US again won't seek death penalty in Iraq killing

CAMP PENDLETON, Calif, Sep 12 (Reuters) US military prosecutors said today that they will not pursue the death penalty against another Marine charged in the April shooting death of an Iraqi man in Hamdania.

Lt. Col. John Baker, the lead prosecutor, said he would not seek capital punishment against Marine Lance Cpl. Jerry Shumate Jr., 21, of Matlock, Washington.

But Baker, during a brief closing statement at the end of an hour-long preliminary hearing at Camp Pendleton in southern California, told the investigating officer that there is ''probable cause'' to send the case to a trial.

Shumate, a rifleman with an infantry battalion based at Camp Pendleton, is charged with premeditated murder, conspiracy, larceny, assault, housebreaking, kidnapping and obstruction of justice.

The Marine Corps has charged him along with six other Marines and a sailor in the April 26 shooting death of Hashim Ibrahim Awad in Hamdania, a town west of Baghdad.

The eight are accused of dragging the 52-year-old Iraqi from his home, shooting him and putting an assault rifle and a shovel next to his body to create the appearance that he was an insurgent planting a roadside bomb.

Today, the government called three witnesses, all special agents with the Naval Criminal Investigative Service, one of whom said Shumate broke down during his questioning.

''He was crying,'' Kelly Garbo, a 25-year-old special agent, said of a two-hour May 11 interview in Iraq. ''I told him that other members of the squad had been honest and truthful and they told the real story of what happened that night, that there was indeed a kidnapping, there was a murder.'' A key part of the government's evidence against Shumate are two statements the Marine made to investigators in May in Iraq.

Col Robert Chester, the investigating officer in the case, refused a request by Shumate's defense attorneys to close the hearing in an attempt to lessen publicity in the case, which has garnered international interest.

''I think that the public has a very important right to be here,'' Chester said.

Shumate and seven other members of his squad have been confined to the Camp Pendleton prison since May 24.

On August 30, US military prosecutors said they would not seek the death penalty for another of the of eight servicemen, Pfc. John Jodka, 20, but did not indicate what penalty they would seek against Cpl. Marshall Magincalda, whose hearing was also held that day.

Preliminary hearings for the remaining five men are scheduled for September 25 and October 18.

Their senior commander, Lt Gen James Mattis, will eventually decide whether any of them should face any punishment or charges at a general court-martial. Under military law, the most serious charge of premeditated murder could carry a sentence of death.

REUTERS VJ RAI0351