The "Pendleton '8' K/3/5 - Hamdaniya" The Death of the Marine Corps?

[thedrifter]

Fellow Marines defend actions of 2 accused in Hadithah case
Statements given about the killings contend the men followed procedure on how to clear houses of suspected insurgents.

By Mike Soraghan
Denver Post Staff Writer

Washington - Two Marines who were in the city of Hadithah the day a squad killed 24 Iraqis in November have told investigators they believe the shootings were justified and insurgents had used the slain Iraqis as "human shields."

The men's statements appear to back up assertions by the accused Marines that the killings did not arise from a thirst for revenge for a comrade killed by a roadside bomb, as some have claimed.

Military investigators are looking into the Hadithah deaths to determine whether criminal charges are warranted.

"We did everything right," said 2nd Lt. Will Kallop, who led the platoon that includes the squad at the center of the investigation.

Kallop arrived after a Marine had been killed by a roadside bomb, Marines had shot five men who were in a nearby car, and Marines "cleared" a house by tossing in grenades, then shooting Iraqis inside.

"The Marines cleared it the way they had been trained to clear it, which is frags first ... that's the way you do business when you're getting fire from a house," Kallop said.

Sgt. J.M. Laughner, who headed out to locate insurgents behind the attack as part of a "human exploitation team," told investigators the Marines he was with said they'd heard weapons being loaded inside one of the houses they cleared.

"I can't say I wouldn't have done the same thing in their situation," Laughner said. "If I hear somebody racking AK rounds and I don't know how many guys are there, I'm going to protect me and my guys. I mean, I think the insurgents more than likely use these guys as human shields and try and get away."

Both men also said they accepted the explanations of the Marines who killed five men in the car, believing that the men had appeared to be hostile forces.

"I thought, 'Hey, you are ... being engaged,"' Kallop said. "You've just been blown up, taking small-arms fire. You're in contact. You had reason to believe that they - that they were enemy."

Asked if he was aware of anything "bad" happening the day of the deaths, Laughner told the investigators, "No, just that a Marine died. That is the only bad thing."

The investigators also interviewed Lt. Col. Jeffrey Chessani, formerly of Rangely, informing him that he was being investigated for potential dereliction of duty for not probing further into the civilian deaths in Hadithah.

Chessani was later relieved of command, though the Marine Corps has never linked that action with the Hadithah killings.

Chessani said he became concerned after an Army officer was sent to investigate claims that the killings were not justified, then briefed Chessani on what he'd found.

"I was concerned that we had done something wrong and messed something up," Chessani said.

Staff writer Mike Soraghan can be reached at 202-662-8730 or msoraghan@denverpost.com.

Ellie

[thedrifter]

Hearings begin Monday for two Marines accused in Hamdania case

By: TERI FIGUEROA - Staff Writer

CAMP PENDLETON ---- Pretrial hearings for two of eight Camp Pendleton men accused of kidnapping and killing an Iraqi man this spring will start Monday, the Marine Corps announced Thursday afternoon.

The Article 32 hearings for Cpls. Marshall Magincalda and Trent Thomas will start at noon, according to the announcement, and will determine whether they should face trial.

The hearing for a third defendant, Pfc. John Jodka III, will begin at 9 a.m. Wednesday, according to defense attorney Joseph Casas, one of the two civilian attorneys representing the 20-year-old Encinitas native. Marine Maj. Jeff Nyhart could not immediately confirm that Jodka's hearing will begin Wednesday.

Four of the eight men charged in the case ---- Jodka, Thomas, Magincalda and Lance Cpl. Jerry Shumate ---- lost their bid this week to waive the pretrial hearing and head straight to trial.

Lt. Gen. James Mattis denied that request Tuesday, telling the men's attorneys in a written notice that 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.

The pretrial hearing is, for the most part, the military court equivalent to a civilian grand jury proceeding or preliminary hearing in state court.

The Article 32 hearing is a precursor to possible courts-martial of the men. The attorneys who tried to waive the hearing did so because they said they believed it would be nothing more than a formality that would end with an order sending their clients' cases to trial.

Steven Immel, the civilian attorney for Shumate, said the Marine Corps offered to start his client's hearing Tuesday. But he said that because of scheduling conflicts, he has asked that it be set for Sept. 7-9.

The pretrial hearings will be the first time that the government's case against the seven Marines and a Navy corpsman will be aired since they were charged June 21 with kidnapping, premeditated murder, and related offenses in the shooting death of 52-year-old Hashim Ibrahim Awad in Hamdania, Iraq.

Also accused in the case are Sgt. Lawrence G. Hutchins III, Hospitalman 3rd Class Melson J. Bacos, and Lance Cpls. Tyler A. Jackson and Robert B. Pennington. Each faces the possibility of the death penalty if they are ordered to courts-martial and convicted.

The group from the 3rd Battalion, 5th Marine Regiment is accused of kidnapping Awad from his home, binding his hands and feet and shooting him. The charges further allege that the 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.

Thomas and Shumate are also accused of assaulting an Iraqi man on April 10, more than two weeks before Awad's death. Hutchins is also charged with assaulting three Iraqi men during the same incident on April 10. Those charges were announced Aug. 3.

The men are being held in the base brig where they were incarcerated May 24 after they were ordered to return to Camp Pendleton from Iraq.

On Thursday, attorneys for Jodka and Thomas said the Marine Corps asked if their clients would be willing to testify against the other accused men.

"The answer is: 'Absolutely no. When hell freezes over,' " said Casas, who represents Jodka. "He is not going to testify against his squad mates, his brothers in arms."

Victor Kelley, a civilian attorney hired by Thomas' family, also said his client will not testify against the other defendants.

Jodka's father, John, wrote in an e-mail to the North County Times that he plans to attend the session, but expects the case will be ordered to trial.

"The prosecution, aided by Gen. Mattis' decision, can now proceed to a rubber-stamp decision on the record," he wrote in a portion of the e-mail in reference to the Article 32 hearing.

Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.

Ellie

[thedrifter]

August 25, 2006
Hearing for two charged in Iraqi’s death slated for Monday

By Gidget Fuentes
Staff writer

OCEANSIDE, Calif. — The preliminary hearing for two Marines — who are among seven Marines and one sailor at Camp Pendleton charged in an Iraqi’s death — is slated to begin next Monday, two weeks earlier than initially planned, Marine Corps officials said.

The Thursday announcement came two days after officials said that the top commander rejected several defense attorneys’ requests to skip the initial investigative hearings and proceed to a court-martial.

The decisions, and uncertainty over the legal process that preceded them, sent officials and defense teams scrambling to prepare for the Article 32 hearings late this week.

Cpl. Marshall L. Magincalda, whose case was tentatively set to begin Sept. 25, and Cpl. Trent D. Thomas, who had eyed an Oct. 18 start, instead will hear the evidence against them during a joint Article 32 hearing starting next Monday, said Lt. Col. Sean Gibson, a Marine Corps Forces Central Command spokesman at Camp Pendleton.

The Marine Corps has charged Magincalda and Thomas with premeditated murder, kidnapping, conspiracy and other charges for their role in the alleged shooting of an Iraqi in the village of Hamdaniya on April 26. Thomas is also facing charges of assaulting another Iraqi man on April 10.

The two Marines are among a group of eight men with Kilo Company, 3rd Battalion, 5th Marines, charged in the man’s death. The eight, known locally by supporters as “the Pendleton 8,” have been confined at the Camp Pendleton brig, where they were placed after their return from Iraq on May 25. Seven are infantrymen, one is a Navy corpsman.

Defense attorneys, who unsuccessfully petitioned to have the men released pending the hearings, lost in another quest to shorten the process. At least four defense teams, who say they are frustrated that the government has provided them little evidence and information through the normal discovery process, had sought to waive their right to the Article 32 hearing and proceed directly to court-martial.

Approval of a waiver isn’t automatic, however. On Aug. 22, Lt. Gen. Jim Mattis, commander of MarCent and I Marine Expeditionary Force, rejected the requests “in order to make a fair and impartial decision on the disposition of these cases,” said Maj. Jeffrey Nyhart, a Camp Pendleton spokesman.

The three-star general “wants an impartial analysis of the charges and evidence afforded by an Article 32 investigation,” Nyhart said.

Mattis took command last week from Lt. Gen. John Sattler, who is heading to a Pentagon assignment.

In the position, Mattis isn’t just the top operational commander. He’s also the convening authority, the senior officer in the Marines and sailor’s chain of command who will ultimately rule on whether they should be court-martialed and what the punishment, if any, should be.

During an Article 32 hearing, an investigative officer hears testimony and weighs evidence on the charges. The IO, who is usually a judge advocate, makes a recommendation to the convening authority on whether the defendant should face any of the charges at court-martial, be punished at a lesser administrative session or have the charges dropped. The final decision rests with the convening authority, with the advice of his or her command judge advocate.

As of Thursday, the hearings for the other six Kilo members remain unchanged:

• Sept. 12: Lance Cpl. Jerry E. Shumate Jr.

• Sept. 25: Lance Cpl. Robert B. Pennington, Pfc. John J. Jodka and Hospital Corpsman 3rd Class Melson J. Bacos.

• Oct. 18: Sgt. Lawrence G. Hutchins III and Lance Cpl. Tyler A. Jackson.

The denial of the waivers didn’t please the defense attorneys.

Joseph Casasc, one of two San Diego attorneys representing Jodka, said the Corps has “systematically denied” their requests for evidence, including intelligence reports and the “rules of engagement” in place at the time, funding for expert witnesses, and support to allow them to travel to Iraq to question alleged witnesses.

Attorney Jane Siegel, a retired colonel also representing Jodka, in a statement called the decision to hold the Article 32 hearing “a wasteful rubber stamp exercise.”

The decision puts Jodka “in an Orwellian situation,” Casas said in a statement issued late Tuesday. “He must endure an Article 32 hearing that promises thoroughness and impartiality, but must go to the hearing without significant evidence in his defense. He’s being asked to charge the enemy guns without his rifle and flak jacket.”

Casas said he wasn’t sure whether Jodka’s case, set for Sept. 25, would proceed earlier.

Ellie

[thedrifter]

Hearings delayed for Marines in Calif.

Pretrial hearings for two Marines accused of kidnapping and murder have been delayed, a military official said Saturday.

Cpls. Marshall L. Magincalda and Trent D. Thomas were originally due to appear in court Monday, but their attorneys asked for more time, said Camp Pendleton spokesman Lt. Col. Sean Gibson.

Magincalda is now set to appear Wednesday, and Thomas's hearing has been pushed back until October, Gibson said. Another Marine, Pfc. John J. Jodka III, is also set to appear at a hearing Wednesday.

The men are among seven Marines and one Navy corpsman accused of kidnapping and murdering an Iraqi civilian in the town of Hamdania last spring. All are in the brig at Camp Pendleton and could face the death penalty.

Thomas also is charged with assaulting an Iraqi civilian in an unrelated incident April 10.

The hearings form a key part of an Article 32 investigation, where an officer determines if there is probable cause to bring a defendant to trial.

The delay is the latest in a string of changes to the hearing dates, and further postponements are possible. Jane Siegel, an attorney for Jodka, said his defense team might request a continuance.

Investigators say the seven Marines and one sailor went into Hamdania, took a man from his home, tied him up, put him in a hole and shot him without provocation. Through their lawyers and families, the men have denied any wrongdoing.

Ellie

[thedrifter]

Curtain set to rise on Hamdania case

By: MARK WALKER - Staff Writer

NORTH COUNTY ---- The military justice spotlight will shine on Camp Pendleton on Wednesday when the first of several hearings for eight men accused of kidnapping and murdering an Iraqi man are scheduled to begin.

