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The Warrior
Spring, 2011
by Joseph H. Low
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The Battle for Fallujah represents the fiercest fighting by the United States Marine Corps since the Battle for Hue City in Vietnam and Iwo Jima in WWII. During this storied battle, the Marines fought so close to the enemy that many kills were by hand and by knife. The enemy took positions in concrete houses, which served as excellent bunkers and ably protected these jihadists. From these concrete houses, the jihadists enjoyed a superior line of vision of the approaching Marines. Access to the jihadists' positions was often limited to a single roadway of approach, and the elevated firing positions and the single roadways channeled the Marines into a single concentrated kill zone. Even when the Marines could eventually overcome the jihadists' superior positions–while sustaining heavy casualties–the jihadists accessed fallback positions by tunneling through adjoining walls between homes. Even the jihadists' exits were booby-trapped, to kill aggressive Marines who pursued them.
Murder charges dismissed against Marine
ABC 7 KABC-TV Los Angeles, CA
September 29, 2009
by John North
Original Article
CAMP PENDLETON, Calif. (KABC) -- It's over. In a plea deal Tuesday, a judge dismissed a murder charge against a Camp Pendleton Marine accused of shooting an unarmed Iraqi in the heat of battle in Fallujah. The defendant, Marine Sergeant Jermaine Nelson, talked with Eyewitness News in an exclusive interview before Tuesday's trial.
The murder charges involve one of the most vicious battles of the Iraq war. Murder charges now have been dropped against three Camp Pendleton Marines. Sgt. Jermaine Nelson agreed to plead guilty to dereliction of duty. In exchange, he will get an honorable discharge.
In 2004, Marines fought what may have been the most intense urban warfare since the Vietnam War. They pushed Iraqi insurgents out of Fallujah. It was house-to-house and sometimes hand-to-hand combat.
Nelson, who was then a corporal, from Camp Pendleton, was back for his second combat tour. He also was one of the Marines who spearheaded the Iraq invasion. Nelson was in Fallujah from day one.
"It was very intense, it was very intense," said Nelson. "I lost my best friend, Juan Segura, to a sniper shot."
Now a sergeant, Nelson has had to face murder charges from what happened later that day, along with two of his fellow Marines. The Marine Corps filed charges that prompted a nationwide petition campaign on their behalf.
Squad leader Sgt. Jose Nazario, along with Sgt. Ryan Weemer and Nelson, got orders to take a house.
"Rounds coming from everywhere but someone visually seen movement from that particular house," said Nelson. "It was a pretty big house."
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.
MILITARY: Attorney wants charges dropped against third Fallujah defendant
Citing acquittals, attorney says Marine Corps end prosecution of Sgt. Jermaine Nelson
The North County Times
April 10, 2009
by Mark Walker
The attorney for the third and final Marine charged with killing an unarmed insurgent in Iraq says prosecutors should heed the acquittals of two co-defendants and drop the case against his client.
Attorney Joseph H. Low said Friday that it makes no sense for the Marine Corps to pursue the case against Sgt. Jermaine Nelson.
"I am submitting that request to the Marine Corps," Low said. "The Marine Corps should have gotten the message loud and clear now that these cases should never have been brought."
Nelson is charged with murder and dereliction of duty for allegedly killing one of four unarmed prisoners that he and members of his Camp Pendleton squad captured during a battle for the city of Fallujah in November 2004. He has pleaded not guilty.
On Thursday, Sgt. Ryan Weemer was acquitted by a jury of eight Marine officers on identical charges.
In August, Weemer and Nelson's squad leader at Fallujah, former Marine Sgt. Jose L. Nazario Jr., was acquitted on two counts of manslaughter by a civilian jury that heard his case in U.S. District Court in Riverside. Nazario was tried as a civilian because he had left the Marine Corps and was not subject to recall into the service.
Low said that Nelson, 26, was elated with Weemer's acquittal following a six-day trial.
Attorneys: Marine's delayed court-martial is ploy
By CHELSEA J. CARTE
Oct 3, 2008
SAN DIEGO (AP) — The attorneys for two Marines charged in the killing of unarmed Iraqi detainees accused prosecutors Friday of intimidation by delaying the court-martial of one to try forcing testimony from the other, who faces similar charges.
