Media: Associated Press
Byline: LINDA DEUTSCH
Date: 31 August 2006


CAMP PENDLETON, California_The government will not seek the death penalty
for a Marine Corps private who is among eight troops charged with murder and
other crimes in the shooting of civilian Iraqi man, a military prosecutor
told a military hearing officer.

The prosecution's position was revealed Wednesday during a hearing for Pfc.
John J. Jodka III, 20, who is among those alleged to have actually fired on
Awad

"The recommendation of the prosecution team is that a capital referral not
be sought in this case. It is our position that a capital referral is
inappropriate," said prosecutor Lt. Col. John Baker.

Baker declined comment after the hearing, but a Camp Pendleton spokesman
said the prosecutor's statement applied only to Jodka, not the six other
Marines and one Navy corpsman also charged in the case.

The eight are accused in the fatal shooting of Hashim Ibrahim Awad, 52, in
the village of Hamdania.

Iraqi witnesses told the military that Marines and a sailor kidnapped Awad
on April 26, bound his feet, dragged him from his home and shot him in a
roadside hole. Prosecutors allege an AK-47 was planted on Awad's body to
make him appear to be an insurgent.

The so-called Article 32 hearing for Jodka and a separate hearing for
another Marine, Cpl. Marshall Magincalda, 23, were part of the process to
determine whether the defendants should face courts martial.

The investigating officer presiding at each hearing will decide if there is
probable cause to recommend a court martial and submit a report to a
commanding officer who will issue a final decision.

Jodka's investigating officer, Ret. Col. Paul Pugliese, adjourned the
inquiry after both sides agreed to have him consider only documentary and
videotape evidence and not to call witnesses.

Both sides sparred during the session over how much evidence could be
discussed in public, with the defense seeking to keep a lid on statements
made by the defendants.

Retired Col. Jane Siegel, one of Jodka's lawyers, said disclosing the 16
statements during a highly publicized hearing would hurt jury selection for
Jodka's expected court martial.

"To openly discuss contents will completely pollute the local and national
jury pool," Siegel said. "Some of it is very inflammatory."

Siegel noted that a media center had been set up on the base and that 36
journalists had asked to cover the proceedings.

Pugliese barred a closing argument by Baker, but allowed defense attorney
Joseph Casas to speak at length on his contentions that there was
insufficient to go forward with a court martial.

"Take the statements out of the picture and I submit to you the government
has nothing," Casas said.

He also said that there were problems concerning confrontation of the
accused by his accusers.

Casas said the government has been unable to reach a number of the Iraqi
witnesses and that without them there could be significant problems. He
cited the recent U.S. Supreme Court decision in Crawford v. Washington which
requires confrontation of the accusers in court.

Casas also said there was a lack of DNA evidence and that the autopsy report
on the victim was inadequate because the body was so decomposed "you can't
tell if he was tied."

"I don't know if it's possible for Private First Class Jodka to get a fair
trial," he said.

He accused the government of trying to "buy time" with the Article 32
hearing in hopes that a co-defendant will agree to testify against the
others.

"Based on the loyalty of this Marine, he's not willing to give false
evidence against co-defendants and neither are they," Casas said.

He added, "What the government says happened didn't happen."

The defense attorney urged that the case be tossed out for lack of physical
evidence to corroborate statements and because many of the statements would
not be admissible at trial.

"At the end of the day all we have are unreliable, uncorroborated statements
and no physical evidence," Casas said. "We recommend that you dismiss the
charges."

Baker listed 35 pieces of evidence the prosecution was submitting to the
investigating officer.

Among them were statements of Jodka and his co-defendants, sketches and maps
drawn by co-defendant Lance Cpl. Robert B. Pennington and photos on which he
had written something.

The prosecutor also submitted a letter written by co-defendant Lance Cpl.
Tyler A. Jackson to his family. Baker asked Pugliese to focus on it. He also
referred to a handwritten statement by co-defendant Sgt. Lawrence G.
Hutchins III, who was in charge of the men.

Jodka, in desert fatigues, watched the proceeding calmly. Asked at one point
if he wanted to make a statement, he said firmly, "No, sir."

The separate hearing for Magincalda lasted only 30 minutes.

Investigating officer Col. Robert S. Chester informed Magincalda of his
rights. Asked if he understood, the nervous Magincalda said, "Yes sir."

Chester turned down a defense request for a closed hearing, saying the
public has a "very compelling right to hear these proceedings and have them
open to the public."

The prosecution presented a thick packet of documentary evidence. Chester
said he would tell prosecutors by Friday if he had questions about the
evidence.

Prosecutor Capt. Nicholas L. Gannon urged Chester to focus particular
attention on statements by three members of the squad, including an alleged
confession by Hutchins.

Defense attorney Joseph Low said he would contest the evidence.

The defendants are members of the 3rd Battalion, 5th Marine Regiment. More
hearings are expected in coming weeks.

I knew he wasn't gonna get the death penalty.