Next Hamdania hearing set for Tuesday

By: MARK WALKER - Staff Writer | Wednesday, September 6, 2006 10:03 PM PDT

NORTH COUNTY -- A pretrial hearing starting Tuesday for one of eight Camp Pendleton troops charged with murdering an Iraqi is expected to feature two days of testimony, a defense attorney said Wednesday.

The Article 32 hearing for Lance Cpl. Jerry E. Shumate Jr. will focus on his alleged role in the April 26 killing of Hashim Ibrahim Awad in the Iraqi village of Hamdania.

Shumate's attorney, Steven Immel, said he did not plan to take the same route that attorneys for two other accused troops did last week when they agreed to let hearing officers consider written reports only and not hear any direct testimony.

"I think this hearing will have a little more meat," Immel said. "The government's intention is to put on about seven witnesses and we are not attempting to close the hearing or anything like that."

Last week, attorneys for Cpl. Marshall Magincalda and Pfc. John Jodka III essentially stopped their Article 32 hearings just as they were getting started by convincing prosecutors and hearing officers to agree to no direct testimony.

An Article 32 hearing is similar to a grand jury proceeding and is part of the military's investigative process.

Instead, the attorneys said they would let the hearing officers determine their clients' fate by simply reading reports compiled by investigators. Jane Siegel, an attorney for Jodka, said airing the contents of those reports in the pretrial hearing could make it difficult to obtain an unbiased jury pool if the cases proceed.

Those first two hearings are not officially closed, but neither of the presiding officers has indicated whether he wants to hear live testimony before writing a report to Lt. Gen. James Mattis, commander of the I Marine Expeditionary Force and the convening authority for the case under the Uniform Code of Military Justice.

Immel declined to say whether he would call any witnesses and would not say whether he planned to call the 21-year-old Shumate to the stand.

In addition to Shumate, Jodka and Magincalda, the Marine Corps on June 21 charged Sgt. Lawrence Hutchins III, Hospitalman 3rd Class Melson Bacos, Cpl. Trent Thomas and Lance Cpls. Tyler Jackson and Robert Pennington with premeditated murder, kidnapping, conspiracy and related offenses in the death of the 52-year-old Awad.

Each man was told when he was charged that he faced the possibility of the death penalty if convicted, but the prosecutor in Jodka's hearing said last week that the government did not intend to seek that punishment against the Encinitas-raised private.

In documents filed by the prosecution, the government alleges the men conspired to kidnap and kill Awad and then stage the killing scene to make it appear he was an insurgent planting a roadside bomb who had fired upon the squad as it patrolled the village.

Shumate is specifically alleged to have been one of the men who shot Awad with his M-16 rifle and later lied to investigators about what happened.

Immel said Shumate, an infantryman who joined the Marine Corps in February 2005 and was on his first assignment to Iraq, is not guilty of the crimes he is charged with committing.

"He is the kind of Marine we should all be proud of," the attorney said. "He's a kid who just two years ago was a high school football star who joined the Marine Corps and was trying to do his best in Iraq and just following the orders of those above him."

Shumate's parents, Jerry and Diann, also have maintained their son's innocence in interviews with the North County Times.

Reached at her home in the small town of Matlock in western Washington state Wednesday morning, Diann Shumate said she was in the midst of packing so she, her husband and their daughter could make the more than 1,000-mile drive to Camp Pendleton to be present for the hearing.

"I'm hopeful and I'm scared," she said. "My kids have never been in trouble and I just don't know what to expect."

She last spoke with her son Monday, she said, adding he has been battling depression as a result of being locked up in the base brig since he and his squad mates were ordered to return to Camp Pendleton from Iraq in late May.

"He's not used to being cooped up for too long and I know it is depressing for him and he deals with it by sleeping a lot," she said. "I just don't believe he or any of the other men have done anything wrong."

The men are all members of the 2nd Platoon of Kilo Company from the base's 3rd Battalion, 5th Marine Regiment.

Pretrial hearings for Bacos and Pennington are scheduled for Sept. 25 while the hearings for Hutchins, Jackson and Thomas are set for Oct. 16, although Marine Corps officials caution that any or all could be rescheduled.

At the conclusion of the hearings, Lt. Gen. Mattis will issue a decision based on each hearing officer's report. He could order their cases to move forward to court-martial, be dismissed or be subject to some other form of adjudication.

Another investigation involving a different Camp Pendleton unit and the deaths of 24 Iraqis in the city of Haditha last November is reportedly nearing completion. No charges have been filed in that case, which involves about a dozen members of a platoon from the 3rd Battalion, 1st Marine Regiment.

