Pendleton Marine testifies for squad mate [Cpl. Marshall Magincalda court martial]

CAMP PENDLETON -- A corporal on trial for his role in kidnapping and killing an Iraqi man in April 2005 told his squad mates the plot was "a stupid idea," one of the man's squad mates testified Monday.

"Magic said, 'I'm not gonna shoot nobody,'" Cpl. Trent Thomas said of his squad mate, Cpl. Marshall Magincalda, who goes by the nickname of Magic.

Magincalda and his squad leader, Sgt. Lawrence Hutchins, are on trial in separate military courtrooms for their roles in the death of Hashim Ibrahim Awad in the rural Iraqi village of Hamdania on April 26, 2005 slaying.

According to testimony from troops in the squad, Awad was dragged from his home in the middle of the night by a squad of seven Marines and a Navy corpsman. The troops marched him a mile or so down the road, placed him in a dirt hole and shot him to death, troops have testified. The squad then staged the scene to make it appear Awad had been an insurgent planting a roadside bomb, Marines have testified.

The eight troops were charged with murder, conspiracy to commit murder and other offenses in Awad's death. Magincalda is one of three Marines to take his case before a military jury. The other five troops pleaded guilty to a role in the plot and testified against their squad mates in exchange for lighter sentences, ranging from one to eight years in military jail.

Thomas, who was convicted of conspiracy in the incident but acquitted of murder, was the first Marine charged in the slaying to testify on behalf of one of his squad mates.

As Thomas testified for about two hours Monday, Magincalda sat stonelike, with his hands folded on the desk in front of him. The thin Central California native appeared to stare at the floor or straight forward as Thomas testified in his defense.

"He's one of the most laid-back persons in the platoon," Thomas said of Magincalda. "He's like the chaplain."

According to Thomas, Hutchins presented the squad with the idea to kill an insurgent. The rest of the squad agreed to be in on it, and even helped shape the details.

"Magic was just going along with it," Thomas testified. "Marines out there, they don't go against the squad."

"You said he was in. Now you are saying he wasn't?" the lead prosecutor, Lt. Col. Sean Sullivan, asked.

As Sullivan questioned Thomas on cross examination, his tempo picked up pace and his voice rose. At one point, Thomas asked Sullivan to "stop yelling."

When Sullivan asked Thomas if he knew what they were planning was illegal, Thomas said "not really, sir."

"I didn't think there was anything unlawful about killing a terrorist, sir," Thomas said.

Sullivan pointed out that, a few months ago, Thomas told a judge in his own case that he knew what he had done was illegal at the time.

Two weeks ago, the military jury that convicted Thomas of lesser crimes opted to reduce him to a private and kick him out of the Marine Corps with a bad conduct discharge. Thomas, who has not yet been demoted and who remains in the Marine Corps for the time being, was released from the brig earlier this month.

Even though his trial is over, Thomas' attorneys allowed him to testify in Magincalda's defense only under a grant of immunity, which Gen. James Mattis signed on Monday. Thomas did not testify in Hutchins' trial.

During his cross examination by Sullivan, Thomas testified that four of the eight squad mates ---- including he and Magincalda ---- went to grab the original target of their plan, a suspected insurgent named Saleh Gowad. When they could not get to Gowad at his home, the four men headed to the house next door.

Thomas said he and Magincalda went inside and found Awad asleep. They bent over him and, with a finger to their lips to signal to Awad to be quiet, woke him up and made him go outside.

Thomas acknowledged that the men forced a "confused" Awad a mile or so back to the dirt hole, with Awad repeatedly asking, "Why, mister?" in English.

At one point, Awad began "swinging, pushing, trying to get away from us," Thomas testified. The men shoved Awad into the hole, where Magincalda and Thomas tied his feet, and another Marine shoved a gag into his mouth, Thomas said.

They ran back to meet their squad mates, and then most of the squad opened fire at Awad under a dark sky, Thomas said. Two members of the squad ---- Magincalda and a second man, Navy corpsman Melson Bacos ---- did not shoot at Awad, he said.

Instead, Bacos fired an AK-47 rifle in the opposite direction, so as to mimic the sounds of a firefight.

After Awad was dead, Magincalda sprinkled spent shell casings around the body, and someone left the AK-47 by Awad's hand, according to prior testimony.

A few times, when Sullivan asked pointed questions, Thomas said he did not remember details.

"I don't remember very much about it. I donít know anybody who can remember a year ago," Thomas said.

"Well, how many plans to kidnap and kill somebody have you been involved in?" Sullivan shot back.

Thomas paused, and then mumbled something about pleading the Fifth Amendment. Sullivan moved on with other questions.

The accused men were all members of Kilo Company's 1st squad, 2nd platoon from Camp Pendleton's 3rd Battalion, 5th Marine Regiment.

Thomas and Magincalda fought in fierce battles in Fallujah in 2004. They were on their third tour in Iraq at the time of the killing.

Terrorizing a known insurgent in the middle of the night. Like Thomas said, "I didn't think there was anything unlawful about killing a terrorist, sir," Thomas said.

They did this AFTER the terrorists they'd captured were released about a week later, if I have this story correct. The system was just gonna let 'em go, so the troops took it into their own hands.

Battlefield justice is not always the same as battlefield ethics.

The ethical act of the troops is this: rather than have this guy kill again (one of them?), they killed him first.

If they can prove their contention that he was an insurgent/terrorist, then they've proven to me that their act was ethical. Basis?: Self-Defense.

No, not at all. Here are the complete charges against Cpl Magincalda...

