More on UCI Issues Re: Marine Colonel Shaw

2/12/2022

(Update 11022022) Here is a copy of the MJ's ruling.

Task & Purpose is reporting that the military judge has dismissed the charges with prejudice. The government is likely considering their options.

Colonel’s ‘threatening’ comments cast doubt on fair trial, claim Raiders, corpsman charged with manslaughter

"'It’s one of the biggest whitewashes I have ever seen,' said Colby Vokey, Gilmet’s civilian attorney."

37 Comments

Slilock

1/26/2022 09:41:25 pm

Do senior JAGs live by a "rules for thee, not for me" mentality?

Scott

2/10/2022 09:38:03 am

Presumably the government will challenge the MJ's ruling via Article 62 appeal.

Then another case to add to the line of, inter alia, U.S. v. Slayer (UCI when GOV conspired to disqualify defense-friendly MJ), U.S. v. Boyce (UCI when LTC Franklin was removed after taking actions favorable to the defense), and U.S. v. Barry (UCI when DJAG advised/threatened CA not to grant clemency).

The defense, this time having won at trial, will have the advantage of the more favorable standard of review under Article 62.

The government, however, will have the advantage of the new Article 37(c) ("No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused."). Just another of the long, long string of rules inserted into the MJ system in recent years to make it easier to obtain convictions and harder to challenge them on appeal.

Article 37(c) may not matter, however, as there appears to be evidence of actual prejudice on the facts of this case.

A Guy

2/10/2022 04:06:39 pm

@Scott: How is Article 37(c) any different than Article 59(a) which has been in effect forever?

Scott

2/11/2022 07:31:28 am

That argument was essentially Judge Ryan’s dissent in Boyce.

Tami a/k/a Princess Leia

2/12/2022 07:37:37 pm

IF the Government is smart, they'll just live with this ruling and move on. Appealing this decision will result in dirtier laundry being aired to the public.

William Cassara

2/10/2022 12:44:01 pm

Hypothetical scenario: A Regional Defense Counsel, addressing his own counsel, tells them "I know you are all told that being a DC won't impact you negatively, but in reality it will. So tread softly when defending service members." To many of us, that is a truthful statement. Is it UCI? Can the DC commit UCI in this scenario? I don't know the answer.

Donald G Rehkopf, Jr.

2/11/2022 10:46:17 am

Bill, While the truth may be a defense, a responsible supervisor would tell them the truth, i.e., "in reality it will." However, as to the advice to "tread softly," I personally have a problem with that - especially where young JAGs are put into defense billets who do not want to be there in the first place. They are certainly the ones who in fact will tread lightly. In the end, I think that this is an ethical issue, which here appears to have been handled correctly by the JAGs concerned, but their State Bars' ethical rulings/advice would have been a most valuable addition to the MJ's written decision here.

Philip D. Cave link

2/11/2022 11:00:54 am

Don, VA has a call in service for oral advice. There is no written opinion issued. Perhaps that happened here. Although I agree it would be nice to know what State bars think of the military assignment of counsel relationships.

Tami a/k/a Princess Leia

2/13/2022 07:13:33 pm

I would say there are "understood" realities, and then there are realities that are stated "on the record" (regardless of whether the statements are intended to be "on the record." Also depends on whether there are people who care. Back in my days, there were statements made by senior leadership that openly acknowledged being a defense counsel for "too long," or being "too good," were detrimental to a career in the JAG Corps. But at the time, it didn't matter because even those who didn't get promoted had the experience to have successful careers on the outside. I suspect things have changed since then.

Army DC

2/10/2022 01:32:59 pm

This never happens in the Army.

Guile

2/14/2022 11:37:46 am

This does happen often, but it mostly other CPTs and MAJs venting frustrations at Army DCs getting the better of them in court, and NOT a COL with real power to threaten an adverse assignment.

Also, will be hard to defend on appeal reading the MJs ruling.

Key excerpt.

Further, Col Shaw’s statements provided to this Court by
the government were internally inconsistent, self-serving and directly contradicted by multiple officers. Compounded by these multiple inconsistent submissions, Col Shaw indicated he would
invoke his Article 31(b) rights if he were called during this pending litigation.48 As such, Col Shaw was never called as a witness.

Nathan Freeburg

2/10/2022 05:27:24 pm

Unless you adopt a federal public defender structure it’s always going to be a concern.

