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MILITARY: Marine not guilty in Fallujah slayings
Case first in which civilian jury asked to rule on battlefield incident
By MARK WALKER | ∞
Former Marine Sgt. Jose Luis Nazario, right, walks with his attorneys Douglas Applegate, left, and Emery Ledger, center, after making an appearance in federal court in Riverside on Aug. 16, 2007. Nazario has been charged with voluntary manslaughter in the killings of two captured Iraqi insurgents in Fallujah in 2004. (Associated Press File Photo/The Press-Enterprise, Silvia Flores) RIVERSIDE ---- In a case reverberating throughout the military, a former Camp Pendleton Marine was acquitted Thursday by a civilian jury in the deaths of four unarmed detainees during a 2004 battle for the Iraqi city of Fallujah.
Jose L. Nazario Jr. burst into tears when the jury declared him not guilty of manslaughter and leading his squad in the killings.
The trial was the first in which a U.S. civilian jury was asked to decide whether a former serviceman was guilty of committing a crime on a battlefield in a foreign nation.
"Justice was definitely done here today," Nazario said minutes after the verdict was rendered before U.S. District Judge Stephen Larson, prompting cries and sobs from his family and several supporters. "I want the same justice for every soldier, sailor and Marine serving in harm's way."
The panel deliberated about five hours before returning its verdict, a decision juror Ingrid Wicker said was reached during emotional discussions that included debate over whether civilians were equipped to judge actions during battle.
"You don't know what goes on in combat and everybody recognized this was a combat environment," the Riverside Community College physical education instructor said moments after emerging from the jury room and engaging in a long, tearful hug with Nazario's mother, Sandra Montanez. "I think maybe we shouldn't be second-guessing what troops do."
Juror Ted Grinnell said the panel was in part swayed by defense arguments that prosecutors failed to produce any physical evidence of a crime. There were no bodies and no names attached to the victims and no forensic evidence.
Had Nazario been convicted, he could have faced a sentence of 10 years or more in federal prison.
The acquittal is the latest in a series of similar court decisions involving nearly two dozen troops from Camp Pendleton accused of unlawful killings in Iraq.
In addition to manslaughter, Nazario was charged with using his service-issued weapon and leading the killings that took place inside a Fallujah home hours after the U.S. assault of the insurgent-held city began Nov. 9, 2004.
The case emerged when one of the men in his squad, Marine Sgt. Ryan Weemer, disclosed the killings during a job interview with the U.S. Secret Service.
Weemer and another squad member, Sgt. Jermaine Nelson, face upcoming trials on charges of murder and dereliction of duty in military court at Camp Pendleton. Each has pleaded not guilty and each refused last week to testify at Nazario's trial, resulting in Larson declaring they were in criminal contempt of court.
Nazario's lead prosecutor, Assistant U.S. Attorney Jerry Behnke, said he respected the jury's verdict and declined further comment.
The lead defense attorney, Kevin McDermott, said he believes federal prosecutors will now "think twice" about bringing prosecutions against service members for acts in war.
"Let's hope that someone recognizes that this was not what MEJA was intended for," he said in reference to the Military Extraterritorial Judicial Act adopted by Congress in 2000. The act is primarily aimed at civilians who commit crimes overseas, but also allows federal prosecutions against former service members accused of what Behnke had called in his closing argument a "war crime."
Three squad members testified during the trial that Nazario, Weemer and Nelson each stood watch over the captives while they searched the home.
After making a radio call to report his squad had found the four suspected insurgents and recovered several AK-47 rifles and ammunition, Nazario indicated squad members were to "take care" of the four and continue moving to center of the city.
The squad members testified they soon heard shots coming from rooms where the detainees were being held and, when they went to investigate, found the men had been killed.
Jurors also heard a taped telephone call between Nazario and Nelson arranged by investigators early in the investigation in which Nazario seemed to implicate himself in the slayings.
Despite the testimony from the squad members and the tape, the defense contended the government failed to prove anyone had been killed. McDermott said during his closing argument that a conviction would send a dangerous message to troops on the battlefield.
Gary Solis, a military law expert and former Marine Corps attorney and judge, said he believes the case never should have been brought.
