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Accused Hamdania Marines want to head straight to trial
By: TERI FIGUEROA - Staff Writer | ∞
Marine Pfc. John J. Jodka III is seen in this undated photo released by the Jodka family.
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CAMP PENDLETON ---- At least three of the eight Camp Pendleton men accused of kidnapping and killing an Iraqi man are asking the Marine Corps to take their cases straight to military trials and skip the pretrial hearings that would determine if courts-martial would be necessary.
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Calling an upcoming pretrial hearing a "meaningless exercise" and a "rubber stamp," attorney Joseph Casas said he told Marine Corps officials that his client, 20-year-old Pfc. John Jodka of Encinitas, will waive the pretrial hearing known as an Article 32 in favor of heading right to trial.
That also is the plan for Cpl. Trent Thomas, according to his attorney, Birmingham, Ala.-based Victor Kelley, who said he wants to press the government into trial rather than put his client through a pretrial hearing.
"There's no point in dragging this out for Cpl. Thomas," Kelley said. "It just gives the government more time to try to improve an otherwise very bad case."
Also asking to waive the hearing and head right to trial is Cpl. Marshall Magincalda of Manteca, whose attorney Joseph Low said he made his request to skip the hearing earlier this week.
"The big reason is we are ready to go to trial," Low said in a phone call Wednesday afternoon.
All three attorneys said they expect their clients to be exonerated at trial.
The San Diego-based Casas pointed to frustrations with what he said are denials by the government to turn over certain evidence, and said he and co-counsel Jane Siegel have considered requesting a waiver for weeks. The two attorneys were hired by Jodka's family and are defending him along with an attorney appointed by the Marine Corps.
Casas said Jodka wants the hearing waived on the grounds that "it's a meaningless exercise because military prosecutors have refused to grant his attorneys access to important evidence that supports his claim of innocence."
"We have no choice," Casas said Wednesday morning. "The government has put us in a position where we have to go to trial. He's been confined for 77 days now. He wants to begin the process of exonerating him."
A Marine Corps spokesman confirmed that authorities had received the paperwork.
"The request has been received, but no decision has been made," said Lt. Col Sean Gibson.
The eight men charged in the case ---- seven Marines and one Navy corpsman ---- are accused of kidnapping and killing Hashim Ibrahim Awad in the Iraqi village of Hamdania on April 26.
According to the charges, the men are alleged to have taken Awad, 52, from his home. They are said to have then bound his hands and feet, placed him into a hole and shot him repeatedly, then staged the scene to make it appear he was an insurgent planting a roadside bomb.
Casas said the prosecution has repeatedly refused his requests for intelligence reports on Awad.
The attorney also pointed to a list of requests for evidence that the government has denied, including a bid to visit the alleged crime scene in Iraq.
Also deemed by prosecutors to be not germane for the hearing, Casas said, were documents on the rules of engagement, which guide troops as to when they are allowed to shoot.
"How is that not relevant?" Casas said. "They are accused of war crimes, and that that goes to rules of engagement."
The government also rejected as unimportant for the pretrial hearing Casas' and Siegel's request to interview the Iraqis who first accused the men, he said.
"We believe the Iraqi witnesses made false allegations," Casas said. "The government will not let us talk to the witnesses. This is absolutely crucial to the defense of our Marines. They deemed it irrelevant."
Walking into the hearing without such evidence, Casas said, is "like playing blind chess. But the stakes are higher."
In addition to Jodka, Thomas and Magincalda, the accused are Sgt. Lawrence G. Hutchins III, Hospitalman 3rd Class Melson J. Bacos, and Lance Cpls. Tyler A. Jackson, Robert B. Pennington, and Jerry Shumate Jr.
The men, all members of Kilo Company, within the Camp Pendleton-based 3rd Battalion, 5th Marine Regiment, are awaiting hearings to determine if the charges against them will move forward.
It remains to be seen what impact the waiver requests will have on the cases of the remaining defendants.
Retired Marine Gen. David Brahms, who represents Pennington, said that while he is considering all options, he is not sure if he will recommend his client make the same move.
"It gives me pause that such exceptional and thoughtful counsel have reached the decision that this is the right course of action," said Brahms. "At first blush, my sense is that this is not where I want to go."
Vista-based attorney Thomas Watt, who represents Jackson, said the move to waive the Article 32 hearings is "interesting." As to whether Jackson will follow suit, Watt said, "We consider all options, but no decision has been made."
