Jack Zimmermann Sees Larger Cause in His Defense of Marine Charged with Iraq Killings

www.texaslawyer.com SEPTEMBER 3, 2007 VOL. 23 • NO. 26 Jack Zimmermann Sees Larger Cause In His Defense of Marine Charged With Iraq Killings by MARK DONALD he small courtroom tucked into the northern tip of Camp Pendleton, a sprawling Marine base near San Diego, looked brand new. Its white walls smelled of fresh paint, its oak benches were at high gloss, Tits overactive air conditioner kept lawyers chilled and awake. Yet despite the newness of the setting, the alleged crime the U.S. government was prosecuting on July 16 was as old as war itself. The government had “preferred charges” against Lance Cpl. Stephen B. Tatum of Kilo Company, 3rd Bat- talion, 1st Marine Division, for the “unpremeditated murder” of two civilians, both OF Iraqi children, and the negligent homicide of four FOG WAR other Iraqi civilians, among them a woman and a 4-year-old boy. A native of Edmund, Okla., Tatum who was 25 at the time of the incident, faces life imprison- ment if convicted. His alleged war crimes were part of a larger investigation into the deaths of 24 Iraqi civilians in Haditha, Iraq, on Nov. 19, 2005, after an impro- vised explosive device (IED) killed one Marine and wounded two others. On Dec. 21, 2006, the government charged four officers with, among other things, dereliction of duty for failing to JOHN EVERETT This article is reprinted with permission from the September 3, 2007 issue of Texas Lawyer. © 2007, Texas Lawyer. For subscription information, contact Texas Lawyer, 1412 Main St., Suite 1300, Dallas, TX 75202 • 214-744-7701 • 800-456-5484 ext.701 • www.texaslawyer.com report the alleged violation of the laws of war. Tatum and three other enlisted Marines were accused of committing the actual homicides by violating their rules of engagement (ROE), which define the limits of their legal author- ity to kill in combat. If the Marines followed those rules, they had license to kill; if they didn’t, they might be criminally liable for their actions. In previous hearings, the government contended that the enlisted Marines went on a rampage, seeking revenge for the loss of their comrade. Many of those killed were women and children who were shot in their homes, some at close range, which suggested execution-style killings. The tragedy at Haditha fed the fury of the political debate engulfing the war. The war’s opponents saw it as validation that the United States is MARK DONALD From left to right: Lance Cpl. Stephen B. Tatum, Lt. Col. Matthew Cord, Jack Zimmermann engaged in an unwinnable civil war and Kyle Sampson. that is morally challenging American troops who have trouble distinguish- Zimmermann maintains that the military prosecution team in Tatum’s case, but he ing between innocent civilians and the system “is fairer than the state and federal declines comment for this article. “We enemy. The war’s proponents saw Haditha systems if it functions the way it is sup- prefer to remain nameless and faceless,” as further evidence of the enemy’s treach- posed to function.” Atterbury says. ery: Rather than follow the laws of war, Zimmermann and his trial team had Unlike the military lawyers who were they hide among civilians, using women spent much of the past few months getting dressed for trial in desert fatigues, at and children as human shields. ready for the hearing. “When we got into the hearing Zimmermann and Sampson But politics were of minor concern this, we had no idea there would be 13,000 were suited up in regulation dark suit to Houston criminal-defense attorney pages of discovery,” says Zimmermann, and tie. Out of deference to the Marines, Jack Zimmermann as he glanced around a partner in Houston’s Zimmermann, Zimmermann left his trademark white the Camp Pendleton courtroom, smiling Lavine, Zimmermann & Sampson. “Most cowboy hat in Houston. at observers in the cramped gallery. of our fee was used up in the first month. “Jack typically wears an oversized Zimmermann led Tatum’s defense team, But in a public service case, the question Stetson, which does seem out of character which consisted of his partner, Kyle is not how much money can you make? for a lawyer who is not flamboyant,” says Sampson, and two military lawyers, Lt. It’s how much money can you afford to Dr. Paul Radelat, a Houston forensic Col. Matthew Cord and Maj. Jeff Munoz lose?” pathologist whom Zimmermann retained detailed to assist Tatum. Certainly the Marine Corps wasn’t in the Tatum case. “People poke fun at July 16 marked the first day of Tatum’s skimping on its prosecution. After the him for it, but it gives him a bit of identity Article 32 hearing, a probable-cause alleged atrocity received worldwide atten- and notoriety.” investigation under the Uniform Code of tion — in part, because it only came to At 65, Zimmermann is no