thedrifter
06-27-06, 02:48 PM
July 03, 2006
Up in arms
Defense scrambles to prepare for hearings in Hamdaniya case
By Gidget Fuentes
Times staff writer
• Lance Cpl. Jerry E. Shumate Jr., 20, with premeditated murder, conspiracy, larceny, assault, housebreaking, kidnapping and obstruction of justice. He enlisted in February 2005 and was on his first deployment to Iraq.
OCEANSIDE, Calif. — After weeks of anticipation, the Article 32 hearing for seven Marine infantrymen and one Navy corpsman charged with the premeditated murder of an Iraqi man might come sooner than expected.
And lawyers for the accused say they’re in the dark when it comes to the government case.
On June 21, the Marine Corps charged eight members of Kilo Company, 3rd Battalion, 5th Marines, in the April 26 death of Hashim Ibrahim Awad, a resident of the village of Hamdaniya, Iraq. The next step would be a preliminary hearing — or hearings — to determine if there’s enough evidence for a trial.
“Everybody is up in arms because they want to hold the Article 32 next week,” David Brahms, a defense attorney in Carlsbad, Calif., who represents one of the seven Marines charged in the case, said June 22.
“I’ve heard different dates talked about, but nothing locked in,” Lt. Col. Sean Gibson, a spokesman for Marine Corps Forces Central Command, said later that day.
It is unclear whether defense teams would have sufficient time to prepare for the hearings if they are held the last week of June. Each team would include at least one military-appointed, uniformed lawyer.
Brahms, a retired brigadier general and military lawyer, said he hadn’t yet seen the official charge sheet detailing the allegations against his client, Lance Cpl. Robert B. Pennington.
Marine Corps officials may seek a single Article 32 hearing with one assigned investigating officer, Lt. Col. Paul Pugliese, a reservist. Under such an arrangement, Pugliese would hear and review evidence for all eight cases.
It’s unclear whether defense attorneys would press prosecutors for individual hearings, a move that might present a logistical burden at the base, which typically has a busy court docket of hearings and courts-martial.
An Article 32 hearing is comparable to a civilian grand jury proceeding. The investigating officer hears witnesses’ testimony, reviews evidence and may solicit additional information to help determine whether the government has sufficient evidence to support the charges. The investigating officer submits a report to the convening authority, via the commander’s staff judge advocate. The senior commander decides whether to send the case to a court-martial, dismiss any or all of the charges, or order lesser nonjudicial punishment.
According to the charges, investigators believe the men broke into Awad’s home, took him away, shot him and then tried to cover it up by planting shell casings, a stolen shovel and an AK47 assault rifle to make it appear that Awad was an insurgent.
Marine Corps officials learned of the allegations May 1, when local Iraqis raised the issue with commanders during a council meeting in Hamdaniya. After a preliminary inquiry, officials ordered a criminal investigation.
Col. Stewart Navarre, chief of staff for Marine Corps Installations-West, said the findings of the criminal investigation, which the Naval Criminal Investigative Service began May 7, drove the decisions to charge the eight men.
“We are absolutely committed to holding fair and impartial proceedings in full compliance with the Uniform Code of Military Justice,” Navarre, a former 5th Marines regimental commander, told reporters assembled outside I Marine Expeditionary Force’s headquarters building at Pendleton’s Camp Del Mar.
Bracing for a fight
The prosecution of the eight men is likely to tax the legal resources available at Camp Pendleton, which routinely has had the largest legal caseload of the Corps’ military bases. Each man will be assigned a military defense attorney and may be represented by civilian counsel.
The severity of the charges could entail the detailing of two uniformed attorneys.
Attorneys representing the men stood nearby as Navarre spoke during the press conference.
Several said they had not yet been given copies of the official charges or any parts of the investigation, and they were not happy.
“We’ve seen no evidence,” said Maj. Haytham Faraj, a defense attorney representing Cpl. Trent D. Thomas. “We have not received the charge sheets yet.”
Thomas was on his third deployment when he was pulled out of Iraq and put in the brig at Pendleton.
“He’s in good spirits,” Faraj said. “He knows this was going to happen. He understands the process.”
Rich Brannon, an attorney from Gainesville, Ga., representing Sgt. Lawrence G. Hutchins III, said he was eager to see the charges and begin the discovery process to see what evidence and witness testimonies the government has received. “Until I do that, I don’t really know” how the case will go, Brannon said.
Joseph Low, a Newport Beach, Calif., attorney representing Cpl. Marshall L. Magincalda, called the charges “baseless” and driven by Iraqis who want money.
“They get a lot of money as a result of filing a claim,” Low said.
