Posted on 08/31/2006 9:23:38 AM PDT by NormsRevenge
The opening pair of hearings into charges that Camp Pendleton troops executed an Iraqi man produced a united defense, tantalizing evidence and a surprise announcement yesterday.
The unexpected development involved Marine Pfc. John Jodka III, 20, of Encinitas. Near the close of Jodka's hearing, prosecutor Lt. Col. John Baker said the government would not seek the death penalty against him.
“It's our position that a capital referral is inappropriate,” Baker said during the session, which was held on the base.
“When we heard that, I looked over at Jodka and could tell a huge weight was taken off his shoulders,” said Joseph Casas, one of Jodka's civilian attorneys.
The other hearing was for Cpl. Marshall L. Magincalda, 23, a native of Manteca. Jodka and Magincalda are among eight service members charged with premeditated murder, kidnapping, assault and other crimes in the April 26 death of Hashim Ibrahim Awad in Hamdaniya, Iraq.
Each hearing was overseen by an investigating officer who will recommend whether the defendant should face trial. Lt. Gen. James Mattis, commander of the 1st Marine Expeditionary Force, will have the final say on charges and courts-martial.
Yesterday's sessions were expected to reveal defense and prosecution strategies as well as testimony from witnesses and evidence collected during two investigations. Instead, what emerged was a unified defense that kept Marine prosecutors from making public various self-incriminating statements obtained from the accused.
Baker submitted 35 pieces of evidence during Jodka's hearing. Among them were statements of Jodka and his co-defendants, sketches and maps drawn by co-defendant Lance Cpl. Robert B. Pennington and a letter written by co-defendant Lance Cpl. Tyler A. Jackson to his family.
Baker asked retired Col. Paul Pugliese, the investigating officer in the Jodka case, to focus on the letter. He also referred to a handwritten statement by co-defendant Sgt. Lawrence G. Hutchins III, who was in charge of the men.
As recently as a week ago, defense attorneys refused to acknowledge the existence of any potentially damaging statements. However, they pleaded yesterday with the two investigating officers to keep those remarks out of the public's purview.
“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,” said Jane Siegel, the other civilian attorney for Jodka.
She asked Pugliese to keep secret 16 statements about the Awad killing.
“Some of it was very inflammatory,” Siegel said. Pugliese declined to seal the statements, but he did agree not to read them in open court.
Concerns about prejudicing the jury pool are largely unwarranted, said attorney Eugene R. Fidell, who specializes in military law at the firm of Feldesman Tucker Leifer Fidell in Washington, D.C.
Fidell said the procedure for questioning potential jurors regarding their knowledge and feelings about a case, known as voir dire, takes into consideration possible tainting.
“The military justice system has a very robust process for ensuring that jurors come to the case open-minded,” he said.
Aside from the jury issue, Jodka's defense team accused the government of trying to “buy time” with the hearing in hopes that a co-defendant will agree to testify against the others.
“Based on the loyalty of this Marine, he's not willing to give false evidence against co-defendants and neither are they,” Casas said.
He also contended that prosecutors didn't have enough evidence to go forward with a court-martial. He asserted that investigators lack DNA evidence and said the autopsy report on the victim was inadequate because the body was badly decomposed.
Under such circumstances, Casas said, “I don't know if it's possible for Private First Class Jodka to get a fair trial.”
During his nearly five-hour hearing, Jodka watched the proceedings calmly. At one point, Pugliese asked if the Marine wanted to make a statement.
“No, sir,” Jodka replied.
In a nearby courtroom, Magincalda also declined to testify. His attorneys had asked for the hearing to be closed to the media, but the investigating officer turned down the request.
Magincalda and his lead attorney, Joseph Low, sat in the jury box – beyond the reach of video monitors capturing the proceeding for journalists.
Their session lasted only 30 minutes, mainly because Low waived his right to call witnesses or offer a rebuttal to the charges against Magincalda. Not mounting a defense essentially ensures that the investigating officer will recommend a court-martial.
For the prosecution team in Magincalda's case, the defendants' self-incriminating statements also figured prominently in its stack of evidence. Prosecutor Capt. Nicholas L. Gannon asked the investigating officer to consider three key pieces of evidence: alleged confessions by Hutchins, Pennington and Cpl. Trent D. Thomas.
