In The Dark - Episode 7: Innocent in My Eyes

Episode Date: September 3, 2024

The conflicting narratives about what happened in Haditha make their way through the opaque inner workings of the military justice system, until they reach a top commander who decides which story to believe. To find online-only features, visit newyorker.com/season3. And to get episodes early and ad-free, visit newyorker.com/dark.  Learn about your ad choices: dovetail.prx.org/ad-choices

Previously on In the Dark Oh my God. Sherrod was, he was a goofball. He was very much into the pop punk. So like the Sum 41, Blink 182. That was his shtick. He loved that stuff. He said, I popped your nine mils cherry.

What did you think when he said that? What did I think? I assumed it meant that he had fucking shot someone with it. So they just came out one after one, and they all stood there on their grandfather's front yard. You and you and you. You and you and you. They pointed at each one to go inside the house.

So Ahab's saying that this Marine who's claiming that this was his truth, she said that he knows the truth as she knows it. She doesn't care at all what he says. One day, just before Christmas in 2006, a little over a year after the killings, a Marine colonel took the podium in a drab briefing room at Camp Pendleton. On the morning of 19 November 2005, a four-vehicle convoy of Marines was moving through Haditha. The colonel told the press gathered in front of him that the investigations into what had happened were nearly complete. Based on the findings of the investigations, various charges have been preferred against

four Marines relating to the deaths of the Iraqi civilians on 19 November 2005. These charges include murder. Murder charges against four Marines brought by the U.S. military itself within its own justice system. That's the way war crimes for the most part are handled in the U.S. military itself, within its own justice system. That's the way war crimes, for the most part, are handled in the U.S., in-house. The first case to move through the military courts was the one against Lance Corporal Justin Sherritt, the squad's gunner, who bragged about killing people Punisher-style. Sherritt was charged for what had happened in that final house, where the four

brothers were all shot in the head. Sherritt was charged with killing three of the men. Sherritt's story about what had happened inside that house was dramatic. He described for investigators how he and his squad leader, Frank Wuderich, had gone into the house and had been confronted inside by armed insurgents. Sherritt had said that his assault weapon jammed, so he quickly drew his 9mm pistol and shot the men to save his own life. The Iraqi story of what had happened was so different from Sherratt's that the two accounts were almost irreconcilable. The surviving relatives had told us the Marines marched the four unarmed brothers away. Then they heard gunshots. They ran into the house and found the brothers,

Jamal, Kattan, Chasib, and Marwan, lying dead. These two stories would collide in a public forum, a courtroom, and from there they would wind their way through the opaque inner workings of the military justice system. They would climb up a hierarchy of men who'd each pass judgment until they reached a top commander who would decide which story was true. This is Season 3 of In the Dark, an investigative podcast from The New Yorker. This season is about the killing of 24 men, women, and children by U.S. Marines in Haditha, Iraq. It's a story not just about the killings themselves, but also about the failure of the U.S. military to bring the men responsible for them to justice. In this episode, we're going to start with the prosecution of Justin Sherritt, the first case to fall apart.

Its collapse would shake the foundations of all the Haditha cases to follow. This is Episode 7, Innocent in My Eyes. Justin Sherratt's case began the way almost all serious military prosecutions do, with something called an Article 32 hearing. It's unique to the military justice system. Defendants get to have a kind of pretrial, where both sides can present evidence to determine whether the case should go forward to a jury. The person who presides over the hearing and weighs all that evidence is a sort of judge called an investigating officer. And the way it worked in murder cases back then is the investigating officer would make a recommendation to a commander as to whether the case should go any further. Sherratt's Article 32 hearing happened at Camp Pendleton in June 2007.

Newspapers across the country printed photos of Sherritt's arrival at the courthouse. He was escorted by his lawyers in their dark suits. Sherritt was wearing his combat fatigues, sleeves rolled up to his biceps, big black aviator glasses covering his eyes. Sherritt carried a binder and a stack of case documents so thick he could barely wrap his hands around them. As for what happened inside the courtroom, that was a little tricky to figure out because the military hasn't given us records of the hearing. Fortunately, we did end up finding unofficial transcripts on a now-defunct webpage that was archived online. In reading through those transcripts,

it was clear that prosecutors had a lot of evidence against Sherritt. There were the forensics and the photos showing that one of the men had been shot after jumping into a wardrobe prosecutors had a lot of evidence against Sherritt. There were the forensics and the photos showing that one of the men had been shot after jumping into a wardrobe, and another man had been shot while sitting or crouching on the ground. There was the fact that all four men had been shot in the head. None of this was what you'd expect to see in a life-or-death fight against armed enemies. There were details about who these men were, that there was no evidence that any of them had any connections to insurgents, and that, in fact, they all had regular jobs.

