CAMP PENDLETON - A Marine lance corporal willingly participated in the kidnapping and shooting death of an Iraqi civilian and should spend 10 years behind bars, a military prosecutor charged Tuesday.

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The prosecutor, Capt. Nicholas Gannon, said that Lance Cpl. Jerry E. Shumate Jr., could have stopped the April 26 slaying of Hashim Ibrahim Awad but failed to act.

"Instead, he agreed to do the wrong thing and snuff out a human life," Gannon said.

Rather than the 10-year sentence that Gannon sought, an agreement in which Shumate pleaded guilty to aggravated assault and conspiracy to obstruct justice resulted in a 21-month term with credit for six months already served.

Original charges of murder, kidnapping, conspiracy and related offenses were dismissed, and Shumate will be given a general discharge from the service when his sentence, to be served at Miramar Marine Corps Air Station, is completed.

The 21-year-old native of the tiny western Washington state town of Matlock apologized for his actions, saying the squad was targeting an insurgent named Saleh Gowad - whom the troops referred to as "the prince of Anbar" - that night in the village of Hamdania.

He testified he did not know the slain man was someone other that Gowad until after he and three of his squad mates fired on Awad, who had been dragged from his home, bound and gagged and placed in a roadside hole.

"I feel sorry for his friends and family," Shumate said.

He said the squad from the 2nd platoon of Kilo Company from Camp Pendleton's 3rd Battalion, 5th Marine Regiment was acting under the orders of Sgt. Lawrence Hutchins III.

"I was told by Sgt. Hutchins to fire," said Shumate, who fired between 10 and 20 rounds at the retired Iraqi policeman and father of 11.

Gannon said that Awad's death was preventable because the plot allegedly laid out by Hutchins would have been stopped if just one of the seven Marines and Navy corpsman in the squad had voiced opposition. Shumate failed to take that opportunity, he said.

"The court should be outraged," Gannon said. "He was raised better than that, he was trained better than that by our Corps but he departed from the standards of our Corps."

Shumate testified in his unsworn statement - meaning he could not be cross-examined - that he knew what the squad planned and did that night was illegal, even if the man that was seized had been the suspected insurgent. Awad was seized from his home after Gowad could not be found.

"I knew it was illegal, sir," Shumate told the military judge, Lt. Col. Jeffrey Meeks, who originally sentenced Shumate to eight years and a dishonorable discharge following final arguments from the attorneys. That term was set aside, however, because of Shumate's plea agreement with the convening authority over the case, Lt. Gen. James Mattis, head of the I Marine Expeditionary Force.

Shumate's attorney blamed the killing on the men who led the platoon.

"It was a failure of small unit leadership," Steven Immel said, adding that even though Shumate knew that killing the suspected insurgent would have violated the rules of engagement, the squad believed that taking out Gowad would have been justified.

Four defendants remain

Shumate was on his first tour in Iraq when Awad was killed and was one of the least experienced members of the squad. After the shooting, Hutchins reported he and his men had killed an insurgent who was spotted planting a roadside bomb and had fired upon them.

The Camp Pendleton-based men placed a stolen AK-47 rifle and shovel next to Awad's body to support the false report that he was an insurgent.

An April 10 assault charge against Shumate for his role in the beating of an Iraqi also was dismissed. Hutchins is also charged in that incident, as is platoon 2nd Lt. Nathan Phan.

Hutchins, who is maintaining his innocence, is slated for trial early next year. His attorney, Rich Brannon, has said he wants to know what his client's superiors had instructed him to do the night that Awad was killed.

Shumate joins two other Marines who have pleaded guilty in the Awad case, Lance Cpl. Tyler Jackson and Pfc. John Jodka III. They also pleaded guilty to aggravated assault and conspiracy to obstruct justice and were sentenced to 21 months and 18 months, respectively.

The squad's medical corpsman, Petty Officer Melson Bacos, pleaded guilty to kidnapping and conspiracy to kidnap and make false official statements and was sentenced to 12 months in the brig. Bacos was the first man to tell authorities what happened and was the first to strike a plea agreement.

Besides Hutchins, the remaining defendants in Awad's killing are Lance Cpl. Robert Pennington and Cpls. Marshall Magincalda and Trent Thomas.

Pennington hearing wraps up

As the Shumate hearing was under way, a two-day hearing for Pennington that started Monday morning was wrapping up.

Pennington's attorneys argued during the hearing to suppress a statement he made to investigators in Iraq and argued to have him released from the brig pending trial.

On Monday, Pennington testified that he asked for but was not provided with an attorney when questioned by Naval Criminal Investigative Service agents at Camp Fallujah in Iraq in May.

Two NCIS agents contradicted Pennington's testimony, however, when they testified Monday, saying the native of the town of Mukilteo, Wash., never asked for an attorney and voluntarily made implicating statements. It also was revealed in court Tuesday that Pennington had previously been court-martialed and therefore had experience with the military justice system. The nature of the previous court-martial was not disclosed.

Following his hearing, Pennington's parents and attorney appeared before reporters with his mother, Deanna, saying they continue to believe in their son's innocence.

"He's going to get his day," she said. "He's going to tell his story so people are going to understand there's not just one side to this."

Lt. Col. Eugene Robinson, the military judge presiding over Pennington's case, did not rule Tuesday on the motion to suppress his statement or whether he should be released from the brig pending trial.

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