Hearing set on request for release of Hamdania defendants

By: MARK WALKER - Staff Writer | Wednesday, August 2, 2006 8:55 PM PDT ∞

CAMP PENDLETON ---- The first in a series of hearings seeking the release of seven Marines and a Navy corpsman held in the base brig since May for the alleged killing of an Iraqi civilian in April is expected to take place Friday.

Civilian attorneys for three of the accused men are seeking their clients' release pending further proceedings on the basis the men are not flight risks and pose no threats to others.

The attorneys are also expected to raise questions about why the seven Marines and one Navy corpsman in the case are in the brig while Marines from another Camp Pendleton unit under investigation for the killing of 24 other Iraqi civilians in November are not jailed and are under no form of restriction. "The government's arguments for why those men are in jail has no validity," attorney Victor Kelley said Wednesday. "There is not an ounce of truth in the prosecution's position that they are flight risks or a threat to someone else."

Kelley represents Cpl. Trent D. Thomas, who is charged with murder, kidnapping, conspiracy and related offenses in the death of 52-year-old Hashim Ibrahim Awad.

Authorities allege the men from the 3rd Battalion, 5th Marine Regiment took Awad from his home then bound and shot him and staged the scene to make it appear he was planting a roadside bomb.

Marine Corps officials have said the men are in custody because they may flee due to the seriousness of the charges they are facing.

Charged along with Thomas are Sgt. Lawrence Hutchins III, Cpl. Marshall Magincalda, Hospitalman 3rd Class Melson Bacos, Lance Cpls. Tyler Jackson, Robert Pennington and Jerry Shumate Jr., and Pfc. John Jodka III.

Requests for hearings seeking the men's release were filed last week.

Attorney Jane Siegel, who represents Jodka, said she would agree to restrictions such as requiring the men to stay in a barracks or wear an electronic monitoring device to track their whereabouts.

Siegel said that while she was hopeful, the only formal response she had seen thus far was a recommendation from Marine prosecutors that the request be denied.

"I think it is just bloody unfair and even more ridiculous for the government to say they are any more of a flight risk than the guys from the Haditha case," Siegel said.

The Haditha case involves a different group of Camp Pendleton Marines accused of deliberately killing 24 unarmed Iraqi civilians in that city last Nov. 19. None of the Marines from that squad, Kilo Company of the 3rd Battalion, 1st Marine Regiment, has been jailed or faced with any form of restriction since the allegations arose in a March Time magazine report.

Siegel suggested the defendants in the Hamdania case are in the brig as a result of timing and not because of preferential treatment being given the troops facing suspicion in the Haditha case.

"The government didn't lock up the Haditha guys because it had no idea when the investigation would be done, and that affected the clock under the speedy trial rule," she said, referring to the Uniform Code of Military Justice which requires the government file charges within 120 days of incarcerating a suspect.

"If they weren't confined, there was no effect on the timing of the investigation," she said.

Siegel said she will argue that the Marine Corps is treating the men in the two cases very differently and question why one group is incarcerated before charges were brought on June 21 and why the men in the Haditha case remain free.

Kelley said he believes it also comes down to leadership of the two different regiments.

"It seems to me like the 3/1 commanders are much more circumspect and far more willing to give the benefit of the doubt to their Marines than are the 3/5 commanders even though you can argue the Haditha allegations appear much more serious," he said.

Washington attorney Mark S. Zaid, who represents Sgt. Frank Wuterich in the Haditha case, said he believes the two incidents are "very, very different."

"From Day 1, there was something thought to be wrong in the Hamdania case," he said in a telephone interview. "In Haditha, there were months ... and nobody ever raised any concerns about what happened that day."

On Wednesday, Wuterich filed a libel suit against U.S. Rep. John Murtha, D- Pennsylvania, contending comments he made were outside the scope of his duties as a federal lawmaker and unfairly maligned the reputations of all the Marines involved in the Haditha incident.

As attorneys in the Hamdania case have done, Zaid suggested that the Defense Department may have ulterior motives in pressing a criminal case in the Haditha killings.

"The impact of all these (accusations) all at once is to implicitly if not explicitly put pressure on the Pentagon. We are concerned that the Haditha guys will be used as scapegoats."

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com. Staff writer Teri Figueroa contributed to this report. To comment, go to nctimes.com.