One worked at a car dealership, one was a government engineer, one worked as a customs officer on the border with Jordan, and one was a traffic officer. And then, of course, there was the most powerful evidence of all, eyewitness testimony, the kind of thing that every prosecutor wants in a criminal case. People who saw what happened, who weren't themselves involved in the crime. Ehab, Najla, and Khaled Jamal said they'd witnessed the Marines taking the four brothers away unarmed

and then heard gunshots. These Iraqi witnesses had given statements where they recounted all this in detail. The job of Sherratt's lawyers, of course, was to call all of this evidence into question. And that's exactly what they did. Those jobs the brothers had, car dealer, engineer, customs worker, traffic officer, those, according to the defense, gave the men a grab bag of skills and resources

that actually made them a quote, ideal insurgent cell, a sort of village people of the insurgency. But what to do about the eyewitness statements? The ones that absolutely contradicted Sherratt's account, that these men had pointed AK-47s at them so they had to kill them. Sherratt's lawyers brought in an expert witness to cast doubt on those statements. His name is Barak Salmoni. Salmoni worked for the Marine Corps, training Marines on Iraqi culture, and he has a doctorate in history and Middle East studies. On the stand, Salmoni testified about why he thought the statements of the Iraqi witnesses, Ehab, Najla, and Khaled Jamal,

might not be credible. He noted that though they did give sworn statements, they weren't asked to swear an oath on the Quran itself. He suggested that because the interviews were conducted by outsiders, by non-Muslims, the witnesses might have felt less compulsion to tell the truth. But what stood out to me the most about Salmani's testimony was what he had to say about the value of the testimony of the Iraqi women in particular. Salmani testified that in Muslim society, traditionally, the testimony of a woman is worth half that of a man.

He cautioned he wasn't necessarily saying that the testimony was half as truthful, but he did say that maybe it was less significant. We wanted to ask Salmoni about all this, and so our producer Samara called him up. Go ahead. Is this Dr. Salmoni? Yeah, this is Samara Fremark, the audio reporter for The New Yorker.

Salmoni told Samara he stood by what he said in the hearing. I didn't find the testimony of the Iraqis to be credible or reliable. Samara asked Salmoni about one of his claims in particular. There actually was one specific thing in your testimony I was hoping you could explain to me. I just want to make sure I was understanding it, and it has to do with the value of women and men's testimonies in Muslim societies. Well, first read what I said, please. Yeah, of course. Okay. Additionally, there is a question about the worth of testimony of females, not in our

society, but in traditional Muslim societies. Samara read back to Salmani what he'd said at the hearing, the part where he said that in Muslim society, traditionally, the testimony of a woman is worth half that of a man. And you say, I am not saying they're half as truthful as man, maybe. They may be less familiar and less significance in their testimony. And so, yeah, I was hoping you could just sort of explain where that's coming from. Simone seemed almost embarrassed. So this is a while ago, right?

This is 2006, 2007, correct? Long time ago, right? Hopefully a little bit more mature than them, just less hair. But defended what he'd said in court. Okay. Traditionally in Sharia, across the different mazahid, it's not like it was worth half.

If I understand correctly, the testimony of two women was equal to that of one man, right? Samara wondered if it was right. So she checked with two experts in Islamic law, experts from outside the Marine Corps. A professor at the University of Cincinnati's law school, Dr. Haider Ala Hammoudi. That's, it borders on the outrageous. And Dr. Mohamed Fadl at the University of Toronto's law school. That would be a complete misapplication of any Islamic legal doctrine. They both said the legal concept Somoni was referencing

is essentially an arcane provision of Islamic law dating back to medieval times, typically applied to contracts, completely inapplicable in this context. It's very poorly done by someone who, I'll say it strongly, clearly doesn't know a lot about Iraqi, contemporary Iraqi or contemporary Arab society, to draw the kinds of conclusions that he does. But back at the Article 32 hearing, Simone's testimony went mostly unchallenged. Toward the end of the hearing, Sherratt himself read a statement.

He said that it had been his lifelong dream to enlist in the Marines. He talked about a love of country, duty, brotherhood, bravery. He gave a dramatic retelling of an intense battle in a different city, Fallujah, inside a building that came to be known as Hell House, where Sherratt said he tried to save his fellow Marines

from a deadly ambush and saw his friend's head explode, almost in slow motion, right in front of him. When he turned to the events of November 19, 2005, Sherratt made it sound like he'd ended up in another Hell House. Blow by blow, he described defeating a pack of insurgents who'd wanted him dead. I am a disciplined Marine, he said, and I've always tried to act professionally with a civilian population. On November 19th, I did exactly as I was trained to do. He went on, in the end, no matter how much I second-guessed myself, I would not change any of the decisions I made that day. The person whose job it was to listen to all this evidence and make a recommendation about what to do with it was a Marine Lieutenant Colonel named Paul Ware.

Ware was what the military calls an investigating officer. His job was to oversee the hearing and then write a report about it and make a recommendation to the commander of Sherritt's unit about whether the case should go to an actual trial before a jury. Ware had never handled a war crimes case before, and now he was at the center of one of the largest war crimes cases in U.S. history. Ware was supposed to be a neutral party, but as I read over the transcripts of the Article 32 hearing, there was something that stood out to me in the way Ware had questioned some of the people on the stand. He seemed skeptical of the prosecution and sympathetic to the defense. Sometimes he almost seemed like another defense attorney. Like when a friend of Sherratt's testified, a Marine named James Prentiss. Prentiss was a particularly interesting witness.

