Iraqis won't testify in Hamdania killing

By: MARK WALKER - Staff Writer | Wednesday, February 28, 2007 9:57 PM PST ∞

CAMP PENDLETON ---- Four Iraqis with whom Marine Corps officials were working to bring to Camp Pendleton to testify in the slaying of an Iraqi civilian last year are no longer willing to testify and will not be making the trip, a military judge was told Wednesday.

Lt. Col. John Baker made the disclosure during arguments in advance of the scheduled April 23 trial of Sgt. Lawrence Hutchins III.

Hutchins' attorneys sought this week to suppress an implicating statement he had made to investigators, as well as to get government approval for a second trip to Iraq to interview witnesses.

Hutchins is charged with leading a platoon of seven Marines and a Navy corpsman who prosecutors say abducted and killed a 52-year-old retired Iraqi policeman in the village of Hamdania, Iraq, on April 26.

The corpsman and five of the Marines who Hutchins led in Hamdania have pleaded guilty to their roles in the killing, and each say it was Hutchins who led the plot. He faces murder, conspiracy, kidnapping and related offenses in the slaying of a man that prosecutors contend had no insurgent ties and was seized from his home in the middle of the night.

Baker told Lt. Col. Jeffrey Meeks, the judge presiding over Hutchins' court-martial, that the witnesses in the shooting death of Hashim Ibrahim Awad were to be here this week to testify.

"The four Iraqis who were coming to the U.S. now are no longer willing to do so," Baker said.

The Iraqis were expected to testify in the case against Hutchins and two remaining defendants, Cpl. Trent Thomas and Lance Cpl. Marshall Magincalda.

Meeks did not rule on either defense motion when the court adjourned late Wednesday afternoon. He said he wanted more time to consider the arguments before issuing a decision within the next few days.

In asking for a second defense trip to Iraq, Hutchins' attorney, Lt. Col. Joseph Smith, said a visit arranged for the lawyers to Hamdania on Jan. 25 was hampered because the group had only 45 minutes on the ground and no chance to interview witnesses they contend could help their client's case.

They want Meeks to order a second trip ---- one that Marine Corps officials testified would be fraught with problems, because the area northwest of Baghdad is not under direct U.S. control and is an area of frequent insurgent attacks.

"We do understand the security concerns, but the law provides equal access to witnesses," Smith told Meeks.

But the judge challenged Smith to identify what he believed would be accomplished by a second trip and pointed out the dangers.

"There is a war going on in Iraq," Meeks said. "It is not like going to Boston to visit people."

When the squad that Hutchins led was in Hamdania, U.S. forces were conducting regular patrols and the area was considered safer.

But Lt. Col. Clifford Weinstein testified that the area hasn't been safe since November. Providing the kind of security that it would take to allow attorneys to go around the village and knock on doors would require a battalion-size force of 1,000 to 1,500 troops, he said.

The defense did win on one point this week: Lt. Gen. James Mattis, the convening authority over the case as head of the I Marine Expeditionary Force and all Marines in the Middle East, approved the appointment of an investigator to help sift through classified material about the squad's efforts at counterintelligence while in Hamdania. That material could contain evidence that would help Hutchins, Smith said.

In arguing to suppress a seven-page, single-spaced statement that Hutchins wrote in Iraq when confronted with Awad's killing, the defense contended it was written under duress and after Hutchins had asked for an attorney but not been provided one.

As a result, the statement should be considered coerced, and anything in it that implicates him should not be allowed into evidence at his trial, the defense argued.

But Baker, the lead prosecutor, said the statement was made voluntarily and at Hutchins' request.

Baker also said that Hutchins' statement to an investigator in Iraq ---- that he fired three bullets into Awad's head as the man struggled to breathe, minutes after being shot by the members of his squad ---- was voluntary and should be allowed into evidence.

Hutchins' lead attorney, Rich Brannon, said that despite the fact that the five men who have pleaded guilty are now required to testify against his client, and are expected to name him as the mastermind of the killing, he believes the 22-year-old Massachusetts native is innocent.

"I believe in my client and I believe he is innocent until proven guilty," Brannon said, adding that the defense will work to tie the victim to the insurgency, either through his actions or those of his relatives.

