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 Legal news from Wednesday, April 16, 2008 |
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Wednesday, April 16, 2008 |
US expanding DNA data collection to all federal arrestees
Deirdre Jurand at 7:34 PM ET
[JURIST] The US government will begin collecting DNA samples [JURIST report] from every person arrested under federal laws, a Department of Justice spokesman said Wednesday. Federal agencies are authorized to collect DNA samples under a 2006 amendment [PDF text] to the Violence Against Women Act, but previously had only collected DNA from people actually convicted of federal crimes. About 1.2 million additional people could be added to the FBI's Combined DNA Indexing System (CODIS) [official website; FBI backgrounder, PDF] every year under the expansion, although people who are not convicted can request the destruction [WP report] of their DNA samples. Supporters of the new measures say the expanded database will help prevent crime, but civil rights groups have expressed privacy concerns. The law will soon be published in the Federal Register and will then be subject to a 30-day comment period. AP has more.
Thirteen states have implemented policies similar to the new federal policy. In November 2007, The US Court of Appeals for the Ninth Circuit ruled [JURIST report] that all convicted federal felons must provide DNA samples to a federal database available to police departments throughout the country. In 2005, the Third Circuit ruled [JURIST report] that a convicted bank robber had to submit DNA samples to CODIS. A New Jersey state appeals court upheld a comparable state law [JURIST report] in 2005.
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Russia NGOs hampered by increasing state regulation: rights groups
Andrew Gilmore at 7:10 PM ET
[JURIST] Non-governmental organizations (NGOs) in Russia are chafing under increasingly strict regulations implemented under legislation signed into law [JURIST report] in April 2006 by Russian President Vladimir Putin [official website], rights groups told AP Wednesday in the wake of a Tuesday compliance deadline. The groups say they expect the Russian government to continue its clamp-down on foreign-funded and domestic NGOs operating under the law, which has been widely criticized [JURIST report] by the US government and human rights organizations. Prior to signing the 2006 legislation, Putin said that it was "aimed against puppeteers abroad" [JURIST report]. The Russian Ministry of Justice [official website, in Russian] has used the law to subject organizations to heightened financial and administrative scrutiny, as well as force non-compliant NGOs to shut down operations [JURIST report]. AP has more.
The law has been used against numerous NGOs operating in Russia, including the Russian-Chechen Friendship Society [advocacy website; JURIST report] and the British Council [official website; JURIST report].
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Berlusconi testimony sought in defense of Italy ex-spy chief in CIA rendition case
Deirdre Jurand at 6:50 PM ET
[JURIST] Lawyers for former Italian Intelligence and Security Service (SISMI) [official website] chief Nicolo Pollari said Wednesday that they have included Italian Prime Minister-elect Silvio Berlusconi [BBC profile] as a requested witness to testify in support of Pollari's assertion that he was not involved in a reported 2003 CIA kidnapping [JURIST news archive; WP timeline] case. Pollari was charged [JURIST report] in 2006 in connection with the kidnapping and rendition of Egyptian cleric Moustafa Hassan Nasr. Defense lawyers hope Berlusconi and other Italian officials will testify [Reuters report] that classified government documents prove that Pollari was not involved in the kidnapping. Judgment on whether to allow the testimony is scheduled for May 14. AP has more.
The Italian cabinet relieved Pollari of his duties [JURIST report] as SISMI head in November 2006. Pollari has denied allegations [JURIST report] that he assisted the CIA with the extraordinary rendition [JURIST news archive] of Nasr. Pollari, another SISMI official and 26 Americans, mostly CIA agents, are being tried for their role in Nasr's alleged kidnapping. Proceedings against the Americans are being conducted in absentia as the US is not expected to hand them over.
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Some US states to resume executions after high court lethal injection ruling
Patrick Porter at 6:47 PM ET
[JURIST] Several US states announced Wednesday that they would resume executions by lethal injection after the Supreme Court's decision upholding Kentucky's lethal injection protocol [JURIST report] earlier in the day. Virginia lifted its death penalty moratorium [press release] and Oklahoma's attorney general said he would seek to schedule executions for two death-row inmates [press release]. Arizona's attorney general said the decision clears the way for executions to resume in the state, but that the state would delay rescheduling [press release, PDF] a previously stayed execution [JURIST report] until the inmate in that case has an opportunity to file a brief addressing the Supreme Court's decision.