Sgt. Ryan Weemer and another Marine, Sgt. Jermaine Nelson, face military charges of unpremeditated murder and dereliction of duty in the death of a detainee during combat in Fallujah. A military judge this week granted a prosecution request to postpone Weemer's court-martial.
Weemer and Nelson have repeatedly refused to testify against each other, as well as against a former squad leader, Jose Nazario, who was acquitted in August in federal court of charges related to the killings on Nov. 9, 2004.
Weemer's attorney, Paul Hackett, said he believes prosecutors first want to court-martial Nelson, who has repeatedly invoked his Fifth Amendment right against self-incrimination, because they think they can force him to testify against Weemer if convicted.
Nelson's attorney, Joseph H. Low, said military prosecutors have indicated that if Nelson failed to testify, he would face obstruction of justice charges that carry a maximum five-year prison sentence.
"I don't know why that's not witness intimidation," he said.
Marine Corps spokesman Lt. Col. David Griesmer said in an e-mail to The Associated Press that the judge's ruling helped the government's case "by enhancing the probability that Sgt. Nelson's testimony will be available."
He would not comment on Hackett's claim that it was a ploy, saying only that military prosecutors believed they had more than enough evidence to take Weemer to trial.
He also said that by adjudicating Nelson's case first, it eliminates the use of testimony in Weemer's case against Nelson.
But Low, said he was puzzled by the prosecution's belief that Nelson would testify against Weemer if convicted.
"I don't see what makes them think he would testify against Sgt. Weemer. He's never said that," Low said.
Low also said he has asked the court to postpone Nelson's court-martial in December, saying only it was about a matter unrelated to Weemer's case.
Nazario's trial earlier this year marked the first time a civilian jury has determined whether the alleged actions of a former military service member in combat violated the law of war.
Nazario, Weemer and Nelson belonged to a squad involved in vicious house-to-house fighting in Fallujah during "Operation Phantom Fury," considered one of the fiercest battles of the Iraq war. Military prosecutors allege that the Iraqis were slain after being captured in a house.
The case came to light in 2006 when Weemer volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he ever committed.
Weemer and Nelson maintain their innocence, and both were found in contempt of court for refusing to testify against Nazario even though they had been granted immunity. Weemer's court-martial was pushed back to Jan. 12.
2 Baghdad Attacks Attributed to Teenagers Kill 11 Others
By ALISSA J. RUBIN
May 15, 2008
BAGHDAD — Two suicide bombers described as teenagers carried out attacks Wednesday in suburban Baghdad as the prime minister went to the northern city of Mosul to encourage Iraqi soldiers fighting in a new offensive to rid that area of Sunni Islamic extremists.
The Mosul operation follows two other offensives, in Basra and the Sadr City district of Baghdad, that the government has carried out in recent months; the other two offensives focused on Shiite militias.
Iraqi and American security forces believe that Mosul is the last urban stronghold of Al Qaeda in Mesopotamia, which American intelligence says is a homegrown militant group led by foreigners.
The Iraqi Army began the offensive over the weekend and is being aided by American troops. There has long been support in Mosul for the Sunni insurgency because many former members of Saddam Hussein's security forces live there.
"The goal of this operation is to clean Mosul of the terrorist and criminal groups," said Prime Minister Nuri Kamal al-Maliki, who was accompanied by the ministers of interior and defense. "The operation will open a new page for civilians in Mosul, and the security forces should do everything to make this operation successful just as they are doing in Baghdad and Basra."
Basra has recently settled into relative calm, although it remains unclear if the Shiite militias are finished fighting or simply planning to resume the battle later. Clashes are still going on in Sadr City, although the past few days have been quieter since a cease-fire agreement was reached.
The more damaging of the suicide bomb attacks on Wednesday occurred west of Baghdad about 5 p.m. in Abu Ghraib. It killed at least 10 people and wounded 50, some of them seriously, according to spokesmen for the Falluja and Jordanian hospitals, both in Falluja. By nightfall mosques in Falluja were calling people to donate blood, and police cars were ferrying donors to the hospitals.