Problem is exacerbated in the MC because of size and the whole going back and forth from being line officers thing.

Navy Guy

2/10/2022 11:28:57 pm

The Navy does a great job with defense counsel, it’s really independent. Would be interested here from other services.

Anon

2/11/2022 11:35:33 am

Navy DC in Norfolk filed UCI claim stating that their own CO committed UCI in training by referencing what he considered frivolous motions and requesting counsel be more civil with opposing parties. Took about half a second for DC’s to drop the UCI motion claiming they felt chilled by their own CO, who was a career SJA. Motion denied in the end

Brenner Fissell

2/11/2022 02:41:35 pm

The government shouldn’t appeal this. While I understand no one wants someone to “get away with murder” (or manslaughter) perhaps there is federal jurisdiction for this conduct. Does anyone know?

A guy

2/11/2022 02:53:32 pm

@Brenner Fissel. Even if there was MEJA jurisdiction or something, how would this ruling not foreclose federal prosecution? It’s not a dual sovereign issue. Seems like the feds are bound as well.

Scott

2/11/2022 03:56:33 pm

@Brenner, I had the same thought. But would a subsequent fed prosecution be barred by the dismissal with prejudice?

Brenner Fissell

2/11/2022 04:53:57 pm

Excellent points.

Wow

2/12/2022 12:50:07 am

That’s crazy! That’s not bad advice, going to make for an awkward relaxed going forward.

Tami a/k/a Princess Leia

2/15/2022 12:18:44 pm

@Brenner, federal court is the same sovereign. A prosecution in federal district court would be dismissed for double jeopardy.

James

2/11/2022 10:37:53 am

There is an underlying presumption here that I just don’t get. That is, why would senior leaders in any of the JAG components desire for a defense counsel to do anything other than zealously represent their client? When an officer is assigned to the defense function, that is their JOB. Senior leaders are responsible for the system as a whole, they are not super prosecutors. It would seem that the expectation would be for defense attorneys to do their jobs when assigned to that function. To say that what an officer does as defense counsel would “be remembered” for future assignments- seems to me that if they were zealous and effective advocates then THAT would be remembered.

Concerned Citizen

2/11/2022 11:20:03 am

When I was doing defense work a few years back, I had a few fellow O3s express to me that they were concerned about possible career ramifications, and definitely saw the government occasionally do some borderline stuff, though nothing that you could tie to a particular case like this.. Never heard anything from defense leadership though except go as hard/zealous as possible and pushing back on anything they saw as inappropriate behavior from the other side. Obviously this is anecdotal.

Mark H

2/22/2022 09:20:52 am

Funded law education program explains most unexplainable military law situations.

Donald G Rehkopf, Jr.

2/12/2022 02:49:11 pm

RE: James:
"There is an underlying presumption here that I just don’t get. That is, why would senior leaders in any of the JAG components desire for a defense counsel to do anything other than zealously represent their client?"

The simple answer is that those people equate "competency" with "convictions." Never mind what the Rules of Professional Conduct mandate [zealousness] or prohibit ["dirty pool" e.g., hiding Brady material, grossly improper arguments, etc.].

I was an AF DC twice in my career. The first time, I had a boss who understood our role in an adversarial system and repeatedly told us that if we got any flack to let him know and he'd cover us - which he did.

The second time as a SDC, was much different. My boss, a Lt Col was trying to make 0-6 and repeatedly "warned" us not to make waves (whatever that meant to him). At one point he called me and told me to "stop filing so many motions - the SJA's are complaining." I told him if a Judge thought so, s/he would no doubt tell me so in no uncertain terms and I didn't give a damn about those SJA's.

Back then, the AF had a rule that in order to get a PTA in a GCM, the TJAG (or DTJAG) had to personally authorize it. Needless to say, I had a PTA where the local SJA and GCM/CA agreed, but the then AF TJAG nixed the deal. The 3 star GCM provided an interesting Affidavit - first, he wondered why a 2 star JAG could override his decision to approve the PTA; second, he asked, where in the UCMJ's "referral" process does it mention any role for TJAG?

So I filed a motion to dismiss in the nature of an UCI motion, arguing just that. To the utter shock of probably 95% of the AF JAGC, the MJ granted the motion and dismissed the charges without prejudice, allowing the CA to use his "unfettered discretion" to decide (a) if he wanted to consider the TJAG's "opinion," and (b) what if anything he wanted to do with the case.

