MILITARY: Marine arraigned in 2004 Fallujah killings

Sgt. Jermaine Nelson will enter plea at a later date in alleged shooting of detainee

By MARK WALKER - Staff Writer | Wednesday, June 4, 2008 4:15 PM PDT ∞

CAMP PENDLETON ---- After spending more than a week in jail for refusing to answer a grand jury's questions, a Marine accused of killing a suspected insurgent detainee in the Iraqi city of Fallujah in 2004 was arraigned in a base courtroom Wednesday morning.

Sgt. Jermaine Nelson said during the 25-minute hearing that he would enter a plea to charges of murder and dereliction of duty at a later date. Nelson said little else during the session conducted by Lt. Col. Jeffrey Meeks, the military judge now assigned to the case.

Nelson and two others, former Marine Jose L. Nazario and Sgt. Ryan Weemer, are accused of carrying out the killings inside a Fallujah home that his attorney said was used by the insurgents as a weapons depot.

Flanked by that attorney, Joseph Low of Orange County, and Capt. Bo Bottomley, his assigned military attorney, Nelson answered a series of routine questions posed by Meeks with a simple "Yes, sir." He is scheduled to go on trial by military court-martial on Dec. 8.

After the hearing, Low said Nelson won't testify during the trial and that if he shot anyone in Fallujah on Nov. 9, 2004, he was simply following orders.

"He was in a combat situation and had just helped capture some people after being pinned down by insurgents," Low said. "He was a lance corporal at the time, and he was following the orders of his sergeant."

That sergeant was Nazario, who is being prosecuted in U.S. District Court in Riverside because he is no longer in the Marine Corps and was not subject to recall into the service.

Nelson missed a scheduled arraignment last month after U.S. District Judge Percy Anderson ordered him jailed when he refused to appear before a grand jury in Los Angeles investigating whether to file additional charges against Nazario. Nelson spent eight days in jail before the judge agreed to release him on the condition he attend a grand jury session June 18 in Los Angeles.

"We reached a deal with the judge that calls for my client to at least hear the questions the grand jury has," Low said. "It doesn't mean he will answer any of those questions."

The grand jury, Low said, is investigating whether enhanced charges beyond the two counts of voluntary manslaughter Nazario faces should be filed. Nazario is slated to go on trial in Riverside on July 8.

Weemer is the linchpin in the Fallujah case, which was first reported by the North County Times last summer. The case is built around his statement to a Secret Service investigator during a job interview that he was aware of unlawful killings, according to the Naval Criminal Investigative Service.

Weemer was recalled into the Marine Corps earlier this year and, like Nelson, is charged with one count of unpremeditated murder, a charge akin to second-degree murder. A fact-finding Article 32 hearing for Weemer is scheduled to begin at Camp Pendleton on July 10.

Nelson's arraignment took place in a small courtroom in the Camp Horno area of Camp Pendleton near San Onofre. During the session, it was disclosed that his attorneys are asking Meeks to approve a visit to Fallujah in Iraq's Anbar province, a trip government prosecutors are opposing. A hearing on that issue is set to take place on July 14.

Low said Nelson will ask that his case be heard by a jury with enlisted personnel making up one-third of the panel.

According to an affidavit filed by an investigator when Nazario was charged last year, the Fallujah killings occurred after Nazario radioed in that his squad from Camp Pendleton's 3rd Battalion, 1st Marine Regiment had four detainees in custody.

The investigator, Mark Fox from the Naval Criminal Investigative Service, wrote in the affidavit that Nazario shot two detainees in the head and directed Weemer and Nelson to shoot the two others.

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

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.

Low said there are no named victims, no bodies and no complaining witnesses other than government agents who base their accusations on Weemer's statement.

The question facing juries in the case is whether the Marines acted properly when carrying out orders they were given by higher authority, Low said.

"The defense is, it was a legal order based on their perception," he said. "In the Marine Corps and especially during a battle, you have to absolutely believe that the orders being given are lawful. Their job was to follow the order."

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.

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

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