My Favorite Punching Ball

 

Could not resist this one, after all he is my favorite punching ball, and gives me a perfect excuse to re-post my by now famous John Murtha image, which has become somewhat of a classic. Michelle Malkin has the latest

Marine Staff Sgt. Frank D. Wuterich has filed a defamation lawsuit against blabbermouth Rep. John Murtha (D-Pa.). Background here. Fox News interview with Wuterich family here. No comment from Murtha yet.

If you choose to lead a lynch mob and in the process callously ruin a marine's sterling reputation, you deserve to to be held liable for it. Now get out of that one without moving Rep. Murtha....

More jubilation over at my friends: @  Hot Air, Gateway Pundit, Blue Crab Boulevard, Flopping Aces, Media Lies, Sister Toldjah, Macsmind, A Blog For All, Confederate Yankee, Woman Honor Thyself, Iowa Voice, and Old War Dogs. The Heretik, has some conspiracy theories, and the ever argumentative Glenn Greenwald who will be talking about it on the Alan Colmes show tonight, is obviously in a less than jubilant mood. My friend the great blogger and writer Michael Weiss, has some comments at Slate.

Comments

[Saul Davis]

PS: I did not read the opinion of the Fla Supreme Court; my analysis of Firestone was based upon my examination of the majority opinion of the SCOTUS and one dissenting opinion; so if I misstated Fla. law regarding burden of proof in defamamtion suits, my apologies to Alexandra and the commenters; I do stand by my assessment of Sullivan -- I do not believe that the marine's case is encompassed by Sullivan.

[Saul Davis]

Alexandra: My apologies for the delay in responding to your request; I had been away from the computer most of Wed. and until late Thurs.; in the interim I see a number of interesting comments by some who appear to be attorneys, and by other regular commenters; Times v. Sullivan was a decision by the U.S. Supreme Court that provided the media with a special/unique standard in defamation suits; it is somewhat lengthy and complicated (while I am a litigator with 34 years trial and appellate experience, that experience has nothing to do with defamation suits, torts and similar matter, so my statements here should be read in that light); even if an accusation was shown to be false, it was not actionable unless malice was shown. That standard is very limited in application -- the defendant must have freedom of press status (Murtha does not) and the plaintiff must be a public figure (the soldier, in my opinion is not).

From what I have seen in a number of subsequent decisions by the SCOTUS, they have limited Times v. Sullivan severely; the most important limitations were enunciated in two subsequent decisions -- Gertz v. Robert Welch, Inc. and Times v. Firestone; that latter decision is particularly important here; I believe it would shoot down the Sullivan criteria on both grounds in the marine's case.

The merits of an actual defamation suit would depend upon the legal criteria set forth in the decisions of the state in which the suit is brought. From the little I have seen -- particularly in the Firestone case, there are shifting burdens, as in any litigation; a plaintiff must prove a prima facie case -- must meet the basic elements of the cause of action upon which the suit is founded; once that is done, the burden shifts to the defendant either to undermine the evidence of the plaintiff or to prove its defenses; in defamation suits that I have read, the plaintiff must show he/she was defamed, and at the very least allege that the defamation was not true; in some jurisdictions the defendant must prove the "defense" of truth; an examination of the Times v. Firestone case indicates that, at least in Florida, the burden shifted to the Times to prove the truth of the purported facts it published; it failed to do so, because a judgement decree upon which it relied was read differently by the courts than by the Times; as a layman in defamation suits, it would appear to me to be logical that the burden should be on the defendant to prove the truth of the statements, as it generally is easier to prove a positive than it is to prove a negative; also, if the defendant defamed the plaintiff, than the burden, logically, should be on the defendant to prove the defense of "truth." But then again, I can vouch for the fact that legal criteria are not always logical.

[jess1dering]

"another possibility could be that Sgt. Wuterich's lawyers are using the suit in an effort to force the government to be more careful in how it releases information tending to incriminate their client."
This statement encourages me.
..................................................
Just wondering....
Do we have a comprehensive computer data-base that makes research easier
for lawyers yet ?
I anticipate seeing new direction in the laws of the land so that we can accomodate the new realities of the instant-information age, the real global struggle against radical Islam, etc. How about you?

[Kenny Pierce]

Marrow,

??????

Try it again in English.

[Marrow - get down to the bone]

Proof education is wasted on the stupid - otherwise how could one otherwise explain liberalism degenerating leftist populism. I've washed my hands of you parotting clowns.

[Darrow]

Alexandra,

You asked if Sgt. Wuterich could use information his lawyers glean from deposing Rep. Murtha in the civil suit to aid him in a possible later criminal action. First, Sgt. Wuterich's suit would have to survive the motion to dismiss the action that Rep. Murtha will likely file.

If Wuterich's suit overcomes that barrier, he could potentially depose Rep. Murtha, and asking the congressman where he obtained the information that purportedly implicates Sgt. Wuterich certainly seems like a fair question.

