A united defense, an unexpected announcement and explosive allegations. Those are the traits that characterized last week's pretrial hearing (known as Article 32) for two of the eight servicemen in the so-called Pendleton 8 case. The men are being held in the brig at Camp Pendleton after being charged with kidnapping and murder in the April 26 death of an Iraqi villager. The defendants, including two Marines, are also accused of trying to cover up the crimes to make it appear as though insurgents were the perpetrators.
At last week's pretrial hearing, the prosecutor, Lt. Col. John Baker, surprised everyone by announcing that the government would not seek the death penalty against Pfc. John Jodka Jr. "It's our position that a capital referral is inappropriate," he said. Pfc. Jodka was the main subject of my previous article on the Pendleton 8. Cpl. Marshall L. Magincalda, 23, continues to face the possibility of death.
It is believed the prosecution chose not to pursue the death penalty against Pfc. Jodka due to his age (at age 20 he is the youngest of the Pendleton 8), his experience, and the fact that in the words of his defense attorney Jane Siegal, "even by the government's theory of what took place, he was the least involved."
This particular hearing involved only Pfc. Jodka and Cpl. Magincalda, while hearings for the other six members of the Pendleton 8 will take place later in the year.
"Each accused is given the option of having an individual or joint hearing," Ms. Siegal explained to me. "[Cpl. Magincalda and Pfc. Jodka] had separate hearings because tactically that is what we each want. It is important that we keep pressing on the speedy trial clock and get [Pfc. Jodka]'s case in front of a judge." (Military pretrial hearings are not heard in front of a judge, but instead an investigating officer.)
It is Ms. Siegal's belief that the government is trying to buy time in hopes that it can pressure a co-defendant to testify against the others, and to also allow itself more time to work on strengthening evidence, which Ms. Siegal contends is inadequate. As an example she points out that investigators lack DNA evidence and have an autopsy report based upon a badly decomposed body.
Meanwhile, Ms. Siegal entered into evidence, among other items, a photograph of a rubber hose on a white board at NCIS Camp Pendleton with the words "my psychological friend" written underneath.
Not being widely reported is the fact that it appears the military has violated its own rules of procedure in the way it has handled the Pendleton 8. In an earlier column I described the psychological torture that John Jodka said his son has endured:
Rick Amato is a radio talk show host, Washington Times columnist, political commentator and a frequent guest on CNN. 'The Rick Amato Show' is heard on 1170 KCBQ in San Diego. Rick blogs at http://rickmato.townhall.com.
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