"I think the verdict was right," the Georgetown University law professor said during a telephone interview. "I just don't think civilian juries should be put in a position to decide the rightfulness and appropriateness of actions taken in battle."
Nazario's mother said that, despite being rocked with fear for her son, she had faith in the jury of nine women and three men, only one of whom had a military background.
"We never lost faith in the system," Montanez said. "We believed the jury would understand the situation my son and his men were in. They gave me my son back."
Nazario, who was on his first combat deployment when the incident occurred, called his wife, Diette, and 2-year-old son Gabriel in New York to report that he had been found not guilty.
"I'll be home soon," said Nazario, who was a probationary Riverside police officer when he was indicted by a federal grand jury last year. When he gets home, Nazario said, he plans to "sleep for a week."
One of his attorneys, Douglas Applegate, said Nazario could be subpoenaed to appear at the military courts-martial of Weemer and Nelson.
"I wish the rest of the Marines that are on trial good luck," Nazario said.
Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
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Chris wrote on Aug 28, 2008 3:14 PM:Dead Iraqi detainees who posed no threat but because there was not time to process them then just go ahead and kill them. But no one is responsable for their deaths. These detainees were someones loved ones but hey they were Iraqis, so it doesn't matter. Don't give me the bull that this Marine was found not guilty so justice was served. Yet as we just blow off all the death and destruction that we did we point the finger at Russia. We are a pathetic people.
Ed wrote on Aug 28, 2008 3:41 PM:Has justice really been served? Where is the justice in sending kids off to war and then bringing them back to charge them with murder? Has everyone forgotten that war is about killing the enemy? Kill the enemy and then get charged with murder? What has this country become? I'm glad that the jury saw reason in this case. I'm saddened as an American that this ever came to trial.
omg wrote on Aug 28, 2008 3:44 PM:this is war- shoot first, ask questions later. How come everyone else gets to do what they want, but our marines are tried for murder for a job we sent them to do. War is not nice, it's not pretty- it doesn't follow rules. When they blow up our humvees, you think they feel bad for the families? Think they follow rules? nope
Daniel wrote on Aug 28, 2008 4:11 PM:In order for those of us who are not directly involved to make intelligent judgements regarding what happened in Iraq and what happened in the courtroom we need to be informed. Let's not kid ourselves that we have enough information to make those judgments, certainly not based on what is doled out by any media. We must trust in the jury system for justice, just as we trust our elected officials to make the right decisions as well. Hold them accountable by being informed, but let's not presume we are in a position to make informed judgments based on spoon-fed info. In this case, the recorded conversation is devastating, yet the jury voted to acquit. There's more than something missing...since this Marine should have been tried by his peers -- other Marines -- this was wrong from the get-go, so congratulations, and may your Brothers achieve the same outcome.
AWcryinooutloud wrote on Aug 28, 2008 4:31 PM:Chris re-writing history again. Fallujah, 2004...INSURGENTS...NOT innocent Iraqi's. Still confusing innocents with the enemy; the enemy who would pretend to be friendly, wave, and then throw a grenade; the same enemy who had weapons stashed all throughout the country, pretended to surrender and then ran to the next stash to ambush OUR troops; the same enemy who hides behind their own women and children and sacrifices them. You're defending the wrong people Chris. Try defending an American for once.
to esteban wrote on Aug 28, 2008 4:33 PM:This is America. Chris has a right to have a pathetic opinion.
DESERT BUG wrote on Aug 28, 2008 4:40 PM:This was a pot boiler as far as I am concerned. I thought the civilian jury, only one of whom has any military experience, would just accede to the prosecution's line and convict Nazario. Boy, am I glad I was wrong! This was a jury that made the right decision and for the right reasons. Beyond this case, the jury really has set a good precedent and let's hope that DOD will FINALLY get the message: that they are all wrong about all of these prosecutions. Looks like Chris is all disappointed. Awwwww. Go cry over it with your insurgent buddies, Chris. Maybe you can all hold hands and comfort each other.
whospathetic wrote on Aug 28, 2008 4:42 PM:Chris said:
"These detainees were someones loved ones but hey they were Iraqis, so it doesn't matter."