As Ghost Dansing suggested, Murtha and other members of congress have been briefed on the Haditha incident. That might be Rep. Murtha's source. He might also be receiving unofficial leaks as well, but I'm not certain where the dividing line is drawn been "briefing" and "leaks." It's possible that the contents of congressional briefings are not subject to the civil discovery process. (Although Wuterich could argue that any such privilege was waived by the congressman talking to the press regarding the contents of those same briefings. This is a corner of evidence law I've never explored, so frankly I'm just speculating.)

If, as Alexandra suggests, Sgt. Wuterich is looking to see if prosecutors are engaged in some sort of misconduct -- for example by leaking damaging information to Murtha so that he will use that information to poison public sentement against Wuterich, that would help explain what is going on. Prosecutorial misconduct (if indeed that is what is going on) does not generally function as a get out jail free card, but evidence of it could prove useful. Another possibility could be that Sgt. Wuterich's lawyers are using the suit in an effort to force the government to be more careful in how it releases information tending to incriminate their client. Using the legal process in this way goes against my instincts, but might not be totally senseless.

[Joe]

I'm on the side of our honorable men and women in uniform. I don't include war criminals in that count.

Neither do I, but I must have missed the trial where their guilt was established. Probably because it hasn't been held yet. Now, these Marines may need to prove their innocence in a civil suit, but the UCMJ applies in determining if they've committed war crimes, so to call them "war criminals" means they must be proven guilty.

If you're really on the side of our honorable men and women in uniform, Geek, then you give them the benefit of the doubt until they are proven guilty by a Court Martial. That's how you show you're on their side. But swallowing the media's spin on this affair and pronouncing guilt before a trial? That would be a distinct lack of support. See the difference there?

Murtha's track record on "war criminals" is pretty pathetic, Geek. You sure that's where you want to hang your "I support the troops" hat?

[Ghost Dansing]

"If Mr. Wuterich is sucessful in proving that Mr. Murtha's statement was false, it would next be necessary to determine whether Mr. Wuterich has become a public figure. That is a difficult question under these facts, and I will not hazard a guess. If he is viewed by the court as a public figure it would be necessary for Mr. Wuterich to demonstrate either that Mr. Murtha knew his statements were false or that Mr. Murtha acted with reckless disregard as to whether those statements were true. ("[M]ere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a 'high degree of awareness of . . . probable falsity.'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 331 (1975))."

Was reading through this series of posts a number of times and I'm still trying to get a grip on something...I read in the MSM that some member of Congress were actually "briefed" on Haditha findings as they emerged.

"Sen. John W. Warner (R-Va.), chairman of the Armed Services Committee, was briefed Wednesday by Gen. Michael W. Hagee, the Marine commandant, and again yesterday by Brig. Gen. John Kelly, the legislative liaison for the Corps. Warner described the case as consisting of "very, very serious allegations" that resulted in "a significant loss of life, civilian."

Hagee flew to Iraq yesterday "to reinforce the ideals, values and standards" of the Corps, the Marines said. "There is a risk of becoming indifferent to the loss of a human life, as well as bringing dishonor on ourselves," Hagee said in a statement announcing his trip. "We do not employ force just for the sake of employing force."

Rep. John P. Murtha (D-Pa.) said last week that there was neither a bomb nor a firefight, and that 24 civilians had been killed "in cold blood."

"It's much worse than reported," said Murtha, who like Warner is a former Marine and maintains close ties with senior Marine officers despite his vigorous opposition to the war.

Rep. John Kline (R-Minn.), a retired Marine helicopter pilot, said in an interview he thought Hagee was doing the right thing.

"I was saddened, surprised and outraged that this could happen," Kline said. He said he thought the incident would be regarded as "a horrific aberration" for the Marines.

"Sen. John Warner, R-Va., chairman of the Senate Armed Services Committee, told reporters on Thursday that in both cases "there are established facts that incidents of a very serious nature did take place."

"Hagee briefed Warner and the committee's ranking Democrat, Carl Levin of Michigan, about the investigations on Wednesday. The full committee was briefed on Thursday."

"Senator John W. Warner of Virginia, chairman of the Armed Services Committee, said his panel would examine the Nov. 19 incident in Haditha, a farm town on the Euphrates in a particularly lawless part of Anbar Province.

The military first had said that about 15 civilians were killed by a roadside bomb, then, later, that they died in cross-fire between the military and attackers after a marine was killed by a bomb.

But Congressional, military and Pentagon officials briefed on the incident — including Representative John P. Murtha of Pennsylvania, a vocal critic of the war — now say that the killings were unprovoked, that only one of the dead was armed, and that the victims included children, including girls aged 1 to 14.

"One woman, as I understand it in talking to the officials in the Marine Corps, was bending over her child, pleading for mercy, and they shot her in cold blood," Mr. Murtha said. "That's the thing that's so disturbing."

