A jury of ears may explain surprising
Three members of the squad that executed
an unarmed Iraqi man won reduced sentences after choosing to go to
trial and put their fates in the hands of fellow combat veterans.
Angeles Times, August 4, 2007.
CAMP PENDLETON — Marines
sometimes joke about having "infantry ears."
Legend says grunts may
lose some of their hearing because of job-related proximity to
gunshots and artillery blasts but that, in compensation, they pick up
a keen sensitivity to certain sounds and certain words. Sounds such as
an enemy sniper preparing to take a shot or words that describe the
moral chaos of combat.
Maybe it was the presence
of infantry ears that led to the surprising jury decisions for the
final three members of the so-called Pendleton 8.
All eight members of an infantry squad were accused of murder in the
execution of an unarmed Iraqi man in Hamandiya in April 2006. One by
one, the five junior members of the squad accepted plea bargains to
reduced charges, but Sgt. Lawrence G. Hutchins III, Cpl. Trent D.
Thomas and Cpl. Marshall Magincalda opted for courts-martial.
All three of their juries consisted of Iraq veterans, nearly all of
them from infantry battalions. Most had been under fire; some had
received medals for courage and valor. All knew the confounding,
exasperating nature of the prolonged U.S. mission in Iraq.
Thomas, 25, and Magincalda, 24, were convicted of conspiracy to commit
murder but then freed without additional jail time beyond the 14
months they had been held in the brig awaiting trial.
Hutchins, the squad leader and the ringleader of the plot, was
sentenced Friday by his jury to 15 years — half of what the
Under military law, Hutchins, now 23, could have been sentenced to
life in prison without parole. If the pattern seen among similar
convictions during the Vietnam War holds, he will probably serve only
a portion of the 15 years.
In the Thomas trial, the jurors were told by the judge not to talk
about their verdict. In the Hutchins and Magincalda trials, no such
order was given, but jurors made their own decision to stay mum.
If the jurors were available, one question might be whether there is
an inconsistency between finding a defendant guilty of conspiring to
commit a murder but then deciding that the murder itself was not
premeditated. Only Hutchins was found guilty of murder. Still, the
jurors scratched out the word "premeditated" and penciled in
The switch may have been more tactical than philosophical. A
conviction on a charge of premeditated murder carries a mandatory
penalty of life in prison. Unpremeditated murder has no such
Throughout the hearings that led to the five plea bargains, the
Hamandiya incident had been reduced to a simple narrative: Angry
Marines went looking one night for a suspected insurgent. They failed
to find him, so they snatched the man next door from his bed. He was
shot to death, and the Marines planted phony evidence.
The courts-martial provided details and context that had been lacking
in the plea bargain sessions — the kind of details and context that
may have spoken loudly to Iraqi veterans on the juries.
Marines were frustrated at the inability to arrest insurgents who were
planting bombs and attacking U.S. forces in the Hamandiya area west of
Baghdad. Their officers complained that they weren't tough enough. One
officer may have inadvertently planted the idea of an execution by
talking loosely about killing Iraqis and by authorizing such measures
as a "blood choke" to force suspects to talk.
Military prosecutors suddenly weren't all that sure about the victim's
identity or background after having repeatedly called him a retired
policeman and doting grandfather. By the end of Hutchins' trial,
prosecutors had taken to calling the victim "an unnamed Iraqi male."
In his final argument to jurors, Hutchins' prosecutor tried some
damage control, asserting that the real victim in the case was the
Marine Corps, which had to pull a squad from the battlefield because
of the investigation.
To get their plea bargains, resulting in sentences of 10 months to
eight years, the four Marines and Navy corpsman were required to
testify against their three former squad mates.
But the prosecution may have gotten something different from what it
expected in the testimony of Pvt. Robert Pennington, whose eight-year
sentence is second only to that of Hutchins in severity.
To all three juries, Pennington said that the killing that night —
although unauthorized and illegal — may have acted as a deterrent to
insurgent attacks. (Marine officials say records show that insurgent
attacks around Hamandiya declined after the killing, but those records
are classified and were not part of the trials.)
"I believe, in the end, that the actions we took prevented death or
bodily harm to me and other Marines," Pennington testified at the
Thomas, after being freed, testified at the Magincalda trial that it
was not surprising that all eight squad members went along with the
"Over there," he said, "nobody goes against the squad."
So in the three trials, did the jurors also, in effect, side with the
squad? One expert on life in the corps chose to focus on the verdicts,
not the reduced sentences.
Bing West, whose two books about Marines in Iraq detail the close
bonds among infantry troops, said after the final verdict that he was
sure that jurors were sick at heart at having to vote to convict one
of their own.
"It is a testament to the honor of all grunts that a jury of such
peers would return guilty verdicts," he said. "This war, where the
enemy hides as civilians, is morally wrenching."