These Iraqis were in a designated area which our marines ordered All innocent civilians to leave before they went in. These guys stuck around and that was THEIR mistake. ALSO they were found in a house that was FULL of weapons. What were the marines supposed to do? They come across a group of men who shouldn't be there and who are surrounded by weapons.. were they just supposed to leave them? Because I guarantee the second they turned their backs to these guys they would have been shot in the back. So maybe it was screwed up of them to kill these guys seeing as how our marines weren't fired upon before they chose to fire- but these men posed a threat to our marines- they disobeyed orders the marines gave them that COULD have saved their lives. You say nobody is to blame for their deaths? They were responsible for their own deaths- they should have left when they were told to. I honestly think justice WAS served. And there is nothing pathetic about what happened. The only thing I see here thats pathetic is that these guys are over there fighting for our freedom and our safety- and there are still Americans who talk crap about the work they do. You don't like the way they do their job? THEN GO OVER THERE AND DO IT YOURSELF. Don't want to? Didn't think so.
The Guardian wrote on Aug 28, 2008 4:44 PM:There is a major difference between rogue troops who rape and murder non-combatant women and children and troops who, in the middle of a pitched battle, kill hostile terrorists who still pose a threat the moment you turn your back to fight their companions. Should we charge the WWII bomber crews who leveled German and Japanese cities? Absolutely not! Likewise, we should not charge young Marines and soldiers who are asked to make split second survival decisions during the fog of war.
Great wrote on Aug 28, 2008 4:55 PM:This never should have seen a civilian courtroom, let alone a military courtroom. Let these Marines get on with their lives. They have done their duty and defended our country, more than most Americans can say.
Bushs Iraq wrote on Aug 28, 2008 5:09 PM:Why are we in Iraq? Why have over 4,000 of our young men and women died for this? WMDs??? Our national treasure depleted and the national debt increasing every day... Terriosts still in Afganistan and growing stronger in Pakistan... Does anyone understand why Bush did this? Our marines, sailors and soldiers being charged for murder? Their commanders should be right up front asking for the impeachment of Bush. So- if you want "100 more years" of this vote for 'george' McCane.
Good deal wrote on Aug 28, 2008 6:54 PM:Should not have been on trial to begin with. If I were a juror, they't be innocent no matter what. My loyalty is to american soldiers, no one else, no matter what. Do you honestly think that anyone over there feels bad when they kill an american or anyone else? Put your loyalty where it should be.
Grump wrote on Aug 28, 2008 8:01 PM:"Ask not the butcher how he slaughters the pig, for he too has an unpleasant task" Unnamed Capt Vietnam 1968. This trial was ridiculous, it was a war zone, those killed were the enemy, war is not glorious like it is in the movies, I know. U.S. troops 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. Poeple like Chris have no idea what it is like to watch your best friend get blown away by the enemy, not detainees, the enemy, detainees are in Cuba in jail, with no smoking AK47s by their side.
whatsup wrote on Aug 28, 2008 11:51 PM:If you want to go after a person or two, go after the folks who asked these guys to do what they do ... or not? You be the judge ... or not? Hey, this hurts my brain, where's the remote.
Bill wrote on Aug 28, 2008 11:53 PM:Another defeat for the left.
Besides this claim lacking subject matter jurisdiction, this prosecutor lacked a viable cause of action.
This is a big defeat for those who were hoping to use our courts to attack the military for a war they didnt agree with.
Now, go after those that brought this sham of a trial just to appease the Chris Pulse's of the world.
Semper Fi!
MJ wrote on Aug 29, 2008 2:39 AM:One issue is being overlooked here -- the judgment and competence of the US Attorneys who brought this case. My view is that something like this should cost a few folks their jobs, or their license to practice. Prosecutors should be held accountable for legal malpractice just like all other attorneys.
Beth wrote on Aug 29, 2008 7:17 AM:This is great news! Charges should have never been brought up against this marine.
DH wrote on Aug 29, 2008 7:44 AM:Thank you Sgt. Nazario for your service and sacrifice. I'm glad to see this shame turn out the way it did. I'm sickened that those of Murthas' degenerate mentality are out there trying to second guess Combat Marines actions during battle. THEY HAVE NO CLUE!
