SSgt Wuterich has waited nearly 5 years for his trial to begin and in that time, both of his military assigned attorneys retired without the government ascertaining if the retirements would interfere with the right to counsel and the established attorney-client privilege. Mr. Faraj argues the government failed to properly provide SSgt Wuterich his legal rights because they directed the retirements without first gaining the expressed consent of SSgt Wuterich nor did they show good cause for the severance of the attorney/client relationship before a military judge.

Recent ruling from a top-level military appeals court (United States v. Hutchins NMCCA 200800393), indicate that a retirement from active duty is not considered a good cause to severe the client’s privilege of an appointed attorney relationship and representation. The SSgt Wuterich defense team, Haytham Faraj and Neal A. Puckett are arguing that their client’s rights have been violated and cannot be repaired by any action. Thus, the only action remaining under the law is for the military judge to dismiss the case against SSgt Wuterich.

The judge’s ruling on this motion is not expected for two weeks.

Frank has been working at Camp Pendleton since the investigation began in the Spring of 2006. The incident at issue involves the deaths of civilians in the town of Haditha, Iraq, on 19 November 2005.

The day began with the ear-splitting explosion of a command-detonated Improvised Explosive Device (IED) under a Marine Corps HWMMV on a resupply mission, killing one Marine and seriously wounding two others. The explosion was followed by the appearance of a car full of military-aged Iraqi males who scattered when commanded to get down on the ground to be searched and had to be engaged with rifle fire by a Corporal in SSgt Wuterich’s squad.

Immediately after, the squad was taken under fire by a sniper hiding behind an Iraqi home in the residential neighborhood where the IED was detonated. A quick reaction force arrived with SSgt Wuterich’s platoon commander, who ordered SSgt Wuterich and his Marines to clear the houses in the vicinity of the sniper. The Marines cleared one house and saw someone dart toward an adjacent house. The Marines cleared that house as well.

SSgt Wuterich’s Marines cleared the houses strictly in accordance with their pre-deployment training and in strict compliance with the Rules of Engagement for Operation Iraqi Freedom at the time. Yet a tragically flawed criminal investigation initiated by NCIS several months after all physical evidence was gone concluded that several Marines should face criminal charges. All but one, SSgt Wuterich, had their charges dismissed for lack of evidence of criminal wrongdoing.

It has become apparent to his attorneys at The Law Firm of Puckett and Faraj, PC, Neal A. Puckett and Haytham Faraj, the Marine Corps simply cannot bring itself to see the truth that Marines in contact with the enemy are required to be tough, aggressive and lethal. If the enemy chooses to launch its attack (the first of several in Haditha that morning), square in the middle of a residential neighborhood, then we believe that they anticipated and perhaps manipulated the Marines into the inevitability that civilians could be injured or killed in the defense of the Marines who survived the initial IED explosion and sniper fire.

We who defend him have been able to sustain this nearly five-year representation of Frank Wuterich thanks to unsolicited donations from all across America. Frank’s parents have a website (Frank Wuterich) providing more information about him. We will be providing updates on the case between now and its conclusion in late September.

SSgt Wuterich

Reasons for Pre-Trial Confinement

Pretrial confinement is authorized where the command has reason to believe the member might go absent without leave (AWOL) to avoid prosecution or the member may engage in continued serious criminal misconduct and less severe forms of restraint are inadequate. Less severe forms of restraint include restriction to base or limitations on duty and liberty, which are given to the member as a direct order. In some cases, his or her safety from others may be a consideration.

Major Hasan’s Pre-Trial Confinement

Pre-trial confinement to prevent further serious misconduct could include intimidating witnesses or obstruction of justice, serious injury to others or other offenses which pose a serious threat to the safety of the community, or to the effectiveness, morale, discipline, or readiness of the command or the national security of the United States. In the case of Major Hasan, even though he is paralyzed from the chest down, he could incite others to intimidate witnesses or find a means to continue his alleged past demonstrated and possible future intent of causing harm to others.

Rights under Pre-Trial Confinement

His pre-trial confinement does not limit his Constitutionally protected legal rights, including his ability to communicate with his attorneys and receive mail and visitations by family as per military confinement procedures. His rights and privileges are only limited as to his freedom of movement and association and reasonable restrictions on what he can receive through the mail. Upon his sufficient recovery to be released from the hospital he will be transferred to a military confinement facility (or brig) until his Article 32 hearing.

