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The War Profiteers - War Crimes,
Kidnappings, Torture and Big Money |
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June 3rd,
2007 - Same Issue, Disparate Rulings in Hamdania Cases |
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Same Issue, Disparate Rulings
in Hamdania Cases By Teri Figueroa North County Times June 3, 2007 8:42 PM PDT 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." External link: http://www.nctimes.com/articles/2007/06/04/military/16_26_746_3_07.txt |