Skip to comments.Military justice under spotlight in Hamdania case - 'Pendleton 8' - 7 Marines, 1 Navy Corpsman
Posted on 06/25/2006 9:53:59 AM PDT by NormsRevenge
The military justice system is taking center stage now that murder and kidnapping charges have been filed against seven Camp Pendleton-based Marines and a Navy corpsman in the alleged premeditated abduction and slaying of an unarmed Iraqi man.
The case against the Kilo Company members from the 3rd Battalion, 5th Marine Regiment is one of the most serious to arise out of the U.S. presence in Iraq, and military officials are taking the first procedural steps toward a possible court-martial for the accused.
In many respects, the military's system of justice works the way it does in the civilian world. If the charges are serious ---- as they are in this case ---- there is a trial. There is a jury and a judge and there are attorneys on both sides of the table. Proof of guilt must be made beyond a reasonable doubt, and the verdict can be appealed.
But there are major differences between what happens in a military court and a civilian court. One big one: except in possible death penalty cases, it takes only a vote of two-thirds of the jury, called a panel, to convict. And members of the jury can pose questions for the judge to ask witnesses, something not allowed in civilian courts.
Unlike civilian court juries, court-martial panel members vote by secret written ballot to reach a verdict.
Another big difference is that a military commander, not a prosecutor or grand jury, decides whether charges should be brought against an accused person. It's also in the hands of the commander to decide whether a case should be handled administratively or through a court-martial, and whether the government should pursue the death penalty for anyone convicted of premeditated murder.
In the case now being prosecuted at Camp Pendleton, the eight accused men ---- the highest-ranking among them is a sergeant ---- could face the death penalty if convicted.
Military officials charged them Wednesday with premeditated murder, kidnapping, conspiracy and related offenses in the April 26 alleged abduction and slaying of 52-year-old Hashim Ibrahim Awad in the village of Hamdania.
The defendants charged under the Uniform Code of Military Justice are Sgt. Lawrence G. Hutchins III, 22; Cpl. Trent D. Thomas, 24; Hospitalman 3rd Class Melson J. Bacos, 20; Pfc. John Jodka III, 20; and Cpl. Marshall L. Magincalda, 23; Lance Cpl. Tyler A. Jackson, 22; Lance Cpl. Jerry E. Shumate Jr., 20; and Lance Cpl. Robert B. Pennington, 21.
The accusations are that the defendants sought to cover up the alleged crime by staging the scene with a shovel and an automatic weapon to make it appear Awad was an insurgent planting a roadside bomb.
The men have not yet been arraigned ---- which means they have not yet entered a plea. But their attorneys and family members say they are innocent of the charges.
Kathleen Duignan, executive director of the National Institute of Military Justice in Washington, said in a phone interview last week that in some instances the accused get more rights in the military justice system than in civilian justice.
Next step: Article 32 hearing
Now that charges have been filed, the accused men who have been in custody since May 12 are heading to the next step in the military justice system, an Article 32 hearing.
During the hearing, the prosecution must show an investigating officer there is sufficient evidence to conclude that a crime was committed and whether the accused person committed that crime.
Article 32 hearings have been likened to a grand jury hearing and a preliminary hearing in the civilian justice system.
Like a preliminary hearing, but unlike a grand jury hearing, prosecutors may bring in witnesses and present evidence, and the defense may cross-examine those witnesses and bring in their own evidence in the hope of getting the charges dropped.
An Article 32 hearing is overseen by an investigating officer tapped from within the military service, Duignan said.
Jane Siegel, who is a private co-counsel for Jodka, said Thursday that prosecutors have indicated that the Article 32 hearings may move forward either as separate hearings for each of the accused, or as joint hearings, whichever the defense counsel requests.
A former judge advocate said last week it's more than likely there will be joint hearings. The reason is that Iraqi witnesses may be brought to the United States to testify. If the hearings were conducted separately for each man, that could possibly require repeated trips, said 26-year Marine Corps veteran and former military judge Gary Solis in a phone interview from his Washington-area home last week.