He was a close friend of Sherratt's, and the prosecutors brought him to the hearing because of what Prentiss had told investigators. Prentiss had said that he knew Sherrits' story about what happened inside that house wasn't true. Prentiss said Sherrits had confided in him that he'd made up the story about encountering insurgents armed with AK-47s. It was all a cover story, a fiction. That was what Prentiss told the investigators. But when he testified at Sherrits' hearing, Prentiss walked it all back. Prentiss testified that actually Sherritt hadn't said it. And then Ware, the supposedly neutral arbiter, suggested something quite helpful for the defense. That maybe one of the military's own investigators had inserted this detail into Prentiss's statement. Ware would go on to be the investigating officer for two more Haditha Marines,

Stephen Tatum and Frank Wuderich, and prosecutors in those cases would end up sending letters to the commander written in concerned tones. Prosecutors wrote that Ware had made factual and legal errors. One pointed out that Ware lacked significant operational law experience, training, or education, and lacked any experience with rules of engagement and escalation of force investigations in Iraq. As far as we could tell, Paul Ware had never given an interview about his role in the Haditha cases. But one evening, our producer Samara drove out to Ware's house to see if he might talk to her. She brought along the 18-page report

that Ware had written at the end of Sherratt's hearing. We'll be back after the break. Hey, it's Madeline. Thank you. there is a wealth of stories you're going to love waiting for you at The New Yorker. Like this story, published just this year by Patrick Radden Keefe, about a teen who got mixed up in the London underworld and then mysteriously fell into the Thames. In the four years since Zach's death, the family has had to confront the extent to which the boy they thought they knew had been living a double existence.

None of the Brettlers had ever imagined that Zach might be moving about London pretending to be someone else altogether. This season of In the Dark took us four years to report. You're hearing it now because The New Yorker believes in what we do. So go to newyorker.com slash dark and become a subscriber today. That's newyorker.com. In 600 feet, your destination will be on the left.

Paul Ware is retired from the military now. He lives in San Diego in a nice-looking, colonial-style house. When Samara got there, Ware's wife came to the door. Do you want to go there? I was trying to reach out, Mr. Paul Ware. Yes, what can I do for you for him? I'm a reporter, and I'm working on a story about a case that he was a judge on many, many, many years ago. I don't think he's interested in making a comment.

Could I talk to him directly? Good, he's on a work call right now. He's on a work call right now, okay. Yeah, so not sure how, I don't know what he's doing. Samara could see Ware pacing around in the background, talking on his cell phone. He's been on this call for a while. After a few minutes, he came to the door. So what can I do for you? Ware was wearing a Marine shirt, and his gray hair was reminiscent of a classic Marine's high and tight,

buzzed on the side, a touch longer on top. What is it you're trying to accomplish? Yeah, so I'm looking back on the Haditha case, and, you know, it was this huge thing, and so it's kind of a look back on, like, what happened. Well, I don't think you'll ever know what happens, because if you looked at any of my reports, the problem is... Could we sit? Could we? Yeah. Ware led Samara into a study and pulled out a folding chair for her.

I got this chair. Oh, thank you. Well, tell me how you came to the case. I didn't come to the case. I was a judge in Hawaii. Back at the time, Ware was working as a military judge in Hawaii. I got a call. They said that they had a case set of Haditha,

and they wanted a judge. Ware packed his bags and headed for Camp Pendleton in San Diego. It was a good opportunity for me to come back to California. My family was in California. Where he stepped into his role as the investigating officer on Sherritt's case. What was your general impression of the evidence in the case? So I think people, a lot of people think, oh, these are just, you know, Marines that went out with revenge. I think it was the narrative that the government was using.

They went out for revenge after seeing their friends killed. That wasn't my take on it. Samara wanted to ask Ware about how he weighed the evidence in the case, the two stories that had been put in front of him. Sherratt's story of facing down a pack of insurgents and the Iraqi story of unarmed men being led to their deaths. You've got these two different stories. They're very different. So, like, how do you weigh those two testimonies? How do you assess who you think is telling the truth?

Well, there's no one telling the other side. So there's no one telling the other side. Ware said the only eyewitnesses that day were the Marines. He said no one else actually saw what happened. You're dealing with spouses of the victims, or family members of the victims, who aren't in the room. And so they describe an aftermath. Samara pushed back on this. Najla, Ihab, Khaled Jamal had described witnessing the Marines marching their unarmed family members into the house where they were shot.

They were eyewitnesses to the scene that they claim happened. Right. If you believe them. If you believe them. Yes. I didn't. And if you ever read the transcripts, I don't speak Farsi. And I don't, the interpreter is Arabic. I'm not sure what. And so they, you know so they're reinterpreting it and telling us what they said. So I didn't find their testimony to be particularly credible. So why do you think those people were lying?

Like what's their incentive? I don't know that they're lying. I would say that I don't think that their version of what they're saying is very credible. Why does someone have a need to not tell the truth? Is there an incentive to not tell the truth? Or is there any reason why someone wouldn't tell the truth? One of the reasons they wouldn't tell the truth is they got payments.

Ware was talking about the money that the survivors had received from the U.S. military to compensate for the loss of their four family members, what the military calls condolence payments, $2,500 for each death. They've been paid off, and they don't want to give the money back. Ware was suggesting that the survivors were worried about the possibility of their condolence payment

being clawed back. I've never heard of such a thing happening. The condolence payments weren't contingent on a conviction. They were part of a huge program set up by the U.S. military that paid out millions of dollars over the course of the war for death and destruction caused by U.S. forces in Iraq. Ware also told Samara that he thought that the fact that the women were interviewed together by NCIS investigators, rather than separately, cast doubt on their credibility. Because, he said, they might have felt they needed to have the same story. Samara turned to a section of Ware's report that she especially wanted to ask him about.

