Truly sad if true

12/14/2021

Jeff Schogol, The Marine Corps may have blown its case against special operators accused of killing a former Green Beret. Task & Purpose, December 14, 2021. Basically, the Deputy for the Judge Advocate Division is alleged to have committed UCI.

One of the Marine Corps’ top lawyers is being accused of interfering in the case of a Navy corpsman and two Marine Raiders who have been charged with the death of an American contractor after a 2019 altercation in Iraq.
. . .
“Colonel Shaw then directly squared his shoulders and chair towards me and he did not break eye contact with me for a significant period of time,” Thomas said in the affidavit. “During that time, Colonel Shaw specifically stated, ‘Captain Thomas I know who you are and what cases you are on and you are not protected.’ Colonel Shaw followed up by stating, ‘…the FitRep [fitness report] process may shield you, but you are not protected. Our community is small and there are promotion boards and the lawyer on the promotion board will know you.’ Colonel Shaw reiterated comments such as ‘shielded but not protected,’ multiple times.”
. . .
Shaw then went on to warn that defense attorneys who had represented the eight Marines accused of killing 24 Iraqi civilians in Haditha, Iraq, in November 2005 were not promoted. One of those attorneys was retired Lt. Col. Colby Vokey, who now also represents Gilmet along with Thomas.
Gilmet has lost trust in Thomas to serve as his defense counsel because of what Shaw said, Gilmet wrote in a separate affidavit.
. . .
“I no longer believe Capt. Thomas is able to provide legal representation without consciously or subconsciously being influenced by Col. Shaw’s comments about the possible impact that his continued representation would have on his career progression,” Gilmet wrote. “I have lost faith and confidence in the military justice system.”

The reporting appears to be based partly on affidavits and motions filed in court.

Phil Cave

19 Comments

Nathan Freeburg

12/14/2021 03:28:37 pm

With the size of the Marine Corps (and Coast Guard) Judge Advocate communities, this is an omnipresent risk (even if unsaid).

Lawyer

12/14/2021 08:02:03 pm

Who could blame Gilmet for losing faith and confidence in military justice after this?

We have to be asking the "Why?" here. What made this Colonel with likely 20+ years' experience as a judge advocate think it was okay to threaten an O-3 for zealously representing his client? Given how brazen this was, I have a hard time believing this was the only time this full bird has thrown his rank around like this -- or seen others do it in the USMC.

Just as we talk about fostering a "culture" of (insert good to be achieved) in other areas of life, it should be ingrained in every judge advocate from Day One of Justice School that you don't *ever* come within 100 miles of doing something like this.

I wonder what the consequences will be for this O-6? Sadly, probably full pension and early retirement.

Scott

12/15/2021 06:35:01 am

The alleged comments are disturbing. It sounds like, at this juncture, this is a pending motion. And the facts, as alleged, come from the defense filings / arguments. That said, it seems they have affidavits from at least three JAGs who were present during the meeting where the comments were made.

It will certainly be interesting to see how this plays out.

Zealous Defender

12/15/2021 11:09:27 am

Sounds like the saying I have heard in the Army to defense counsel: "Remember you are going to have to come back to the mothership." That was always billed as being about being cordial and professional, but not always taken that way by the ones on the receiving end of the comment.

Brenner Fissell

12/15/2021 11:18:23 am

This case shows the major tension in the system. We will undoubtedly hear about the “mortal enemy” of military justice at the next CAAF hearing. But what is actually being done to change the intangible culture the other person referenced? I would give up on changing it. Civilian FPDs could replace uniformed defense counsel, but with uniformed prosecutors and judges. Would be a nice retirement job for people. Obviates all the independence issues.

Former TC

12/15/2021 11:55:57 am

It will definitely be interesting to see how this plays out and what the context is. Like you, I've heard similar things said and have usually interpreted it to mean don't play dirty tricks (e.g., filing late motions you know the MJ will accept because they don't want to create error) that give you a reputation for bending the rules.

Anon

12/15/2021 09:50:29 pm

I agree that back in the day this meant “no dirty pool” but that is now taken to be “the big G will get you.” T

12/15/2021 12:17:36 pm

Brenner,

Getting rid of military defense counsel is a *terrible* idea on many levels.

Ask any civilian defense counsel if they'd like to have a uniformed defense counsel present at counsel's table in front of the members. It adds a strong layer of credibility to the defense to have an O-3+ making an argument or questioning witnesses in military court rather than a civilian with slicked back hair.

Or how about interviewing witnesses on ships or even convincing senior members of the military (possible key witnesses on motions, trial, sentencing) to speak with you. Good luck.

There's a common bond that members of the military generally share. The type of bond that can convince a Major to persuade a General to give his client a more lenient PTA. Conversely, there is an inherent lack of trust toward civilian defense counsel. Any experienced military justice practitioner will tell you this.

Now, I'm not saying that there are not very good civilian defense counsel out there who do an even *better* job than military defense counsel. Of course there are.

But it was wise to have uniformed members represent uniformed members. I'll leave it at that.

Paul LeBlanc

12/15/2021 03:50:43 pm

Ahem, I do not have slicked backed hair.

Sua Sponte

12/15/2021 04:48:14 pm

If military defense counsels are to represent the accused, then they should come from a different branch. An Air Force ADC/SDC could give a shit what the Deputy Director of the Marine Corps JAGs thinks of their career vectors.