In September 2007, the Supreme Court granted certiorari in Baze v. Rees [Duke Law case backgrounder; JURIST report], allowing it to consider whether the three-drug lethal injection cocktail [DPIC backgrounder] used in most states violates the Eighth Amendment's prohibition on cruel and unusual punishment. This led to an effective moratorium [JURIST report] on the death penalty in the United States as many federal courts, state courts, and state governors put executions on hold pending the high court's ruling. AP has more.
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US military releases AP journalist detained in Iraq after last charge dismissed
Andrew Gilmore at 6:23 PM ET
[JURIST] Associated Press photographer Bilal Hussein [AP materials; JURIST news archive] was released from custody Wednesday by US military forces in Iraq. Maj. Gen. Douglas M. Stone, deputy commanding general for detainee operations for the Multi National Force–Iraq [official website], signed an order approving Hussein's release Monday after confirming that Hussein's conduct fell under Iraq's amnesty law [JURIST reports], passed in February as part of the national reconciliation effort. A four-member Iraqi judiciary panel dismissed the last remaining charge against Hussein [JURIST report] on Sunday and recommended the US release him from custody immediately.
Hussein [advocacy website] had been held by the US military since his arrest in April 2006 for allegedly possessing equipment to construct roadside bombs. In November 2007, the US Department of Defense pushed for terrorism charges against Hussein [JURIST report]. AP repeatedly called for his release and had accused the military of denying Hussein his due process rights. AP has more.
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Australia court deals setback to ex-Guantanamo detainee compensation claim
Patrick Porter at 6:19 PM ET
[JURIST] The Federal Court of Australia Wednesday ruled [judgment text] against former Guantanamo detainee Mamdouh Habib [BBC profile; JURIST news archive] in an ongoing claim for compensation against the Australian government, which he accused of being complicit in torture he allegedly suffered while held in US custody. Habib had alleged that he was interrogated and tortured at the Australian High Commission in Pakistan [official website], but the court ruled that Habib was mistaken and was not interrogated anywhere under the control of the Australian government. A different court Wednesday threw out Habib's defamation claim against broadcasters for alleging in 2005 that he was improperly seeking a disability pension.
Habib was detained in 2001 in Pakistan and was held in Egypt and Afghanistan before being sent to Guantanamo Bay for three years, where the US accused him of aiding terrorist militants. The US released him without charge [JURIST report] in 2005. Habib and his lawyers have repeatedly said that he was tortured while in US custody [JURIST reports]. The Australian has more.
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Supreme Court hears child rape death penalty case
Katerina Ossenova at 3:36 PM ET
[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [transcript, PDF] Wednesday in Kennedy v. Louisiana [Duke Law case backgrounder, merit briefs], 07-343, where the Supreme Court considered whether the death penalty constitutes cruel and unusual punishment when imposed for a crime in which the victim was not killed. Patrick Kennedy was sentenced to death in Louisiana for raping a minor, one of the few remaining crimes where the death of a victim is not required for the death penalty, and the Louisiana Supreme Court upheld [opinion, PDF] the sentence. Kennedy's lawyers argued that imposing the death penalty for child rape under Louisiana law violates the Eighth Amendment [text] protection against cruel and unusual punishment. Justice Roberts and Justice Scalia challenged Kennedy's argument while Justice Breyer expressed concern that allowing the execution would broaden the death penalty for crimes other than murder. AP has more.
