The War Profiteers - War Crimes, Kidnappings, Torture and Big Money
December 12th, 2006 - Four Hamdania Defendants no longer getting Paid
By Mark Walker
North County Times
Tuesday, December 12, 2006 10:57 PM PST
Camp Pendleton - In the brig and facing the possibility of life prison sentences, the four remaining defendants in the slaying of a retired Iraqi policeman earlier this year have had their enlistments expire and are no longer getting paid or receiving benefits.
They also were not asked or given a chance by the Marine Corps to re-enlist.
Attorneys for three of the four men still facing trial in the April 26 death of Hashim Ibrahim Awad say they wish the Marine Corps had exercised the discretion they say it could have and given their clients the chance to re-enlist so they would still get their monthly pay.
"They're doing it because they don't want him to have the ability to pay (for his defense) and 'innocent until proven guilty' obviously wasn't part of the analysis," said Joseph Low, who represents Cpl. Marshall Magincalda. "It makes me mad that not only did they take his money, they refuse to pay for a defense investigator and won't provide just a little bit of money to find the exculpatory evidence the government left behind."
Those still facing trial also have at least two military attorneys provided at no cost assisting their civilian attorneys, and do receive needed health care services as they await trial while house in the brig at Camp Pendleton.
Four of their squad mates also charged in the case pleaded guilty to lesser offenses and are in the brig at Miramar Marine Corps Air Station. The pay and enlistment status of those four was not immediately available.
One defendant whose case is undecided has requested an extension of his enlistment, but the Marine Corps on Tuesday would not say who had done so because, a spokesman said, the process is not complete.
The spokesman, Lt. Esteban Vickers, said Marine Corps officials are abiding by regulations that say an enlisted service member kept in the military for the purpose of court-martial is not entitled to any further pay or benefits when their enlistment expires.
Vickers also pointed to a companion regulation that says a service member in the brig, which is the case for all the men in the Awad case, loses all pay and allowances on the date his enlistment expires.
That date came recently for Cpl. Trent D. Thomas, his civilian attorney Victor Kelley said.
"He's been in no-pay status for about a month," Kelley said. "I am representing him basically on a pro bono basis because I made a promise to Cpl. Thomas.
"As a retired Marine, I know the hell he has been through and I'm not going to abandon him."
Kelley said that while he was disappointed the Marine Corps did not waive the regulation and continue to pay the defendants who have not been convicted of any crime, he was grateful for efforts the service is making on behalf of his client and other defendants to put them and their dependents in touch with social service agencies and other support groups.
In addition, in the case of Thomas, who is married and has a child, his family has 12 more months of entitlement to base housing and related services, including dependent medical, dental and vision coverage.
David Brahms, a retired general who once served as the legal adviser to the commandant of the Marine Corps, said the brass could have waived the no-pay regulation for the men whose cases remain undecided.
"It's a question of will," said Brahms, who now has a private practice in Carlsbad and is representing Lance Cpl. Robert Pennington. "Regulations can be waived in circumstances like this or they could have had their enlistments extended."
Pennington faces a trial date of March 19. Thomas' trial date is March 12 and Magincalda is scheduled to go to trial Feb. 1.
The other defendant whose case is unresolved, Sgt. Lawrence Hutchins III, is set to go to trial April 23.
Kelley said that in the case of Thomas, there have "been some discussions" regarding a possible plea agreement, but Low said he does not believe there will be more plea deals in the case.
The four men to reach plea agreements in the Awad killing are: Navy Petty Officer Melson Bacos, Lance Cpls. Tyler Jackson and Jerry Shumate Jr., and Pfc. John Jodka III. Each pleaded guilty to lesser offenses than the original charges of murder, kidnapping conspiracy, assault and other crimes in the kidnapping and killing that occurred in the Iraqi village of Hamdania and were sentenced to jail terms ranging from 12 to 21 months.
Hutchins, the squad leader of the men from Kilo Company for the 3rd Battalion, 5th Marine Regiment, and Pennington, Magincalda and Thomas each face murder, conspiracy, assault, kidnapping, housebreaking and related offenses and each remains in the brig at Camp Pendleton.