August 30, 2006

Death penalty option dropped in U.S. Iraq killing

By Adam Tanner

CAMP PENDLETON, California (Reuters) - U.S. military
prosecutors said on Wednesday they would not seek the death
penalty for one of eight U.S. serviceman accused of murdering
an Iraqi civilian in April.

Prosecutor Lt. Col. John Baker spoke at a hearing seeking
to establish whether there was enough evidence to warrant a
trial against Pfc. John Jodka, 20, an infantryman who had been
in Iraq just three months when the killing occurred.

"It is our position that a capital referral in this case is
not appropriate," Baker said at Camp Pendleton north of San
Diego, California.

In that hearing and a simultaneous proceeding against Cpl.
Marshall Magincalda, defense lawyers expressed concern over
their clients' ability to get a fair trial amid wide publicity.

Jodka, Magincalda and six others have been charged with
murder and other crimes related to the killing in the central
Iraq town of Hamdania.

The death penalty remains an option for the seven other
suspects, a military spokesman said.

The eight men are accused of dragging disabled, 52-year-old
Hashim Ibrahim Awad from his home, shooting him and planting an
AK-47 assault rifle and a shovel next to his body to make it
appear he was an insurgent placing a roadside bomb.

A number of U.S. military personnel face allegations of
murder or abuse of Iraqi civilians. Other Camp Pendleton-based
Marines are under investigation for the November 19, 2005,
killing of 24 civilians in Haditha.


One of Jodka's attorneys, Jane Siegel, complained that his
right to a fair trial would be jeopardized by the disclosure of
details from written and videotaped statements by witnesses.

"When the cat is out of the bag, and the bell is rung,
there is no way to get evidence out of a juror's head," Siegel
said. "To openly discuss the contents of the statement will
completely pollute a local and national pool."

At his pretrial hearing, Magincalda, an infantryman who has
a Purple Heart, gave short responses to procedural questions
from the presiding officer. He looked around the military
courtroom nervously.

Magincalda's attorneys had sought to hold the hearing
behind closed doors. Prosecutors submitted 40 items, including
statements from three of the charged Marines, into evidence.
Details were not made public.

Prosecutors submitted similar evidence against Jodka.

"At the end of the day, all they have are unreliable,
uncorroborated statements and no physical evidence," defense
attorney Joseph Casas said in court. "We recommend that you
dismiss the charges."

He said there was no DNA connecting the accused with the
victim: "What the government said happened didn't happen."

The defendants in the Hamdania case have been charged with
premeditated murder, larceny, conspiracy, housebreaking,
assault, kidnapping and obstruction of justice. Five also were
charged with making false official statements.

(Additional reporting Marty Graham)