History > 2006 > USA > Military justice (II)

Military won't seek death penalty for Marine

Updated 8/30/2006
9:01 PM ET
AP
USA Today

CAMP PENDLETON, Calif. (AP) — The government will not seek the death penalty against a Marine Corps private who is among eight service members charged with murder and other crimes in the shooting of an Iraqi civilian, a military prosecutor said Wednesday.

Lt. Col. John Baker announced the prosecution's position during a hearing for Pfc. John Jodka III, 20. It was not clear whether the recommendation applied to the six other Marines and one Navy corpsman also charged.

The hearing for Jodka and a separate one for another Marine, Cpl. Marshall Magincalda, 23, are part of the process to determine whether the defendants should face courts-martial.

The Marines and corpsman are charged in the shooting of Hashim Ibrahim Awad, 52, in the village of Hamdania. Iraqi witnesses told the military that Marines and a sailor kidnapped Awad on April 26, bound his feet, dragged him from his home and shot him to death in a roadside hole.

Jodka is accused of firing on Awad. Magincalda is suspected of binding Awad's feet and kidnapping him.

Earlier, lawyers for Jodka argued vehemently that "inflammatory" statements made by the private and other Marines should be kept secret before trial.

Retired Col. Jane Siegel, who represents Jodka, said disclosing the 16 statements about the incident during a highly publicized hearing would hurt jury selection for Jodka's expected court martial.

"To openly discuss contents will completely pollute the local and national jury pool," Siegel said. "Some of it is very inflammatory."

A separate proceeding on Wednesday for Magincalda lasted only 30 minutes.

Investigating officer Col. Robert Chester, who is hearing the case, said the defense had asked for the hearing to be closed to the public, fearing publicity might hurt Magincalda's ability to receive a fair trial.

Chester opposed the request, saying the public has a "very compelling right to hear these proceedings."

Chester said he would tell prosecutors by Friday whether he had questions about any of their evidence.

Prosecutor Capt. Nicholas Gannon urged Chester to focus on statements by three members of the squad, including an alleged confession by squad leader Sgt. Lawrence Hutchins III.

The hearings held under Article 32 of the Uniform Code of Military Justice are equivalent to civilian preliminary or grand jury hearings.

Both defendants have been held in the Camp Pendleton brig since returning from Iraq.

The Marines have the opportunity to mount a defense, call witnesses or even testify themselves. Their lawyers were expected to challenge use of the defendants' pretrial statements by contending they were subjected to heavy-handed inquiries with threats of the death penalty.

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.

    Military won't seek death penalty for Marine, 30.8.2006, http://www.usatoday.com/news/nation/2006-08-30-marines-shooting_x.htm

Military Justice

Prosecutor Calls Accused G.I.’s War Criminals

August 5, 2006
The New York Times
By PAUL von ZIELBAUER

TIKRIT, Iraq, Aug. 4 — A military prosecutor called four American infantrymen “war criminals” on Friday for killing three Iraqi men in a raid in May after handcuffing them, “cutting them loose, telling them to run and shooting them.”

But a lawyer for one of the accused soldiers said the three Iraqi men “got exactly what they deserved” and urged a military investigator to recommend that murder charges filed against the four be dismissed.

The lawyers’ statements were part of summations given at the conclusion of a military hearing to weigh the evidence against the soldiers, all members of Company C, Third Brigade Combat Team, 101st Airborne Division.

The lieutenant colonel presiding over the hearing, held during the past four days in a makeshift room at an American military base here, must determine whether to recommend that the charges proceed to a court-martial. The recommendations, made to an Army major general who will decide how to proceed, may take several days or weeks.

The soldiers have denied any wrongdoing. Three of them — Staff Sgt. Raymond L. Girouard, Specialist William B. Hunsaker and Pfc. Corey R. Clagett — said they shot the Iraqi men in self-defense after the three escaped from plastic “zip-tie” handcuffs, assaulted two of the soldiers and fled.

Specialist Hunsaker and Private Clagett are accused of spraying the three men with automatic weapons fire as they ran away, barefooted and toward no obvious cover. Sergeant Girouard is accused of devising a plan to kill the men that involved cutting their cuffs off, punching Private Clagett and cutting Specialist Hunsaker to give the appearance of their having been attacked by the men, and then allowing the two soldiers to kill the men from several yards away as they ran, pulling off their blindfolds.

