by Nathaniel R. Helms | May 22, 2008 |
Related story: Marine Released from Civilian Custody in Fallujah Case
A Marine charged with murder for killing an insurgent prisoner has been jailed in California for refusing to testify at a federal Grand Jury hearing evidence of alleged murder at Fallujah, Iraq.
US District Judge Percy Anderson Wednesday ordered Sergeant Jermaine Nelson to confinement at the federal lockup in Los Angeles after giving him several opportunities to relent.
“It was a beautiful thing to see,” said lawyer Joseph H. Low IV, the former Marine infantryman representing Nelson. “The prosecutors are attempting to break the bonds formed in combat. Nelson told them he’d rather go to jail than rat out a brother Marine.”
Nelson, 26, also faces charges of Unauthorized Absence from military authorities for getting jailed, authorities said.
“It is coercion pure and simple,” Low said. “The government wants to take these guys and try and make them say what they want them to say. The government doesn’t have a case so they resort to this.”
Nelson was locked up for refusing to testify against his former squad leader Jose L. Nazario at a federal Grand Jury seated in Riverside, California, Low said.
The Bronx, New York native was granted testimonial immunity by federal prosecutors who are seeking to enhance voluntary manslaughter charges against Nazario. The new charges sought are murder and unlawfully using a weapon during the battle. If Nelson had cooperated, he would have been protected from further jeopardy for anything new he revealed, Low said.
Low said the uniformed Marine briefly got down on his knees and prayed in the courtroom before surrendering to US Marshals detailed to take him into custody.
Nazario is currently scheduled to stand trial on July 8 in the U.S. District Court for Central California in Riverside for two counts of voluntary manslaughter, according to his attorney Kevin B. McDermott. He is free of $50,000 bond pending his trial.
“If you win you get prosecuted, if you lose you get dead.”
“I just don’t understand the system anymore. If you win you get prosecuted, if you lose you get dead,” Nazario commented Thursday morning from his temporary home in upstate New York. “Nelson didn’t want to get locked up but he is UA anyway. I guess it is part of the double jeopardy system the Marine Corps has got.”
Nazario was indicted by a federal Grand Jury two weeks after being arrested on August 7, 2007. He is charged under the Military Extraterritorial Jurisdiction Act passed by Congress in 2000 to allow service members serving overseas to be prosecuted in civilian court for offenses that call for more than one year of imprisonment.
Nazario said he anticipates returning to California in late June for a pre-trial hearing scheduled for June 23 at the US District Court in Riverside.
“I am worried, of course. If they raise the charge to murder my lawyer says I will get locked up pending my trial. But I guess a month or two is a jail cell isn’t so bad after Iraq. I guess Nelson feels the same way,” he said.
The prosecution wants Nelson to tell the Grand Jury what happened in Fallujah on November 9, 2004 when his squad encountered four enemy combatants during the opening hours of the bloody month-long battle for the ancient city.
Nelson already faces up to life in prison and a dishonorable discharge in a military court at nearby Camp Pendleton for twice confessing without legal counsel that he killed one of the insurgents after being ordered by Nazario to do so. He was free pending court-martial before being carted away by civilian authorities, the Marine Corps said.
In his confession, Nelson claimed Nazario received the order to kill the prisoners from an unknown superior over his inter-squad radio.
At the time of the alleged incident Nazario was leading the squad while its attacked insurgent strong points on the edge of Fallujah. About 45 minutes after squad member LCpl Juan E. Segura was killed by automatic weapons fire Nazario’s squad discovered the four armed insurgent combatants inside a house that was being used as a fighting position.
What allegedly happened next was revealed in the affidavit Special Agent Fox filed in federal court pursuant to charging Nazario last August 7. He claimed that Nazario and the other Marines detained the insurgents during a house search.
His affidavit contends that Nazario shot two of the captured combatants in the head at close range and that he directed Nelson and Weemer to shoot two other Iraqis.
“Who else wants to kill these guys, because I don’t want to do it all myself?” Nazario is quoted as telling his Marines in the Fox affidavit.
“We can’t be here all day,” he allegedly said. “You know what has to be done.”
Nazario says the incident never happened.
Nelson, Nazario, and Sgt. Ryan Weemer, formerly of Louisville, Kentucky, have all been charged with unlawfully killing the four insurgents after capturing them during a firefight. All three men belonged to 3rd Platoon, Kilo Company, 3rd Battalion, 1st Marines, the same unit embroiled in the so-called ‘Haditha Massacre’ a year later.
Other Marines’ fate uncertain
Weemer, 27, was recalled to active duty from the Individual Ready Reserve in March and charged with murder and dereliction of duty March 18 based on Nelsons statements to Fox.
An Article 32 evidentiary hearing is scheduled for July 10th at Camp Pendleton to decide if Weemer will go to court-martial.
Low said that Weemer has been offered the same deal as Nelson by government prosecutors and is deciding what action to take. If Weemer refuses to cooperate he could also be confined. Low said.
The judge gave Weemer until next Wednesday to decide. In the meantime the former fireteam leader in Nazario’s squad remains free at Camp Pendleton, Low said.
The government claims that after Nazario received the order to kill the prisoners he told Nelson and Weemer to each shoot one of them while he killed the other two.
Nelson told Naval Criminal Investigative Service Special Agent Mark Fox that Weemer killed one insurgent with his pistol while he finished off another with his rifle.
Nelson’s rambling confession is often at odds with the statements of the other Marines who were present that day. Several of the Marines from 3rd Platoon interviewed by Fox said the incident never happened and others give conflicting accounts of what transpired.
There are no victims, physical evidence, or crime scene, evidence already revealed by the government shows. Unless the government can compel Nelson and Weemer testify against Nazario the government doesn’t have a case, the defense attorneys say.
The Iraqi residents of the house where the alleged incident occurred told military investigators last spring that they were in Syria when the alleged killings occurred. They returned home to find nothing amiss, the evidence revealed.
Weemer was recalled to active duty from the reserves in March to face murder charges he inadvertently initiated more than two years. The former college student revealed the incident during a job interview for a uniformed Secret Service position in Washington, D.C. in 2006. During a polygraph examination in the spring of 2006 he told federal investigators he had witnessed the unlawful killings while serving under Nazario in Iraq.
After Weemer’s revelations were passed on to the Naval Criminal Investigative Service it began a 14-month investigation into the alleged killings.
A fourth Marine has reportedly ‘lawyered up’ in anticipation of being charged with giving Nazario the fateful order over the radio and at least two other Kilo Company Marines also face possible charges, sources close to the case said.
Nathaniel R. HelmsDefend Our Marines
22 May 2008
Note: 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).