Puckett & Faraj

Press Release – Camp Pendleton, CA., August 27, 2010. Haytham Faraj, Esq., of the Law Firm of Puckett & Faraj, PC filed a motion requesting the USMC military judge dismiss the case against SSgt Frank Wuterich due to the retirement of his military attorneys.

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.

The Law Firm of Puckett & Faraj, PC announces the expansion of the Law Firm and the opening of a new office in Alexandria Virginia. The Firm’s Partners, Neal A. Puckett, Esq. and Haytham Faraj, Esq. welcome a new partner, Eric S. Montalvo, Esq., of counsel attorney Peter R. Masciola, Esq. and a new office manager, Mr. Kenneth Nicholson.

We are a general litigation firm with over 100 years of combined professional and legal experience. We focus our practice on representing clients in federal courts, military courts and administrative boards. We help our clients get their lives back by defending them against criminal charges in certain state, federal and military courts. We also specialize in representing clients who have been injured by the negligence of doctors in Military hospitals, VA hospitals and other federal medical facilities. We also represent federal government employees in all matters related to their federal employment including termination, suspension, denial of benefits, work place harassment, denial or revocation of security clearances and other employment related matters.

Mr. Eric S. Montalvo, is a retired Marine Corps judge advocate and brings over 23 years of experience to military criminal and administrative law, national security law, USERRA actions, as well as Discharge Upgrades and Board for Corrections of Military and Naval Records. Mr. Peter R. Masciola is an attorney specializing in military medical malpractice, Federal Tort Claims Act, Military Claims Act, military accidents, military healthcare provider credential adverse actions or serious personal injury. Mr. Kenneth Nicholson is a retired Marine staff non-commissioned officer who brings over 22 years of experience to the Firm.

The new office is located across from the King Street Metro Station in the building known as King Street Station (above Joe Theismann’s Restaurant) at 1800 Diagonal Road, Suite 210, Alexandria, VA 22314. We can be reached from 9 AM to 5 PM Eastern time at 703-706-9566.

Tonight, Thursday Feb 18, 2010, CNN Anderson Cooper’s 360 will highlight the case of CPT Roger Hill and Dog Company, 1-506^th Infantry.  We expect a fairly in depth look at the circumstances surrounding CPT Hill’s case, totaling around 30-35 minutes of total story line, interview, commentary, etc.  The focus is on the need for more effective Rules of Engagement (ROE) and detention policies to better match up to the asymmetric enemies we face today, especially in NATO led Afghanistan.

In the Fall of 2008, CPT Hill and his men faced Army criminal charges of detainee abuse.  Because they received no support or instructions from their higher headquarters, they attempted to get confessions from detainees of probable Taliban ambushes of US forces.  They would have to release the detainees unless they had evidence through confessions to turn them over to the Afghanistan forces.  Without confessions, the detainees were to be let free to continue their liaison with the Taliban from inside the US forward operating camp.

The Chairman of the Joint Chiefs of Staff (CJCS) is supporting efforts in DoD to define the number of traumatic brain injuries or concussions military members suffer before they are pulled out of combat to recover, serve in the military camps or be returned to the US.

Multiple TBI Events Trigger Reassignment

Multiple concussive events could trigger reassignment from the front lines. COL Macedonia, the CJCS’s medical science adviser estimates that if the number of concussive events was set at three, there would be 150 – 400 of the 15,000 to 20,000 military members in Afghanistan reassigned. The Marines already have a policy in place to pull troops out of combat based on a history of multiple concussions during a tour.

Symptoms of TBI and PTSD

Patients with TBI are at increased risk for psychiatric disorders compared to the general population. Those disorders could include depression and Post-Traumatic Stress Disorder (PTSD), which affects behavior. Patients experience flash backs, avoid anything linked with the event including friends, have difficulty concentrating and are agitated and irritable, show signs of anger, depression, abuse alcohol or other substances. These effects on behavior can extend to criminal activity. The military courts are beginning to recognize the effects of TBI as a contributing factor to criminal activity. Several state bars and judicial systems have begun “Veteran Courts”, to manage sentencing of offenders who have demonstrated PTSD and TBI symptoms.

TBI/PTSD in the Courtroom

Recognizing and getting medical assistance for any TBI or PTSD is crucial to the well being of military members. If a family member or friend is being charged with a crime in the military, make sure their military attorney knows about any possible TBI events during their deployment and tell the military lawyer about any PTSD symptoms you’ve noticed since their return. A military member suffering with TBI and/or PTSD may not effectively assist in their military defense during a court-martial.

The Associated Press reported this week that the Marine Corps dropped charges against Sgt Jermaine Nelson in the death of detainees, one of four men who surrendered when the squad entered a house in Fallujah in November 2004. The wiliness to plead guilty to the lesser charges on the charge sheet were negotiated in a plea bargain, but Sgt Nelson still faced a court-martial with possible sentencing to prison, a dishonorable discharge, a felony conviction record and ineligibility for any Veterans Administration benefits.