At the end of the hearing, Duignan said, the investigating officer will write a report including a recommendation on whether the case should continue.
For the Hamdania eight, that report will go to Marine Lt. Gen. John F. Sattler, commanding general of U.S. Marine Corps Forces, Central Command. In the Hamdania case, Sattler is considered the convening authority, the officer who calls the shots in the lead-up to a trial.
It will be Sattler's decision whether the accused will move on to face a court-martial. If he chooses to move forward, a trial judge will be randomly picked from a pool of military jurists, Solis said.
Based on the facts brought out in the Article 32 hearing, Sattler also will make a decision on whether the trial will be conducted as a death penalty case, in which instance there must be 12 jurors.
If Sattler sends the case to a court-martial, the eight men will be formally arraigned and have their first opportunity to enter a plea.
At that point, jury selection in the trial would begin immediately, Duignan said.
But even if the Hamdania defendants have a joint Article 32 hearing and the case goes to trial, they will in all likelihood be tried separately, Siegel said.
There is also the issue of a speedy trial. In a court-martial, the government has 120 days to bring the accused to trial.
In this case, Siegel said, that 120-day clock began ticking not with the announcement of the charges on Wednesday but when the men were first detained by the military ---- on May 12 when they were all still in Iraq.
There is always the possibility that either side will ask for the proceedings to be postponed for a variety of reasons.
The panel would be chosen by Sattler based on criteria set out in the rules for courts-martial, including factors such as age and experience.
The panels are usually made up of military officers. If the accused is an enlisted person, as are all eight defendants in the Hamdania case, he or she can request that the jury include enlisted members.
There are limitations. The number of enlisted people who can sit on a court-martial jury is capped at one-third of the panel.
But an enlisted man or woman who chooses to have enlisted personnel on the jury may be making a bad move, said Solis, who teaches the law of war at the Georgetown University Law Center in Washington.
"I would advise against it," Solis said. "In my experience, enlisted men are at least as hard as any officer; they do not provide a break to the accused."
To convict a defendant of murder, all 12 jurors must agree.
After a verdict is reached, the sentencing phase of the trial begins, using the same panel members.
The prosecution and defense may call witnesses and the accused may testify. After hearing arguments on sentencing, panel members deliberate on the appropriate penalty and vote on what that should be by secret ballot.
If the sentence is for more than 10 years, three-fourths of the jurors must approve it. If less than 10 years, a two-thirds majority is needed. A sentence of death requires a unanimous vote.
In death penalty cases, jurors also must vote unanimously that one or more specified aggravating factors exist to justify the death penalty and that they substantially outweigh any extenuating or mitigating circumstances.
After a verdict and sentencing, the military requires a review of the case.
In the Hamdania case, that would start with Sattler, who can either approve the findings and sentence or can change them.
Sattler could not change a not guilty verdict nor increase the punishment. But he could reduce the charges or the penalty. For example, if the panel decides by unanimous vote to give the death penalty, Sattler could reduce it to prison time.
Once the convening authority has made a decision in more serious cases such as murder, the military Courts of Criminal Appeals automatically reviews the case. An appeals court can correct any legal errors it may find in cases, as well as reduce what it considers to be excessive sentences.
If the convening authority and the Courts of Criminal Appeals approve a death sentence, the president of the United States then must approve it or commute it to prison time.
Former judge advocate prosecutor Duignan said the appeals process can take several years, and there are now several U.S. servicemen who are imprisoned who have been sentenced to death.
According to the Web site, www.deathpenaltyinfo.org, there are now nine members of the U.S. military who are on death row.
No member of the U.S. military has been executed since 1961, when Army Pvt. John Bennett was hanged for the rape and attempted murder of young Austrian girl in Germany.
Duignan said she believes it's "unlikely" any of the men who have been charged in the Hamandia would face the death penalty if they go to court-martial and are convicted.
