Prosecutors won't pursue Marines for contempt in federal case

10:00 PM PDT on Tuesday, September 23, 2008

By SONJA BJELLAND
The Press-Enterprise

The U.S. attorney's office has ended its pursuit of a criminal contempt case against two Marine sergeants who refused a judge's order to testify in the trial of their squad leader, accused of shooting unarmed insurgents in Iraq.

Prosecutors said they believe the squad leader, former Riverside police Officer Jose Luis Nazario Jr., killed two of the insurgents and ordered Sgts. Ryan Weemer and Jermaine Nelson to shoot two others who were found in a house during a raid on Fallujah, Iraq, in November 2004.

Nazario was acquitted last month in the first-ever civilian trial of a veteran for his actions in combat.

The precedent-setting case brought world attention to a little-used law and sparked debate over the propriety of a civilian jury weighing the fate of former service members.

During grand jury proceedings and again in federal court in Riverside, Weemer and Nelson refused to testify against Nazario. They were scheduled to appear in U.S. District Court in Riverside next Monday for a hearing on the criminal contempt case.

In military court, Weemer and Nelson still face charges of murder and dereliction of duty in connection with the killings.

This week, the prosecution filed an application for Monday's hearing to be removed from the court calendar. Judge Stephen Larson had not signed the order as of Tuesday evening.

In the application, the prosecution stated that the refusal to testify was unlawful and violated the court's orders, but that going forward with a contempt trial would not serve justice.

"The punitive effects of further contempt proceedings against these witnesses would serve little, if any, purpose in light of the severity of the charges the witnesses face in military court," the document stated.

Testimony by the two would have been crucial to the Nazario case because the prosecution had no other eyewitnesses to the shootings.

The incident came to light during Weemer's interview for a job with the Secret Service. Larson, who was the judge in the Nazario case, would not allow jurors to hear that recorded interview because the defense would not have been allowed to cross-examine Weemer.

Nazario was charged with voluntary manslaughter, assault with a dangerous weapon and discharging a firearm during a crime of violence. He was tried in civilian court because he left the Marines before being charged.

After the verdict, jurors said they did not have enough evidence to convict Nazario and that they believed civilians should not be judging military actions. Nazario has asked for his job back at the Riverside Police Department.

During grand jury proceedings prior to the Nazario trial, Larson held Weemer and Nelson in civil contempt for refusing to testify. Both spent several days in a San Bernardino County jail. The judge let them out after determining that more jail time wasn't going to compel two men who had fought in Iraq.

Weemer, from Illinois, is scheduled for trial in military court on Oct. 27, and Nelson, from New York, is scheduled for Dec. 8.

"It's an undisputed fact that Weemer and Nelson were merely following orders from Sgt. Nazario, who was acquitted," said Joseph Hawkins Low IV, who is representing Nelson.

Larson had granted Weemer and Nelson immunity for their testimony in federal court. But Low and Christopher Johnson, Weemer's attorney, argued that Larson's grant of immunity would not cover military court and that a letter from the military had not been signed by someone of sufficient rank.

They also told the court that their clients would not testify under any circumstances.

Former federal prosecutor Rebecca Lonergan, a USC law professor, said the case highlights debate over military versus federal jurisdiction.

The law that granted the civilian federal court jurisdiction in the Nazario case was passed by Congress in 2000 and has been used in drug cases and other on-base offenses.

"It's likely we're going to see more inter-relationship between military court and federal court," Lonergan said before the prosecution filed the request.

Reach Sonja Bjelland at 951-368-9642 or sbjelland@PE.com