MILITARY: Prosecutor wants contempt charges against Marines dropped

Sgts. Ryan Weemer and Jermaine Nelson had refused to testify against fellow Marine

By MARK WALKER - Staff Writer | Tuesday, September 23, 2008 3:05 PM PDT ∞

A federal judge has been asked to drop contempt charges against two Marines who refused to testify last month at a trial for their former squad leader, who was accused and later acquitted of leading the slayings of four unarmed captives in Iraq.

U.S. Attorney Thomas P. O'Brien in Riverside filed the request Monday, saying that prosecuting Sgts. Ryan Weemer and Jermaine Nelson for their refusal to testify against Jose L. Nazario Jr. "would not be in the interests of justice."

O'Brien noted that Weemer and Nelson face upcoming murder trials at Camp Pendleton in the same incident in which Nazario was accused.

"The punitive effects of further contempt proceedings against these witnesses would serve little, if any, purpose in light of the severity of the charges the witnesses face in military court," O'Brien wrote. "The criminal matter against defendant Jose Luis Nazario Jr. has concluded so no purposes related to the prosecution of this case would be served by proceeding with a contempt trial."

Weemer and Nelson were cited for contempt by U.S. District Judge Stephen Larson on Aug. 22 after they refused to comply with a subpoena ordering them to testify at Nazario's trial. Nazario was charged with manslaughter and related offenses in the Nov. 9, 2004, killings of four captives in the Iraqi city of Fallujah.

Each cited a Fifth Amendment privilege against self-incrimination for why they would not take the stand and give their account of what happened in Iraq.

There was no immediate response from Larson as to whether he would agree to drop the contempt charge.

Nazario was tried in U.S. District Court in Riverside as a civilian because he was no longer in the military. A jury that heard his case deliberated about five hours before acquitting him of all charges on Aug. 28.

His trial was the first time a former U.S. troop had been prosecuted under the Military Extraterritorial Judicial Act, which allows for the prosecution of former members of the military accused of crimes on foreign soil.

Weemer's attorney on the contempt issue, Christopher Johnson, said he wasn't surprised with the government's move.

"Sergeant Weemer now prepares for his final battle as a United States Marine, one that he could not imagine as he fought and bled his way through the streets of Fallujah," Johnson said, referring to Weemer having been shot three times a few days after the alleged slayings.

Nelson's attorney, Joseph Low, said he was pleased with the recommendation and is now fighting the Marine Corps' attempts to force his client to testify at Weemer's trial, which is scheduled to begin at the end of October.

"He didn't testify at Nazario's trial and my concern now is what the prosecutors at Camp Pendleton will do if he refuses to testify at Weemer's trial," Low said.

The Marine Corps had offered to drop the murder and dereliction-of-duty charges Weemer faces if he would testify against Nazario.

Nazario's attorney, Kevin McDermott, said he believes it makes no sense to prosecute Weemer and Nelson for contempt in light of his client's acquittal.

"These kids have been through enough, and why have them face more?" he said. "I can't imagine the judge will say 'no' to the government's request."

Weemer and Nelson each face the equivalent of second-degree murder charges in military court; each has pleaded not guilty. Nelson's trial is scheduled to take place in December.

Lt. Col. David Griesmer, a Marine Corps spokesman, said Tuesday that the service has no plans to drop or amend the charges against the two men, who were both subordinate to Nazario during the combat in Fallujah.

Weemer and Nelson remain at Camp Pendleton working in jobs not tied to combat duty. Low said Nelson remains in good spirits but is anxious to get on with his life.

"The work they have them doing is boring, and it does get to them after a while," Low said. "It's also scary when they have to go to court all the time."

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