Defend Our Marines | Nathaniel R. Helms | Thursday, September 4, 2008 [pdf]

Riverside, California – A reporter quickly learns that nothing is ever as it seems.

That was never more apparent than at the recent US District Court trial of a former Marine acquitted of war crimes that allegedly occured in Fallujah, Iraq almost four years ago.

Former sergeant and infantry squad leader Jose L. Nazario was a Riverside Police Department probationary patrolman when he was arrested last year by federal agents and charged in US District Court with killing two enemy prisoners of war.

“Was” is the operative word because today he is a married, unemployed, 28-year old veteran with an infant son who lost his home and his life in a morality play where the good guys won but still lost.

The initial complaint was lodged by Naval Criminal Investigative Service Special Agent Mark O. Fox, a crafty, relentless interrogator who apparently thinks all things are fair in his kind of war.

Fox’s initial complaint alleged Nazario conspired on November 9, 2004 with unnamed superiors and subordinates to execute four insurgents. That would change later without explanation.

In early August 2007, Fox revealed the findings of his nine-month, worldwide investigation of the Fallujah incident by filing charges against Nazario in Riverside for two counts of manslaughter. Over the next eight months, two men from Nazario's squad, still subject to military law, were charged by the Marine Corps with murder and dereliction of duty in the same incident.

The case is based on the eyewitness statements of those Marines and two corroborating statements from former Marines who served in their squad. There is a dearth of physical or forensic evidence.

When the paucity of evidence was apparent the following summer, Fox and the Feds went back to the Grand Jury and obtained another indictment, charging Nazario with more crimes. It is here that the axiom about indicting a ham sandwich comes into play.

Nazario was charged with abetting murder, aggravated assault and unlawfully using his weapon, in addition to the original manslaughter complaint.

Perhaps it was an intentional effort by the government to trivialize war by comparing it to inner-city gun play. Whatever the motive, it didn't work for the jury.

Conspiracy theorists aside, the real reason Nazario's case came to roost in the broiling desert city was, by statute, that court's jurisdiction applied: Nazario had climbed aboard an airplane at nearby March Air Force Base that took him to Iraq, his lawyers said.

Wild and ugly accusations

The prosecution tried desperately to portray Nazario and his squad mates as amoral thugs instead of Marines at war.

The implication in Fox’s original complaint was worse.

It promised that NCIS was going to rid the Marine Corps of a nest of vipers threatening its integrity and honor.

They all belonged to 3^rd Platoon, Kilo Company, 3^rd Battalion, 1^st Marines, the now-infamous “Thundering Third.” It is the same platoon that produced the rogues who supposedly slaughtered helpless civilians at Haditha and the sniper who killed Syrians innocently digging a hole on the side of a road.

Fox painted such a damning picture of Nazario to Riverside police officers in August 2007 that they elected to lure him into the station under false pretenses and physically seize him while he was bending over to sign what he thought were evaluation papers.

The Riverside police officers who aided Fox said they thought they were apprehending a mad dog sergeant who had convinced two not-so-bright subordinates to kill helpless men. They were extremely chagrined to discover otherwise.

When the same officers found out the real facts, they asked city officials to modify Nazario’s status from fired to “unpaid leave of absence” until the case was adjudicated. The city officials refused.

Fox’s original complaint alleged Nazario was ordered by radio to execute the prisoners so Kilo Company could move out. Major Timothy Jent, the Kilo company commander at Fallujah, testified at the trial. He was never asked about the radio conversation and said he never knew of any prisoners being captured until much later in the fight.

When Nazario was indicted, however, Fox used the radioed instructions as the centerpiece of his case. The claim was that he was about to uncover another cover up. To that end, everyone in Kilo Company and 3^rd Platoon that Fox could find was eventually questioned, cajoled and threatened by his intrusions.

Federal slammer for Weemer and Nelson?

Judge Stephen G. Larson, the presiding US District Judge hearing the case, said the case was about duty and honor when he told accused accomplices Sergeants Ryan Weemer and Jermaine Nelson to step up to the plate and testify against their brother Marine.  

When that didn’t work Larson ordered them to testify or face the music.

"This court is once again calling on his honor and integrity," Larson said of Weemer.

