Los Angeles News

Ex-Marine 1st To Have Civilian Jury For War Crime

RIVERSIDE A former Marine accused of killing two Iraqi prisoners during the 2004 battle for Fallujah violated the laws of war and failed to hold "the moral high ground," a federal prosecutor told jurors Thursday during opening statements in the man's civilian trial.

But an attorney for former Marine sergeant and ex-Riverside police Officer Jose Luis Nazario argued his client was protecting himself and fellow Marines during house-to-house searches in a war-ravaged city, and emphasized a lack of physical evidence to support the government's case.

The trial is believed to be the first in which a former U.S. serviceman is being judged by a civilian jury for actions taken in combat, according to Kevin Barry McDermott, one of four attorneys representing Nazario pro bono.

"If I was to tell you this case has historical importance, I'd probably be understating the circumstances," McDermott told jurors in his opening statement.

"The government is asking you to dictate to every young man in battle that, `You better be right, better be certain, or we will second-guess you years after the fact."'

Nazario, 28, is accused of killing two suspected insurgents, and his fellow Marines of killing two others, after taking them prisoner during the November 2004 battle for Fallujah, one of the bloodiest engagements in the six-year-old Iraqi war.

He is charged with voluntary manslaughter, assault with a dangerous weapon and discharging a firearm during a crime of violence in connection with the alleged execution-style shootings of the prisoners.

"In the fighting in Fallujah, the Marines were to hold the moral high ground -- do the right thing," Assistant U.S. Attorney Charles Kovats said in his opening statement. "The defendant did not show the courage or commitment that the Marines required. I'm asking you to do the hard thing and find the defendant guilty of what he did on Nov. 9, 2004."

Kovats said that in the first hours of the Fallujah campaign, known as Operation Phantom Fury, one of Nazario's fellow platoon members, Lance Cpl. Juan Segura, was shot dead by enemy fire.

A short time later, Nazario and 10 other Marines attached to K Company, 3rd Battalion, 1st Marine Regiment were clearing a house when they discovered four men inside, said Kovats.

"They were sitting on the floor, unarmed, submissive and docile," the prosecutor said.

He said Nazario shot two prisoners, then turned to his fellow Marines and asked, "`Who else wants to do these guys, 'cause I don't want to do it all myself."'

Kovats said then-Cpl. Ryan Weemer shot one prisoner in the chest, and another squad member, Sgt. Jermaine A. Nelson, 26, shot the fourth.

The prosecutor said two of the government's key witnesses -- Lance Cpl. Cory Carlisle and Cpl. James Prentice -- were present during the shootings and will describe what they heard and saw.

According to Kovats, Nazario violated one of the basic tenants behind the "Law of War," which states that detainees must be safeguarded.

"Every Marine is taught to do the right thing, at Boot Camp, infantry school, again and again, before deployment," the prosecutor said.

McDermott described Nazario and his squad's push into Fallujah, with thousands of other Marines, as an intense campaign in which the Marines "were called in to make an example of the insurgents."

As women and children evacuated the Iraqi city ahead of the Marines' advance, "Jihadis snuck in the back door," McDermott said.

"The overwhelming majority of people left in Fallujah were spoiling for a fight" by the time the Marines arrived, the attorney said.

He said it was Nazario's first time in combat, though the young sergeant was accompanied by men on their second combat tours in Iraq.

"They searched hundreds of houses," McDermott said. "They lived by the creed, `We keep each other alive. If we believe there is hostile intent, we pull the trigger to keep ourselves and our fellow Marines alive."'

McDermott said despite investigators' efforts to track down physical evidence connected with the alleged prisoner shootings, nothing has been recovered.

"The government is asking you to convict Jose of using a gun in the course of a felony when there is no evidence of a crime being committed -- no DNA, no fingerprints, no identities," McDermott said.

The allegations against Nazario first surfaced when Weemer, 25, was undergoing a background screening for a Secret Service job in 2006. A polygraph examiner asked him whether he had been involved in unjustified killing, in combat or elsewhere, and the Marine replied, "That actually did happen, to be honest," according to prosecutors.

A U.S. Naval Criminal Investigative Service inquiry of his claims was initiated and involved interviews with all of Nazario's squad mates.

According to the NCIS inquiry, in addition to the four alleged insurgents found inside the house, the Marines located AK-47 rifles and ammunition.

Investigators said Nazario's squad mates indicated he radioed for instructions on what to do with the prisoners and was apparently asked, "Are they dead yet?"

Weemer and Nelson face murder and multiple dereliction of duty charges in connection with the alleged shootings. The men are expected to be court-martialed, separately, at Camp Pendleton in the next six to 12 months.

The case against Nazario fell under the Justice Department's purview because of a provision in the federal Military Extra Territorial Jurisdiction Act, passed in 2000, that authorizes the U.S. Attorney General to prosecute former Armed Forces members for offenses committed while on active duty.

After a decade of service, Nazario was honorably discharged from the Marine Corps in 2005 and no longer on reserve status when he was indicted. He had been on the Riverside police force for a year and was arrested as he was finishing a night on patrol last August.

He was immediately fired from the police department but could be reinstated depending on the outcome of the trial, his lawyers say.

If Nazario is convicted of all charges, he could face a maximum of 30 years in prison. He is free on a $50,000 property bond, and lives in his native New York with his wife, Diette, and their 2-year-old son.

(© 2008 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. Wire services contributed to this report.)