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Commandant's actions in scout sniper cases eyed by sex assault defense attorneys

Aug. 4, 2013 - 06:00AM   |  
Sgt. Robert Richards
Sgt. Robert Richards (Don Bryan / The (Jacksonville, N.C.) Daily News)
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Capt. James Clement (File)

The Marine Corps commandant’s controversial handling of legal cases tied to the infamous video of scout snipers urinating on Taliban corpses has caught the eye of attorneys involved in another hot-button issue for the military: sexual assault.

Mounting evidence that Gen. Jim Amos and some of his top legal advisers may have deliberately sought to sway the outcome of the war-zone video cases — which would constitute actual unlawful command influence — could be used by attorneys in an attempt to get military courts to take another look at unrelated sexual assault convictions the Corps has secured, said attorneys tracking the issue.

Amos last year cited both the urination video and sexual assaults as embarrassing examples of misbehavior during his “Heritage Brief” tour of Marine bases and stations around the world. He condemned immoral actions by Marines and pressed for aggressive responses when they were discovered.

That tough talk on sexual assault cases led military judges in at least four cases within the past year to rule that the commandant exerted apparent unlawful command influence, according to an active-duty military lawyer involved in some of those cases. The judges determined that Amos’ words potentially violated defendants’ legal rights by tainting jury pools and ensuring convictions before their cases played out in court.

The judges, however, did not find that Amos committed actual unlawful command influence, a more serious finding that could have led to the cases’ dismissal. They prescribed a variety of remedies to counter the damage — the possibility that the commandant’s statements influenced prospective jurors.

For example, judges allowed defendants’ attorneys to question jurors at length and dismiss those seen as potentially biased.

It’s not immediately clear how many more cases have been found to have included unlawful command influence. At least 80 motions have been filed in cases of alleged sexual assault claiming the commandant exerted unlawful command influence since the “Heritage Brief” tour, according to a Marine official with knowledge of the cases.

The war-zone video cases may add another dimension to the legal quagmire, however. In a pending complaint lodged with the Defense Department Inspector General’s Office, the commandant and four of his top legal advisers are accused of deliberately seeking to influence the scout sniper cases, a more serious breach of military justice.

The cases stem from an incident in which four scout snipers with 3rd Battalion, 2nd Marines, out of Camp Lejeune, N.C., urinated on dead insurgents in Musa Qala, Afghanistan, in 2011. A video of the event was posted online in January 2012, prompting an international uproar and a lengthy Marine Corps investigation. Eight Marines faced disciplinary action in those cases, two of whom have cases that are still unresolved.

The IG complaint was filed this spring by Maj. James Weirick, a staff judge advocate assigned to Marine Corps Combat Development Command, out of Quantico, Va. He accused the commandant, or others acting on his behalf, of manipulating the legal process to stack the deck against the Marines implicated in the incident and the video’s production. Weirick also alleges that actions were taken to cover up those decisions.

The legal advisers named are Maj. Gen. Vaughn Ary, the staff judge advocate to the commandant; Col. Joseph Bowe; and civilians Robert Hogue and Peter Delorier.

Among the accusations in the complaint, Weirick says the commandant swapped convening authorities in February 2012 in the urination video cases because he was not satisfied with the punishment that Lt. Gen. Thomas Waldhauser, then the commanding general of Marine Corps Forces Central Command, told Amos he was considering. Waldhauser now serves as the senior military assistant to Defense Secretary Chuck Hagel, and was nominated recently to become director for operations plans and joint force development with the Joint Staff.

A signed statement by Waldhauser — filed July 23 as part of a legal motion to dismiss the case against Marine Capt. James Clement, who faces charges because he was in the chain of command — appears to corroborate defense attorneys’ claims of actual unlawful command influence.

Waldhauser said in the statement that he and Amos met to discuss the cases and their expected outcomes. The commandant said he wanted the Marines involved “crushed,” and asked Waldhauser if he would take steps to toss the personnel involved out of the Corps, Waldhauser says. When Waldhauser declined, Amos threatened to remove him from the case.

A few days later, he directed his assistant commandant at the time, Gen. Joseph Dunford, to do just that, Waldhauser says. Amos named Lt. Gen. Richard Mills, deputy commandant for combat development and integration, as the replacement.