Article 32 hearings for Cpl. Marshall "Magic" Magincalda, a 23-year-old infantryman, and Pfc. John Jodka III, a 20-year-old Encinitas native who joined the Marine Corps in May 2005, are set to get under way at noon that day.

Magincalda, Jodka and their squad mates are charged with kidnapping 52-year-old Hashim Ibrahim Awad from his home in the Iraqi village of Hamdania, binding his feet and hands and shooting him. They are further alleged to have staged the killing scene to make it appear that he was an armed insurgent planting a roadside bomb.

Wednesday's hearings are the first in a series of such sessions that will help military authorities determine whether the charges should stand and the men face court-martials.

The incident that led to the criminal charges and the possibility of the death penalty if convicted is the 21st case brought against U.S. service personnel for the deaths of Iraqis since the March 2003 invasion of Iraq, according to information compiled by The Associated Press News and Information Research Center.

Wednesday's hearing date is a change from what the Marine Corps announced Thursday when base officials said court sessions for Magincalda and Cpl. Trent D. Thomas would begin Monday. On Saturday afternoon, a base spokesman said attorneys for the two had requested a continuance until Wednesday for Magincalda and sometime in October for Thomas.

The accusations


In documents served on the defendants when they were formally charged June 21, the Marine Corps outlined specific acts that each is alleged to have carried out.

Magincalda is accused of being one of three of the men who stole a shovel and an AK-47 assault rifle from a home near Awad's. He is then accused of entering Awad's home, seizing him and marching him to a dirt area at a nearby intersection.

He is further alleged to have helped create the hole and helped bind Awad's hands and feet.

Magincalda is also accused of firing rounds from the AK-47 after Awad was killed so that the shell casings landed near the body. Authorities allege that was part of the effort to make it appear that Awad had fired at the U.S. squad resulting in return fire that killed him.

Jodka is alleged to have fired his M-249 automatic machine gun at Awad and later lie to investigators about what had happened.

Defense attorneys and family members have consistently said that the men are innocent. Under the military justice system, the first opportunity an accused troop has to enter a formal plea is when his or her court-martial begins.

When it announced the charges, the Marine Corps also stressed that the men are presumed innocent until jurors determine otherwise.

A native of Manteca, Magincalda joined the Marine Corps in 2002 and has been awarded two Purple Hearts during his three tours of duty in Iraq.

Jodka was on his first tour of duty in Iraq when the incident took place

Charged along with Magincalda, Jokda and Thomas are Sgt. Lawrence Hutchins III, Hospitalman Melson Bacos, and Lance Cpls. Tyler Jackson, Robert Pennington and Jerry Shumate Jr.

The men are from the 2nd Platoon of Kilo Company from the 3rd Battalion, 5th Marine Regiment and have been in the base brig for nearly 18 weeks since being ordered to return to Camp Pendleton in late May.

Little faith


Magincalda's civilian defense attorney Joseph Low said Friday that he has little confidence the hearing, the most formal part of an Article 32 investigation, will result in anything other than a recommendation that the case move forward to court-martial, the military terminology for a criminal trial.

"Most of their case is in documents that don't even pertain to my client and wouldn't be permissible at trial," Low said. "My prediction is that when all is said and done, they will make a recommendation for a court-martial because that is what they always do."

Low and attorneys hired by the families of the other accused men have repeatedly complained that the Marine Corps has denied them access to evidence, that it has unfairly refused requests for money for expert witnesses, and that it turned down a request the defense be allowed to hire an investigator to travel to the scene of the alleged killing.

It was in that village sometime in the dark, early morning hours of April 26 that Magincalda and the others allegedly took Awad from his home and shot him. The charges further allege the group then staged the scene to make it appear Awad was planting a roadside bomb by placing a stolen shovel, AK-47 assault rifle and spent shells from that weapon near his body.

In addition to the civilian attorney each man has hired, the Marine Corps has assigned at least one military attorney to aid in their defense.

Joseph Casas, one of Jodka's attorneys, said last week that he also has little hope for his client's exoneration at the conclusion of the hearing.

"We are going to do the best we can on the limited amount of evidence from the government," Casas said. "Pfc. Jodka is being forced into a hearing that he waived and at this juncture, we believe it will be a rubber stamp."

The hearings are considered a key part of the Article 32 investigation process. A Marine officer will preside and at the conclusion prepare a report and recommendation for Lt. Gen. James N. Mattis, who is the convening authority as commanding general of the I Marine Expeditionary Force and all Marines in Iraq.

It will be Mattis who will ultimately decide whether the case moves forward to trial. If that occurs, a military jury will be empaneled to hear the case. If that panel convicts any of the men, their recommended punishment will go to Mattis who can accept it or set it aside and impose some other punishment.

The jury must rule unanimously for any of the men to be convicted of premeditated murder, a charge that carries the possibility of the death penalty. If that ultimately occurs, there will be automatic reviews by military appellate courts.

'Pendleton 8'


The case has generated intense interest in some quarters, particularly on conservative talk radio stations. That buzz started when the troops were confined in the brig under maximum restraint, meaning they were shackled whenever they were meeting with their attorneys and family members or in the exercise yard.

Those restraints were removed in mid-June, but that hasn't stopped supporters, who have dubbed the men the "Pendleton 8," from conducting sign-waving rallies on their behalf every Saturday in front of the base's main gate.

When Marine Corps officials announced the charges, dozens of reporters and TV crews covered the news conference that was broadcast live on CNN. More than 45 media representatives have filed a request for credentials to cover the proceedings, according to Maj. Jeff Nyhart, a base spokesman.

Base prepares


To accommodate all the reporters covering the hearings and any subsequent trials, Camp Pendleton has spent more than $700,000 creating a media center adjacent to the courtroom.

Under the military justice system, the court rules are akin to those in federal court and no videotaping, still cameras or audio recording is allowed.

A limited number of reporters will be able to observe the hearings from the courtroom with the rest observing from the media center where a closed-circuit video and audio broadcast of the proceedings will be aired.