The result of a separate probe into whether Marine commanders in Iraq failed to properly investigate the Haditha case has been sealed until the conclusion of the criminal probe by the Naval Criminal Investigative Service.

The Haditha incident has drawn much more attention than the Hamdania case, in part because of statements from U.S. Rep. John Murtha, D-Pa., who has alleged the squad killed Iraqi civilians in cold blood.

-- Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

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Here we go wrote on Sep 7, 2006 4:58 AM:Now we get to hear from all of you that hate the military again! Boy, Am I looking forward to your WORDS of wisdom and knowledge, NOT!

Cause to Pause wrote on Sep 7, 2006 6:36 AM: NCT would do well by clearing up a very confusing matter for we the reading public: In the above article, of Sept 6, NCT report entitled, "Next Hamdania hearing set for Tuesday," NCT stated that, "An Article 32 hearing is similar to a grand jury proceeding and is part of the military's investigative process." Another newspaper reports, of the same date, that an Article 32 hearing is held by the Commanding Officer to determine if Probable Cause is present in the evidence, and if the case should be referred to a Court Martial. In the above report NCT states that the Article 32 is being held by "hearing officers." Which is it to be, commanding officer or hearing officers? In addition, according to the case time-line reported in this news paper the eight men have been under arrest and in confinement since May of this year. The following excerpt from the Uniform Code of Military Justice (UCMJ)states: 809. ART. 9. IMPOSITION OF RESTRAINT (d) No person may be ordered into arrest or confinement except for probable cause. Question: If Probable Cause has not been established by an Article 32, held by the Commanding Officer, why have the eight men been into arrest and confinement and at times placed in shackles? OUR MEN SHOULD BE TREATED WITH RESPECT AND ACCORDING TO THE LAWS LAID DOWN IN THE UCMJ! We take our very young men and send them into harms way. We send them there just months out of high school and expect them to make decisions and sort things out. Murder in any circumstances is unacceptable; however, I want them to have the benefit of the doubt and for the UCMJ to be followed to the letter. I sincerely hope that some one's political agenda is not being played out here as in the case of U.S. Rep. John Murtha.

two sided coin wrote on Sep 7, 2006 6:40 AM:And from all you "hero proclaiming" visionaries and camp followers too. NOT!

John1- to two sided coin wrote on Sep 7, 2006 7:03 AM:"Camp Followers"--- why the derogatory?

Here we go again wrote on Sep 7, 2006 7:30 AM:Boy I can't wait to see all the kill the marine words from all you people who for some reason don't and won't get it threw your head this WAR not a TEA PARTY. It is ok for the emeney to kill our men and get away with it,but god forbid one of ours should shot to defend themselves..... And to the commet made by too sised coin they are HERO"S you ever fought for your country. I dought it. You people would be the first to call for the marines or police if you were in trouble to, bad they can't say sorry we don't want to . Take a good look at what these men and all the men in Iraq have to do to stay alive there. They can't even go out durning the daylight as snipers will pick them off. Better yet why don't you go there for 24 hours and see how easy it. NOT. Did you ever think this man who was suppose to be a cripple became a criplle by one of his own bombs going off while setting it up to kill our men. Can wait to here all the negitive words about this post. That's ok because without our miltiary there would be no freedom of speach like this page!!

Goatskull wrote on Sep 7, 2006 8:56 AM:I say this and I say this again. No one knows the facts yet.

Goatskull wrote on Sep 7, 2006 8:59 AM:I say this and I say this again. No one knows the facts yet.

To here we go again wrote on Sep 7, 2006 12:03 PM:Dude.....are crazy?? Who is saying it is ok for the enemy to kill our people but not the other way around. The these guys are being accused of knowlingly killing an innocent man. Guess what? The Iraqis are not the enemy. The terrorists are the enemy(wether they are Iraqi, Arab or what ever). If these guys did actually suspect that this guy was an insurgent or aiding insurgents then lesser or even no charges will be appropriate. I they are totally innocent then great. No one knows yet.

2 sided coin wrote on Sep 7, 2006 3:17 PM:John1, I am sorry if I sounded too derogatory, I really didnt mean it. I was responding to the sarcastic put- down from "Here We Go Again". In truth I absolutely believe in "innocent till proven guilty" and I am not prejudging. I do get awfully sick of those who lump every Iraqi into the category of being an enemy; and the absolute defense of any service person. There just may be some bad apples in some branch of the service. Some unauthorized things may have happened that have nothing to do with self defense. I hope the evidence will show us what really happened in Hamdania and if necessary the court marshal will weigh the evidence. I am waiting.