It had to do with the testimony of the defense's Middle East expert, Barak Salmoni. Salmoni had said that in Muslim society, traditionally, the testimony of a woman was worth half that of a man. Okay, so you write,

Salmoni opined that women and children's statements are considered inherently less reliable than a man's statement in Iraqi law. Although such discrimination is not recognized in our society, it appeared that in his report, Ware had taken the statement from Salmoni and run with it. Ware had written, quote, Although such discrimination is not recognized in our society, the fact that these Iraqis have this cultural understanding suggests that they would believe United States authorities would likewise view their statements as less reliable and may suggest they would feel less need to be fully truthful. a convoluted theory that if in Iraq, women's testimony isn't taken as seriously as men's,

then women in Iraq don't feel like they need to tell the truth. And so therefore, women in Iraq don't tell the truth. It appeared to be an incredibly long-winded way of saying, don't believe Iraqi women. We read this section of Ware's report to one of the experts in Middle Eastern law we spoke to. He called it a mistaken understanding built upon a mistaken understanding. It was, he said, a bit of a mess. Samara wanted to find out from Ware himself why he wrote these lines and what he was thinking. So I want to make sure I understand what you were saying with that. I don't know how I can make you understand this i mean you read it and understand it i mean i'm not sure what you mean i mean it seems to me

that you're saying that we should trust the testimony of women less or of iraqi women less because of their cultural context i mean i i just just don't know how- No, I'm not saying that at all. That's absolutely insane. That's not what I'm saying. I'm saying that they have that understanding. And I say may suggest to them that they're not going to be taken as serious. That's what I'm saying. Well, you say may suggest they would feel less need to be fully truthful. I mean, it seems like you're speaking directly to their-

They may feel less need to be fully truthful. These are not American women who grew up in a culture that says, hey, you swear to tell the truth, the whole truth, and then you're taken, and your credibility is not analyzed on your gender, but it's analyzed on what you have to say. If I was told that my testimony is worth half of that of a man, and that's the world I grew up in, I would not believe that another country is going to take my word one for one, that I'm not going to be able to speak with my voice and clarity. So I don't know if those five women, if one of them has a different version of the facts, but wouldn't speak it out because they have to be collectively with other people. Because they, I think that they're being manipulated into a narrative. But the story they tell is very detailed and also very specific. And I've actually talked to some of them and they're telling the same story now.

It's like, why would they be lying to me? You're very naive if you think that. Very detailed, full memory under the trauma of that event. They got together and they talked about it and they built in this narrative. And so now at this point, they could probably raise their hand and say, this is what they believe that happened. A hundred percent. Because the more you talk about it and you get these details down and you coalesce those details with other people, and then you embed it in your mind and now you have a memory of what's going on. Yeah. I think the thing that struck me the most was there was a boy who was 14 at the time and he describes, and he has described this

in statements in the past as well he describes like the separation scene he describes the men being taken away and he describes like trying to go with them and his aunt pulling him back and saying like no no no today you don't go with them like you're a boy today you're not a man and it's just like such a specific

it would be just feels like such a weird thing to just like fabricate really? like to what end like why because at this point you don't think after all these times you don't hate american marines that's that's i mean the marines didn't go around spreading peace and love there they went and killed all the family members. They don't seem like they hate. I know that you've bought Hook, Line, and Sinker, the other version of it. And you haven't been out there with carrying a rifle and killing their villagers.

That is true. And you are a tool that they can use to exact their revenge or their thing. Did you put any value on the testimony of the Iraqis? On the women that told them? No. In his report, Ware recommended that the case go no further, that all the charges against Sherritt be dropped. Ware wrote that believing the statements of Najla, Ihab, Khaled Jamal, and their other relatives, quote, sets a dangerous precedent and might, quote,

encourage others to bear false witness against Marines. And though he noted, quote, I suspect Lance Corporal Sherritt has not been entirely truthful concerning all the events on 19 November 2005, Ware chose to accept the account of the person who, if he was guilty of murder, had a bigger incentive than anyone to lie. Ware wrote, Ultimately, there was only one statement by an eyewitness to the events. Lance Corporal Sherritt. I wondered if Ehab and Najla, whose husbands had both been killed on November 19th, had any idea what Paul Ware had written about them, or that their statements had been dismissed so completely. So when Samara and I were in Iraq with our interpreter Aya,

meeting with Ehab and Najla in Erbil, I told them about Ware's report. And so there was a report that was written by a person who was in charge of making a recommendation about whether or not Sherritt should be charged for the killing of your family. And so what this report said, what this person named Paul Ware, who wrote the report, what he said was that he doubted that the family was telling the truth he doubted that the family was

telling the truth and he thought that the family might have said it because they wanted money. And he said that in Iraq, women and children's testimony is less trustworthy. As Aya started translating what I was saying, Najla put her hand on her heart. I think Najla is not feeling well. She's heartbroken. She said that, like, I feel like I'm dying, basically, of hearing this. For much of the interview, Najla had been quiet. Ihab had been doing most of the talking. But now, all her emotion just came out. I don't want anyone to talk to me. I'm so sad. I ran away, but I'm silent.

I'm silent and forced not to kill my son. He doesn't want to see me. When he sees me, he cries. He hurts himself. I let him face me. He doesn't face anyone. He faces me, I tell him about my life, and I tell him about all this. My life is different now.

My life has changed. Najla spoke for a long time. I'm telling you this story. I'm telling you this story. I'm telling you this story. I'm telling you this story. I'm telling you this story. I'm telling you this story.

