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

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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 authority 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. encountered little resistance in October dismissed. The “Convening Authority” Zimmermann, as he had throughout 2005 when the battalion was part of — Lt. Gen. James Mattis, the division much of his storied legal career, sought a larger force of Marines that swept commander — had final say on the to vindicate more than just his client. through the city. Instead, the insurgents matter. But on Aug. 9, Mattis followed “He is very much into causes and very chose to blend into the populace and fight Ware’s recommendation and dismissed much into the righteousness of the case,” another day, on their own terms. all charges against Sharratt. says John Romano, a Palm Beach, Fla., But hard evidence of their presence Jim Culp, co-counsel for Sharratt, did attorney who served under Zimmermann remained. “There were IEDs buried all not return a telephone call seeking com- as a military prosecutor. “He isn’t about over the town, and even after the Marines ment before presstime on Aug. 30. waiting to be paid first.” had cleared them out, there were new Tatum’s case was a harder sell. In his As he had when he represented a ones that appeared,” recalls Lucean Read, Article 32 hearing, Sharratt contended he Branch Davidian leader, handled the a freelance photographer who was embed- had only fired his weapon in self-defense, politicized appeal of a death row inmate ded with Kilo Company and who testified entering what had been identified for or helped prosecute an independent in Tatum’s defense. “The insurgents trial purposes as House 4, after two men investigation into the fake drug scandal had learned to wait for everything to — military-aged males — pointed AK-47s that rocked the Dallas justice system calm down, watching Marines form their at him. Tatum, on the other hand, was in 2002, he sought to vindicate a larger routines and get complacent.” part of the fire team that attacked House principle. In the early morning of Nov. 19, 2005, 1 and House 2. The 14 people killed inside “This is an extremely important case a squad of Kilo Company went on routine those two houses posed no threat to the for the future of all American military per- patrol. Suddenly, there was an explosion. Marines, the prosecution argued during sonnel,” Zimmermann says. “If soldiers The last vehicle of a four-Humvee convoy Tatum’s Article 32 — particularly since 10 start hesitating to return fire or follow took the full force of a powerful IED of the dead were women and children. a superior’s order in combat because blast. Two of the three Marines in the Atterbury had no objections to Ware, they’re worried somebody might second- squad were wounded; the third, Lance and the prosecutor began his opening guess their actions, they are going to Cpl. Miguel “TJ” Terrazas, a veteran statement, which he delivered sincerely, end up dead. So the lives of thousands of of Fallujah, was blown in half. He died insistently. He contended that if the future American participants in combat almost instantly. Tatum and other Marines evidence showed that Tatum participated situations are at stake.” tended the wounded while Staff Sgt. in the unlawful killing of Iraqi civilians Frank Wuterich, the squad leader, called he “had to be held accountable.” It was Nov. 19, 2005 for reinforcements. the government’s position that a killing Out of the fog of war in Haditha, this Within moments of the blast, the would be unlawful under the ROE if the much became clear: By the summer of Marines halted an approaching white Marines failed to positively identify that 2005, the town of Haditha in the Al Anbar sedan, which carried five Iraqi males, the occupants of the houses they were Province of Iraq had become one of the whom the Marines ordered out of the car. What happened next is a matter of much nam, Zimmermann says he never had to me, within a year he would be making dispute: Wuterich, in an interview with “60 clear a house. But he came close. as much as a general,” recalls Haynes. “I Minutes,” which was broadcast on March In 1965, Zimmermann participated just didn’t tell him I meant a general in the 18, claimed that the Iraqis didn’t follow in a Marine assault against the Vietcong Bolivian army.” commands and tried to escape. In a prior near Chu Lai. “I was an artillery forward Zimmermann thought about the offer, Article 32 hearing, Sgt. Sanick P. Dela observer attached to an infantry unit,” which couldn’t have come at a better time. Cruz testified that the Iraqis complied, says Zimmermann. “The rules of engage- He felt his days as a litigator were num- their hands on their heads in surrender. ment said that if we saw the Vietcong bered. He already was a major, too senior Either way, Wuterich allegedly pointed his shooting at us, and they went into a in rank to remain in the