CAMP PENDLETON - Three of the U.S. Marines accused of kidnapping and killing an Iraqi man in April made statements to investigators that were tantamount to confessions, a military prosecutor said in court Wednesday.

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But the meat of those statements, including one said to have come from the squad leader, remains under wraps as a result of an agreement struck by prosecutors and defense attorneys.

And in a major development, the lead prosecutor in the case, Lt. Col. John Baker, announced the prosecution does not intend to seek the death penalty against one of the eight defendants, Pfc. John Jodka III, an Encinitas native who was three months into his first Iraq tour at the time when Hashim Ibrahim Awad was killed April 26. That decision applies to Jodka only, a Marine Corps spokesman said.

"The recommendation of the prosecution team is that a capital referral not be sought in this case," Baker said near the end of Jodka's hearing. "It is our position that a capital referral in this case is not appropriate."

Word of alleged confessions from two of the men, and of an admission to conspiracy from a third man, came during the start of pretrial hearings for Jodka and another of the eight Camp Pendleton men facing charges for Awad's killing.

Jodka and Cpl. Marshall Magincalda were in court to determine whether there is enough evidence to send them on to military trials known as courts-martial.

Wednesday's long-anticipated hearings could have amounted to the first public airing of details about the incident that resulted in the 52-year-old Iraqi man's death. But little new information came out, and only in the form of veiled references to witness statements and alleged confessions that appear to be the crux of the prosecution's case.

Both hearings ended without any witness testimony and are now in the hands of the two Marine officers who presided over the proceedings.

Magincalda's hearing took a surprise turn when it was abruptly adjourned about 20 minutes after it started. The hearing officer, Col. Robert Chester, announced the prosecution and defense agreed to allow him to review exhibits in private, meaning no one would take the stand. Most of those exhibits are reports and witness statements gathered by the Naval Criminal Investigative Service.

Prosecutor Maj. Daren Erickson pointed to what he said were three key pieces of evidence, including alleged confessions and damning statements from three of Magincalda's co-defendants.

Magincalda's civilian defense attorney, Joseph Low, balked at Erickson's characterization of the purported confessions, saying they should only be considered statements.

Witness statements also were a hot topic during the morning session of Jodka's hearing, which was in a nearby courtroom, where his civilian attorneys pleaded with hearing officer Col. Paul Pugliese to keep a lid on the statements in open court.

Magincalda, 23, and Jodka, 20, are two of seven Marines and one Navy corpsman accused in Awad's killing in the Iraqi town of Hamdania in a rural area west of Baghdad.

The other accused men are Sgt. Lawrence Hutchins III, Hospitalman 3rd Class Melson J. Bacos, Cpl. Trent D. Thomas and Lance Cpls. Tyler A. Jackson, Jerry E. Shumate Jr. and Robert B. Pennington.

The men are all members of the Camp Pendleton-based 3rd Battalion, 5th Marine Regiment and have been in the base brig since May 24, one day after they were ordered to return from Iraq.

Defense attorneys and family members have consistently said the men are innocent and suggest Awad was an insurgent. When announcing the charges June 21, the Marine Corps stressed that the men are presumed innocent.

Prosecutor says two men confessed

During Magincalda's hearing, prosecutor Erickson urged the court to pay particular attention to statements from Hutchins, the squad leader, as well as Thomas. He also said a statement from Pennington would satisfy the government's allegation that the men conspired to kidnap and kill Awad.

Erickson said Pennington's and Hutchins' statements came on May 18 and 19, respectively. At that time, all eight men were detained at Iraq's Camp Fallujah. No time frame was given for Thomas' statement, which the prosecutor said was recorded on videotape.

Chester adjourned the hearing shortly thereafter and said he would review the evidence in private. He said he expected his work would be completed no later than Friday, but left the door open to resume the hearing if he decides to hear witness testimony.

Magincalda, a Stockton-area native, is accused of being one of three men who stole a shovel and an AK-47 assault rifle from a home near Awad's. He is further accused of seizing Awad from his home and marching him to a dirt area at a nearby intersection.

The military also alleges Magincalda helped dig the hole and bind Awad's hands and feet.

Magincalda also is accused of firing rounds from the AK-47 after Awad was killed so that the shell casings landed near the body as part of an effort to make it appear Awad was an insurgent and had fired first at the U.S. squad.

Chester told Magincalda he had rejected a request from the corporal's attorneys to close the courtroom to the public because of pretrial publicity.

"The public has a very compelling right to hear these proceedings," Chester said.

