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Co-defendent cuts deal in US court martial turnabout

US Military prosecutors scored a significant break in the case against seven Marines accused of murdering an Iraqi civilian when a Navy corpsman agreed to testify about what his patrol mates did that night in the town of Hamdania.

It was a sudden change in an oft-delayed case, but not necessarily a surprise -- turning a defendant into an asset can be a smart play for prosecutors needing a witness for their side.

And in this case, the plea deal could compel others among the accused to negotiate their way out of the case, experts in military law said.

Under the deal, prosecutors will drop murder and kidnapping charges against Petty Officer 3rd Class Melson Bacos, who in turn will plead guilty to two additional charges during a hastily convened court martial, his attorney said yesterday.

Bacos, a medic, was patrolling with seven Marines last April when they allegedly abducted and killed 52-year-old Hashim Ibrahim Awad.

All eight were charged with crimes including murder and kidnapping, and have been held at Camp Pendleton, the sprawling Marine base north of San Diego.

A former Navy judge advocate general said Bacos' testimony could be a blow for the Marines in the case.

"Almost inevitably it means that he will testify in someway or other against the interest of one or more of his co-defendants," said John Hutson, who is now president of New Hampshire's Franklin Pierce Law Center.

First to Turn

The Marines are at various stages in the military justice process. Two have been arraigned; preliminary hearings and other court appearances for the rest are set for coming weeks. Bacos is the first of the men to have a general court martial and will be the first to have his fate resolved.

According to charging documents, the troops entered Hamdania searching for an insurgent and, failing to find him, grabbed Awad from his home and shot him.

An AK-47 and a shovel, allegedly stolen from a home, were left by Awad's body, apparently to make it look like the man had been digging a hole for a roadside bomb and was killed in an exchange of gunfire.

Bacos was accused of firing the AK-47 into the air as part of the cover up. Military prosecutors charged him with murder and kidnapping under the theory that he did nothing to stop the alleged crime.

Laurie Levenson, a law school professor at Loyola University, said the deal could indicate the prosecution's case lacks physical evidence.

Bacos was recently transferred from the Camp Pendleton brig to Marine Corps Air Station Miramar for his own safety, said his attorney, Jeremiah Sullivan.

The youngest of the accused Marines, Private First Class John Jodka, was transferred on Wednesday evening. Jodka's attorneys are under a gag order and could not comment.

Domino effect

"Typically when there's multiple defendants, when one strikes a deal, others often do in a short time," said former Army prosecutor Tom Umberg. "You don't want to be the last guy standing, the first guy gets the best deal."

Marine spokesman Lieutenant Colonel Sean Gibson said on Wednesday it wouldn't be appropriate to comment on any potential negotiations between the accused and the prosecution. A phone message left for Gibson on Thursday was not returned.

David Brahms, a defense lawyer for one Marine, said Bacos' testifying made his job more difficult.

"This is like mountain climb-ing," Brahms said. "Sometimes you think you're at the top and there's an extra 500 feet [180m]."

Brahms said he was concerned about details that may emerge during Bacos' testimony that he would ask the judge to close proceedings to the media.

"This is a national story, and getting [jury] members who have not been impacted by the information is impossible," Brahms said.

Brahms pointed out that Bacos' testimony is one version of events and said he would cross-examine the sailor if his client, Lance Corporal Robert Pennington, is sent to trial and the government calls Bacos as a witness.

"This is just one guy who is going to tell the story as he sees it," Brahms said.
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