Amos addressed his decision to strip Waldhauser of the power to prosecute the cases in a Feb. 10, 2012, memorandum to the three-star general. In it, the commandant acknowledges some of his comments to Waldhauser had crossed the line. Rather than let him see the cases through, however, Amos says in the memo that he is removing Waldhauser as the consolidated disposition authority “to protect the institutional integrity of the military justice process, and to avoid any potential issues.”

Marine officials contend that Amos took immediate action to install a new convening authority to ensure the individual with the job had independent and unfettered discretion to take action in the cases.

“There was never any intent to manipulate the courts-martial system to undermine the rights of any Marine involved,” said Col. Sean Gibson, a Marine spokesman. “The rights of the accused in these cases have been protected throughout every step of the military justice process.”

Defining unlawful influence

The memo and Waldhauser’s signed statement, enclosed in Clement’s motion for dismissal, caught the attention of Brian Bouffard, a defense attorney who last year represented Staff Sgt. Tarrell Jiles as he faced sexual assault charges at Quantico, Va. A trumpeter and Marine band member, Jiles was accused of sexually harassing and touching numerous male Marines inappropriately.

Col. Daniel Daugherty, the chief judge for the Navy-Marine Trial Judiciary, ruled in Jiles’ favor that the commandant’s fiery speeches raised the appearance of unlawful command influence, but said the issue could be resolved with remedies such as giving defense attorneys additional opportunities to question prospective jurists. That did not inspire confidence in the defense counsel before going into a potential general court-martial, which is comparable to felony criminal trials in the civilian world, Bouffard said.

Instead, Jiles’ counsel reached a pretrial agreement with the Corps. The sexual assault charges were dropped, but he pleaded guilty to four specifications of violating a lawful order and five specifications of simple assault. The case was moved to summary court-martial, which typically levies lesser punishments.

Jiles received a bad-conduct discharge, a reduction in rank to private and a suspended 100-day sentence in the brig, but did not have to register as a sex offender, Bouffard said.

Before the pretrial agreement was reached, Jiles’ defense team successfully lobbied the court to require Amos to respond to written questions, known as interrogatories, to examine his motivation and intentions for delivering the Heritage Brief.

In a six-page response dated July 31, 2012, Amos said he had not been aware of Jiles’ case while delivering his speeches, and wanted to appeal to “the fundamental goodness residing in each Marine that becomes a part of their life at Boot Camp, or at Quantico for Officers.

“In the brief, I used a few limited historical examples found in the public domain to frame the context — illustrating that certain activities are not only illegal, but are just plain inconsistent with WHO WE ARE as a Corps,” Amos said of his Heritage Briefs. “At no time did I directly or indirectly intend to dictate any course of action in any particular case or type of cases. Based on my interaction with the audiences, I don’t believe they misunderstood me or erroneously concluded that I was directing them to hold any particular point of view about these issues.”

Jiles’ team now argues that Amos’ contention that he never directly intended to affect “any particular case or type of cases” is false. In a new motion filed with the Navy-Marine Corps Court of Criminal Appeals on July 31, they say that Jiles’ legal rights were violated because the Corps did not turn over the memo from Amos to Waldhauser, even though the two generals were discussing only the urination video cases at the time.

“The commandant of the United States Marine Corps (CMC) has already been found to have committed apparent unlawful command influence (UCI),” says the motion, filed by an another lawyer for Jiles, Navy Lt. Jared Hernandez. “Given these documents, we now know that he also willfully made a false statement under oath. By doing so, he has denied SSgt Jiles his constitutional right to a fair trail by failing to disclose recent and relevant instances of apparent/actual UCI.”

Bouffard said he assumes the motion will likely be the first of many “in the hopper” for Marines who faced charges without knowing about the commandant’s alleged unlawful command influence in the scout sniper cases. He questioned how Amos and his legal advisers made their decisions.

“He either ignored [his lawyers], or they gave him bad advice,” Bouffard said. “I don’t know.”

Phil Cave, a defense attorney who frequently handles military justice cases, said he doesn’t have any clients in similar circumstances, but would consider pursuing an unlawful command influence defense if he did.

“Suddenly, if people have a case or had a case that was ongoing when [Amos] made those statements, the issue of UCI is not necessarily waived,” Cave said. “You can pursue the issue on appeal.”

