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More Marines may face charges in Hamdania slaying; number of defendants could rise to 12
By: MARK WALKER and TERI FIGUEROA - Staff Writers | ∞
Four more Camp Pendleton Marines may face charges in the alleged April 26 kidnapping and murder of an Iraqi civilian, attorneys for two Marines already charged in the case said Friday.
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At Camp Pendleton, Lt. Col. Sean Gibson would only say that no additional charges have been filed against anyone and declined further comment. The attorneys who said that more charges are looming have close dealings with Marine Corps officials and have been involved in the case for months.
Victor Kelley, an attorney for one of the men, said Friday that he had been led to believe the additional troops, one of whom is an officer, may face a charge of conspiracy to commit murder.
Such a charge would suggest that the men were not directly involved in the alleged attack, but had knowledge it was being planned, according to Jane Siegel, a civilian defense attorney representing another of the men.
Siegel said Friday that she had been told the Marine Corps was making preparations to ensure that 12 members of Kilo Company of the 3rd Battalion, 5th Marine Regiment have military defense attorneys available. As of Friday, eight men have been charged and assigned military attorneys.
"I base that on the fact that I know that senior defense counsel leadership and the chief defense counsel of the Marine Corps are working to make sure that there are enough detailed defense counsel for that many defendants," said Siegel, a retired colonel who spent more than two decades as a Marine defense attorney and prosecutor.
Detailed defense counsel is a military term for uniformed attorneys appointed to represent troops accused of a crime.
"It would be some sort of conspiracy charge that says these men had knowledge that something was about to go down and their information would support the government's theory of the case," Siegel said.
On June 21, the Marine Corps announced it had filed murder, kidnapping, conspiracy and related charges against seven Marines and a Navy corpsman. The men from Kilo Company from the 3rd Battalion, 5th Marine Regiment have been in the Pendleton brig since May 24.
They are accused of conspiring to kidnap and kill 52-year-old Hashim Ibrahim Awad in the village of Hamdania. They are also alleged to have staged the scene with a shovel and an AK-47 assault rifle to make it appear Awad was killed while attempting to plant a roadside bomb.
If four more service members are charged, it would be the highest number of U.S. troops to be charged in a war crime in Iraq since the March 2003 invasion.
In addition to Siegel and Kelley, two other people with intimate knowledge of the case said they also have been told that more Marines will be charged.
The men suspected in the killing were initially detained at Marine Corps base Camp Fallujah in Iraq. When they were returned to Pendleton, a base spokesman said that, in addition to those who were eventually charged, four members of the unit were restricted to base.
The four said to be facing the prospect of a criminal charge were initially considered material witnesses in the case. Their restriction to base was lifted by the Marine Corps in early June without explanation.
It was not immediately known if the four men said to be facing charges are the same Marines who were restricted to base in June.
The men already charged in the case are awaiting court proceedings known as Article 32 hearings to determine if the accusations against them will move ahead to courts-martial, or military trials. Those hearings are not expected to begin until mid-September or later.
Charged on June 21 were Sgt. Lawrence Hutchins III, Cpls. Marshall Magincalda and Trent D. Thomas, Hospitalman 3rd Class Melson Bacos, Lance Cpls. Tyler A. Jackson, Robert B. Pennington and Jerry E. Shumate Jr., and Pfc. John J. Jodka III.
Kelley, who represents Thomas, hesitated to speculate as to when charges against others could be brought, but said his "best guess" was that it may happen before the hearings for those already charged.
If an officer is charged, "it has the potential of being very significant," Kelley said.
"The military law is that obedience to lawful orders is always a defense to allegations of misconduct," he said. "So, if Cpl. Thomas and the others were following lawful orders, that is an absolute defense."
One issue could be whether an order, if given, was lawful.
Kelley, whose firm is the National Military Justice Group in Birmingham, Ala., said that it is "not always clear on its face whether an order is lawful or not. Very often, it is a gray area."
As the Hamdania case moves forward, Marine Corps officials are awaiting the completion of a Naval Criminal Investigative Service probe into allegations that a different group of Camp Pendleton Marines may have committed crimes in the deaths of 24 Iraqis in the city of Haditha on Nov. 19.
In that case, as many as a dozen or more squad members from Camp Pendleton's 3rd Battalion, 1st Marine Regiment are alleged to have gone on a rampage after a roadside bomb killed a member of the unit.
No one has been charged in that case, in which the investigatory work is said to be weeks away from completion. An accompanying investigation conducted under the direction of a U.S. Army general into whether Marine commanders in Iraq failed to adequately investigate initial reports of the incident has been completed but remains under wraps pending completion of the criminal investigation.
-- Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com. Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.
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Jon B. wrote on Jul 28, 2006 10:53 PM:The fact that the Marine Corps may be filing additional charges seems contrary to the present defendants pleas of innocence. If the case was so weak would they charge 4 more? Where there is smoke there is generally fire. Evidence is going to be interesting in this case.
Mike wrote on Jul 28, 2006 11:56 PM:Where are the comanding officers.When is their trail.Where does the buck stop?
mark wrote on Jul 29, 2006 1:44 AM:jon B., it's more likely that evidence-wise the Marine Corps has got goose eggs. The rubber hose treatment hasn't gotten NCIS what it needs so why not charge more people and see if someone will crack.
Irony wrote on Jul 29, 2006 2:33 AM:These Marines are all political scapegoats regardless. The government would love citizens to believe that this is a war of Iraqis and Americans working together to make Iraq free. However, this country is erupting and even the Iraqi Security Force cannot be trusted by Marines. Iraqis hate us as much as they hate the insurgent. The different sects are destined for a civil war. It is going to happen, and the only question is how many Americans will die in the process. We had our civil war, they will have theirs. Our government says they want Iraq to be a free country, but America will not let them be free to choose how their country will be.
