Not only is the defense strategy beginning to unravel in the Hamdania case. But this strategy–minimizing the gravity of the allegations and casting aspersions on the Marine Corps judicial process–threatens to undermine America’s ability to win in Iraq. Counterinsurgency victory ultimately depends ultimately upon winning over the Iraqi people. Investigating and punishing war crimes is an essential part of that process.
Today, Article 32 hearings have begun in the Hamdania case. In this matter, Eight Marines (sometimes called the “Pendleton 8″) are accused of killing Hashim Awad. Awad was an old and crippled Iraqi man, allegedly killed in cold blood for his refusal to cooperate with American forces as an informer. This killing followed an incident weeks earlier where Marines from the same unit are accused of assaulting various Iraqi noncombatants. The town is in the heart of the Sunni Triangle and is also a hotbed of insurgent activity. At some point after the killing, Awad’s family received a compensation payment from American authorities. Reports are uniform on these basic facts, which themselves were reported in press accounts that cited official Marine Corps press releases and statements by various Marines familiar with the case, as well as statements made by the Iraqi accusers.
The Defense’s Twists and Turns
The official defense line has shifted several times.The defense has alleged that Awad was an insurgent killed while planting an IED. This account, however, faces several obstacles, in particular statements the accused made to NCIS investigators. . .
. . . The defense first charged that statements made to investigators were coerced and inadmissible. Then we were told that the defense wanted a swift Article 32 hearing to set the record straight and put the prosecution to the test, only to attempt to waive the Article 32 hearings when the prosecution called their bluff. Then the defense teams for the different defendants parted ways, some seeking unsuccessfully to waive the Article 32 hearings, while others have asked for continuances to get some evidence together. (One wonders if this is a harbinger of one of the defendants flipping on the others).
Yet the various defendants’ supporters’ overall theme–that these Marines are innocent–is contradicted by their actions, the actions of their lawyers, and common sense. My initially more guarded views on this case have begun to turn towards the conclusion that there is a strong likelihood of guilt. The biggest change has been the defendants failures to back-up their public relations strategy with a legal strategy consistent with actual innocence.
Innocent People Would Testify Now, and Their Lawyers Would Let Them
Today, one of the defendants, Cpl. Marshall Magincalda did not take the stand or present any evidence (either directly or through others) at his Article 32 hearing. Think about that. In the world of criminal defense, where discovery opportunities are almost zero, his defense attorney did not want to put on any of the NCIS investigators, nor the co-defendants, non-indicted members of his platoon, or anyone else to get facts about the prosecution’s case or to set up an alternative account.
This is not the kind of strategy a truly innocent person would typically pursue. If you’re innocent, the facts should help you. Publicizing them does too. Even the prosecution witnesses help you. If you’re innocent, one can expect prosecution witnesses to contradict one another and trip up over their made-up stories. And, if the accusers’ stories are made up, but don’t contradict one another immediately, such potentially impeaching material is important to obtain so that some limitations on the prosecution’s case can be obtained before a final trial on the merits.
Further, there is no doubt in this case that a death occurred. The question at trial will focus on the issue of justification and the defendants’ mental state. “Without justification or excuse” is an element of the offense to be proved by the prosecution. You can’t undermine the required showing of probable cause on that element without testimony by the defendant. Testifying for one’s self truthfully allows a persuasive voice to enter the so-called “jury of public opinion” and the details of that kind of testimony are equally relevant to undermine the showing of probable cause at tthe Article 32 stage as they are at trial. Such testimony, which must survive cross-examination, is many times more persuasive than vague assertions by one’s hired gun defense lawyers and the completely unobjective (though understandable) testimonials by one’s family members.
Until now, the defense publicly pretended that they wanted to get to the facts of the prosecution’s case and that the facts as a whole would somehow help them. The Casas Law Firm, for example, has sought various items of discovery that would support their defense, suggesting that without these items the Article 32 hearing would be a waste of time. But the most important evidence for the prosecution, besides Awad’s body, has to be the statements made to NCIS. To refute the power of those–which we now learn, include at least one videotaped statement from the Marines’ squad leader–the best evidence would have to come from the mouths of the defendants themselves.
The defense lawyers have repeatedly complained about an unlevel playing field and the supposed tampering with the jury pool. Yet it is they, not the prosecutors, who have gone to the press at every opportunity to decry prosecution tactics and suggest impropriety. Indeed, it is they, not the prosecution, who have muddied the waters by suggesting that the prosecution evaded some duty of full pre-Article 32 discovery, even though the prosecution’s discovery obligations are limited at this stage by Rule 1101 of the UCMJ procedures. The defense knows that their demands for full disclosure are not mandated by the rules, but the general public does not. Their rhetoric suggests something awry, when in fact the prosecution’s conduct is perfectly permissible. The Camp Pendleton authorities were even criticized for setting up a media center so that high profile cases like this could be accessed by the press. This Marine Corps’ commitment to openness contrasts with the defendants’ bid to seal these hearings–a bid that was apparently successful at least for now in the case of PFC Jodka’s attorney, Jane Siegal.
