Defend Our Marines | Nathaniel R. Helms | Wednesday, August 27, 2008 | (pdf)

Riverside, California--A jury of 12 civilians began deliberations Wednesday afternoon in the case of a former Marine infantry squad leader accused of killing four unarmed insurgents in Fallujah Iraq almost four years ago.

Former Sgt. Jose L. Nazario faces federal charges of voluntary manslaughter, abetting murder, assault with a deadly weapon and unlawfully using his firearm.

Assistant US Attorney Jerry Behnke took the first shots in closing arguments that began Wednesday morning.

Before offering closing arguments, he offered the jury of nine women and three men a surreptitiously recorded telephone conversation between the former squad leader and Sgt. Jermaine Nelson, a co-defendant in the case. The government used Nelson to try and trap Nazario into admitting murder.

NCIS Special Agent Mark O. Fox provided Nelson the bugged telephone.

Jurors are now deciding whether the four enemy combatants, captured in a house filled with evidence of recent resistance, were victims of a vicious war or the cold calculations of three Marines who ran amok.

“Even if they were fighting earlier in the day they gave up the fight and deserved to be treated humanely,” Behnke said. “The big task for you to decide is whether the killing was unlawful.”

“This was not an act of self defense,” Behnke concluded. “This was an execution.”

Behnke frequently referred to key eyewitness Corey Carlisle, a battle-rattled Marine who was medically retired for wounds he received four days later at the Hell House. Carlisle was one of three Marines who testified against their former squad leader Tuesday afternoon during the most damaging segment of the government’s case.

Carlisle told the jury he saw the bloody aftermath of two killings and heard two shots that indicated two more insurgents had been dispatched.

Lead defense attorney Kevin B. McDermott didn’t dispute the government’s claim that the battle of Fallujah was a terrible event.

“You cannot describe Fallujah as anything but. It was horrible. It was in fact brutal,” McDermott said. “Don’t let the government turn [this] into a shooting on some street corner, in some home, in our country.”

The central theme of McDermott’s closing arguments was the government’s paucity of physical evidence. It was unable to present any forensic evidence, or establish the identities or nationalities the alleged victims.

Pictures of the house, which the government claims was the scene of the crime, bore no evidence it had once been an execution chamber.

The people who lived there told investigators they didn’t know anything about the alleged events or who the victims might have been, McDermott said..

The paucity of evidence NCIS investigators found there was seized upon by McDermott as an example of the government’s specious prosecution.

“The evidence falls short of proving the facts of the case,” he said. “The government took the effort to take pictures, why not send in a forensic team to take evidence. Give us some physical evidence. You could and should have the opportunity to get some evidence – where is it?”

In closing the former Marine lawyer warned the jury of the significance of their decision.

“This is the first time that this decision to take a life has been left to the decision of 12 people,” he said.  “At the very least, we never want anyone ever to second-guess whatever they are doing at any point in battle.”

The jury will resume deliberations Thursday morning.

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Nathaniel R. Helms
Defend Our Marines
27 August 2008

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).