Los Angeles News

Judge: Ex-Marine Not Guilty Of Killing 2 Iraqis

RIVERSIDE A former Marine was acquitted by a federal jury in Riverside Thursday of unlawfully killing two Iraqi prisoners during the 2004 battle for Fallujah, ending what was believed to be the first case of a U.S. serviceman being judged by a civilian jury for actions taken in combat.

Jose Luis Nazario, a 28-year-old former Marine sergeant and ex-Riverside police officer, was acquitted of voluntary manslaughter, assault with a dangerous weapon and discharging a firearm during a crime of violence in connection with the alleged deaths of two suspected insurgents in the early hours of "Operation Phantom Fury" on Nov. 9, 2004.

The nine-woman, three-man jury reached the verdict on the first full day of deliberations. The panel began deliberating Wednesday afternoon.

There was loud sobbing in the courtroom as the verdicts were read -- becoming so loud the judge had to bang his gavel to restore order.

"Justice without a doubt was served here today. It's been a long hard year for my family," Nazario said after the verdict was read. "I want to see the same kind of justice for every Marine, soldier and sailor who has served or is serving in harm's way today."

Nazario's mother, Sandra, said the jurors have "given us our lives back."

"I don't know how to ever repay them, except to say God bless them," she said. "We not only thank them but all military men thank them, because something like this could have happened to them in the future."

Nazario's case 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 active-duty offenses. Defense attorneys said they believed Nazario was the first person to be prosecuted under the act.

The defendant was fired from the Riverside Police Department on being indicted last August. He and his family have since relocated to his native New York.

Kevin Barry McDermott, a former Marine lawyer and one of five attorneys representing Nazario pro bono, told jurors during his closing argument that the absence of forensic evidence and victim identities left enough reasonable doubt for an acquittal.

"That's the shame of it," McDermott said Wednesday. "As jurors, you should ask why there's no blood evidence or trace matter from a bullet. Until the government answers that question, it hasn't fulfilled a promise to you that, beyond a reasonable doubt, a crime occurred."

Nazario was leading a squad attached to Kilo Company, 3rd Battalion, 1st Marine Regiment through the northern edge of Fallujah in a U.S.-led campaign to retake the city from insurgents when he and fellow Marines searched a house and discovered four men inside, according to testimony.

Assistant U.S. Attorney Jerry Behnke said in his closing argument that it was clear the men had surrendered.

Behnke recalled Tuesday's testimony from one of Nazario's former squad members, Cpl. Cory Carlisle, the first to encounter the men, who said the four suspected insurgents were "sitting up against a wall" between two rooms.

"When Carlisle saw the four individuals in the house, they didn't do anything threatening," Behnke said. "Even if those four men had been fighting the Marines moments before the Marines came into that house, they were no longer targets."

One of Nazario's squad mates, Cpl. Juan Segura, was shot dead by a sniper minutes before the sergeant and his crew stormed the house from where the fatal shots may have been fired, according to McDermott.

Carlisle testified that his fire team leader, then-Cpl. Ryan Weemer, Nazario and then-Cpl. Jermaine Allen Nelson took charge of the suspected insurgents while he continued to search the house.

The Marines recovered two AK-47 assault rifles hidden in two different rooms, according to Carlisle.

Another of Nazario's squad mates, then-Pvt. James Prentice, testified Tuesday that Nazario radioed for orders on what to do with the detainees.

Prentice said none of the other squad members were privy to the conversation, and that immediately afterward, Nazario turned and briefly conferred with Weemer, who led a detainee into the kitchen, where two shots rang out.

Carlisle testified that he saw Weemer standing over the prisoner, who appeared to have been shot in the head.

According to Carlisle, he and Prentice saw Nazario and Nelson in the living room of the house with the other three detainees, all facing Nazario, who was holding his M-16 rifle "at the ready."

Carlisle said he was about to leave the house when he heard a shot and went back to find Nazario standing over a detainee, who was "obviously dead."

Prosecutors allege Nazario and Nelson dispatched the remaining two detainees as the rest of the squad assembled outside.

No remains were ever recovered.

Assistant U.S. Attorney Charles Kovats told the jury that Nazario violated one of the basic principles under the "Law of War," an internationally recognized military doctrine that states detainees must not be harmed by their captors.

McDermott argued that the Marines in his client's squad "went through hell" during the fighting in Fallujah, and the intensity of their experience "impacted their memory."

"Think about what they've lived through. Think about what my client has lived through," McDermott told the jury.

The attorney said prosecutors had an obligation to supply forensic evidence proving their case, but all they showed were pictures of the interior of a house where the shootings might have occurred.

"We never want to second-guess what our troops are doing in battle. If we do that now, we can do that anytime in the future," McDermott said. "Your decision is of phenomenal significance to my client and those like him."

Behnke said Nazario killed -- and commanded his men to kill -- the four detainees because "it was inconvenient to deal with those men in that house."

Nelson and Weemer, now sergeants in the Marine Corps, are facing contempt charges for refusing to testify at Nazario's trial.

Both men are scheduled in the next year for military court martial on murder and dereliction of duty charges in connection with the alleged unlawful killings, which came to light when Weemer allegedly admitted his part in the house shootings during a Secret Service job interview in 2006.

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