CAMP PENDLETON: Hearing in alleged prisoner killings to start Friday

Three Marines charged in deaths during battle for Fallujah

By MARK WALKER - Staff Writer | Wednesday, March 26, 2008 9:47 PM PDT ∞

CAMP PENDLETON ---- A court hearing is scheduled to begin Friday in the case of three Marines charged with killing prisoners during the 2004 battle for Fallujah, Iraq.

Sgt. Jermaine Nelson is accused of murder and dereliction of duty for his alleged role in the incident, which took place on Nov. 9, 2004, according to Marine Corps officials.

Prosecutors say that Nelson and two other members of his squad shot four unarmed prisoners captured during a fight to wrest the city from insurgent control.

Attorneys representing the accused troops contend there is no evidence beyond a statement from one of the men.

Prosecutors have no forensic evidence and no named victims or bodies, the attorneys say.

Nelson's attorney, Joseph Low of Orange County, said Wednesday that his client should not be facing any charges.

"This is another case of a junior Marine doing what he was told to do on the battlefield," Low said during a telephone interview. "The law requires that you not only prove there was a crime, but that there's a dead body somewhere. Where's that body?"

Nelson, 26, joined the Marine Corps in January 2001 and is an infantry assault troop. His hearing is expected to last one to two days, during which Marine prosecutors will introduce evidence they contend justify Nelson's court-martial.

Presiding over the hearing is Lt. Col. Thomas McCann, who ultimately will issue a report stating whether he believes there is probable cause try Nelson.

A decision on whether that occurs is up to Lt. Gen. Samuel Helland, commander of Marine Corps forces in the Middle East.

Last week, the Marine Corps announced it had recalled Sgt. Ryan Weemer to active duty and charged him with one count of unpremeditated murder in the incident.

The military opened an investigation into the purported slayings after Weemer told Secret Service agents that he was aware of unlawful deaths during the fighting in Fallujah, authorities have said.

The man who led Weemer and Nelson at Fallujah, former Marine Sgt. Jose Nazario Jr., was charged by the U.S. attorney in Riverside County in August with two counts of involuntary manslaughter.

He is being prosecuted as a civilian because he was no longer subject to being recalled into the Marine Corps and prosecuted in military court.

Nazario's attorney, Kevin McDermott, says the prosecution sends a dangerous message to troops in Iraq.

Basing it on Weemer's purported statement also could become a precedent for other investigations into years-old battlefield actions based on one man's statements, McDermott has said.

In an affidavit released last summer, Mark Fox, an investigator with the Naval Criminal Investigative Service, said that Nazario and other Kilo Company Marines from the 3rd Battalion, 1st Marine Regiment captured the insurgents during house-to-house fighting.

The Fox affidavit alleged that Nazario shot two insurgents in the head and directed his 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, according to the affidavit.

Fallujah became a flash point in early 2004 after insurgents ambushed and killed three Blackwater Security civilian contractors and hanged two of their corpses from a bridge.

U.S. forces left the city shortly thereafter at the request of the Iraqi government.

Six months later, U.S. troops returned and launched a massive fight to retake the city. The resistance was overcome by late December, and several Camp Pendleton Marines were later honored with awards for valorous actions.

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

While the military's rules of engagement were loosened during the battle, the law of armed conflict makes it a crime to kill captured enemy combatants.

The Fallujah prosecutions are separate from the case involving the slaying of 24 Iraqi civilians in the city of Haditha in November 2005.

The first court-martial of four base Marines facing charges in that incident begins Friday with the start of the trial of Lance Cpl. Stephen Tatum, who is charged with two counts of involuntary manslaughter.

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

First name only. Comments including last names, contact addresses, e-mail addresses or phone numbers will be deleted. Attempts to misrepresent your identity or impersonate any person will not be approved. All comments are screened before they appear online, so please keep them brief. Comments reflect the views of those commenting and not necessarily those of the North County Times or its staff writers. Click here to view additional comment policies.