But there would be no testimony at the hearing. Instead, military prosecutors gave Chester video footage and a packet of documents -- what amounted to 40 pieces of evidence against the accused corporal.

Magincalda spoke little during the hearing, answering most of Chester's questions with a "Yes, sir" or "No, sir."

He joined the Marine Corps in 2002 and was awarded two Purple Hearts during his three tours of duty in Iraq.

Magincalda's stepmother, Leanne Magincalda, said in a telephone interview after the court session that she was worried but hopeful.

"I've never heard such commitment or conviction from my son," she said of talking to her stepson after the hearing. "At this point I am kind of guarded, but I think they are going to be exonerated -- I truly do."

Jodka's hearing

Jodka is alleged to have fired his M-249 automatic machine gun at Awad and to have lied to investigators. According a report from The Associated Press, the only news outlet allowed in the courtroom because of limited seating, Jodka's attorneys spent most of his hearing arguing to keep a lid on 16 witnesses' statements out of fears that a public airing of them would taint a jury pool.

"When the cat is out of the bag and the bell is rung, there is no way to get the evidence out of a juror's head," defense attorney Jane Siegel told the hearing officer. "To openly discuss contents (of the statements) will completely pollute the local and national pool."

Siegel also called the statements "very inflammatory," and said, "There is a media audience for this hearing that is unprecedented in Camp Pendleton history."

After a lunch break, prosecutor Baker said he had agreed not to call any witnesses for live testimony, even though several investigators were on hand to testify.

Baker also listed some of the evidence given to hearing officer Pugliese, including statements from co-defendants Pennington, Hutchins and Thomas, as well as sketches and maps drawn by Pennington. Baker also alluded to waivers signed by Magincalda and Hutchins on May 11 when they agreed to speak with investigators.

Jodka's mother, father and grandparents, who all live in the area, were in the filled-to-capacity courtroom. The defendant was taking notes from his seat in the courtroom jury box.

During what amounted to a closing argument, Jodka's other civilian defense attorney, Joseph Casas, raised several points he said were crucial to his client's defense. Casas cited a lack of DNA evidence, advanced decomposition of Awad's body during his June autopsy at Dover Air Force Base in Delaware and the inability to confront Iraqi witnesses.

"We have no idea why Iraqis who live in an insurgent-infested area cast aspersions on this defendant," Casas told Pugliese. "At the end of the day, all we have are unreliable, uncorroborated statements and no physical evidence."

Over several objections from Baker, Casas also argued the government had delayed the hearings to finagle more time to pressure other defendants in the case to make incriminating statements.

Near the hearing's end, Pugliese asked prosecutor Baker whether he had included among the evidence information about Jodka's age and relative inexperience in the Marine Corps so that Pugliese could consider those factors. Baker said he had done so.

A 2004 graduate of San Dieguito Academy, Jodka was on his first tour of duty in Iraq when the incident took place.

After the hearing, Casas said in an interview with the North County Times that he sees the prosecution's announcement that it would not seek the death penalty as a sign that it has a weak case.

"We asked him (Pugliese) to recommend they dismiss all charges," Casas said. "They have nothing but inadmissible evidence."

Casas also said he felt that Pugliese "homed in on intelligent and common sense issues" when questioning prosecutors.

Jodka's father, John Jodka Jr., said he was glad his son's attorneys were able to state on the record that he was innocent.

"John is glad to get things moving and understands that today is only the first day in a long, long shooting war," the elder Jodka said Wednesday evening.

More to come

Under the military justice system, the first opportunity an accused service member has to enter a formal plea is when his or her court-martial begins.

Wednesday's pretrial hearings were designed to help Lt. Gen. James N. Mattis, commanding general of the I Marine Expeditionary Force at Camp Pendleton, decide whether the charges against Magincalda and Jodka should stand.

Pennington's attorney, David Brahms of Carlsbad, declined to comment when asked about the assertion that his client had made an incriminating statement.

"The problem remains that there is no access to critical evidence, no access to experts and no access to the scene," said Brahms, a retired Marine Corps general who was in the courtroom for Jodka's hearing.

It was not immediately clear what will happen after the hearing officers' reports are sent to Mattis. If he rules their cases should proceed to courts-martial, for example, that could color the hearings yet to come for the other defendants.

"It would be wise to hold the decisions in abeyance, but he has a problem with the speedy-trial issue," Brahms said.

The incident that led to the criminal charges is the 21st case brought against U.S. service personnel for the deaths of Iraqis since the March 2003 invasion.

Article 32 hearings for the remaining defendants are scheduled for September and October.

- Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com. Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.