MILITARY: Civilian jury deliberating fate of former Marine
Jose Nazario charged with killing unarmed detainees in Iraq
By MARK WALKER - Staff Writers | ∞
RIVERSIDE ---- The slaying of four unarmed captives during a 2004 battle for the Iraqi city of Fallujah violated the law of war and requires that a former Marine sergeant be found guilty of manslaughter, a federal prosecutor argued Wednesday.
Assistant U.S. Attorney Jerry Behnke told the jury of nine women and three men who heard the five-day trial of Jose L. Nazario Jr. that the slayings cannot go unpunished.
Jurors deliberated a little more than two hours Wednesday afternoon before being sent home for the night.
During his final arguments, Behnke said that what happened inside a Fallujah house shortly after the battle got under way ignored the laws governing armed conflict, laws he stressed the Marines had been taught to obey.
"Adherence to those rules is very important to the military, to the Marine Corps and to this nation," he said. "If acts like these are not held accountable, then we as a nation have failed."
Nazario, 28, is charged with manslaughter and with leading two other members of his Camp Pendleton squad in the slayings that investigators say took place the morning of Nov. 9, 2004. The bodies of the alleged victims have not been found.
The case has sweeping implications. Defense attorneys say it could affect troops on the battlefield; the prosecution says it is about U.S. morality in war.
Nazario is the first former service member to be tried before a civilian jury for an alleged crime occurring on an overseas battlefield. He was out of the service and not subject to prosecution in military court when the incident came to light, leaving the U.S. attorney as the only entity that could prosecute.
Nazario's attorney, Kevin McDermott, told jurors the government failed to prove there were any killings, failed to produce any forensic evidence of any homicides and had not been able to show any offense was committed.
The prosecution also was unable to disprove hostile intent by the detainees, McDermott said.
"There wasn't a single witness in that living room or kitchen that can tell you these individuals did not exhibit a hostile act or hostile intent," he said.
When the Marines entered the home, they found four "warm" AK-47 assault rifles and an odor of spent gunpowder, McDermott said.
"That house was the definition of hostile intent," he said.
During the trial, three former squad members testified they heard gunshots inside the home and then saw Nazario and two other Marines standing over dead bodies.
The defense never called Nazario or any other witness, instead relying on its contention that the government failed to prove its case beyond a reasonable doubt.
Both sides agreed that the case has meaning far beyond Nazario, who appeared in court Wednesday in a gray suit with a U.S. flag pinned to his lapel.
"We never want anyone ever to second-guess what they were doing," McDermott said of the troops' battlefield decisions. "Your decision is of phenomenal significance to my client and those like him. Do not make it harder for those young men like him."
Behnke stressed that the case was not a referendum on the war in Iraq.
"When the defendant took one of those men into a room and killed him, that was not part of the mission," he said.
Behnke said the testimony of three squad members, each of whom said he heard gunshots and then saw the four detained men dead, was sufficient evidence for a guilty finding.
"They all remembered the same things," he said of the witnesses, rebutting McDermott's earlier assertion those men had confused what happened inside the home.
"We have credible, powerful eyewitness testimony of what occurred in that house," he said. "What happened is those Marines took control of those four men and then executed them."
Nazario is being prosecuted under the Military Extraterritorial Judicial Act, which allows the government to bring cases against former service members for crimes occurring outside the U.S. His case is the first to reach trial since the act was approved by Congress in 2000.
Two of the men he led at Fallujah, Sgts. Ryan Weemer and Jermaine Nelson, face murder and dereliction of duty charges in military court at Camp Pendleton.
Each refused to testify against Nazario last week and were found in criminal contempt by U.S. District Court Judge Stephen Larson, who is presiding over Nazario's trial.
The last government evidence offered at the trial was the playing of a taped phone call between Nazario and Sgt. Nelson recorded by the Naval Criminal Investigative Service as part of its investigation.
On the tape, Nelson, who was then cooperating with investigators, is heard asking Nazario: "Who gave us the orders to kill those four?"
Nazario replies: "I did."
Nazario then explained to Nelson that they could not take time to process the four Iraqis as prisoners because "we were moving."
Nelson and Weemer face a Sept. 29 hearing before Larson to determine what punishment they will face for refusing to testify last week.
Nazario's jury is scheduled to resume its deliberations at 9 a.m. Thursday.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
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Grump wrote on Aug 27, 2008 7:26 PM:"Ask not the butcher how he slaughters the pig, for he too has an unpleasant task" Unnamed Capt Vietnam 1968. This is ridiculous, it was a war zone, those killed were the enemy, war is not glorious like it is in the movies, I know. They would have killed them later in another fight, getting rid of them when they did may have saved some American lives...remember 9/11; remember the burned American bodies hanging from that bridge in Fallujah? One of them was an Oceanside resident.
Herb wrote on Aug 27, 2008 8:14 PM:From the above article it is impossible to tell what really happened on site in Fallujah - the information is too brief. And then there is the journalist's slant on the subject that must be considered.
Our military has a very good system of filtering out the criminally inclined. Then military personnel are trained extensively in the Rules of Engagement. They are assigned leaders that have been trained much more, and where possible, have had experience in the field and in the rules of Engagement.
Yet, with all that preparation, in some an undetected flaw in their character will move to the forefront and they will become the worst of the worst and commit murder. It has happened time and again in just about every military engagement our country has been involved in and we have no other course but to prosecute them.
When this flaw in character moves to the forefront in a leader, the personnel under that leader must rely on their own training and character to see them through.
Since the SGT. was not subject to recall into the Marines, it is right that he be tried in a federal, civilian court.
I hope that the jury finds that he is not guilty.
The two men being Court-martialed at Camp Pendleton have every right to invoke the Fifth Amendment if it would effect their Court-Martials.
Beth-San Marcos wrote on Aug 27, 2008 9:21 PM:What is wrong with this picture?
It's a War prosecutor! This trial should not be happening in a civilian court.
As a matter of fact there should be no trial no where
Brit wrote on Aug 27, 2008 9:32 PM:Fallujah 2003-2004 was a different place than now. It was over-run with insurgents from both within and without Iraq. It was war, not a police action. Asking twelve civilians, whose only exposure to these type of activities are the biased rants of insurgent propaganda from the Media, is not "a jury of his peers". It is a political lynching.
sdraoul wrote on Aug 28, 2008 10:44 AM:No bodies, no crime. No eyewitnesses, no crime.
The fact two men say they heard shots in a house and then saw Marines standing over bodies is not enough. Close, but not enough. 100% certainty is required for conviction, not 97%.
Nazario is not guilty!
Jeff wrote on Aug 28, 2008 5:50 PM:I just heard on the news only 3 hours deleberating and Not Guilty, charges never should have been brought. This whole thing stinks of political influences.
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