The bomber's victims had been mourning the death of Taha al-Zobaie, who was killed two days ago, said Abu Mustapha, a relative who had shrapnel wounds and who would give only his nickname. The Zobaie tribe has opposed Al Qaeda in Mesopotamia.
"He was a child about 15 years old, and he was crying," Abu Mustapha said, describing the bomber. "I don't think he exploded himself because I did not see him move his hands. I think someone exploded him by remote control."
The suicide bomb attack south of Baghdad occurred near Yusufiya, a town that was once heavily dominated by extremists connected to Al Qaeda in Mesopotamia. The bomber, who was female, killed an Iraqi Army captain and wounded seven Iraqi soldiers, the American military said.
Iraqis in the area described the bomber as being 8 to 12 years old, but an American military spokesman said the bomber appeared to be 16 to 18 years old. The bomber waited four hours for the captain to return to the company's headquarters, telling soldiers there that she needed to talk to him, according to an Iraqi officer who was in the same brigade as the captain. He said Al Qaeda in Mesopotamia had put a price on the captain's head.
In Baghdad, the convoy of one of the leaders of the Iraqi Islamic Party was attacked by a car bomb in the predominantly Sunni neighborhood of Yarmouk. The leader, Ayad al-Sammaraie, was not in the convoy, but three of his bodyguards were killed and 23 people were wounded, according to the Ministry of Interior.
Marine Charged in Iraq Shooting
CAMP PENDLETON, Calif. (AP) — Camp Pendleton's commanding general has ordered a marine to be tried for murder in the killing of an unarmed detainee in Falluja, Iraq.
Sgt. Jermaine Nelson, of New York, is among three marines accused of shooting unarmed captives in November 2004.
Sergeant Nelsa, 26, is charged with unpremeditated murder and dereliction of duty. He told investigators in March 2007 that his squad leader had demanded help shooting four detainees after guns were found in the house where the Iraqis were held.
Sergeant Nelson's attorney, Joseph H. Low, has said he obeyed what he perceived as an order.
Sergeant Nelson faces life in prison if convicted.
Iraqi employees of The New York Times contributed reporting from Falluja, Mahmudiya and Baghdad.
Assault charge dropped for Hamdania defendant
By: TERI FIGUEROA - Staff Writer
Monday, June 4, 2007
CAMP PENDLETON - Military prosecutors on Friday dropped assault charge they had levied against a Camp Pendleton corporal who is also charged with the kidnapping and slaying of a retired Iraqi policeman, a Marine Corps spokesman said.
Maj. Jeff Nyhart said the assault charge against Cpl. Trent Thomas was dropped because the alleged victim refused to cooperate with military prosecutors.
The decision to dismiss the assault charge - which was part of an unrelated case arising from the slaying investigation - came one day after a military judge told prosecutors to drop the charge or grant Thomas' defense team a visit to Iraq to interview the alleged victim.
Prosecutors say Thomas is one of eight Camp Pendleton troops assigned to the 3rd Battalion, 5th Marine Regiment who dragged a 52-year-old Iraqi man out of his home and shot him, then tried to stage the scene by framing him as an insurgent planting a bomb.
Thomas has pleaded not guilty to charges of premeditated murder, kidnapping, conspiracy and related offenses in the death of the man, Hashim Ibrahim Awad, on April 26, 2006. Court-martial for the St. Louis native is set to begin on July 9.
The assault charge stemmed from unrelated allegations that Thomas and some of his squad mates beat a different Iraqi man in Hamdania more than two weeks before Awad's slaying.
Hamdania, Haditha cases bring tragedy of war to our doorsteps
By: Andrew Kleske
Monday, June 4, 2007
All too often in war time, it's easy to forget that these are not merely nameless, faceless statistics suffering and inflicting damage in far-off places few of us will ever visit.
This month the number of U.S. personnel killed in Iraq surpassed the number of those killed in the 9-11 attacks, and December was the deadliest month for U.S. troops so far. But most of us are insulated from the daily events and go about our business only vaguely aware they have occurred.
