Thursday, August 21, 2008

Now This is Interesting.

From the San Diego Union Tribune, a news story entitled "Civilians to Try Iraq War Case Against Marine":

When Jose Nazario goes on trial this week in Riverside on charges of voluntary manslaughter, he won't exactly face a jury of his peers.

Jose Nazario
Nazario, 28, is a former Camp Pendleton Marine sergeant accused of executing two prisoners during the battle to retake Fallujah, Iraq, from al-Qaeda militants in November 2004.

Two of Nazario's men, Marine Sgts. Ryan Weemer and Jermaine Nelson, are facing courts-martial at Camp Pendleton because they are still on active duty or in the reserves.

But because Nazario had left the Marine Corps, only a civilian federal court has the jurisdiction to try him. He's the first former service member to be tried under an 8-year-old law passed primarily to allow prosecution of U.S. civilians connected to the military who commit crimes overseas.

"This is a trend-setting case,” said Joseph Preis of Irvine, one of Nazario's three pro-bono attorneys. Opening arguments are expected tomorrow in U.S. District Court in the city where Nazario was working as a probationary police officer at the time of his arrest.
A healthy sign to see civilians in the US taking an active interest in penalizing our own soldiers for crimes against "the enemy"... perhaps Russia and Georgia could take some pointers. On the other hand:
Some observers don't like the idea that a Marine's combat actions are being judged by civilians who know little of war.

“You're talking about a group of people that validly wake up every morning with an intent to kill,” said Colby Vokey of Dallas, a Marine Corps defense attorney at Camp Pendleton until his retirement a few weeks ago. “That's a little tough to grasp for someone who has never been in that situation.”
OK, but they're not supposed to wake up thinking about killing prisoners. But there is a semi-valid critique here. It's not "war" that the civilian jury needs to know something about, it's "war crimes." Where are these jurors to be found, in a country whose populace has been systematically lied to about the actual letter of the Geneva Conventions and who prior to 9/11, was wantonly ignorant of them (not having dealt with a war on our soil in oh-such-a-long-time).

I'd be interested to know something about the jury selection process.


hank_F_M said...


A bit of background.

The change in the law that allowed reservists to be recalled to active duty dates from the Reagan administration. Prior to that a one day release from active duty broke jurisdiction. So Lt Cally was convicted by testimony from his own men. Having been released from active duty, though still reservists; they could not be tried in civilian or military court and thus could not incriminate themselves when they testified they pulled the trigger on his orders. A good change even if it does make life more difficult for prosecutors.

Judges decide the law and explain it to the Jurors. The jurors do not have to be experts or even very knowledgeable before the trial, just able to understand the judges instructions and use sound judgment in applying them to the facts presented in court. If you or I were in the jury pool, the defense attorney would disqualify us in short order because dislike of war crimes might reflect a prejudicial attitude toward the defendant. And I can’t argue, juries are supposed to be both impartial and appear impartial.

Diodotus said...

Thanks for the background - quite helpful.

I don't agree that "dislike of war crimes" should or is likely to be construed to constitute "reflecting a prejudicial attitude toward the defendant." In domestic trials, most jurors "dislike" murder. That alone isn't grounds for excluding any particular juror from a murder trial. Your comment suggests, does it not, that a more "impartial" pool of jurors would be those who couldn't care one way or the other about war crimes? I'm not a lawyer, but I think impartiality just needs to imply a disinterest in the specifics of the particular case.

hank_F_M said...

In principle I agree with you.

I think the assumptions that go into allowing challenges assumes the average person on voting roles who would be called to be a juror has much less ability to judge the facts impartially than the prospective juror needs to go about daily life.

I had a friend who was a lawyer involved in jury selection. There are all sorts of studies describing what sort of person would vote for conviction/acquittal in a given set of circumstances, both sides go to considerable effort to shape the jury or at least prevent the other side from shaping it. If the defense lawyer believes his client is guilty you are his nightmare juror because you would do an excellent job of analyzing the facts and convincing the other jurors. If he can’t find a “for cause” challenge he will use a preemptory challenge, but I think your professional interest would be enough to make a successful “for cause” challenge. I think the process could do with some reform.

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