Asked on the ABC News program "This Week" whether the marines involved might simply have believed that insurgents were firing on them from nearby houses, Mr. Murtha replied: "The reports that I have from the highest level, no firing at all. No interaction."

"It was an explosive device which killed a marine. From then on, it was purely shooting people inside the houses and in a taxi.""

It would appear Murtha was either briefed, or privy to material that was provided...

Interestingly, Sergeant Wuterich's lawyers have suggested erroneous information was provided to Murtha...

It would seem Wuterich's civil suit is complicated at best.

[Kenny Pierce]

Darrow,

That's it, "strict liability" is exactly the phrase I couldn't dredge up. Thank you very much.

Alexandra, I think it's very hard to argue that Murtha was not reckless in the ordinary English sense of the word. Unfortunately I know just enough about the law to know that terms used in law are usually given very precise meanings by the law -- and that those very precise meanings aren't usually exactly what the ordinary English meaning of the word is.

[Alexandra]

Darrow,

It is possible that Wuterich's attorney's have some clever strategy behind all this, but my fear is that Sgt. Wuterich is being used by people for whom the politics of the situation has overshadowed their duty (if they are attorneys) to act in Sgt. Wuterich's best interests. If I am following this story correctly, Sgt. Wuterich may be facing very, very serious charges. It would be better for him to concentrate on his defense, and to leave the political point-scoring to others for now.

This indeed is potentially bad news, but is it at all possible that Sgt. Wuterich's attorneys may be relying on the deposition testimony provided by Rep. Murtha to embolden his defense in the criminal case, bearing in mind that some sort of possible misconduct has taken place by the leak of information in the first place, clearly prejudicing the Sgt. And the obvious question that follows is if the answer is yes, can he use it?

How do you tell your client, "Look, you can't file this defamation suit because it could cause you to be convicted in the criminal case even though we both know you're innocent"

Unfortunately the probability that you are right is high, although we live in hope.

The Plaintiff's claim relies on the Pentagon officials deliberately providing Rep. Murtha with inaccurate and false information and that the congressman subsequently has made repeated statements that are defamatory to Sgt.Wuterich and his fellow Marines.

Now if I understand you correctly Darrow, "it would be necessary for Mr. Wuterich to demonstrate either that Mr. Murtha knew his statements were false or that Mr. Murtha acted with reckless disregard as to whether those statements were true", so surely by definition, if at the time of making those statements the investigation had indeed not been concluded, he had no proof that these statements were true and was fully aware that the investigation had not been completed, therefore recklessly accusing the Sgt. of murder and war crimes.

Despite the posturing on behalf of the Defendant, Sgt.Wuterich has not received any official investigative documentation about the Nov. 19 incident. A Naval Criminal Investigative Service investigation is expected to determine possible charges some time this summer, which only goes some way to proving that Rep.Murtha did not have the concluded report available at the time of making the defamatory statements, making it difficult to prove that there was no negligence in callously making them.

My sincere hope is that Sgt,Wuterich's lawyers are simply on a fishing expedition, hoping to embolden his criminal case with information he may not be privy to as a Defendant in a criminal case. As you quite rightly point out though, this could be a double edged sword, and a dangerous expedition, bearing in mind the law is not always on the side of the innocent or for that matter the guilty, but has a nasty habit of being on its own side most of the time...

[jess1dering]

Darrow,
Thank you for your response, even if it disappointed me very much.

[Darrow]

Jes1dering,

Not every wrong has a remedy at law. Rep. Murtha may have a greater moral obligation to think carefully before he speaks because of his position of responsibility and his power to draw public attention to his words, but that does not enhance the defamation case against him.

If Rep. Murtha spoke irresponsibly (I don't know exactly what he said or on what information he based his comments, so I am withholding judgment on that point) as an elected official he remains responsible to the voters of his district. They have the final word.

[jess1dering]

Darrow,

I am so NOT familiar with our very complicated legal system. Please help me out here. How is it that a duly elected representative of the congress of the United States of America can STATE, before cameras for all the world see, that a member of the Armed Forces of the United States of America killed innocent civilians "in cold blood". This , even before a hearing ?

HOW and WHY would this be permissable under the law? Doesn't Murtha's position in the government of the United States of America give him added responsibility? Considering the fact that this is a time of war and that the military's reputation affects the nations reputation and that all the world will hear that damning and
inflammatory statement from an official in the government .....
Isn't there any legal means with which to discourage such irresponsible and disloyal behavior.

Please understand that I am in no way advocating censoring or covering up any wrong doing. Accountability is vital to the freedoms we cherish in this remarkable nation, that much I know. But during war time to make such accusations and to make them before our before our legal system has " done its' job" ? Is there no legal recourse ? I can't wrap my mind around how this can be acceptable ?

[jess1dering]

From Black Five Blog.

