CAMP PENDLETON — The preliminary hearing for Marine Staff Sgt. Frank D. Wuterich begins today, marking possibly the last chance for prosecutors to bring to court-martial any of the Marines charged with murder in the killing of 24 Iraqi civilians in the Iraqi village of Haditha.
But to prevail, prosecutors have to convince a hearing officer who has been skeptical of the case and also a top general who does not believe in punishing enlisted Marines for mistakes made in a "morally bruising" conflict in which insurgents hide behind women and children.
The Haditha charges represent the most serious case of alleged war crimes committed by Marines in Iraq or Afghanistan. But what once looked to some like a slam-dunk murder case against four enlisted Marines could be on the verge of collapsing.
Of the four initial defendants in the 2005 deaths, charges were dropped against one in exchange for his testimony against other Marines; charges were dismissed against another by Lt. Gen. James N. Mattis after a preliminary hearing; and charges against a third appear to be on the verge of being dismissed by Mattis, also after a preliminary hearing.
The hearing officer in the cases of Lance Cpl. Justin L. Sharratt and Lance Cpl. Stephen B. Tatum recommended that Mattis dismiss the charges, citing problems with the prosecution case that include:
* Inconclusive forensics, making it difficult to determine where the victims were when they were shot.
* An incomplete investigation by the Naval Criminal Investigative Service.
* The reluctance of Iraqi witnesses to come to Camp Pendleton to be cross-examined by defense attorneys. The hearing officer also noted that the Iraqi witnesses, in statements to investigators who visited their homes where the killings occurred, may have been coached or otherwise influenced by tribal elders.
The Iraqis also received condolence payments from the Marine Corps, which may have tainted their version of events, he said.
Hearing officer Lt. Col. Paul Ware, a lawyer without combat experience, said in his reports to Mattis that he was loath to second-guess infantry Marines who have had to make split-second decisions about the use of deadly force.
Mistakes in combat, even if they lead to horrific results such as the killing of women and children, are not criminal acts, Ware wrote.
Now, Ware will preside over Wuterich's preliminary hearing, called an Article 32.
Signs that the Haditha case might founder have long been evident.
The first military investigator to look into the incident in early 2006, Army Col. Gregory Watt, recommended a more extensive investigation, but said that "obtaining more prosecutable evidence will be extremely difficult."
The Marine Corps persisted in its investigation, and in December announced the filing of murder charges against four enlisted Marines and dereliction of duty charges against four officers for not launching a war-crimes investigation. Charges against one of the officers later were dropped by Mattis.
To bolster their case against Wuterich, Sharratt and Tatum, prosecutors sought and received permission from Mattis to grant immunity to half a dozen Marines who had not been charged.
Once given immunity, the Marines were compelled to testify for the prosecution. So far, the tactic has not worked.
Ware found the testimony lacking in credibility, noting in some cases that it marked a reversal of their earlier statements to investigators.
Prosecutors will seek to prove that, among other criminal acts, Wuterich executed five Iraqis who had been ordered from an approaching taxi after a roadside bomb killed a Marine and injured two on Nov. 19, 2005.
Their star witness will be Sgt. Sanick P. Dela Cruz, who was initially charged with murder; the charges were dropped in exchange for his testimony. Defense attorneys will seek to show that the five were running away when Wuterich and Dela Cruz shot them.
Under the rules of engagement for Marines in Iraq, suspects running away from a roadside bomb explosion can be shot in the back even if they are unarmed and there is no immediate proof of their involvement in the explosion, according to testimony from a Marine lawyer called by the prosecution in Tatum's preliminary hearing.
The incident in Haditha began after a roadside bomb exploded beneath an American supply convoy. Five Iraqis who had been in a taxi at the scene were then killed by Marines.
Marines ordered to search two nearby houses for insurgents who may have been involved in the roadside attack killed 15 Iraqis, including three women and seven children. An hour later, in searching two more houses, Marines killed four brothers.
Wuterich, who was the senior enlisted man at the scene, faces 13 charges involving the killings of the men in the taxi and several of the occupants of the three houses.