48 hours later, the original PTA was signed and sealed and implemented. Two weeks later, I got a letter from the JAG assignment's office, saying my guaranteed follow-on assignment was "cancelled," and that I would become [revert] to being a Claims Officer . . . . That message was loud and clear and clearly chilled some of the zealous advocacy of my fellow DC's.

I apologize for using anecdotal "evidence," but having been the "victim" of this myself, what happened to me 30+ years ago, has unfortunately not been cured.

Scott

2/14/2022 01:22:40 pm

@Donald

1: I’m sorry that happened to you. Obviously improper.

2: That sounds like an awesome motion.

Anon UCI

2/14/2022 03:51:59 pm

Some years ago there was a military judge who ruled that a retired TJAG had interfered in the case of US v Brandon Wright. The military judge was slated to go to the appellate court. The retired TJAG, Gen Harding, had written a note to the SAF that it was wise and important to bring the accused to DC from Italy to stand trial to prove that Sen Gillbrand's reform efforts were unnecessary. After issuing a ruling that this discovery opened the door to further discovery the new TJAG, Gen Burney shifted the judge's assignments to a glorified paralegal assignment on the military commissions. It was problematic to the military commission judiciary that the military judge had been deployed in an intelligence oversight capacity in GTMO and the military commission judiciary rightly determined that the judge could not be used in researching decisions for the commissions judges. This didn't matter to the TJAG who pushed the assignment anyways.

The defense caught on to the obvious retaliation by the TJAG and the TJAG returned the judge to the bench.

Even if the TJAG (Burney) had disagreed with the judge, there was no investigation into the former TJAG (and there should have been); and Burney was never questioned despite an IG complaint.

This was the essence of UCI - and frankly officers at HQ involved in that fiasco have risen through the ranks to go to NWC and even wear a star.

Most of the JAG leaders would not knowingly or willfully commit UCI. But when one does, there is a great chance that nothing will happen

Scott

2/14/2022 06:11:10 pm

I believe the gov has a 72 hour window to file a notice of appeal… do we know whether that has occurred?

Cloudesley Shovell

2/15/2022 06:38:22 pm

I may have mentioned to certain persons that I'd given up on commenting on CAAFlog. I changed my mind. One mustn't be too inflexible about certain things you know. End up wrecked on the Isles of Scilly.

I am unconvinced that dismissal *with prejudice* is an available remedy. Is there a statutory or rule that supports this remedy? Yes, I know, such a remedy has been imposed by CAAF, see eg US v. Barry. However, where does CAAF get that authority?

Bear with me. Dismissal with prejudice is as far as I can tell a remedy explicitly outlined in the RCM and MRE only for speedy trial and for gov't withholding of classified evidence. RCM 707, MRE 505. The phrase "with or without prejudice" appears nowhere else in the entire 2019 MCM. The phrase "with prejudice" appears only once, in RCM 707. Interestingly, RCM 104, the UCI rule, mostly just repeats statutory text and doesn't discuss remedies at all, which seems a little odd, doesn't it?

UCMJ Art. 36 requires that the President prescribe rules for courts-martial that insofar as practicable, mirror the principles of law and rules of evidence in federal district courts. So what's the analogue to UCI in federal criminal courts? I think it's change of venue. See 28 USC 1404(a). While CAAF may insist that UCI is the mortal enemy of military justice, is it ever incurable? I doubt it. Has there ever been a civilian criminal trial where charges were dismissed before trial with prejudice on the grounds that he couldn't get a fair trial *anywhere*? I don't think so. Even incredibly notorious persons such as Charles Manson, John Hinckley, and John Muhammed and Lee Malvo (DC snipers) were all tried and convicted. Gilmet? I'll bet almost nobody in the US military outside his command and those in legal circles has ever heard of him or his alleged offenses.

So, to sum up, I am unconvinced that dismissal with prejudice is an appropriate remedy at all. Dismissal sure, with direction that any persons and convening authorities involved on the gov't side must be completely separate from the original court-martial. The USMC could also go a long way (a lot farther than dismissing the case against Gilmert with prejudice) to restoring the public's view of military justice by very publicly drumming Col Shaw out of the USMC. This would both inform the public and serve to encourager les autres. Right now an outsider looking in sees someone perhaps getting away with manslaughter because some senior lawyer was an idiot, and also sees the idiot going unpunished. Hardly instills confidence in the military justice system, does it?