For the consideration of the lawyers on board.

21JUL07: Government notifies defense of: (a) additional prosecutors (LTCOL John Baker, Senior Trial Counsel; Major Don Plowman, Major Daren Erickson, and Captain Nick Gannon - in addition to LTCOL Sean Sullivan and Captain Timothy Garrison);

They’ve replaced their lead prosecutor. Why? They’ve added more prosecutors. Why? John Jodka Sr., father of one of the accused, asks, “Was he not ‘towing the line’? Was he setting justice first and political correctness second? What does this tell us in addition to the lack of a case; cracks appearing in the prosecution team?”

(b) its intent to go forward with an Article 32 on 01AUG06 at 0900;

Right now, the defense has nothing it needs from the prosecution to do its job. No ballistic reports, no autopsy, no witness reports, no one to cross-examine–all because the procesutors refuse to turn it over to them, saying it’s “not complete.” So we are one week away from the beginning of an Article 32 hearing and there is no defense.

(c) its intent to call PFC Jodka as a witness to testify against his squad mates - and vice versa; and

What is this? First they put these men through interrogation techniques that aren’t allowed at Guantanamo, they get at least two innocent men to sign false statements, and now they plan to pit them against each other when each other is all they have. This is beyond the pale, truly.

(d) that key witnesses will not return from Iraq until “mid to late August 2006″

Do you know what this means? The defense not only isn’t allowed to have the evidence, but they’re not going to have any witnesses, since they’ll still be deployed in Iraq and the Corps has no intention of bringing them home.

What is going on here?

Some have asked me if the Marines are setting these men up to be convicted, or if they’re planning to simply hold an Article 32 in front of the world’s cameras so they can save face with the Iraqis and the press, then just dismiss the charges on a technicality and let the men go with a “Semper Fi” and no “thank you for taking one for the team.” In fact, one person even told me that perhaps we should stand down as citizens calling for justice and “let the system work…the Marines know what they’re doing.”

Oh really?

So they put them and their families through the media circus and shame of an Article 32 and possibly a court-martial as well, and then dismiss the charges. Does that make it right?

What about the fact that these men were denied basic rights that are afforded to all Americans? What about the fact that these men will have the accusations hanging over them for the rest of their lives–no matter what happens? What about the wasted millions of dollars spent on this fiasco–your taxes, I might add? What about the smeared honor of the Marine Corps, and even the American military as a whole? Or does none of that matter? The end justifies the means? “It’s okay to ruin the lives of eight men and their families as long as we look good to the rest of the world, and especially our enemies?”

[Darrow]

Kenny Pierce,

First, thank you for your kind comments regarding my earlier posts.

Next, permit me to address your two questions. The first was as follows:

"1. Innocent people sometimes get convicted. Prosecutors tend to be motivated to win their case rather than to find the truth, and sometimes innocent people get into situations that can be made to look very bad by a skilled prosecutor. So just because you know you're innocent, that doesn't mean you'll get acquitted. Therefore the only smart thing to do under indictment is to do everything possible to minimize your chances of conviction, until after you've been acquitted and double jeopardy rules are on your side. Do I have this right?"

Yes. I would stop short of saying that prosecutors are more interested in winning convictions than doing justice, but prosecutors are falible people, and can lose sight of their responsibilities to the truth. More commonly, I think, is the problem that prosecutors don't really know who is guilty with certainty (the defendants, after all, almost always claim to be innocent) and try to the best of their limited abilities to convict the ones that appear guilty based on the information at hand. At the end of your question you make an excellent point, which is that the time to bring a defamation suit in this instance would be (if ever) AFTER aquittal when double jepardy has attached.

Your second question was as follows:

"2. So, let's say you're a defense lawyer who has to deal with a bull-headed client who has a very strong sense of honor and highly values his reputation (does that remind you of, oh, say, possibly every Marine you've ever met in your life?). How do you tell your client, "Look, you can't file this defamation suit because it could cause you to be convicted in the criminal case even though we both know you're innocent," without sounding to him like you're saying, "I'm such an incompetent defense lawyer that even though we both know you're innocent, I could still manage to screw up your case so badly that you could be convicted"? That would seem to me to be a piece of advice-giving that would have to be managed with a great deal of delicacy and tact. Or am I completely off base here?"

Yes, I agree -- that would be an awkward conversation . . . but a necessary one. And yes, that does sound like every Marine I've ever known.

You also discussed the idea of a person being liable for something even without a showing of intent or negligence. I believe the phrase you were searching for was "strict liability." And yes, defamation is not commonly treated as a "strict liability" tort in this country. This is particularly true in cases such as the Wuterich/Murtha dispute because Rep. Murtha was speaking on a subject of public interest. The "public interest qualified privilege" protects one speaking on matters of public interest from defamation liability unless at least negligence (and in many jurisdictions malice or recklessness) on the part of the speaker is shown by the plaintiff to overcome that qualified privilege. This privilege protects a lot of "bad" speech, but it also creates room for public debates such as the one we are engaged in right now.

