From the Marine Corps Times

Hearing for two charged in Iraqi’s death slated for Monday

By Gidget Fuentes
Staff writer

OCEANSIDE, Calif. — The preliminary hearing for two Marines — who are among seven Marines and one sailor at Camp Pendleton charged in an Iraqi’s death — is slated to begin next Monday, two weeks earlier than initially planned, Marine Corps officials said.

The Thursday announcement came two days after officials said that the top commander rejected several defense attorneys’ requests to skip the initial investigative hearings and proceed to a court-martial.

The decisions, and uncertainty over the legal process that preceded them, sent officials and defense teams scrambling to prepare for the Article 32 hearings late this week.

Cpl. Marshall L. Magincalda, whose case was tentatively set to begin Sept. 25, and Cpl. Trent D. Thomas, who had eyed an Oct. 18 start, instead will hear the evidence against them during a joint Article 32 hearing starting next Monday, said Lt. Col. Sean Gibson, a Marine Corps Forces Central Command spokesman at Camp Pendleton.

The Marine Corps has charged Magincalda and Thomas with premeditated murder, kidnapping, conspiracy and other charges for their role in the alleged shooting of an Iraqi in the village of Hamdaniya on April 26. Thomas is also facing charges of assaulting another Iraqi man on April 10.

The two Marines are among a group of eight men with Kilo Company, 3rd Battalion, 5th Marines, charged in the man’s death. The eight, known locally by supporters as “the Pendleton 8,” have been confined at the Camp Pendleton brig, where they were placed after their return from Iraq on May 25. Seven are infantrymen, one is a Navy corpsman.

Defense attorneys, who unsuccessfully petitioned to have the men released pending the hearings, lost in another quest to shorten the process. At least four defense teams, who say they are frustrated that the government has provided them little evidence and information through the normal discovery process, had sought to waive their right to the Article 32 hearing and proceed directly to court-martial.

Approval of a waiver isn’t automatic, however. On Aug. 22, Lt. Gen. Jim Mattis, commander of MarCent and I Marine Expeditionary Force, rejected the requests “in order to make a fair and impartial decision on the disposition of these cases,” said Maj. Jeffrey Nyhart, a Camp Pendleton spokesman.

The three-star general “wants an impartial analysis of the charges and evidence afforded by an Article 32 investigation,” Nyhart said.

Mattis took command last week from Lt. Gen. John Sattler, who is heading to a Pentagon assignment.

In the position, Mattis isn’t just the top operational commander. He’s also the convening authority, the senior officer in the Marines and sailor’s chain of command who will ultimately rule on whether they should be court-martialed and what the punishment, if any, should be.

During an Article 32 hearing, an investigative officer hears testimony and weighs evidence on the charges. The IO, who is usually a judge advocate, makes a recommendation to the convening authority on whether the defendant should face any of the charges at court-martial, be punished at a lesser administrative session or have the charges dropped. The final decision rests with the convening authority, with the advice of his or her command judge advocate.

As of Thursday, the hearings for the other six Kilo members remain unchanged:

• Sept. 12: Lance Cpl. Jerry E. Shumate Jr.

• Sept. 25: Lance Cpl. Robert B. Pennington, Pfc. John J. Jodka and Hospital Corpsman 3rd Class Melson J. Bacos.

• Oct. 18: Sgt. Lawrence G. Hutchins III and Lance Cpl. Tyler A. Jackson.

The denial of the waivers didn’t please the defense attorneys.

Joseph Casasc, one of two San Diego attorneys representing Jodka, said the Corps has “systematically denied” their requests for evidence, including intelligence reports and the “rules of engagement” in place at the time, funding for expert witnesses, and support to allow them to travel to Iraq to question alleged witnesses.

Attorney Jane Siegel, a retired colonel also representing Jodka, in a statement called the decision to hold the Article 32 hearing “a wasteful rubber stamp exercise.”

The decision puts Jodka “in an Orwellian situation,” Casas said in a statement issued late Tuesday. “He must endure an Article 32 hearing that promises thoroughness and impartiality, but must go to the hearing without significant evidence in his defense. He’s being asked to charge the enemy guns without his rifle and flak jacket.”

Casas said he wasn’t sure whether Jodka’s case, set for Sept. 25, would proceed earlier.


Don’t forget the world is watching. Our boys; Marines, Sailors and Soldiers, deserve the benefit of the doubt.

The world is watching, not for America to devour it’s own at the alter of political correctness, but to prove she has the STRENGTH OF WILL to do the RIGHT thing by her own people, by her own warriors.


Demand Justice for the Pendleton 8

h/t Raven

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