Thursday, August 21, 2008 | Related story: View from the courtroom: The Nazario trial, day one

Riverside, CA – Former Marine squad leader Jose L. Nazario showed little emotion Thursday morning when the presiding US District Judge granted a defense motion to exclude the incriminating statement of a former squad member that triggered the world-wide investigation.

Nazario is charged with voluntary manslaughter, abetting murder and unlawfully using his weapon in a crime. He was charged under a new federal law that provides the government with the authority to prosecute former service members who have completed their military obligation and no longer subject to military law.

US District Judge Stephen Larson ruled that the recorded statement Sgt. Ryan Weemer gave to a Secret Service polygraph examiner in October, 2006 was inadmissible. He then ordered Weemer and Sgt. Jermaine Nelson, who made corroborating statements to Naval Criminal Investigative Service investigators, to appear in court Friday and to be prepared to testify.

Both Marines were jailed by Larson for refusing to talk to the federal Grand Jury that indicted Nazario. Reports are rampant among those close to the investigation that both Marines will refuse to testify when Larson orders them to talk Friday morning.

Defense attorney Kevin B. McDermott told Larson he didn’t know what the two Marines intended to do when they arrived in court.

During the pre-trial workup, the defense teams for Weemer and Nelson made it clear on numerous occasions that the  frequently coercive tactics of the prosecution would not compel either Marine to talk. Both men are charged with unpremeditated murder and dereliction of duty by the Marine Corps.

Contrary to speculation before the case opened Tuesday morning, neither side talked about allegations made by Nelson and Weemer before they obtained legal counsel. In rambling, disjointed statements frequently at odds with each other they had claimed Nazario received radioed instructions from an unknown superior to execute the prisoners.

Opening statements

Assistant U.S. Attorney Charles Kovats offered the jury the government’s version of what happened in the opening hours of the battle.

Obviously uncomfortable with the curious lexicon of Marine Corps lingo, Kovats still managed to attack Nazario’s honor, his responsibility to the Marine Corps and his failure as a sergeant and leader of impressionable Marines.  

Sitting behind him in civilian clothes, given away by their high and tight haircuts, sat Marine Corps lawyers Majors James Lee and Thaddeus Coakley, on loan to the US Attorney’s Office to help prosecute the former Riverside probationary police officer.

In Kovats’ version of the alleged encounter on November 9, 2004 Nazario was thirsting for revenge after one member of his squad was killed by entrenched insurgents. His thirst was quenched when his squad happened upon four men, “unarmed, unresisting men with their hands up” moments after LCpl Juan Segura was shot by a hidden enemy fighter, he told the jury.

"He shot and killed, and he had his subordinate Marines shoot and kill," Kovats said in his opening statement.

Defense attorney Kevin D. McDermott’s emotionally charged opening statement was in sharp contrast to Kovats’ flat, clinical characterization of the bloodiest battle the Unites States had waged since the Vietnam War. The former Marine lawyer told the jury that the case had “historical importance” that would ultimately extend far beyond the case of manslaughter and abetting murder the jury was being asked to weigh.

He told them there was “insufficient evidence to convict a man of something that happened four years before.”

In his 15-minute statement McDermott detailed a saga that begins with the gruesome deaths and display of four Blackwater Corp. civilian security guards hung like roasted meat on a bridge in Fallujah during March 2004.

It ends at the terrible battle of Fallujah in November 2004 that left 60 percent of the ancient city destroyed and at least 3,000 insurgents dead, according to Marine Corps statistics.

“They were spoiling for a fight,” McDermott said of the al Qaeda led insurgents that occupied the city and turned it into a charnel house where decapitations and other forms of torture and murder were the norm. “When you are looking for a fight the last thing you want to call is Marines because they will give you a fight.”

McDermott told jurors they would be the first civilians to sit in judgment about actions in combat.

"What the government is asking you to do is to dictate to every young man" in uniform, he said. "You'd better be right, you'd better be absolutely certain, or we are going to second-guess you."

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Courtroom reporting by Nathaniel R. Helms
Defend Our Marines

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).