CAMP PENDLETON — Pfc. John J. Jodka III may face a court martial for allegedly shooting an Iraqi man, and he may face time in military prison — but even if convicted it appears he will not be put to death.

In a surprise announcement at the military equivalent of his preliminary hearing, prosecutors said Wednesday that they will not seek the death penalty in the murder case against the 20-year-old U.S. Marine.

“It is our position that a capital referral is inappropriate,” said prosecutor Lt. Col. John Baker.

Jodka is the youngest and lowest-ranking of seven Marines and a Navy corpsman charged with murdering Hashim Ibrahim Awad, 52, in the town of Hamdania, Iraq. But Jodka is among those alleged to have actually fired on Awad.

A Marine general will decide whether to accept the prosecutors’ recommendation, and it was unclear how their position on the death penalty issue in Jodka’s case would affect the other defendants.

Iraqi witnesses told the military that Marines and a sailor kidnapped Awad on April 26, bound his feet, dragged him from his home and shot him in a roadside hole. Prosecutors allege an AK-47 was planted on Awad’s body to make him appear to be an insurgent.

The so-called Article 32 hearing for Jodka and a separate hearing for another Marine, Cpl. Marshall Magincalda, 23, of Manteca, were part of the process to determine whether the defendants should face courts martial.

The investigating officer presiding at each hearing will decide if there is probable cause to recommend a court martial and submit a report to a commanding officer who will issue a final decision.

Jodka’s investigating officer, Ret. Col. Paul Pugliese, adjourned the inquiry after both sides agreed to have him consider only documentary and videotape evidence and not to call witnesses.

Both sides sparred during the session over how much evidence could be discussed in public, with the defense seeking to keep a lid on statements made by the defendants.

Retired Col. Jane Siegel, one of Jodka’s lawyers, said disclosing the 16 statements during a highly publicized hearing would hurt jury selection for Jodka’s expected court martial.

“To openly discuss contents will completely pollute the local and national jury pool,” Siegel said. “Some of it is very inflammatory.”

Siegel noted that a media center had been set up on the base and that three-dozen journalists had asked to cover the proceedings.

Pugliese barred a closing argument by Baker, but allowed defense attorney Joseph Casas to speak at length on his contentions that there was insufficient to go forward with a court martial.

“Take the statements out of the picture and I submit to you the government has nothing,” Casas said.

He also said that there were problems concerning confrontation of the accused by his accusers.

Casas said the government has been unable to reach a number of the Iraqi witnesses and that without them there could be significant problems. He cited the recent U.S. Supreme Court decision in Crawford v. Washington which requires confrontation of the accusers in court.

Casas also said there was a lack of DNA evidence and that the autopsy report on the victim was inadequate because the body was so decomposed “you can’t tell if he was tied.”

“I don’t know if it’s possible for Private First Class Jodka to get a fair trial,” he said.

He accused the government of trying to “buy time” with the Article 32 hearing in hopes that a co-defendant will agree to testify against the others.

“Based on the loyalty of this Marine, he’s not

willing to give false evidence against co-defendants and neither are they,” Casas said.

He added, “What the government says happened didn’t happen.”

The defense attorney urged that the case be tossed out for lack of physical evidence to corroborate statements and because many of the statements would not be admissible at trial.

“At the end of the day all we have are unreliable, uncorroborated statements and no physical evidence,” Casas said. “We recommend that you dismiss the charges.”

Baker listed 35 pieces of evidence the prosecution was submitting to the investigating officer.

Among them were statements of Jodka and his co-defendants, sketches and maps drawn by co-defendant Lance Cpl. Robert B. Pennington and photos on which he had written something.

The prosecutor also submitted a letter written by co-defendant Lance Cpl. Tyler A. Jackson to his family. Baker asked Pugliese to focus on it. He also referred to a handwritten statement by co-defendant Sgt. Lawrence G. Hutchins III, who was in charge of the men.

Jodka, in desert fatigues, watched the proceeding calmly. Asked at one point if he wanted to make a statement, he said firmly, “No, sir.”

The separate hearing for Magincalda lasted only 30 minutes.

Investigating officer Col. Robert S. Chester informed Magincalda of his rights. Asked if he understood, the nervous Magincalda said, “Yes sir.”

Chester turned down a defense request for a closed hearing, saying the public has a “very compelling right to hear these proceedings and have them open to the public.”

The prosecution presented a thick packet of documentary evidence. Chester said he would tell prosecutors by Friday if he had questions about the evidence.

Prosecutor Capt. Nicholas L. Gannon urged Chester to focus particular attention on statements by three members of the squad, including an alleged confession by Hutchins.

Defense attorney Joseph Low said he would contest the evidence.

The defendants are members of the 3rd Battalion, 5th Marine Regiment. More hearings are expected in coming weeks.