MILITARY: Closing The Book on a Dark Chapter in Iraq

Upcoming murder trial is next to last in Camp Pendleton war crime cases

The North County Times
September 13, 2009
by Mark Walker

When the murder trial of Sgt. Jermaine Nelson unfolds in a Camp Pendleton courtroom later this month, a dark chapter of the Marine Corps' legacy in Iraq will near an end.

Nelson is the last of three men accused of killing four captive insurgents during a 2004 battle for Fallujah to go to trial.

Two co-defendants were acquitted, one in a federal civilian trial last year and one at Camp Pendleton earlier this year.

When the Nelson trial is over, Staff Sgt. Frank Wuterich will be the last of two dozen Camp Pendleton troops accused of various unlawful killings in Iraq whose fate remains undecided.

Wuterich is the sole remaining defendant among eight Pendleton Marines charged with wrongdoing in the slaying of 24 Iraqis in the city of Haditha in November 2005 following a roadside bombing. Seven of the accused have been exonerated, either through trial or dismissal of charges.

Wuterich, who is accused of multiple counts of manslaughter, still does not have a trial date because of an ongoing battle by prosecutors to gain access to unaired portions of a CBS' "60 Minutes" interview he gave prior to being charged.

Nelson's trial is scheduled to start Sept. 28 and will once again test whether prosecutors can prove that murder happened during the opening hours of the largest urban battle of the Iraq war.

He and two squad mates from Camp Pendleton were charged with capturing four suspected insurgents inside a Fallujah home and executing them following a reported radio call to a still unidentified Marine. After reporting the capture, whoever was on the other end of that radio call reportedly asked if the captives were dead yet and directed the squad to "take care of it" so they could continue their fight through the city.

The squad leader was former Marine Sgt. Jose L. Nazario Jr., who was tried and acquitted in U.S. District Court in Riverside last year. Nazario was prosecuted as a civilian because he had left the Marine Corps and was not subject to recall back into the service.

Jurors who heard his case said they did not believe it was appropriate for them to second-guess actions occurring during the heat of battle.

In the early spring of this year, Sgt. Ryan Weemer was tried for murder at Camp Pendleton and acquitted by a jury of eight Marine officers.

Hampering the prosecution in the Fallujah cases is a wholesale lack of any physical evidence that includes no bodies, no names of the suspected insurgents the government says were killed and no complaining witnesses. The cases were filed after Weemer told a Secret Service agent during a job interview that he was aware of unlawful killings in Iraq.

Nazario, Weemer and Nelson have stood as one since being charged. Each refused to testify before a federal grand jury investigating Nazario's role and all were jailed for a brief time for their recalcitrance.

Weemer and Nelson also refused to testify at Nazario's trial and were cited for contempt. Nelson and Nazario refused to testify at Weemer's trial.

Nelson's attorney, Joseph H. Low, said he plans to call Nazario to the stand in an attempt to learn who was at the other end of the radio call. Prosecutors are also expected to want to hear from him and Weemer, but it is doubtful either one will agree to testify.

Low acknowledges that Nelson's case is different because he gave detailed statements to investigators. He also agreed to talk with Nazario in a taped call set up by investigators in which the two discussed what happened in Fallujah.

But while the prosecution says his statements are essentially confessions, Low termed them manufactured, one-sided statements that don't tell the whole truth of what happened in Fallujah on Nov. 19, 2004.

"I think the jury needs to hear the whole truth and his statements are only one, edited version of the truth," Low said, adding he isn't certain if Nelson, who remains on active duty at Camp Pendleton, will testify.

Low also will contend that Nelson was suffering from post-traumatic stress disorder during the battle of Fallujah, which he says was a result of previous combat deployments and having to recover mangled bodies from a helicopter crash in the Philippines.

He has described Nelson as a first-rate Marine who overcame a very difficult childhood to join the service and achieve the rank of sergeant.

Nelson was so eager to join the Marine Corps after leaving high school that he requested and won approval to get on a plane for boot camp within hours of being accepted into the service, Low said.

The judge is Navy Capt. Keith J. Allred, a seasoned jurist who presided over the military commissions at Guantanamo Bay, Cuba, in 2006 and 2007.