Statistical Inferences Based on Similar Cases Suggest Guilt
We know that trials in court martial proceedings almost inevitably lead to convictions. This does not mean anything’s wrong with the system. Other hurdles and self-imposed limits must be overcome before a case reaches this stage. Consider the specific context. There have been extremely few court martials for unlawful use of force in the current war in Iraq. The Washington Post recently conducted an exhaustive study of the subject that unearthed only 39 cases of unlawful homicide being prosecuted in Iraq, in which only 12 defendants ever served time for their offenses. Many were simply kicked out of the service or reprimanded.
These paltry numbers of bona fide felony prosecutions suggest extreme indulgence of defendants in a war where many innocents, surely far more than 12, have have been killed illegally by American forces.
I suggest that high conviction rates for court martials and the very small number of court martial prosecutions for war crimes mean that most people before general court martials in cases like this are highly likely to be guilty. This must be doubly so for those cases that make it through the Article 32 hearings. Even the Haditha Marines have not yet seen formal charges preferred, yet charges have been preferred in the Hamdania case. My point is really basic and based on common sense: considering the realities of Iraq, it must have taken a lot to get the JAG Corps’ and the NCIS’s attention.
The Defense’s Grand-Standing Runs Into Reality
While many of the fats of this case remain murky and unknown, the more we know makes matters look worse for the defense. And since these facts would likely come out sooner or later, I must conclude they’ve made a very unwise set of strategic decisions. Until now, their lawyers have spoken freely in public about the alleged illegalities of the prosecution and their desire to tell their story. But now they have fought equally hard to have the Article 32 hearings concealed from the public, especially to the extent they would expose the statements of the defendants. Specific facts, most importantly the details of their confessions, are by their own admission likely to be damning (or, as they say in legalese, “prejudicial” and “inflammatory”).
In contrast, the prosecutors have been mum. For example, I was rebuffed by the Camp Pendleton public affairs officer when I sent a series of very basic questions to him and so were various reporters I’ve spoken too. The prosecutors did not even make any official statement to rebut the wild charges emanating from the defense.
Until today, the defense snow job could continue. They distracted the press and the public with complaints about the defendants’ conditions of confinement, which ended in mid-June, creating a non-issue to inflame the right-wing media and the mil-bloggers. This feint distracted the Hamdania defendants’ supporters from the fact that these guys have apparently admitted to NCIS investigators various facts that led one of their Marine Corps peers in the JAG Corps to prefer charges in a war where so few cases have reached even that stage.
When viewed from this vantage point, the facts demand a reality check, especially among those who have attacked the Marine Corps, General Mattis, the President, and the JAG prosecutors in their zeal to defend the accused. The legal presumption of innocence (i.e., the prosecution’s burden of proof) should not short-circuit common sense, especially among the general public whom the defendants’ lawyers have sought to persuade. And that evaluation must be made based on what we now know: namely, that the defense charade of wanting the facts has come to a screeching halt, as evidenced by their inability to come forward with any real evidence of their own, either in public or at the public Article 32 hearing. Further, they’ve sought to hide what evidence exists.
According to the Marine Times, PFC Jodka’s attorney Jane Siegel said today that “statements he made during an interrogation by Naval Criminal Investigative Service agents in Iraq could taint potential jury members if the case goes to court-martial. ‘Some of it is very inflammatory,’ Jane Siegel, one of JodkaÃ¢â¬â¢s defense attorneys, told the investigating officer.” The only thing likely to be inflammatory about this statement is that it will force Miss Siegel to discuss in public the details of her client’s confession.
The Indicted Are Almost Always Guilty
I have defended some criminal cases in my time. And I have also seen them from the vantage point of the judiciary in my service as a federal law clerk. The outside world, including me at the naive start of my legal career, thinks lots of innocent people are indicted frequently, that there are great factual contests at trial, and that there are lots of chances for the innocent to get locked up if just one thing goes wrong. This is a misnomer. Let me let you in on a not-so-surprising secret of the criminal defense bar: almost everyone that is arrested and indicted is guilty. The vast majority of them plead guilty. Defense lawyers rarely want the truth to come out; instead, they try to focus the jury on very narrow technical questions and also try to exclude various prosecution evidence from their view under the rubric of the exclusionary rule or through the rules of evidence.