I'm telling you this story. My life is different now. This crime has been destroyed. ما هو جنتي؟ حياتي غير حالية ورحلت جريمة تحطمت لا أملك طاقة طاقتي منهارة لا أملك أي شيء هذا كل يوم رب العالمين ما يضيعوا الله سيقوم بأعوذكم كل خير إن شاء الله I will probably listen to that later on and translate it for you.

They are hard. We are all heartbroken right now. Aya had been working with us for several days at this point, spending many hours a day translating a lot of things that were hard to listen to. And in this moment, it was like Aya hit her limit. She is so devastated. So am I.

Just only for hearing her struggles. Just hearing about it makes me... I'm sorry. Yeah, let's take a break. We'll have to take just a few minutes of a break. Okay. Later, we got what Najla said translated. My life was ruined, Najla told us.

I was totally destroyed. You know how many plans we had for our life? Our life was beautiful. We had plans for our son. I had plans to complete my studies, to finish my university degree. But I couldn't. I had to think of my son.

My nerves broke down, but I remained silent for my son's sake. I didn't want him to see me crying. The man who wrote this, she said, should face me alone. We'll be back after the break. Hi, this is David Remnick. © BF-WATCH TV 2021 Zoe Zephyr, and Eternal Father, and they all immerse you in the finest cinematic journalism, exploring themes of justice, identity, and the bonds that shape us. These extraordinary films, which were created by established filmmakers, as well as emerging artists, will inform, challenge, and move you. I encourage you to watch them along with our full slate of documentary and narrative films at newyorker.com slash video.

A quirk of the military justice system, a system with many, many quirks, is that important decisions in criminal cases are often made not by judges or even by lawyers, but by commanders, essentially by the defendant's boss or boss's boss, or in the case of Sherritt, his boss's boss's boss's boss's boss's boss. So Ware's report wasn't the final word. The commander's would be. And on its way to the commander, Sherrod's case had to be reviewed by another lawyer a lieutenant colonel named Bill Riggs. Riggs was the commander's staff lawyer

he gave guidance on all sorts of legal matters and Riggs was required to weigh in on criminal cases to write up a letter of advice so his boss could have two independent opinions on the evidence in practice these advice letters are often brief, flatly written, unemotional. Riggs's letter, which we found buried in some of the court records we sued the government to get, was the exact opposite. Riggs eviscerated Ware's analysis. He underlined a variety of contradictions and fallacies. He criticized Ware for choosing to believe Sherratt's account over all others, even though Ware himself had noted that he suspected Sherratt had, quote, not been entirely truthful.

Riggs argued that disputed facts deserve to be put before a jury. Riggs advised his boss, the commander, to reject Ware's recommendations. Instead, he wrote, Sherratt should be tried for murder. Our producer Samara talked briefly to Riggs. He's now a judge at a federal agency. He was friendly when she showed up at his house, but said he wouldn't grant an interview. Before Samara left, though,

Riggs did, very concisely, get his opinion of Paul Ware on the record. Samara mentioned that she'd recently talked to Ware, and Riggs responded with a single word. Dipshit. Riggs's recommendation and Ware's recommendation, one arguing to send the case to trial, the other to drop it, both landed on the desk of the man who would decide what to do next.

The man who would make this decision was the head of Marine Corps Forces Central Command, a general in charge of 65,000 Marines, who later became very famous as a member of President Donald Trump's cabinet, General James Mattis. Mattis was already a mythic figure in military circles. He prided himself on being a free thinker, impervious to the opinions of others. He was known as Mad Dog, Warrior Monk, and Chaos, his radio call sign. A biographer described him as seemingly defying basic human needs, surviving on four hours of sleep a night, drinking only water,

eating freeze-dried meals without warming them or rehydrating them, reading the works of Roman emperors in his spare time. In a memoir Mattis wrote years later, he described his review of the Haditha case file, pouring over it alone, night after night, more than 9,000 pages, which, he noted, was the equivalent of two dozen books. Two months after Sherratt's Article 32 hearing, Mattis issued his decision in the form of a letter addressed to Sherratt, but clearly intended for a wider audience.

I have determined that the charges in your case will be dismissed, Mattis wrote. I have made this decision based upon all of the evidence. I've seen other decisions by commanders, and most would have ended there. But Mattis's continued on, veering away from the evidence in the case and towards something more like a short treatise on courage for weary troops. Mattis wrote about the brutal reality of being a Marine at war and quoted Supreme Court Justice Oliver Wendell Holmes. Detached reflection cannot be demanded in the face of an uplifted knife. Mattis told Sherritt, you willingly put yourself at great risk to protect innocent civilians. Where the enemy disregards any attempt to comply with ethical

norms of warfare, we exercise discipline and restraint to protect the innocent caught on the battlefield. Our way is right, but it is also difficult. With the dismissal of these charges, Mattis wrote, you may fairly conclude that you did your best to live up to the standards followed by U.S. fighting men throughout our many wars in the face of life or death decisions made by you in a matter of seconds in combat. You remain, in the eyes of the law and read it and looked at each other and said, well, what we said probably is not a primal matter. That's Sherratt's defense attorney, Gary Myers. He's 80 now and semi-retired after a 54-year career.

But when our reporter Parker talked to him, he had no trouble remembering the moment he got Mattis' letter. We were delighted. And you said that you and the other attorney exchanged some words that weren't fit to print. What are the words that lawyers share at that moment? Well, I don't know. Words to the effect, I'm even hesitant.

