Camp Pendleton Marine Sgt. Lawrence Hutchins III will serve the remaining five years of his 11-year sentence, his defense lawyer, Babu Kaza, said Tuesday after the U.S. Court of Appeals for the Armed Forces denied his appeal to reconsider its decision.
Marine Corps officials did not immediately respond to a request for comment about the case.
Hutchins was released eight months ago after a lower military court overturned his conviction for the death of a 52-year-old Iraqi man, ruling his 2007 trial was unfair because his lead defense lawyer quit shortly before it began.
The Court of Appeals for the Armed Forces overruled that decision last month, saying the problem was not grave enough to throw out the conviction.
The lower court's ruling had been considered a major blow to the military's prosecution of U.S. troops accused of killing unarmed Iraqis.
Prosecutors say Hutchins led a squad of six Marines and a Navy corpsman who dragged retired Iraqi policeman Hashim Ibrahim Awad from his home and killed him in the village of Hamdania in 2006.
Hutchins, 26, said he was not with his squad at the time. He said they told him they had killed an insurgent leader, and he did not learn the person was an unarmed Iraqi until after the investigation.
The Marine Corps told defense lawyers it was preparing to take Hutchins back to the brig after the high court denied his appeal, and Hutchins' commanding general rejected a request by Kaza to use his military authority to eliminate the sentence.
Kaza said Marine Corps officials initially said Hutchins would be returned Wednesday to jail but the timeline was later pushed back to the end of the week.
Hutchins of Plymouth, Mass., has been working at California's Camp Pendleton base, north of San Diego, where he has excelled as an active-duty sergeant since his release, Kaza said. Hutchins has a 6-year-old daughter and wife, who told him last weekend that she is six weeks pregnant.
"This Marine and his family have suffered enough," Kaza said in an e-mail to The Associated Press.
Defense lawyers say the family was vilified publicly after Hutchins was portrayed as a cold-blooded killer.
Defense lawyers say the family was informed by the FBI in early 2010 that they were being targeted by Paul Rockwood Jr., an Alaska man who is serving eight years in prison on domestic terrorism charges for compiling a hit list of people he believed were enemies of Islam.
Hutchins spent nearly four years in prison before being released. The others in his squad served less than 18 months.
Kaza blamed his client's chain of command and a misguided mission that led Hutchins and the other Marines to believe they were going after an insurgent leader, and that by killing him they were protecting the Iraqi people.
A Navy Clemency and Parole Board in 2009 noted his sentence was unjustifiably severe compared to other war crime cases, but the board said it was likely due to his perceived lack of remorse at his trial.
Kaza said his client is deeply remorseful, but Hutchins was unable to express his thoughts to the new lawyer assigned to his case just before the court martial.
The Court of Appeals for the Armed Forces has sent the case back to the lower court to see if it can show that Hutchins' defense team was ineffective because the lead lawyer had stepped down.
If the court cannot prove that, Hutchins will serve the rest of his sentence, with credit for good behavior, Kaza said.
The lower court in its initial ruling said the judge should have considered denying the initial defense lawyer's request, given that he had worked on the case for three years and it was about to go to trial.
Lt. Col. Paul Hackett, a lawyer in the Marine Corps Reserve, said at the end of the day, Hutchins was the officer in charge.
"The whole thing is unfortunate. It's unfortunate for the Marine Corps, for the nation, and for different reasons it's unfortunate for Hutchins, but ultimately it was his responsibility," he said. "He was the senior man on deck."
Defense lawyers say they plan to seek help from the Navy Clemency and Parole Board next month.