Attorneys for the remaining defendants could not be reached for comment.
The case is separate from another incident involving a different group of Camp Pendleton Marines being investigated for the deaths of 24 civilians in Haditha, Iraq, in November. That case remains under investigation by the Naval Criminal Investigative Service.
On Monday, Lt. Gen. James N. Mattis assumed command of the I Marine Expeditionary Force and will be the convening authority under the military justice system for the Hamdania case. The seven Marines and Navy corpsman charged in that case are housed in the base brig and have Article 32 hearings scheduled for September and October.
Those hearings are the equivalent of a civilian court pretrial hearing to determine if criminal charges lodged against a defendant should move forward to trial.
-- Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.
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This is a smart Marine! wrote on Aug 16, 2006 12:36 PM:He undersands that the JAG is going not play by anything resembles any real trial. I wish him the best and thank him for his service!
o2cool1 wrote on Aug 16, 2006 2:20 PM:Good luck Marine, give em hell. No doubt with the publicity this trial will receive it will be harder for the Marines to find "A FEW GOOD MEN" and rightly so.
Phil wrote on Aug 16, 2006 2:29 PM:This could indeed be a smart move in that it would effectively bifurcate his trial from the rest of the accused. The attorneys are also likely standing on the notion that they will attack the evidence and witnesses to develop reasonable doubt. Semper Fi!
No copurt should allow the tainted evidence! wrote on Aug 16, 2006 2:53 PM:How can they get a fair trial without the forensic evidence?
They are done! wrote on Aug 16, 2006 2:54 PM:The military calls its jury a panel. There is usualy a panel of 6 military members. Do you think they are going to go against the military machine These poor marines are done for!
john wrote on Aug 16, 2006 3:33 PM:They are said to have then bound his hands and feet, placed him into a hole and shot him repeatedly, then staged the scene to make it appear he was an insurgent planting a roadside bomb. Makes no sense at all, what could be the motive? Leave these boys alone.
Bill Johnson wrote on Aug 16, 2006 5:55 PM:Stop sending young men to fight political wars. One day on the front line and Rumsfeld and Bush would see things differently. Same as if they draft was initiated... once children of the wealthy report back to Mommy and Daddy or arrive home in body bags -- things would be different. The media should show every American killed by a road side bomb every night on the six o'clock and six thirty news just like they report auto wrecks. If the war is worth continuing after that... it will continue, if not, the troops will be brought home.
to john wrote on Aug 16, 2006 6:12 PM:The motive is the money the Iraqi family received for the man's death. There is no demonstrable motive on behalf of the Marines.
Harry wrote on Aug 16, 2006 9:58 PM:The chorus has begun. Did it ever occur to you that he might be guilty of murder, as charged? Do you care? I can think of a variety of "demonstable motives" on the part of these Marines. Maybe to intimidate and make an example as part of their interrogation of the citizenry, and that is the most noble of the motives that come to mind. It could have been revenge. I hardly think that the victims decided to arrange the killing of the victim, inorder to cash in! Do you think the victims of 9/11 arranged to be in the trade towers to get their share of the cash collected for the victims? That accusation is far fetched and low. I am willing to wait for the trial, but please don't rush to exonerate--first let's see if the US Marines can provide a fair trial. Lets see where the evidence leads.
mark wrote on Aug 17, 2006 7:39 AM:I think that the outcome of the 32 hearing was predetermined long ago. It is probable wise for the defence not to waste limited resources in what will amount to a dog and pony show for the prosecution.
Phil wrote on Aug 17, 2006 9:59 AM:Bill, all wars are political . . . and economic. Oil is the background of this one, as was the Pacific WW2. I recall the words of MGEN Smedley Butler, USMC - Double Medal of Honor winner - whose Mameluke Sword is displayed in the Commanding General's living quarters at MCRD. The good general said, "War is a racket." And that he was an "enforcer" for the bankers and fruit companies (he fought a lot in Central America). Butler was one of the guys that pointed out that both sides in WW1 were financed by the Rothchilds - how could they lose? Google Smedley Butler and get the real dope on war and the reasons for war. Semper Fi!
Erica wrote on Aug 17, 2006 10:38 AM:Really Harry....throughout this whole process, your comments have been leaning more against these guys, not for them. Are you a true American....really? You don't even know them. They are the best of guys!!!! Show a little more respect please. We will rush to exonerate them. You can count on it!!!!
