Acquittal of Former Marine in Landmark Case Expected to Cause Change in Legislation, Says...

Orange County Pepper Hamilton Attorney Serves on "Marine Dream Team" That Obtains Historic Acquittal on Behalf of Pro Bono Client

IRVINE, Calif. -- The recent landmark case of United States of America vs. Jose Luis Nazario, Jr. tested the power and scope of the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), and the swift acquittal underscores flaws in the law that could lead to legislative changes to the Act, said the team of lawyers who represented the former Marine.

Mr. Nazario's defense team, dubbed the "Marine Dream Team" because it included former and retired Marines, consisted of retired Major Kevin McDermott, retired Colonel Douglas Applegate, former Sergeant Joseph Preis and civilian Vincent LaBarbera.

The four attorneys represented Nazario in the first case in which a former member of the U.S. Armed Forces was tried in a civilian criminal court, as opposed to a military court martial, for allegedly committing a crime during combat operations.

A jury in the U.S. District Court for the Central District of California acquitted Nazario of all charges on August 28, 2008, after less than six hours of deliberations.

"Although the war is finally over for Mr. Nazario, the government's ability to impanel 12 civilians to sit in judgment over the actions of a Marine in combat is unconscionable and must be reevaluated by Congress," said Marine Dream Team member Joseph M. Preis, an attorney in the Orange County office of Pepper Hamilton LLP (www.pepperlaw.com).

"In addition to playing Monday morning quarterback, MEJA prosecutions in general, and the Nazario case in particular, present insurmountable challenges to successful prosecutions," according to Kevin McDermott, lead counsel for the Marine Dream Team. "Removing military aspects completely from the Nazario case, the U.S. government sought to convict a man of killing another human being without producing a body, the alleged victims' I.D., any eyewitness testimony, or a shred of physical evidence. The Constitutional implications were and continue to be enormous, as long as MEJA remains on the books."

MEJA was designed to permit the prosecution, in U.S. district court, of Department of Defense contractors, subcontractors, and the civilian dependants of active-duty military personnel who commit crimes on foreign soil. It also provides for the prosecution of former military members no longer subject to the Uniform Code of Military Justice (UCMJ), like Nazario, although there is no pre-bill mention of former service members in the Congressional record.

"Even one of MEJA's authors, Sen. Jeff Sessions (R - AL), has been quoted as saying that this type of prosecution was not the motivation behind MEJA," said Preis. "While we are clearly thrilled with the 'not guilty' verdict, and we look forward to helping Mr. Nazario restore his life, we also are intent on encouraging Congress to change MEJA."

The allegations against Nazario stemmed from the Battle of Fallujah in Iraq in November 2004. According to the indictment and trial testimony, Nazario's squad began to attack through Fallujah on the morning of November 9, 2004. Several hours into the fight, the squad began taking fire from the house in question, killing one of Nazario's squad members. The Marines assaulted into the house and found four military-aged males, at least three AK-47's with hot barrels, spent casings and the smell of gun powder. Shots were fired and the four insurgents were allegedly killed. The government did not have any eyewitness testimony or evidence as to what took place. The allegations were that Nazario killed, or caused others to kill, the insurgents.

"At the end of the day, this jury of civilians simply wasn't willing to second guess a Marine and resented being placed in a position of having to do so," said Marine Dream Team member Douglas Applegate. "Fallujah was the most brutal and bloody house-to-house fighting that the Corps has experienced since the Battle of Hue City in 1968." Applegate spent a significant amount of time in Iraq prior to his retirement, and provided the defense team with invaluable insight into the rules of engagement and the environment on the ground in Iraq.

The Marine Dream Team's only non-Marine, Vincent LaBarbera, commented post-trial that this case "was purely politically driven to support some still-unknown government agenda -- most probably, the appeasement of anti-American Iraqi factions. Unfortunately, this young hero [Nazario] was the government's guinea pig."

Of particular interest, in prosecuting Nazario, the government chose to focus on an honorably discharged Marine who was decorated for valor in combat.

The flawed structure and composition of the Military Extraterritorial Jurisdiction Act contributed to the aggressive prosecution of this case, said the defense team.

"We believe the Uniform Code of Military Justice should be expanded beyond its standard limit, so that former military personnel can be tried only by the military," said Preis. "Currently, the typical enlistment provides the UCMJ with jurisdiction for eight years, which often includes four years of active service and four years of inactive reserve service. In the latter four years, military personnel can be recalled to active duty and then prosecuted under the UCMJ. However, after eight years of service, the military no longer has jurisdiction over former service members."

Pepper Hamilton handled the Nazario case as part of its pro bono and public service program. "Pepper afforded this case tremendous resources," said Preis. "We tapped the expertise of litigators in several offices, in particular, Jared Klein, Dave Foberg and fellow veteran Jonathan Kane, and our pro bono program provided significant support. The successful outcome was truly a joint effort."

About Pepper Hamilton

Pepper Hamilton LLP (www.pepperlaw.com) is a multi-practice law firm with more than 500 lawyers in seven states and the District of Columbia. The firm provides corporate, litigation and regulatory legal services to leading businesses, governmental entities, nonprofit organizations and individuals throughout the nation and the world. The firm was founded in 1890.

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