The Marine Corps on Wednesday announced that seven Marines and a sailor had been charged with murder in the April death of an Iraqi civilian.
All eight also were charged with kidnapping, according to a Marine statement issued at Camp Pendleton, Calif. Other charges include conspiracy and providing false official statements.
The allegation is that Marines pulled an unarmed Iraqi man from his home on April 26 and shot him to death without provocation. Seven Marines and one Navy corpsman from the Pendleton—based 3rd Battalion, 5th Marine Regiment were taken out of Iraq and put in the brig pending the filing of charges.
JOM commentator, vnjagvet who has experience in these matters, observes:
Article 32 investigation(s) have yet to begin on any of the charges.
Another note: A corpsman is among the accused. This is somewhat unusual, IMX. I presume he is being charged with the coverup and not the shooting.
Finally, the talk about the "being subject to the death penalty" is somewhat premature.
While death is among the permissible punishments for premeditated murder, both the Article 32 Investigator and the Convening Authority must agree to try the case as a capital case after the Article 32 investigation is complete. If they do so, special procedures are automatically invoked under the UCMJ to protect the rights of the accused.
Thus the breathless tone of the article is somewhat misleading and overwrought.
Article 32, appears the military justice equivalent of a grand jury proceeding:
a) No charge or specification may be referred to a general court—martial for trial until a through and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross—examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.
(c) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross—examination, and presentation prescribed in subsection (b), no further investigation of that charge is necessary under this article unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross—examination and to offer any new evidence in his own behalf.
(d) The requirements of this article are binding on all persons administering this chapter but failure to follow them does not constitute judicial error.
In essence, then, it would seem that the preliminary investigation has determined only that there is enough to warrant the convening of a formal inquiry even though the media seems to be hinting the scaffolds are already being constructed.
Clarice Feldman 6 23 06