The Supreme Court also heard oral arguments [transcript, PDF] Wednesday in Taylor v. Sturgell [Duke Law case backgrounder, merit briefs], 07-371, where the Court is considering whether a litigant is barred under the theory of "virtual representation" from pursuing a claim if another litigant had previously pursued a similar claim. Taylor filed a lawsuit against the Federal Aviation Administration seeking to compel disclosure of certain FAA documents, but the suit was dismissed when the district court determined that the claim was barred because a "close associate" of Taylor's already unsuccessfully pursued a similar claim. The US Court of Appeals for the District Court affirmed the district court based on a "virtual representation" theory, noting that Taylor and the earlier litigant sought disclosure of the same documents, were represented by the same lawyer, among other factors.
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Federal judge declares second mistrial in Sears Tower terror case
Katerina Ossenova at 3:18 PM ET
[JURIST] US District Judge Joan A. Lenard Wednesday declared a second mistrial in a terrorism prosecution [JURIST report] of six men charged with conspiring [DOJ press release] to bomb the Sears Tower in Chicago and the FBI headquarters in Miami after the jury was unable to reach a verdict after 13 days of deliberations. In December 2007 Lenard declared an initial mistrial [JURIST report] when the jury was deadlocked after nine days of deliberations. A seventh man was acquitted in that proceeding. AP has more.
The seven were indicted [JURIST report] last year on charges [indictment, PDF] of conspiring to provide material support to al Qaeda; conspiring to provide material support, training, and resources to terrorists; conspiring to maliciously damage and destroy by means of an explosive; and conspiring to levy war against the government of the United States. The indictment alleged that ringleader Narseal Batiste recruited the six other defendants to "organize and train for a mission to wage war against the United States government," and that they pledged an oath to al Qaeda in an attempt to secure financial and logistical backing. Lawyers for some of the men said that their clients were entrapped [JURIST report] by an FBI informant posing as an al Qaeda operative. If the men had been convicted, they would have faced up to 70 years in prison.
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EU urged to ensure Croat war criminals brought to justice
Katerina Ossenova at 2:42 PM ET
[JURIST] The European Union (EU) [official website] must do more to ensure that those responsible for war crimes committed during the 1991-1995 Croatian War of Independence are brought to justice, Amnesty International [advocacy website] said Tuesday. Amnesty called on the EU [press release] to use Croatia's status as an EU candidate country [Croatia materials; EU materials] to ensure that the Croatian government actively investigates and prosecutes suspected war criminals. Amnesty criticized the slow pace of war crimes investigations, and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs even though Croats have also been accused of ethnic-based war crimes.
Croatian trials of war crimes suspects are part of the country's bid to become a member of the EU. In March 2005, the EU suspended entry talks [JURIST report] on the grounds that Croatia was failing to fully cooperate with the International Criminal Tribunal for the former Yugoslavia [official website; JURIST news archive] investigating war crimes in the area. The entry talks were resumed later in October 2005 after the ICTY declared that Croatia was fully cooperating with the ICTY [JURIST report]. EUobserver.com has more.
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Zimbabwe police arrest opposition supporters after strike staged
Brett Murphy at 10:19 AM ET
[JURIST] Zimbabwean police have arrested more than 50 members of the opposition Movement for Democratic Change (MDC) [party website] after the party called for a strike to protest the nondisclosure of the results of the March 29 presidential elections [JURIST report], a party spokesperson said Wednesday. Zimbabwe police say that only 30 opposition supporters were arrested for blocking roads and traffic and attempting to intimidate people from going to work after police announced a ban on all political rallies [JURIST report] Friday. The strike apparently had an insignificant impact, with most businesses remaining open.
On Monday, the High Court of Zimbabwe rejected a bid by MDC to compel the Zimbabwean Electoral Commission (ZEC) to immediately release the results of the election [JURIST reports]. On Sunday, the High Court ordered the ZEC to refrain from recounting the results [JURIST report] of the elections until the presidential poll results are announced. Independent observers say that MDC candidate Morgan Tsvangirai [BBC profile] won more votes than Mugabe but likely not enough to reach the 50 percent plus one needed for outright victory. BBC News has more. AFP has additional coverage.
