Military Home Legal Glossary Military FAQ's Military Links About Joseph Low Recent Cases Testimonials Contact Us

Military News Articles

Assault charge dropped for Hamdania defendant

By: TERI FIGUEROA - Staff Writer
Monday, June 4, 2007

CAMP PENDLETON ---- Military prosecutors on Friday dropped assault charge they had levied against a Camp Pendleton corporal who is also charged with the kidnapping and slaying of a retired Iraqi policeman, a Marine Corps spokesman said.

Maj. Jeff Nyhart said the assault charge against Cpl. Trent Thomas was dropped because the alleged victim refused to cooperate with military prosecutors.

The decision to dismiss the assault charge ---- which was part of an unrelated case arising from the slaying investigation ---- came one day after a military judge told prosecutors to drop the charge or grant Thomas' defense team a visit to Iraq to interview the alleged victim.

Prosecutors say Thomas is one of eight Camp Pendleton troops assigned to the 3rd Battalion, 5th Marine Regiment who dragged a 52-year-old Iraqi man out of his home and shot him, then tried to stage the scene by framing him as an insurgent planting a bomb.

Thomas has pleaded not guilty to charges of premeditated murder, kidnapping, conspiracy and related offenses in the death of the man, Hashim Ibrahim Awad, on April 26, 2006. Court-martial for the St. Louis native is set to begin on July 9.

The assault charge stemmed from unrelated allegations that Thomas and some of his squad mates beat a different Iraqi man in Hamdania more than two weeks before Awad's slaying.

Hamdania, Haditha cases bring tragedy of war to our doorsteps

By: Andrew Kleske
Monday, June 4, 2007

All too often in war time, it's easy to forget that these are not merely nameless, faceless statistics suffering and inflicting damage in far-off places few of us will ever visit.

View the Casualties Database.

This month the number of U.S. personnel killed in Iraq surpassed the number of those killed in the 9-11 attacks, and December was the deadliest month for U.S. troops so far. But most of us are insulated from the daily events and go about our business only vaguely aware they have occurred.

We grow accustomed to the daily death tolls and news of bombings and other atrocities overseas, such that they eventually fade from the front pages and broadcast news reports. Almost 4 years into the war, it takes a major event to turn our heads.

The complicated and tragic events that led up to the Hamdania and Haditha murder cases are just two of such countless events. But unlike so many, these cases have human faces ---- faces of young men just barely out of high school cast into impossible situations, faces of their struggling and confused family members, faces of those charged with defending or prosecuting the accused. The list of victims is long.

Should we just consider them all casualties of war and let the chips fall where they may? Should we forgive those who may have failed in the heat of battle? Should we allow the suffering to begat more suffering? In war time, can there be anything remotely resembling justice and, if not, should we compound the damage with hypocrisy?

Same issue, disparate rulings in Hamdania cases

By: TERI FIGUEROA - Staff Writer
Monday, June 4, 2007

CAMP PENDLETON -- Both Marines are corporals. Both are fire-team leaders. And both are accused of playing key roles in a plot to kidnap and kill an Iraqi, and both men are heading to court-martial this summer.

But while the jury for Cpl. Trent Thomas will hear that five of his co-defendants struck plea deals and got light jail sentences in exchange for their testimony, the jury for Cpl. Marshall Magincalda will not be allowed to hear that same information -- even though it appears that the prosecution cases rest heavily on the testimony of the convicted men.

The reason? Two military judges made the disparate rulings, and judges have discretion over what is admissible in trial.

"On a case-by-case basis, the judges can make that determination," Kathleen Duignan, executive director of the National Institute of Military Justice, said of what is deemed OK for a jury's ears.

"It's happened to me," said Duignan, a former military attorney. "It's not as unusual as you would think."

Prosecutors say that Thomas, Magincalda and six other Camp Pendleton troops assigned to the 3rd Battalion, 5th Marine Regiment dragged Hashim Ibrahim Awad out of his home in the rural village of Hamdania on April 26, 2006.