A fourth soldier, Specialist Juston R. Graber, was accused of “mercy killing” one of the three Iraqi men as he lay dying, with a head shot that pierced the man’s blindfold. Specialist Graber admitted killing the man in a sworn statement given to Army investigators.

The deaths occurred during an assault on May 9 on several houses on a narrow spit of land near a lake in the volatile Sunni Arab region northwest of Baghdad. The region is regarded as among the most dangerous in Iraq for coalition forces to patrol.

Paul Bergrin, a Newark lawyer who represented Private Clagett but argued the summation for all four defendants, said they followed the rules of engagement, set by their brigade commander, to shoot all males of military age that they came across. The commander, he said, had warned their platoon that they would be attacking a known stronghold of Al Qaeda that had recently repelled a Special Forces unit and killed one of its members.

“They went to a hot L.Z.,” Mr. Bergrin said, using the military slang for landing zone, “with the thoughts that they were going to fight terrorists, Al Qaeda and insurgents.”

He said the Iraqi detainees used a large knife to cut themselves free and attack the soldiers before being shot dead. “They got exactly what they deserved,” he said.

“Sergeant Girouard does not have the type of character or integrity to orchestrate this,” Mr. Bergrin added. “Hunsaker is an excellent soldier, nothing but accolades. Private Clagett is a kid; he’s a 22-year-old, immature boy. He does not have the character and integrity to carry out this kind of immoral actions.”

The prosecutor summarizing the case against the four soldiers said their account defied reason. He said Sergeant Girouard had sent the other squad members away, leaving only Specialist Hunsaker and Private Clagett to guard the three detainees, violating tactical procedures.

“Where were these three barefooted detainees running?” Capt. Joseph Mackey asked. “There was nowhere of concealment to go.”

The rules of warfare, he said, are clear about the detention of prisoners.

“Once we detain these people, it became our duty to protect them,” he told the presiding officer, Lt. Col. James P. Daniel Jr. “Didn’t matter who they were before. Didn’t matter if they were terrorists.”

Earlier in the hearing, known as an Article 32, an Iraqi Army sergeant testified that Company C soldiers had killed an elderly man with gunfire as they approached the house containing the three men they later detained. The dead man was “about 70 to 75 years old,” said Sgt. Hamed Muhammad, one of four Iraqi soldiers with the American squad. His account may raise questions about the legality of that killing as well, because the man was not “military age.”

    Prosecutor Calls Accused G.I.’s War Criminals, NYT, 5.8.2006, http://www.nytimes.com/2006/08/05/world/middleeast/05tikrit.html?_r=1&oref=slogin

The Military

6 Marines Are Charged in Assault

August 5, 2006
The New York Times
By CAROLYN MARSHALL

Military prosecutors have charged six marines in a new abuse case involving the assault on an Iraqi civilian in Hamdaniya, the city at the heart of an separate murder case that led to charges against eight American servicemen in June.

The Marine Corps announced the new allegations late Thursday, bringing assault charges against six members of Company K of the Third Battalion, Fifth Marine Regiment, based at Camp Pendleton, Calif., where two other high-profile abuse cases are under investigation.

The latest assault case came to light in May, as the Naval Criminal Investigative Service looked into the killing of another civilian in Hamdaniya on April 26, said Lt. Col. Sean Gibson, a Camp Pendleton spokesman. That killing led to charges against a Navy corpsman and seven marines. Three of those marines are also charged in the new assault case.

According to the charge sheet, the six marines attacked the Iraqi civilian near Patrol Base Bushido in Iraq on April 10, “striking him on the face, head and torso with a force likely to produce death or grievous bodily harm.” One of the marines is also charged with assaults on two other men. He was accused of choking one civilian and placing a loaded pistol in the mouth of another.

The six men charged by the corps were identified as Lance Cpl. Saul H. Lopezromo, Pfc. Derek I. Lewis, Lance Cpl. Henry D. Lever, Sgt. Lawrence G. Hutchins III, Cpl. Trent D. Thomas and Lance Cpl. Jerry E. Shumate Jr. The latter three are confined in the Camp Pendleton brig on the unrelated charges in the April 26 murder in Hamdaniya.

