The U.S. attorney for Central California is sending the case of a former Marine charged with voluntary manslaughter in Fallujah, Iraq, back to a federal grand jury, seeking to indict him for murder.
Kevin B. McDermott represents the decorated Marine, 28-year old former Sgt. Jose Luis Nazario. He says that if the government is successful in obtaining a murder indictment against his client for allegedly killing two unknown Iraqi insurgents, it will be the first time in American history that a defendant has been charged with murder when the victims were unknown.
“The Marine Corps gave him his gun,” McDermott declared. “Now the federal government wants to charge him with a crime for using it. This has never happened before. It is preposterous!”
Nazario is also the first Marine charged in civilian court for crimes reportedly committed while acting under a superior’s orders during combat operations.
The former squad leader in Kilo Company, 3rd Battalion, 1st Marines is accused of killing the two insurgent prisoners on Nov. 9, 2004, after allegedly being ordered to do so over the radio by a superior. The government is still investigating to determine who that superior is, McDermott said Monday.
The only reported eyewitness to the events is Sgt. Jermaine Nelson, 26, a co-defendant who twice confessed without legal counsel to killing another prisoner in the same incident. In two rambling statements made in the spring of 2006, Nelson told a Naval Criminal Investigative Service (NCIS) special agent that he reluctantly volunteered to help Nazario and another Marine dispatch a total of four insurgents.
The four enemy combatants who died were captured along with their weapons and ammunition moments after another member of Nazario’s squad had been killed by small arms fire emanating from the house they were captured in, Nelson claims.
Nelson has now retained Long Beach, Calif., civilian attorney Joseph Low, a former Marine, to represent him.
Low explained the underlying motive for Nelson’s reported behavior at Fallujah: “Before they went into that house — into that city — everyone knew that anyone they found inside the city was a terrorist. They had dropped leaflets saying it. They had been told to kill every terrorist they encountered. They did exactly what they are trained to do,” he said in a telephone interview Monday from his office in Long Beach.
Low said the government is now trying to turn his client into “a rat” who will turn against the other Marines in his squad in return for leniency.
“It isn’t going to happen,” Low said.
On March 30, 2008, during Nelson’s six-hour Article 32 evidentiary hearing at Camp Pendleton in California, the government played Nelson’s chilling confessions as evidence of the crimes. It doesn‘t have any other evidence to offer, both McDermott and Low said.
Nazario and several other members of his squad claim the killings never happened.
There are no names, no unidentified victims, no bodies, no crimes scene, and no physical evidence to show who, when, where, or how the alleged murders were committed.
But on Aug. 7, 2007, federal prosecutors filed the case against Nazario in U.S. District Court in Riverside, Calif. Two weeks later he was indicted by a federal grand jury and released on a $50,000 property bond pending his scheduled July 8 trial date.
Nazario left the military with an honorable discharge after eight years of service. The New York City native then moved to Riverside with his wife and young son to become a police officer.
The NCIS brought the charges to the U.S. attorney for Central California last summer, claiming Nazario is beyond the jurisdiction of military law.
Nazario is charged under the Military Extraterritorial Jurisdiction Act, a law passed by Congress in 2000 to give government prosecutors a mechanism for charging civilians and former service members for alleged criminal acts they committed while serving overseas.
The criminal complaint currently filed in the District Court acknowledges that Nazario acted “in the heat of passion caused by adequate provocation.”
Nazario currently lives in upstate New York. His house in Riverside is collateral for the $50,000 property bond he posted. McDermott said that if he is indicted on the more serious crime of murder, his bond could be revoked and Nazario imprisoned.
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