courtroom. So he M-16 and shot them, one after the other, straw hut, we were authorized to fire at flew to Houston, interviewed with Haynes’ dead. He admitted in the “60 Minutes” the house. I would call in artillery until firm — then-Haynes & Fullenweider interview that he had shot them, claiming we put a round through the window. We — and resigned from active duty. the men were legitimate hostile targets. didn’t wait around to find out, but there “I just wanted to be a trial lawyer,” he Wuterich’s Article 32 hearing was could have been women and children in recalls. scheduled to begin on Aug. 30; his Alex- there.” andria, Va., attorney, solo Neal Puckett, Because it was his first assignment Witnesses for the did not return a telephone call. Neither after basic training, Zimmermann had to Prosecution did Dela Cruz’s attorney Dan Marino, a rely on those with more experience than Even as a criminal-defense attorney, partner in Sutherland, Asbill & Brennan himself. “Part of the reason I took the Zimmermann was still a Marine to the in Washington, D.C. Tatum case was payback for the Marine core, and he approached Tatum’s Article According to the summary of facts corporal who kept my ass alive in the field 32 as he would any military detail: directly, found by Ware in his Aug. 23 Investigat- for six months,” he says. ethically, fully prepared. ing Officer’s Report, Lt. William Kallop, Some of that debt already was repaid On July 16, the government’s first leading a quick reaction force, was the during his second tour in Vietnam in witness was Staff Sgt. Justin Laughner, a first to arrive on the scene. As the senior 1968, when he helped save the life of one counter-intelligence specialist who, within Marine, Kallop assessed the situation of his men during a rocket attack in the hours of the Haditha incident, conducted and ordered Wuterich to lead a fire team demilitarized zone and was wounded in an on-site investigation of the scene south to clear a house from where Kallop the process. “I got a Bronze Star for that, to determine if there was evidence of believed the squad was receiving small- and my arm was all bloody. They put me in insurgent activity. arms fire. Wuterich instructed his team, for a Purple Heart, but I didn’t do a damn He testified that while photographing which included Tatum, to treat the house thing,” Zimmermann says. the bodies of those slain, he found no as hostile. The military paid him back after he weapons, no signs of insurgent activ- The ensuing gunfire and grenade blast returned stateside, sending him to gradu- ity. And based on his experience, Iraqi left six occupants dead; among them a ate school at Purdue University where he females and children were not involved woman huddled over a small boy as if to received the equivalent of an MBA. But in the insurgency. protect him. Four other Iraqis inside the a superior officer, who thought Zimmer- But when cross-examined by Zim- house lived to tell about it. According to mann had a way with words, encouraged mermann, Laughner testified that all Ware’s summary of facts, one Iraqi male him to attend law school. units were aware that there were foreign fled the assault on House 1, but Wuterich After graduating from UT law in 1975, fighters in the area. spotted him as he ran toward House 2. the Marines sent him to Camp Lejeune, In the entrance to House 2, Laughner Wuterich ordered his men to pursue the N.C., where he rose through the ranks said, he observed shell casings from AK- runner into House 2 where the Marines and became a chief defense attorney, chief 47 rifles. Sunni insurgents use AK-47s, killed a different man, two women and prosecutor and then a trial judge — at but so do Iraqi civilians, said Laughner. five children. A 13-year-old girl survived each level honing his courtroom skills. The Iraqi government allowed each Iraqi the assault. “I knew him as a no-nonsense chief household to possess one AK-47 for self- The government’s position was that prosecutor who was loved by his men,” defense. elderly men, defenseless women and says attorney Romano, one of 17 prosecu- “If you heard the racking of an AK- small children in Houses 1 and 2, many tors Zimmermann had supervised. “He 47 in a house,” Zimmermann asked of whom were still in their night clothes, was a picture-postcard Marine and felt it Laughner, “would you perceive this to be posed no hostile threat to the Marines. was unacceptable for his prosecutors not a legitimate threat and automatically use “They used standard Marine proce- to put out 100 percent effort in trial.” deadly force?” dure to clear a house,” counters Zim- In 1978, Zimmermann was assigned “Yes,” he responded. mermann. “The fire team stacks one to escort fabled Houston criminal-defense Laughner’s testimony didn’t have the behind the other. The first man kicks in attorney Richard “Racehorse” Haynes sting of the next witness, Sgt. Dela Cruz, the door to a room. The second tosses in who gave a speech at a legal seminar who had