A dubious case

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:

“Immediately after my son was removed from the war zone, literally moments after his rifle was removed from his hands, he was placed in a room for 7 to 7.5 hours — no food, no water, no sleep — and he was told that he was a murderer. They hammered away at him to give statements of what it was they wanted to hear.”

Meanwhile, the military has a new policy in place that recognizes the psychological stress placed on those who have served in a war zone. It is called Combat Operational Stress, or COS. At the end of each deployment there is a series of mandated checklist counseling sessions to help prepare the individual for re-entry back to normal life. The Marines in the Haditha case, for example, went through these sessions prior to interrogation.

Page 30 of the military’s Deployment Guide For Commanders states: “To ease the transition from the battlefield to home, our returning Marines, and their loved ones, require adequate preparation and supportive services to avoid additional stress and emotional overloads.”

By taking the Pendleton 8 Marines directly from frontline combat, separating them and interrogating them, the military has not followed its own policy. It has knowingly jeopardized the possible short- and long-term mental health of the accused.

Additionally, due to the nature of COS — and the intensity which comes with being on the front lines — the military knew, or at least should have known, that the results obtained through interrogating the Pendleton 8 without first going through the mandatory decompression stages would result in unreliable information.

Over the course of the next 10 days, Cpl. Magincalda and Pfc. Jodka are expected to know the preliminary results of their pretrial hearing.

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