make it difficult for Vokey to cross-examine the witness during the two-week trial, Puckett said.

Vokey plans to withdraw from the case, and the defense will ask the judge to dismiss all the charges against Wuterich, arguing that his defense has been compromised, Puckett said, adding that Vokey was the only defense lawyer to go to Iraq and witness the scene of the killings. The case is similar to what happened to Hutchins, he said.

“The same routine dismissal of counsel that took place without inquiring the accused or the counsel is present in both cases,” Puckett said.

At his preliminary hearing, Wuterich said he regretted the loss of civilian lives but believed he was operating within military combat rules when he ordered his men to attack.

(This version CORRECTS that defense lawyer Haytham Faraj instead of Puckett told the judge.)

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