By Mollie Miller

Killeen Daily Herald

FORT HOOD A 4th Infantry Division company commander, who may soon face charges alleging he gave an illegal order that resulted in the death of an Iraqi detainee, will not be given immunity if he testifies during another division soldiers trial, a military judge ruled Monday.

Staff Sgt. Shane Werst will have to do without the testimony of Capt. Matthew Cunningham, as the captains attorneys have said he will invoke his right against self-incrimination if he is called to testify without immunity.

Wersts civilian attorney, David Sheldon, said Cunninghams testimony would show that the death of Iraqi detainee Naser Ismail involved no premeditation and is vital to their defense case.

Military judge Col. Theodore Dixon disagreed during the pretrial hearing, saying he is not convinced Cunninghams testimony is material to the proceeding.

Werst, 32, has been charged with murder and obstruction of justice in connection with a Jan. 3, 2004, incident during which Ismail was killed while Wersts unit conducted house-to-house searches in Balad, Iraq.

Werst, who was a member of the divisions 3rd Brigade Combat team at the time of the incident, has said Ismail fired a gun at him and Werst returned fire in self-defense.

Other witness testimony indicates the Iraqi was never armed and was killed because his name was on a list of suspects who may have been involved in a mortar attack that lead to the Jan. 2, 2004, death of Capt. Eric Paliwoda.

Testimony from witnesses and previous trials have indicated that Cunningham said the individuals noted on the list, including Ismail, were not to come back alive.

Also on Monday, Dixon denied the defenses motion to credit Werst for time served if convicted on the basis of unlawful pretrial restraint. Sheldon requested Werst be credited with 522 days served because, since he was released from custody Nov. 30, 2004, he has been confined to Fort Hood and only allowed to leave the post three times.

Dixon agreed to credit Werst with 14 days served for the time he spent in custody in late November.

Last month, Werst turned down a plea agreement and instead pleaded not guilty to murder and obstruction of justice charges. His trial is scheduled to begin May 23 at Fort Hood. Werst has elected to be tried by a military jury of his peers.

If convicted of both offenses, Werst will face a maximum punishment of life imprisonment without the chance of parole, reduction in rank to E-1, forfeiture of all pay and allowances, and dishonorable discharge.

Contact Mollie Miller at

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