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An Article 32 hearing for the “Pendleton 8,” seven Marines and a Navy corpsman accused of conspiracy, kidnapping and murder of 52-year-old Iraqi Hashim Ibrahim Awad is scheduled to begin today, though defense attorneys have requested a continuance until Sept. 26.
Joseph Casas, Pfc. John Jodka’s attorney, told WND, “It is true that the government scheduled some of the Article 32 hearings to start Aug. 1 and some to follow in the next few weeks. However, because we have not been granted access to witnesses and crucial documents, we (the defense) will not be in a position to commence the hearings until late September.”
The Naval Criminal Investigative Service will present evidence that the accused entered the Iraqi town of Hamdaniya, kidnapped 52-year-old Hashim Ibrahim Awad from his home, tied him up with plastic cuffs or other restraints, put him in a hole and shot him April 26. Investigators allege that after killing Awad, the defendants placed an AK-47 in his hands and put a shovel in the hole to make it appear he was planting explosives.
After the hearing, a commanding officer will decide whether there is probable cause for a full trial and present his recommendation to the I Marine Expeditionary Force general. The decision could lead to a dismissal of charges or a court-martial.
Defense attorneys have hit a major road block in dealing with the Marine Corps’ scheduling process. Casas told WND, “The reason they scheduled an Article 32 hearing so soon is to push the defense into submitting a continuance request. The government has 120 days from the date of confinement, to the date of arraignment, to begin the Article 32 hearings on a ‘speedy-trial clock.'”
He told WND the government may exclude a continuance request from the trial if it takes longer than 120 days from confinement for the defense attorneys to review evidence. He believes the maneuver is intended to push the case into a court-martial and reduce the chance the soldiers might be exonerated during the Article 32 proceedings.
Casas said the defense has been denied access to crucial documents and witnesses that could lead to the dismissal of charges during the hearings. To no avail, defense lawyers requested to visit the site in Hamdaniya, investigate and interview residents to form a rebuttal against Pentagon claims.
“Looking at the pictures alone is inadequate,” Casas told WND. “That’s why it’s important for me to visit Iraq. There are other geographical and topographical things that (we can’t see in the photos) that are going to change how the event potentially happened or not.”
Casas said Lt. Gen. John F. Sattler denied the requests, calling them “premature … because no charges have been referred to trial by court-martial.” Casas referred to this decision as a “Catch-22” because his intention is to prevent a court-martial.
In addition to Iraqi witnesses in Hamdania, there are “still dozens of witnesses that need to be interviewed from Kilo Company,” Casas said.
The evidence provided to the defense is not complete, Casas contends.
“There are no pictures attached to the autopsy report. It appears that there are more out there. We are requesting that they give us the complete autopsy report,” he said.
Though the report concludes Awad died as a victim of homicide, Casas said the report did not indicate any evidence injury or hemorrhage on the body – evidence that would likely exist if the victim had been tied or cuffed.
However, the report maintains the body, exhumed in June and examined at Dover Air Force Base in Delaware, has been decomposing since April and it is difficult to ascertain whether injuries were present. The government pathologist examined the body and it was returned to Hamdaniya to be reburied. Casas explained pathologists for the defense were never allowed access to the body, only to government autopsy reports.
“It’s one thing to review government’s report, another to have a hands-on independent analysis of the alleged victim’s body,” Casas said.
Meanwhile, the accused men from Kilo Company, 3rd Battalion, 5th Marine Regiment have been locked in the brig since May 24. Sgt. Lawrence Hutchins III, Cpls. Marshall Magincalda and Trent D. Thomas, Hospitalman 3rd Class Melson Bacos, Lance Cpls. Tyler A. Jackson, Robert B. Pennington and Jerry E. Shumate Jr., and Pfc. John J. Jodka III appeared before a military magistrate in early June. The judge ordered them to be held due to the seriousness of the alleged offenses.
According to California’s North County Times, four more Camp Pendleton Marines may face charges in the alleged April 26 kidnapping. Cpl. Thomas’ attorney, Victor Kelley, said he has been led to believe the additional troops, one of whom is an officer, may face a charge of conspiracy to commit murder.
Kelley told the Times if an officer is charged, “it has the potential of being very significant.”
“The military law is that obedience to lawful orders is always a defense to allegations of misconduct,” he said. “So, if Cpl. Thomas and the others were following lawful orders, that is an absolute defense.”
Private defense attorneys, aided by military attorneys appointed for each defendant by the Marines, maintain their clients’ innocence. Casas said it’s likely the continuance will be granted and he intends to collect the evidence before the hearing.
“These are very important proceedings,” Casas said. “A soldier can be exonerated at an Article 32 proceeding. We are not going unprepared – there is no way.”
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Chelsea Schilling is a WND intern based in Texas and currently in Washington, D.C.