thedrifter
08-24-06, 08:10 AM
Start of hearings in Hamdania case unclear
By: MARK WALKER - Staff Writer
CAMP PENDLETON ---- A refusal by the Marine Corps to waive pretrial hearings for four of eight Camp Pendleton men accused in the April 26 slaying of an Iraqi has created uncertainty over when the first court sessions will begin.
In his order denying the waiver request issued Tuesday, Lt. Gen. James N. Mattis said attorneys should be prepared for the first of those hearings to start Monday or to request a continuance to a later date.
The hearing will be the first time that the government's case against the men will have been aired since they were charged June 21 with premeditated murder, kidnapping and related offenses in the shooting death of 52-year-old Hashim Ibrahim Awad.
Earlier this month, Marine Corps officials said the first hearings would start Sept. 12. A base spokesman said Wednesday that the schedule should be clarified today or Friday.
"To the best of our knowledge, the tentative date for the first hearing is Sept. 12 and we don't know if that will be rescheduled," Lt. Col. Sean Gibson said.
The senior prosecutor in the case, Lt. Col. John Baker, has asked the attorneys to let him know as soon as possible if they want the hearing to start Monday or on Sept. 12 or 26.
Jane Siegel, an attorney for Pfc. John Jodka of Encinitas, said she and other defense attorneys would be meeting today to discuss their response and related moves in the wake of Mattis' denial of the waiver request.
Jodka, Sgt. Lawrence G. Hutchins III, Hospitalman 3rd Class Melson J. Bacos, Cpls. Trent Thomas and Marshall Magincalda, and Lance Cpls. Tyler A. Jackson, Jerry E. Shumate Jr. and Robert B. Pennington each face the possibility of the death penalty if they are ordered to trial and convicted.
The Marines are accused of kidnapping Awad from his home, binding his hands and feet and shooting him. The charges further allege that the killing scene was staged to make it appear that Awad was planting a roadside bomb and had fired at the servicemen with an AK-47 assault rifle.
Those who sought to waive their Article 32 hearing were Jodka, Shumate, Thomas and Magincalda. The hearing is the military equivalent of a grand jury proceeding and is conducted to determine if charges should stand and be moved forward to trial.
Siegel, who spent more than two decades in the Marine Corps as a lawyer before leaving the service and going into private practice, said Mattis' denial of the waiver request was unprecedented in her experience.
"The case law does not have a single example of a convening authority rejecting a waiver that was contested," she said.
Attorneys who requested the waiver said they did so because they believed the hearings would be nothing more than a formality that would conclude with a directive that their clients stand trial.
In his denial, however, Mattis said the hearings were necessary to "make a fair and impartial decision on the disposition of these cases." Mattis is the senior military official presiding over the case, a task he inherited this month when he assumed command of Marine Corps forces in Iraq and the Camp Pendleton-based I Marine Expeditionary Force.
The accused men are from the base's 3rd Battalion, 5th Marine Regiment.
Joseph Casas, who along with Siegel has been hired by Jodka's family to represent the 20-year-old private, said the Article 32 hearing is stacked against his client because of the Marine Corps' denial of access to crucial evidence to prove his innocence.
"The general's statement files in the face of the grim reality in this case," Casas said in a prepared statement. "Pfc. Jodka cannot possibly have a thorough and impartial hearing without access to the evidence the government has persistently and unilaterally withheld from the defense."
The denials cited by Casas include refusal of access to Iraqi witnesses that will be cited in the prosecution's case, access to the alleged crime scene and funding assistance to hire expert witnesses.
Casas wrote that those denials mean Jodka is "being asked to charge the enemy guns without his rifle and flak jacket."
Camp Pendleton has created a media center near the courtroom for reporters to cover the Article 32 hearings and any subsequent court-martials should they be ordered.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
Ellie
By: MARK WALKER - Staff Writer
CAMP PENDLETON ---- A refusal by the Marine Corps to waive pretrial hearings for four of eight Camp Pendleton men accused in the April 26 slaying of an Iraqi has created uncertainty over when the first court sessions will begin.
In his order denying the waiver request issued Tuesday, Lt. Gen. James N. Mattis said attorneys should be prepared for the first of those hearings to start Monday or to request a continuance to a later date.
The hearing will be the first time that the government's case against the men will have been aired since they were charged June 21 with premeditated murder, kidnapping and related offenses in the shooting death of 52-year-old Hashim Ibrahim Awad.
Earlier this month, Marine Corps officials said the first hearings would start Sept. 12. A base spokesman said Wednesday that the schedule should be clarified today or Friday.
"To the best of our knowledge, the tentative date for the first hearing is Sept. 12 and we don't know if that will be rescheduled," Lt. Col. Sean Gibson said.
The senior prosecutor in the case, Lt. Col. John Baker, has asked the attorneys to let him know as soon as possible if they want the hearing to start Monday or on Sept. 12 or 26.
Jane Siegel, an attorney for Pfc. John Jodka of Encinitas, said she and other defense attorneys would be meeting today to discuss their response and related moves in the wake of Mattis' denial of the waiver request.
Jodka, Sgt. Lawrence G. Hutchins III, Hospitalman 3rd Class Melson J. Bacos, Cpls. Trent Thomas and Marshall Magincalda, and Lance Cpls. Tyler A. Jackson, Jerry E. Shumate Jr. and Robert B. Pennington each face the possibility of the death penalty if they are ordered to trial and convicted.
The Marines are accused of kidnapping Awad from his home, binding his hands and feet and shooting him. The charges further allege that the killing scene was staged to make it appear that Awad was planting a roadside bomb and had fired at the servicemen with an AK-47 assault rifle.
Those who sought to waive their Article 32 hearing were Jodka, Shumate, Thomas and Magincalda. The hearing is the military equivalent of a grand jury proceeding and is conducted to determine if charges should stand and be moved forward to trial.
Siegel, who spent more than two decades in the Marine Corps as a lawyer before leaving the service and going into private practice, said Mattis' denial of the waiver request was unprecedented in her experience.
"The case law does not have a single example of a convening authority rejecting a waiver that was contested," she said.
Attorneys who requested the waiver said they did so because they believed the hearings would be nothing more than a formality that would conclude with a directive that their clients stand trial.
In his denial, however, Mattis said the hearings were necessary to "make a fair and impartial decision on the disposition of these cases." Mattis is the senior military official presiding over the case, a task he inherited this month when he assumed command of Marine Corps forces in Iraq and the Camp Pendleton-based I Marine Expeditionary Force.
The accused men are from the base's 3rd Battalion, 5th Marine Regiment.
Joseph Casas, who along with Siegel has been hired by Jodka's family to represent the 20-year-old private, said the Article 32 hearing is stacked against his client because of the Marine Corps' denial of access to crucial evidence to prove his innocence.
"The general's statement files in the face of the grim reality in this case," Casas said in a prepared statement. "Pfc. Jodka cannot possibly have a thorough and impartial hearing without access to the evidence the government has persistently and unilaterally withheld from the defense."
The denials cited by Casas include refusal of access to Iraqi witnesses that will be cited in the prosecution's case, access to the alleged crime scene and funding assistance to hire expert witnesses.
Casas wrote that those denials mean Jodka is "being asked to charge the enemy guns without his rifle and flak jacket."
Camp Pendleton has created a media center near the courtroom for reporters to cover the Article 32 hearings and any subsequent court-martials should they be ordered.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
Ellie