[Kenny Pierce]

Huan,

No, no, I think Geek is right. In the criminal case, the Marine is innocent until proven guilty beyond reasonable doubt. But in the civil case, he's the accuser, not the accused; so the burden of proof is reversed.

He still only has to establish a preponderance of evidence -- that is, he just has to convince the jury that it's more likely that Murtha committed defamation than that Murtha didn't; Murtha is not considered innocent until proven guilty beyond reasonable doubt. But Wuterlich has to make his case, and all Murtha has to do is shoot down Wuterlich's specific accusations.

I'm with you on thinking Murtha was way out of line and that Geek seems to have an unseemly eagerness to declare Wuterlich guilty of war crimes; but on the specific legal point in question I think Geek is quite right.

[Kenny Pierce]

Saul,

In the specialized environment of the American court system, the burden of proof is on the person formally bringing the accusation. When the government accuses you of a crime, they're the accuser; so it's their job to prove you did it. But here the person doing the accusing in the courtroom is Wuterich. So it's his job to prove that Murtha did something naughty.

I realize that Murtha accused Wuterich first. But Murtha accused Wuterich in the open public arena, not in court. We may very well feel that Murtha had no business making those public accusations without being able to back them up much better than he appears at first blush to be able to; but his accusations against Wuterich weren't filed in court. Wuterich is the one who said, "We're going to court over this," so inside the courtroom he has the burden of proof.

(I trust that Darrow will leap in to correct anything I have wrong there.)

Furthermore, in American courts generally speaking...okay, look, I'm an amateur who happened to get mildly interested in this a few years ago. Darrow, help me out where I get it wrong...anyway, there are certain kinds of wrongdoing that in the American system you're held guilty for even if you didn't mean to do it. There's some legal term for this that escapes me at the moment, but basically speeding is a good example. If you get a speeding ticket because your speedometer is malfunctioning (say you installed oversized tires and didn't know that that meant that you have to adjust the speedometer to take the increased diameter into account), then saying, "But I didn't realize I was speeding," is no defense. The crime is not "deliberately driving over the speed limit." It's just "driving over the speed limit," full stop. All the cop has to show is that your car was traveling 85; whether or not you thought you were only going 70 is completely irrelevant.

There are countries where defamation is considered, "Saying something that was in fact false," full stop. In those countries, defamation is like speeding: whether you meant to defame the person or not is irrelevant. If you're going to insult somebody in public, it's your job to make damn sure it's true before you say it.

But in America, where we very very much value freedom of expression, defamation is the kind of tort where the plaintiff has to prove that you either knew to lie, or else that you should have known that it was a lie. So not only does Wuterich have to prove that he is innocent (unlike a criminal case), but he also has to prove that there's a basic amount of homework Murtha should have done, or restraint that Murtha should have exercised, and that Murtha shot his mouth off without doing that homework.

Tough sell, it seems to me, and I don't think he'd have a prayer if Murtha were a private individual, because a private individual can legally say almost anything that he doesn't outright know is false, and get away with it. But Murtha really was outrageously out of line, especially in how emphatically he insisted that he knew Wuterich was guilty; and Murtha's position is one of special responsibility. So I don't see how you can dismiss the lawsuit as frivolous out of hand.

But just because it isn't frivolous doesn't mean it isn't a really bad idea to file it. I still think most defense lawyers would agree with Darrow that filing that civil suit was a terrible idea and that Wuterich is much more likely to get himself convicted than he is likely to get a judgment against Murtha.

[Huan]

the Marine in question would have to prove (A) that he was innocent and that (B) Murtha knew he was telling a lie when he made those remarks. As I said, if he was basing those comments on what a DoD official told him, then it's case over.

Posted by: Geek, Esq. | Wednesday, August 02, 2006 at 02:53 PM

interesting to suggest that the Marine has to prove that he is innocent.
your legal "slip" is showing

[Kenny Pierce]

Darrow,

Stick around, I beg you. Those are outstanding comments, and very helpful.

To be precise: it seems I had a decent grasp of the general outline of the issues -- i.e., the burden of proof in the civil suit is on Wuterich because he's the plaintiff, Murtha can't be proven to have knowingly spoken falsely so Wuterich is going to have to go for reckless disregard, and a defense lawyer who encourages a client to file a civil suit while under criminal investigation is usually looked upon with severe disfavor by his peers. But while in a vague general way I knew all that, I would say that your comments swiftly, cleanly and efficiently brought those issues into detailed focus; so that now I feel like thanks to your comments I have a much firmer grasp on exactly how it all works. Really just first-rate commenting.

So, um, thanks, is I suppose what I'm saying.