As for the idea that the military judge dismissing a case before trial, before jeopardy has attached, somehow precludes trial either in another untainted court-martial, or in federal court (assuming jurisdiction), well, that idea is just unsound, for the reasons already stated.

Kind regards,
CS

Brenner Fissell

2/15/2022 11:53:23 pm

A better analogue than change of venue is “outrageous government conduct.” There can be dismissals with prejudice for this. 524 F.3d 1073.

Old Guy

2/16/2022 08:37:54 pm

524 F.3d 1073 is a case about discovery violations by AUSA’s. The Court found that the AUSA’s acted flagrantly and willfully and in bad faith” as failing to turn over Giglio material and prior convictions. That’s a far cry from a non-TC who is no longer in a position to impact counsel’s careers. I’m not convinced that the current TC’s should be bounced as CS references, what have they done?

Cloudesley Shovell

2/18/2022 10:13:41 am

Prof. Fissell:

I will respectfully stick with my change of venue analogy. Something has happened that taints the proceeding; and said taint can be removed or otherwise cured by a change that preserves the rights of the accused while also preserving the power of the government to enforce the criminal law on behalf of the people (or, in this case, maintain good order and discipline in the military).

The better analogue to the case you cited, which involves discovery and Brady/Giglio violations, is MRE 505, one of the two places in the MCM where one can find mention of dismissals with prejudice, and which deals specifically with gov't refusal or failure to turn over evidence.

Bigger picture, as I see it, is that dismissing a case with prejudice is appropriate only when a constitutional right is violated that prevents a fair trial. As we are all aware, not all constitutional violations mandate dismissal either, 4th Amendment violations being the most obvious example. Speedy trial results in a dismissal with prejudice, but only when the constitutional right to speedy trial has been violated. Same with discovery violations--not every discovery violation results in a dismissal, or dismissal with prejudice, only those where the accused can't get a fair trial, as the court in Chapman, 573 F.3d 1073 et seq, went to some pains to explain. I should also note that the Chapman court discussed a federal district court's supervisory power, *as an Art III court* to dismiss with prejudice. One of my pet issues is that courts-martial are statutory Art. I courts, and as such military judges don't have similar supervisory powers. In that regard, I'm pleased to see that CAAF has, on jurisdiction and some other issues, retreated from CJ Effron's expansive "supervisory power" interpretation of CAAF's role.

Anyway, back to change of venue and UCI. Here, there was certainly taint to the process (pre-trial!!!), and I think the military judge acted quite correctly to dismiss the case. However, on the facts of the case, Gilbet has not been irrevocably denied the right to a fair trial, and the United States should therefore have the opportunity to move forward with fresh charges before an untainted court-martial, should it choose to do so.

Kind regards,
CS

Jason Grover

2/16/2022 12:04:00 pm

Admiral Shovell, I, for one, am very pleased to see you comment again.

Cloudesley Shovell

2/18/2022 09:44:25 am

Why thank you, sir. I'm not sure I'll make a habit of it, but certain issues do pique my interest.

Kind regards,
CS

Anonomous

2/16/2022 08:41:18 pm

Agreed 100%. It is rulings like this which are unsupported by the text that are going to destroy the UCMJ. The system is too defense friendly for justice…it’s why Congress and commanders are ready to give up.

It’s one thing when the defense friendly rules are imposed by democratically accountable officials like congress or the president. It’s ridiculous when unaccountable JAGs do it.

Any Mouse

2/17/2022 07:10:52 am

Can you elaborate? Congress passes the UMCJ. And the "rules" are imposed by the President. What "unaccountable JAG" (who are accountable) is imposing rules? Are you saying that a military judge, making a ruling, is somehow ridiculous?

Also, having a system that is a rubber stamp for convictions on charges that are referred to court-martial is exactly what would erode public confidence in the military justice system.

Poster

2/17/2022 02:26:02 pm

UCI has it's own punitive article. It's never been prosecuted; not that I know. Let's see that happen before confidence becomes unattainable the standard for judicial remedies.

Slilock

2/21/2022 12:24:40 pm

If that doesn't happy, why not file a complaint with his state bar? There needs to be accountability in the JAG Crops for this type of misconduct. Especially, when his statement didn't jive with evidence of his actions. In the non-legal world that's known as lying.

Your comment will be posted after it is approved.

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