Victor Kelley, a civilian defense lawyer representing Corporal Thomas for both the new assault charges and the continuing murder investigation, described the latest allegation as “false and wrong.” He said Corporal Thomas was “legally not guilty and factually innocent.”

Mr. Kelley, a lawyer with the National Military Justice Group in Birmingham, Ala., questioned the timing of the assault charges, and suggested that the case was a strategic legal maneuver by Marine Corps prosecutors, perhaps to gain information about the April 26 murder case.

“My sense is that the government is trying to put pressure on someone to save his own skin and rat on his brothers,” Mr. Kelley said. “The government is frustrated because so far, that has not happened.”

The victim of the April 10 assault has been identified as Khalid Hamad Daham, a man that one defense lawyer said was a “high value individual,” and therefore fair game.

Sergeant Hutchins was also charged with assaulting Hassam Hamza Fayall by choking him, and Ali Haraj Rbashby by placing the pistol in his mouth.

Colonel Gibson said investigations into the Hamdaniya killing and the killings of 24 Iraqis in Haditha were still open. No charges have been filed in the Haditha case, but the base has been preparing for what may be three hearings in the Hamdaniya killing. The hearings could start in late August.

    6 Marines Are Charged in Assault, NYT, 5.8.2006, http://www.nytimes.com/2006/08/05/world/middleeast/05marines.html

Military Justice

Inquiry Into Iraq Killings Focuses on Supervision of Soldiers

July 5, 2006
The New York Times
By EDWARD WONG

BAGHDAD, Iraq, July 4 — The military investigation of soldiers suspected of raping an Iraqi woman and killing her and her family is looking at whether poor oversight within the soldiers' unit helped give them the chance to operate on their own, American military officials said Tuesday.

Specifically, investigators are examining whether procedural lapses in how the unit handled convoys and traffic checkpoints gave the soldiers leeway to operate too independently outside their base, the officials said.

The procedures will be given a "top-down scrub," one of the officials added. This broad approach to the investigation leaves open the possibility that senior officers in the unit, the 502nd Infantry Regiment of the 101st Airborne Division, may be implicated later.

At least four soldiers are already being investigated, including a recently discharged man, Steven D. Green, 21, who had been a private. He was arrested in North Carolina on Monday and charged with rape and the murders of four Iraqis on March 12 in a farming area around Mahmudiya, 20 miles south of Baghdad. Investigators say they believe that Mr. Green was the ringleader, a military official said Tuesday.

In the hours before the deaths, the soldiers were stationed at a traffic control point about 600 feet from the victims' home, apparently operating with just a single vehicle, according to an American military official and a federal affidavit filed by prosecutors on Monday.

That violates military regulations here. Because of the dangers of Iraq, it is virtually unheard of for a military vehicle to be allowed to leave an American base without being accompanied by at least one other. So a central question is: how were these soldiers able to get out and operate on their own, presumably in a Humvee?

The same issue is under scrutiny in an investigation into the deaths of three soldiers from the same unit last month. Those soldiers were traveling in a single vehicle in the area of Yusufiya, an insurgent stronghold near Mahmudiya, when they were ambushed by guerrillas, military officials have said.

One was killed on the spot and the others abducted; the mutilated bodies of the kidnapped men were found days later along a road booby-trapped with bombs.

American officials say they were from the same platoon of the 502nd Infantry as the soldiers under suspicion for the rape and murders in March. In fact, senior officers first learned of the crime when a soldier stationed at the traffic checkpoint on March 12 talked about it in a counseling session after the two mutilated bodies were discovered, the affidavit says.

So far, investigators have not drawn a direct link between the crime and the Yusufiya ambush.

Maj. Gen. James D. Thurman, the commander of the Fourth Infantry Division, to which the 502nd Infantry is attached for this tour, ordered the investigation.

"We do not as a rule travel as a single-vehicle convoy," said a military official who, like other officials, spoke on the condition of anonymity because of the continuing investigation.

The official said investigators were focusing on procedures in the 502nd, not within the entire Fourth Infantry Division. The 502nd is a traditional title for the Second Brigade Combat Team of the 101st Airborne Division.

Mr. Green and the other soldiers are suspected of involvement in raping the Iraqi woman and killing her, her younger sister and their mother and father. The mayor of Mahmudiya has said the rape victim, Abeer Qasem Hamzeh, was only 15, and had multiple bullet wounds and burn marks. The soldiers are suspected of trying to burn her body to cover up the crime and then setting the house on fire.

