Marine Convicted in Iraqi Murder Spared Prison Time

A Marine corporal has been convicted for his role in the kidnapping and murder of an Iraqi civilian but spared additional prison time. He had previously accepted a plea bargain that would have landed him in jail for 12 years.

Thomas, of Madison, Ill., was among seven Marines and a Navy corpsman accused of snatching 52-year-old Hashim Ibrahim Awad from his house, marching him to a nearby ditch and shooting him after they botched an attempt to capture a suspected insurgent. Prosecutors said squad members tried to cover up the killing by planting a shovel and AK-47 by Awad’s body to make it look like he was an insurgent planting a bomb.

“I believe we did what we needed to do to save Marines’ lives,” Thomas said outside court, while declining to discuss the details of what happened that night. “I think anybody who understands what war is or what combat is understands.”

A military jury of three officers and six enlisted Marines deliberated Thomas’ sentence for less than an hour before returning its decision. On Wednesday, the jury convicted Thomas, 25, of kidnapping and conspiracy and acquitted him of other charges, including the most serious, premeditated murder. Prosecutors had recommended Thomas be sentenced to 15 years in prison with a dishonorable discharge, reduction in rank and a fine.

Thomas’ attorneys argued that their client was only following orders from his squad leader and asked that he be credited for the 519 days he has already served in the brig and be returned to active duty. “We failed him as a Marine Corps, because under good leadership, this Marine would not be here today,” Maj. Haytham Faraj told the court. “Consider where the responsibility lies.”

Thomas had agreed in January to plead guilty in the case, but withdrew the guilty pleas on the eve of sentencing in February. His attorney, Victor Kelley, said that pretrial agreement had called for 12 years in prison. “I was going to take a deal for 12 years because my lawyer said it was in my best interest, but then my lawyers called me back and said, ‘We’re going to fight this,'” Thomas said Friday. “That was all I needed.”

[…]

Four other Marines and the sailor charged pleaded guilty to reduced charges in exchange for testimony. A court-martial began Friday in a Camp Pendleton courtroom for Thomas’ squadmate Cpl. Marshall L. Magincalda. Proceedings are scheduled to begin next week in the case of squad leader Sgt. Lawrence Hutchins III. Both are charged with murder, kidnapping, conspiracy and other offenses.

Tom Umberg, a former military prosecutor, called Thomas’ punishment “pretty outrageous” and suggested the jurors might have been swayed by their own combat experiences. “I have never heard of a court-martial that convicted someone of conspiracy to murder and kidnapping and not adjudicate some kind of (prison) sentence,” Umberg said. “Obviously there was some sympathy, maybe even empathy, because all of the panel members had served in Iraq.”

Given that Thomas participated in a kidnapping, murder and then a criminal conspiracy to cover it up, the sentencing seems outrageous, indeed. Then again, I didn’t sit through the trial and hear what the jurors heard. And he has already served 14 months in the brig awaiting trial.

An old joke goes that “military justice is to justice as military music is to music.” In actuality, though, it’s probably more just than the civilian system. The guilty are more likely to be punished, because the commander has a lot more discretion and options available than do civilian prosecutors. At the same time, that means that good people who make mistakes are more likely to get leniency, because the act is considered in light of the whole man.

The fact that the people judging Thomas have been in his shoes is a feature, not a bug. While “jury of peers” has nothing to do with “peers” in the modern, American sense of the word, it nonetheless seems right that men should be judged by people in a position to empathize with their experiences. Putting Thomas’ fate in the hands of people who have never experienced the stress of combat would be grossly unfair.

The lead Marine on the ground, squad leader Hutchins, will be the last tried. I’ll be following that trial with interest.

As a side note, I’m not sure what the fact that Thomas had previously agreed to serve 12 years in prison says about the practice of plea bargaining. Defense attorneys often have a powerful incentive to get the trial over with and the risk of getting the maximum sentence is something that defendants naturally want to avoid. One wonders, though, how many people who would have been acquitted at trial wind up spending years in jail because they were persuaded to avoid that gamble.

Note: This was written over the weekend but inadvertently remained in my draft queue.

FILED UNDER: Iraq War, Law and the Courts, Military Affairs, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. ken says:

    The fact that the people judging Thomas have been in his shoes is a feature, not a bug. While “jury of peers” has nothing to do with “peers” in the modern, American sense of the word, it nonetheless seems right that men should be judged by people in a position to empathize with their experiences. Putting Thomas’ fate in the hands of people who have never experienced the stress of combat would be grossly unfair.

    The problem with having a military that is cut off from regular American life and experience is that we have a group of ‘peers’ that make judgements that are patently offensive to the sense of justice to the normal person.

    They do this for two reasons: One, as soldiers they empathize with the criminals and would have an expectation for leniency for themselves if they ever committed similar crimes. Two, they know they must face the ideologically narrow military community after the trail is over which would frown on anything less than understanding and leniency.