The construction of that center has led to speculation that the Marine Corps anticipates there may be more criminal proceedings stemming from actions by Camp Pendleton troops.

That speculation arises out of the continuing investigation of troops from the base's 3rd Battalion, 1st Marine Regiment who are under scrutiny by the Naval Criminal Investigative Service for the deaths of 24 Iraqis in the city of Haditha on Nov. 19.

A separate, and as yet unreleased probe, conducted under the direction of a U.S. Army general into whether Marine commanders in Iraq covered up or failed to property investigate the initial report of those deaths is said to conclude there were irregularities.

Recent newspaper reports citing unnamed senior Defense Department officials suggest that some of the evidence in the Haditha incident may have been altered and that a Marine sergeant altered part of the official record.

No charges have been filed in the Haditha case and none of the troops under investigation has been incarcerated or placed on any kind of base restrictions.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com. See previously published stories about the Hamdania case and video clips of the June 21 news conference and interviews with family members of the accused at nctimes.com.

Hamdania timeline


April 26: Alleged murder of Hashim Ibrahim Awad in village of Hamdania, Iraq, west of Baghdad.

May 1: Local Iraqis raise incident with Marine commanders during regularly scheduled meeting. A preliminary investigation results in recommendation a probe be started by agents from the Naval Criminal Investigative Service.

May 7: Official criminal investigation begins.

May 12: Eleven Marines and a Navy corpsman from the 2nd platoon of Kilo Company from 3rd Battalion, 5th Marine Regiment based at Camp Pendleton are restricted by Camp Fallujah, Iraq.

May 24: Troops arrive back at Camp Pendleton where commanders have ordered they be sent pending results of the investigation.

May 25: Seven Marines and the Navy corpsman are placed in base brig under maximum security restraint, meaning they are shackled at the hands and feet when meeting with attorneys, family members or in brig exercise yard. Three others not incarcerated are restricted to base, an order later lifted.

June 11: Supporters of men dubbed the "Pendleton 8" conduct first of continuing series of Saturday rallies conducted on their behalf.

June 15: Shackles are removed following review by Marine authorities.

June 21: Premeditated murder, kidnapping and related charges announced against seven Marines and Navy corpsman in connection with Awad's death.

July 5: Incarcerated troops are granted more privileges allowing them to mix with the inmate population in the brig.

Aug. 3: Six Marines, including three charged in Awad's killing, are charged with assault in an unrelated incident that took place in Hamdania on April 10.

Aug. 16: Lt. Nathan Phan becomes the only commissioned officer accused in the case when three assault charges are lodged against him in connection with alleged April 10 assaults against three Iraqis.

Aug. 22: Lt. Gen. James N. Mattis, the new commanding general of Marines in Iraq and commander of the I Marine Expeditionary Force at Camp Pendleton, denies requests from four accused men to waive Article 32 hearings in Awad's killing and proceed directly to trial. Mattis says he needs the benefit of the evidence presented at the hearings to decide the best course of action.

Aug. 30: Article 32 hearings for Cpl. Marshall Magincalda and Pfc. John Jodka III are scheduled to begin in a Camp Pendleton courtroom. The hearings will help determine whether the charges should stand and the men should face trial.

Ellie

[thedrifter]

August 28, 2006
Pretrial hearing delayed

Associated Press

CAMP PENDLETON, Calif. — Pretrial hearings for two Marines accused of kidnapping and murder have been delayed, a military official said Saturday.

Cpls. Marshall L. Magincalda and Trent D. Thomas were originally due to appear in court Monday, but their attorneys asked for more time, said Camp Pendleton spokesman Lt. Col. Sean Gibson.

Magincalda is now set to appear Wednesday, and Thomas’s hearing has been pushed back until October, Gibson said. Another Marine, Pfc. John J. Jodka III, is also set to appear at a hearing Wednesday.


The men are among seven Marines and one Navy corpsman accused of kidnapping and murdering an Iraqi civilian in the town of Hamdania last spring. All are in the brig at Camp Pendleton and could face the death penalty.

Thomas also is charged with assaulting an Iraqi civilian in an unrelated incident April 10.

The hearings form a key part of an Article 32 investigation, where an officer determines if there is probable cause to bring a defendant to trial.

The delay is the latest in a string of changes to the hearing dates, and further postponements are possible. Jane Siegel, an attorney for Jodka, said his defense team might request a continuance.

Investigators say the seven Marines and one sailor went into Hamdania, took a man from his home, tied him up, put him in a hole and shot him without provocation. Through their lawyers and families, the men have denied any wrongdoing.

Ellie

[thedrifter]

Marine's attorney asks for postponement
By Phil Hayworth
San Joaquin News Service

Attorneys for U.S. Marine Cpl. Marshall Magincalda of Manteca, imprisoned at Camp Pendleton for allegedly killing an unarmed Iraqi civilian, are asking for more time to prepare for a military hearing.

Magincalda, 23, was to appear before a military magistrate Monday, along with Cpl. Trent Thomas, but their attorneys asked for a delay.

"We're not getting all the information we need to properly defend our clients, and I'm getting sick of being jerked around," attorney Joseph Low told the Tracy Press last week.

Magincalda will appear in court Wednesday. Thomas' hearing has been pushed back until October.

Low asked that his client forego the military's Article 32 hearing and move straight to trial. The Article 32 hearing is used to determine if there is enough evidence to go to trial.

But the Marines Corps last week denied four of the "Pendleton 8" servicemen's request to go straight to trial.

Since they can't avoid it, Low now wants time to fully prepare for the hearing.

Another Marine who was denied moving straight to trial, Pfc. John Jodka III, is also set to appear at a hearing Wednesday. Tracy resident Lance Cpl. Tyler Jackson, 22, is scheduled to have his Article 32 hearing Oct. 18.