The loss of Soldiers at Fort Hood yesterday is a tragedy and our sympathies go out to the families, the Fort Hood Community and our Army military brothers and sisters in arms. As the media argues about the next steps of dealing with the suspect who murdered 13 Soldiers and civilians at Fort Hood, those who work within the military justice system understand it is well equipped and practiced in dealing with misconduct in the military, including premeditated or unpremeditated murder.

Pre-Trial Custody

The suspect is in pre-trial custody, and his speedy trial clock has already begun to count down to his arraignment, normally required to be scheduled within 120 days. The convening authority, usually a general officer in the suspect’s chain of command, has the ability to extend that speedy trial clock for extenuating situations, such as allowing the United States Army Criminal Investigation Command to complete a thorough investigation.

CID Investigation

The Criminal Investigation Division (CID) in charge of the investigation gathers evidence and writes a report including a theory of the crime. This is sent to the convening authority, who reviews it and sends it to the base legal office for a legal review. The JAGs review the investigation and the applicable Uniform Code of Military Justice (UCMJ) and draft a charge sheet. This is sent back to the convening authority, who approves, modifies or deletes charges. It is then served on the military member, is assigned one or two military lawyers and soon thereafter appears in front of a military judge for an arraignment on the charges.

Military Justice System

This is clearly a situation that is tailor made for disposition totally within the military justice system. No one should question the capacity of all aspects of the military system to deal with this horrendous crime.

Courts have declared that unlawful command influence (UCI) is the mortal enemy of military justice.  It undermines the public’s trust in the military justice system and may deny an accused the right to a fair trial.  The typical military accused or defendant may not understand how to identify unlawful command influence, how UCI may impact his or her right to a fair trial, what to do about it if it exists, and how to get rid of it. 

UCI has a devastating effect on the right of a defendant to get a fair trial.  To understand why UCI has that impact and how to handle it, one must understand the history and mechanics of the military criminal trial or court-martial.  Unlike state and federal courts, the military has no standing courts.  There is no courthouse with sitting judges waiting to hear cases and settle disputes between citizens or citizens and the state.  The military system puts the power to settle disputes in the hands of the commander, also known as the convening authority. 

The term convening authority is an important label and description of what happens at a court-martial.  When a commander is notified that there may be a violation of the law, he or she will order an investigation.  The investigation may be completed by any number of agencies or people.  The investigation is supposed to be done by someone who is neutral and has no interest in the matter.  Also, the allegation of misconduct cannot involve the commander.  We will come back to this later.  When the investigation is completed the commander normally receives a recommendation as to the probability of the allegations and decides the next step.  If there is some evidence that an offense was committed, the commander will then refer charges to a court-martial.  Concurrent with the referral, a convening order is published assigning –also called detailing- a prosecutor, defense lawyer, and jurors –called members- to prosecute, defend, and decide the facts of the case.  The commander, therefore, is the authority that creates the trial.  And unlike a state or federal court, all participants in the trial are selected by the convening authority, who also orders the investigation and after the court-martial will decide whether to approve or disapprove a conviction if one is obtained.

The danger at this point should be clear.  The court-martial is not an independent trial.  The participants all rely on an order –convening order- issued by the commander for their authority to participate.  Accordingly, any influence by the commander, the commander’s staff, investigators, or even the perception of influence may cause the trial to become unfair.  For example, if the defense lawyer believes that an aggressive cross examination of a witness who works for the commander or the commander himself may result in a poor performance evaluation, the defense lawyer may hesitate or refuse to zealously represent his client.  Or, if the legal advisor to the commander, known as the staff judge advocate, participates in the investigation of the charges and either becomes a witness against the accused or begins to work to influence the trial to achieve a conviction, it becomes obvious that this same person will not be capable of neutrally advising the commander as he or she is required to do because of their direct participation in the investigation. 

For another example, I will use the commander as the victim of the alleged crime.  When the commander is directly or indirectly the victim of the alleged crime or misconduct, he or she will become known as the accuser.  A commander who is also the accuser is prohibited from convening a court-martial to adjudicate the allegations.  The reason for that should be obvious.  A commander who believes that a certain accused is responsible for some injury, harm, disrespect, or loss that he or she has suffered, he or she will be incapable of neutrally convening, reviewing, and approving a court-martial.  Any time a commander is also an accuser, the charges will be forwarded to the next commander in the chain of command to convene the court-martial.

When a trial has been unlawfully influenced or even if it merely appears that is has been unlawfully influenced, military judges are required to order certain remedies to cure the UCI.  The remedies may involve prohibiting certain people from being involved in the trial up to dismissing the charges. 