These rules are not in the service of truth so much as they function to maintain a system that protects defendants and the innocent public from prosecutorial and police overreach. Seriously, shouldn’t a jury concerned only with the truth of the matter know about a defendant’s criminal record or what he said before he received a Miranda warning? This worthy goal of disciplining prosecutors means that in particular cases obviously guilty people may go free. So all the defense posturing about their innocent clients must be taken with a grain of salt, especially when that posturing takes place under the aegis of various suppression motions.
In contrast to the usual culture of the advocacy system, prosecutors are duty-bound to employ their discretion to drop cases when they think the defendant is innocent. In other words, they cannot simply try to win at all costs. I believe most of them do this in a variety of ways with little fanfare. Defense counsel have no such obligation. Of course, they’re not supposed to lie or suborn perjury–and for this reason, I personally frown upon the media show-boating in this case–but beyond that, their duty of zealous advocacy means that everything they say should be listened to critically because it’s all in the service of getting their clients’ off. I don’t judge them ill because of this; I simply don’t always believe them. When their assertions are not backed up by some verifiable, objective source, I’m especially skeptical. Sadly, all too many writers in the media and blogosphere have simply passed through the defense lawyers assertions as if they were established facts.
Until now the defense has had free reign. They’ve criticized the process, the alleged unfairness of the government, their inability to travel to Iraq to interview Iraqi complainants, their inability to attend the autopsy (which would have been very unusual), and the alleged terrorist sympathies of the Iraqi witnesses. They have, in effect, spoken in public for their clients (risking a waiver of the attorney-client privilege) and concocted a story about what happened, but they’ve kept details vague. And why? Likely several reasons. First, so they could affect the trial by encouraging an outpouring of sympathy leading to pressure on General Mattis to drop the charges. This is why their media strategy has focused on irrelevant matters like the conditions of confinement. Second, the constant suggestion of prosecutorial malfeasance has been made quite obviously so that they could get any future jury to suspect that something is being hidden by the prosecutors that would exonerate the defendants. The prosecution’s silence has until now enabled this strategy to have some effect on the jury pool, no doubt.
But today was the defense’s golden opportunity to put their guys on the stand to proclaim their innocence, to get the NCIS to be pinned down to a story, and otherwise to present evidence of factual innocence. We can only conclude that they declined this opportunity because testimony would mean that the world would also hear of what these defendants said to NCIS and the circumstances under which they said it. At that point, the myth that this is a case where Iraqis are the chief accusers of Marines will be undone. We’ll learn that where there are confessions, making the defendants their own accusers . . . indeed, the most credible kind.
In the end, I have some faith is process. A Marine jury will follow the law but will also have ample sympathy for anyone laboring under the stresses of combat. Indeed, if anything, the military justice system as a whole has been too solicitous of alleged war criminals in America’s Iraq and Afghanistan operations.
I have chosen to write on the Hamdania matter not so much because this case is particularly complicated or novel as a legal matter. In the end, the details of the accused’s confessions (and whether or not they’re suppressed) will be the major factors in the outcome of these proceedings. I speak instead because the integrity of the Marine Corps, their JAG corps, and the Iraq operation as a whole is on the line. The promiscuous allegations of political correctness and prosecutorial misconduct from the right in cases like this does as much harm to the military as anything hurled by the left. Because conservatives have some natural credibility on military matters, these accusations may even do more harm than the easily-dismissed stupidities of Michael Moore and his ilk.
The reasons that these charges cause problems should be clear. In a war like Iraq, a counterinsurgency operation with many opportunities for abuse, the opinions and interests of the Iraqis are the strategic center of gravity. This is simply a fact. One important part of keeping any contested population from being actively anti-American is to have swift, public, and harsh prosecutions of any accused war criminals. When this uncomfortable situation must be addressed, we owe the military just as much deference as in the opposite case, when truly unavoidable harm has been visited upon noncombatants. For this reason, I feel it’s important that someone like me–someone who is not on the loony, anti-American left–speaks out against the diatribes of the Hamdania lawyers and their knee-jerk supporters on the right. The integrity of the military and the conservative movement should not be sacrificed through our own version of identity politics, where we defend these accused murderers in spite of the evidence out of some misguided notion of supporting the Marines. The accusers are Marines too, as are the Marines that will get killed in revenge killings by aggrieved Iraqis following unlawful killings of their noncombatant family members.
The process will run its course regardless of what I or Jack Murtha or anyone else in the blogosphere says. But as long as the prosecution is subject to unfair attacks and so long as corrosive ideas become widespread among those of us who are supposed to be sane, I will feel compelled to provide what I hope is a useful perspective on this case.