been charged with the murders a grenade; the third and fourth each take at Camp Lejeune. Zimmermann says of the five men in the white sedan. Pros- a sector and fire. This was a troops-in- Haynes told him that when he was ready ecutors dropped the charges in exchange contact situation. They were responding to leave the military, there would be a for his cooperation with all the Haditha to an attack.” place for him with his firm. cases. During his two combat tours in Viet- “I told him if he came to work for Dela Cruz, however, was not part of the fire team that attacked Houses 1 and only because Wuterich had ordered him that he told this “new version of the truth,” 2. But over Zimmermann’s objections, to shoot. Tatum was the second Marine accused Zimmermann. And that was only Ware allowed Dela Cruz’s testimony to inside, and tossed a grenade into a after he cut his immunity deal, suggested “set the scene.” room next to the kitchen. There was an Zimmermann, and only after he asked the On July 17, Dela Cruz testified that the explosion and when things turned quiet, chief prosecutor to help him with his U.S. squad held a memorial service for Terra- Mendoza said, Mendoza moved toward citizenship request. Mendoza is a citizen zas, during which each man personalized a bedroom and observed “some women of Venezuela but a lawful resident of the a message in Terrazas’ memory on his and kids in the room.” He could see United States. Camelback canteen. Dela Cruz testified their faces, he said. They looked scared. Zimmermann pointed out that Men- that Tatum had drawn 24 “tick marks,” Believing they posed no threat, he walked doza had killed two unarmed men and and by them inscribed the words, “This into a passageway where he encountered he had never felt threatened. That would one is for you, TJ,” as if to suggest that his Tatum. “I told him there is women and make his targets illegitimate, yet the death hadn’t gone unavenged. kids in the room,” Mendoza testified. government never charged him. And Testifying under a grant of immunity, Tatum replied, “ ‘Well, shoot them,’ ” hadn’t he flunked an NCIS polygraph, Dela Cruz admitted that he had lied to recalled Mendoza. which revealed he was deceitful when the Navy Criminal Investigation Ser- “I said, ‘It’s just women and kids.’ My he said the man in the prayer room was vice (NCIS) agents who investigated the positive ID was that there were no men, reaching for a weapon? incident and questioned him about the no threat, no hostile situation — nothing Yes, he had failed a polygraph, Men- killings. Dela Cruz testified that he told that put myself or my platoon in danger,” doza testified, but no, he wasn’t lying. them exactly what Wuterich had told the he testified. Nevertheless, Tatum brushed Zimmermann seemed satisfied with entire squad to say: “If anyone asks why past him and headed for the bedroom. his cross-examination, but grew miffed the five Iraqi individuals were shot, say The next thing Mendoza heard was noise with reporters who hadn’t waited for they were running away and the Iraqi from gunfire or a grenade blast, he didn’t him to finish before they filed their daily army shot them.” recall which. stories. Outside the courtroom he told the But in his testimony Dela Cruz said Mendoza had given the prosecution remaining reporters that unlike Mendoza, the Iraqis were not running and were what it needed: evidence of Tatum’s Tatum had passed a polygraph, which not a threat; when they got out of the car, criminal intent. If Tatum had prior knowl- indicated that Tatum was truthful when they placed their hands on their heads. “I edge that the individuals in the bedroom he said he didn’t know he was firing at looked to my left and saw Sgt. Wuterich were women and children who posed women and children. shooting.” Dela Cruz watched the bodies no threat to the Marines, his actions in Zimmermann had long ago learned fall, he said. “They were all dead and then shooting them would violate the ROE and how to work the media in high-profile I shot also.” be unlawful. cases, tossed into the eye of the storm As a witness Dela Cruz seemed over- Mendoza’s attorney, associate Jamie during his tenure with Racehorse Haynes, ly cautious, taking long pauses before McCall of Morgan, Lewis & Bockius in “the best criminal lawyer I have ever answering the simplest question. During Philadelphia, did not return a phone call seen,” says Zimmermann. Zimmermann’s cross-examination, he seeking comment. For the first 18 months that Zim- admitted that he never actually saw Tatum After a lunch break, Atterbury directed mermann worked for Haynes, Haynes sign the Camelback; and with Dela Cruz Mendoza’s attention to House 1, where was occupied representing Fort Worth lacking any knowledge of what occurred again Mendoza said he didn’t feel threat- millionaire T. Cullen Davis in an alleged inside the houses, Zimmermann turned ened. Nevertheless, he discovered a man murder-for-hire plot involving a Tarrant his focus toward the