Military Justice Process

Sgt Nelson, through his civilian attorney, worked a plea bargain deal prior to the court-martial with the government military trial team (prosecution). This was not a case of the government dropping the charges of murder or not holding the court-martial, but a case of the military justice process working correctly given the evidence in the case.

Information to Suspect a Crime

The process begins when a commander is informed of something irregular during an operation. This information can be through the chain of command by someone reporting comments they hear from other military members or by other military members who witnessed the action. In this case, a squad member of Sgt Nelson’s, was applying for a job with the FBI in 2006 after leaving the Marine Corps. During a polygraph test for entrance into the FBI, this squad member confessed to the shootings. The FBI turned the evidence over to the Marine Corps who requested an NCIS investigation.

Evidence and Appropriate Punishment

The evidence was gathered and charges preferred against three of the squad members. Two were acquitted including Sgt Nelson’s squad leader, setting a precedence that the evidence and facts of the cases did not support murder charges. Sgt Nelson’s military attorney reviewed the specific evidence against his client, and determined the failure on his client’s part to be a lesser charge rather than murder or voluntary manslaughter. He negotiated with the government for a plea bargain and superseded the court-martial proceedings with the plea. During the court-martial, the government accepted the guilty pleas for lesser charges based on the evidence and facts of the case. Punishment for those lesser charges was set by the judge but superseded by the negotiated plea bargain agreement.

On 31 Aug 09, the Navy and Marine Corps Court of Criminal Appeals reversed a military judge’s ruling that CBS didn’t have to turn over the outtakes of the Wuterich CBS 60 Minutes interview to prosecutors of SSgt Wuterich. The outtakes are reported to contain statements by Wuterich, which the government hopes will convict him of manslaughter in some of the deaths of 24 Iraqis in November 2005.

CBS 60-Minute Tapes

The ruling sends the early 2008 subpoena back to the Marine Corps to force CBS to turn over the outtakes to the government. CBS may seek to appeal this ruling to the highest military appeals court, the Court of Appeals for the Armed Forces. CBS has yet to announce its position on this ruling.

UCMJ Article 62 Appeal Process

If CBS appeals this ruling, it may be another six months to a year before there is a resolution to the issue. This military legal rule does not specifically state that the government is allowed to stop a court proceeding to appeal this type of trial court ruling. Yet in this case, that is exactly the tactics the government used to delay the court-martial of the last remaining Marine accused of causing of the deaths of some of 24 Iraqis killed in November 2005. The court-martial against SSgt Frank Wuterich will not begin until this matter is settled.

Battalion Commander’s Charges Dropped

A recent decision by the Marine Corps has dismissed all charges against the Battalion commander, LtCol Chessani. He was charged with failure to investigate and properly report the deaths of the civilians that day in 2005. The Marine Corps apparently recognized the fact that there was no proof that LtCol Chessani had been derelict in his duties.

Wuterich: The Last Man Standing

This ruling by the NMCCA is important for defining the procedures for the Uniform Code of Military Justice (10 U.S.C.) and for all future cases. But in the meantime, the life of one Marine, SSgt Frank Wuterich, is suspended without any foreseeable resolution to the accusations levied against him.

LTC Allen West protected the lives of Soldiers in his battalion in Iraq in August of 2003. While the main coalition offensive of the Iraq war was declared over in May, the insurgents were not willing to let the US Army hold territory without attacks. LTC West’s men were facing daily small arms fire ambushes and improvised explosive devices meant to kill. Any intelligence gained was through the interrogation of captured insurgents to discover the next ambush of patrols.

Operation Iraqi Freedom Rules of Engagement

The now famous August 2003 incident in which LTC West affirmatively chose to violate the overly restrictive US Army rules of engagement and then immediately report himself to his superior officer is an example of a warrior determined to safeguard his men. He did it at the expense of his command and his Army career.

Service Above Self

Not long after he reported his actions, LTC West was relieved of his battalion command. His Army career was over but it was up to his lawyer, Neal A Puckett, to present the facts to an Article 32 Investigation to determine if “over” meant a jail cell or retirement at a lower pay grade. LTC West received minor administrative discipline and retired in grade as a LTC. What saved LTC West was his willingness to give up his Army career, one that was surely headed for general officer rank, in exchange for saving the lives of the men under his command. He knew he was violating the letter of the law, but maintained emotional and physical control, making sure not to endanger the life of the insurgent who had planned to murder his Soldiers.

Military Loyalty and Accountability

What is perhaps most remarkable about this case is that LTC West immediately reported his actions to his superior officer. This act of loyalty and accountability shows the character of the man. LTC Allen West gave up his Army career, but now seeks to serve as the next Congressmen for the citizens of Florida’s 22^nd Congressional District. They will elect him in November 2010, because, as with his Soldiers in Iraq, he will be loyal and accountable to them.

Marine Corps Lt General George J. Flynn has determined to drop all charges of dereliction of duty for Chessani’s investigation and reporting of the killing of 24 civilians in Haditha, November 2005. The general directed a board of inquiry for Chessani to determine his final rank for retirement.

