A Marine sergeant accused of murdering an Iraqi insurgent at Fallujah more then three years ago was returned to Marine Corps control Thursday after spending a week in a Los Angeles civilian jail on federal contempt charges.
US District Judge Percy Anderson ordered Sergeant Jermaine Nelson released from the Metropolitan Detention Center in Los Angeles a week after ordering him confined for refusing to testify against his former squad leader in a related federal murder investigation, his lawyer Joseph Low said.
Nelson is charged by the Marine Corps with unpremeditated murder and dereliction of duty for allegedly shooting an Iraqi insurgent prisoner in the opening hours of the month-long battle in November, 2004. Nelson is currently stationed at Camp Pendleton.
Before obtaining legal counsel last year, Nelson confessed to shooting one of the prisoners and witnessing the deaths of three others. He claimed that his former squad leader Sgt. Jose L Nazario ordered him and another Marine to help execute four captured insurgents.
Nazario says the event never happened.
Government prosecutors granted Nelson testimonial immunity last month and ordered him to testify before the federal Grand Jury looking into the case. He refused and was locked up for contempt, his lawyer Joseph Low said at the time.
Before being released Nelson again told Anderson he would not testify against Nazario. The exasperated judge ordered Nelson to return on June 18 to appear before the Grand Jury and suggested that he at least "listen to the questions," his lawyer said.
Nelson responded that he did not intend to change his mind.
The government is trying to enhance the charges against Nazario from two counts of voluntary manslaughter to murder and using a weapon in the commission of a felony, his attorney Kevin B. McDermott said.
The government says Nazario was leading the squad when it captured the four combatants on November 9 while searching a house being used as a strong point. Moments before entering the house another squad member had been killed by insurgent small arms fire coming from the vicinity, government prosecutors said.
The case is based primarily on the statements of Nelson, Weemer, and several other Marines who gave often conflicting testimony of what happened there. The government has been unable to produce victims, a crime scene, or any physical evidence to corroborate the allegations.
Nelson was a Riverside Police Department probationary patrolman when he was arrested and charged last August, and is scheduled to go on trial July 8 in US District Court in Riverside. Nazario was charged in civilian court because the Marine Corps no longer has criminal jurisdiction over the eight-year veteran.
Government prosecutors want Nelson and Sgt Ryan Weemer, another Marine implicated in the case, to tell the Grand Jury that they followed Nazario’s orders to shoot two of the four Iraqi insurgents captured in the opening hours of the horrendous Fallujah battle in November, 2004.
Weemer has already told the court he would not testify. Anderson ordered Weemer to appear before US District Judge Stephen Larsen today (Friday) to explain his intentions. The government has granted Weemer testimonial immunity to testify against Nazario, McDermott said.
Weemer revealed the alleged incident to federal investigators during a job interview two years ago. At the time he said he merely witnessed the incident and did not participate in killing anyone.
Weemer’s appointed military lawyer told Judge Anderson Thursday that the Rules for Courts Martial mandated that only a military convening authority to order a serviceman to testify under a grant of immunity.
Anderson took the argument under submission.
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