Two Marines refused to testify Friday against a former squad leader accused of killing Iraqi detainees, angering a prosecutor who said their refusal does grave harm to the government's case in the first civilian trial of a former service member accused of violating military rules of engagement.
The prosecutor asked the judge to jail the Marines for failing to testify, but the judge refused.
U.S. District Judge Stephen Larson, who is presiding over the trial in Riverside of former Sgt. Jose Nazario, said putting Sgt. Ryan Weemer and Sgt. Jermaine Nelson in jail would not convince them to testify. He had jailed both for refusing to testify to the grand jury earlier this year.
Weemer and Nelson face murder charges at Camp Pendleton in the same alleged killings with which Nazario is charged. The prosecution against Nazario is being watched closely because of its unique blend of the civilian and military worlds.
In the past, Weemer and Nelson have given detailed statements about the 2004 incident, which occurred in the first day of the Marines' bloody, 10-day assault on insurgent strongholds in Fallouja, west of Baghdad.
Separately, the two told of taking four Iraqis as prisoners in a barricaded house and said Nazario killed two of them and ordered them to kill one each. The Marines opted to kill the four rather than take time to process them according to the law-of-war rules during the fast-moving battle, the two alleged.
On Friday, Assistant U.S. Atty. Jerry Behnke asked Larson to immediately put Nelson and Weemer in jail for six months. Larson refused, but set a Sept. 29 hearing to determine what, if any, punishment the two Marines should receive for being in contempt of court.
Attorneys for Nelson and Weemer said their clients are concerned that their testimony could be used against them in their upcoming courts-martial. Larson said he has been assured by Marine superiors that the immunity given the two in federal court will be honored.
Still, the two Marines would not budge, to the exasperation of Behnke, who called the move "a fraud on this jury."
"I don't think what is happening now is right and fair to the government and the United States," Behnke said.
Larson said he shares Behnke's frustration but is convinced nothing will coerce the two combat veterans to testify. "My suspicion is, given what the men have been through, there is not a lot they're afraid of," Larson said.