If Magincalda's case moves to court-martial, his attorneys said, they would try to block the admission of those statements as evidence by arguing that investigators obtained them illegally.
In June, the Marine Corps filed charges against Magincalda, Jodka, Hutchins, Jackson, Pennington, Thomas, Petty Officer 3rd Class Melson J. Bacos and Lance Cpl. Jerry E. Shumate Jr.
According to the charging documents, the defendants were staking out an intersection in Hamdaniya to see whether someone would come along and place explosives in holes along the road.
When no one showed up, Magincalda, Thomas, Pennington and Bacos went into a nearby home, stole a shovel and an AK-47 rifle and went looking for an insurgent named Saleh Gowad, the documents stated.
When the troops couldn't find Gowad, they came to a house belonging to Awad and kidnapped him, prosecutors assert in the documents. Magincalda, Thomas, Pennington and Bacos allegedly forced Awad to the ground and bound his feet, then took him to their hide-out and placed him in a hole.
Hutchins, Thomas and Shumate fired bullets from their M-16 rifles at Awad while Jackson and Jodka fired M-249 automatic weapons, killing him, according to the documents.
Bacos then fired the AK-47 rifle to expend some rounds, the documents said. Magincalda allegedly collected the shell casings and put them by Awad's body, while Pennington allegedly cleaned fingerprints off the AK-47 and put it in Awad's hands. Jodka allegedly placed the shovel near the body.
Hutchins, the group's top-ranking Marine, told his men to make false statements about the incident and on April 28 submitted a false report, prosecutors said in the documents.
Cpl. Marshall L. Magincalda and his lawyer Joseph Low attended a pretrial hearing at Camp Pendleton yesterday.
HOWARD LIPIN / Union-Tribune
John Jodka Jr. of Encinitas held a photo of his son, Pfc. John Jodka III, who is one of the defendants in the Camp Pendleton brig facing murder charges.
When these men are found innocent, I would be perfectly willing to pony up my share if they sued the government for billions. It's the PC-fascists' infiltration at every level of government that results in travesties like this.
I wonder if any of the prosecutors in this case have ever been in a similar combat situation. I've got no use for trumped up BS filed against men like these while in the middle of a combat zone. Crappy things happen in war and there's no way around it. I suggest we spend our energies fighting off the legions of barbarians at the gates.
It would be intriguing to see the nature of the evidence.
Who was Awad, anyway? What was his story?
this is a load.
I've said it before.... and I'll say it again... 1000 of the muzzie rats aren't worth one Marine.... tough sh#t..maybe it's payback, maybe it's a threat to other insurgents... I wasn't there, but I'd cut them a lot of slack in a forward operating area fighting a guerrilla war, with the press and apparently jag and remf chomping to join the "charge a Marine a week" parade.
good post. President Bush, pardon these men NOW!
The bureaucrats/officers reponsible for this sham are traitors.
It would be intriguing to see the nature of the evidence.
Who was Awad, anyway? What was his story?
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True. Absent uncoerced confessions, it'd be difficult for the prosecutors to know as much as they claim they do. What's missing from what was just described is motive. Angry Marines? Revenge on the first "raghead" to come along? Why this particular guy? I mean, of all the guys they could have picked out, why this one? Maybe he was related to the insurgent/terrorist/murderer, and they were trying to get him to fess up on his location? Even so, I just can't see enlisted Marine's mounting their own "recon" intel mission to search out one particular bad guy .. for assassination. It's out of character.
Nope, as presented, this case doesn't add up. The USMC is alleging WAY MORE than a situation such as, a Marine at a checkpoint opening up on a car full of innocents. They're calling this a bungled assassination, where the "bad guys" are Marines who got the wrong guy anyway.
I still believe that they're innocent, but if the USMC JAG guys have evidence to support this case, you also have to respect the integrity of the Marine Corps, and let it proceed forward. If the "evidence" consists only of words from scared, frighted young Marines, held in solitary, or perhaps of guys "led on" by an investigator telling them "how cool it is to kill these ragheads", etc.., then they've got no case. If the "admissions" consist only of the words of these guys while held in lockup, under duress, then it's clearly tainted.
Plus, again, there has to be a realistic motive involved.
SFS
First Question... Were there any Rueters reporters nearby?
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