Attorney moves to close Hamdania hearing
By: MARK WALKER - Staff Writer | ∞
CAMP PENDLETON -- An attorney for a Marine corporal accused in the April slaying of an Iraqi civilian asked a military judge Tuesday to close portions of a pretrial hearing to the public and news media.
Joseph Low, a civilian attorney representing Cpl. Marshall L. Magincalda, told the judge that some of the information that would come out during the hearing could possibly prejudice a panel of military officers and enlisted men empaneled to hear the case against his client.
The judge, Lt. Col. Eugene Robinson, is expected to rule on the motion this morning.
Before he does so, an attorney representing the North County Times will ask the court to hear argument on why the hearing should not be closed.
Low's request came on the first of three days of legal arguments from prosecutors and defense attorneys about various motions in advance of Magincalda's trial, which is scheduled to start June 11.
A native of Manteca, Magincalda is charged with murder, kidnapping, conspiracy and related offenses in the abduction and shooting death of Iraq's Hashim Ibrahim Awad on April 26, 2006, in the village of Hamdania. The village is in the volatile Anbar province west of Baghdad.
Magincalda has pleaded not guilty.
Low contended that extensive coverage of the Hamdania case, in which five of the eight men originally charged have reached plea agreements with prosecutors, has potentially tainted potential jury members. He said coverage of this week's pretrial hearing could further jeopardize Magincalda's right to a fair trial.
The three areas in which Low asked the court to close the proceedings were not clearly identified. Shortly after Low made his request, Robinson adjourned the hearing until this morning.
Editors for the North County Times said they will contest the move to shutter the hearing on the basis that like civilian trials, military legal proceedings are open to the public under the Uniform Code of Military Justice and that there has been widespread public interest in the Hamdania case.
Tuesday's proceedings began with the defense asking the judge not to restrict how much jurors could be told about the five men who reached plea deals. The government does not want the jurors to know how much jail time each of those men received.
One of Magincalda's appointed military attorneys, Lt. Col. Philip Simmons, told the judge that Navy Corpsman Melson Bacos, one of the men who got a plea deal and was sentenced to only a year in custody, has motivation to say whatever prosecutors want the jurors to hear. Bacos is required to testify for the prosecution as a condition of his plea agreement.
"Our case is about our ability to show his motive to lie," Simmons said. "We believe he pleaded guilty to a crime he didn't commit because of the incredibly good deal he got when he could have been facing life in prison."
Prosecutors charged eight men from the 3rd Battalion, 5th Marine Regiment with murder and related offenses last June. The five who struck plea deals have been sentenced to terms ranging from the 12 months that Bacos received to eight years behind bars that was handed down to Lance Cpl. Robert Pennington.
Besides Magincalda, the remaining defendants are Cpl. Trent Thomas and the squad leader, Sgt. Lawrence Hutchins III.
The Hamdania case is separate from one involving Marines from another base regiment charged in the slayings of 24 Iraqi civilians in the city of Haditha in November 2005.
Hutchins is scheduled to go to trial starting July 16. Thomas, who had pleaded guilty but then was allowed to withdraw that plea and proceed to trial, is scheduled to go on trial starting June 18.
-- Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
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MorallyRight1 wrote on Apr 17, 2007 11:52 PM:What? Yesterday you didn't even have a reporter taking credit for the very brief article, yet today you are having your attorneys (more thna one?) object to the fact that there is a request on the table to keep media out of only certain proceedings. Haven't you ever heard of 'Closed Door Hearings?' Schools do it, Congress does it. Every level of government, from the very casual to the most stringent (including the Marine Corps)does just that on a daily basis. Yet, now with these three remaining accused, wherein yesterday there wasn't even a reporter interested, you want to close in for the kill? If I am not mistaken, the media has been held responsible for the judging, jury and sentencing in these very proceedings, even before the proceedings actually even began. And, the liklihood of ever getting an unbiased judge (the duplication in these very proceedings is almost unbelievable), much less an untainted (or unbiased, for that matter) military jury is all but gone. Yes, the public needs your newspaper and that of others, and the news contained therein. Yes, you have every constitutional right to print whatever you want. As do these men have the right to a fair and impartial trial. But, I am quite certain there are many, many facts, issues and events that go on every day, that are just as important, just a newsworthy, that you never even know about. But do those matter to you? Will you loose that many sales by maybe waiting until the proceedings in question have been completed, to report that part? For goodness sake, there are very few reporters even bothering to cover the war these days, up close and personal, because it is 'old news'? Or, maybe ,just possibly, there are some events/issues that justice might be better served if not accompanied with the morning paper. This newspaper has not given even a portion of the attention to the Haditha case as it has Hamdania. Why is that? Yet your editors are complaining? Such a shame once again.
AW4cryinoutloud wrote on Apr 18, 2007 2:08 PM:I 've been trying to understand the press in this country. I've come to the conclusion, after having read all of the NCTimes articles and having researched many other Mainstream media reports, that regardless of the bias of Mainstream media or reporting by NCTimes (for which I'm grateful), the thing that bothers me runs neck and neck with MorallyRight1's view that there are some things that need be left alone to protect the accused's chance for a fair trial. Yet this whole thing has not been "fair" from Iraq to the U.S. If the press is going to be allowed to report everything from the viewpoint of the prosecution, then I feel the press is obligated to follow up on all of the negative aspects brought out by the defense concerning NCIS, Unauthorized leaks by military officials and politicians, and the Marine Corps' failure to provide a "fair and impartial" process for the accused. If the prosecution is allowed to have "its" version and all of its accusations out there, then the defense should be allowed the same. If the Prosecution is allowed weeks in Iraq, then the Defense should be allowed the same. Thus far, it has been a one-sided Persecution and nothing more. Americans have the right to know all of the facts. The prosecution doesn't own the courtroom, or does it? What the hell is the defense there for if they aren't allowed to DEFEND???
Justice wrote on Apr 19, 2007 10:17 AM:Dispite all the background noise to the contrary, let the prosecution and defense continue in open court.
Billy wrote on Apr 20, 2007 4:09 AM:One of the reasons that we in this nation have a right to an "open" hearing and trial is precisely because the news media (and other concerned citizens) needs to attend so that no one is railroaded or framed. Kind of unusual that the defence attorney doesn't want the public to know whats going on. Tough! Its our right to know.
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