The men are among seven Marines and one Navy corpsman accused of kidnapping and killing an Iraqi civilian in the town of Hamdania, Iraq, on April 28. All of them are in the brig at Camp Pendleton and could face the death penalty. Thomas also is charged with assaulting an Iraqi civilian in a separate incident April 10.

Contact reporter Phil Hayworth at phayworth@tracypress.com.

First published: Tuesday, August 29, 2006

Ellie

[thedrifter]

Marines charged with Iraqi's murder face pretrial hearings
Posted 8/30/2006 5:06 AM ET

SAN DIEGO (AP) — Hashim Ibrahim Awad was shot to death in a hole by a dusty road west of Baghdad. How the 52-year-old Iraqi came to be there is the focus of an inquiry with possible life and death consequences for seven Marines and a Navy corpsman.

Pretrial hearings for the eight soldiers charged with Awad's murder are set to start Wednesday, four months after his death. It will be the first time the facts have been explored in public.

Prosecutors claim the troops went into the rural Iraqi town of Hamdania, took Awad from his home, tied him up, put him in the hole and shot him without provocation April 26. The accused have been held in the brig at Camp Pendleton since May.

Defense lawyers say the troops are innocent and question the credibility of the Iraqis who reported the incident to U.S. authorities.

If convicted, the troops face the death penalty.

This week's hearings are part of an Article 32 probe, where an investigating officer will decide if there is probable cause to recommend bringing the defendants to trial. The decision rests with the convening authority, Lt. Gen. James Mattis.

The hearings come barely two months before midterm elections, with feelings about the war potentially determining whether Republicans maintain control of Congress.

Gary Jacobson, a political science professor at University of California, San Diego, said politicians would likely avoid campaigning on the case.

"Nobody is going to make political hay by criticizing soldiers in something like the trial that is going on at Pendleton," Jacobson said.

The charges, Jacobson said, are a black eye for the Marine Corps, which prides itself on discipline in the ranks and holding the moral high ground in wartime.

"It is bad for them politically, it's bad for them institutionally and it's bad for morale," Jacobson said. "It makes it harder to do their job if they are perceived to be acting in ways that are criminal."

Little about the case has been made public. According to charging documents, five of the troops are alleged to have shot Awad after kidnapping him from his home. All eight are being charged with murder because prosecutors say those who didn't shoot were complicit in the killing.

Investigators say the troops placed an AK-47 in Awad's hands, apparently to make it look like he was an insurgent.

Several defense attorneys have said their clients gave statements to investigators about the incident but did so under heavy-handed tactics, including threat of the death penalty.

The case may center on the troops' statements because with eight defendants, it is likely at least one will cooperate with prosecutors in return for the charges being dropped or a reduced penalty, said Gary D. Solis, a former Marine Corps prosecutor and judge advocate who teaches law of war at Georgetown University Law Center.

"My understanding is there are so many statements out there, the web has been laid," Solis said.

The case might be a prelude to another trial, in which up to 12 Marines also based at Camp Pendleton may face murder charges in the deaths of 24 Iraqi civilians in the town of Haditha in November. Several of those Marines have hired attorneys.

Ellie

[thedrifter]

Hearings to Begin for Accused Marines

By THOMAS WATKINS
The Associated Press
Wednesday, August 30, 2006; 4:36 AM

SAN DIEGO -- Hashim Ibrahim Awad was shot to death in a hole by a dusty road west of Baghdad. How the 52-year-old Iraqi came to be there is the focus of an inquiry with possible life and death consequences for seven Marines and a Navy corpsman.

Pretrial hearings for the eight soldiers charged with Awad's murder are set to start Wednesday, four months after his death. It will be the first time the facts have been explored in public.

Prosecutors claim the troops went into the rural Iraqi town of Hamdania, took Awad from his home, tied him up, put him in the hole and shot him without provocation April 26. The accused have been held in the brig at Camp Pendleton since May.

Defense lawyers say the troops are innocent and question the credibility of the Iraqis who reported the incident to U.S. authorities.

If convicted, the troops face the death penalty.

This week's hearings are part of an Article 32 probe, where an investigating officer will decide if there is probable cause to recommend bringing the defendants to trial. The decision rests with the convening authority, Lt. Gen. James Mattis.

The hearings come barely two months before midterm elections, with feelings about the war potentially determining whether Republicans maintain control of Congress.

Gary Jacobson, a political science professor at University of California, San Diego, said politicians would likely avoid campaigning on the case.

"Nobody is going to make political hay by criticizing soldiers in something like the trial that is going on at Pendleton," Jacobson said.

The charges, Jacobson said, are a black eye for the Marine Corps, which prides itself on discipline in the ranks and holding the moral high ground in wartime.

"It is bad for them politically, it's bad for them institutionally and it's bad for morale," Jacobson said. "It makes it harder to do their job if they are perceived to be acting in ways that are criminal."

Little about the case has been made public. According to charging documents, five of the troops are alleged to have shot Awad after kidnapping him from his home. All eight are being charged with murder because prosecutors say those who didn't shoot were complicit in the killing.

Investigators say the troops placed an AK-47 in Awad's hands, apparently to make it look like he was an insurgent.

Several defense attorneys have said their clients gave statements to investigators about the incident but did so under heavy-handed tactics, including threat of the death penalty.

The case may center on the troops' statements because with eight defendants, it is likely at least one will cooperate with prosecutors in return for the charges being dropped or a reduced penalty, said Gary D. Solis, a former Marine Corps prosecutor and judge advocate who teaches law of war at Georgetown University Law Center.

"My understanding is there are so many statements out there, the web has been laid," Solis said.

The case might be a prelude to another trial, in which up to 12 Marines also based at Camp Pendleton may face murder charges in the deaths of 24 Iraqi civilians in the town of Haditha in November. Several of those Marines have hired attorneys.

On the Net:

Camp Pendleton's investigations: www.usmc.mil/lapa/iraq-in...ations.htm

Ellie

[thedrifter]

US Marines charged with Iraqi murder appear at military hearings

Two US marines charged with murdering an Iraqi civilian appeared at preliminary hearings before a military tribunal at a Marines Corps base in southern California.

