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Fallujah killing case sent to the jury

RIVERSIDE, Calif. — A jury of 12 began to deliberate Wednesday afternoon in the case of a former Marine infantry squad leader accused of killing unarmed Iraqis during a key 2004 battle.

Former Sgt. Jose L. Nazario Jr., is facing federal charges of voluntary manslaughter, assault with a deadly weapon and use of a firearm in committing a violent crime.

The jurors — three men, nine women — received the case against Nazario, 28, after government prosecutors rested Wednesday morning, the trial’s fifth day. The verdict must be unanimous.

The defense presented no testimony, and lead defense attorney Kevin McDermott reminded jurors that the government has the burden of proving Nazario’s guilt.

At issue is whether Nazario, then a squad leader, murdered the men he and his Marines encountered inside a Fallujah house Nov. 9, 2004. Members of the Camp Pendleton-based 3rd Battalion, 1st Marines, moved through the northern part of the city that morning, clearing houses, fighting armed insurgents and capturing 30 detainees during the first day of what became a 10-day bloody fight for control of the city.

At the heart of the government’s case is what happened inside one house where two former Marines testified they found four “military-age males” whose identities have never been established.

Another former Marine testified he saw four men in the house apparently shot dead shortly before the platoon regrouped and moved on.

Federal prosecutors believe Nazario killed three of them and that another Marine, Sgt. Ryan Weemer, shot the fourth at Nazario’s behest and without provocation.

“The big task for you to decide is whether the killing was unlawful,” lead prosecutor Jerry Behnke told the jury in his closing argument. Killing a detained person under the military’s control, Behnke said, “is an unlawful killing, even in war.”

He added later, “This was not an act of self defense. This was an execution.”

Defense attorneys decried the paucity of government evidence.

During his closing argument, McDermott reminded the jury of the case’s historic significance.

“This is the first time that this decision to take a life has been left to the decision of 12 people,” he said, which prompted an objection from prosecutors.

“At the very least, we never want anyone ever to second-guess whatever they are doing at any point in battle,” he added, which prompted another objection.

McDermott was referring to the Military Extraterritorial Jurisdiction Act of 2000. Prosecutors with the U.S. Attorney’s Office in Riverside cited the law, which allows the government to charge former troops with war crimes after they have left the service, when they filed their case against Nazario last year.

The case was prompted by comments made by Weemer — who’s facing military murder charges along with former Sgt. Jermaine Nelson — during a job interview with the Secret Service. The allegations were investigated by the Naval Criminal Investigative Service.

Both sides in the case acknowledged military forces encountered a tough situation in Fallujah that tested rules, morals and ethics.

“You cannot describe Fallujah as anything but. It was horrible. It was in fact brutal,” McDermott said.

“Don’t let the government turn [this] into a shooting on some street corner, in some home, in our country,” he added.

But Behnke said Nazario’s decisions couldn’t justify the killings.

“Even if those men had been fighting Marines earlier that day ... when they surrendered and gave up the fight, they were no longer good targets,” he said.

“What went on inside that house was not part of the mission. What happened was a violation of the law.”