The squad of eight is accused of killing Awad and then staging the scene to frame Awad as an insurgent planting a bomb.

Thomas and Magincalda have pleaded not guilty to charges of premeditated murder, kidnapping, conspiracy and related offenses in the death of Awad. A third Marine, squad leader Sgt. Lawrence Hutchins, has not yet entered a formal plea.

The three Marines, all of whom face courts-martial this summer, are being tried separately. All three face life in prison if convicted of premeditated murder.

The five other squad members accused in the case reached plea agreements with prosecutors and were given jail terms ranging from one to eight years. One of the men, Navy Corpsman Melson Bacos, has already served his time and been released.

In exchange for the light sentences, the five men also agreed to testify against their squad mates.

With the courts-martial looming, defense attorneys for Thomas and Magincalda told the judge in their respective cases that the jury should hear about the shorter sentences. They contend that the government bought the men's testimony in exchange for sweet deals.

Thomas and Magincalda got different answers to the same request.

Three weeks ago, Lt. Col. David Jones found that it was "crucial and essential" to Thomas' defense for the jury to hear about the light sentence given to co-defendants.

But Lt. Col. Eugene Robinson this week rejected the same request from Magincalda, finding that the plea deal specifics were not relevant, and that it might confuse the jurors.

Military law allows a judge to keep relevant evidence from the jury if the judge deems that it would do more harm than good to the case.

Among the permissible reasons for keeping evidence out of a trial is the danger that it would confuse the issues, mislead the jury or unfairly affect the case.

Duignan said the argument that Magincalda's judge abused his discretion could come up in Magincalda's appeal, if the corporal is convicted.

"The judge has a lot of discretion," Duignan said. "The court looks to see if the judge abused it -- and it is very difficult to show. There would have to be some kind of egregious effect."

One of the areas the appeals court would look at, she said, is any disparate results in the outcome of Thomas' case versus Magincalda's case.

Still, even if there are vast differences in the outcomes, it may not be enough to convince the appeal court that either trial judge's decision was unfair.

"Sometimes courts are persuaded by that," Duignan said of disparate results, "and sometimes not."

-- Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.

Military Won't Seek Death for Marine

By Linda Deutsch
August 31, 2006
Associated Press

Camp Pendleton-A military prosecutor told a hearing Wednesday that the government would not seek the death penalty against a Marine Corps private who is among eight troops charged with the murder and other crimes in the shooting of civilian Iraqi man.

Lt. Col. John Baker announced the prosecution's position during a hearing for Pfc. John J. Jodka III, 20. It was not clear if the recommendation applied to the six other Marines and one Navy corpsman also charged in the case.

"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 in this case is not appropriate," Baker said.

The hearing for Jodka and a separate one held for another Marine, Cpl. Marshall Magincalda, 23, are part of the process to determine whether the defendants should face courts martial.

Earlier, lawyers for Jodka argued vehemently that "inflammatory" statements made by the private and other Marines should be kept secret before trial.

Retired Col. Jane Seigel, who represents Jodka, said disclosing the 16 statements about the incident 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," Seigel said. "Some of it is very inflammatory."

The Marines and corpsman are charged in the shooting of Hashim Ibrahim Awad, 52, in the rural 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 to death in a roadside hole.

Jodka is one the defendants accused of fired on Awad. Magincalda is suspected of binding Awad's feet and kidnapping him.

A separate proceeding on Wednesday for Magincalda lasted only 30 minutes.

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

Chester said the defense had asked for the hearing to be closed to the public, fearing publicity might hurt Magincalda's ability to receive a fair trial.

Chester opposed the request, 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 that Chester said he had not finished reading. He 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 squad leader Sgt. Lawrence F. Hutchins III.

Civilian defense attorney Joseph Low said he would contest the evidence.

At the hearing for Jodka, Siegel noted that a media center had been set up on the base and that 3,000 journalists had asked to cover the proceedings.

Ret. Col. Paul Pugliese, the investigating officer conducting the hearing, said he felt it was reasonable for the defense to ask that the statements not be read in open court. He said he would try to restrict disclosure as much as possible.

