Government Looks to Change Manslaughter Charges to Murder in Fallujah Marine Case

What do you do when you can’t get Marines to testify against each other, can’t get them to take a deal, and generally have no case? Why, up the ante, of course.

A federal grand jury is considering amending charges against a former Riverside police officer from manslaughter to murder for killings while he was a sergeant in Iraq, a defense attorney said.

Jose Luis Nazario Jr. is charged with voluntary manslaughter in U.S. District Court in Riverside — because he is no longer in the military. But prosecutors are now asking a grand jury in Riverside to change the charges to murder, said Kevin McDermott, one of the attorneys representing Nazario.

Assistant U.S. Attorney Jerry Behnke said he could not comment on whether the grand jury is reviewing the case or why the prosecution would ask for charges to be amended. Grand jury proceedings are closed to defense attorneys and the public.

Of course he’s not going to comment on why they would be amending the charges to read murder instead of manslaughter. What would he say? I can see the press conference now.

“Well, folks, this whole process isn’t going the same as the others. There’s an order to this whole thing. See, first we charge them all, even though we have no evidence. Then we confine them in ungodly conditions…what’s that? Oh god, no. Not like detainees. Those guys at Gitmo are living fat and happy. We’re trying to break these Marines, not coddle them. Stop asking stupid questions.

“Anyway, usually after about 18 hours of interrogations with no food, water, or bathroom breaks, a few months of shackles and solitary confinement, they’ll sign anything we ask. Yes, we’ve done it before, we know it works. But these Marines, they’re being a bit uncooperative. Nelson refused to testify even though we put him in jail over Memorial Day weekend, we had to pull him out of jail because the milblogs made a bunch of ruckus about the whole thing. Nazario’s refusing to plead guilty…it’s just ridiculous. Don’t these guys know they’re supposed to play along? Well, we’re just going to remind Nazario of what’s at stake here. He’s got a family. We’ve got Mattis on board, he’ll testify against the Marines. But anyway, the short answer to your question of why we decided to bump it up is obvious–we have to bring in the big guns. We have nothing unless we can either get them to plead guilty, or get someone to roll.”

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Nazario Case: Marine Freed But Still Refuses to Testify

This is breaking in the Nazario Case:

Marine Sgt. Jermaine Nelson, jailed in Los Angeles last week for contempt of court for refusing to testify against his former squad leader, was released Thursday after promising to attend a grand jury session and listen to questions.

Joseph Low, Nelson’s attorney, said his client promised U.S. District Court Judge Percy Anderson that he would attend a June 18 session of a grand jury probing the alleged killing of prisoners by Marines during the fight for Fallouja in late 2004.

But Nelson did not promise to provide information about former Sgt. Jose Luis Nazario, Low said. “I did inform the judge [that] nothing has changed except our willingness to listen,” he said.

Anderson had Nelson jailed last week when, despite receiving immunity, he declined to answer questions about “a brother Marine.” Low said Nazario had saved Nelson’s life in Iraq.

We’ll be paying close attention to this as it unfolds. I can’t help but wonder if milblogger coverage of this travesty helped contribute to Nelson’s release. As always, stay tuned to ER for up-to-the-minute coverage.

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Nazario: Fallujah Marine Jailed; Won’t Incriminate Other Marine

Interesting turn of events yesterday in the Fallujah case. This from Newsmax:

A Marine facing charges for killing an insurgent prisoner in Fallujah, Iraq, 3 1/2 years ago has been jailed for refusing to testify against another Marine involved in the incident.

U.S. District Judge Percy Anderson on Wednesday ordered Sgt. Jermaine Nelson to be confined at the federal lockup in Los Angeles after giving him several opportunities to testify.

“It was a beautiful thing to see,” said lawyer Joseph H. Low IV, a former Marine infantryman representing Nelson.

“The prosecutors are attempting to break the bonds formed in combat. Nelson told them he’d rather go to jail than rat out a brother Marine.

“It is coercion pure and simple. The government wants to take these guys and try to make them say what they want them to say. The government doesn’t have a case so they resort to this.”

Nelson, 26, refused to testify against his former squad leader, Sgt. Jose L. Nazario, at a federal grand jury seated in Riverside, Calif., Low said.

Nelson was granted testimonial immunity by federal prosecutors seeking to enhance voluntary manslaughter charges against Nazario to murder. If he had cooperated, Nelson would have been protected from further jeopardy for anything new he revealed in the case, according to Low.

Nazario was indicted by a federal grand jury two weeks after being arrested on Aug. 7, 2007. He is charged under the Military Extraterritorial Jurisdiction Act, passed by Congress in 2000 to allow service members serving overseas to be prosecuted in civilian court for offenses that call for more than one year of imprisonment.

The prosecution wants Nelson to tell the grand jury what happened at Fallujah on Nov. 9, 2004, when his squad encountered four enemy combatants during the opening hours of the bloody month-long battle for the ancient city.

Nelson already faces up to life in prison and a dishonorable discharge for twice confessing without legal counsel that he killed one of the insurgents after being ordered by Nazario to do so.

In his confession, Nelson claimed Nazario received the order to kill the prisoners from an unknown superior over his inter-squad radio.

Keep in mind that the government has no victims, no evidence, and literally NOTHING in this case except the testimony of one Marine who “confessed” twice without an attorney (sound familiar?) and a few statements that don’t match (I’m seeing a pattern here).

There are some amazing developments in these cases right now, and every one of them gives me hope that perhaps the Pendleton 8 case will be rectified once and for all.