I said, holy shit, this is amazing. Myers called Sherrod and his family and shared the good news. I mean, he was pleased, obviously. His reaction was not as effusive as his mother, father, sister. They were ecstatic. There was a sense of relief knowing this sort of thing is behind you. Myers had been working as a defense attorney for members of the military

for a long time. He'd represented other alleged war criminals. A guard from Abu Ghraib. Even a radio operator from Milai. And this letter was unusual. To have someone in Menace's position declare not only that he's not going forward with the proceedings,

but, oh, by the way, I believe you are absolutely innocent. That's really fairly remarkable. Have you ever had another case in which an investigating officer or a judge or a convening authority, anyone, has in writing deemed your client, quote, innocent? Never. Never. It's just not the idea of innocence is not a concept that is even thought about in criminal settings. Not guilty is not innocent.

It is a word you don't often hear in a criminal court context. Well, you hear it, but from people who don't understand what they're saying. Do you think Mattis understood? Oh, there's no doubt in my mind that that was a message he sent. Mattis is a quintessential Marine in the sense of being a warrior. And he's a guy who I think truly loves the Marine Corps and the people in it. And he wasn't about to allow an injustice to stand. And the best way to do that was declare that there was no crime here.

Case is over. The end of Sherratt's case also meant the end of any accountability for what happened to the four brothers. Prosecutors had initially also charged the squad leader, Frank Wuderich, for one of those killings. But after General Mattis dropped the case against Sherratt, prosecutors withdrew that charge against Wuderich. No one would ever be tried for killing Jamal, Chassib, Kattan, and Marwan.

He tried to reach Mattis, but he never responded. In 2017, when he was profiled in The New Yorker, the topic of Haditha came up. You can't criminalize every mistake, Mattis said. Bad things happen in war. You have to have a degree of humanity when you're given the authority to lock your own troops up in jail for the rest of their life because they have the guts to volunteer to go into that situation. Not long after Mattis dismissed his case, Sherritt gave an interview to Frontline. Personally, Sherritt said, I think I did everything perfectly that day. He added, the way the system worked for me, I thought it worked pretty well.

A couple weeks later, Sherritt received an honorable discharge from the U.S. Marine Corps. One of the first things I did when I started reporting on Haditha was look up Justin Sherrod on Facebook. His photos were visible to the public. There were pictures from his time in the Marines, including a few of Miguel Terrazas, who'd been killed by the IED on November 19th, and Terrazas' memorial service a few days later. But mostly, Sherritt posted pictures of his car, a blue 1969 GTO convertible with a black racing stripe. He posted some videos of the car on YouTube. This is Justin here. Figured today's a good day. It's nice enough out.

I'll give you a walk around of my GTO. So it's got the hideaway headlights. They work with a little motor that I made. Sherrod had tricked it out in all sorts of custom ways. So I can adjust my ride height with the airbags and the coil springs. He'd added neon blue underglow lights to the bottom and blue lights on the dashboard. I did blue LED back spacing. I imagined him driving around in it near his home in rural Pennsylvania,

top down, glowing like a blue lava lamp, blasting Blink-182. I knew that at some point, I'd need to try to reach Justin's share it. But one day, back when we were just starting our reporting, and we were out talking to Marines from 3-1, our producers, Natalie and Raymond, heard something.

So I don't know if you guys remember Sherry. He was part of the investigation. Right. He just killed himself last year. What? Yeah. Oh my God. About a year year. What? Yeah. Oh, my God. About a year ago. Really? Yeah.

Wow, I had no idea. Yeah. Oh, my gosh. I'm sorry to hear that. Yeah. According to a coroner's report, Sherritt died sitting in his office chair at the computer desk in his basement. His sister told the coroner that he had PTSD and that the family had always worried that he would commit suicide.

She told the coroner that he'd actually been hospitalized during high school for suicidal thoughts. Not long after that, he deployed to Iraq. Justin Sherratt had used a 9mm to shoot Chassib, Khatan, and then Jamal. Nearly 20 years later, he used a 9mm to shoot himself. He left no note saying why. At the time of his death, Sherratt was living in southwest Pennsylvania. He bought his grandmother's small white and green house, located out on a road with a couple other families who, like Sherratt's, had been there for generations. He was divorced and lived there by himself.

Sherrits had been there for generations. He was divorced and lived there by himself. After we learned of Sherrits' death, our reporter Parker went to Pennsylvania to try to talk to people who Sherrit was close with. It had been a little over a year since he died. Parker knocked on the doors of neighbors who'd known him since he was a kid. They described Sherrit as reserved. They said he spent a lot of time at home tinkering on his car and shooting his pistols into the woods. They said he often drank too of time at home tinkering on his car and shooting his pistols into the woods. They said he often drank too much, usually Miller Lite. Parker found his co-workers. He'd been a jail guard and an underground coal miner and a nighttime electrician at a mill owned by U.S. Steel.

They told Parker that Sherritt was extremely good at mechanical things and electrical things, and that he almost never talked about his time in the service. She found people in his car club who'd hang out with him at meets. Sherritt would be sitting there in his GTO with the hood up. They admired Sherritt's wrenching skills, and they threw a rowdy memorial for him after he died. Justin was here for us. Every one of you, get to your cars, fire that shit up, and make some fucking noise. Several hundred cars revved their engines all at once. One actually caught on fire.