We grow accustomed to the daily death tolls and news of bombings and other atrocities overseas, such that they eventually fade from the front pages and broadcast news reports. Almost 4 years into the war, it takes a major event to turn our heads.
The complicated and tragic events that led up to the Hamdania and Haditha murder cases are just two of such countless events. But unlike so many, these cases have human faces - faces of young men just barely out of high school cast into impossible situations, faces of their struggling and confused family members, faces of those charged with defending or prosecuting the accused. The list of victims is long.
Should we just consider them all casualties of war and let the chips fall where they may? Should we forgive those who may have failed in the heat of battle? Should we allow the suffering to begat more suffering? In war time, can there be anything remotely resembling justice and, if not, should we compound the damage with hypocrisy?
Same issue, disparate rulings in Hamdania cases
By: TERI FIGUEROA - Staff Writer
Monday, June 4, 2007
CAMP PENDLETON - Both Marines are corporals. Both are fire-team leaders. And both are accused of playing key roles in a plot to kidnap and kill an Iraqi, and both men are heading to court-martial this summer.
But while the jury for Cpl. Trent Thomas will hear that five of his co-defendants struck plea deals and got light jail sentences in exchange for their testimony, the jury for Cpl. Marshall Magincalda will not be allowed to hear that same information - even though it appears that the prosecution cases rest heavily on the testimony of the convicted men.
The reason? Two military judges made the disparate rulings, and judges have discretion over what is admissible in trial.
"On a case-by-case basis, the judges can make that determination," Kathleen Duignan, executive director of the National Institute of Military Justice, said of what is deemed OK for a jury's ears.
"It's happened to me," said Duignan, a former military attorney. "It's not as unusual as you would think."
Prosecutors say that Thomas, Magincalda and six other Camp Pendleton troops assigned to the 3rd Battalion, 5th Marine Regiment dragged Hashim Ibrahim Awad out of his home in the rural village of Hamdania on April 26, 2006.
The squad of eight is accused of killing Awad and then staging the scene to frame Awad as an insurgent planting a bomb.
Thomas and Magincalda have pleaded not guilty to charges of premeditated murder, kidnapping, conspiracy and related offenses in the death of Awad. A third Marine, squad leader Sgt. Lawrence Hutchins, has not yet entered a formal plea.
The three Marines, all of whom face courts-martial this summer, are being tried separately. All three face life in prison if convicted of premeditated murder.
The five other squad members accused in the case reached plea agreements with prosecutors and were given jail terms ranging from one to eight years. One of the men, Navy Corpsman Melson Bacos, has already served his time and been released.
In exchange for the light sentences, the five men also agreed to testify against their squad mates.
With the courts-martial looming, defense attorneys for Thomas and Magincalda told the judge in their respective cases that the jury should hear about the shorter sentences. They contend that the government bought the men's testimony in exchange for sweet deals.
Thomas and Magincalda got different answers to the same request.
Three weeks ago, Lt. Col. David Jones found that it was "crucial and essential" to Thomas' defense for the jury to hear about the light sentence given to co-defendants.
But Lt. Col. Eugene Robinson this week rejected the same request from Magincalda, finding that the plea deal specifics were not relevant, and that it might confuse the jurors.
Military law allows a judge to keep relevant evidence from the jury if the judge deems that it would do more harm than good to the case.
Among the permissible reasons for keeping evidence out of a trial is the danger that it would confuse the issues, mislead the jury or unfairly affect the case.
Duignan said the argument that Magincalda's judge abused his discretion could come up in Magincalda's appeal, if the corporal is convicted.
"The judge has a lot of discretion," Duignan said. "The court looks to see if the judge abused it - and it is very difficult to show. There would have to be some kind of egregious effect."
One of the areas the appeals court would look at, she said, is any disparate results in the outcome of Thomas' case versus Magincalda's case.
Still, even if there are vast differences in the outcomes, it may not be enough to convince the appeal court that either trial judge's decision was unfair.
"Sometimes courts are persuaded by that," Duignan said of disparate results, "and sometimes not."
Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.
Military Won't Seek Death for Marine
By Linda Deutsch
August 31, 2006
Associated Press
Camp Pendleton-A military prosecutor told a hearing Wednesday that the government would not seek the death penalty against a Marine Corps private who is among eight troops charged with the murder and other crimes in the shooting of civilian Iraqi man.
