Defense attorneys want to go to Iraq

By: TERI FIGUEROA and MARK WALKER - Staff Writers | Thursday, June 29, 2006 11:04 PM PDT ∞

NORTH COUNTY ---- Defense attorneys for eight Camp Pendleton-based servicemen accused of premeditated murder say it is crucial that they see firsthand where the alleged kidnapping and killing of an Iraqi civilian occurred in April.

Joseph Casas, one of two privately retained attorneys for 20-year-old Pfc. John Jodka III of Encinitas, filed a request Thursday with the Marine Corps asking that it set up the trip as soon as possible.

Retired Brig. Gen. David Brahms, now a Carlsbad-based attorney representing one of the men, also said Thursday that a visit to the village of Hamdania is vital in order to defend his client, Lance Cpl. Robert Pennington, 21.

"It's a basic ground rule for criminal lawyers," Brahms said Thursday. "You've got to go look at the scene. (If we go), I know I have insights that allow me to effectively cross-examine, and it allows me to put the evidence that I have into perspective.

"You not only see the geographical features and distances, but also understand the reality of the setting, a setting with people and housing."

The Marine Corps last week charged eight members of the 3rd Battalion, 5th Marines Regiment's Kilo Company with murder, kidnapping, conspiracy and related offenses in the April 26th death of Hashim Ibrahim Awad.

Along with Pennington and Jodka, the accused facing possible courts-martial trials are Sgt. Lawrence G. Hutchins III, 22; Cpl. Trent Thomas, 21; Navy Hospitalman 3rd Class Melson J. Bacos, 20; Cpl. Marshall L. Magincalda, 23; Lance Cpl. Tyler A. Jackson, 22; and Lance Cpl. Jerry E. Shumate Jr., 20.

If for some reason the military decides it is too dangerous to take the defense attorneys to Hamdania in the war-torn Anbar province west of Baghdad, Brahms said that decision would actually favor the defense.

"It would be nice to have the government come back and say this area is much too hostile for us to go," Brahms said. "Perfect. I'd like to have that person on the stand. Doesn't that tell us that this is going on, that this area is hostile?"

San Marcos attorney Jane Siegel, who with Casas has been hired to defend Jodka, also said a visit to Iraq needs to take place as soon as possible.

"Boots on the ground count, and if we have to get a crime scene reconstructionist or myself or Joseph to go over there, I think that probably needs to happen," Siegel said. "I really think that the sooner, the better."

At Camp Pendleton, spokesman Lt. Col. Sean Gibson said Thursday that the military is aware that the defense teams want to go to Hamdania.

"At the appropriate time in the proceedings, and if warranted and requested, defense attorneys may indeed be given access to the ... scene via military means," Gibson said in a written response to an inquiry from the North County Times.

Because the area is fraught with attacks, Gibson said, the military would provide security if defense attorneys go to Hamdania.

Agreeing with the need for a firsthand examination of the scene, Victor Kelley, an Alabama-based attorney, was in town this week to meet with his client, Cpl. Thomas.

The servicemen are accused of kidnapping Awad from his home, binding his hands and feet and shooting him, and then trying to make it appear that he had been an insurgent planting a roadside bomb.

Awad's body was exhumed this month and taken to Dover Air Force Base in Delaware for a forensic exam and autopsy under the direction of the Naval Criminal Investigative Service, the agency heading up the Hamdania investigation. The result of the autopsy has not been released.

Kelley said he believes there will be "at least two autopsies" ---- one authorized by the prosecution and one by the defense.

The next step in the process for each of the accused is an Article 32 hearing to determine whether the charges should go forward.

Gibson said those hearings are unlikely to take place until late July or early August.

In addition to hiring private attorneys, the accused men being held in the Camp Pendleton brig also have been assigned military attorneys.

While the Marine Corps has refused to release the names of those attorneys, Casas said the Marine Corps has assigned Capt. Scott Joiner to Jodka.

"His work product is exemplary and he is a very talented attorney," Casas said.

Last week, Marine Maj. Hatham Faraj, told reporters he was assigned to represent Thomas.

Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com. Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

Editor's note: See Sunday's edition for more reporting on the Hamdania case.