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Supreme Court upholds Kentucky lethal injection protocol
Jeannie Shawl at 10:19 AM ET
[JURIST] The US Supreme Court [official website; JURIST news archive] ruled Wednesday that lethal injection [JURIST news archive] does not violate the Eighth Amendment's prohibition on cruel and unusual punishment. The ruling came in Baze v. Rees [Duke Law case backgrounder; JURIST report], where lawyers for Kentucky death row inmate Ralph Baze argued that the three-drug lethal injection cocktail [DPIC backgrounder] used in most states violates the US Constitution because the first drug administered can fail to make the subject fully unconscious, thereby making the subject suffer excruciating pain when the heart-stopping drug is injected. The Supreme Court rejected Baze's arguments, with Chief Justice John Roberts writing:We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed. The Supreme Court's grant of certiorari in the case led to an effective moratorium on the death penalty in the United States [JURIST report] as many federal courts, state courts, and state governors put executions on hold pending the high court's ruling.
Chief Justice Roberts announced the judgment, and his opinion [text] was joined by Justices Kennedy and Alito. Alito filed a separate concurring opinion [text]. Justice Stevens filed an opinion concurring in the judgment [text], as did Justice Scalia [opinion text], who was joined by Justice Thomas. Thomas wrote his own opinion concurring in the judgment [text] and was joined by Scalia. Justice Breyer also filed a separate opinion concurring in the judgment [text]. Finally, Justice Ginsburg dissented [text], and was joined by Justice Souter.
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Supreme Court rules in sentencing enhancement cases
Jeannie Shawl at 10:10 AM ET
[JURIST] The US Supreme Court [official website; JURIST news archive] handed down decisions in three cases Wednesday, including Burgess v. US [Duke Law case backgrounder; JURIST report], where the Court held that a defendant's federal drug sentence can be enhanced under the Controlled Substances Act (CSA) [text] when the defendant has previously been convicted of a state drug offense punishable by more than one year, even if that offense is classified as a misdemeanor, not a felony. Burgess pleaded guilty to federal charges of conspiracy to possess with intent to distribute 50 grams or more of cocaine base, and prosecutors sought to double the normal 10-year minimum sentence to 20 years based on provisions of the CSA. Burgess had previously been convicted in South Carolina of cocaine possession, a crime classified under state law as a misdemeanor. Burgess argued that because he had not been convicted of a "felony," his federal sentence should not be enhance based on the "felony drug offense" provision [21 USC 841(b)(1)(A)] of the CSA. The Supreme Court disagreed with Burgess and affirmed the Fourth Circuit's decision [PDF text] in the case, writing:Two statutory definitions figure in our decision. Section 802(13) defines the unadorned term "felony" to mean any "offense classified by applicable Federal or State law as a felony." Section 802(44) defines the compound term "felony drug offense" to mean an offense involving specified drugs that is "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country."
The term "felony drug offense" contained in §841(b)(1)(A)'s provision for a 20-year minimum sentence, we hold, is defined exclusively by §802(44) and does not incorporate §802(13)'s definition of "felony." A state drug offense punishable by more than one year therefore qualifies as a "felony drug offense," even if state law classifies the offense as a misdemeanor. Read the Court's unanimous opinion [text] per Justice Ginsburg.
In Begay v. United States [Duke Law case backgrounder], the Court ruled that convictions for driving under the influence of alcohol do not trigger enhanced sentencing for prior "violent felony" convictions under the Armed Career Criminal Act. Begay pleaded guilty to felony possession of a firearm, and the federal judge presiding over his case imposed an enhanced 15-year sentence under the Act, which allows the longer prison term when a defendant has at least three prior convictions for certain drug crimes or "violent felonies." Begay had 12 separate convictions in New Mexico for driving under the influence. The US Court of Appeals for the Tenth Circuit allowed the enhanced sentencing [opinion, PDF], but the Supreme Court reversed, concluding that "New Mexico's crime of 'driving under the influence' falls outside the scope of the Armed Career Criminal Act's clause (ii) 'violent felony' definition." Read the Court's opinion [text] per Justice Breyer, along with a concurrence [text] from Justice Scalia, and a dissent [text] from Justice Alito.
Finally, in Baze v. Rees, the Court ruled that a three-drug lethal injection protocol used in Kentucky and many other states does not violate the Constitution [JURIST report].
