Hamdania defense attorney raises concerns about military justice - Pendleton 8

North County Times ^ | 10/17/06 | William Finn Bennett

[NormsRevenge]

SAN DIEGO -- An attorney representing one of eight men accused of kidnapping and murdering an unarmed civilian in the Iraqi village of Hamdania last spring raised a series of concerns Monday night about the fairness of the military justice system, during a forum hosted by the University of San Diego School of Law.

Participating in the panel discussion were former military prosecutor Kevin Vienna, former military judge Robert Wities and defense attorney Joseph Casas, who is representing Encinitas resident and Marine Pfc. John Jodka III, one of seven Marines and one Navy corpsman charged in the April 26 death of retired Iraqi policeman Hashim Ibrahim Awad.

The men allegedly took Awad from his home, bound and gagged him and shot him numerous times, before staging a crime scene to make it look as if he were an insurgent planting a roadside bomb.

The Marine Corps is in the process of conducting Article 32 hearings, which serve as the military equivalent to a combined grand jury hearing and a preliminary hearing in the civilian justice system.

The men have been charged with murder, kidnapping, conspiracy, larceny, housebreaking and making false statements in connection with Awad's death. Ten days ago, Navy Corpsman and Petty Officer 3rd Class Melson J. Bacos pleaded guilty to reduced charges in exchange for his testimony in the case.

Jodka attorney Casas said Monday that he's worried that so much of Bacos' testimony was made public, posing the risk of tainting public opinion and potential jurors in the case. Casas added that there is always a conflict between a free press and the defendant's right to a fair trial.

"It concerns me that so much was revealed," Casas said.

In the lead up to the military hearings, a high-ranking military official, known as a convening authority, decides how much access the defense may have to evidence.

During Monday night's discussion, Casas objected to a system that doesn't give the defense unfettered access to any evidence that may benefit the accused early on in the process, before a judge is appointed.

He said that just such a scenario arose in recent weeks with his client.

"We were asking for evidence and being unilaterally denied by the convening authority," Casas said.

He added that he would like to see the military start using a system, "where there would be a judge to decide on the fairness of the admissibility of evidence."

Vienna said that after a 25-year military career, which included years spent as a military prosecutor, he became a prosecutor in the civilian justice system and now works for the state attorney general's office on appeals cases. As a result of those varied roles, Vienna said he has a balanced perspective and is able to compare the two systems of justice.

He said the military and civilian justice systems are similar in many ways. In the civilian system, 99 percent of cases begin with a preliminary hearing, he said, and in those hearings, the judge also determines what evidence can or can't admitted.

"Similar to the military (system), there is little time to prepare and a lack of access to evidence," he said.

Defense attorney Casas also raised concerns over the fact that those who are under arrest and awaiting court proceedings in the military justice system are not entitled to post bail and remain free pending the outcome of judicial proceedings.

"Because there is no bail in the military system, it begs the questions 'should there be and if not, why not?' " Casas said.

Vienna said that the right to bail "is often illusory," since serious charges often carry such large bail fees ---- typically between $1 million and $3 million for murder cases, he said ---- that most people can't even afford the 10 percent fee that bail bondsmen usually charge to post bond for a defendant.

Casas raised other questions about the very high conviction rates in military justice and the political influence and undue command influence that can be brought to bear on military juries and court officials.

To all of those concerns, Vienna said that they are not unique to military justice. He said that in cases that go to trial in the civilian system, conviction rates are also very high. That's as it should be, he said.

"We don't want a lot of innocent people being brought to trial," he said. "We want a piercing, discerning look at the evidence, before public money is spent."

And like the military justice system, judges and court officials in the civilian system can also be the victims of political pressure, Vienna said.

"Is the system perfect -- that is for you to decide," Vienna said. "Do I think the system is fair -- yes."

[olezip]

IMO our marines are heroes and should be given medals for what they do; our volunteers represent our best and brightest! At the least our military should have a bias toward blanket amnesty when our soldiers are operating in a war zone. Instead we too quickly are willing to accept the word of the enemy to undermine our own. The enemy loves to do us in with our own laws and practices. Thanks to deep prejudice by the likes of Murtha, our marines are suffering humilation and worse in what appears to be a politically motivated prosecution by our own armed forces. Better they were incarcerated at Guantanomo; the enemy has more rights and privileges!