Concerned wrote on Aug 17, 2006 1:09 PM:To Harry: Did it ever occur to me that they might be guilty? NO. Let's review. They tie Awad up, shoot him multiple times, then arrange the scene to look as if he was planting IEDs. And they did this why? You say to make an example of him. Hmmmm. Then why won't the military present the accusers? Why no background on Awad? Why won't they disclose the facts the defense is asking for? I don't think the Marines are guilty because there's too much of this that stinks to high heaven.
John1 - To Harry wrote on Aug 17, 2006 3:29 PM:Harry, I bask in the warmth of concern you show for my son and his brothers. So far there hasn't been any demonstrable evidence. That's why we're calling BS on this farcical process and invoking Article VI of the Constitution as well as statutory requirements on ROE as both are embodied in the JAGMAN and MCM.
Jay wrote on Aug 17, 2006 3:40 PM:It never ceases. Those that don't insist the accused are innocent are accused of "presuming" guilt. You folks are even going a step farther, a BIG step. You are outright declaring them innocent! None of us know that. Speculating one way or another is perfectly fine, we are not going to sit on the jury (if any) but attacking someone who just suggests that it might be possible and he or she is declared un-American. One commentor above even stated "They are the best of guys!!!!" How would they know? do they know each one personally? Was this blogger at the scene? No of course not but they must have a lock on patriotism because they declare anyone they please of being un-American. Amazing logic, truly amazing. It would take a battery of shrinks decades to unravel the thought process behind some of these bloggers remarks. I could save them the trouble though, its simple. They are right and everyone else is wrong. Evidence? We dont need no stinkin' evidence. "They're good boys!!!!". They wear uniforms so they must be heros. Further, previously some bloggers were demanding to know why no officer was charged (of course maybe it was because none commited the alleged offence) but now that one has been charged the same bloggers are upset about that. Amazing, amazing...
LP wrote on Aug 17, 2006 3:51 PM:Oh OK... Guilty until proven innocent. That works for me 99% of the time. In this case, however, (because it involves the Marines) I would have to take sides with the majority and say leave them alone until proven guilty in a court of law.
Concerned wrote on Aug 17, 2006 4:06 PM:And while I'm at it. Yes Harry, I'm singing with the chorus and we are playing the right tune. And, that oh-so politically correct tune you sing with such regularity is way off key in today's world. A440 Harry, tune up!
One of the Moms wrote on Aug 17, 2006 6:31 PM:Anyone who thinks these boys, and make sure you read BOYS, took the time and effort to think that situation through with that kind of precision should have their head examined...I'm lookin' at you Harry. Harry must be a liberal, liberals hate America and anything to do with it. If my son gets the death penalty for following orders it will be because of people like Harry. And BTW Harry, 9/11 and this situation are COMPLETELY different. You're talking out of your...hat...yeah that's it. Go back under Kerry's desk.
Harry wrote on Aug 17, 2006 9:55 PM:When you are up against ignorance and arrogance and desperation, it is best to back off, so that is precisely what I intend to do. Good luck and have a good life and if you can possibly get beyond yourselves and your petty prejudices, I recommend it. The truth isn't defined by your immediate and selfish interests. It is a very small world that is bound by ones own ego and interests. Good bye and good luck.
JD wrote on Aug 18, 2006 4:26 AM:Harry / Jay, have you guys taken the time to examine any of the evidence in this case? Contrary to moveon.org there are things about this case that cannot be explained away! There are things that if these young Marines did this, they as a group would have been conspirators beyond belief! I do not know what happened out there BUT I am willing to stay within the ideal of innocent until proven other wise! I hate to even suggest this to either of you for fear that god forbid I be labeled as ignorant but is there no way in your hearts to adopt that stance for yourselves! Because it does truly look like you do in fact hate these Marines!
1 person wrote on Aug 18, 2006 9:55 AM:Here's hoping and praying the trials will be handled with integrity by the prosecution from now on. To all the anti-war people on this blog. I have always disagreed with you when I have read these blogs. However, all of us have a right to our opinions in this country and I am not protected from your speech and you are not protected from mine. I know you have a respect for our freedoms or you wouldn't have shown so much interest. I believe you are on the wrong side of the argument but our nation is great because of conflicting opinions (but never in the case of treason as you would probably agree). Our soldiers are fighting for our freedoms and I hope we will all continue to honor that fact.
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