Sgt. John Winnick

CAMP PENDLETON – The officer who presided over a fact-finding hearing for Marine Sgt. John Winnick has recommended that he not be tried for shooting to death two men and seriously injuring at least one other last year in Iraq.

Winnick, a San Diego native who is stationed at Camp Pendleton, said during the hearing that he had to protect his sniper team from men thought to be planting a roadside bomb. The incident took place June 17 near Lake Tharthar in western Iraq.

Prosecutors accuse Winnick of violating the military's rules of engagement by using lethal force before confirming who the men were and assessing whether they presented a real threat to him.

Capt. Jeffrey King, who presided over the fact-finding hearing – called an Article 32 hearing – issued his recommendation in a July 7 report to Lt. Gen. Samuel Helland, who has final say on whether Winnick will be court-martialed. Helland has not announced his decision.

In May, the government charged Winnick with voluntary manslaughter, aggravated assault and failure to obey orders or regulations. If tried and convicted, he could be imprisoned for 40 years and receive a dishonorable discharge.

“We're pleased with (King's) recommendation after carefully reviewing all of the evidence,” said Daniel Conway, an attorney for Winnick. “Our Marines deserve the benefit of the doubt when they make good-faith decisions to use force in self-defense during combat. Sgt. Winnick is a stand-up Marine and he's eager to get back to work.”

Winnick belongs to the 3rd Battalion, 1st Marine Regiment. He was on his fourth Iraq war deployment when the shootings took place.

On that day, Winnick led a team of snipers in monitoring an area where insurgents had increasingly planted improvised explosive devices.

They saw a car stop and a man getting out and doing something with the ground before departing, witnesses said during the Article 32 hearing. A bit later, another vehicle stopped on the side of the road opposite from where the first car had parked, the witnesses testified.

After the second vehicle left, a semi-trailer truck stopped in the same vicinity. A man came out and appeared to take a satchel from the vehicle.

Winnick opened fire on four men in and around the semi-trailer because he knows from experience when someone is trying to plant a roadside bomb, he said.

One man died instantly. Winnick fired more bullets into another man as he crawled toward what witnesses in the hearing said was a cell phone, which is commonly used to detonate roadside bombs.

A cursory search of the shooting scene yielded no bomb-making materials or weapons. The Marines did not inspect the trailer, which one witness said contained what appeared to be two-liter bottles of soda.