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Judge in Fallujah Case Shows Bias Before Hearing Evidence

From the LA Times:

Lawyers defending a former Marine accused of killing Iraqi prisoners during the 2004 battle of Fallouja have lost a bid to get the voluntary manslaughter case thrown out of court.

Attorneys for Jose Luis Nazario asserted that the civilian criminal system lacks legal authority over acts committed in a war zone. But U.S. District Judge Stephen G. Larson ruled this week that the law “prevents discharge from the military from serving as a shield to prosecution for crimes committed while in military service.”

Larson set a July 8 trial date for Nazario, who was a Riverside police officer when he was charged in the Fallouja case. Two active-duty Marines, Sgt. Jermaine A. Nelson and Sgt. Ryan Weemer, are also charged. Those cases will be handled in the military legal system. [emphasis added]

So Larson is already calling it a crime, already treating Nazario as a criminal, even though his sole duty as the presiding authority is to conduct a fair and impartial proceeding.

Then again, have we come to expect anything fair and impartial from the military “justice” system?

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Another Railroad in the Making: Nelson Recommended for Court-Martial

CAMP PENDLETON, Calif. –A hearing officer recommended a court-martial for a Marine charged with murdering an Iraqi detainee captured during fierce house-to-house fighting in Fallujah, Iraq.

Lt. Col. Thomas McCann said in his findings Wednesday that there is sufficient evidence against Sgt. Jermaine A. Nelson to order him to trial.

Nelson, 26, is one of three Marines accused of shooting unarmed captives in November 2004 during some of the heaviest fighting of the war. Nelson has said he was following orders from his squad leader, Jose Nazario Jr., who is also charged.

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Nazario: Attorney Says Civilian Jury Not Fit to Hear Case on Combat Actions

Sgt Jose Nazario is at the center of another case I’m following.  He’s charged with manslaughter in the deaths of insurgents during the Battle of Fallujah.  I realize how insane that sounds, but that’s where we are now in this nation.  We charge our Marines for killing the enemy.

The case is one of the first to be brought under the new MEJA Act of 2000, the law that says the U.S. government can “reach out and touch” anyone connected to the military for alleged acts, long after their term of service is over.

Nazario, who was serving as a police officer before his life was rudely interrupted by the NCIS (sound familiar?), is represented by Kevin McDermott, who has a very valid argument.

Attorneys for Nazario requested the case be dismissed, asserting that the law under which he was charged does not apply to combat — and that it’s not the job of the civilian courts and juries to examine combat actions.

You think?  I’m going to go ahead and ask the question that should be on everyone’s minds here.  if the Constitution affords us the right to be tried by a jury of our peers, what should make up that jury?  Seems to me that unless you have a jury of combat veterans, it’s unfair to both the jury and the accused.  Where would you find a group of combat veterans to serve on a trial?  Could it be…the military?  What a novel concept.  but I digress.

Defense attorney Kevin McDermott said a jury of civilians would have greater difficulty understanding the rules of engagement and war.

“Do we have the fundamental fairness to go through this scenario for Sgt. Nazario to have the best possible process?” he asked.

Larson compared the case to how a civil jury learns about police rules of engagement for an excessive-force case. He then asked Assistant U.S. Attorney Jerry Behnke about future consequences of a civilian ruling, as excessive-force cases are designed to affect how a police department functions.

Take note of that.  “Excessive-force cases are designed to affect how a police department functions.”  Let’s take that one step further.  “Excessive-force cases are designed to affect how a military conducts war.”

What’s the point of a war?  What absolutely MUST happen in order for one side in a war to emerge victorious?  You have to kill the enemy, break his will to win, and demolish his ability to fight.  So, with that in mind, is there such a thing as excessive force in combat operations?  Was there such a thing on Iwo Jima?  Corregidor?  The Philippines?  Bastogne?

No…but in Iraq there apparently is.  And then people wonder why we’re still there, why the casualty numbers keep trickling upward, why we can’t seem to WIN.  I keep having this conversation with my boyfriend, who’s a three-tour infantry vet, and there are days that I think he and I are the only two people who get it.

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Marine Charged in Civilian Court For Actions During Battle of Fallujah

People can’t be charged as civilians for actions during combat while active duty, can they?

They can now. Say hello to MEJA.

With only mixed success prosecuting U.S. soldiers for alleged atrocities in Iraq, the U.S. government is now turning to a novel legal approach to try military veterans in U.S. civilian courts.

The first target is Jose L. Nazario, a former Marine named as the defendant in the case United States of America v. Jose Luis Nazario.

In August 2007, federal prosecutors filed the case in U.S. District Court in California, charging Nazario with two counts of voluntary manslaughter.

Nazario’s alleged crime is that while serving with the Marines during the November 2004 battle in Fallujah, Iraq, he shot to death two insurgent prisoners of war.

Sgt. Nazario left the military with an honorable discharge after eight years of service. The New York City native then moved to Riverside, Calif., with his family and became a police officer.

The Naval Criminal Investigative Service (NCIS) brought the charges to the U.S. attorney for Central California last summer, claiming Nazario is beyond the jurisdiction of military law.

He was charged under the Military Extraterritorial Jurisdiction Act (MEJA), a law passed by Congress in 2000 to give government prosecutors a mechanism for charging civilians and former service members for alleged criminal acts they committed while serving overseas.

Before MEJA, members of the armed forces were prosecuted under military law or not at all, and in many instances civilians who committed crimes in foreign lands were completely beyond the reach of American civilian jurisdiction.

I’ll be staying on top of this story as it progresses.

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