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Former Marine's fate is in jurors' hands

Panel in Jose Nazario's trial hears a tape in which he appears to admit ordering the '04 killings in Fallouja.

August 28, 2008|Tony Perry | Times Staff Writer

A federal jury in Riverside on Wednesday began deliberating the fate of a former Marine sergeant accused in the killing of four Iraqi prisoners, a case that both sides argued in closing arguments could affect the United States' mission in Iraq.

Defense attorney Kevin McDermott told jurors that a guilty verdict could endanger U.S. soldiers and Marines by making them second-guess themselves rather than risk being prosecuted by civilians.

U.S. Atty. Jerry Behnke said a failure to convict former Sgt. Jose Luis Nazario could undercut U.S. efforts in Iraq by signaling that the U.S. condones executing unarmed, nonresistant prisoners.

Nazario did not testify during the trial. But jurors heard his voice Wednesday on a recording in which he appeared to admit that he had ordered the killing of four prisoners during the first hours of the battle in Fallouja on Nov. 9, 2004.

Nazario's case gained national attention because it is the first time that a former member of the service has been charged in federal court for an alleged combat crime. Nazario has pleaded not guilty to charges of manslaughter, assault and use of a firearm.

Only one member of the jury of three men and nine women has served in the military.

Nazario's supporters have insisted that civilians cannot comprehend combat. To overcome that objection, prosecutors called half a dozen Marines to explain Marine culture and training.

As their final piece of evidence, prosecutors played the recording of a phone call between Nazario and Sgt. Jermaine Nelson, one of two Marines in Nazario's squad facing charges at Camp Pendleton.

During the call, recorded at the request of the Naval Criminal Investigative Service, Nelson sought to get Nazario to incriminate himself.

On the tape, Nelson, using a derogatory word for the Iraqis, asked Nazario who gave the order to kill the prisoners. Nazario replied, "I did."

He then told Nelson they had no time to process the Iraqis as prisoners because "we were moving."

"What we did wasn't illegal. . . ," Nazario said. "You can't play Monday-morning quarterback."

The conversation took place Jan. 8, 2007, as military and civilian investigators were probing the deaths. By then, Nazario had left the Marines and was a probationary Riverside police officer.

After playing the tape, prosecutors rested their case. Defense attorneys rested without calling a single witness.

On Tuesday, a former Marine testified that he had overheard Nazario urging another Marine to help kill the Iraqi prisoners and later heard a gunshot and came upon Nazario holding his M-16 over a dead prisoner.

In instructions to the jury, U.S. District Judge Stephen Larson emphasized bans on killing prisoners, saying, "Warfare is regulated by law."

In closing, Behnke told jurors to put aside their views about the war and combat.

"This case is not about Iraq and whether you support or oppose the war," he said. Behnke also told jurors it wasn't their role to determine whether it was right for civilians to judge combat incidents.

McDermott, arguing that a guilty verdict would hurt Marines, said, "Do not make the job harder for young men."

Nelson and Sgt. Ryan Weemer, who refused to testify in Nazario's trial, face murder charges in military court.

In separate interviews before they retained counsel, they said that, upon orders from Nazario, they each killed a prisoner and that Nazario killed two.

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tony.perry@latimes.com

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