Harry wrote on Sep 7, 2006 3:39 PM:Comments along the lines of "here we go" don't do the accused any good. They sound as if he has already decided that they are guilty so they need excuses and public support. I wish he would let the justice system work--they really might be innocent and not need his cover.

C.R . wrote on Sep 7, 2006 5:11 PM:To "here we go again": The Iraqi's are not the "enemy" here. If you had been paying attention you would know that the U.S. is in Iraq to help them become a democracy. At least that is the official story. The U.S. is there to set up a new government, train an Iraqi Army, and establish another a U.S. military presence in the Middle East. In no scenario are the Iraqi people the enemy. Do you really think all Iraqis are the enemy of the U.S.? No innocent people at all live in Iraq? Think about what you are saying before you say it. This case accuses U.S. Marines of intentionally killing an innocent Iraqi citizen and then attempting to COVER IT UP. That is the accusation and apparently the investigation yielded enough evidence for an arrest. So let the defense attorneys have their turn, let them explain the cover up and the cast doubt on the prosecutions case. I have confidence these charges will be dropped, but let’s let the process work. Using the blanket defense of "it's a war not a tea party" to excuse alleged war crimes is ridiculous and in fact makes it sound like these guys really are guilty – they just shouldn’t be punished because the crime was committed during wartime. Think about it.

reminder wrote on Sep 7, 2006 6:49 PM:The story makes no sense. If anyone is familiar with the Marine Corps and the training of the troops you would know that this story about the guys setting up the murder and executing it is as hard to believe as "Elvis has left the building". These Marines MAY have taken out an insurgent and that is as far as it goes. There is NO WAY in _ _ _ _ that they picked this guy at random and shot him in cold blood. It doesn't happen in Watts let alone by these highly disciplined Marines. MOTIVE, MOTIVE, MOTIVE!

John1- to ALL wrote on Sep 7, 2006 9:38 PM:I have met Lcpl Jerry Shumate and his family. No matter what you individually may personally believe, Lcpl Shumate is an honorable young man and his parents and friends are doing their very best to cope. His mother's careworn eyes ever stay with me. And whatever you may think to believe about the Eight's circumstances of incarceration, it is incontrovertible that these men were brought straight from combat in Iraq to essential solitary confinement and shackled without cause or charge for 30 days after their return. While the shackles are gone from their limbs, the sound of the chains remain in their minds, along with the effects of going from combat-->incarceration. My son, Pfc John, confirms each time I see him that all remain strong while working through this double stress essentially alone. While you all "wait for the process" keep John, Jerry and other of the Eight in your thoughts because if any of these young men were yours, you'd want us to remember them in our thoughts, too. Send them a note, tell them you hope it works out, you're thinking of them and you hope they are proven innocent and given their rights under law and precedent, just as you have written here, no more, no less. It will do you all some real good.

AW4CRYINOUTLOUD wrote on Sep 18, 2006 6:00 AM:to John 1 - Hi dad of Pfc John. I had never blogged until this happened to our guys at Camp Pendleton. I have written to your son, to Bacos,Jackson, Hutchins, and this weekend I mailed a letter to Shumate. I also wrote to General Natonkis several weeks ago. Also to Generals Sattler, Hagee and Pace. Also to Governor Jeb Bush. I received a short 'thank you' from Pace. I received a nice reply from Governor Bush, who said he would forward it. I also received a lengthy, caring reply from General Sattler. Of course no one can comment but at least they are all aware that this country is behind your son and all of the others; including the guys who are involved in the Haditha incident.The P8 are in my thoughts each and every day. I 'do' have a son. Only one. He's been taught the same values that you've taught yours; The same values that the Corps has taught all Marines. I trust in their word; Not the word of any Iraqi. Tell your son to hold his head high. Don't let a 'few' discourage you. Stay strong for your wife and family. I have more letters to write....God Bless the United Sataes Marines. They are the best of this country.

AW4CRYINOUTLOUD wrote on Sep 19, 2006 12:44 PM:Apology to Marines: If I could reach my butt I'd kick it myself. My previous blog on 9/18/06 was at 6:00AM in the morning. I had not slept all night so I got on the computer, blogged, and didn't check my blog. At the end I said, "God Bless the United States Marines. They are the best of this country." In my droopy-eyed condition I screwed up and mis-spelled 'States'. I hit the keys and ended up with 'Sataes'. Just have to set the record straight. I have tremendous respect for The UNITED STATES MARINES, so I apologize to them and will see if I can possibly kick my own butt. Semper Fi!!.. I'm a civilian, but I Am "Always Faithful". Oh yeah....OORAH!!!

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