Now, if I understand you correctly, the only way this could possibly be a sane move for Wuterich would be if he was not only innocent, but innocent by such a clear preponderance of the evidence that he couldn't possibly be convicted. But am I right to say...okay, look, here's my impression of how it works.

1. Innocent people sometimes get convicted. Prosecutors tend to be motivated to win their case rather than to find the truth, and sometimes innocent people get into situations that can be made to look very bad by a skilled prosecutor. So just because you know you're innocent, that doesn't mean you'll get acquitted. Therefore the only smart thing to do under indictment is to do everything possible to minimize your chances of conviction, until after you've been acquitted and double jeopardy rules are on your side. Do I have this right?

2. So, let's say you're a defense lawyer who has to deal with a bull-headed client who has a very strong sense of honor and highly values his reputation (does that remind you of, oh, say, possibly every Marine you've ever met in your life?). How do you tell your client, "Look, you can't file this defamation suit because it could cause you to be convicted in the criminal case even though we both know you're innocent," without sounding to him like you're saying, "I'm such an incompetent defense lawyer that even though we both know you're innocent, I could still manage to screw up your case so badly that you could be convicted"? That would seem to me to be a piece of advice-giving that would have to be managed with a great deal of delicacy and tact. Or am I completely off base here?

[Darrow]

In the second paragraph of the previous post, when I wrote that "[i]n his civil defamation suit Sgt. Wuterich would not have the normal protections of a civil trial" I meant that he would not have the normal protections of a CRIMINAL TRIAL." Oops.

[Darrow]

Please permit me to expand upon why this suit is a disaster not for Rep. Murtha, but rather for Sgt. Wuterich.

If Sgt. Wuterich's case actually goes to trial, it would be quite unlike a criminal trial. In his civil defamation suit Sgt. Wuterich would not have the normal protections of a civil trial, such as the right to remain silent and to avoid self-incrimination. Rep. Murtha would be able to serve Sgt. Wuterich with written questions (interogatories) and the Sgt. would be required to promptly provide sworn written answers. Sgt. Wuterich could also be compelled to submit to depositions in which Rep. Murtha's lawyers could interrogate him for hours, with each word carefully transcribed as sworn testimony. He could also be called as witness, and the prior deposition testimony could be used to impeach him with every inconsistency.

Because in the civil suit Sgt. Wuterich is the plaintiff, the normal burden of proof would be stood on its head. Rather than being presumed innocent, Sgt. Wuterich would be compelled to prove that Rep. Murtha's disputed statement was false. Rep. Murtha's lawyers could, in effect, use civil suit to put Sgt. Wuterich on trial, but without affording Wuterich the normal protections (in evidentiary rules, burden of proof, self-incrimination etc.) that are reserved for criminal defendants.

THEN, whether Sgt. Wuterich prevails in his civil suit or not (which given the required showings would be unlikely even if he is factually innocent of any wrongdoing) the wealth of evidence and testimony generated in the civil suit would be dropped, like manna from heaven, into the laps of military prosecutors -- who normally would not have access to so much potentially incriminating information from the defendant himself. Again, even if Sgt. Wuterich is factually innocent, being compelled to make so many sworn statements on the record would allow prosecutors to attack every inconsistent statement as evidence of guilt.

It is possible that Wuterich's attorney's have some clever strategy behind all this, but my fear is that Sgt. Wuterich is being used by people for whom the politics of the situation has overshadowed their duty (if they are attorneys) to act in Sgt. Wuterich's best interests. If I am following this story correctly, Sgt. Wuterich may be facing very, very serious charges. It would be better for him to concentrate on his defense, and to leave the political point-scoring to others for now.

[Ghost Dansing]

Section III. PUNISHMENT OF WAR CRIMES
505. Trials
a. Nature of Proceeding. Any person charged with a war crime has the right to a fair trial on the facts and law.

d. How Jurisdiction Exercised. War crimes are within the jurisdiction of general courts-martial (UCMJ, Art. 18), military commissions, provost courts, military government courts, and other military tribunals (UCMJ, Art. 21) of the United States, as well as of international tribunals.

e. Law Applied. As the international law of war is part of the law of the land in the United States, enemy personnel charged with war crimes are tried directly under international law without recourse to the statutes of the United States. However, directives declaratory of international law may be promulgated to assist such tribunals in the performance of their function.

498. Crimes Under International Law
Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Such offenses in connection with war comprise:

a. Crimes against peace.

b. Crimes against humanity.

c. War crimes.
Although this manual recognizes the criminal responsibility of individuals for those offenses which may comprise any of the foregoing types of crimes, members of the armed forces will normally be concerned, only with those offenses constituting "war crimes."

499. War Crimes
The term "war crime" is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.

501. Responsibility for Acts of Subordinates
In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.

Section IV. DEFENSES NOT AVAILABLE
509. Defense of Superior Orders

a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.

b. In considering the question whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received; that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders (e. g., UCMJ, Art. 92).