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Peru high court upholds Fujimori abuse of authority prison sentence
Brett Murphy at 10:07 AM ET
[JURIST] The Supreme Court of Peru on Tuesday upheld a prison sentence [JURIST report] for former Peruvian President Alberto Fujimori [BBC profile; JURIST news archive], who was convicted late last year on charges of abuse of authority for ordering a warrantless search of the apartment of the wife of former Peruvian Intelligence Director Vladimiro Montesino [BBC profile]. The high court also upheld a $135,000 fine for rights violations that occurred during the search.
The December conviction marked the first time Fujimori has ever been convicted of a crime; he currently faces separate trials for alleged human rights abuses and other charges stemming from his actions during three presidential terms in office from 1990-2000. AFP has more.
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US prosecutors defend al-Marri 'enemy combatant' detention conditions as humane
Brett Murphy at 9:38 AM ET
[JURIST] US federal prosecutors defended the prison treatment of accused enemy combatant Ali Saleh Kahlah al-Marri [Brennan Center case materials; NYT profile] in documents filed Tuesday with the US Court of Appeal for the Fourth Circuit. Prosecutors say that although al-Marri is kept in solitary confinement, he has access to a library, TV, computer, and exercise equipment. Lawyers for al-Marri said last month that the conditions of his detention were having a negative affect on his health, but prosecutors say that al-Marri enjoys much more than most military detainees, including the use of a 1,000-square-foot room and nearby cells during the day.
Last week, a lawyer for al-Marri argued in a letter [PDF text; JURIST report] submitted to the Fourth Circuit that a 2003 US Department of Justice Office of Legal Counsel memorandum [PDF text] and a 2001 memorandum cited in the 2003 document demonstrate that al-Marri's detention "lacks legal basis" as the detention was based on now-discredited legal opinions. The appeals court is currently considering al-Marri's challenge to his designation as an enemy combatant [JURIST news archive]. In October 2007, the court held an en banc rehearing [JURIST report] of its earlier ruling [PDF text; JURIST report] that the military cannot seize and imprison civilians lawfully residing in the United States and detain them indefinitely as "enemy combatants." Al-Marri was arrested at his home in Peoria, Illinois by civilian authorities in 2001, and was indicted for alleged domestic crimes. In 2003, President George W. Bush declared him an enemy combatant [CNN report] and ordered the attorney general to transfer custody of al-Marri to the defense secretary, claiming inherent authority to hold him indefinitely. AP has more.
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Iran appeals court upholds sentences of students charged with insulting Islam
Brett Murphy at 9:05 AM ET
[JURIST] An Iranian appeals court Tuesday upheld the sentences [JURIST report] of three Iranian students on charges of insulting Islam. Majid Tavakoli, Ahmed Ghassaban, and Ehsan Mansouri were arrested last year for allegedly publishing anti-Islamic material in multiple newspapers. The three were sentenced to 22 to 30 months in prison. Supporters of the students had hoped they would be released on bail, but a court official said that they will serve the full terms before being released. AFP has more.
The students all attend Amirkabir University of Technology [university website] in Tehran and are leaders of Daftar-e Tahkim-e Vahdat (the Office for the Consolidation of Unity) [HRW backgrounder], the largest-known Iranian student reform group. Group officials and the three students maintain that the "insults" were made by conservatives to frame the group [AFP report, in French].
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Zimbabwe court clears foreign journalists of illegal reporting charges
Leslie Schulman at 8:17 AM ET
[JURIST] A judge in Zimbabwe on Wednesday cleared two foreign journalists of charges of reporting on the country's March 29 presidential election [JURIST report] without obtaining proper credentials. Barry Bearak of the New York Times and Stephen Bevan of Britain's Telegraph were arrested [CPJ press release; JURIST report] in early April and held for five days before being released on bail [NYT report] but were prohibited from leaving Zimbabwe until the court's ruling. Many saw the arrest of the journalists as indications that long-time Zimbabwean President Robert Mugabe [BBC profile; JURIST news archive] may refuse to relinquish power if he is found to have lost the recent general election, the official results of which have not yet been announced by the Electoral Commission [official website]. Opposition party Movement for Democratic Change (MDC) [party website] has insisted its candidate Morgan Tsvangirai [BBC profile] won the popular vote, but has indicated that it is willing to participate in a run-off, as have officials of Mugabe's Zanu-PF party. Earlier this week, an attempt by the MDC to force the Electoral Commission to release election results was rejected, as a court refused to compel release of the results [JURIST report].