Lt. Col. John Baker announced the prosecution's position during a hearing for Pfc. John J. Jodka III, 20. It was not clear if the recommendation applied to the six other Marines and one Navy corpsman also charged in the case.
"The recommendation of the prosecution team is that a capital referral not be sought in this case. It is our position that a capital referral in this case is not appropriate," Baker said.
The hearing for Jodka and a separate one held for another Marine, Cpl. Marshall Magincalda, 23, are part of the process to determine whether the defendants should face courts martial.
Earlier, lawyers for Jodka argued vehemently that "inflammatory" statements made by the private and other Marines should be kept secret before trial.
Retired Col. Jane Seigel, who represents Jodka, said disclosing the 16 statements about the incident during a highly publicized hearing would hurt jury selection for Jodka's expected court martial.
"To openly discuss contents will completely pollute the local and national jury pool," Seigel said. "Some of it is very inflammatory."
The Marines and corpsman are charged in the shooting of Hashim Ibrahim Awad, 52, in the rural village of Hamdania. Iraqi witnesses told the military that Marines and a sailor kidnapped Awad on April 26, bound his feet, dragged him from his home and shot him to death in a roadside hole.
Jodka is one the defendants accused of fired on Awad. Magincalda is suspected of binding Awad's feet and kidnapping him.
A separate proceeding on Wednesday for Magincalda lasted only 30 minutes.
Investigating officer Col. Robert S. Chester, who is hearing the case, informed Magincalda of his rights. Asked him if he understood, the nervous Magincalda said, "Yes, sir."
Chester said the defense had asked for the hearing to be closed to the public, fearing publicity might hurt Magincalda's ability to receive a fair trial.
Chester opposed the request, saying the public has a "very compelling right to hear these proceedings and have them open to the public."
The prosecution presented a thick packet of documentary evidence that Chester said he had not finished reading. He said he would tell prosecutors by Friday if he had questions about the evidence.
Prosecutor Capt. Nicholas L. Gannon urged Chester to focus particular attention on statements by three members of the squad, including an alleged confession by squad leader Sgt. Lawrence F. Hutchins III.
Civilian defense attorney Joseph Low said he would contest the evidence.
At the hearing for Jodka, Siegel noted that a media center had been set up on the base and that 3,000 journalists had asked to cover the proceedings.
Ret. Col. Paul Pugliese, the investigating officer conducting the hearing, said he felt it was reasonable for the defense to ask that the statements not be read in open court. He said he would try to restrict disclosure as much as possible.
The prosecutor, Col. John Baker, said it might be necessary for mention some of the material during witness testimony. For instance, he said a military investigator will discuss how the statements were taken.
"In order to explain it, she'll have to refer to the statements," Baker said.
"It's not my intention to try to taint the jury pool," he added. "It's my intention to try to present the evidence to you."
Siegel and Joseph Casas, another attorney for Jodka, said the defense had been denied access to a translator to decipher Arabic documents and had to rely on government translations.
The government has listed 12 witnesses for the hearing, and the investigating officer confirmed there had also been requests to present Iraqi witnesses. The defense asked that the identities of the Iraqi witnesses be withheld.
Pugliese agreed to do his best to keep the names out of the public record, saying the Iraqis might be referred to by letter of the alphabet.
The hearings held under Article 32 of the Uniform Code of Military Justice are the functional equivalent of civilian preliminary or grand jury hearings, and will determine whether the men should be tried in a general court martial.
Both defendants have been held in the Camp Pendleton brig since returning from Iraq after the allegations were brought to the attention of Marine leadership during a regularly scheduled meeting with Iraqi citizens of Hamdania.
Prosecutors claim Magincalda also gathered shell casings and put them by the body while others in the group cleaned fingerprints off an AK-47 and planted it in Awad's hands, apparently to make him look like an insurgent.
The Marines have the opportunity to mount a defense, call witnesses or even testify themselves. Their lawyers were expected to challenge use of the defendants' pretrial statements by contending they were subjected to heavy-handed inquiries with threats of the death penalty.