510. Government Officials
The fact that a person who committed an act which constitutes a war crime acted as the head of a State or as a responsible government official does not relieve him from responsibility for his act.

The UCMJ is the Unified Code of Military Justice.

Murtha said U.S. forces were under undue pressure in Iraq because of poor planning and allocation of resources by the Bush administration.

[Darrow]

In a defamation case the burden of showing that the statement in dispute is false rests with the plaintiff, in this instance Mr. Wuterich. (Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)).

If Mr. Wuterich is sucessful in proving that Mr. Murtha's statement was false, it would next be necessary to determine whether Mr. Wuterich has become a public figure. That is a difficult question under these facts, and I will not hazard a guess. If he is viewed by the court as a public figure it would be necessary for Mr. Wuterich to demonstrate either that Mr. Murtha knew his statements were false or that Mr. Murtha acted with reckless disregard as to whether those statements were true. ("[M]ere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a 'high degree of awareness of . . . probable falsity.'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 331 (1975)).

If, on the other hand, Mr. Wuterich is viewed as a private figure it would still be necessary for him to prove that Mr. Murtha's statement was made negligently. The negligence standard, while easier to meet than the malice or recklessness standard, would nevertheless be a difficult hurdle for Mr. Wuterich to overcome. Consider in particular the recent statements by military authorities suggesting guilt. Even if Mr. Wuterich is wholly innocent, (and can prove it) Mr. Murtha's statement could be seen as non-negligent in light of the facts he had available to him at the time.

Finally, it should be repeated that even if Mr. Wuterich is innocent his suit is ill-considered. By filing his civil suit he opens himself up to the civil discovery process, which does not recognize the protections found in criminal law, such as the right to remain silent and to avoid inncriminating oneself. Even an innocent person facing possible criminal charges should avoid the loss of control over disclosures that inevitably follows the filing of a civil suit. I disagree with the legal advice it appears Mr. Wuterich is receiving.

[Alexandra]

Btw, I question the competence of this guy's lawyers. If there's a civil suit, and he tries to get it going before or while the criminal proceedings are underway, he doesn't have his 5th amendment privileges in the civil case.

Interesting Geek, can you elaborate.

Saul, what was Times vs. Sullivan case?

[Ghost Dansing]

What? You think people in war are incapable of losing control and doing wrong things?

When you have a pregnant woman in your sights and you know the only thing keeping you from slipping the trigger is your military impulse, your training, because you know the only thing you'd "feel" when you did it was the recoil of the weapon...how close to mayhem are you really?

Understand this...every American soldier is accountable for their actions in battle...the Marines will be tried by their code of honor...

To what code of honor do we hold our civilian political leadership for incompetence?

Granted, it is not a tryst in the oval office...but impeachment might be in order.

Murtha is more of a mensch than half of these clowns in this Republican administraton ever dreamt of being.

[Saul Davis]

Geek: my apologies, but my understanding is that Murtha possesses the burden of showing that what he said was true, not what he believed was true -- Times v. Sullivan is not applicable here for a number of reasons; look at Murtha's statements; they are unusually broad and really beyond the pale; therefore, even if some of the Marines may (not proven yet -- DoD reports are not proof of truth in judicial proceedings) have violated the ROE, Murtha's statements may very well be actionable. They are very likely actionable if the Murtha can't prove that his statements were true regarding this plaintiff.

[Kenny Pierce]

"Your last little shot" meaning the last one from your first post, i.e., "But, given a choice between people who very well may be war criminals, and a Democrat, we all know which side you're on."

[Kenny Pierce]

Geek,

Hm, not a lawyer, but my understanding is that it is not necessary to show that Murtha knew the charges to be false. Wouldn't the plaintiff merely need to show that Murtha had acted with reckless disregard for the truth?

Considering that Murtha would have to be an utter fool not to understand that his position renders his public statements far more devastating than would be those of a private individual, I would think he would have a significant obligation to speak circumspectly in the absence of pretty dramatic evidence. Naturally I don't know what actually happened -- but the Marine bringing the lawsuit does; and if he is able to show that (a) Murtha's version does not reflect the truth, (b) Murtha's version is intrinsically defamatory (i.e., it makes the Marine out to be a much worse person than he really is), and (c) Murtha did not make a reasonable effort to be sure that his accusations had some grounding in decent evidence...well, I don't see that it's frivolous a priori.

But that assumes that the law is reasonable, which it frequently isn't; and since I don't know the jurisdiction here I can't speak to the specific law.

