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Seven Marines, Navy corpsman charged with murder

By: MARK WALKER, DAVID STERRETT and WILLIAM FINN BENNETT - Staff Writers | Posted: Thursday, June 22, 2006 12:00 am | Loading…

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Chief of Staff, Marine Corps Installations West, Col. Stewart Navarre speaks to the media on the seven Marines and one Navy Corpsman that were charged with offenses including kidnapping, murder, and conspiracy linked to the death of an Iraqi civilian. Hayne Palmour IV <A HREF="https://secure.townnews.com/nctimes.com/forms/photo_services/linkorder.php?des= Hayne Palmour IV Chief of Staff, Marine Corps Installations West, Col. Stewart Navarre speaks to the media on the seven Marines and one Navy Corpsman that were charged with offenses including kidnapping, murder, and conspiracy linked to the death of an Iraqi civilian." target="new">Order a copy of this photo</A> <A HREF="http://www.nctimes.com/movie/corpsman1/viewer.html" target="new"><IMG SRC="http://www.nctimes.com/art/video.gif" border="0"> View A Video</a> <A HREF="http://www.nctimes.com/news/photogallery/" target="new">Visit our Photo Gallery</A> <hr width="200">

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CAMP PENDLETON -- In one of the most serious criminal cases to arise out of the U.S. presence in Iraq, seven Marines and a Navy corpsman were each charged Wednesday with premeditated murder, kidnapping and conspiracy and related charges in the April 26 alleged abduction and slaying of an Iraqi civilian.

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The eight enlisted men from the Camp Pendleton-based 3rd Battalion, 5th Marine Regiment's Kilo Company were informed of the charges that carry the possibility of the death penalty early Wednesday morning in their cells in the base brig. The troops have been in custody since brought back to the base in late May.

Civilian and Marine attorneys for some of the men said they believed their clients were innocent of all the charges lodged against them by the Marine Corps and would move as soon as possible to seek their release from confinement.

The men are accused of kidnapping and slaying 52-year-old Hashim Ibrahim Awad in the town of Hamdania west of Baghdad.

Press accounts have said that witnesses told the Naval Criminal Investigative Service that Awad was taken from his home after he refused to name any suspected insurgents. The Naval Criminal Investigative Service is an independent agency that began a probe May 7.

The men are accused of shooting Awad to death and then staging the scene with a shovel and an AK-47 assault rifle to make it appear he was planting a roadside bomb when he was slain, according to published reports.

The charges were not detailed nor was any theory of the case released by Marine Col. Stewart Navarre, who addressed a throng of reporters and television cameras outside the headquarters of the I Marine Expeditionary Force.

Navarre said the allegations were lodged after a review of the investigation by Marine Lt. Gen. John F. Sattler, commanding general of U.S. Marine Corps Forces, Central Command, who will ultimately determine if the charges stand.

"It is important to note that the charges and specifications are accusations against the individuals and the accused are presumed innocent," Navarre said. "All Marines are trained in the law of armed conflict and are expected to fully comply with it.

"The Marine Corps prides itself on holding its members accountable for their actions."

The notification of charges starts the military justice process rolling. A further investigation will determine the merits of the charges and whether the men should face trial. If that occurs, it would be the first time each could enter a formal plea.

The accused

Each man is charged under the Uniform Code of Military Justice. The highest in rank is Sgt. Lawrence G. Hutchins III, 25, whose family lives in Massachusetts. He is accused of murder, three counts of making false official statements, kidnapping, conspiracy, larceny, assault, housebreaking and two counts of obstruction of justice.

Cpl. Trent D. Thomas, 24, Hospitalman 3rd Class Melson J. Bacos, 20, Pfc. John Jodka III, 20, of Encinitas, and Cpl. Marshall L. Magincalda, in his early 20s, of Manteca, Calif., each were was charged with murder, conspiracy, making a false official statement, assault, larceny, housebreaking, kidnapping and obstruction of justice.

The same charges except making a false statement were leveled against Lance Cpl. Tyler A. Jackson, 22, Lance Cpl. Jerry E. Shumate Jr. and Lance Cpl. Robert B. Pennington, 21.

Four other Marines considered material witnesses in the case and returned from Iraq with those charged Wednesday had been restricted to the base until Friday. That unidentified group of Marines was released from the base restriction following a review by their commanders, Navarre said.

Case details

The investigation began May 1 when unidentified Hamdania residents brought it to the attention of military commanders in Iraq, Navarre said.

A preliminary inquiry conducted by Multi-National Forces-West in Iraq found sufficient cause to recommend a criminal investigation be opened, Navarre said.

In a document released by the Marine Corps on Wednesday, the men are alleged to have unlawfully entered Awad's home. The charges allege the men seized him.

The document says they forced Awad to the ground at an undisclosed location away from the home and bound his hands and feet before he was killed. The document does not say how many times he was shot and Marine officials said they couldn't provide those details.

The men also are alleged to have stolen a shovel and the AK-47 assault rifle allegedly planted next to Awad's body.

Two weeks ago, Awad's body was exhumed and taken to Dover Air Force Base in Delaware for an autopsy and forensic examination. Navarre said he couldn't provide any details on what investigators found.

He also acknowledged that the Marine Corps made what is known as a "solatia" or compensation payment to Awad's family but did not say how much was paid.

"It's traditional to make solatia payments," he said. "That is a tradition, it is not an admission or an indication of wrongful death."