Zimbabwe opposition parties allege that the government rigged the country's local, senate, assembly and presidential elections, while Mugabe's administration has denied any improper delays in the vote count. Electoral Commission officials attribute the lag in reporting the official outcome to the task of tallying all the results together for the first time in the country's history. AP has more.
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US officials urge Senate ratification of treaties protecting civilians in wartime
Leslie Schulman at 8:12 AM ET
[JURIST] Officials from the US Department of State and the Department of Defense testified Tuesday in front of the Senate Foreign Relations Committee [official websites], calling for the Senate to ratify five long-postponed treaties that would provide increased protection for civilians during wartime. State Department Legal Adviser John Bellinger III [official profile] and Pentagon Deputy General Counsel Charles A. Allen testified [Bellinger text, PDF; Allen text, PDF] that ratification of the treaties would not harm US national security, and would induce other nations to follow suit while giving the US more leverage to negotiate future treaties.
The five texts include the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and three protocols to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW): Protocol III on Incendiary Weapons; Protocol IV on Blinding Laser Weapons; and Protocol V on Explosive Remnants of War, and an amendment to the CCW.
According to Bellinger:United States ratification of the treaties before you today is in our military and security interest and would promote the rule of law and the development of international law. These treaties are widely supported and are not contentious in our view. This Administration, including the State and Defense Departments, strongly supports these treaties. They promote our cultural and humanitarian values while not interfering with legitimate military operations, as you will shortly hear from my colleagues from the Defense Department. The United States has traditionally been at the forefront of efforts to improve the legal regime dealing with the conduct of armed conflict, in order to protect our own forces, to reduce the suffering caused by armed conflicts and to provide protection to the victims of war, in a manner consistent with legitimate military requirements. Our ratification of these instruments will therefore serve our interests in these areas. Brig. Gen. Michelle D. Johnson [official profile], a deputy director at the Pentagon, also testified [PDF text] Tuesday, supporting Bellinger's contention that the treaties would not have an adverse effect on US military missions. AP has more.
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Haditha Marine battalion commander court-martial postponed
Leslie Schulman at 7:54 AM ET
[JURIST] A military judge Tuesday postponed the scheduled April 28 court-martial for a US Marine charged in connection with the November 2005 killings of 24 Iraqi civilians in Haditha [USMC timeline; JURIST news archive], rescheduling the trial for June 17. According to lawyers for Lt. Col. Jeffrey R. Chessani [JURIST news archive], who faces court-martial [JURIST report] for dereliction of duty and violation of a lawful order based on the allegations that he failed to properly investigate the Haditha shootings, the judge postponed the court-martial in order to decide whether several military officials were under "undue command influence" to charge the Marine. Chessani, the former commander of the Third Battalion, 1st Marine Regiment [official website], did not order an immediate investigation into the deaths because he said he did not suspect any wrongdoing. It has been alleged that the civilians were murdered in cold blood [JURIST report], but Chessani said that when he first learned of allegations that the civilians were killed intentionally he thought that the claims were baseless. If convicted on all counts, Chessani could serve up to three years in prison.
Eight Marines were initially charged in connection to the Haditha incident, though charges [text] have since been dropped against five others. The court-martial of Staff Sgt. Frank Wuterich [defense website], leader of the squad implicated in the killings, was postponed indefinitely [JURIST report] last month from an original March 3 start date, while 1st Lt. Andrew Grayson [defense website] faces court-martial in May on charges [JURIST report] that he made false official statements and obstructed justice in connection to the killings at Haditha. AP has more.
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