Corporal Marshall Magincalda, 23, and Private First-Class John Jokda, 20, are charged with killing Hashim Ibrahim Awad on April 26 in Hamdania, north of Baghdad, then altering the crime scene to make it look like the victim was an insurgent ready to plant a bomb.

The two separate hearings at the Marine Corps Base Camp Pendleton were focused on a review of the prosecution and defense evidence to determine whether the suspects should be court-martialed.

A civilian defense lawyer for Jodka, Jane Siegel, requested the prosecution's evidence to be kept confidential during this preparatory phase, saying some of the statements were "very inflammatory."

"When the cat is out with the bag, and the bell is rung, there's no way to get evidence out of a juror's head. To openly discuss the contents of the statements will completely pollute a local and national pool" of prospective jurors, she said.

But the presiding officer, Colonel Paul Pugliese, decided all the evidence would be presented in the preliminary hearings.

Sixteen pieces of evidence are expected to be presented, including testimony from Iraqis and US military investigators.

Pugliese said he would try to prevent the names of the Iraqi witnesses to be divulged at these hearing, for security reasons.

The hearing for Magincalda lasted about 15 minutes. His defense exercised its right not to present evidence, while the prosecutor submitted documents written by Colonel Robert Chester.

A total of eight troops -- seven marines and one member of the US Navy -- were charged on June 21 for the incident in Hamdania, notably for kidnapping, murder and criminal association.

All the suspects are currently detained in the prison at Camp Pendleton, the biggest US Marines base in the world, located 130 kilometers (80 miles) southeast of Los Angeles.

Ellie

[thedrifter]

Lawyers cite concerns in Iraq murder case
By Adam Tanner

Lawyers for two U.S. Marines accused of murdering an Iraqi civilian expressed concern on Wednesday over their clients' ability to get a fair trial and one criticized a pretrial hearing as a "rubber-stamping process."

In two separate hearings at Camp Pendleton north of San Diego, California, military prosecutors sought to establish that they had enough evidence to warrant a trial against Cpl. Marshall Magincalda and Pfc. John Jodka.

Jodka and Magincalda are among seven Marines and a Navy medic charged in June with premeditated murder and other crimes in the April killing, charges which could carry a death penalty.

The accused troops allegedly shot 52-year-old disabled Hashim Ibrahim Awad after dragging him from his home, then planted an AK-47 assault rifle and a shovel next to his body to make it appear he was an insurgent placing a roadside bomb.

The case from the central Iraqi town of Hamdania in central Iraq is one of a series where U.S. military personnel face allegations of murder or abuse of Iraqi civilian. Other Camp Pendleton-based Marines are also under investigation in a separate incident involving the November 19, 2005 killing of 24 civilians in Haditha.

Jodka attorney Joseph Casas criticized the hearing before it started. "Chances are this will be a rubber-stamping process," he said.

Another of his attorneys, Jane Siegel, complained that his right to a fair trial would be jeopardized by the disclosure of details given in written and videotaped statements by witnesses.

"When the cat is out of the bag and the bell is rung there is no way to get evidence out of a juror's head," Siegel said. "To openly discuss the contents of the statement will completely pollute a local and national pool."

At his pretrial hearing, Magincalda, an infantryman who has a Purple Heart, gave only short responses to the presiding officer as to whether he understood the proceedings. He looked about the military courtroom nervously.

Magincalda's attorneys had sought to hold the hearing behind closed doors. Prosecutors at the session submitted 40 items including statements from three of the charged Marines into evidence, which were not made public.

In the Jodka's case, the court was due later on Wednesday to hear testimony from criminal investigators.

The defendants in the Hamdania case have been charged with premeditated murder, larceny, conspiracy, housebreaking, assault, kidnapping and obstruction of justice, while five also were charged with making false official statements.

All eight men could face the death penalty if found guilty.

(Additional reporting Marty Graham)

Ellie

This i

[thedrifter]

Government hints at case against Marines

By THOMAS WATKINS, Associated Press Writer

Alleged confessions appear to form the crux of the government's case against seven Marines and a Navy corpsman charged with murder, kidnapping and other crimes in an Iraqi man's slaying last April.

Defense attorneys challenge the validity of the statements and say without them, the government's case is baseless.

Details about the prosecution's case emerged Wednesday during preliminary hearings for two of eight men accused in the shooting death of 52-year-old Hashim Ibrahim Awad in the village of Hamdania.

Also, in a suprise development, prosecutors said they would not seek the death penalty for one of the accused men, Marine Pfc. John J. Jodka III.

At Marine Cpl. Marshall L. Magincalda's hearing, prosecutors submitted a thick packet of evidence and pointed to three documents they say show enough probable cause for his charges to be recommended for court martial.

Prosecutor Capt. Nicholas L. Gannon claimed the evidence included a confession by squad leader Sgt. Lawrence G. Hutchins and a confessional video by Cpl. Trent D. Thomas.

What exactly they allegedly confessed to was unclear; prosecutors did not elaborate.

"Those three pieces of evidence should satisfy the investigation in its current form," Gannon said.

Magincalda's attorney, Joseph Low, said he would contest the statements. Other defense lawyers have previously said they will try to suppress any alleged confessions if the case goes to trial. They contend investigators used heavy-handed and coercive techniques to obtain them.

The so-called Article 32 hearings convened for Jodka, 20, and Magincalda, 23, are similar to preliminary or grand jury hearings in civilian courts. Under military code, the hearings determine whether the defendants face courts martial.

According to prosecutors, the Marines and sailor kidnapped Awad on April 26, bound his feet, dragged him from his home and shot him to death in a roadside hole. All have been held in the Camp Pendleton brig since May.

At Jodka's hearing, the defense argued vehemently to keep secret "inflammatory" statements made by the private and other Marines, saying they would prejudice any potential jurors in the event of a trial.