I happen to have sent the link to this article to Colonel Shaw via LinkedIn and told him that I foresee a forced retirement in his future.

DON CHRISTENSEN

12/15/2021 06:33:18 pm

That is an unfair assessment of civilian defense counsel. In the 30 years I have been doing this, I have not witnessed an inability of civilian defense counsel to zealously and effectively advocate for their clients. Civilian defense counsel have successfully represented accused in Art 32s and court-martial in Iraq and Afghanistan, including during the height of the wars. I have seen them negotiate great deals for their clients. Having presided over courts as a judge with civilian counsel, I never perceived the members viewed civilians with disdain. And almost all are former JAGs who understand the culture and how to deal with military members. Rich Stevens and I probably agree on close to zero, but I did a case against him where the Article 32 occurred in Qatar. The evidence he produced and the witnesses he uncovered, certainly led me to believe that even in the AOR he had access to witnesses and evidence.

There are good and bad civilian counsel just like there are good and bad military defense counsel, and both military and civilian counsel will have discovery frustrations. But I have not seen a bias against civilians that hurts an accused or closes doors to success. Chief Gallagher was represented by civilians for a crime that occurred in a combat zone and involved classified evidence and that seemed to work out very well for him

12/15/2021 07:00:18 pm

Civilian defensive counsel, as of recently, can be successful (e.g., Gallagher's) due to them being able to use the media to their advantage, whereas the military's public affairs will respond with either "no comment" or some generic statement. In Gallagher's case it also helped by going to media since his team was able to get the attention of the POTUS/CINC.

12/15/2021 07:08:16 pm

Don,

I am not turning this into a "who is better? civilian DC or military DC" as that was not my purpose. As I said, some civilian DCs are great. I was responding to Brenner's suggestion that we should get rid of military DC.

As an aside, I was not suggesting that members viewed CDCs with "disdain." It's more that they are viewed as "lawyers" and not *also* officers. There's definitely something lost if they are removed from the process as I suspect nearly all CDCs would admit.

12/15/2021 07:38:41 pm

That's great to hear, Lawyer. The best route to justice is zealous
and competent advocacy by both sides presided over by experienced judges guided by a deep understanding of the law. Benner has an interesting suggestion and so does Sua Sponte. Advocacy tempered by fear of reprisal is not good and is a serious issue that needs to be addressed. What that looks like needs to be determined.

12/15/2021 12:44:09 pm

Brenner, I’d be concerned about the optics for the panel if there is no one uniformed on the defense side other than the accused. The attitude of senior leadership probably makes the biggest difference in obviating the issue, which is highly contingent.

12/15/2021 09:48:21 pm

Civ DC will always want military DC on the case to do grunt and junk work they don’t want to. It’s free labor. Sometimes they appear to be a great team. Other times you can tell the mil DC has been sidelined. Many times you can tell that the accused’s only hope is the more prepared mil DC.

Burt

12/15/2021 09:52:31 pm

Sua sponte, interesting argument as to cross service DC. Not sure how the grunt feels about their Coast Guard DC who doesn’t know their service culture.

Donald G Rehkopf, Jr.

12/16/2021 11:13:39 am

Burt, don't misinterpret my comments. "Back in the day" when TC and DC actually tried numerous contested cases a month, there was a dynamic IMC process that worked as Congress originally intended it to work. If PVT Snuffy thought the Big Green Machine was going to roll over him and his TDS lawyer, one made an IMC request for a DC from another Service, something that originally was liberally granted.

Snuffy, in my experience was always happy to have another perspective, one that at least gave the appearance of independence and fairness. But, as to your concerns, it was incumbent upon counsel to familiarize themselves with the "climate and culture" of the Sister Service one was appearing in. As an AF ADC, I remember sitting down with my Navy co-counsel on the "customs" of being an officer going on-board a ship, starting with the flag salute. When I was a SDC in Korea, the Army TDS office was at the other end of the hall where my office was at, so we frequently were "co-counsel," especially in bar fights where the purported victim(s) were Army and my client/accused was AF. And, the first Coastie I defended had a Navy JAG as detailed DC since the CG simply didn't have enough DC's where e.g., there was a multi-defendant drug bust.

And, it's also where we learned that the "Uniform" Code of MJ was hardly "uniform" and had to adapt - sometimes for the better; sometimes for worse.

Philip D. Cave link

12/16/2021 12:44:08 pm

1. Let's get off the age old who is better, that is not helpful to the discussion. There is something more fundamental here.

2. For the accused in the case the alleged statements could be consequential. If proven by a preponderance there are consequences for the progress of the case. And, for all the other USMC cases on the docket or which might reach it.

3. Just as importantly there are consequences for the credibility and perception of a fair military justice system across the services.

4. The allegations create a significant problem for leadership up to NTJAG--the ultimate supervisor of the colonel's 27(b) certification and ultimate supervisor as a lawyer.

5. While knowledge of the truth of allegations will have to wait for more facts, the public perception of military justice can't. The quandary is what to do and what to say and when. To some extent leaders are in a box waiting for conclusion of the litigation. At the same time there are quite a few other Marine Corps courts-martial on the docket.

5. This to me is what is up for discussion. How does leadership thread the needle between interfering with an ongoing proceeding and addressing what could be a systemic problem affecting all pending and future cases. The truth may become irrelevant.

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CAAFlog

Truly sad if true

Phil Cave

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