Let All Criminal Defendants Pick Their Lawyers
Daily Journal - Aug 21, 2006
Forum Column
By Erwin Chemerinsky
The Sixth Amendment right to counsel means that a criminal defendant who can afford to pay for an attorney generally has the right to the lawyer of his or her choice. That is the holding of a Supreme Court decision from the end of June that has important practical implications for criminal cases across the country. In U.S. v. Gonzales-Lopez, 2006 DJDAR 8085 (June 26), the court held, 5-4, that wrongly denying a person the attorney of his or her choice is an automatically reversible error without any need for the criminal defendant to show that he or she was prejudiced by the court's mistake.
Cuauhtemoc Gonzales-Lopez was tried in the U.S. District Court for the Eastern District of Missouri for conspiracy to distribute more than 100 kilograms of marijuana. His family hired a lawyer, John Fahle, to represent him. But Gonzales-Lopez contacted a California attorney, Joseph H. Low, to provide representation. Low flew to Missouri to meet with Gonzales-Lopez and was hired to be Gonzales-Lopez's lawyer.
The District Court, however, refused to grant Low's motion for pro hac vice status. In fact, Low three times moved for pro hac vice status and each time was denied without opinion by the District Court. Later, the District Court explained that it refused these requests because it believed that Low had violated ethical rules by contacting Gonzales-Lopez and speaking with him directly even though Gonzales-Lopez was represented by other counsel.
Fahle withdrew from representing Gonzales-Lopez, but still the court would not allow Low to participate in the trial. Indeed, the new attorney, Karl Dickhaus, moved to allow Low to sit at counsel table, but the District Court refused. The court ordered Low to sit in the audience at the trial and to have no contact with Dickhaus. The court even had a U.S. marshal sit between Dickhaus and Low to make sure that no communications occurred between them during the trial proceedings.
Gonzales-Lopez was convicted and appealed on the ground that his Sixth Amendment right to counsel had been violated. The 8th U.S. Circuit Court of Appeals concluded that the District Court erred in denying Low pro hac vice status. It decided that Low had not violated any ethical rule and that denying Gonzales-Lopez the attorney of his choice required reversal of the conviction.
The issue before the Supreme Court was an important one: How should such wrongful denial of counsel be analyzed? Must the defendant, as the government argued, prove that he or she was prejudiced? Or is an error in denying representation per se a reversible error?
The Supreme Court, in its 5-4 decision, affirmed the 8th Circuit and held that wrongful denial of representation by the attorney of one's choice violates the Sixth Amendment and that it is a structural error that is not subject to harmless-error analysis. In a division among the justices rarely seen, Justice Antonin Scalia wrote the opinion for the majority and was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Scalia's majority opinion began by observing that the Sixth Amendment means that a defendant who does not require appointed counsel has the right to choose who will represent him or her. In other words, those with resources to hire an attorney, generally have a right to the lawyer of their choice.
Scalia expressly rejected the government's contention that the defendant must show that he or she was denied a fair trial and was prejudiced by not having the attorney of choice. Scalia emphatically declared, "In sum, the right at stake here is the right to counsel of one's choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation 'complete.'"
The court then went on to conclude that the denial of the attorney of choice was a "structural error" and not subject to harmless-error analysis. The Supreme Court generally has been reluctant to find constitutional violations to be structural errors and has emphasized that usually harmless-error analysis is to be applied. See, e.g., Washington v. Recuenco, 2006 DJDAR 8078 (June 26) (failure to submit a sentencing factor to the jury, in violation of Blakely v. Washington, 542 U.S. 296 (2004), is subject to harmless-error analysis).
But in Gonzales-Lopez, Scalia concluded that wrongful denial of the counsel of the defendant's choice inherently violates the Sixth Amendment. The court stated, "We have little trouble concluding that erroneous deprivation of the right of counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error." The court explained that it would be an impossible burden to force a defendant to show that the outcome would have been different if only another lawyer had handled it. Scalia explained that "[h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe."