They refused anyway and, on September 29, Larson will decide whether to throw them in a federal slammer for criminal contempt.

An unfailingly polite and patient judge in the courtroom, Larson has already reluctantly jailed Weemer and Nelson once before for refusing to testify to the Grand Jury that indicted Nazario. Nelson was jailed briefly by another federal judge as well.

Both Weemer and Nelson gave Fox incriminating statements but those statements can only be heard in court via personal testimony. Without it, the government didn’t have a case at all.

Larson gave both accused Marines unilateral testimonial immunity in his court, but their lawyers say it isn’t enough to protect them from Marine Corps wrath.

Larson observed that, after their experiences at Fallujah, neither man was afraid of a little prison time so jailing them again was pointless. Over prosecution objections, he allowed them to return to Camp Pendleton free on personal recognizance bonds.

Weemer and Nelson argued that refusing to testify was also about duty and honor--that and possibly spending the rest of their lives in jail.

“There is a charade being perpetrated on this court," Assistant US Attorney Jerry Behnke charged the dramatic Friday morning they refused to testify. It truly was an electrifying moment of supreme courtroom drama.  

Behnke demanded that both men be immediately confined for six months, the maximum punishment a misdemeanor conviction for criminal contempt allows.

“It is not fair and right to the United States or this government’s case,” he fumed.

Later, he told the jury Nazario’s prosecution was about holding the “high moral ground.” It was Behnke’s catch phrase when he was wrapping the government’s case in the American flag during his summation.

Major Schmitt: prosecution witness knows all about false accusations first-hand  

Behnke swiped the phrase from Major Daniel E. Schmitt. He never told the jury of Schmitt’s own travails over the complicated, and often confusing, Law of Armed Conflict he is currently tasked with teaching junior Marines.

In 2004, Schmitt was accused by a veteran NCO in his company of encouraging the deaths of 30 or more civilians during his unit’s march to Baghdad in ’03. Ultimately, Schmitt was exonerated after a US Congressman demanded and received an investigation that cleared him.

In the meantime, Schmitt defended himself in an open letter to the former Marine’s hometown newspaper in which he accused the man of incompetence. The accusations against Schmitt were fodder for the virulent anti-war crowd throughout 2006.

Schmitt instead told the jury he was “handpicked” by Gen. James N. Mattis to teach young Marines like Nazario, Weemer, and Nelson about taking and holding the “high moral ground.”

He told the jury they took the high ground by knowing who and when to shoot.

To illustrate his point he told the jury how his instructors obtained baby dolls to add authenticity to the scenarios the infantrymen of 3^rd Battalion, 1^st Marines would face every day in Iraq.

The example he chose had the students deciding whether or not to shoot women holding babies and bombs.

Behnke apparently interpreted the phrase to mean Marines should sell their lives for a tenuous position of morality instead of battlefield superiority. He told the jury it was every Marine’s duty to die rather than violate policy.

Perhaps it was hyperbole when he was telling the jury what Marines should die for, but more likely it was merely an uninformed civilian’s view of what Marines are taught from the moment they take the oath. At least that is what a couple of jurors said.

Prosecutor not a Defend Our Marines fan

The defense attorneys who secured Nazario’s freedom, and those who hope to do the same for Weemer and Nelson, have to stay pretty circumspect about what they say or reveal in public.

Low got a smack down from Larson during the trial after the prosecutors complained he was talking too much out of school. The prosecution took umbrage to a Defend Our Marines story, “Semper Rat”, that broke the news that Nelson had been coerced into entrapping Nazario.

Low was quoted in the article. It is a seamy tale.

In his defense, Low has a tough row to hoe with Jermaine Nelson because that Marine already talked too much. Twice Nelson confessed to Fox about everybody killing somebody before he got an attorney.

In Nazario’s trial, the jury thought that is what Marines were supposed to do, several of them said. They didn’t think much of the government trying to second guess them for doing it either.

In the two sessions of recollections that Fox recorded, Nelson does a dervishlike dance around the facts. That may ultimately be in his favor. After Nazario’s trial, several jurors said Nelson’s jive-spiked attempt to entrap Nazario over the telephone sounded like gibberish.

