A jury of ears may explain surprising Marine verdicts

By Tony Perry

Los 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 prosecution requested.

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 "unpremeditated."

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 stricture.

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 hearing.

Thomas, after being freed, testified at the Magincalda trial that it was not surprising that all eight squad members went along with the plot.

"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."