The danger of UCI is ever present in the military justice system because of the unique way in which trials are convened and conducted.  An accused and the lawyer representing that accused must be ever vigilant to ensure that there is no real UCI or even an appearance of UCI. 

The Associated Press published a story on the second appeal of an Abu Ghraib Soldier’s conviction citing the defense attorney’s theory that the Soldier was following Army policy. The story is a bit confused about the military justice process.

US Army Court of Criminal Appeals

Military courts-martial that end with a sentence of at least one year in jail and/or a dishonorable or bad conduct discharge are automatically forwarded to the Service-specific Court of Criminal Appeals (CCA). Each Service has military active duty or reserve lawyers for the defense and the government, who work on appellate issues. The United States Army Court of Criminal Appeals is located in Arlington VA. The Air Force, Navy-Marines, and Coast Guard each maintain an appeals court that presides over their Services appeals.

Military Attorneys at the Appellate Level

The military member is assigned an appellate defense attorney just like they were assigned a military defense counsel for his or her court-martial. This appellate defense attorney reviews the trial record and identifies any substantive issues in the process that may have led to a decision that warrants reversing the conviction or some other relief. When the appellate case is presented, there are government military attorneys arguing the merits of the process as it relates to military case law, the UCMJ and previous appellate decisions in the courts above. A military member can hire a civilian attorney to present his or her case, arguing the issues of law and the military justice process.

Military Criminal Appellate Cases

Any Service appellate court decision unfavorable to the military member can be appealed, on a case-by-case basis, either by right or by certification to the higher court by the Judge Advocate General of that Service. However, there are very few automatic appeals above the Service CCA level. The U.S. Court of Appeals for the Armed Forces (CAAF) is comprised of five judges, appointed by the President, “from civilian life” for a 15 year term. Military attorneys and judges who retire from the military are not eligible to serve on the CAAF. This ensures a distinct civilian nature to the court.

US. Court of Appeals for the Armed Forces

If a case is appealed through the Service’s appellate court and is referred to the CAAF, which then again rules unfavorably for the member, the only remaining remedy for further appeal is to the Supreme Court of the United States. The number of military cases that reach the U.S. Supreme Court are very few, and focus on the application of Title 10 of the U.S. Code and the UCMJ in light of other federal law. In the cases of the Abu Ghraib convictions, those who were sentenced to more than one year or were discharged either with a dishonorable or bad conduct characterization, will have the right to have their appeals considered by the Army Court of Criminal Appeals.

On Monday, 21 Sep 09, the Navy convened a Chief’s review board of 6,000 E7, E8 and E9 records. Similar to the Army’s Quality Management Program, the Navy is reviewing six specific performance criteria that could separate or retire these Sailors.

Six Substandard Navy Performance Criteria

Substandard performance indicators include declining performance marks on FITREPs, a score of 2.99 or below on FITREPS, two or more physical fitness assessment failures in 2 years, moral or professional dereliction such as detached for cause, documented actions under the UCMJ or any other documented adverse information indicating a Sailor’s continuation may not be consistent with national security or the in the Navy’s best interests.

Army Quality Management Program

This follows the Army’s announcement of its QMP boards being held this fall. This push for quality management boards is a means for the Services to manage the number of military members in each of the ranks.

What to Do to Correct Your Records

If you have an adverse event documented in your records, find out if it is a temporary entry or permanent and contact your personnel office to find out if there is a way to correct your records at your local installation. If not, the best means to change your record is through a Board for Corrections of Military/Naval Records.

Board for Corrections of Military/Naval Records

To ensure that you have the opportunity to complete 20 years of service for a military retirement, it is imperative that your military records be correct and accurate. Correcting military records begins with an Application for Correction of Military Records (DD Form 149 – Link downloads the pdf form). The form requires a statement from the military member on the requested correction and documentation that supports the request. Each of the Services has a board that reviews these requests.

Researchers are identifying common symptoms and diagnoses of Post-Traumatic Stress Disorder (PTSD) for our military members who are exposed to traumatic events experienced or witnessed in combat situations. There is an alliance of organizations working to set up “veteran courts” for non-violent criminal actions against returning military members based on their PTSD symptoms.

War Trauma Induces A Response

Military members who experienced, witnessed or were confronted with death, serious injury or the threat of death or serious injury in Iraq or Afghanistan have several symptoms. The trauma caused the military member to feel intense fear, helplessness or horror; whether they admit it to family and friends or not.

PTSD Symptoms

Researchers identify re-experiencing the trauma through nightmares, flashbacks or replaying the event in their minds. Military members avoid anything that can remind them of the event, refuse to talk to people that were there, block memories from their minds, stop participating in activities and could withdraw from family and friends. Other symptoms include difficulty sleeping, being irritable or nervous, are prone to outbursts of anger or unable to concentrate and may constantly be looking over their shoulder for danger.

