A Marine facing charges for killing an insurgent prisoner in Fallujah, Iraq, 3 1/2 years ago has been jailed for refusing to testify against another Marine involved in the incident.
U.S. District Judge Percy Anderson on Wednesday ordered Sgt. Jermaine Nelson to be confined at the federal lockup in Los Angeles after giving him several opportunities to testify.
“It was a beautiful thing to see,” said lawyer Joseph H. Low IV, a former Marine infantryman representing Nelson.
“The prosecutors are attempting to break the bonds formed in combat. Nelson told them he’d rather go to jail than rat out a brother Marine.
“It is coercion pure and simple. The government wants to take these guys and try to make them say what they want them to say. The government doesn’t have a case so they resort to this.”
Nelson, 26, refused to testify against his former squad leader, Sgt. Jose L. Nazario, at a federal grand jury seated in Riverside, Calif., Low said.
Nelson was granted testimonial immunity by federal prosecutors seeking to enhance voluntary manslaughter charges against Nazario to murder. If he had cooperated, Nelson would have been protected from further jeopardy for anything new he revealed in the case, according to Low.
Nazario was indicted by a federal grand jury two weeks after being arrested on Aug. 7, 2007. He is charged under the Military Extraterritorial Jurisdiction Act, passed by Congress in 2000 to allow service members serving overseas to be prosecuted in civilian court for offenses that call for more than one year of imprisonment.
The prosecution wants Nelson to tell the grand jury what happened at Fallujah on Nov. 9, 2004, when his squad encountered four enemy combatants during the opening hours of the bloody month-long battle for the ancient city.
Nelson already faces up to life in prison and a dishonorable discharge for twice confessing without legal counsel that he killed one of the insurgents after being ordered by Nazario to do so.
In his confession, Nelson claimed Nazario received the order to kill the prisoners from an unknown superior over his inter-squad radio.
An affidavit filed in federal court last August asserted that Nazario and the other Marines detained the insurgents during a house search after another Marine had been killed.
The affidavit contends that Nazario shot two of the captured combatants in the head at close range and that he directed Nelson and Sgt. Ryan Weemer to shoot the other two.
Nazario says the incident never happened.
Nelson, Nazario, and Weemer have all been charged with unlawfully killing the four insurgents.
Low said that Weemer has been offered the same deal as Nelson by government prosecutors and is deciding what action to take. If Weemer refuses to cooperate he could also be confined, Low said.
Nelson’s rambling confession is often at odds with the statements of other Marines who were present that day. Several Marines said the incident never happened and others gave conflicting accounts of what transpired.
There are no victims or physical evidence, and unless the government can compel Nelson and Weemer to testify against Nazario, it doesn’t have a case, defense attorneys say.
Nazario is currently scheduled to stand trial on July 8 in the U.S. District Court for Central California in Riverside for two counts of voluntary manslaughter, according to his attorney Kevin B. McDermott. He is free on $50,000 bond.
“I just don’t understand the system anymore,” Nazario commented Thursday morning from his home in upstate New York. “If you win you get prosecuted; if you lose you get dead.”
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