ROE, which Dela inside a prayer room, but didn’t shoot him County judge. “I was handling all the Cruz admitted were always changing. at first — not until Cpl. Hector Salinas told criminal cases in the office, so I started “But nothing in the rules prevented a him the man “was a bad guy” and to shoot with high-profile cases from the get-go,” Marine from defending himself or a fellow him, testified Mendoza. So he returned said Zimmermann. Marine?” asked Zimmermann. to the room, saw the man reach into a In 1981, Zimmermann led the success- Nothing, agreed Dela Cruz. closet, thought he might be going for a ful defense of Vicky Daniel for the alleged And if one Marine engaged a target, weapon and shot him. Tatum followed murder of her husband and former Texas another Marine would be under a duty to Mendoza into the room, he testified, House Speaker Price Daniel Jr. Zimmer- help defend him under the ROE? and shot the man again to make certain mann raised the defense of spousal abuse Again, Dela Cruz agreed. he was dead. Dan Hagood, a partner in syndrome — the first time it was ever The next witness for the prosecution, Dallas’ Fitzpatrick Hagood Smith & Uhl, accepted by a court in Texas, he says. Lance Cpl. Humberto Mendoza, was a represents Salinas, but declines to com- Even after Zimmermann left Haynes’ member of the fire team and had actual ment for this story. firm in 1984 to open his own shop, high- knowledge of the events inside Houses 1 When he began his cross-examina- publicity clients came Zimmermann’s and 2. But rather than focus on House 1, tion, Zimmermann practically leapt on way. The first of these was Clifford Henry Atterbury turned Mendoza’s attention to Mendoza. Zimmermann took Mendoza Bowen, whose case Zimmermann took the manner in which the Marines made through three prior statements he gave to with him when he left Haynes’ firm — with entry into House 2. investigators, and nowhere had he men- Haynes’ consent, adds Zimmermann. “I shot the guy in the kitchen door,” tioned that Tatum had told him to shoot An Oklahoma City jury had con- testified Mendoza, who said he did so women and children. It was only in court victed Bowen of a triple homicide and sentenced him to three death sentences. allegedly responsible for the deaths of the the hearing when the government’s Seventeen days before Bowen’s sched- ATF agents. forensic experts would testify. Although uled execution, Zimmermann received a Whether the FBI or sect members he didn’t say why, it became obvious after telephone call from a South Carolina state set the fire still remains a point of conten- NCIS death scene reconstruction expert trooper who told him that his agency had tion. Special Agent Thomas F. Brady testified. solved the crime years before, and the Zimmermann remains an outspoken Through him, the government presented killer wasn’t Bowen, says Zimmermann. critic of the government’s actions. “I its theory that the Marines had executed Bowen’s execution was stayed but it took believe in the system,” he says. “And if some Iraqi civilians, shooting them at Zimmermann three years to convince a the system had worked in Waco, the right close range. federal habeas judge to reverse the cases result would have happened, and those On July 19, Brady testified that in and another year for him to persuade a people would still be alive.” March 2006 he traveled to Haditha as prosecutor to dismiss them outright. Zimmermann says the system also part of an NCIS forensic team. It was his “The DA got on television and said didn’t work for his client Gary Graham, job to piece together through physical that Bowen had hired these out-of-state who became a cause célèbre of death pen- evidence what happened in House 1, lawyers, and he got away with murder,” alty opponents who believed his claim of which by the time he arrived four months recalls Zimmermann. “I got on TV and actual innocence. In 1993, Zimmermann after the incident, had been repaired. said that it was very welcoming to see joined a habeas team led by Houston Brady gave his opinion regarding the that the Constitution had finally made its criminal-defense counsel Richard H. Burr relative positioning of the shooters to the way to Oklahoma City.” III, searching for any way to get a hearing victims. He concluded that the woman In 1993, Zimmermann found himself to present newly discovered eyewitness and 4-year-old boy, who were killed in under harsh media scrutiny when he testimony that, if believed, might exoner- the bedroom, were shot from behind and was retained by Steve Schneider, David ate Graham who was convicted for the at close range. He based his opinion in Koresh’s top lieutenant, to help him murder of a Houston man in a Safeway part on the entry wounds to the boy’s negotiate a peaceful settlement to the parking lot in 1981. chest and neck — and said when the FBI’s 51-day siege of the Branch Davidian The controversy over Graham’s pend- boy was shot, his face was likely posi- compound outside Waco. Even