Joseph Casas, an attorney for Jodka, said the statements were the only evidence the government had.

"Take the statements out of the picture and I submit to you the government has nothing," Casas said.

It was unclear how prosecutors' position on the death penalty in Jodka's case would affect other defendants.

Laurie Levenson, a law school professor at Loyola University, said the prosecution's decision not to seek capital punishment was an unusual move possibly aimed at reducing public scrutiny of their case.

"This builds the credibility of the prosecutor," Levenson said. "They will still need to meet their burden (of proof), but I don't think their burden will be as high."

The military has not executed anyone since 1961, when a soldier was hanged for rape and attempted murder, she said.

Gary D. Solis, a former Marine Corps prosecutor and judge advocate who teaches law of war at Georgetown University Law Center, called the move "very weird" and possibly a "tactical error" by the prosecutor.

"The prosecution has nothing to do with it," Solis said of capital referrals.

The other defendants, all members of the Camp Pendleton-based 3rd Battalion, 5th Marine Regiment, are expected to have separate hearings in coming weeks. The charges include kidnapping, murder and conspiracy.

___

Associated Press Special Correspondent Linda Deutsch contributed to this report.

Ellie

[thedrifter]

August 30, 2006

First two hearings in Hamdaniya case end quickly

By Gidget Fuentes
Staff writer

CAMP PENDLETON, Calif. — The first two of eight hearings involving service members charged with the alleged murder of an Iraqi man in Hamdaniya in April ended almost as soon as they started Wednesday after defense attorneys and prosecutors for two Marines opted not to call any witnesses.

The first case ended after less than half an hour.

Government prosecutors submitted 40 pieces of evidence and documents, including statements and at least one videotaped statement, in the case against Cpl. Marshall L. Magincalda, one of seven Marines and a hospital corpsman facing premeditated murder, kidnapping, conspiracy and other charges.

Capt. Nicholas Gannon, assistant prosecutor, assured the hearing officer that the evidence “certainly supports or goes to” the charges.

However, when the hearing officer, Col. Robert Chester, asked defense attorneys if they had any evidence, lead defense attorney Joseph Low, a civilian lawyer, said no.

Minutes earlier, Chester had rejected the defense’s request to close the hearing, which was broadcast live to more than 50 journalists gathered at a media center in a nearby building. He also turned down Low’s request to waive the hearing, a request the attorney had unsuccessfully made to Marine Corps commanders recently.


“We desire to have our case in a trial court. We will wait for that,” Low said near the end of the 20-minute session.

Magincalda, a member of Kilo Company, 3rd Battalion, 5th Marines, has been held at the Camp Pendleton brig since late May along with the other seven men facing charges in the shooting death of Hashim Ibrahim Awad.

As Magincalda’s hearing concluded, a separate hearing began at a nearby building for Pfc. John J. Jodka III, who is also charged in the alleged murder. During that session, Jodka’s defense attorneys said that statements he made during an interrogation by Naval Criminal Investigative Service agents in Iraq could taint potential jury members if the case goes to court-martial.

“Some of it is very inflammatory,” Jane Siegel, one of Jodka’s defense attorneys, told the investigating officer, Col. Paul Pugliese, according to a pool report provided by an Associated Press reporter inside the courtroom.

The decision whether any of the cases should be heard at court-martial rests with the senior commander, Lt. Gen. James Mattis, who commands I Marine Expeditionary Force and Marine Corps Forces-Central Command at Camp Pendleton.

When the Jodka hearing reconvened after a lunch break, both sides agreed that they wouldn’t call witnesses to testify. However, scores of documents, including purported statements made by Jodka and some of his squad mates, were submitted for the record for Pugliese to read and review as he weighs his recommendation to the convening authority.

The lead prosecutor, Lt. Col. John Baker, announced during the session that the government wouldn’t pursue the death penalty because it was “inappropriate” in Jodka’s case, according to the pool report.

It is unknown whether Marine officials plan to seek the death penalty for any of the other seven defendants.

Jodka, 20, of Encinitas, Calif., enlisted two years ago and was on his first deployment.

The lack of witnesses, including 11 NCIS agents who initially would have testified, shortened the legal proceedings and stunted the details of the alleged murder and government’s evidence that would have surfaced during questioning by either side. Documents submitted by the government for Pugliese to weigh include statements from Lance Cpl. Robert B. Pennington, Sgt. Lawrence G. Hutchins III and Hospital Corpsman 3rd Class Melson J. Bacos, who are also charged in the case, as well as photos of an AK-47 assault rifle, maps and a hand-written letter from another Kilo Company member, Lance Cpl. Tyler A. Jackson, who is also charged in the case.

Tensions heated up when Baker made statements to sum up the government’s case and amplify some of the evidence. But Pugliese would not allow it and instead asked him to provide a recorded oral statement that he would consider, saying “I haven’t seen the evidence,” according to the pool report. “It’s more helpful to me in writing.”

However, Pugliese gave more latitude to Joseph Casas, a San Diego attorney also representing Jodka.

In a 15-minute statement, which Baker interrupted with objections at least four times, Casas implored the hearing officer to ignore the statements of Jodka and the others. “I submit to you that the government has nothing,” he told Pugliese.

“What the government says happened didn’t happen,” he said later. “At the end of the day, all we have are unreliable, uncorroborated statements and no physical evidence.”

He asked that the charges be dismissed.

Ellie

[booksbenji]

CAMP PENDLETON, California (CNN) -- The government will not seek the death penalty against one of eight servicemen charged with the shooting death of an Iraqi civilian in April, a military prosecutor said Wednesday.

Lt. Col. John Baker made the announcement during a hearing for Pfc. John J. Jodka III, 20, one of seven Marines and a Navy corpsman facing charges in the case.

"The recommendation of the prosecution team is that a capital referral not be sought in this case. It is our position that a capital referral is not appropriate," Baker said.

The preliminary hearings for Jodka and Cpl. Marshall Magincalda, 23, were held at Camp Pendleton on Wednesday. Separate hearings are to be held for each of the suspects.