Families who suffer deaths, injuries or damage as a result of U.S. military action could receive compensation, called “solatia” payments. Amounts vary, although a death may net $2,500.
Such payments are “traditional,” although not automatic, Navarre said.
“It is not ... an indication of wrongful death,” he added.
The maximum punishment for premeditated murder is the death penalty, although Navarre said “it is far too early to speculate” if prosecutors would seek it for any murder convictions.
The accused
The seven Marines and one Navy corpsman charged, and their charges:
• Sgt. Lawrence G. Hutchins III, 22, the squad leader with 3½ years’ experience, with premeditated murder, conspiracy, larceny, housebreaking, assault, kidnapping, obstruction of justice and three counts of making false official statements. He was on his first combat deployment in Iraq and is engaged to be married.
• Cpl. Trent D. Thomas, 24, with premeditated murder, conspiracy, larceny, housebreaking, assault, making a false official statement, kidnapping and obstruction of justice. He enlisted in October 2002 and was on his second combat tour in Iraq.
• Cpl. Marshall L. Magincalda, 23, with premeditated murder, conspiracy, larceny, assault, making a false official statement, housebreaking, kidnapping and obstruction of justice. He enlisted in November 2002 and was on his second deployment to Iraq.
• Hospital Corpsman 3rd Class Melson J. Bacos, 20, with premeditated murder, conspiracy, larceny, assault, making a false official statement, housebreaking, kidnapping and obstruction of justice. He joined the Navy in August 2003 and was on his second deployment to Iraq.
• Lance Cpl. Tyler A. Jackson, 22, with premeditated murder, conspiracy, larceny, housebreaking, assault, kidnapping and obstruction of justice. He joined the Corps in April 2005 and was on his first deployment to Iraq.
• Lance Cpl. Jerry E. Shumate Jr., 20, with premeditated murder, conspiracy, larceny, assault, housebreaking, kidnapping and obstruction of justice. He enlisted in February 2005 and was on his first deployment to Iraq.
• Lance Cpl. Robert B. Pennington, 21, with premeditated murder, conspiracy, larceny, assault, housebreaking, kidnapping and obstruction of justice. He enlisted in October 2002 and was on his second Iraq tour.
• Pfc. John J. Jodka, 20, with premeditated murder, conspiracy, larceny, assault, making a false official statement, housebreaking, kidnapping and obstruction of justice. He enlisted in May 2002 and was on his first Iraq deployment.
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Up in arms
Defense scrambles to prepare for hearings in Hamdaniya case
By Gidget Fuentes
Times staff writer
• Lance Cpl. Jerry E. Shumate Jr., 20, with premeditated murder, conspiracy, larceny, assault, housebreaking, kidnapping and obstruction of justice. He enlisted in February 2005 and was on his first deployment to Iraq.
OCEANSIDE, Calif. — After weeks of anticipation, the Article 32 hearing for seven Marine infantrymen and one Navy corpsman charged with the premeditated murder of an Iraqi man might come sooner than expected.
And lawyers for the accused say they’re in the dark when it comes to the government case.
On June 21, the Marine Corps charged eight members of Kilo Company, 3rd Battalion, 5th Marines, in the April 26 death of Hashim Ibrahim Awad, a resident of the village of Hamdaniya, Iraq. The next step would be a preliminary hearing — or hearings — to determine if there’s enough evidence for a trial.
“Everybody is up in arms because they want to hold the Article 32 next week,” David Brahms, a defense attorney in Carlsbad, Calif., who represents one of the seven Marines charged in the case, said June 22.
“I’ve heard different dates talked about, but nothing locked in,” Lt. Col. Sean Gibson, a spokesman for Marine Corps Forces Central Command, said later that day.
It is unclear whether defense teams would have sufficient time to prepare for the hearings if they are held the last week of June. Each team would include at least one military-appointed, uniformed lawyer.
Brahms, a retired brigadier general and military lawyer, said he hadn’t yet seen the official charge sheet detailing the allegations against his client, Lance Cpl. Robert B. Pennington.
Marine Corps officials may seek a single Article 32 hearing with one assigned investigating officer, Lt. Col. Paul Pugliese, a reservist. Under such an arrangement, Pugliese would hear and review evidence for all eight cases.
It’s unclear whether defense attorneys would press prosecutors for individual hearings, a move that might present a logistical burden at the base, which typically has a busy court docket of hearings and courts-martial.
An Article 32 hearing is comparable to a civilian grand jury proceeding. The investigating officer hears witnesses’ testimony, reviews evidence and may solicit additional information to help determine whether the government has sufficient evidence to support the charges. The investigating officer submits a report to the convening authority, via the commander’s staff judge advocate. The senior commander decides whether to send the case to a court-martial, dismiss any or all of the charges, or order lesser nonjudicial punishment.
