Marine to be retried for Iraq murder

A Camp Pendleton Marine freed on appeal after serving more than six years for the murder of an unarmed man in Hamdaniya, Iraq, during the height of the war will be retried in a military court.

Sgt. Lawrence Hutchins III will be arraigned Wednesday at Camp Pendleton, Marine Corps Forces Central Command said Monday.

During a subsequent court martial, whose date has not been set, Hutchins will face charges of murder, obstruction of justice, making false official statements and conspiracy to commit larceny.

The Hamdaniya killing had provoked outrage in the United States and Iraq, coming on the heels of the Abu Ghraib prison abuse scandal involving Army military police, and the killing by a different group of Camp Pendleton Marines of 24 civilians in Haditha.

The fallout included a refusal by Iraqi officials to grant legal immunity to American forces and the collapse of negotiations over a long-term U.S. military presence in Iraq.

After Hutchins’ 2007 conviction, his case was twice overturned on legal technicalities.

The commanding general of Marine Corps Forces Central Command moved for a retrial “due to the seriousness of the charges and the amount of evidence that had been compiled through investigations, to include sworn statements,” said Lt. Col. Joseph Kloppel, a spokesman for Marine Corps Forces Central Command.

Hutchins, then 22, was squad leader in charge in 2006 when seven Marines and a Navy hospital corpsman from the 3rd Battalion, 5th Marine Regiment plotted to capture and kill an insurgent leader.

The squad snatched a man from his bed, shot him in a ditch and planted an AK-47 rifle and shovel at the scene to make it appear he had been planting roadside bombs, according to court testimony.

Prosecutors said the squad grabbed another man at random, a man with no known ties to the insurgency, when they couldn’t find their original target.

Hutchins maintained that he thought they killed an insurgent leader. Either way, it was murder in the eyes of the court because their rules of engagement did not permit summary execution of an insurgent posing no immediate threat.

Hutchins was tried by general court-martial and convicted of unpremeditated murder.

He was serving an 11-year sentence but was released on appeal from prison at Fort Leavenworth, Kan., in 2010. After eight months of freedom, he was sent to the brig at Marine Corps Air Station Miramar.

Then Hutchins’ conviction and sentence were overturned by the military’s highest court on June 26, 2013, a stunning upset for a prominent Iraq war crimes case.

“There is nothing that I want more than for this whole situation to be over ... to be able to move on and begin a life with my family away from all of this,” Hutchins said Monday.

His wife, Reyna, is pregnant with their third child, after Kylie, 9, and Aidan, 2. “The stress this case has brought upon her is tremendous,” including death threats from an al-Qaeda supporter, said Hutchins, who is originally from Plymouth, Mass.

“I will continue to hope and pray that this ordeal is over soon, and my family is spared any more harm,” he said.

Hutchins and his family have been living in Oceanside awaiting resolution of his case.

He has tried since his release in July “to be the perfect Marine,” he said. He went back to work at Camp Pendleton in charge of the Marksmanship Training Unit, but was reassigned two weeks ago when the Marine Corps decided to retry his case.

Hutchins’ attorney, Marine Capt. Eric Skoczenski, could not be reached Monday for comment. Maj. Babu Kaza, a Marine reservist currently assigned to active duty who represented Hutchins during his appeals, said he is not permitted to discuss the case.

Critics, including Iraqis, Navy Secretary Ray Mabus and the late congressman and Marine veteran John Murtha, had publicly characterized the Hamdaniya killing as coldblooded murder.

Supporters sympathetic to the chaos and moral ambiguity of combat said the squad acted amid the “fog of war” and a raging insurgency inflicting high casualties on coalition forces.

Both sides agreed the government fumbled the case, either because Hutchins and the squad were charged in the first place or because Hutchins was twice freed because of legal irregularities.

Over the years as his convoluted legal saga unfolded, the issue of possible unlawful command influence and the improper dismissal of his lawyer had been raised.

Then last year, four of the five judges on the Court of Appeals for the Armed Forces agreed that Hutchins’ constitutional rights were violated because of circumstances surrounding a confession Hutchins gave a naval investigator in Iraq, after he had been held in a trailer at Camp Fallujah for a week without access to a lawyer.

Despite the legal challenges raised on appeal, the Marine Corps really “had no choice but to retry the case,” said Eugene Fidell, a former judge advocate in the coast guard who teaches military justice at Yale Law School.

“For the Marine Corps to have walked away from this case would have led to a firestorm of controversy. Not that the Marine Corps is gun-shy about controversy,” he added, but “it’s a serious case.”

The U.S. is reluctant to prosecute its troops for misconduct on the battlefield, Fidell said: “But we do it because we are committed to the rule of law. That’s the lesson of the last 500 years or so — that there is law on the battlefield. It is not a free-for-all or melee.”

The move for retrial surprised Gary Solis, a former Camp Pendleton Marine prosecutor and judge who teaches law of war at Georgetown University. Murder retrials are costly and difficult to prosecute, because of fading memories and scattered witnesses.

