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The War Profiteers - War Crimes,
Kidnappings, Torture and Big Money |
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November 7th, 2006 - Hamdania
Marine Seeks Release from Brig |
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Hamdania Marine Seeks Release
from Brig By Mark Walker North County Times November 7, 2006 Camp Pendleton - A Marine
corporal alleged by prosecutors to have played a key role in the kidnapping
and killing of an Iraqi civilian in April sought Tuesday to be released from
custody pending his Feb. 1 trial. Cpl. Marshall
"Magic" Magincalda argued through his attorney, Joseph Low, that
Marine Corps officials did not fully consider alternative forms of
restriction when considering whether he and seven co-defendants should be
placed in the brig. The argument for release was
one of several motions debated by the 23-year-old corporal's attorneys and
military prosecutors in a court session conducted before Col. Steven Folsom. Low argued that Magincalda,
who had been to Iraq three times, was not a flight risk and had
"demonstrated constantly an amazing commitment to doing what is
right." But Capt. Nicholas Gannon
said Magincalda played a key role in the April 26 slaying of Hashim Ibrahim
Awad, including helping plot the actions that led to the man's death.Those
actions included stealing an assault rifle and shovel used to make it appear
Awad was planting a roadside bomb when he was killed, Gannon charged. "He used his influence
and his rank," Gannon said. Gannon also pointed to
statements from the seven Marines and Navy corpsman charged in the case as
underscoring Magincalda having a leadership role in the squad and in the plot
that resulted in Awad's death. Awad was killed after the
squad could not find its intended target, an Iraqi named Saleh Gowad. "When they couldn't
find him he went to the next house and Cpl. Magincalda than went into that
home," Gannon said, adding that the corporal helped seize the
52-year-old retired policeman from his home and took part in binding the
victim before he was shot. After hearing more than two
hours of testimony and argument on the Manteca, Calif., native's bid for
release, Folsom said he would announce a decision on Wednesday. Previous
efforts by attorneys for the men from the 3rd Battalion, 5th Marine Regiment
to have them released from the brig where they were placed after being
returned to the U.S. from Iraq were unsuccessful. The hearing was scheduled to
continue this afternoon following a lunch break, with attorneys expected to
argue several other motions. Magincalda faces charges of
murder, conspiracy, kidnapping, larceny, housebreaking and making a false
official statement. He faces up to life in prison without parole if
convicted. He has pleaded innocent. Three of the eight men
charged in the case reached deals with prosecutors and have pleaded guilty to
lesser offenses in exchange for a requirement they testify against their
squad mates if called to do so. When their pleas were
entered, two of those men said it was the squad leader, Sgt. Lawrence Hutchins
III who was the moving force behind the plot. Hutchins maintains his
innocence. External link:
http://www.nctimes.com/articles/2006/11/07/news/top_stories/1_01_0211_7_06.txt Defense
Attorneys: Charges Against Marine Should Be Dismissed By 10News.com November 7, 2006 Camp
Pendleton, Calif. - Murder and other charges should be dismissed against a
Marine accused in the April death of an Iraqi civilian because his right to a
speedy trial was violated, his attorneys told a military judge Tuesday. The
defense team for Cpl. Marshall Magincalda also urged Col. Steven Folsom to
release the defendant from custody. Folsom
said he would rule on the motions Wednesday. Magincalda,
23, is one of eight servicemen - seven Marines and one Navy Corpsman - charged
in the April 26 death of Hashim Ibrahim Awad near Hamdania. Two
Marines, Pfc. John Jodka and Lance Cpl. Tyler A. Jackson, and Navy Petty
Officer 3rd Class Melson J. Bacos have pleaded guilty to charges related to
Awad's death. Sgt.
Lawrence G. Hutchins III, Cpl. Trent Thomas, Lance Cpl. Robert Pennington and
Lance Cpl. Jerry E. Shumate Jr. are also charged in the death of the
52-year-old Iraqi. Magincalda's
civil attorney, Joseph Low, told Folsom Tuesday that his client wasn't a
flight risk, despite the finding of a Marine officer who conducted an
evaluation. But
Col. Robert M. Hanson, assistant chief of staff for the 1st Marine Division,
testified that as a magistrate, he determined Magincalda should not be
released from confinement because he could commit criminal misconduct while
free. Hanson
said the nature of the charges against Magincalda were also a large factor in
his decision to keep him behind bars. Low
questioned Hanson on whether he had considered comments from Magincalda's
pastor and whether he thought about an electronic tracking device instead of
keeping Magincalda confined. The
pastor's comments about Magincalda's concern about being redeployed to Iraq
were irrelevant, Hanson said. He said he didn't consider the possibility of
releasing Magincalda on bond because there's no such provision in the
military justice system. Capt.
Nicholas Gannon, one of the prosecutors, said Hanson's report was more than
enough justification for keeping Magincalda confined. Gannon
went over the exact nature of the charges against the defendant and how
Magincalda was allegedly a willing and active participant in the events
leading up to Awad's death. "These
facts are uncontroverted, right down to Magincalda's telling Bacos to `stop
being a p----"' when Bacos wanted to back out of the conspiracy
surrounding Awad's murder, Gannon said. Magincalda's
defense team, which includes Capt. Paul L. Tetzloff, argued that the case
should be dismissed based on lack of a speedy trial. Tetzloff
argued it was 40 days before Magincalda knew what he was accused of and that
he also didn't have counsel for a time after he was confined. "To
say he should know what he was facing ... goes against the presumption of
innocence," Tetzloff told the judge. However,
the prosecution argued that Magincalda was technically without counsel for
less than 40 days and that an experienced attorney was available to him. Further,
prosecutors said, Magincalda, through his legal representatives, has asked
for delays in the proceedings on several occasions. Jackson
testified Monday that on the day of the killing, he and the other defendants
agreed to commit obstruction of justice by not being truthful about the
circumstances surrounding Awad's death and making false statements. Jackson
told the judge that on April 25, he was part of a squad patrol, setting up a
security coordinate, along with Jodka and Shumate. Jackson said he was 30
meters away but heard Hutchins discussing something with the other
defendants. Hutchins
said he believed Awad was responsible for setting up an improvised explosive
device that killed several members of their platoon and thought there should
be a plan to get back at him, Jackson testified. Everyone agreed, and on
April 26, several defendants headed toward a village, found Awad and escorted
him to an existing explosion hole, Jackson said. Hutchins
reported to his patrol base that the squad had spotted a man digging a hole
for an explosive device, Jackson said. He said the group then fired on the
victim. Jackson
said he fired his rounds above Awad's head. "I
knew he was going to be shot, but I didn't want to be the one to do so,"
Jackson said. Awad
got up and attempted to move but was shot several more times, the Marine
said. Jackson
said that he, Shumate and Jodka then took Awad's body to an Iraqi police
station. They reported they'd all seen Awad digging on the side of the road
and that their actions were a "lawful military engagement," he
said. Jackson
said he made no attempt to withdraw from the conspiracy and that he had no
obligation to obey Hutchins' original orders. Jackson
told the court that Magincalda fired an AK-47 in the air as part of the false
report, and placed shell casings around Awad's body to make it appear as if
the Marines had been fired upon and acted in self-defense. Jackson's
story differed from Bacos' account. He testified earlier that the squad
originally targeted a suspected terrorist who lived next door to Awad, but
chose him instead when the original plan was foiled by the primary target's
family. Copyright
2006 by City Wire. All rights reserved. External link: http://www.10news.com/news/10268190/detail.html |