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United States of America v. Jeffrey Chessani

Court United States Navy-Marines Corps Court Trial Judiciary (NMCTJ), United States
Case number NMCTJ 200800299
Decision title Finding Pursuant to Article 39(a), Uniform Code of Military Justice
Decision date 17 June 2008
  • United States of America
  • Jeffrey R. Chessani
Categories War crimes
Keywords murder, war crimes, command responsibility, unlawful command influence
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What happened after a makeshift bomb ended the life of a US Navy Marines Corporal near the village of Haditha on 19 November 2005? After increasing media attention, the US army launched an investigation and charged eight marines, as raids against the population of Haditha allegedly resulted in the death of 24 civilians. Proceedings were initiated against Jeffrey Chessani, a commander who had not been present during the explosion and its aftermath, but had allegedly failed to adequately report and investigate the incident.

However, by the time the Navy-Marine Corps Court Trial Judiciary rendered a judgment, the legal question did not revolve around Chessani’s role during the incidents, but around the question whether there was an appearance of unacceptable influence on the case by Colonel Ewers, an important figure in military legal circles. The NMCTJ ruled that the US government had failed in refuting the appearance of “unlawful command influence”. According to the NMCTJ, the presence of someone with Ewers’ reputation, who had strong views regarding Chessani’s guilt, could have influenced the prosecutor and legal advisers. Therefore, charges against him were dismissed.

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Procedural history

The Consolidated Disposition Authority (CDA) referred charges against Jeffry Chessani to a general court-martial on 19 October 2007. He was charged with violating a lawful general order and dereliction of duty in violation of Article 92 UCMJ (Uniform Code of Military Justice). On 1 April 2008, Chessani filed a motion to dismiss the charges, as he alleged unlawful command influence (UCI). In a preliminary ruling of 20 May 2008, the military judge considered that there was evidence of UCI, which caused the burden of proof to shift to the prosecutors. They now had to proof that the facts alleged by the defence were untrue, that they did not constitute UCI or that the UCI did not affect the proceedings. The NMCTJ ruled on 17 June 2008 that the Government had not been able to disprove UCI, thereby dismissing all charges against Chessani. The Government appealed against these findings, while Chessani requested the NMCCA to confirm the first ruling, which the NMCCA did on 17 March 2009.  The Government decided against further appeal.

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Related developments

The Navy-Marine Corps Court of Criminal Appeals confirmed the NMCTJ’s ruling. Because the dismissal of charges was made without prejudice, the Government still had the option of seeking to re-charge Chessani. It decided against this. The Marine Corps decided to handle the matter administratively by appointing a Board of Inquiry. On August 27 2009, this Board of Inquiry ruled that Chessani was not guilty of misconduct and should not be demoted. However they ruled that he should retire, as he displayed ‘substandard performance’.

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Legally relevant facts

In Iraq, Chessani was commander of Kilo Company, 3rd Battalion of the 1st Marine Regiment, which was based on the Euphrates. In that region, in the village Haditha, a makeshift bomb exploded on 19 November 2005, killing corporal Terrazas and injuring two other soldiers. It was claimed that men from the Kilo Company responded by raiding against a vehicle and several houses, which resulted in the death of 24 men, women and children. Media attention and public denunciation led to an Army investigation, which led to criminal charges being made against eight marines. The essence of the charges made against Chessani was failure to accurately report and thoroughly investigate the Haditha incidents (p. 2 under A). Col. Ewers, who played a significant role in investigating the Haditha incidents, interviewed Chessani regarding the charges. He indicated that he suspected wrongdoing on Chessani’s side and he challenged Chessani’s explanations, which resulted in several inculpatory statements. Despite not having an official role in the prosecution phase and despite several warnings against giving Ewers an advisory role, Ewers did attend meetings in which Haditha cases were discussed. Also present were CDA Lieutenant-General Mattis and other members of the trial team (MARCENT SJA’s).

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Core legal questions

Instead of assessing Chessani’s role in the Haditha incidents, the NMCTJ had to assess whether there had been UCI, either factual or apparently. The defence had submitted a motion claiming UCI based on, firstly, pre-trial publicity, secondly, interference by the Secretary of the Navy and, thirdly, Col. Ewers presence during military justice meetings in which Chessani’s case had been discussed. As the NMCTJ had found in a pre-trial decision that the defence had met their initial burden to raise some evidence of actual or apparent UCI, the burden of proof had shifted to the government. The NMCTJ had to assess whether the government had proven beyond a reasonable doubt that:

1. The predicate facts did not exist;

2. The facts did not constitute UCI;

3. The UCI did not affect the proceedings.

The NMCTJ had to assess both whether actual UCI was cleansed from the proceedings, as well as whether any perceived ICU had been eradicated.

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Specific legal rules and provisions

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Court's holding and analysis

The Court found that the government had not met their burden to disprove UCI (pp. 24-26). The Court found that Col. Ewers had investigated the events in Haditha and that he publicly expressed his opinions regarding Chessani’s guilt. Later, he attended as a primary legal adviser at least 50 to 125 hours of meetings where this case was discussed. It remains contested whether he offered specific legal advice. However, the Judge stated that Ewer’s reputation and known opinions about Chessani’s guilt could have contributed to a mindset against the accused. Specifically, his presence might have ‘chilled’ subordinate legal advisers from providing contrary legal advice (pp. 24-26).  The Court found that the government had not done enough to disprove inappropriate influence on the decisions convening authority and on legal advice provided by the SJA and deputy SJA of MARCENT (pp. 26-27). The Court concluded that at least an appearance of UCI had taken place. Charges against Chessani were dismissed.

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Further analysis

In an interesting article for those interested in law and/or film, Dungan compares the typical portrayal of military justice in film, including unlawful command influence, to reality.

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Instruments cited

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Related cases

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Additional materials

The media played a significant role in the Army initiating an investigation into the Haditha incidents. Some compared Haditha to My Lai. The proceedings against eight marines, including Chessani, were closely watched by the media. Most recently, the guilty plea of Marine Staff Sgt. Frank Wuterich, the only one to be sentenced for his role in the Haditha incident, gave cause to news reports on Iraqi feelings of injustice. Others argued against this, stating that these cases proved the integrity of the US legal system.

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Social media links

Several blogs made apparent the sensitivity of the subject of prosecuting soldiers for acts committed during the war in Iraq. Others showed disappointment on what they perceived as lack of justice for the victims of the Haditha incidents.