Sunday, March 30, 2008
The Assumption Of Honor
Then there's John Murtha.Haditha News [David Freddoso]
In case you missed it yesterday, charges of involuntary manslaughter, aggravated assault and reckless endangerment were dismissed against Lance Cpl. Stephen Tatum, one of the eight Marines who was present when 19 civilians were killed at Haditha.
As someone with no understanding of courts martial, I am hesitant to draw any conclusions, but it still looks like the government has a very weak hand in this case right now. They had earlier tried to get Tatum's testimony through an immunity deal, which Tatum refused. Now he's off the hook, apparently without any strings attached, according to his defense team. He will be compelled to testify in the trial of one of the other Marines — Staff Sgt. Frank Wuterich — but apparently there is no agreement for him to testify against Wuterich.
03/29 01:48 PMRe: Haditha News [Andy McCarthy]
David, with respect to witnesses in general, and especially with witnesses from our military who adhere to a code of honor, the expectation is that they will testify to the truth. If a witness does that, as I would expect a Marine to do, whether the testimony turns out to be for or against someone is a function of the facts of the case, not the disposition of the witness.
03/29 03:01 PMre Haditha [David Freddoso]
Andy: Yes, naturally, it goes without saying that witnesses are to tell the truth. The point I was awkwardly trying to make in layman's terms is that this does not appear to be a case of one defendant flipping on another in exchange for a deal.
According to defense counsel, the charges against Lance Cpl. Tatum were dismissed "with prejudice." One JAG reader who spent nine months in Fallujah tells me this would mean that Tatum is completely free and clear of legal jeopardy, even though he did not make a deal with the prosecution.
03/29 04:22 PMre: re Haditha [Andy McCarthy]
Yes, David, I assume he is free and clear because the military prosecutors, being just as honor-bound as the military witnesses called in such trials, dismissed the case upon becoming convinced not only that there was insufficient evidence of guilt but that Lance Corporal Tatum, in fact, was innocent.
Assuming it is true that the charges were dismissed "with prejudice" (which has the same double-jeopardy effect as an acquittal), the prosecutors must have been persuaded of his innocence. After all, they could — regardless of whether Tatum agreed or disagreed — have dismissed the charges "without prejudice." Such a disposition would have no jeopardy effect; meaning that if, in the course trying other defendants, new evidence emerged that Tatum was guilty, prosecutors could re-charge him. That is the safe course, and it is the one prosecutors take when there is any doubt about someone's complicity. But when you become convinced that someone is innocent, the honorable thing to do is drop the charges with prejudice, not hedge your bets.
I am not trying to give David a hard time. It's just that, as a long time Justice Department prosecutor and someone who never served in the military, I am a great admirer of the honor of the military, which runs through its justice system like it runs through its culture. There is no cultural parallel in civilian life. (When I ran the satellite U.S. attorney's office in upstate New York, I was privileged to supervise the JAGs when they occasionally had to appear in civilian federal court in White Plains in connection with felonies committed on the grounds at West Point.)
Prosecutors don't have to dismiss charges with prejudice — even if they're conviced of someone's innocence, they can always hedge their bets. Yet the military prosecutors do dismiss the charges because it's the right thing to do. Theoretically, this means the former defendant, now unconcerned about legal jeopardy, would be free to slant his testimony at any future trial to favor his comrades-in-arms. Yet, that would be a violation of the honor code and it is simply assumed that no Marine would do that. A Marine will testify truthfully — not for or against anyone.
I don't mean to turn this into some kind of utopia that it's not. I just greatly admire the assumption of honor, which presumes everyone will do the right thing and thus makes it easier for everyone to do the right thing.
03/29 07:43 PM
