Manslaughter charged in Fallujah killings

By: MARK WALKER - Staff Writer | Thursday, August 16, 2007 10:34 PM PDT ∞

NORTH COUNTY ---- A former Camp Pendleton Marine was charged Thursday with voluntary manslaughter in the shooting deaths of two Iraqi detainees his squad had captured during a battle for the city of Fallujah nearly three years ago.

Jose Nazario Jr. of Riverside did not enter a plea during a brief appearance before a magistrate in U.S. District Court in Riverside. He is due back in court for a preliminary hearing on Sept. 5 with formal arraignment and entering of a plea one week later.

After his appearance, the 27-year-old Nazario maintained his innocence.

"I would just like to say that I am a U.S. Marine who fought for his country and I am innocent of these charges," he told reporters.

Nazario was a sergeant when he led a platoon of Camp Pendleton troops under investigation for the slaying of four Iraqi detainees on Nov. 9, 2004. The incident and the criminal investigation were first reported by the North County Times in late June.

Nazario's attorney, Emery Ledger of Newport Beach, said his client was disheartened but prepared to fight.

"He's a true Marine," Ledger said, adding the government lacks evidence beyond hearsay statements from men who served with Nazario.

Nazario faces a maximum jail sentence of 10 years if convicted.

Marine Corps officials declined to comment, deferring to the U.S. attorney's office in Los Angeles, which filed the charge. A spokesman for that office also declined comment.

A criminal complaint included in charging documents alleges that Nazario shot two detainees "in heat of passion caused by adequate provocation unlawfully and intentionally killed two unarmed male human beings."

The complaint includes an affidavit from Naval Criminal Investigative Service Special Agent Mark Fox, who wrote that Nazario and other Marines from Camp Pendleton's 3rd Platoon, Kilo Company from the base's 3rd Battalion, 1st Marine Regiment detained the insurgents during a house search.

The document contends that Nazario shot the two in the head at close range and that he directed other Marines to shoot two other Iraqis.

"Who else wants to kill these guys, because I don't want to do it all myself?" Nazario is quoted as telling his Marines in the Fox affidavit.

The affidavit also states that Nazario told an unidentified Marine that the squad needed "to take care of them" so the unit could complete its assignment of moving to the center of the city, according to the affidavit.

"We can't be here all day," he allegedly said. "You know what has to be done."

Ledger said those purported statements from his client are based on "multiple levels of hearsay."

The affidavit also states that Nazario radioed an unknown Marine and told that person that four insurgents had been detained and that several AK-47 assault rifles and ammunition had been discovered.

The charging represents the fourth murder case filed against Camp Pendleton-based troops since the invasion of Iraq in March 2003. It may be the most difficult to prove, according to Gary Solis, a former Marine prosecutor who now teaches the law of war at Washington's Georgetown University.

There are no bodies to be examined, no photographs and the dead Iraqis were never identified. The case boils down to statements made by Marines who were members of the squad and present when the killings occurred, he said.

"It's going to be a very hard case to prove," Solis said during a telephone interview. "There's a lack of tangible evidence, it happened long ago in a faraway place."

Solis said he thinks it will be difficult to get a jury to convict Nazario.

"The public already has a hard time getting its head around the notion that we train people and send them to war and then they're charged with killing someone in a war setting. This is asking a jury to convict someone of murder on the battlefield."

The probe launched several months ago is targeting one other former Marine as well as two men still in the service, according to a source with intimate knowledge of the investigation.

Nazario, who is free on a $50,000 property bond, is being prosecuted in federal court because he no longer is in the service and therefore the military does not have legal jurisdiction.

The fight for Fallujah was one of the major battles of the Iraq war.

On Nov. 6, 2004, a main group of troops from Camp Pendleton's 3rd Battalion, 1st and 5th Marine Regiments, along with supporting Marine units and U.S. Army forces, launched an assault to wrest control of the city from insurgents.

Intense fighting took place during the next week, with the final resistance cleared by late December. Several Camp Pendleton Marines were later honored with awards, including two Navy Cross citations for valorous actions during the fighting.

Ninety-five U.S. servicemen were killed and more than 600 were wounded. An estimated 1,350 insurgents were killed and 1,000 captured.

The rules of engagement were loosened during the battle because U.S. and Iraqi authorities had spent a week telling residents to leave and dropping leaflets over the city warning that a battle was coming.

Despite that, the law or armed conflict that governs the military forbids the shooting of any enemy combatant who has been disarmed and does not pose a threat.

Nazario was fired from his job as a Riverside police officer last week solely on the basis of the allegations, his attorney said. He was in a 90-day probationary period when he was let go.

"The heartbreaking thing for him is the termination," Ledger said, adding he is defending Nazario free of charge. "He now has no means to support his family."

Earlier this week, Ed Buice, a spokesman at the Naval Criminal Investigative Service headquarters in Washington, said the Fallujah incident remains under investigation.

"Each case is unique," Buice said in an e-mail in response to inquiries. "There's no way to know (how) long the investigation will last."

The allegation reached the Department of the Navy law enforcement agency when a former squad member, Cpl. Ryan Weemer, reportedly said during a job interview with the Secret Service that he was aware of a "wrongful death."

Weemer, 24, a Kentucky resident, hasn't spoken to the media but an attorney he has hired, Paul Hackett of Ohio, has described the former corporal as a hero who did nothing wrong in Fallujah.

Hackett said Wednesday he is unaware of the status of the probe and that Weemer has declined several requests to speak with investigators. Hackett also has instructed Weemer not to speak with reporters.

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

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