For a year and a half before he went into the Army, Mr. Green lived with his father, John Green, in an apartment in Midland, Tex., according to a neighbor there, Albert Rodriguez. Mr. Green, he said, was "a normal kid; he didn't look like he would hurt a fly." Mr. Rodriguez added that the young man seemed "more like a follower than a leader."

The Iraqi justice minister, Hashim al-Shibli, said in an interview on Tuesday on Al Arabiya television that the United Nations should ensure the soldiers are properly punished.

Shortly after the murders, three Iraqi men approached another American traffic checkpoint in the area and told the soldiers that an Iraqi family had been killed in their home, the affidavit says.

"It was originally believed that anti-Iraqi forces or other entities committed the offense," the document says, using the military's term for insurgents.

The Mahmudiya area is one of the most volatile places in Iraq, with a constellation of armed groups vying for dominance. It would not have been unusual for Iraqis discovering the bodies to assume that other Iraqis had committed the crime rather than Americans.

Maj. Todd Breasseale, a spokesman for the American command, said in a telephone interview that the three other soldiers implicated in the investigation, whose names have not been released, were confined to base and had not been charged yet.

The affidavit says four soldiers, including Mr. Green, took part in violence at the house, while a fifth was told to stay at the vehicle to monitor the radio. Mr. Green and one other soldier took part in the rape, the document says. All four had been drinking beforehand, according to the document.

The American military announced the investigation last week, but reaction among Iraqis has been muted. The kind of outrage that accompanied the Abu Ghraib scandal is almost nowhere to be seen.

The inquiry into the possible executions of 24 Iraqi civilians in Haditha by marines has also brought the same lukewarm response. More than three years into the war, many Iraqis say they are no longer surprised by abuses on the part of American troops. Iraqis seem more concerned these days about spiraling sectarian violence.

But there were some, like the justice minister, Mr. Shibli, who called for retribution on behalf of the victims in Mahmudiya.

"The American soldiers violated everything," said Omar al-Jubouri, the human rights officer for the Iraqi Islamic Party, a leading Sunni Arab political group.

"All the trials conducted by the Americans have so far been theater," he added. "We demand they impose punishments that will prevent such crimes."

Omar al-Neami contributed reporting from Baghdad for this article, and Barbara Novovitch from Midland, Tex.

    Inquiry Into Iraq Killings Focuses on Supervision of Soldiers, NYT, 5.7.2006, http://www.nytimes.com/2006/07/05/world/middleeast/05military.html

The Military

8 U.S. Servicemen Charged in Death of an Iraqi Civilian

June 22, 2006
The New York Times
By CAROLYN MARSHALL

CAMP PENDLETON, Calif., June 21 — Military prosecutors on Wednesday charged seven marines and a Navy corpsman with premeditated murder, kidnapping and conspiracy in the shooting death of an Iraqi civilian in April.

The charges against the eight men are among the first criminal counts brought in connection with several recent high-profile episodes in which marines and other servicemen have been accused of killing Iraqi civilians in unprovoked attacks.

All eight men, members of Company K in the Third Battalion, Fifth Marines, based here, were part of the same squad serving in Hamdania, a Sunni stronghold west of Baghdad. Additional charges included assault, unlawfully entering a dwelling, larceny and, in all but two of the cases, making a false official statement to the authorities.

The eight men charged by the Marine Corps were identified as Sgt. Lawrence G. Hutchins III, Cpl. Trent D. Thomas, Cpl. Marshall L. Magincalda, Lance Cpl. Tyler A. Jackson, Pfc. John J. Jodka, Lance Cpl. Jerry E. Shumate Jr. and Lance Cpl. Robert B. Pennington, all marines, and Hospital Corpsman Third Class Melson J. Bacos.

The charges against the marines in California came as the military in Iraq on Wednesday charged a fourth soldier with premeditated murder and conspiracy in the death of three detainees on May 9.

The soldier, Specialist Juston R. Graber, is the fourth serviceman from the 101st Airborne Division's Third Brigade Combat Team to be accused in connection with the shootings near the Muthanna Chemical Complex along the Tharthar Canal, in southern Salahuddin Province, a restive Sunni Arab region in north-central Iraq. The four soldiers are also accused of threatening a fellow American soldier with death if he reported the shootings.