    Regardless of what James says, this is not a good thing.

    A solution may be to have jurors for capital crimes pulled from a pool of veterans who are fully integrated back into civilian life. They would be in position to know what the service experience is all about but not be under any pressure due to not having to return to live among them after the trial is over. The sense of justice they must justify is that of the broader American community into which they will return instead.

    Civilians with military experience would have a different motivation when reaching judgement. Unlike those still in service they would be able to serve justice without prejudice.

    A solution like this would require an act of Congress to implement. It is not something the military could do on its own.

  2. cian says:

    Ken,

    I agree with you completely. However, the stress on these young soldiers must be enormous and unrelenting if the recent report on (can’t remember which network just now) is anything to go by. All the more important then that the chain of command makes it absolutely clear that the murder of innocent civilians will not be tolerated.

    Stress of combat is undoubtedly a factor and should be taken into consideration, but it can never be an excuse and that is the danger here. The message going out from this court is ‘bad stuff happens, we understand and will act accordingly.

  3. Mike says:

    “They do this for two reasons: One, as soldiers they empathize with the criminals and would have an expectation for leniency for themselves if they ever committed similar crimes. Two, they know they must face the ideologically narrow military community after the trail is over which would frown on anything less than understanding and leniency. ”

    Ken,
    Normally I agree w/ many things you say but you clearly have no experience with members of the miltiary nor the military justice system – the UCMJ almost always gives out harsher punishments than the civilian system for the same crimes. I think your problem is that you start w/ the belief that there is something wrong w/ members of the military – as if they are more inclined to commit crimes – and it is clear when you say “they must face the ideologically narrow military community ” that you really probably don’t know anyone in the modern military. You sound like a real idiot w/ this past post. Maybe it is b/c i deal w/ the UCMJ on a daily basis that i think you are so far off the mark on this particular topic and I will withhold judgment to see what others think.

  4. davod says:

    Without reading a lot more of the evidence put forward at the trial it is hard to comment on the sentence.

    Mike: The American Taliban might take issue with your comment regarding the harshness of the UCMJ. A judge handed out a relatively lenient sentence to the Australian Taliban before they sent him home. The US Taliban took a deal and plead guilty for a twenty year sentence (I wonder what the American Taliban would get these days, what with all the US lawyers involved in the defend a terrorist movement.)

  5. davod says:

    PS. I should have said: took a deal in a Federal court.

  6. ken says:

    Mike, I start with the premise that people in the military are taught to kill. Therefore I have always thought it patently unfair to ask those whose job it is to kill to judge others with the same job but who are accused of killing by murder.

    I am not complaining about the UCMJ. I think for the most part it is fine. Its purpose is to punish those who violate rules that are necessary to maintain military discipline. That cannot be done by civilians. For example, there is nothing similar to insubordination in the civilian world that is prosecutable.

    But when it comes to war crimes I do not trust the service to be entirely objective or to put the interests of justice above the interest of the institution they serve.

    The dispassionate judgement required to make an honest distinction between murder and legitimately killing during the course battle is at best unusual among those who’ve seen battle and may have killed someone themselves. The prejudice is by nature always going to be with the accused soldiers. This is especially true if they can envision themselves or their friends accused of similar crimes at some point in the future. The conflict of interest is too obvious and too great to ignore.

  7. Mike says:

    Davod – the UCMJ is not used in Federal Court – only in military courts as per the UCMJ and Const

    Ken – so your comments are based purely on your gut instinct and feeling and not on what actually occurred in the trial – i suggest you FOIA a copy of the transcript and see what really went on – I would argue the opposite – a panel of officers and enlisted marines/soldiers etc… would be more harsh on someone who clearly crossed the line b/c they have been in combat and don’t buy into any BS defense argument as opposed to civilians who only see it on the news – if i viewed the military through your conspiracy goggles, then i too would not trust the members of the military to decide guilty and innocence based on the facts and would believe they would try to protect the institute – i believe you think that service members are willing to sell their integrity and souls to protect their own and i just don’t buy that.

  8. ken says:

    i believe you think that service members are willing to sell their integrity and souls to protect their own and i just don’t buy that.

    Yep, they do it all the time.

    Read the stories from Vietnam or from our current war on Iraq from front line soldiers regarding the casual attitude towards the killing of civilians.

    They are not charged with war crimes cause they would never be convicted when everyone is doing the same thing.

    It takes an enormously obvious case to reach the level of prosecution. And I have never read of a war crime case that reached prosecution that did not have to first overcome an institutional cover up to hide the crime.

  9. davod says:

    Mike:

    I know the UCMJ is only used within the military.

    My point was that the military judge sentenced the Aussie to six years including time served and the American Taliban took a plea in federal court for twenty years. The military court was more lenient.

    Ken:

    I think you are reading everything with your left eye. Open both eyes and evaluate what you read with your BS meter on. Most of what was written about Vietnam was BS and I would hazard a guess that the same is true of Iraq.