"It's my gut feeling that the Marines who are going to be judging the accused are going to be somewhat sympathetic to the stress of combat the accused were going through," in Iraq, Duignan said.
Death sentences in the military are now carried out by lethal injection.
We all need to keep a very open mind about this.
2 U.S. Soldiers Charged in Iraq Killing
The Associated Press
The U.S. military has charged two soldiers in the February killing of a civilian near Ramadi, the military said Sunday.
Spec. Nathan B. Lynn was charged with one count of voluntary manslaughter for allegedly shooting an unarmed man on Feb. 15, the military said.
Lynn and Sgt. Milton Ortiz Jr., both of the 1st Battalion, 109th Infantry (Mechanized) of the Pennsylvania National Guard, were each charged with one count of obstructing justice for allegedly conspiring with another soldier who allegedly put an AK-47 near the body of the man in an attempt to make it look as though he was an insurgent.
Ortiz also was charged with one count of assault and one count of communicating a threat for a separate incident on March 8, when he allegedly placed an unloaded weapon against the head of an Iraqi man and threatened to send him to prison, the military said.
Both soldiers are being held in Baghdad while awaiting Article 32 hearings to determine if there is sufficient evidence to proceed to a court-martial.
We also need to make sure that all the accused receive adequate legal representation and the media and activists groups are not allowed to continue to wildly accuse and try our servicemen in the public arena without suspicions being raised about their past tendencies and motives..
But remember, it works both ways. I hope these guys aren't guilty. I personally don't believe anything until I have seen it and took pictures of it so I can go back and see what I thought I saw.
Remember, the source of the information is from other soldiers that were there and not MSM.
That is why I am loathe on those who have already portrayed them as killers without benefit of any evidence being presented to this point, hence my reference to media whackjobs and some activists that we already have previously seen operating in cohort with leftist orgs or a stheir underlings who are only out to undercut the efforts abroad to fight terrorism and radical Islamists.
Thanks for posting this. I've had a hard time explaining to some of my civilian friends that the military justice system is probably more fair than the civilian justice system.
The Iraqis claim to support our efforts, while at the same time many of their people support the insurgency that is responsible for the mutilation of our troops,and someone dares to sugjest that we need to keep an open mind to these charges?
BS!!!! "OUR young men" aren't guilty of anything but of fighting a war that our country has to win.
Why I'm outraged that these charges have been made against any of our servicemen in the first place!
We send our young men(who are VOLLENTEERS IN THE FIRST PLACE) into a hell hole of backstabbing 3rd world cutthroats,where they don't know who they can trust among the civilians, can't tell who is a friendly civilian or a jihadist, and you honestly don't expect bad things or accidents to happen?
Why do we expect our soldiers to be so damn perfect, when they are fighting such low life troglodytes, who don't play by the same liberal rules of engagement that our nation has said our boys must adhere to, and the rest of the screwed up world demands?
Doesn't anyone realize that we are expecting our boys to assume a higher degree harm to themselves, than that of the enemy? Can you people not see the utter nonsense in all this?
Our servicemen are not criminals, and we should be totally disgusted and up in arms that anyone would dare say anything to the contrary.
Did anyone happen to notice the age of the Servicemen charged? Not a one of them over the age of 24. But they are over there facing terrible circumstances for the sake of our safety, encountering horrors we can only imagine, and we are expected to consider the charges of some Iraqi(probably terrorist sympathizer) that our men are guilty of atrocities against the peaceful Iraqi people?
I for one am tired of allowing Government Bureaucrats, Politicians, and agenda driven media types, to use our own people, as sacrificial lambs, so that the gods of political correctness, might be satisfied, and perhaps think better of us for doing so. To even consider doing so is perhaps the greatest level of stupidity that a nation can achieve.
Sacrificing our own is not Expedient, and is in fact just as effective a position as laying down and blowing yourself up!
"If the charges are serious ---- as they are in this case ---- there is a trial."