As military authorities laid out their case here, the second-highest-ranking officer in Iraq, Lt. Gen. Peter W. Chiarelli, continued to review the findings of a formal report into whether marines covered up the circumstances surrounding the deaths of 24 civilians at Haditha last year.

Marine officials and members of Congress who have been briefed on the Hamdania case have previously said that evidence against the marines and sailor suggested that the men entered the town on April 26 in search of insurgents.

According to charges released by the authorities here, the marines are accused of dragging the Iraqi civilian, Hashim Ibrahim Awad, from his home, binding his hands and feet and shooting him. The charges say that the marines then stole a shovel and an AK-47 assault rifle and planted them next to his body to make it look like he was an insurgent digging a hole for a roadside bomb.

Several defense lawyers who attended the news briefing at Camp Pendleton said they had yet to see the formal charges. Maj. Haytham Faraj, a military lawyer assigned to defend Corporal Thomas, said in an interview that he and other defense lawyers were concerned that the servicemen might have harmed their cases by talking to investigators from the Naval Criminal Investigative Service.

"Our position is that there was a lot of information coerced from them during N.C.I.S. questioning," Major Faraj said.

Col. Stewart Navarre, chief of staff of the Marine Corps Installations West, said at the news conference here that American military officials were first alerted to the incident on May 1 after Iraqis discussed it with the Marine leadership at a regularly scheduled meeting.

The Naval Criminal Investigative Service began its investigation on May 7. As a result, Colonel Navarre said, 11 marines and one sailor were removed from the unit and reassigned to battalion headquarters at Camp Fallujah in Iraq, before returning to Camp Pendleton.

Eight of the men were confined here on May 24, in some cases shackled. The other four men, all marines, remain under investigation and have been restricted to the base but have not been charged, Colonel Navarre said.

Eric Schmitt contributed reporting from Washington for this article.

    8 U.S. Servicemen Charged in Death of an Iraqi Civilian, NYT, 22.6.2006, http://www.nytimes.com/2006/06/22/world/middleeast/22military.html

Officer Didn't See Soldier Hurt Prisoners

June 1, 2006
By THE ASSOCIATED PRESS
Filed at 12:09 a.m. ET
The New York Times

FORT BLISS, Texas (AP) -- The captain of an intelligence battalion testified Wednesday that she didn't see any wrongdoing by the last soldier charged in the Army's investigations of prisoner abuse in Afghanistan.

Pfc. Damien Corsetti is accused of hitting, kicking and threatening to sexually assault detainees at the American prison at Bagram Air Field. Charges include assault, maltreatment, dereliction of duty, and using hashish and drinking alcohol.

Capt. Carolyn A. Wood, who ran Corsetti's intelligence battalion in Afghanistan and was in charge of interrogations at Abu Ghraib, Iraq, when prisoners were abused there, testified that she never saw Corsetti do anything wrong at the Bagram prison. She also told an Army jury that no one reported problems with him.

Wood was called by both the prosecution and the defense. She was granted immunity from prosecution, lawyers said.

Defense witnesses are expected to return to the stand Thursday.

The prosecution rested its case Wednesday afternoon, after calling nine witnesses and reading aloud a nearly 50-page deposition taken from Ahmed al-Darbi, a terrorist with ties to al-Qaida and the brother-in-law of one of the Sept. 11 hijackers.

The deposition was taken at a detention center in Guantanamo Bay, Cuba. Al-Darbi picked Corsetti out of a photo lineup and told investigators that Corsetti abused him.

Defense lawyers, who have argued that Corsetti's conduct was blameless, pointed out Wednesday that there were no ''hard and fast'' rules about how to interrogate prisoners at the prison. They also described al-Darbi as a dangerous terrorist trained to make up stories about U.S. soldiers.

Corsetti is the last of 15 soldiers to face charges in the abuse investigation launched after two detainees died in 2002.

The counter-intelligence soldier, with the 519th Military Intelligence Battalion at Fort Bragg, N.C., is not charged with abusing those two.

    Officer Didn't See Soldier Hurt Prisoners, NYT, 1.6.2006, http://www.nytimes.com/aponline/us/AP-Afghanistan-Prisoner-Abuse.html?_r=1&oref=slogin