According to the charges, investigators believe the men broke into Awad’s home, took him away, shot him and then tried to cover it up by planting shell casings, a stolen shovel and an AK47 assault rifle to make it appear that Awad was an insurgent.
Marine Corps officials learned of the allegations May 1, when local Iraqis raised the issue with commanders during a council meeting in Hamdaniya. After a preliminary inquiry, officials ordered a criminal investigation.
Col. Stewart Navarre, chief of staff for Marine Corps Installations-West, said the findings of the criminal investigation, which the Naval Criminal Investigative Service began May 7, drove the decisions to charge the eight men.
“We are absolutely committed to holding fair and impartial proceedings in full compliance with the Uniform Code of Military Justice,” Navarre, a former 5th Marines regimental commander, told reporters assembled outside I Marine Expeditionary Force’s headquarters building at Pendleton’s Camp Del Mar.
Bracing for a fight
The prosecution of the eight men is likely to tax the legal resources available at Camp Pendleton, which routinely has had the largest legal caseload of the Corps’ military bases. Each man will be assigned a military defense attorney and may be represented by civilian counsel.
The severity of the charges could entail the detailing of two uniformed attorneys.
Attorneys representing the men stood nearby as Navarre spoke during the press conference.
Several said they had not yet been given copies of the official charges or any parts of the investigation, and they were not happy.
“We’ve seen no evidence,” said Maj. Haytham Faraj, a defense attorney representing Cpl. Trent D. Thomas. “We have not received the charge sheets yet.”
Thomas was on his third deployment when he was pulled out of Iraq and put in the brig at Pendleton.
“He’s in good spirits,” Faraj said. “He knows this was going to happen. He understands the process.”
Rich Brannon, an attorney from Gainesville, Ga., representing Sgt. Lawrence G. Hutchins III, said he was eager to see the charges and begin the discovery process to see what evidence and witness testimonies the government has received. “Until I do that, I don’t really know” how the case will go, Brannon said.
Joseph Low, a Newport Beach, Calif., attorney representing Cpl. Marshall L. Magincalda, called the charges “baseless” and driven by Iraqis who want money.
“They get a lot of money as a result of filing a claim,” Low said.
Families who suffer deaths, injuries or damage as a result of U.S. military action could receive compensation, called “solatia” payments. Amounts vary, although a death may net $2,500.
Such payments are “traditional,” although not automatic, Navarre said.
“It is not ... an indication of wrongful death,” he added.
The maximum punishment for premeditated murder is the death penalty, although Navarre said “it is far too early to speculate” if prosecutors would seek it for any murder convictions.
The accused
The seven Marines and one Navy corpsman charged, and their charges:
• Sgt. Lawrence G. Hutchins III, 22, the squad leader with 3½ years’ experience, with premeditated murder, conspiracy, larceny, housebreaking, assault, kidnapping, obstruction of justice and three counts of making false official statements. He was on his first combat deployment in Iraq and is engaged to be married.
• Cpl. Trent D. Thomas, 24, with premeditated murder, conspiracy, larceny, housebreaking, assault, making a false official statement, kidnapping and obstruction of justice. He enlisted in October 2002 and was on his second combat tour in Iraq.
• Cpl. Marshall L. Magincalda, 23, with premeditated murder, conspiracy, larceny, assault, making a false official statement, housebreaking, kidnapping and obstruction of justice. He enlisted in November 2002 and was on his second deployment to Iraq.
• Hospital Corpsman 3rd Class Melson J. Bacos, 20, with premeditated murder, conspiracy, larceny, assault, making a false official statement, housebreaking, kidnapping and obstruction of justice. He joined the Navy in August 2003 and was on his second deployment to Iraq.
• Lance Cpl. Tyler A. Jackson, 22, with premeditated murder, conspiracy, larceny, housebreaking, assault, kidnapping and obstruction of justice. He joined the Corps in April 2005 and was on his first deployment to Iraq.
• Lance Cpl. Jerry E. Shumate Jr., 20, with premeditated murder, conspiracy, larceny, assault, housebreaking, kidnapping and obstruction of justice. He enlisted in February 2005 and was on his first deployment to Iraq.
• Lance Cpl. Robert B. Pennington, 21, with premeditated murder, conspiracy, larceny, assault, housebreaking, kidnapping and obstruction of justice. He enlisted in October 2002 and was on his second Iraq tour.
• Pfc. John J. Jodka, 20, with premeditated murder, conspiracy, larceny, assault, making a false official statement, housebreaking, kidnapping and obstruction of justice. He enlisted in May 2002 and was on his first Iraq deployment.
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