Prosecutors Appeal Chessani Dismissal

The decision by court martial judge Col. Folsom of undue command influence in the prosecution of Lt. Col. Jeffrey Chessani is being appealed by the prosecution.

The watershed ruling found that the legal adviser, Col. John Ewers, should not have sat in on meetings and discussions with two generals who have overseen the case. That degree of participation by Ewers, who also investigated the killings in the city of Haditha, Iraq, irreparably tainted the decision to charge and prosecute Chessani, Folsom ruled.

The notice of appeal delays the case indefinitely. The appeal document was signed by the lead prosecutor in the case, Lt. Col. Sean Sullivan, and sent to Chessani's attorneys late Wednesday….

"In our opinion, the ruling is appeal-proof," Rooney said Wednesday during a telephone interview. "He spent a lot time saying why he ruled the way he did, citing numerous instances of case law to back up his opinion."

The appeal goes to the Navy and Marine Court of Criminal Appeals. Prosecutors have 20 days to write their arguments and provide them to the defense, which has 20 days from receipt of that document to respond.

Folsom's rationale, Rooney said, included a finding that prosecutors failed to meet the required proof beyond a reasonable doubt that command influence didn't harm Chessani.

"The court can only overturn the ruling if it's clearly erroneous, and the evidence is clear that it isn't," he said.

The appeals court is not under any time constraint to issue its finding. Whichever way it does rule can be further challenged before the Court of Appeals for the Armed Forces.

"We feel very good about our chances," Rooney said. "The unfortunate thing is that Col. Chessani has to continue to sit behind a desk for an indefinite amount of time while it's decided. I would have hoped someone would have looked at Judge Folsom's ruling and said, 'Enough is enough, let this Marine retire.'"

The Navy-Marine Corps Court of Appeal “reviews all petitions for extraordinary relief properly filed before it.” If the prosecution is denied there, the only grounds for reversal of Col. Folsom’s ruling being legal error or factual insufficiency, the prosecution may appeal again to the Court of Appeals for the Armed Forces (CAAF) and from there to the US Supreme Court, the prosecution facing the same task of proving legal error or factual insufficiency.

The prosecution’s zeal may be tied to the same grounds for dismissal -- undue command influence -- of the charges against the remaining Haditha defendant, SSgt Wuterich.

Although a different judge is assigned to Wuterich's case, his attorneys have a similar motion pending.

"We believe the same defect exists in our case as in Chessani's case," Wuterich attorney Neal Puckett said.

Instead of this, likely, losing waste of everyone’s time, and more of Chessani’s life, the prosecution could have chosen to either request a reinvestigation of the charges and refiling or of ending this farce.

The JAG prosecution is, instead, making a farce of itself, or adding to the already evident display of farce.

SEE DOD Inspector General Should Inspect JAG

OF COURSE see Michelle Malkin