I'm sorry you have been put through this. From those of us who are grateful for you and others who serve and have served in the past, God Bless you all.
Semper Fi Marine
Asteroid to chris wrote on Aug 29, 2008 8:18 AM:Does this add to your misery? GOOD! Semper Fi and God bless America. Excuse me now; I have to go run up my flag.
Jim wrote on Aug 29, 2008 9:10 AM:Our military is fighting an enemy who wears no uniforms and who dresses exactly like the good Iraqis we are trying to protect. If we surprise a bad guy, how would you expect him to act?
Just like the good guy, and hope like hell he is not found out. Our military wears uniforms and gives their bad guys no problem in figuring out who they should shoot at. As an old WWII vet told me, "We did not go out of our way to kill civilians, but when it happened we sure as hell did not worry about it either."
Boat wrote on Aug 29, 2008 10:13 AM:Jim's comment reminded me of a cartoon that I saw in the Navy Times. This was back when I was on active duty during the Viet Nam War.
The cartoon showed a Marine Sgt. instructing his troops about the enemy. In one photo was a man in a conical hat & black pajamas. In the other was the same man, same hat, same PJ's. Only he was also wearing a bandolier of ammunition and holding an AK-47. The Sgt. is telling his troops "you will notice the distinct difference between the friendly civilians & the enemy."
Unfortunately, we are now in the same situation in Iraq. Personally, I don't know why there wasn't some provision for those Marines to have those prisoners taken back somewhere. But, I wasn't there, I don't know all of the facts & the jury has rendered a verdict. So, this case is over.
If the Rules of Engagement need to be revisited that is up to the military. But, those young guys are on the spot, I can't imagine what it must be like to be in that type of a situation day after day. I was against this war & I still am. But, our people are there & we need to give them what they need to survive & then get them home as soon as possible.
I don't condone murder, but, like I said, I wasn't there. And, I don't know how I would react in the same situation.
Bob wrote on Aug 29, 2008 10:18 AM:Chris, listen to Ed and Daniel. We must trust the jury and in God Almighty.
Bill and MJ - sounds like you want revenge. This is why we have a judicial system.
All should respect the pressures that Sgt. Nazario and our war fighters are under. Let them do their job and trust they do it with faith and the best training of any military in the world. Hope to see them and their families and fellow soldiers in Church this Sunday. Along with you too, Chris.
Old Timer wrote on Aug 29, 2008 10:41 AM:Now that even the Republican party is spacing itself away from the previous eight years of insanity under Bush/Cheney, it is time to put Iraq and all its pain, lies, suffering and injustices behind us. - just like we will be putting the last eight years of Republican party insanity behind us. Our military is tired - bring them home and stop using them as blame for our past eight years of American insanity. It is time for America to become the America it should be again, and stop the insane few from causing the entire country grief. America's finest are in Iraq and we should not be sitting on our comforatable behind judging our finest for doing the duty we sent then to do. That is to fight an impossible war under impossible conditions with crazy leadership.
esteban wrote on Aug 29, 2008 10:52 AM:As you can see, the vast majority of Americans support the US and its troops. The loons like Chris and the rest of the liberal left are a small but loud minority. Another defeat for them.
No Head Ed wrote on Aug 29, 2008 11:11 AM:Is Ed really suggesting that soldiers should be above or outside the law?!?!?!? This soldier was found not guilty, and that's good enough for me, but soldiers have to be accountable for killing people. The people this soldier allegedly murdered were probably not armed at the time. That was more than enough to bring this soldier to trial, even if mitigating circumstances exonerated him.
war zone wrote on Aug 29, 2008 11:14 AM:Seems like a lot of these comments are justifying the killing of these people on the grounds that they're in a war zone. That seems like a pretty clear admission that we haven't made Iraqis' homes any safer for them.