The prosecutor, Col. John Baker, said it might be necessary for mention some of the material during witness testimony. For instance, he said a military investigator will discuss how the statements were taken.

"In order to explain it, she'll have to refer to the statements," Baker said.

"It's not my intention to try to taint the jury pool," he added. "It's my intention to try to present the evidence to you."

Siegel and Joseph Casas, another attorney for Jodka, said the defense had been denied access to a translator to decipher Arabic documents and had to rely on government translations.

The government has listed 12 witnesses for the hearing, and the investigating officer confirmed there had also been requests to present Iraqi witnesses. The defense asked that the identities of the Iraqi witnesses be withheld.

Pugliese agreed to do his best to keep the names out of the public record, saying the Iraqis might be referred to by letter of the alphabet.

The hearings held under Article 32 of the Uniform Code of Military Justice are the functional equivalent of civilian preliminary or grand jury hearings, and will determine whether the men should be tried in a general court martial.

Both defendants have been held in the Camp Pendleton brig since returning from Iraq after the allegations were brought to the attention of Marine leadership during a regularly scheduled meeting with Iraqi citizens of Hamdania.

Prosecutors claim Magincalda also gathered shell casings and put them by the body while others in the group cleaned fingerprints off an AK-47 and planted it in Awad's hands, apparently to make him look like an insurgent.

The Marines have the opportunity to mount a defense, call witnesses or even testify themselves. Their lawyers were expected to challenge use of the defendants' pretrial statements by contending they were subjected to heavy-handed inquiries with threats of the death penalty.

Let All Criminal Defendants Pick Their Lawyers

Daily Journal - Aug 21, 2006
Forum Column
By Erwin Chemerinsky

The Sixth Amendment right to counsel means that a criminal defendant who can afford to pay for an attorney generally has the right to the lawyer of his or her choice. That is the holding of a Supreme Court decision from the end of June that has important practical implications for criminal cases across the country. In U.S. v. Gonzales-Lopez, 2006 DJDAR 8085 (June 26), the court held, 5-4, that wrongly denying a person the attorney of his or her choice is an automatically reversible error without any need for the criminal defendant to show that he or she was prejudiced by the court's mistake.

Cuauhtemoc Gonzales-Lopez was tried in the U.S. District Court for the Eastern District of Missouri for conspiracy to distribute more than 100 kilograms of marijuana. His family hired a lawyer, John Fahle, to represent him. But Gonzales-Lopez contacted a California attorney, Joseph Low, to provide representation. Low flew to Missouri to meet with Gonzales-Lopez and was hired to be Gonzales-Lopez's lawyer.

The District Court, however, refused to grant Low's motion for pro hac vice status. In fact, Low three times moved for pro hac vice status and each time was denied without opinion by the District Court. Later, the District Court explained that it refused these requests because it believed that Low had violated ethical rules by contacting Gonzales-Lopez and speaking with him directly even though Gonzales-Lopez was represented by other counsel.

Fahle withdrew from representing Gonzales-Lopez, but still the court would not allow Low to participate in the trial. Indeed, the new attorney, Karl Dickhaus, moved to allow Low to sit at counsel table, but the District Court refused. The court ordered Low to sit in the audience at the trial and to have no contact with Dickhaus. The court even had a U.S. marshal sit between Dickhaus and Low to make sure that no communications occurred between them during the trial proceedings.

Gonzales-Lopez was convicted and appealed on the ground that his Sixth Amendment right to counsel had been violated. The 8th U.S. Circuit Court of Appeals concluded that the District Court erred in denying Low pro hac vice status. It decided that Low had not violated any ethical rule and that denying Gonzales-Lopez the attorney of his choice required reversal of the conviction.

The issue before the Supreme Court was an important one: How should such wrongful denial of counsel be analyzed? Must the defendant, as the government argued, prove that he or she was prejudiced? Or is an error in denying representation per se a reversible error?