And the friend who'd driven Sherratt's GTO to the gathering used Sherratt's own fire extinguisher to put it out. Parker learned that Sherratt rarely talked to anyone about that day in Haditha. She met several close friends of Sherritt's who hadn't even heard about the incident until they Googled him after he died. Sherritt's shift partner at U.S. Steel, an electrician named Justin Schultz, a guy Sherritt spent hours with every workday, was one of the only people who Sherritt talked to about that day in Haditha.

Schultz said the conversation was brief. He was not ashamed. I mean, it was what it was. He was never ashamed, never expressed regret for it. He just, it was a job, and he had to do it. There was one person who we knew Sherratt had talked to, and who we knew we should talk to, too. Hello? Hey, James, it's Parker.

Hi, how are you? Good, how you doing? James Prentiss, Sherratt's old friend and fellow Marine who testified at Sherratt's Article 32 hearing. He's the guy who was expected to give damning testimony about how Sherratt's story of how the four brothers were killed was made up, a fiction. But who, on the stand, walked it all back? And then the investigating officer, Paul Ware, had suggested that the military's own investigators had inserted that detail in Prentiss' statement. Prentiss had never talked to a reporter about any of this. Parker met him at his apartment complex and followed up with him later on the phone. Yeah, I, like, wanted to ask

you about... And Prentice started telling her a story that we hadn't heard before. Back in 2005, Sherritt and Prentice were best friends. They'd met right after boot camp when they were still teenagers. They'd survived Fallujah together. They'd become so close that even their moms were close. His mom talked to my mom all the time. Their moms kept in touch while their sons were overseas. If he was able to call before I did, his mom would call my mom and say, oh, they're okay. After Fallujah, when they got back to Camp Pendleton,

they spent a ton of time hanging out together. They covertly swapped the room assignments posted on the barracks' doors so they could bunk together. They watched Dazed and Confused and The Big Lebowski. They listened to Blink-182 and built a beer pong table out of plywood. I used to have like big tournaments with like everybody in the barracks room in there. That place would be a disaster the next day. They went on spring break together and got arrested for underage drinking together.

We spent the night in jail. I paid for both of us to get out. Then, a few months later, they headed back to Iraq together, to Haditha. On November 19, 2005, Prentice wasn't in Sherrod's squad. He wasn't there when the IED exploded and killed Miguel Terrazas. But he was sent to the scene later on. Everything had pretty much calmed down by then. It was dark. He spotted his buddy Sher Sherrod, on the street.

I kind of like saw him and, you know, and then, you know, he saw me and, you know, kind of like asked him like, are you okay or whatever. The two friends stood near the hood of one of the Humvees and chatted for just a few minutes. I asked him like what happened. And then that's when he told me. He didn't, like, volunteer the information to me. I asked what happened, and then that's when he sort of thought. And then Prentiss told Parker what Sherritt had said. It told me that after the IED went off,

and they kind of assessed the situation there as far as who was wounded and everything that they went to the nearby houses and cleared those and then and then he had told me about the guy that he shot like point blank range and he was just standing

there and then they range and he was just standing there. And then they were going to come up with a story that the guy had aimed an AK-47 at him. And then that his M249 jammed and that's why he had to use the pistol. He's essentially saying that the idea that an AK-47 was pointed at me, we made that up. That was something he made up. Yeah.

That's what they were gonna say did he say why he shot the guy if the guy wasn't pointing an AK-47 at him no I mean not not directly I mean I can kind of assume

that you know you know that they got hit with that IED and everything. And, you know, I don't know if that's, you know, they were upset about what happened and that was part of their retaliation or whatever. But he never, like, directly, you know, told me, like, I just shot him for this reason or whatever it was.

Prentice ended up telling NCIS investigators about his conversation with Sherratt. He was afraid he'd get in trouble if he didn't. But after that, things snowballed. He had to give a deposition to prosecutors, who clearly thought he'd be a good witness for their side. And Prentis met with Sherratt's lawyers, who made it clear to him that what he'd said to NCIS was really not good for his friend Justin. The fallout seemed to spread. My mom had called his mom, and when she answered the phone, she told my mom, it's not a good idea we talk to each other anymore. Did she say why? No.

But it was kind of implied because at this point, you know, I guess in their mind, like I'm against their son. Prentice had re-upped his contract with the Marines during this time and was preparing for a third deployment to Iraq. One day, Prentice ran into Sherritt.

Their platoon was about to ship out. Sherritt was staying behind. He came by where our platoon was. He kind of talked to Iraq. One day, Prentice ran into Sherritt. Their platoon was about to ship out. Sherritt was staying behind. He came by where our platoon was. He kind of talked to everybody. And I remember trying to talk to him, and he just kind of like ignored me, like acting like I wasn't there. And what'd you say to him? I don't remember like word for it now, but kind of like, hey, how's it going, or something like that. And I remember he kind of, like, looked at me and then just, like, looked away. Said nothing? Yeah.