Diagnosis of PTSD

The medical analysis of symptoms that last less than a month is a diagnosis of acute stress disorder and any symptom lasting over a month is considered PTSD. PTSD can be acute (lasting less than three months) or chronic (lasting at least six months). Additionally, PTSD can have a delayed-onset by a military member not showing symptoms until he or she has separated from the military.

PTSD Impact on Civilian Courts

Some civilian courts are providing specialized “veteran courts” for those who served and suffer from PTSD or Traumatic Brain Injuries (TBI). These courts are modeled after drug courts that allow defendants to avoid prison in exchange for strict monitoring of their activities. The first veteran court was opened in Buffalo, NY in January 2008. More than 100 veterans have passed through that court, with only two returning to the traditional court system. The courts take into account their PTSD or TBI as a possible contributing factor to their actions. This approach to civilian, non-violent rehabilitation of veterans should be in every state.

PTSD/TBI in Military Justice Courts

Military justice courts may consider the PTSD and TBI issues when determining sentencing is dependent upon the defense attorney’s ability to provide the medical diagnosis and relate it to the crime. However, most enlisted military members who are faced with court-martial are not afforded the same opportunity for non-violent crime sentencing as the civilian “veteran courts.” Maybe it is time for DoD to consider the value of the military member and institute a similar procedure and process to rehabilitate military members whose actions were influenced by their diagnosis of PTSD or TBI.

The Uniform Code of Military Justice (UCMJ), is federal law, enacted by Congress in Chapter 47, of 10 USC, Subtitle A, Part II. Article 2 defines the persons subject to the UCMJ. There are some categories of individuals whose members may not remember they are still subject to this military justice.

UCMJ Applies to Those Who Serve

It is no surprise, that military members of the regular components of the armed forces including those awaiting discharge, volunteers waiting to go to training who have been accepted into the armed forces; inductees from the time they raise their hand and are inducted into the service; or any other person called to duty are subject to criminal jurisdiction under the UCMJ.

Military Academies, National Guard and the UCMJ

Cadets (both Army and Air Force) and midshipmen at the U.S. Naval Academy are subject to the UCMJ as are members of the reserve component while on inactive-duty training, and members of the Army and Air National Guard while in Federal service.

Military Retirees and the UCMJ

What may be surprising to those military retirees who rushed through their out processing appointments is that retired members of the regular components of the armed forces, who are entitled to pay, are also subject to the UCMJ. That means that if you are entitled to a military retirement pay you are also subject to the criminal law as prescribed by the UCMJ for the duration of your entitlement.

NOAA and Public Health Servants Under the UCMJ

Also surprisingly, members of the National Oceanic and Atmospheric Administration and Public Health Service and other organizations when assigned to and serving with the armed forces are under the UCMJ. Prisoners of war in custody of the armed forces are subject to the UCMJ as are persons in custody of the armed forces serving a sentence imposed by a court-martial. This means that if you are convicted in court-martial, you are still liable for your actions while serving your time, or while at home on appellate leave if your sentence included a bad conduct or dishonorable discharge.

Criminal charges will not be filed against a construction company for the electrocution death of a Green Beret Soldier who died while showering in his barracks in Iraq. The military investigation found insufficient evidence to prove intent to commit the crime or culpable negligence, and while no one is criminally culpable in his death, the investigation showed a breach of duty of care for both the contractor and the military commanders who should have provided oversight.

Breach of Duty of Care

This incident has resulted in established procedures to ensure quality performance of construction in Iraq. Failure of the system appears to have been many small issues that culminated in a tragic event. The military investigators found that both contractors and government employees “breached their respective duties of care” identifying that while they complied with the current procedures and regulations at the time, those procedures were not thorough enough to prevent harm.

Correction of Procedures

A military investigation focuses on the intent and culpability or negligence as it relates to the Uniform Code of Military Justice. It appears in this case, the investigators could find no one person or system liable for the death, but a collection of smaller events or failures, which individually would not have caused the death. Those individual events or failures are then analyzed and corrections to procedures and regulations are identified to prevent this type of failure in the future.

Application of Military Justice

While this does not account for the loss of a Soldier, nor provide any comfort to the family nor restore his life, the military justice system does provide one answer. It is designed to thoroughly review actions on the battlefield or in garrison to ensure that anyone who does have intent to harm one of our own military members is brought to full accounting for their actions.