Published reports have said Awad's killing took place late at night but Navarre said he could not immediately confirm that information.

Family reactions

Pennington's mother, Deanna Pennington, said in a telephone interview that she had been expecting the news.

"I spoke with Rob today and he's doing well," she said. "He understands that was something the military needed to do. He said, 'Mom, everything is going to be fine.' "

Jodka's father, John Jodka Jr. of Encinitas, said he was not surprised to learn of the government's charges.

"With the politics swirling and the political correctness in full force, this was the inevitable outcome," he said.

Jackson's mother, Terri Jackson, called the charges "ridiculous."

"I'm trying to hang in there," she said in a phone interview from the home of relatives near the base. "I'm pretty appalled. It shouldn't have gone this far."

Jackson, who said she'd hoped the Marines and corpsman would be released today instead of charged, said she visited her son in the brig over the weekend.

"He's doing OK," she said. "He knows he's innocent. It's tough to be locked up when you know you are innocent."

She also said she appreciates expressions of support for the men that have been coming into to a defense fund Web site set up for three of them and at rallies conducted at the entrance to the base the last two Saturdays. A similar rally is planned for this Saturday.

"It helps to know there are people out there supporting him. It's wonderful to have supporters," she said. "I'd like to drive by and yell, 'Thank you!' "

Attorneys for the accused

Marine Maj. Haytham Faraj, who along with private attorney Victor Kelley of Alabama represents Thomas, said his client has told him he believed he was acting on an approved mission during what was his third deployment to Iraq and was following orders and procedures.

"He told me they were doing a mission and were out there doing their job," Faraj said.

Faraj said Thomas was "in good spirits" when he visited him in the brig Wednesday morning.

Attorney Joseph Low, who represents Magincalda, said he was upset that reporters were given the set of charges against his client before he had received the documents.

"I don't have any evidence," said Low, who practices out of Los Angeles and Orange County. "They implore these Marines to go into a combat zone and now they're saying they are murderers of an enemy combatant."

Carlsbad attorney David Brahms, who represents Pennington, said he did not believe the case involves any premeditation and expressed doubts about the homicide charge.

"It's preposterous to suggest eight (men) got together and decided to kill somebody," Brahms said. "He (Awad) presented himself as hostile and that's all that's necessary."

Rich Brannon, a Georgia attorney representing Hutchins, said he intends to start the discovery process next week and said he was looking forward to examining the details of the government's allegations.

Washington reacts

Navarre said Marine officials briefed several members of Congress on Wednesday prior to announcing the charges but could not say whether President Bush had been told of the filing.

In Washington, U.S. Rep. Duncan Hunter said that justice must run its course and there should be no rush to judgment.

"The Marines cautioned that this is the start of a process, not the end of one and it does not carry with it any presumption of guilt," Hunter, R-El Cajon, and chairman of the House Armed Services Committee, said in a telephone interview from his Washington office.

U.S. Rep. Darrell Issa, R-Vista, whose 49th Congressional District includes Camp Pendleton, had no immediate comment on the allegations, according to his spokesman Frederick Hill.

California's Democratic U.S. Sens. Dianne Feinstein and Barbara Boxer did not respond to calls seeking comment.

In downtown Oceanside, Marine Lance Cpl. Michael Gibbons said Wednesday afternoon that he objected to the charges being filed against his fellow Marines and a sailor.

"Since now that it is in the public eye, they had to do it," Gibbons said. "I don't think it is fair because they were just fighting for our country."

The process

Navarre stressed the identification of charges is just the beginning of the Marine Corps' legal process.

Navarre said each of the accused has an assigned military attorney and each has also hired a private attorney.

"Every one of these Marines and the sailor are provided with experienced, detailed military counsel. Their choice to retain a civilian counsel is up to them, but I can guarantee you that we are bringing Marine lawyers from around the Marine Corps, not just here at Camp Pendleton, that are going provide the detailed military counsel."

Now charges have been announced, the Marines Corps will begin an Article 32 investigation, which is similar to a grand jury or preliminary hearing proceeding. The accused is normally present at the hearings, has legal counsel and can cross examine witnesses and present evidence.

The convening authority, in this case Lt. Gen. Sattler, will oversee the investigation, complete a report and then decide whether to refer the case to a court-martial or dismiss the charges.

The convening officer has to refer charges within 120 days of when the men were first taken into custody on May 12.

If the charges are referred to a court-martial, which Navarre said would take place at Camp Pendleton if ordered, the men would be arraigned and a military judge would take charge of the case.

The trial would include defense attorneys, both military and private, a military prosecutor and a high-ranking officer such as colonel or lieutenant colonel serving as judge.

If the case does go to trial, a jury of at least five Marines would hear it unless one or all of the men decide to have the case heard by the judge only. It was unclear Wednesday whether they would be tried together or separately.

Lt. Col. Daren Margolin, a member of Camp Pendleton's Judge Advocate General corps, said the primary goal now is to assure each of the accused receives fair and impartial treatment.

"Each accused is charged with murder," he said. "We can't comment any more on the theory of culpability. The overriding goal here is to see that justice is done and that these Marines and corpsman receive a fair trial."

Staff writer Teri Figueroa contributed to this report.

- Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com. Contact staff writer David Sterrett at (76) 740-3516. Contact staff writer William Finn Bennett at (760) 740-5426 or wbennett@nctimes.com.

On the Web:

For more on the military justice system, see the Web site http://sja.hqmc.usmc.mil/JAM/MJFACTSHTS.htm

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