though ing execution took place against the tioned against the floor. This suggested an abortive raid by the U.S. Bureau of backdrop of George W. Bush’s first that the boy was somehow kneeling or Alcohol, Tobacco and Firearms left four presidential campaign. A dogged media crouching. ATF agents dead, the government permit- insisted that then-Gov. Bush defend his But during cross-examination, Zim- ted Zimmermann and Dick DeGuerin, execution record as Bush maintained that mermann challenged Brady with an Koresh’s attorney, to enter the compound under his watch no innocent person had alternate theory, acting it out as he to speak with their clients. been put to death in Texas. spoke. If the bullet exited the boy’s “We spent a lot of time establishing In the run-up to Graham’s scheduled temple, wouldn’t there be blood on the a rapport with Koresh and Schneider, execution, Zimmermann and Burr met floor or on the wall in front of him? Wasn’t just like you would any client,” recalls with the lawyers from the governor’s it more consistent with the physical Zimmermann. “They were worried they office as well as the head of the Texas evidence that the woman, in an effort to couldn’t get a fair trial, and we convinced Board of Pardons and Paroles. “I don’t protect the boy, pulled him toward her. them that they could.” know if we got caught up in presidential That would put the left side of his face Zimmermann says he and DeGuerin politics or not, but they didn’t think there against her chest, which would account negotiated the Branch Davidians’ sur- was legal authority to grant us another for the blood and brain matter on her render, the terms of which had been stay of execution,” says Zimmermann. shirt and dress as the boy was shot and accepted by the FBI. But rather than wait “I had been around the block so many fell forward. Wasn’t this more consistent out Koresh for several more days, on April times,” says Burr, a partner in Houston’s with the shooter standing in the doorway 19, 1993, the FBI assaulted the complex, Burr & Welch. “I knew where the case to the bedroom? which burst into flames and resulted in would end up. But Jack kept hoping for But Brady said Zimmermann’s theory the death of about 80 Branch Davidians, both of us.” was biomechanically unsound and stuck among them Koresh and Schneider. Burr and Zimmermann worked fever- by his own. “The deal would have worked,” ishly out of Zimmermann’s office until What Brady couldn’t shake, however, recalls DeGuerin, a partner in Hous- the moment they got word of Graham’s was the thin evidence upon which his ton’s DeGuerin Dickson & Hennessy. execution on June 22, 2000. opinion was based. Through no fault of “It involved Koresh and I coming out “I don’t even know what his position is his own, Brady had found himself recon- first and surrendering to a single Texas on the death penalty,” says Burr. “I think structing a death scene four months Ranger.” the principle he is trying to vindicate is after the event. Whether this was due The government maintained it had its that the system will work if it has vigor- to dereliction of duty on the part of Kilo reasons for going in when it did: the fear ous, truthful advocacy before it.” Company officers who allegedly failed that Koresh was sexually abusing chil- to investigate the Haditha incident was dren inside the compound, the fact that Rules of Engagement a matter for other Article 32s. The death Koresh had agreed to surrender before At Tatum’s Article 32, Zimmermann scene reconstruction of House 1 largely and didn’t, the desire to end the lengthy toyed with reporters, saying they needed was based on Sgt. Laughner’s photos, standoff and the need to apprehend those to wait around until the fourth day of which may not have accurately depicted the scene at the time of death, according certain evidence might be inadmissible my rounds impacted anyone. That is a to Ware’s report. What’s more, there was and weaken the government’s case. burden I will have to bear.” no DNA evidence, no ballistic tests, no The ultimate issue for Ware to deter- Several courtroom observers felt autopsy results — none of the kinds of mine was whether there were reasonable that Tatum’s statement was effective evidence upon which forensic experts grounds to find that the killings or force and moving. But just how effective was typically base their opinions, said Zim- Tatum used were lawful. Because the a question left for Ware. mermann. ROE gave the Marines their authority On Aug. 23, the defense had the A second death scene reconstruction to kill, it was not surprising that much answer. “I recommend withdrawal and expert who examined House 2 didn’t of the last two days of testimony became dismissal of all charges,” Ware wrote in harm the defense much, testifying that an academic debate about how to apply a 29-page report. Regarding the alleged the two shooters who killed the women Tatum’s ROE training to the facts on the crime of negligent homicide resulting and