Former Marine accused in Iraqi prisoner deaths is acquitted

By Tony Perry, Los Angeles Times Staff Writer

Jose Nazario, charged in the 2004 killings of four detainees, was found not guilty by a Riverside jury. His case marked the first time civilians decided if an ex-serviceman committed a combat crime.

By Tony Perry, Los Angeles Times Staff Writer August 29, 2008

A civilian jury in Riverside today acquitted a former Marine sergeant in the killing of four unarmed Iraqi prisoners in the battle for Fallouja in 2004.

Jose Nazario, 28, was found not guilty of manslaughter, assault and use of a firearm in the shooting deaths in the landmark case, the first time in the modern era that civilian jurors have been asked to decide whether a former member of the military committed a crime during combat.

The federal jury of nine women and three men deliberated for less than six hours, starting Wednesday afternoon. This morning, jurors listened again to a tape recording of a phone conversation between Nazario, who was a squad leader, and one of his men. In it, Nazario seems to admit to ordering the killings.

The recording, which was made by Sgt. Jermaine Nelson at the behest of the Naval Criminal Investigative Service, was the last piece of evidence presented before prosecutors rested their case. Nazario's defense attorney called no witnesses.In addition to playing the tape recording, prosecutors during the five-day trial called half a dozen Marines to describe Marine culture and how Marines are taught from boot camp on that they must not harm prisoners and noncombatants.

Prosecutors also called three former Marines who were in the battle with Nazario. One of the former Marines said he saw Nazario standing over a dead Iraqi while holding an M-16. Another said Nazario tried to persuade him to help kill the prisoners, and a third testified that he saw four dead bodies in the house where the incident occurred, in the insurgent-held Jolan neighborhood.

None testified that they saw Nazario kill the Iraqis. Prosecutors did not get testimony from two Marines who they had expected to be star witnesses.

Nelson, who placed the phone call to Nazario, and another Marine, Sgt. Ryan Weemer, each refused to take the stand against their former squad leader. U.S. District Judge Stephen Larson declined a prosecutor's request to jail the men, saying he did not believe doing so would compel them to testify.

Earlier this year, Larson had jailed Nelson and Weemer for refusing to testify before a grand jury. Both men face murder charges at Camp Pendleton in the same deaths that Nazario has been charged with in federal court.

The two Marines previously gave detailed statements about the 2004 incident, which occurred on the first day of the Marines' bloody, 10-day assault on insurgent strongholds in Fallouja, west of Baghdad.

When investigators began looking into the shootings after the Marines' statements, Nazario was no longer in the Marines and was working as a probationary police officer in Riverside. If Nazario had been in the reserves when the crimes came to light, the Marine Corps could have recalled him to active duty to, like Weemer and Nelson, face charges at a court martial, where the jurors would be military personnel.

Nazario's trial marks the first time a former member of the military has been charged under the Military Extraterritorial Jurisdiction Act, passed by Congress in 2000, to address crimes allegedly committed in combat. Nazario was honorably discharged from the Marine Corps in 2005 after serving eight years. Only one of the nine jurors had military experience.

Defense attorney Kevin McDermott stressed to jurors in his closing argument that the prosecution offered no names or identifications for the four alleged victims. He asked the judge to dismiss the allegations on the basis that the government had failed to fulfill a legal obligation to prove that a "particular human being" had been killed.

Assistant U.S. Atty. Jerry Behnke said requiring a name or identification could prevent prosecutors from pursing other cases of alleged combat crimes. Larson said he would deal with McDermott's motion once the jury reached a verdict. Possibly the strongest evidence against Nazario was the tape recording made during the call between Nazario and Nelson on Jan. 8, 2007.

In the call, Nazario seems to admit that he ordered the killing of the four prisoners rather than taking the time to process them under the rules established by the Marine Corps. On the tape, Nelson, using a derogatory word for the Iraqis, asked Nazario who gave the order to kill the prisoners. Nazario replied: "I did."Nazario goes on to say their actions were not illegal.

"You can't play Monday-morning quarterback," he said.

In closing arguments, both sides stressed the importance of the decision for future U.S. soldiers and Marines in combat."When all is said and done, your decision is of phenomenal significance to my client and others like him," McDermott told jurors. He insisted that a guilty verdict could undercut the morale and effectiveness of U.S. troops in war zones. But Behnke said an acquittal would mean that "as a nation, we have failed."

"We are better than the people we are fighting," he said in his closing argument. "We follow the rules. We maintain the high moral ground."

Although he had risen to the position of squad leader in the Marine Corps, Nazario had never been in combat until the Fallouja assault began in the early hours of Nov. 9, 2004.