“I applaud the Marine Corps for having the viewpoint that they should not allow someone who has committed murder in their eyes on the battlefield to walk away. But it is going to be a tough case to prove, and an expensive one,” he said.

Don Greenlaw, an 85-year-old Marine combat veteran from Oceanside who has rallied for Hutchins and attended the court hearings for years, said higher ranking officers in the battalion should share the blame.

“They picked on that kid long enough. ... It’s all politics,” Greenlaw said. “Buck sergeants on their first tour do not think these things up by themselves. All these guys are doing is let him take the fall and it is not right.”

The squad accidentally grabbed the wrong guy, “They made a mistake, but it’s not worth seven years of his life (incarcerated.) In a combat situation it’s very easy to make a mistake,” said Greenlaw, who served one combat tour in Korea and two to Vietnam.

The government could have petitioned the Supreme Court for a review of the military case, which would have been rare, or dropped the case.

The Navy Office of the Judge Advocate General and U.S. solicitor general initiated the Supreme Court appeals process but decided in November to return the case to the Marine Corps.

Arguing against Supreme Court review, Hutchins’ military appellate attorney told the solicitor general the decision by the United States Court of Appeals for the Armed Forces to overturn the conviction “is well-supported, effectuates Fifth Amendment due process rights, and fosters public confidence in the military justice system.”

The others from the squad were convicted of lesser charges: Cpl. Marshall Magincalda, Cpl. Trent Thomas, Lance Cpl. Robert Pennington, Navy Hospital Corpsman 3rd Class Melson Bacos, Lance Cpl. Jerry Shumate Jr., Pfc. John Jodka and Lance Cpl. Tyler Jackson.

During Hutchins’ 2007 trial, a jury of his military peers found him cold and remorseless. Hutchins got 15 years, later reduced.

Hutchins struck a different tone in a legal statement submitted in 2010. “I am forever diminished by the death and violence I witnessed in Iraq, and forever consumed with regret over what I brought about with my hands. … In causing the death of a potentially innocent Iraqi, I lowered myself and became that which I loathed most — a terrorist,” he wrote.

The outcome for a Marine squad leader at the heart of another major Iraq War murder case was far different.

Frank Wuterich, a Camp Pendleton Marine implicated in the deaths of 24 civilians in Haditha, Iraq, in 2005, was tried in 2012 and served no jail time. He left the military with a general discharge under honorable conditions.

After a roadside bomb attack on his convoy killed one Marine and injured two others, Wuterich ordered his men to “shoot first, ask questions later” as they searched nearby homes. Among the dead were several women, toddlers and a 76-year-old man in a wheelchair.

After long maintaining his innocence, Wuterich pleaded guilty halfway through his court-martial to negligent dereliction of duty. At the time, he was facing charges of voluntary manslaughter, assault with a dangerous weapon and dereliction of duty.

He was among eight Marines charged in the slayings or a failure to properly investigate them. The others were cleared of criminal wrongdoing.

Legal observers said similar cases in the military and civilian justice systems often have far different outcomes. Two factors that hobbled prosecution of the Wuterich case were the nearly seven-year delay before the case went to trial and the dearth of witness statements from fellow squadmates.

The Haditha and Hamdaniya cases, as well as incidents in recent years of Marines desecrating corpses, are linked in the public eye in a troubling series of examples of war zone indiscipline, Fidell said.

Regarding the decision to retry Hutchins for the Hamdaniya murder, “I think leaders of the Marine Corps have got to be aware that discipline is critical, and if this case is meritorious, it has to be pursued.”

gretel.kovach@uniontrib.com; (619) 293-1293; Facebook page: UT Military; Twitter @gckovach

From June 2013:

“In their ruling Wednesday, the court’s judges said the Naval Criminal Investigative Services violated Hutchins’ Fifth Amendment rights when it interrogated him in May 2006 about the incident and then put him in a trailer in Fallujah with no access to a lawyer or phones.

After seven days, the same Navy investigator returned and asked Hutchins for permission to search his belongings. Hutchins said he asked to tell his side of the story and was told he could do so the next day, when he waived his right to counsel and provided a sworn statement about the crimes.

The judges ruled much of the case rested on that confession, which they determined was illegally obtained after Hutchins was held under guard for seven days.”

http://www.foxnews.com/us/2013/06/26/murder-conviction-against-us-marine-overturned-1764670622/

Looks a lot like Double Jeoprady to me. Every event such as this may equal twenty five potential volunteers being talked out of a military career. At least not till we have a different kind of President. Why should anyone volunteer these days when you. may get prosecuted for doing your job.

.........I’m with Don Greenlaw and his 85 years of military and life experience on this one.

Clearly previous prosecutions did not stick illustrating that a lot of military minds are not in agreement concerning Hutchins guilt or innocence.

I think these war time battlefield prosecutions should only occur when their is irrefutable proof of the crime. In the NFL, to “prove” out of bounds or fumbles, a replay video must show “irrefutable proof”. They clearly cannot prove Hutchins committed a crime so leave him alone.

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