The Supreme Court, in its 5-4 decision, affirmed the 8th Circuit and held that wrongful denial of representation by the attorney of one's choice violates the Sixth Amendment and that it is a structural error that is not subject to harmless-error analysis. In a division among the justices rarely seen, Justice Antonin Scalia wrote the opinion for the majority and was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Scalia's majority opinion began by observing that the Sixth Amendment means that a defendant who does not require appointed counsel has the right to choose who will represent him or her. In other words, those with resources to hire an attorney, generally have a right to the lawyer of their choice.

Scalia expressly rejected the government's contention that the defendant must show that he or she was denied a fair trial and was prejudiced by not having the attorney of choice. Scalia emphatically declared, "In sum, the right at stake here is the right to counsel of one's choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation 'complete.'"

The court then went on to conclude that the denial of the attorney of choice was a "structural error" and not subject to harmless-error analysis. The Supreme Court generally has been reluctant to find constitutional violations to be structural errors and has emphasized that usually harmless-error analysis is to be applied. See, e.g., Washington v. Recuenco, 2006 DJDAR 8078 (June 26) (failure to submit a sentencing factor to the jury, in violation of Blakely v. Washington, 542 U.S. 296 (2004), is subject to harmless-error analysis).

But in Gonzales-Lopez, Scalia concluded that wrongful denial of the counsel of the defendant's choice inherently violates the Sixth Amendment. The court stated, "We have little trouble concluding that erroneous deprivation of the right of counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error." The court explained that it would be an impossible burden to force a defendant to show that the outcome would have been different if only another lawyer had handled it. Scalia explained that "[h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe."

At the end of the majority opinion, the court reaffirmed the power of trial courts to set criteria for admission of attorneys to appear before them. In other words, courts can have rules limiting pro hac vice representation, and there is not a violation of the Sixth Amendment so long as the rules are applied properly. Also, the court emphasized that its holding did not apply in the context of appointed counsel, where courts retain discretion as to who will represent a defendant. The court noted that "[t]his is not a case about a court's power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant's first choice of counsel."

Nonetheless, the case has important implications. Although courts still may enforce rules concerning pro hac vice representation, Gonzales-Lopez means that a wrongful denial of pro hac vice status is an automatically reversible error requiring a new trial. This likely will cause trial courts, both federal and state, to be much more likely to grant pro hac vice status rather than risk reversal after a conviction.

Moreover, the court's repeated insistence that the Sixth Amendment creates a right to representation by the attorney of one's choice is not as easily cabined as the majority suggests. Why should this be a right only for those rich enough to afford an attorney? Why shouldn't those without such resources, who are represented by appointed counsel, also have this right? It is deeply disturbing that the court expressly articulated a right that applies only for those with money and that does not apply to those too poor to afford a lawyer. The majority's reasoning may open the door for those represented by appointed counsel to claim some right with regard to the choice of who will be providing representation.

Also, what of the defendant who is denied the attorney of choice because a trial court is inflexible in scheduling and refuses to grant an extension until the desired lawyer can participate? The court's emphasis on the right to the attorney of one's choice should cause trial courts to be more hesitant to proceed without that lawyer's participation.

Justice Samuel Alito, writing for the four dissenting justices, lamented that the majority's holding means that "a defendant who is erroneously required to go to trial with a second-choice attorney is automatically entitled to a new trial even if this attorney performed brilliantly." This is exactly what Scalia's opinion means. The court's holding is an important victory for criminal defendants in finding that it is structural error to wrongly deny representation by the attorney of the defendant's choice. A defendant facing imprisonment or even death deserves no less. But this is a right that should be accorded to all criminal defendants, rich and poor alike.

Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University.

Cases Draw Cavalcade of Military Justice Stars

Courts-Martial Bar Is Being Stretched Thin By Incidents Involving Pendleton Marines

Daily Journal - Jun 26, 2006
By Don J. DeBenedictis, Daily Journal Staff Writer

SANTA ANA - Even before the military announced murder charges Wednesday, the seven Marines and one Navy corpsman suspected of killing an Iraqi man near Hamandiya in April had hired private defense attorneys to work with their appointed military lawyers.