Prentice left for Iraq with a sense of unease, but he tried to put the Haditha business out of his mind, and he did mostly forget about it. Until the middle of the night one night, Prentice was working guard duty near Lake Tartar, where Saddam Hussein had had a palace, when the commanding officer of his company appeared and ordered him into a Humvee. We went back to the battalion firm base, still didn't tell me what was going on. I thought I was in trouble for something. A Marine Corps lawyer took Prentice to a room with a chair and a phone. He said, you're going to go in this room, and the phone is going to ring, and you're going to answer it. Eventually, the phone rang, and Prentiss listened

as the investigating officer, Paul Ware, introduced himself. It was at about this moment that Prentiss realized what was happening. He was on speakerphone in a courtroom in Camp Pendleton, where it was daytime, and where his friend Justin Sherritt was sitting facing murder charges and listening. And then I can hear another voice. They told me to stand up and raise my right hand,

and I remember kind of looking around and going, well, I'm not doing that. So you didn't? No. And I figured it doesn't really matter. No one can see me. Then Prentice was asked to repeat what he'd told NCIS, that Sherratt had told him about the killings and had told him about making up a cover story, words that he knew could help send his friend to prison. Prentice's mind drifted back to the meeting that he'd had with Sherratt's defense attorneys before he'd returned to prison. Prentiss's mind drifted back to the meeting that he'd had with Sherratt's defense attorneys before he'd returned to Iraq.

He told Parker that they'd suggested something that seemed like a way out, that maybe what was in Prentiss's written statement to NCIS wasn't accurate, that maybe the statement was wrong. And if so, Prentiss could just say that. They didn't really say, like, this is what you have to do, but more or less, if you did this, then it would help. And did that, did the idea that you could help your friend at this point, like, did that, at that moment, appeal to you? Yeah, I mean, I didn't want anything to happen to him, so if there was a way I could help that. You were like, you were willing to do what you could at that point to maybe soften the blow

of what you had said, or? You know, I really didn't want anything to happen to Sherrod. And so that's what Prentice was thinking about as he testified. He started walking back what he'd said to NCIS. He tried to undo it bit by bit, right up to the moment when Sherratt's lawyer asked, Just to make this clear, he did not say he was making up a story, or would make up a story, or had made up a story, but rather that was his story? Instead of telling the truth, Prentiss found himself saying yes. Back when Sherritt told Prentiss about what he had done that day, it didn't really faze Prentiss.

He said the conversation was basically matter of fact, just one Marine describing a kill to another Marine. But Prentiss said, thinking back on it now, it was obvious Sherritt knew he'd done something bad. If you think that you didn't do anything wrong, then you wouldn't have to come up with a story to cover up something. Right. And what do you think it was that he thought or knew that he knew he'd done wrong? Well, I mean, if he shot somebody that was unarmed, I mean, that's like, you know, against the Geneva Convention and all that stuff, so. And presumably he, like, would have known that.

No. Prentiss told Parker that at the time he walked back the truth at Sherratt's Article 32 hearing, he didn't have much sympathy for the people Sherratt had killed. At the time, I didn't really care, I mean, to be honest. Yeah. I know the Marine Corps does a pretty good job of, like, brainwashing us, which I can kind of see now. And at the time, like, anyone that was, like, Middle Eastern-looking or whatever,

I had a pretty big prejudice against. It wasn't until his third and last deployment, the one he'd just begun when he testified, that Prentiss said he started to see things differently. They sent us on this assault on this village that we were told was like this big insurgency area. And the intelligence we were given was that their cover was that they were fishermen. They said they'll say that they're fishermen. And we get to this village and it's literally full of fishermen. Like every house has like fishing gear in it, nets and tackle and all that kind of stuff.

And I think we found one AK-47 in the entire place. And you can tell it was old and probably hadn't even been used in years. I was like, what are we doing? And so what ended up happening with the fishermen? Oh, nothing. They just left. Not long after returning from Iraq, Prentiss got out of the Marines. I think the third deployment kind of made me see more of like the humanity there than I had before. And like that veil of everyone there is like evil was kind of i guess lifted

and what did you what did you see when the veil was lifted these are people that are just trying to live their life Just fishermen. Just car dealers. Engineers. Traffic officers and customs workers. Just fathers, uncles, brothers. And the people they left behind.

Ehab, Najla, and Khaled Jamal would never get justice for the deaths of their family members. Sherratt's story had won. But the other survivors still had a chance. That's next time on In the Dark. the other survivors still had a chance. That's next time on In the Dark. If you're having suicidal thoughts, you can call or text the number 988 to reach the Suicide and Crisis Lifeline. There's also a Veterans Crisis Line that you can reach by dialing that same number, 988, and then pressing 1. More resources are available online by going to 988lifeline.org or veteranscrisisline.net. If you want to listen to Episode 8 right now, ad-free, you can do that by subscribing to The New Yorker. Subscribers get the remaining episodes ad-free a week early. Go to newyorker.com

slash dark to subscribe and listen now. In the Dark is reported and produced by me, Madeline Barron, managing producer Samara Fremark, producers Natalie Jablonski and Raymond Tungakar, and reporter Parker Yesko. In the Dark is edited by Catherine Winter and Willing Davidson. Interpreting in Iraq by Aya Muthana. Additional interpreting and translation by Aya El-Shikarchi. Additional translation by Shireen Khalid. This episode was fact-checked by Linnea Feldman Emison.

Original music by Allison Leighton Brown. Additional music by Chris Julin. Our theme is by Gary Meister. Thank you. at Loewe & Loewe. Legal review by Fabio Bertone. In the Dark was created by American Public Media and is produced by The New Yorker. Our managing editor is Julia Rothschild. The head of global audio for Condé Nast is Chris Bannon. The editor of The New Yorker is David Remnick. If you have comments or story tips, you can send them to us at inthedarkatnewyorker.com.

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