stranger to Military Justice (UCMJ) — part examin- light after a Time magazine reporter military attire. A retired Marine colonel, ing trial, part grand jury proceeding. began asking questions, the Marines he served two tours of duty in Vietnam, At the conclusion of the Article 32, an launched several internal investigations. commanding an artillery battalion and investigating officer, in this case Lt. Col. The Marine Corps, which ritualizes duty, receiving two Bronze Stars for heroism. Paul J. Ware, would recommend whether honor and discipline in its training, also After attending the University of Texas the charges should be referred to a court- was confronting the shame of another School of Law, he spent the last three martial or dismissed. scandal that occurred in Hamdania, Iraq, of his 14 years of active duty as a judge “This was a troops-in-contact situation when seven Marines and one Navy corps- advocate. But on the same day that he and Tatum cleared those houses exactly man allegedly kidnapped and murdered resigned his regular commission so he the way he was trained to do,” says Zim- an unarmed Iraqi man. could enter private practice, he accepted mermann in an interview. “You don’t To prosecute both sets of cases, the a commission in a Marine Corps reserve take a chance that there is an insurgent Marines drew together a team of 10 battalion, of which he assumed command behind a couch. You fire at anything that lawyers, among them three lieutenant in 1983. He retired from the reserves in moves.” colonels, which is “a very senior rank 1994, but not before serving as a general As a civilian lawyer who has practiced for a Marine trial lawyer,” Zimmermann court-martial trial judge. His son was a in the military justice system for 25 years, says. Lt. Col. Paul Atterbury led the Marine officer and his daughter Terri, a lieutenant colonel in the Marine Corps about to engage had committed a hostile worst hotspots of the Sunni insurgency. Reserves and one of his law partners, act or demonstrated hostile intent toward Foreign fighters hid and lived among handled briefing for the Tatum case. the Marines. its residents, some of whom were them- For those in the Camp Pendleton Zimmermann was up next, presenting selves part of the insurgency. Marine courtroom who might be unfamiliar with a 15-page PowerPoint presentation that reservists faced heavy casualties from his Marine bona fides, Zimmermann seemed as much closing argument as ambushes and IED explosions. Civilians displayed two subtle reminders: his Naval opening statement. He urged Ware to faced retaliatory killings for abetting Academy class ring and a rosette in his focus on Tatum’s actions not from the Americans and belonging to the wrong lapel that represents his Bronze Star. viewpoint of some “two-star general” away religious sect. During the hearing, Atterbury referred from the battlefield, but from the situation To help tame Haditha, Kilo Company to Zimmermann as colonel. as it presented itself to Tatum based on and the rest of the 3rd Battalion arrived Article 32 hearings allow the law- his training, experience and perceptions. in the fall of 2005. Some troops were on yers to question the investigating officer Zimmermann asked Ware to focus their third tour of duty in Iraq. During Kilo regarding his qualifications and impar- on whether Tatum had “criminal intent” Company’s second tour in 2004, Marines, tiality. Ware acknowledged that he had when his superiors ordered him to clear including Tatum and Sharratt, engaged in known Sampson from Sampson’s days a house that had been declared hostile, fierce house-to-house battles to retake the as a Marine and they remained personal when he responded to a perceived threat city of Fallujah from insurgent hands. The friends. after he heard what he believed was the Marines interpreted the rules of engage- Atterbury seemed more concerned “racking” of an AK-47 and when he sup- ment generously, particularly because the with whether Ware was biased against ported a fellow Marine who had already military had warned its inhabitants of the the government’s witnesses, a few of engaged targets. Zimmermann suggested impending attack. Almost the entire town whom had testified against Lance Cpl. that Tatum was only carrying out his of Fallujah fled, including insurgents, Justin Sharratt, another enlisted Marine lawful duty, just the way the ROE had as Marines devastated the city, treating who had been charged in the Haditha instructed him: with deadly force. “We those who remained as hostile. shootings. A month earlier, Ware presided would have chaos if every lance corporal The 3rd Battalion expected another over Sharratt’s Article 32 and recom- questioned the orders of officers” during hard-fought battle in Haditha, but they mended that the charges against him be an enemy attack, he said.

Load more