Mike wrote on Aug 29, 2008 11:25 AM:Thank the LORD for the jurors in this case. I cannot believe any individual would think this man commited a crime or that he is a criminal. He is a MARINE and they have to do things that punks like chris would never have the courage to do: Walk into a hostile zone with the enemy hiding and the full intent to kill you, let alone capture you and torture you to death. Give this young man his job back as a police officer. RPD, like the Sheriff's Dept in this county have jumped the gun and let go yet another fine individual who not only served his country, but his community as well. I am outraged that the naval investigators hooked him up his end of wathc that day. I want to commend the RPD coppers who stood by Nazario! Good jod bro's and stand by to copy from your admin. You made them look like sissys' and we all know in law enforcement memories to not fade quickly. SEMPER FI NAZARIO AND GOD BLESS!
Right decision wrote on Aug 29, 2008 12:26 PM:The Jury made the correct decision. If you want to blame YOUR elected officials, blame all of them; like Sen Clinton, that voted to support the war. The Pres. is an easy scapegoat for everything you don't like in the country, but get a clue already. Go read a book, study the democratic process, learn something instead of beating the same ol' drum-circle. Go save an animal or beach.
To Chris wrote on Aug 29, 2008 1:18 PM:Yes, someone is responsible for these deaths. The responsible partie's names are Bush, Cheney, Rumsfield, and Rice. Justice was partially served. The Marines accused of these deaths are not responsible for the deaths and thus they will not be punished, that is justice. The responsible parties will not be punished for thier crimes so we have to accept partial justice in this case. And we are stuck with these pathetic excuses for leaders for a couple of months.
chris o wrote on Aug 29, 2008 1:45 PM:You can easily e-mail the Riverside Police Dept to urge them to rehire Mr. Nazario.
Proud wrote on Aug 29, 2008 2:37 PM:of this jury for seeing the light. To Former Marine Nazario, thank you for your service and wish you the best.
To the idiots who keep trying to convict our Marines, find another scapegoat.
Semper Fi!
More to Chris wrote on Aug 29, 2008 3:59 PM:Detainees? Combatants who were not fighting in uniform and therefore have no protections under the Geneva Convention. As for South Ossetia, that’s an area I will continue to disagree with both the administration and McCain, I think Russia reacted in a reasonable manner. Your biased view against America and the military will never provide a path to understanding foreign affairs, and thus your comments will remain irrelevant.
Chris wrote on Aug 30, 2008 11:40 AM:Just more pathetic excusses. None of the Marines tried were tried for making a wrong split second decision in the heat of battle. When will you flag wavers ever address the circumsances of what these Marines are being tried for instead of doing your best to obfuscate the issue. So I should defend America? The day that I give up my membership in the human community and endorse unjustified brutality and injustice for people because they are not American will be the day I will join the rest of you in defending America.
AWcryinoutloud wrote on Aug 30, 2008 12:26 PM:Well Chris, seems you "have" given up your membership in the human community since, according to just about every comment you've made, you apparently "do" endorse unjustified brutality and injustice for people. Problem is that you endorse everyone "except" Americans so, looks like you're overdue in defending America Chris.
To Chris... wrote on Aug 31, 2008 7:44 PM:I'll say it once and r e a l s l o w...This W A S B A T T L E! Those insurgents were in that house firing upon our (AMERICAN) Marines. They were in the house with a cache of weapons and hot rifles...that equals bad guys. Other Marines were in trouble and they had to move to help THEM...THIER FELLOW AMERICAN MARINES! These "bad guys" would have grabbed those rifles and SHOT THEM IN THE BACKS had they tried to leave them there. WAKE ... UP, CHRIS. ... You hate America so much...you are FREE to get ... out. Please!! We don't need traitors like you here. Three words: One Way Ticket!
The Guardian wrote on Sep 1, 2008 1:58 AM:I don't get it... In every war since the American Revolution, we have captured spies, saboteurs, assassins, and partisans and shot or hung them. Sometimes we gave them a field court martial, a few we tried in Federal court, most we didn't try at all and most were killed in short order. We did that because all nations classify those who wage war disguised as civilians as terrorists who have no rights under the rules of war. Now we are engaged in a War on Terror where most of those who attack us are terrorists disguised as civilians and we treat them as if the U.S. Constitution extends to all foreign fighters in all foreign lands and put our troops on trial for killing them! This is lunacy! It is my opinion that the only way we should let any of the terrorists go is at 20,000 feet out the back end of a C-141!
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