I agree... wrote on Jul 29, 2006 3:10 AM:I agree that these men are scapegoats in a war that has turned people on all sides into monsters. But to say they are heros or have done nothing wrong without hearing the evidence in the trial is blind loyalty -- the kind that got us in this position in the first place.
Harry wrote on Jul 29, 2006 5:59 AM:This gets to be a morality play about the war. We get the message that in an illegal war of aggression; justified by lies and false motives; conducted without regard for international conventions of warfare; with rationalizations for the use of torture and abuse of prisoners from the top down, without military objectives or an exit stratagy, fighting as a third party in a civil war--where both sides hate us--responsibility for atrocities starts at the top and moves down--not visa versa. I heartily agree with "I agree".
Phil wrote on Jul 29, 2006 7:59 AM:Mike, you say "Where are the commanding officers. When (are) their (trails)." OK, so what are we going to charge the "commanding officers" with? No commissioned officers were on the scene. No one, including the defense, has alleged that their commissioned officers, that were in command of these troops, were present, pulled triggers, ordered triggers pulled or were involved in a cover-up. The unit in the field was commanded by a Sgt. E-5. Militarily, you are absolutely correct, the commanding officers are responsible for the actions of their men and women under them. I assure you, having been down this exact same road in Vietnam, that their careers are ruined whether guilt or innocence is found. But legally? Unless it can be alleged and proved that the commanding officer or commissioned officers subordinate to the C.O. were in anyway responsible for this event, the C.O. and officers under him are not legally responsible for it. They is a difference between military and legal responsibility. The only folks that bear the burden of proving their legal innocence are the grunts on scene when it all went down. And I said that correctly. They are going to have to prove their innocence.
This thing smells even more: wrote on Jul 29, 2006 8:01 AM:Sounds like witness tampering again by the Corps. Why wasn't the officer in shackles also? This thing continues to unravel and it looks ugly to everyone following. The prosecution better have a ROCK SOLID story, including all evidence and live witnesses or this will continue to look like a railroad job! Also, how about cooperating with the defense so that they are able to PROVIDE one. Until then it appears to the public that some higher ups are throwing these enlisted men to the wolves. More evidence of this will happen when the Corps invites the foreign press and Iraqi press Corps (along with some token American press) to fill 150 seats of the "media center" provided for by YOU THE TAXPAYER.
to jon wrote on Jul 29, 2006 9:00 AM:No jon you are wrong. They are all being charged to make a point. I seriously doubt there is any wrong doing at all. But in the military you are guilty until proven inoocent.
Mary wrote on Jul 29, 2006 9:18 AM:Two or three days ago I read a story on cnn.com and abcnews.com that in the city of Karrada (spelling?) Iraq 31 people were killed and 120 were injured when three rockets and a car bomb simultaneously went off in a market. Karrada is predominately Shite and the rockets came from a nearby neighborhood which is Sunni. That is more an an insurgency - that is a civil war. The Pentagon has stopped all flights out of Iraq to return troops home. They are redirecting troops to Bagdad in the hopes of gaining control. Our troops now literally have to fight there way back to us. Thank you Rusmfeld and Bush - the world's worst military commanders. This is why our troops are cracking - they are in an impossible situation.
Deb wrote on Jul 29, 2006 9:19 AM:I also believe these men are scapegoats. The military wants to prove to the world that they believe in justice for all. No one, however, seems interested in finding out why good people would do such bad things (if true). I don't see the military trying to prevent any of this. I only see punishment after bad deeds are allegedly committed.
mark wrote on Jul 29, 2006 12:56 PM:I stand by my theory. The Pentagon has decided to show the terrorists that we are zealous in pursuing American war criminals. Unfortunately for the plan there are not a lot of good cases that American Soldiers are committing all these atrocities. The Marine Corps brass is forced to work with what they've got, a few pretty weak cases. Being Marine Generals they have an eye on another star if they can show some real "can do", as well as that high paid defense contractor job when they retire. They already screwed up the Pantano case when they negligently allowed him to put on a defense. They are going to make this one stick no matter what it takes, legality, fairness and facts be damned!
GERRY T. wrote on Jul 29, 2006 6:02 PM:I do believe that these so called leaders at this Marine Depot who have these Lads in confinement would attempt to give out SPEEDING TICKETS at the INDY 500. Things to remember; Never put Military and Intelligence in the same sentence.
Erica wrote on Jul 29, 2006 8:47 PM:This whole situation sure does hit close to home. They deserve to be with their families!!!! They are innocent!!!!
Iona. wrote on Jul 30, 2006 6:25 AM:It is a sad day in America. Treatment soldiers have to go through. Their Commanders at Camp Pendleton are should be ashamed for the condition of the soldiers. Without the body exhumed this weak case should be shut... closed. In my opinion it could have been committed by one of the insurgents...and of course, it easy to blame the soldiers. Well one or more of the commanders promotion might get a promotion. Shame! Shame! Shame!
Uncle Sam wrote on Jul 30, 2006 10:44 AM:Fighting the way we are fighting in Iraq is no doubt very dangerous to our troops. Such tactics will lead to events like this. If the Marine investigators did what the defendants allege, these Marine(Navy)investigators will need to be investigated themselves and possibly charged for falsely accusing these Marines by arranging false or forced confessions. I have contacted my Congressman who sent me a form letter response which gave no reference to this matter at all. If he is doing his job honestly, there will be a Congressional probe of these Navy investigators who may have railroaded these Marine defendants.
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