At the end of the majority opinion, the court reaffirmed the power of trial courts to set criteria for admission of attorneys to appear before them. In other words, courts can have rules limiting pro hac vice representation, and there is not a violation of the Sixth Amendment so long as the rules are applied properly. Also, the court emphasized that its holding did not apply in the context of appointed counsel, where courts retain discretion as to who will represent a defendant. The court noted that "[t]his is not a case about a court's power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant's first choice of counsel."
Nonetheless, the case has important implications. Although courts still may enforce rules concerning pro hac vice representation, Gonzales-Lopez means that a wrongful denial of pro hac vice status is an automatically reversible error requiring a new trial. This likely will cause trial courts, both federal and state, to be much more likely to grant pro hac vice status rather than risk reversal after a conviction.
Moreover, the court's repeated insistence that the Sixth Amendment creates a right to representation by the attorney of one's choice is not as easily cabined as the majority suggests. Why should this be a right only for those rich enough to afford an attorney? Why shouldn't those without such resources, who are represented by appointed counsel, also have this right? It is deeply disturbing that the court expressly articulated a right that applies only for those with money and that does not apply to those too poor to afford a lawyer. The majority's reasoning may open the door for those represented by appointed counsel to claim some right with regard to the choice of who will be providing representation.
Also, what of the defendant who is denied the attorney of choice because a trial court is inflexible in scheduling and refuses to grant an extension until the desired lawyer can participate? The court's emphasis on the right to the attorney of one's choice should cause trial courts to be more hesitant to proceed without that lawyer's participation.
Justice Samuel Alito, writing for the four dissenting justices, lamented that the majority's holding means that "a defendant who is erroneously required to go to trial with a second-choice attorney is automatically entitled to a new trial even if this attorney performed brilliantly." This is exactly what Scalia's opinion means. The court's holding is an important victory for criminal defendants in finding that it is structural error to wrongly deny representation by the attorney of the defendant's choice. A defendant facing imprisonment or even death deserves no less. But this is a right that should be accorded to all criminal defendants, rich and poor alike.
Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University.
Cases Draw Cavalcade of Military Justice Stars
Courts-Martial Bar Is Being Stretched Thin By Incidents Involving Pendleton Marines
Daily Journal - Jun 26, 2006
By Don J. DeBenedictis, Daily Journal Staff Writer
SANTA ANA - Even before the military announced murder charges Wednesday, the seven Marines and one Navy corpsman suspected of killing an Iraqi man near Hamandiya in April had hired private defense attorneys to work with their appointed military lawyers.
Another Week, Another Protest At Camp Pendleton
June 25, 2006
CAMP PENDLETON, Calif. -- For a third week, families and supporters of seven Marines and a Navy sailor charged with murder in the death of an Iraqi civilian gathered at Camp Pendleton to protest the arrests.
The supporters of the servicemen first protested that the men were being held without being charged. Now that they have been charged, the protestors say the men are innocent.
Seven Marines, Navy corpsman charged with murder
MARK WALKER, DAVID STERRETT and WILLIAM FINN BENNETT - Staff Writers
June 22, 2006
CAMP PENDLETON - In one of the most serious criminal cases to arise out of the U.S. presence in Iraq, seven Marines and a Navy corpsman were each charged Wednesday with premeditated murder, kidnapping and conspiracy and related charges in the April 26 alleged abduction and slaying of an Iraqi civilian.
Seven Pendleton Marines Charged In Slaying Of Iraqi Civilian
June 21, 2006
OCEANSIDE, Calif. - Seven Camp Pendleton-based Marines and a Navy corpsman Wednesday were charged with murder, kidnapping and other counts in connection with the April 26 slaying of an Iraqi civilian in Hamdania.
The eight servicemen were charged with premeditated murder, larceny, kidnapping, assault, making false statements, housebreaking and conspiracy in connection with the death of Hashim Ibrahim Awad.
Magistrate orders Marine corporal to stay in brig
June 8, 2006
DAVID STERRETT and MARK WALKER - Staff Writers
CAMP PENDLETON - A magistrate ruled Wednesday that a Marine corporal under investigation for his alleged role in the kidnapping and murder of an Iraqi civilian must remain in solitary confinement at the Camp Pendleton brig because of concerns he might flee.