A Marine charged with murder for killing an
insurgent prisoner has been jailed in California for refusing to
testify at a federal Grand Jury hearing evidence of alleged murder at
Fallujah, Iraq.
US District Judge Percy Anderson Wednesday ordered
Sergeant Jermaine Nelson to confinement at the federal lockup in Los
Angeles after giving him several opportunities to relent.
“It was a beautiful thing to see,” said lawyer
Joseph H. Low IV, the 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.”
Nelson, 26, also faces charges of Unauthorized
Absence from military authorities for getting jailed, authorities
said.
“It is coercion pure and simple,” Low said. “The
government wants to take these guys and try and make them say what
they want them to say. The government doesn’t have a case so they
resort to this.”
Nelson was locked up for refusing to testify
against his former squad leader Jose L. Nazario at a federal Grand
Jury seated in Riverside, California, Low said.
The Bronx, New York native was granted testimonial
immunity by federal prosecutors who are seeking to enhance voluntary
manslaughter charges against Nazario. The new charges sought are
murder and unlawfully using a weapon during the battle. If Nelson had
cooperated, he would have been protected from further jeopardy for
anything new he revealed, Low said.
Low said the uniformed Marine briefly got down on
his knees and prayed in the courtroom before surrendering to US
Marshals detailed to take him into custody.
Nazario is currently scheduled to stand trial on
July 8 in the U.S. District Court for Central California in Riverside
for two counts of voluntary manslaughter, according to his attorney
Kevin B. McDermott. He is free of $50,000 bond pending his trial.
"If you win you get prosecuted, if you lose you get
dead.”
“I just don’t understand the system anymore. If you
win you get prosecuted, if you lose you get dead,” Nazario commented
Thursday morning from his temporary home in upstate New York. “Nelson
didn’t want to get locked up but he is UA anyway. I guess it is part
of the double jeopardy system the Marine Corps has got.”
Nazario was indicted by a federal Grand Jury two
weeks after being arrested on August 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.
Nazario said he anticipates returning to California
in late June for a pre-trial hearing scheduled for June 23 at the US
District Court in Riverside.
“I am worried, of course. If they raise the charge
to murder my lawyer says I will get locked up pending my trial. But I
guess a month or two is a jail cell isn’t so bad after Iraq. I guess
Nelson feels the same way,” he said.
The prosecution wants Nelson to tell the Grand Jury
what happened in Fallujah on November 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 in a military court at nearby Camp Pendleton
for twice confessing without legal counsel that he killed one of the
insurgents after being ordered by Nazario to do so. He was free
pending court-martial before being carted away by civilian
authorities, the Marine Corps said.
In his confession, Nelson claimed Nazario received
the order to kill the prisoners from an unknown superior over his
inter-squad radio.
At the time of the alleged incident Nazario was
leading the squad while its attacked insurgent strong points on the
edge of Fallujah. About 45 minutes after squad member LCpl Juan E.
Segura was killed by automatic weapons fire Nazario’s squad discovered
the four armed insurgent combatants inside a house that was being used
as a fighting position.
What allegedly happened next was revealed in the
affidavit Special Agent Fox filed in federal court pursuant to
charging Nazario last August 7. He claimed that Nazario and the other
Marines detained the insurgents during a house search.
His affidavit contends that Nazario shot two of the
captured combatants in the head at close range and that he directed
Nelson and Weemer to shoot two other Iraqis.
"Who else wants to kill these guys, because I don't
want to do it all myself?" Nazario is quoted as telling his Marines in
the Fox affidavit.
"We can't be here all day," he allegedly said. "You
know what has to be done."
Nazario says the incident never happened.
Nelson, Nazario, and Sgt. Ryan Weemer, formerly of
Louisville, Kentucky, have all been charged with unlawfully killing the four
insurgents after capturing them during a firefight. All three men
belonged to 3rd Platoon, Kilo Company, 3rd
Battalion, 1st Marines, the same unit embroiled in the
so-called “Haditha Massacre” a year later.
Other Marines' fate uncertain
Weemer, 27, was recalled to active duty from the
Individual Ready Reserve in March and charged with murder and
dereliction of duty March 18 based on Nelson’s statements to Fox.
An Article 32 evidentiary hearing is
scheduled for July 10th at Camp Pendleton to decide if
Weemer will go to court-martial.
Low said that Weemer has been offered the same deal
as Nelson by government prosecutors and is deciding what action to
take. If Weemer refuses to cooperate he could also be confined. Low
said.
The judge gave Weemer until next Wednesday to
decide. In the meantime the former fireteam leader in Nazario’s squad
remains free at Camp Pendleton, Low said.
The government claims that after Nazario received
the order to kill the prisoners he told Nelson and Weemer to each
shoot one of them while he killed the other two.
Nelson told Naval Criminal Investigative Service
Special Agent Mark Fox that Weemer killed one insurgent with his
pistol while he finished off another with his rifle.
Nelson’s rambling confession is often at odds with
the statements of the other Marines who were present that day. Several
of the Marines from 3rd Platoon interviewed by Fox said the
incident never happened and others give conflicting accounts of what
transpired.
There are no victims, physical evidence, or crime
scene, evidence already revealed by the government shows. Unless the
government can compel Nelson and Weemer testify against Nazario the
government doesn’t have a case, the defense attorneys say.
The Iraqi residents of the house where the alleged
incident occurred told military investigators last spring that they
were in Syria when the alleged killings occurred. They returned home
to find nothing amiss, the evidence revealed.
Weemer was recalled to active duty from the
reserves in March to face murder charges he inadvertently initiated
more than two years. The former college student revealed the incident
during a job interview for a uniformed Secret Service position in
Washington, D.C. in 2006. During a polygraph examination in the spring
of 2006 he told federal investigators he had witnessed the unlawful
killings while serving under Nazario in Iraq.
After Weemer’s revelations were passed on to the
Naval Criminal Investigative Service it began a 14-month investigation
into the alleged killings.
A fourth Marine has
reportedly ”lawyered up” in anticipation of being charged with giving
Nazario the fateful order over the radio and at least two other Kilo
Company Marines also face possible charges, sources close to the case
said.
__________________________________________
Nathaniel R. Helms
Defend Our Marines
22 May 2008
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam veteran, former police officer, war
correspondent, and, most recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).