children inside the back bedroom ground. from the incidents in House 1, he found likely were positioned at or near the door- Somewhere between broad train- the evidence insufficient. Regarding way entrance — not at close range. ing directives — that Marines don’t the alleged crime of unpremeditated More incriminating were statements shoot unarmed women and children and murder resulting from the incidents that Tatum allegedly gave NCIS agents Marines may use deadly force to defend in House 2, Ware found there were during an extensive interrogation pro- themselves — there existed the murky reasonable grounds for charges, but cess that began in Iraq with two separate middle that was Haditha. he still recommended dismissal. “The interviews in March 2006 and ended But the government primarily took evidentiary hurdles are too great and at Camp Pendleton with two separate the position throughout the hearing basing a prosecution on LCpl Mendoza’s interviews in May 2006. NCIS Special that the ROE required Marines to posi- testimony is too weak a case to warrant Agent Matthew Marshall conducted tively identify the occupants of a room as referral to trial,” Ware wrote. the interrogations. He testified for the being hostile — hostile act-hostile intent Zimmermann couldn’t have been government that after a “laid back” — distinguishing between innocents and more pleased if he had written the 12-hour interview at Haditha Dam, then the enemy before they could use deadly report himself. Much of the language the headquarters of the Third Battalion, force. in the report validated positions that Tatum signed a statement that said when The defense took the position that the defense had taken: Ware was highly he engaged the occupants of House 1, to adopt such a strained interpretation suspect of Mendoza’s credibility; he took he did not know they were women and of the ROE would put all Marines in Special Agent Brady to task for reject- children. combat at risk. What Marines had to ing the defense’s alternative theory on Marshall testified that after Tatum positively identify was not the individuals shooter positions; he agreed with the returned from his tour of duty, he gave but the situation, and if they reasonably defense’s theory of criminal liability, two statements at Camp Pendleton, believed from their viewpoint that the which maintained, among other things, the second May 17, 2006, statement situation was hostile, even if they were that in a troops-in-contact situation, there being the more damning of the two. In mistaken, they were justified in using need not be a “specific individualized that statement, Marshall testified that deadly force. positive identification” of the occupants Tatum confessed that he knew there Concluding seven days of testimony of a room. were women and children in the back was Tatum, who under the procedure Ware wrote that by the time Tatum room of House 2 prior to shooting them. governing Article 32 hearings, could realized he was firing at women and Explaining why, Tatum said, “Women give his unsworn statement that was not children, his body already had acted. and children can hurt you, too,” Marshall subject to cross-examination. Tatum’s For those who might question Tatum’s said. comments were brief, but to the point: motives, Ware wrote, “Tatum shot and But on cross-examination, co-defense While listing the reasons he had fired killed people in Houses 1 and 2, but counsel Sampson hammered hard on the inside Houses 1 and 2, he said that the reason he did so was because of possible legal inadequacies of the May because of the poor visibility — smoke, his training and the circumstances he 2006 statements: Tatum had refused dust, darkness — he only knew he was placed in, not to exact revenge and to sign them and they were never tape was shooting at targets. He said “the commit murder.” recorded or transcribed. And during conversation Mendoza said happened, Because the final decision about his the May 9, 2006, interview, Tatum had never happened.” Also he never told client’s fate rests with Lt. Gen. Mattis, requested a lawyer, though Marshall NCIS that he knew, before firing, that Zimmermann declines to comment about maintained that the issue was cured by there were women and children inside Ware’s report other than to say he agrees Tatum’s subsequent waiver of counsel. the houses. If he had known, “I would with its findings. But if history is any But Investigating Officer Ware said have physically stopped everybody from guide, Zimmermann might say that he he didn’t believe it was his job to rule on shooting,” he said. has every confidence in the fairness of the the statements’ admissibility — and he Choking back tears, he told Ware, “I military justice system, and if it works the didn’t. Rather he felt it was his role only am not comfortable with the fact that I way it was designed to work, he believes to advise the Convening Authority that might have shot a child. I don’t know if that Tatum will be exonerated.