Military won't seek death penalty for Marine in Iraq killing case

Wednesday, August 30th 2006, 9:58 pm

By: News On 6

CAMP PENDLETON, Calif. (AP) -- The government will not seek the death penalty against a Marine Corps private who is among eight service members charged with murder and other crimes in the shooting of an Iraqi civilian, a military prosecutor said Wednesday.

Lt. Col. John Baker announced the prosecution's position during a hearing for Pfc. John J. Jodka III, 20. 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 hearing for Jodka and a separate one for another Marine, Cpl. Marshall Magincalda, 23, are part of the process to determine whether the defendants should face courts-martial.

The Marines and corpsman are charged in the 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 to death in a roadside hole.

Jodka is accused of firing on Awad. Magincalda is suspected of binding Awad's feet and kidnapping him.

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

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

Retired Col. Jane Siegel, 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," Siegel said. "Some of it is very inflammatory."

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

Investigating officer Col. Robert S. Chester, who is hearing the case, 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."

Chester said he would tell prosecutors by Friday whether he had questions about any of their evidence.

Prosecutor Capt. Nicholas L. Gannon urged Chester to focus on statements by three members of the squad, including an alleged confession by squad leader Sgt. Lawrence G. Hutchins III.

The hearings held under Article 32 of the Uniform Code of Military Justice are equivalent to civilian preliminary or grand jury hearings.

Both defendants have been held in the Camp Pendleton brig since returning from Iraq.

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.

The other defendants, all members of the Camp Pendleton-based 3rd Battalion, 5th Marine Regiment, are expected to have separate hearings in coming weeks. The charges include kidnapping, murder and conspiracy.