November 22, 2007, Los Angeles, California -- The first Marine
charged in civilian court for crimes that allegedly occurred in combat
will be in court again December 17, according to court documents filed
in the United States District Court for Central California.
Jose Luis
Nazario is charged with two counts of voluntary manslaughter for
allegedly killing two enemy prisoners of war at Fallujah, Iraq on
November 10, 2004. The former Marine sergeant and fired Riverside,
California probationary patrolman is charged under a vague and barely
tested federal statute called the Military Extraterritorial
Jurisdiction Act. It was intended to give the government the ability
to prosecute Department of Defense employees and military personnel
with crimes they committed in foreign venues, according to government
documents.
Kevin B.
McDermott, co-counsel for Nazario, said a Motion for Discovery filed
Wednesday is the first of many motions the defense intends to present
in a pre-trial effort to remove the decorated combat Marine from being
tried before civilians. If the effort fails, McDermott anticipates
Nazario will go to trial in March or April, 2008. McDermott and
co-counsels Douglas L. Applegate and Joseph M. Preis filed the motion
before U.S. District Judge Stephan G. Larson. The action is scheduled
to be heard at 2 p.m. on December 17th in Riverside.
The
motion asks the court to compel the government to produce any and all
evidence pertaining to Nazario’s arrest and prosecution.
Accompanying the motion was a
declaration filed by Marine Corps
Judge Advocate Lt. Col. Matthew Cord describing the kinds of documents
and other physical evidence the government has likely amassed in its
pursuit of the case against Nazario. Defense attorneys view the
forthrightness of NCIS investigators with a jaundiced eye and adding
Cord’s voice to the Motion for Discovery is likely to encourage the
government to be more forthcoming than it otherwise might be,
McDermott explained.
Thom
Mrozek, the Public Affairs Officer for the U.S. Attorney's Office for
Central District of California in Los Angeles was unavailable for
comment when this report was posted.
Nazario
was charged on August 5 after being stripped of his badge and gun and
frog marched past his peers by Naval Criminal Investigative Service
special agents. He was arrested 25 days before he completed his
18-month probationary period that would have precluded his firing.
McDermott
said the NCIS agents--notorious for their questionable
tactics--arrested Nazario before he would have been protected from
losing his job by police union rules. He was arrested after Sgt.
Jermaine Nelson, an active duty Marine, confessed to an NCIS
investigator, without the benefit of legal counsel, that he killed one
Iraqi prisoner after being egged on by Nazario. Nazario was Nelson’s
squad leader at Fallujah.
Nelson’s
statement is the most incriminating among several conflicting
statements given to investigators by at least nine Marines. All of the
Marines belonged to 3rd Platoon, Kilo Co, 3rd
Battalion, 1st Marines, the same unit from which four Marines were
charged with murder at Haditha, Iraq a year later.
Nelson
was briefly arrested at Camp Pendleton last August and charged with
unpremeditated homicide under the authority of the Uniform Code of
Military Justice before General James N. Mattis ordered the charges
dismissed until a more complete investigation could be conducted.
Mattis has since been transferred and the ultimate authority in
Nelson’s case is now Lt. Gen. Samuel Helland, who replaced Mattis as
Commander of West Coast Marines. No decision has been announced about
whether he will be charged again.
At least
one other Marines has been implicated in shooting to death the
prisoners. According to witness statements former Corporal Ryan Weemer,
the witness who first brought the allegations to the government’s
attention, also shot one of the prisoners. At the time Weemer revealed
the information he said he had only witnessed the killings..
Nazario
is accused of executing two of four Iraqi insurgents fighters captured
in the opening moments of Operation Al Fajr--the Second Battle of
Fallujah--that produced a platoon of heroes from 3/1 during the
roughest fighting American servicemen have experienced since the
Vietnam War. The Iraqis were captured during heavy fighting in a house
where they had barricaded themselves and attacked the Marines with
automatic weapons discovered in the house.
Before
the allegations of murder surfaced 3/1, known in the Corps as the
Thundering Third, was considered one of the premier fighting units in
the American arsenal. Among the heroes from 3/1 who participated in
the battle are two Navy Cross recipients and a platoon of Silver and
Bronze Star recipients. Almost half of the 1,250-man reinforced
infantry battalion was wounded during the month-long fight.
The
allegations came to light when Weemer told federal investigators he
had witnessed the unlawful killings while serving under Nazario in
Iraq. Weemer is currently a college student living in Kentucky. After
his revelations were passed on to the Naval Criminal Investigative
Service CIS in late 2006 it began a 14-month investigation into the
alleged killings.
“I think the toughest part for Nazario is
that NCIS calculated his arrest to be timed before he could be
protected from losing his job and, for whatever reason, unlimited
venom. The methods they used was tough on the case, tough on his
family, and terribly expensive for a young man who doesn’t have a
decent income,” McDermott said. “What Jose is faced with is easily
trying to raise $50,000 to $200,000 just in expert witness fees and
forensic, electronic scanning, and video experts.”
The federal government recently turned up
the heat a notch when they called Capt. Jesse Grapes to the Grand Jury
in Riverside to reveal what he knew about Nazario’s involvement in the
alleged murders. Grapes, Nazario’s platoon leader and a decorated
combat Marine, gained fame and accolades at Fallujah for his daring,
aggressive leadership. Witness testimony is paramount in the case
because there is no physical evidence, no crime scene, no named
victims, and no certainty the events alleged ever happened, McDermott
added.
“Grapes came down, took the Fifth and went
back home,” McDermott said. “Ironically, if a Blackwater employee was
standing next to Nazario when this allegedly happened he could not be
charged with a crime under U.S. law. He would be untouchable under the
current law Nazario is charged under because he would have been a
contractor for the U.S. State Department. Equal protection does not
apply here. Laws cannot be written that apply to one class of people
and not to another.”
Nathaniel R. Helms
Defend Our Marines
22 November 2007
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam vet, journalist, combat reporter, and, most
recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007)
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam vet, journalist, combat reporter, and, most
recently, author of