All of the accused are from Camp Pendleton's 3rd Battalion, 5th Marine Regiment.

"Anytime you have five co-defendants willing to testify, it makes it more difficult," Brannon said.

Hutchins, who also is charged with assaulting three other Iraqis, did not testify during this week's hearing. He faces life in prison if a military jury convicts him and he receives the maximum possible sentence.

Thomas is due in a base courtroom this morning for arraignment and motions in his case. He withdrew guilty pleas he had entered on Jan. 18 and is being allowed to take his case to trial. His plea withdrawal resulted in charges being refiled against him that now include premeditated murder. He was previously charged with unpremeditated murder.

Those who have pleaded guilty have testified that Awad's killing was meant to "send a message" to insurgents that the Marines were tired of being attacked.

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

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John1 wrote on Feb 28, 2007 10:42 PM:Now why would an investigator be assigned?

My2cents: wrote on Feb 28, 2007 11:02 PM:The eye witness testimony of the Marines who have already accepted a plea deal, will hold more weight with the court than the testimony of the Iraqi eye witnesses anyway. We have heard so many aspersions against the Iraqi eye witnesses anyway, it is doubtful that their testimony would be persuasive. The sworn testimony of US Marines carries with it the dignity and honor of the corps. I can't believe they would give false testimony against their brothers.

Charles Cheng wrote on Mar 1, 2007 3:44 AM:I just hope the defense will find a brilliant arguement to get Hutchins out of the charges. Regardless of what happened, he should not spend life in prison.

John1 wrote on Mar 1, 2007 5:13 AM:Well, my son is one of the Marines who will testify and he doesn't know if Awad was an insurgent or not. That won't clear up much. It would seem to me that the Confrontation Clause of the US Constitution demands that Hutchins be given the opportunity to question the Iraqis if their interview testimonial records are used by the prosecution. Not only that, but Hutchins should have the opportunity to cross examine the company and battalion leadership as re: orders given for HVI "capture or kill".

Bill wrote on Mar 1, 2007 9:20 AM:When Awad was taken and killed, it had nothing to do with whether or not he was an insurgent. They didn't know and it didn't matter to them; he was just easy to take, because he was home with his family. Since that had nothing to do with why he was killed, it has nothing to do with the case.

o2cool1 wrote on Mar 1, 2007 10:40 AM:Iraqi's are unable to attend as they have other commitments planting IED's and don't want to risk saying anything that would shed light on the victim not really being so innocent.

AW4cryinoutloud wrote on Mar 1, 2007 1:14 PM:From the very beginning Sergeant Hutchins and his men have been denied the rights guaranteed under the UCMJ; also under the laws of this country. It's a "right" and a protection for the accused to face their accusers. The accusers were the Iraqis. When you think about it; they should be allowed to face John Murtha who; in one of his comments on Haditha, also included the Hamdania Marines. From the beginning the prosecution has used unauthorized "leaked" information. It's a "fact" brought out in the hearings. There's still supposed to be an ongoing investigation into it. In Iraq the Prosecution took the word of Iraqis with full knowledge that those Iraqis could be insurgents or insurgent sympathizers, with full knowledge that Iraqis lie in order to receive financial compensation from our government, with full knowledge of the training our Marines have before going into "known" insurgent towns, with full knowledge knowing these Marines (and the Haditha Marines) were specifically sent into these towns with specific goals. IF NCIS investigators want to profess to have no knowledge of what the Corps trains its men, and sanctions, then NCIS should never have been allowed to investigate, much less "conclude" anything without knowing "all" the facts. Meeks says that the Sergeant's defense attorneys return to Iraq would be fraught with problems and things are so much worse now that it would take 1,000 to 1,500 troops to protect the attorneys; Has anyone informed Meeks about the "SURGE"? Now would be a great time to go to Iraq. If things had even been 50% less safe at the time the Sergeant and his men were there; why did they not have at least 500 to 750 troops doing what the Sergeant and his men were ordered to do? The weight of this thing does not rest on the shoulders of the accused; It rests on those above them. These young men are being made sacrificial lambs.If not for the Corps and NCIS we'd have eight good young men over there right now doing what they were trained to do. We'd also have the Haditha Marines over there doing the same. Instead, this government has taken the word of "stringers", Rights groups and Iraqis. It has tried, and has succeeded in a few instances, to break its own. The classified material needs to be placed into evidence for the Defense. There has been too much Undue Command Influence already. "Some"one needs to stand up for what's right and release this so-called classified material and give the defense the same access the investigators and prosecution have. Withholding "any" evidence that denies the accused his right to a fair trial, is not following the UCMJ and its so-called protections afforded under the Corroboration Rule. There has been NO corroboration or Proof provided by the Prosecution. Only coerced statements. I thought the Duke LaCrosse case was the worst example of injustice I'd ever heard of. NCIS investigators have just about ruined the integrity of the Marine Corps. Sacrificing one's own for political expediency will not restore it. For the Marine Corps Brass...Why do you think a Marine like Chesty Puller; who was awarded the Navy Cross 5 times, said, "Take me to the Brig, I want to see the Real Marines"? He knew where the heart and strength of the Marine Corps resided. I think you've forgotten.