Your last little shot does not reflect well upon you. You are, of course, free to characterize the accused as "a person who very well could be a war criminal." Someone else could equally accurately characterize him as "a soldier who, having risked his life to defend our country, could very well have been repaid by being falsely accused and publicly slandered." I suspect that your preference of formulations, in regard to someone who voluntarily went to Iraq in defense of civilians such as yourself, is unintentionally self-revealing. This is particularly so since we do not know that he has committed war crimes, nor on the other hand do we know that he has been slandered -- but we do absolutely know that he volunteered to defend his country. To many of us, this is enough to motivate us to give him the benefit of the doubt until more facts become known. You, however, are more prepared to give the benefit of the doubt to a Washington politician than to an American serviceman. If that's your scale of values, well, to each his own. It isn't mine.

In other words, if that last sentence of yours has any actual bearing on reality at all (which it probably doesn't), then it says far more about yourself and the direction of your own malice than it does about either the Marine or Murtha or for that matter anybody else in the world.

[Geek, Esq.]

"And given a choice between our honorable fighting men, and the AP the media's biggest propaganda whore for the terrorists, we all know which side you're on, Geek."

I'm on the side of our honorable men and women in uniform. I don't include war criminals in that count.

Apologies for the derogatory term for conservatives. Your house--I should be more respectful.

The Marine in question would have to prove (A) that he was innocent and that (B) Murtha knew he was telling a lie when he made those remarks. As I said, if he was basing those comments on what a DoD official told him, then it's case over.

Btw, I question the competence of this guy's lawyers. If there's a civil suit, and he tries to get it going before or while the criminal proceedings are underway, he doesn't have his 5th amendment privileges in the civil case.

[jeff stiles]

Hey, we have to figure we're doing something right when all the leftward-leaning folks can do is refer to us as "wingnut"! :)

[Angel]

yay..Finally a lawsuit that is righteous..here here!..I linked to this post Alexandra1..:)

[Joe]

Here's hoping Murtha receives his comeuppance at an extemely punitive price. Perhaps an expensive judgement would slow the Democrats' rush to defame our troops; but likely not, given their limited memory and total inability to absorb the lessons of history.

Almost forgot this "blinded by the [ideological] light" gem:
But, given a choice between people who very well may be war criminals, and a Democrat, we all know which side you're on.
And given a choice between our honorable fighting men, and the AP the media's biggest propaganda whore for the terrorists, we all know which side you're on, Geek.

[Alexandra]

Geek,

I would have to bow to your superior knowledge on this. However I seem to recall that Murtha had what he claimed was "information" obtained from undisclosed sources. This is a far cry from

"the DoD [giving] him a report indicating that they committed war crimes

putting into question the logic that

it will be impossible to prove that he KNEW that they were innocent.

As for images, we thankfully do not live in an Islamofascist state, and unless you are advocating censorship, I do not need to worry about the visuals I post on my blog. We do however promote civil discourse with many differing points of view here, without the need to resort to derogatory name-calling like "wingnuts".

[Geek, Esq.]

Actually, unlike the posters here (or any of the wingnut bloggers celebrating this suit, I actually know something about defamation law.

For instance, there needs to be proof that Murtha KNEW that these Marines didn't do what he said they did. If the DoD gave him a report indicating that they committed war crimes, it will be impossible to prove that he KNEW that they were innocent.

Moreover, the fact that they haven't been charged or convicted (yet) is meaningless in the context of the defamation suit.

[antimedia]

The AP and every other media outlet would like these Marines to be convicted. They might be convicted of not following the ROE, but they will not be convicted of murder. The evidence is in their favor, notwithstanding the media and left spinning it.

[Alexandra]

Geek,

I fail to see your point. It has never been in question whether these people were killed. What has not been established is which marines, if any, will or will not be criminally charged.

You copy pasting a third party quote from an unnamed Pentagon official, follows the Murtha example of 'guilty until proven innocent' Court Martial. Judging by your contempt for defamation law in the US, or any regard to the absence of criminal charges for the young man in question, you seem to share your hero's disregard for basic principals of justice.

But then I forgot, your purpose as a Democrat is to defend those very principals, and for the Republicans it is to shoot first and hang later, no?

Umh, Joe help me out here, was it the other way round, hang first and shoot later...LOL

[Joe Eversole]

I suppose if I was a war criminal (Having actually been convicted in a court of law), then this kind of lawsuit would indeed be frivolous. However, since we have this really cool thing called a judicial system that gives the accused the presumption of innocence, then Mr. Murtha may or may not be telling the truth. Since he wasn't there, and no court of law has convicted this Marine, then by default he can not know the truth, ergo he has slandered this Marine. Stick that in your pipe and smoke it....

[Geek, Esq.]

Who said rightwingers are opposed to frivolous lawsuits?

http://apnews.myway.com/article/20060802/D8J8BIO04.html

"Evidence collected on the deaths of 24 Iraqis in Haditha supports accusations that U.S. Marines deliberately shot the civilians, including unarmed women and children, a Pentagon official said Wednesday."

Last time I checked, defamation law doesn't cover people just telling the truth.

But, given a choice between people who very well may be war criminals, and a Democrat, we all know which side you're on.