Jodka's lawyers pushed for statements made by Jodka and other Marines to be kept sealed.

"To openly discuss contents will completely pollute the local and national jury pool," said Col. Jane Siegel, an attorney for Jodka.

Baker argued that it would be difficult to question the witnesses -- all members of the Naval Criminal Investigative Service -- without at least referring to some of the statements.

The eight men, members of the Camp Pendleton-based 3rd Battalion, 5th Marine Regiment, were taken out of Iraq and jailed at the base after accusations emerged that they killed Hasham Ibrahim Awad, 52, a disabled veteran of Iraq's war with Iran in the 1980s.

The troops are accused of removing Awad from his home in Hamdaniya and fatally shooting him. Jodka is accused of being one of the shooters.

But Joseph Casas, another of Jodka's attorneys, said the government has little evidence and there was no DNA connection.

"Take the statements out of the picture and, I submit to you, the government has nothing," Casas said.

Jodka's parents and grandparents were in the courtroom, which was packed with journalists. The Marine appeared to be listening carefully while his lawyers spoke, and occasionally took notes.

The judge said he would review all the evidence by Thursday afternoon and would hold a telephone conference with the lawyers.

Magincalda is accused of taking a shovel and an AK-47 from a home, walking to another house and taking Awad to a hole by the side of the road where Magincalda bound Awad's hands and feet. He also is accused of distributing shell casings around the man's body to make it look as though he was an insurgent.

He is charged with conspiracy, making false official statements, murder, larceny, assault, housebreaking, kidnapping and obstruction of justice.

All of the suspects have been in pretrial confinement at Camp Pendleton since the investigation began May 7. The investigation was ordered after Iraqi officials brought the allegations to Marine commanders.


Source: http://www.cnn.com/2006/WORLD/meast/...ain/index.html

[thedrifter]

Today's Hearings

I just returned home from JJ's Article 32. It was a long day, but it was EPIC! It was "beat up the prosecutor day" at CP, and it started with Mr. Low judo flipping Magic's Article 32 in the courtroom with the CCTV and other reporters. Mr. Low stayed just that, and the hearing lasted 15 minutes. The intent there is to NOT try the case in the media and both be inundated with media frenzy as well as polluting the jury pool with public knowledge of statements that are flatly inadmissable in a court martial. I think Mr. Low was successful.

JJ's Article 32 lasted... a little longer.... I have not seen such a thorough thrashing of a prosecutor even on TV shows... I realize it's only 1 battle in the war, but today was a good day, by any account.

Joe Low and Gen. Brahms came to watch, as well as Capt. Bass, LtCol Starita, Major Faraj as well as the Senior Defense Counsel of the USMC. There were a lot of counsel watching. We had quite a crowd in the ol' courtroom.

Jane and Joseph then proceeding to gut the prosecutor (Lt Col Baker) and even question the Investigating Officer's qualifications, which Jane used as a forum for essentially an opening statement about several issues (training, ROE, relevance of evidence, etc). Many objections were raised re: the Government evidence (35 exhibits in all) especially the fact that we cannot confront the Iraqi witnesses and the S-3 Ops officer of the AO (now in charge of the AO) sent a memo noting that most of the Iraqi witnesses could not even be contacted on the phone and no way could these be brought for testimony. Sixth Amendment Confontation Clause.....

In order to discuss the prosecution's intent to call NCIS witnesses, detail of location/specifics/personnel would need to be disclosed and then the FUN began: Jane and Joseph objected, LtCol Starita and Capt Bass objected (not even having standing in the proceeding, it didn't stop em!! much to the amusement of all in the courtroom, especially JJ's counsel), Gen Brahms stood up (and the IO just said, "OK Gen Brahms"-he didn't even need to say a thing) and then Major Faraj stopped by for an objection, too!
Oh, Lt Col Baker had to stop for lunch just to have time to change his pants!

During the lunch break, the defense and prosecution agreed to waive opening and closing statements and calling ANYONE to testify if the prosecution would just submit all its evidence in writing.

After lunch, the IO (Col Pugliese) told both counsel that he agreed that specific exhibits would be submitted in writing and that no opening nor closing arguments were needed, when Lt Col Baker noted he wanted to explain as a summary after submittal; Col Pugliese then noted "ok, give me your exhibits first, Lt Col Baker", and he started, one at a time, to give over his exhibits, to which Joseph Casas noted, "we waive the one at a time, and ask that the prosecution just give over its exhibits in one lump". Which caused the very unprepared prosecution team to fumble and stumble and get everything organized (which it wasn't). When Baker tried then to explain in summary, the IO told him to submit in writing and/or record an oral summary.

Then Joseph stepped up for a closing summary (yes, remember the prosecution was shut down?) and so the prosecution objected strenuously, but the IO told him to SIT DOWN and he would allow Joseph to continue, including explaining how there is NO admissable evidence and the IO should recommend dismissal of all charges. Slapping of the bar, walking back and forth, beseeching the court for justice for PFC Jodka- very Perry Mason. When Baker stood up to object, the IO just stared at him and then Baker stated "I guess I'll just sit down now".

The IO then noted his concern about the lack of availability of the Iraqi witnesses. This will be a strong issues for all eight guys. The proceedings closed and we may have to reopen tomorrow at 4PM.

It was a good day. I chose my son's representatives well. It is ONLY the first day of a LONG shooting war, but we started well.

PS- both JJ and Magic wore digital cammies. No brig jumsuits. Actually, the prosecution took care of it. So when it's time for all of your loved ones in the courtroom, I know they'll look like Devil Dogs, not detainees.

Now I'm going to go and work out, then I am drinking beer until it flows out my eyeballs.

John F. Jodka
Proud Father of a United States Marine
PFC John J. Jodka
SAW Gunner, 1st Squad, 2nd Platoon, Kilo Co, Darkhorse 3/5
A Consummate Professional