Boards of Inquiry

The North County Times article indicates that this may be an unusual action for the Marine Corps to take a senior officer to a board of inquiry. Most officers who are retirement eligible and faced administrative or legal actions under the UCMJ during their last held rank are usually required to demonstrate honorable service to be eligible to retire at that rank. The Law Firm of Puckett & Faraj, PC has represented several mid-level and senior officers in boards of inquiry in the last 10 years. Lt Col Chessani’s attorneys, Robert Muise and Brian Rooney have the opportunity to provide the board the chain of events in Haditha, 19Nov09 to show no dereliction of duty. We have no doubt that they will prevail and that LtCol Chessani should retire as a LtCol.

Haditha Courts-Martial

What is of concern in this latest Haditha decision is the fact that the Marine Corps has determined that seven of the original eight military members were not guilty of manslaughter, murder or dereliction of duty. They appear to be hoping they can blame the entire incident on the remaining member of the squad, SSgt Frank Wuterich, who has yet to be given either a fair or speedy trial.

Proof of Wrongdoing

Throughout the course of the last 3 ½ years of investigations and military courts-martial, the Marine Corps has yet to prove wrongdoing according to the battlefield rules of engagement or failure of command. In their zeal to convict a Marine, any Marine, they apparently have proceeded on a false premise of what actually happened during an complex insurgent attack in what was the first of five attacks on U.S. Forces in Haditha, Iraq, in November of 2005.

Three soldiers convicted of murder in late March 2007 execution-style of slayings of four bound and blindfolded Iraqi detainees. Two soldiers are serving life sentences and the third is serving 25 years. Their sentences were reduced to 40 and 20 years on appeal. The Iraqi’s had been taken into custody by the Soldiers in the Spring of 2007 after an exchange of gun fire with the Soldier’s unit.

MSgt Hatley Convicted

Master Sergeant John E. Hatley, the senior military member of the three, was acquitted of a fifth murder, but convicted of conspiracy to commit murder. A military member serving a life sentence resulting from a military court-martial is eligible for parole in 20 years. On August 14, 2009, His sentence was reduced from life to 40 years as a result of a clemency petition.

Clemency Petition Granted

A clemency petition is a request to the convening authority (usually the first general officer in the chain of command) to reduce the sentence from a court-martial. The military defense attorney provides a written request on behalf of the military member to justify why the convening authority ought to use his or her authority to reduce the sentence in the name of justice or fairness. A clemency petition outlines all the mitigating circumstances of the event leading to the conviction and the personal circumstance of the military member and his or her family.

Appeal Process and Presidential Pardons

Baring the convening authority’s change of the sentence, all military members cases that were convicted at courts-martial are automatically reviewed on appeal. Appeals review the military justice processes in accordance with the UCMJ and Manual for Courts-Martial to ensure a fair trial. In some cases, appeals can reverse some aspects of a court-martial requiring a military judge to review the case. After a military member has requested clemency and his or her case reviewed through the appeal process, the next step in gaining relief from the conviction is through a Presidential pardon.

Captain Roger Hill, USA, the West Point graduate and company commander in Afghanistan, who had known insurgents in his camp, has been separated from the Army as of 31 June 2009. Capt Hill’s resignation in lieu of court-martial was accepted by the Secretary of the Army and his service to this country remains characterized as a “general under honorable conditions” discharge.

General Under Honorable Conditions

Captain Hill offered his resignation in December 2008 after an Article 32 hearing in Afghanistan. The “general under honorable conditions” discharge normally qualifies for Veterans Administration benefits including disability pension, health care, and death benefits. An exception to this policy is found in 38 USC § 5303(a); it states an officer who resigns for the good of the service is barred from most of the Veteran’s benefits.

Combat Injuries

In Captain Hill’s case, his injuries suffered while at West Point and subsequently aggravated by parachute qualification and combat duty in Iraq and Afghanistan may not qualify for a VA disability pension. The Army held him on active duty for an additional 90 days this spring to assess his combat injuries. His doctors assessed his neck and back injuries as severe enough to qualify for significant disability compensation from the VA. However, due to his resignation for the “good of the service,” he may only be eligible for care at a VA hospital as his constant pain dictates.

SecArmy Denies Upgrade of Discharge

The Secretary of the Army could have upgraded his discharge to “honorable” but chose to let the “general under honorable conditions” characterization stand. During his 90-day extension on active duty, he submitted another request for resignation, void of any reference to disciplinary actions by the Army and thus not for the “good of the service.” The detainee abuse charges had been dropped in December 2008. The Secretary of the Army had the discretion to approve this second resignation request, but he declined to do so.

Civilian Roger Hill

Captain Hill is currently seeking a job Southeast United states. He has requested copies of all of his military records and upon receipt of them, he will apply to the Veteran’s Administration for all the benefits available to him including a request for exemption for a disability pension.

More Than Brothers

The More Than Brothers website outlines the current status of Capt Hill and his men of Dog Company. Some faced courts-martial and are still fighting to clear their names. Donations are welcome to support the families of Dog Company including the two Soldiers who lost their lives to the insurgents who were spying on them within the camp.