Military officials ruled yesterday that four Marines of eight Camp Pendleton-based service members charged with murder, kidnapping and conspiracy in connection with the death of an Iraqi civilian in Hamdaniya cannot skip a preliminary hearing and head straight to trial.
Lt. Gen James Mattis, ruled late yesterday that the four Marines could not waive their rights to an Article 32 hearing, the military version of a civilian grand jury hearing. Mattis recently assumed command of all Marines in Middle East and the Camp Pendleton based 1st Marine Expeditionary Force and is considered the convening authority in the cases against the eight accused service men.
In his ruling, Mattis wrote that he “must have the benefit of the thorough and impartial investigation into the charges that an Article 32 investigation will provide prior to making any decision on disposition of the charges,” according to a statement issued by Joseph Casas, an attorney for PFC John Jodka, one of the accused Marines.
In the statement, Casas blasted the ruling as contradictory to the efforts of government prosecutors to deny their client the means to a proper defense.
“But the General’s statement flies in the face of the grim reality in this case: PFC Jodka cannot possibly have a ‘thorough and impartial’ hearing without access to the evidence the government has persistently and unilaterally withheld from the defense … ”
“And the ruling puts PFC Jodka in an Orwellian situation. He must endure an Article 32 hearing that promises thoroughness and impartiality, but must go to the hearing without significant evidence in his defense. He’s being asked to charge the enemy guns without his rifle and flak jacket.”
Last week, attorneys representing Jodka, Lance Cpl. Jerry E. Shumate Jr., Cpls. Trent Thomas and Marshall Magincalda asked to skip Article 32 hearings, citing the denial of several requests to obtain information that may be critical to the defense of their clients.
An Article 32 hearing is an adversarial proceeding in which the prosecution presents its case against the accused and – unique to military justice – the defense is allowed to present its own evidence and cross-examine witnesses. An impartial investigating officer oversees the hearing and makes a recommendation to the convening authority, in this case Mattis, about whether some or all of the charges should be dismissed or referred to a full court martial proceeding.
All of the accused service men are members of Kilo Company of the Camp Pendleton based 3rd Battalion, 5th Marine Regiment.