MorallyRight1 wrote on Mar 1, 2007 1:21 PM:02cool1 BINGO...if they don't want to back up their accusations, then let these men go. The NCIS statements cannot hold credence, as they were done without any support other than their word, which we now know is less than truthful. You have no witnesses, other than some young coerced, fearful Marines that believed what they were told 24-7 in order to extract a plea from them. You have no evidence. You have not made possible that these Marines face their accusers, a constitution-given right. You have flagrantly held these men illegally and unnecessarily (look at the freedoms the Hidatha Marines have enjoyed!) since the onset. You have denied them legal counsel during interrogations. You have held them without charging them illegally. You have not given them the right to a speedy trial. You have treated them to Solitary Confinment, as an additional punishment. You have ceased to pay them, so that their finances AND their families suffer immeasurably. You have withheld the data YOU collected on the supposed 'innocent 'victim, as well as other evidence. When are you, the Marine Corps CO, going to stand up and act like real men, like these you produced from extensive training, and admit when you are wrong and release these men? Your benefits for doing so would be far more reaching, than the damage to your ego. You feel that these men need to answer for their actions, yet you don't?

Wayne wrote on Mar 1, 2007 3:34 PM:Do we need to remind you john1 that whether the victim was an "insurgent" or not isn't the issue. If he was he needed to be arrested, not murdered. Your son has already plead guilty and gone on record that it was a premeditated crime. You love to muddy the waters.

Spare us..... wrote on Mar 2, 2007 9:00 AM:"Take me to Leavenworth, I want to see the real Americans." Doesn't make any more sense than Chesty Pullers' oft quoted but inapplicable line about the criminals in the brig.

John1 to Wayne wrote on Mar 2, 2007 10:43 PM:Wayne, I don't understand your comments nor your objections. My son doesn't know if Awad was an insurgent or not. I think that's pretty clear. JJ's testimony will shed no light as to that question and Hutchins must still be given his rights under the Confrontation Clause, and that includes confronting my son's testimony.

AW4cryinoutloud wrote on Mar 3, 2007 2:16 AM:To Spare us: If you know anything about Chesty Puller you should be aware that he was one of the toughest Marines ever to fight for this country. His awareness and instinct in battle surpassed the average fighting man, or the average leader. Under impossible odds, his men trusted his every order because they knew and had faith that he'd pull them through (pardon the pun). When he referred to the real Marines being in the Brig it seems to me that he understood that the ones who did the actual fighting and sacrificed everything for their brothers, and may have gotten themselves in trouble doing it; those were the Real Marines...NOT the brass who, to this day, spend more time covering their asses and not dirtying their uniforms, than standing up for their own; Brass who are the very ones who preach all the Oorah values and the Core Values, but can't live up to their own teachings of Corps de Esprit. THAT makes more sense and is more applicable today than you may realize. FYI; Not everyone in the Brig is a criminal. There are also those who are innocent yet accused. There have been no trials. No one has yet been declared a criminal other than by those who choose to rush to judgment.

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