Gibson, the Marine spokesman, declined to comment on Jiles’ case or any connection his defense team drew from it to the urination video cases. The convening authority for Jiles’ case was Col. David Maxwell, the commander of Marine Corps Base Quantico. A spokesman for the base, 1st Lt. Jeanscott Dodd, also declined to comment.

Pending urination cases

The two cases that remain unresolved in the urination controversy appear to be heading down different tracks.

Clement, the executive officer of Kilo Company, 3/2, at the time the video was recorded, is headed to special court-martial in November after refusing nonjudicial punishment in the case this spring. He is accused of dereliction of duty and conducting unbecoming an officer and a gentleman for failing to stop the misconduct of junior Marines.

Clement maintains that he was not there when the video was recorded, and had no idea it occurred afterward.

Sgt. Robert Richards, a scout sniper team leader allegedly directly involved in the video, accepted a pretrial agreement with the Marine Corps, and will go to summary court-martial Aug. 7 at Camp Lejeune, N.C. The deal could result in Richards being reduced a rank and receiving other penalties, but he will avoid a bad-conduct discharge that would take away the medical retirement for which he had been approved.

Neither Marine’s defense counsel received a copy of Amos’ memo to Waldhauser until late June, after they approached the three-star general to get his side of the story. It was released afterward “as part of the discovery process,” said Gibson, the Marine spokesman.

But legal experts say the Corps had an obligation to produce the memo months ago as part of its legal filings in each of the urination cases. Clement’s motion to dismiss his case alleges that requests for evidence like the memo went unanswered, and that Mills’ team was ordered not to speak to Waldhauser’s team.

The fact that Amos’ memo was not provided to the other Marines who faced charges in the urination video incident may yield more litigation. Majs. Adam King and Tracey Holtshirley, the attorneys for Sgts. Joseph Chamblin and Edward Deptola, respectively, said they are closely tracking what is occurring in the ongoing cases.

Both Marines were scout snipers in the unit, and faced special courts-martial. They reached pretrial agreements in which they were busted down a rank from staff sergeant; Chamblin also was ordered to pay a fine. They have two years from the time of receiving their final punishments to petition for a new trial based on evidence that surfaced after their own trial concluded.

“It is a very interesting set of circumstances that are surfacing,” Holtshirley told Marine Corps Times. “Much of the data we had, and it was factored into our pretrial processing. Some of the recent revelations relating to the commandant’s interaction gives us pause, but we have to maintain a watchful posture for now.”

Four other Marines who accepted nonjudicial punishment for their roles in the incident will have to go a different route, said a Marine official with knowledge of the process. They would have to petition the Board for Correction for Naval Records to have their punishments altered.

Richards, meanwhile, decided it wasn’t worth the wait — or risk — to take his case to trial. A veteran of three combat deployments to Helmand province, he sustained major injuries in Marjah, Afghanistan, in March 2010, when an improvised explosive device peppered him with shrapnel in the neck, groin, legs and left arm.

He recovered enough to deploy again, the assignment on which the video was recorded. He was identified as 100 percent disabled by a medical board late in 2012, and cleared for medical retirement.

Richards’ wife, Raechel, told Marine Corps Times that they chose the summary court-martial because they are ready to “close this chapter and move on with our lives.”

“We’d rather take the guarantee of preserving his medical benefits than risking it all just to clear his name,” she said. “We feel as if dragging this out any longer will just put the Marine Corps in a bad light, and we’d like to prevent that.”

Before the video was posted, Richards was widely praised by battalion leaders for his bravery and ingenuity while leading a scout sniper team, according to military documents obtained by Marine Corps Times. He was charged in January with dereliction of duty, violation of a lawful general order and conduct prejudicial to good order and discipline.

Following an Article 32 hearing March 19, the scout sniper was recommended for a special court-martial, a more serious legal proceeding that can result in forfeiture of two-thirds of basic pay per month for one year, up to one year of confinement and a bad-conduct discharge.

“We’ve had a dark cloud over us for almost 19 months of our lives,” she said. “It has caused immense stress and strain on both of us, in addition to the stress already caused from returning from a combat zone. I am so proud of my husband and his accomplishments, and I never wanted this mess to overshadow his heroism and sacrifice.”

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