No. It's not the charges. It's the evidence. Under the charges proposition anyone could be charged even if there wasn't any evidence. That's how the bald senator from Vermont views the world but not so the U.S. military I hope.
True in my experience. In the one Court I sat on, trying an AF enlisted man who had been picked up in a drug bust by civilian cops, the enlisted members of the Court were adamant about throwing the book at him. He worked in a bomb-loading unit of a fighter wing. Not the kind of place where you want a druggie. I'd have been content just to give him a Dishonorable Discharge, since he apparently was already a druggie when he enlisted, but we eventually went for the maximum punishment allowed. A higher command reduced that to a DD.
Which leads me to believe that the shooting of the (So called) civilian in question was accidental. If these allegations by other soldiers who witnessed the act are indeed true, then I conclude that the accused were more likely guilty of trying to cover up for an accidental shooting of a civilian, rather than the indiscriminate killing just for the sake of personal enjoyment.
I find it impossible to believe that our Military would allow a story like this to be put out to the MSM in the middle of a war. In fact this is something more likely to trumpeted by Al Jazera!
Do we seriously have idiots in the military who are this insulated and or stupid? Crap like this would never have been allowed during WWII.
Stuff like this only undermines our military and dishonors our soldiers. It also smears the sacrifices they have made for our people as well as the Iraqi people.
Our brave and noble servicemen deserve far better treatment and respect than this!
Why do I seem to be the only one outraged about this?
Why on earth is any real American so willing to consider the possibility of such demeaning allegations, when they are having to serve in such a hell hole of inhumanity as the former Iraq or Afganistan?
It was quite common in WWII, especially against the Japanese. My father witnessed it against the Germans and the I had cousins who witnesses against the Japanese. It was usually done by individuals and to my knowledge never a policy. Although, Omar Bradly himself encouraged it against snipers. I know of some cases in Vietnam it was done but never witnessed myself.
However, to my knowledge was it wholesale like lining up an entire group of people on sweep and killing them like the Germans, Russians, and Japanese did.
I never personally got faced with a decission like that.
I'll reserve judgement. I know local talk host (and Rush fill-in) Roger Hedgecock thinks they're being unfairly treated and believes this "victim" was part of a deliberate scheme by the terrorist-insurgency in Iraq to set up our troops, knowing they'll be tried for serious crimes which will both demoralize their fellow troops as well as erode support for their deployments due to the unfavorable media coverage by the gullible Fifth Column MSM. They *know* how to wage an effective propaganda campaign. The White House can even put out the truth without it being ignored, buried or distorted into bad news.
WE all remember the spectacle of the atrocities supposedly committed in Vietnam before the war was over, and how it negatively affected the outcome of that war.
Now if our boys were over there cutting off the heads of innocent Iraqis, or targeting people with roadside bombs and car bombs in civilian areas of the country, I'd say that we have a serious problem that needs to be dealt with, but that is simply not the case here. And even though it is quite apparent to most patriots who actually love our servicemen,that there has been no serious or intentional wrong doing committed by our troops; one can't help but wonder why this needed to hit the headlines in the first place. It seems as though we have a new breed of liberal insiders, who are doing their best to discredit our servicemen, and the MSM is only too willing to help out! I'd say that whoever is in charge of disseminating information about the military to the MSM, needs to be publicly whipped and permanatly discharged for allowing this story out in the first place. It served them or us no good purpose, and it was totally unnecessary, except to further the cause of the ememy.
And yes those on the liberal left are considered our enemy as well!
I witnessed enough of the military legal system in my 25 year career to know that it is as fair and as unbiased and as just as any legal system staffed by human beings is capable of being. If these 8 men go to trial it will be a fair one, and they will be judged by honorable men and women who will give them every benefit of the doubt. If the evidence shows that they are innocent, or even if there is a reasonable doubt of guilt then the court will set them free without any hesitation at all. But if the evidence shows that they are guilty, then those same men and women will deliver a swift and just punishement.
I agree 100% with you. All the press does tries to do is capitalize on the negative. They won't even report the lives we save over there.