Second Fallujah trial postponed

[thedrifter]

Last modified Tuesday, December 30, 2008 10:23 PM PST
MILITARY: Second Fallujah trial postponed

By MARK WALKER - Staff Writer

CAMP PENDLETON ---- The Monday start of a trial for the second of three men accused of killing four unarmed captives during a 2004 battle in Iraq has been delayed.

Sgt. Jermaine Nelson was scheduled to go on trial in a base courtroom on a charge of unpremeditated murder for allegedly shooting one of the captives. No bodies were ever found in a case built almost exclusively on an admission from one of the defendants.

Nelson also is charged with three counts of dereliction of duty for failing to follow the rules of engagement, the laws of war and the proper handling of detainees.

He has pleaded not guilty.

His trial before a jury of officers and enlisted men was delayed as a result of a ruling Tuesday by the military judge presiding over the trial, Lt. Col. Jeffrey Meeks.

Nelson's attorney Joseph Low was successful in getting Meeks to approve the appointment of an expert witness for the defense who will review forensic data collected by investigators from the home where the slayings are said to have occurred.

Authorities allege that Nelson and two other Marines from Camp Pendleton killed the captives inside a Fallujah home during the opening hours of a major battle for that city on Nov. 9, 2004.

Nelson's squad leader at the time of the incident, former Marine Sgt. Jose L. Nazario Jr., was tried in U.S. District Court in August for causing the four deaths and acquitted by a civilian jury whose members later said they did not believe they should be second-guessing actions on the battlefield.

Nazario was tried in civilian court because he was out of the Marine Corps and not subject to recall. He was the first man to be tried under a 2002 law that allows for federal court prosecutions of former members of the military.

During Tuesday's hearing, Meeks ruled that a portion of a statement Nelson made to investigators in March 2006 will be admitted at trial, as will statements he made in March and August 2007.

Prosecutors are expected to subpoena Nazario to appear at Nelson's trial.

During Nazario's trial, Nelson and the third man charged in the case, Sgt. Ryan Weemer, were subpoenaed by the government but refused to testify. That resulted in contempt of court citations against each that were dismissed after Nazario was acquitted.

Weemer is the man whose statements that he was aware of "unlawful" killings during a 2006 job interview with the Secret Service led to the charges filed against the three men from Camp Pendleton's 3rd Battalion, 1st Marine Regiment.

Weemer, who also has pleaded not guilty, is expected to go on trial after Nelson. The two men remain on light duty at Camp Pendleton while awaiting trial.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

Ellie

[thedrifter]

Former Marine Jose Nazario Acquitted of All Charges in Fallujah Killings: Would Have Been First American Serviceman Convicted in Civilian Court for Battlefield Crimes
Fallujah's shadow: Accusations forever changed Nazario's life. Fellow squadmates face court martial at Camp Pendelton, could get life

By Johnny Dwyer
December 30, 2008 at 8:20pm

Last February, L.A. Weekly told the story of Jose Nazario, a Riverside police officer who had been charged with the killings of two prisoners during his service as a Marine in a 2004 battle for the Iraqi city of Fallujah. At the outset, Nazario faced a unique prosecution, one that sought to engage a civilian jury four years after a battlefield incident, to determine whether a Marine had committed war crimes in one of the U.S. military’s most violent battles in Iraq.

If the prosecution prevailed, Nazario would have become the first American serviceman convicted in a civilian court of crimes committed on the battlefield in Iraq.

From the beginning, questions of justice, honor and duty weighed heavily on his case. Nazario’s indictment, after all, had been based on accounts provided by his former squad mates, some of whom were also implicated in the execution of four prisoners. Shortly after our article’s publication, military prosecutors charged two of Nazario’s former mates, Sergeant Ryan Weemer and Sergeant Jermaine Nelson, with murder and dereliction of duty.

These men of 3rd Squad, Kilo 3/1, out of Camp Pendleton, had fought side by side and house by house throughout Fallujah. But when they returned home, they found themselves facing prosecution in a new fight for their freedom.

While some of the evidence against Nazario appeared damning — particularly Nelson’s detailed recollection of the alleged executions — the prosecution lacked fundamental forensic evidence, including the victims’ bodies and identities.

At Nazario’s trial over the summer, two members of 3rd Squad testified to hearing the shots and seeing the corpses, but not to witnessing executions. The only men alleged to have seen the killings — Nelson, Weemer and Nazario — refused to testify. Nelson and Weemer were held in contempt last June and jailed until a judge finally ordered their release on July 3. The jury was left to deliberate with secondhand accounts of the killings and the detached witness statements of Nelson and Weemer. On August 28, a federal jury acquitted Nazario of all charges.

“I knew I was going to get acquitted from day one,” Nazario says, but the experience upended his life. He and his wife, Diette, have since split and Nazario is struggling to find work in law enforcement. “I’m sort of still in limbo,” he says, traveling between Riverside, Detroit and New York searching for work. Riverside has yet to reinstate Nazario to his position as a probationary officer, despite assurances he says he received.

The remaining accused 3rd Squad members, Weemer and Nelson, face court martial next month at Camp Pendleton. Unlike Nazario, who faced 10 years if convicted, Weemer and Nelson could receive life. Camp Pendleton has hosted the prosecutions for some of the Iraq war’s most notorious alleged crimes — Haditha, Hamdania and, now, the Fallujah case.

On the eve of a new presidential administration and a new policy, the war in Iraq may soon fade in our nation’s memory. But, Marines like Nazario, Weemer and Nelson face a new sort of combat: against memories of the war that have yet to be left behind.

“I still love the Marines,” Nazario says. But when asked whether he would let his own son enlist, he replies, “I think he’d look at what happened to me and he’d be discouraged.”

From “Warrior on Trial: Jose Nazario came home from Iraq a hero for valor in the battle of Fallujah. Now they’re calling some of his actions criminal homicide,” by Johnny Dwyer

The Marines of Kilo 3/1 arrived home in glory. They had led the main assault on Fallujah and suffered an inordinate amount of the battle’s casualties. ... In Fallujah, he’d witnessed the killing of one of his men. But he’d saved another’s life. For that, he’d been decorated for valor. ... Soon after he entered the police academy, his wife became pregnant with their first child, a son. Life was coming together. “I wanted the wife, the kid, the white house, the picket fence,” he says.

That August 7 morning [in 2007], Nazario ... followed his supervisor into a sergeant’s room at the Riverside Police Department. On a table sat a piece of paper, what Nazario thought was a six-month-evaluation form. ... As Nazario leaned in to read the paper, hands seized his arms from behind. Another set of hands removed the 40-caliber Glock from his service belt and wrapped handcuffs around his wrists. Agents with the Naval Criminal Investigative Service placed him under arrest.

The criminal complaint read, plainly: “On or about November 9, 2004, in Fallujah, Iraq, defendant Jose Luis Nazario Jr., in heat of passion caused by adequate provocation, unlawfully and intentionally killed two unarmed male human beings, without malice.”

Ellie