The Navy-Marine Corps Court of Criminal Appeals has overturned a felony conviction against retired Marine Gunnery Sgts. Daniel Draher and Joshua Negron of the “MARSOC 3,” finding that a senior Marine lawyer had illegally interfered in the case.
Negron, Draher, and Chief Petty Officer Eric Gilmet, a Navy corpsman — whom supporters refer to collectively as the “MARSOC 3” — were deployed to Iraq with the 3rd Marine Raider Battalion when they got into a fight with former Green Beret Rick Anthony on Jan. 1, 2019 outside a bar in Erbil.
During the altercation, Negron punched Rodriguez, who fell to the ground. The three men took Rodriguez to his on-base quarters and a co-worker monitored him, but Rodriguez started having difficulty breathing. Gilmet began treating Rodriguez, Draher’s civilian attorney told Task & Purpose in December 2019. Rodriguez was taken to an on-base medical center and eventually medically evacuated to Germany, where he died on Jan. 4, 2019.
In February 2023, a military jury found Negron and Draher not guilty of involuntary manslaughter, negligent homicide, and dereliction of duty in connection with Rodriguez’s death, but jurors found the two men guilty of violating General Order No. 1 for drinking alcohol.
Although the jury decided not to punish Draher and Negron under the Uniform Code of Military Justice, their conviction had been considered a felony by states and the federal system, said civilian attorney Phillip Stackhouse, who represented both Negron and Draher for their appeal
“Gunnery Sergeants Draher and Negon appreciate the thoughtful opinion of the Navy-Marine Corps Court of Criminal Appeals,” Stackhouse told Task & Purpose. “Both look forward to correcting the conviction’s collateral damage on their service records and moving forward with their lives — with their legacy intact.”
Unlawful command influence
On Dec. 27, the court found that the deputy director of the Marine Corps Judge Advocate Division had committed unlawful command influence for his November 2021 comments that implied that military attorneys would face reprisal for defending their clients.
“Unlawful command influence” is a term under the Uniform Code of Military Justice that describes any actions commanders take that could be interpreted by subordinates as an order about whether to find an accused service member innocent or guilty.
“This case ably demonstrates why unlawful command influence remains the mortal enemy of military justice,” the court wrote in its decision about Negron. “And if military judges are the last sentinels protecting an accused from such influence, military defense counsel are often the first.”
U.S. Marine Forces Special Operations Command, or MARSOC, provided Task & Purpose with a statement acknowledging the court’s decision.
“MARSOC is aware that the Navy-Marine Corps Court of Criminal Appeals ordered the dismissal with prejudice of the charge and specification in both cases,” the statement says. “As always, MARSOC respects the judicial process.”
Threats against a defense attorney
The prosecution against Draher, Negon, and Gilmet has been plagued by accusations of unlawful command influence since November 2021, when Marine Col. Christopher Shaw, who oversaw the assignments of all Marine judge advocates at the time, as deputy director of the Judge Advocate Division, appeared to threaten one of Gilmet’s attorneys, Marine Capt. Matthew Thomas.
During a meeting at Camp Lejeune, North Carolina that included other judge advocates Shaw said it was a “legal fiction” for military defense attorneys to think that they were protected from outside influences, Thomas later recounted in a written statement to investigators.
“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 wrote. “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 [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.”
Thomas wrote that Shaw also said 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, Colby Vokey, also represented Gilmet.
In a statement to investigators, Shaw wrote that he was not threatening Thomas. Instead, he was trying to explain that Marine defense attorneys cannot be protected by their chain of command from media and political scrutiny.
“I recall that I did state something to the effect that it is a ‘legal fiction’ to believe that the separate defense counsel chain of command precludes [judge advocate] leaders from knowing how [defense counsels] do their job, but this comment was intended merely to impart that [judge advocate] leaders recognize the tough work [defense counsels] do rather than to instill a fear of retribution; far from it,” Shaw wrote.
Ultimately, the investigation did not determine whether Shaw had committed unlawful command influence.
In February 2022, a military judge dismissed all charges against Gilmet, determining that Shaw’s comments to Thomas constituted “actual and apparent [Unlawful Command Influence].” But an appeals court reinstated the charges against Gilmet six months later, finding that Shaw’s remarks “will not otherwise affect the proceedings.”
In August 2023, the U.S. Court of Appeals for the Armed Forces dismissed charges against Gilmet for the final time, ruling that the “Government failed to prove beyond a reasonable doubt that [Unlawful Command Influence] would not affect the proceedings.”
Most recently, the Navy-Marine Corps Court of Criminal Appeals wrote in its Dec. 27 opinion about Negron that Shaw’s comments about military attorneys who represented Marines in the Hadtiha case not getting prompted were particularly egregious.
“Colonel Shaw offered these specific cases to buttress his point that defense attorneys ‘may think they are shielded [from outside influence], but they are not protected,’” the court found. “Put another way, he had the receipts.”
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