Nazario is still pissed about that one.

It wasn’t lost to at least one observer that, behind the prosecutors, sat two Marine Corps lawyers, taking it all in. Undoubtedly, they will show up again in the court cases to come.

“I had to arrest myself. That dude didn’t know nothin’.”

Fox tried to convince Nazario make an entrapment tape of his own after he was arrested. Nazario refused. He is from Spanish Harlem where snitching is really frowned on. He was already street tough before he joined the Marines, he said.

“I asked him what made him think I was going to do that,” Nazario said.

It still took Nazario three hours to get a lawyer after he was taken downtown to be booked.

“Three hours!” the former probationary patrolman snorted indignantly. “I couldn’t get away with that at Riverside.”

After the trial, Nazario was laughing about having to give Fox directions to the local jail so he could get himself booked.

“I had to arrest myself. That dude didn’t know nothin’,” Nazario chuckled.

Through it all, Nazario was always hanging tough. Every morning during the trial we ate doughnuts and drank coffee with his Mom while we discussed the case. He never whined--not once.

Weemer's team not Dreamlike

Weemer is also very tough, but he still has some serious problems. His attorney, Paul Hackett of Cincinnati, is too poor for much pro bono work and Weemer is too poor to hire more support. So Weemer isn’t surrounded with legal talent. .

For the moment, Weemer is represented by a federal public defender outside Camp Pendleton and an appointed Marine Corps captain inside.

The federal public defender is only there because Weemer faces federal criminal and civil contempt charges, but that representation is fleeting.

Luckily, the defender is Christopher B. Johnson, a man with has lots of experience in both legal systems. He is the real guy Kevin Pollack portrayed as Tom Cruise’s sidekick in “A Few Good Men.” 

Johnson was as eloquent as a movie star when Weemer refused to testify.

“Look at the Purple Heart on his chest," Johnson told Larson, “and think of what it must take this Marine to refuse a lawful command. To him, this is a nightmare."

Weemer’s terribly incriminating, and often outright squirrely, statement to Secret Service investigators was suppressed in Nazario’s trial, thanks to Nazario’s legal Dream Team, but the government probably won’t let that happen again in the general court martials.

Having his trial in civilian court did hold some advantages for Nazario, especially because he had trial attorneys who had feet planted firmly in both courts that knew how to work the system.

They kept out evidence that could have hurt him and introduced evidence that could help.

Kevin B. McDermott, and the Marine Dream Team he drove, had some serious stones as well. With one brilliant civilian exception on the team, they were all Marines who refused to believe the government had a case.

Instead of bickering with the prosecutor, they simply sat mute most of the time while Behnke tried to turn farmyard offal into shinola.

It was a tough act to watch from the peanut gallery.

Even so there were moments of levity during the trial.

Every day, I had lunch with other reporters who were there. Tony Perry from the Los Angeles Times, Gidget Fuentes from the Marine Corps Times, Mark Walker from the North County Times, Chelsea Carter from AP, and Sonja Bjelland from the Riverside Press Enterprise were there every day.

Collectively they represented most of the points of view the war and its warriors can engender. Reporters are jaded and irreverent in the best of times and their running commentary kept the situation in perspective.

Corny as it sounds to a jaded and cynical ear, their reporting and conversation reminded one observer that the free and unhindered exchange of ideas and beliefs is what our country is supposed to be about.

In the final analysis, justice was served, although not in the manner Behnke beseeched the jury to deliver it.

They acquitted Nazario by unanimously rejecting the government’s presumption that “the people” want the Justice Department to stick its nose in the general’s tents. The people didn’t want anything to do with it.

Better, the Naval Criminal Investigative Service was exposed for the despicable, underhanded tricks and acts of unmitigated coercion it applies against fighting Marines to win a conviction at any cost.

Most importantly, the question of who was served by the prosecution of Jose L Nazario, Jr. was finally and indisputably answered.

No one.

________________________________________________________

Nathaniel R. Helms
Defend Our Marines
4 September 2008

Nat Helms is a Contributing Editor to Defend Our Marines. He is a Vietnam veteran, former police officer, war correspondent, and, most recently, author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).