Charge I: Violation of the UCMJ, Article 81 (Conspiracy)
Specification: Conspired to commit Larceny, Housebreaking, False Official Statements, Kidnapping, Murder, Obstruction of Justice

Charge II: Violation of the UCMJ, Article 107 (False Official Statement)
Specification: False Official Statement

Charge III: Violation of the UCMJ, Article 118 (Murder)
Specification: Did with premeditation, murder Hashim Ibrahim Awad

Charge IV: Violation of the UCMJ, Article 121 (Larceny)
Specification: Stole a shovel and an AK-47 assault rifle

Charge V: Violation of the UCMJ, Article 128 (Assault)
Specification: Unlawfully force Hashim Ibrahim Awad to the ground and bind his hands and feet

Charge VI: Violation of the UCMJ, Article 130 (Housebreaking)
Specification: Unlawfully enter a dwelling, the property of Hashim Ibrahim Awad, with the intent to commit a criminal offense, to wit: kidnapping, therein

Charge VII: Violation of the UCMJ, Article 134 Specification 1: Did willfully and wrongfully seize and hold Hashim Ibrahim Awad against his will
Specification 2: Did wrongfully endeavor to impede an investigation

Ping to Race’s Posts #10 and #11!

(I must say Race is to Red like Hamdania is to Haditha.)

Race/Red Hamdania/Haditha Haditha/Hamdania Red/Race
Haditha Hamdania
Red Race
Race Red
Hamdania Haditha

Goodness knows what the end will be
Oh I don’t know where I’m at
It looks as if we two will never be one
Something must be done:

So if you like pyjamas and I like pyjahmas, I’ll wear pyjamas and give up
pyajahmas
For we know we need each other so we , Better call the whole off off
Let’s call the whole thing off.

(Louis Armstrong : )

Latest info from San Diego Union Tribune Sergeant, corporal tried in killing of Iraqi man

By Rick Rogers and Steve Liewer UNION-TRIBUNE STAFF WRITERS

August 1, 2007

CAMP PENDLETON – It is the wild card of the judicial system, a body that can vote to acquit or convict regardless of evidence. Today at Camp Pendleton, two juries will deliberate the guilt or innocence of two murder suspects – Marine Sgt. Lawrence Hutchins and Cpl. Marshall Magincalda. Their verdicts will help make these courts-martial either footnotes or major cautionary tales in Marine Corps history.

Hutchins and Magincalda played prominent roles when their squad kidnapped and killed Hashim Ibrahim Awad on April 26, 2006, in the rural town of Hamdaniya, Iraq.

Hutchins led the Kilo Company, 3rd Battalion, 5th Marine Regiment and suggested the death plot to his men. Magincalda, the No. 3-ranked member of the unit, helped drag Awad from his home to a roadside hole. There, other Marines shot Awad to death.

All eight Hamdaniya defendants have acknowledged that the abduction and execution took place.

But they said their actions were caused by a variety of compelling factors:

They were following their commanders' lawful orders.

They suffered from combat stress and post-traumatic stress disorder.

They faced pressure from their superiors to get tougher with insurgents.

They acted morally in getting rid of an insurgent so he wouldn't kill more U.S. troops.

On July 20, a jury of three Marine officers and six enlisted men largely sided with one defendant, Cpl. Trent Thomas.

The jurors in that case, all veterans of the Iraq war like Thomas, found him not guilty of murder and sentenced him to a demotion and bad-conduct discharge. Thomas had faced life imprisonment without parole.

Will the Hutchins and Magincalda juries sympathize with the defendants' arguments? Or will they focus on the prosecution's bottom line – that a squad deliberately kidnapped an Iraqi man and shot him to death?

These juries also are packed with Marines who have done combat duty in Iraq. Nearly all of them have received the Combat Action Ribbon, which signifies that they have come under hostile fire. Several have been awarded medals of valor.

Yesterday, Magincalda's lead attorney told jurors that his client resisted Hutchins' plot.

The lawyer, Joseph Low, said Magincalda refused to be a trigger-puller and performed only minor tasks such as spreading AK-47 shells around Awad's body to create the appearance of a firefight between an insurgent and U.S. troops.

“He didn't have the intent. He didn't want to do this,” Low said during his closing statement yesterday.

Magincalda lied about the killing afterward out of fellowship with his comrades, Low added.

“He absolutely refuses to bury a brother to help himself out,” Low said.

The lead prosecutor, Lt. Col. Sean Sullivan, portrayed Magincalda as a full participant in the Hamdaniya incident. He said Magincalda offered suggestions for improving Hutchins' plot, volunteered to be part of the kidnapping team and helped subdue and bind Awad before the execution.

“You're never going to see more evidence of a conspiracy to commit kidnapping and murder,” Sullivan said in his closing statement.

He noted that in previous court proceedings, many of the Hamdaniya defendants admitted to knowing that killing Awad was wrong.

“They knew what they were about to do was a criminal act,” Sullivan said. “What shred of evidence have we heard that justifies taking a man out of his house, dragging him to a hole and shooting him like a dog?”

During his closing statement in the Hutchins case, the prosecutor, Lt. Col. John Baker, implored jurors to convict Hutchins of all the charges against him so “he does not get away with murder.”

Defense attorney Rich Brannon countered that what happened at Hamdaniya was a failure of leadership by Hutchins' superiors.

“All this was a failure of command. When something goes wrong, they walk over and say, 'Here is the failure,' ” Brannon said while pointing to Hutchins.

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