For the second time, all charges have been dismissed against Chief Petty Officer Eric Gilmet, a Navy corpsman who is one of three service members collectively referred to by their supporters as the “MARSOC 3,” who had been accused of killing a former Green Beret who was working as a contractor in Iraq.
The U.S. Court of Appeals for the Armed Forces ruled on Thursday that prosecutors had failed to prove beyond a reasonable doubt that the proceedings would not be affected by unlawful command influence in the wake of November 2021 comments by a former top Marine Corps lawyer, who implied that military attorneys would face reprisal for defending their clients.
As such, the court dismissed the charges “with prejudice,” meaning they cannot be refiled.
The court’s move means that the government can no longer pursue its case against Gilmet, his attorney Colby Vokey told Task & Purpose on Friday.
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“Chief Gilmet and his family are ecstatic and relieved that this ordeal is finally over and they are looking forward to starting the new chapter in their lives,” Vokey said. “The CAAF’s [U.S. Court of Appeals for the Armed Forces] decision was sound and the Court followed the evidence well. A dismissal with prejudice was the only just result given the outrageous and illegal conduct by a senior Marine lawyer.”
The ruling is the latest twist in a yearslong legal drama that has called the military justice system’s integrity into question.
Gilmet and two Marine Raiders were initially charged together in connection with the death of Rick Anthony Rodriguez following an altercation with the three men in Erbil, Iraq, on Jan. 1, 2019. Rodriguez was transported to Germany for medical care and died on Jan. 4, 2019.
In February, a military jury found Gunnery Sgts Daniel Draher and Joshua Negron not guilty of negligent homicide, involuntary manslaughter, and other serious offenses, but the two Marines were convicted of violating General Order No 1., which prohibits U.S. service members from drinking alcohol in certain countries.
The prosecution’s case against Gilmet became complicated after a military judge ruled last year that Marine Col. Christopher Shaw, who was serving as a deputy director of the Judge Advocate Division at the time, had committed “unlawful command influence by threatening one of Gilmet’s attorneys.”
Under the Uniform Code of Military Justice, the term “unlawful command influence” describes any actions commanders take that could be interpreted by subordinates as an order about whether to find accused service members innocent or guilty.
Marine Capt. Matthew Thomas, who was representing Gilmet at the time, provided a written statement for a command investigation into Shaw recalling that during a November 2021 meeting with several military defense attorneys at Camp Lejeune, North Carolina, Shaw said that it was a “legal fiction” for military defense attorneys to think they were protected from outside influences.
“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 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 also said that defense attorneys who had represented the eight Marines accused of killing 24 Iraqi civilians in Haditha, Iraq, in November 2005 were not promoted, Thomas wrote. As it turns out, one of those attorneys was Vokey, who now represents Gilmet.
“Shaw explicitly stated that ‘some of the attorneys on those cases were good attorneys,’ and that on the promotion board our community is small enough that the attorneys ‘will know what you did,’” Thomas wrote.
As a result of Shaw’s comments, Gilmet submitted a written affidavit arguing that he did not want Thomas to serve as his attorney because he felt Thomas would be “consciously or subconsciously” concerned about hurting his career by defending him. Thomas and another military attorney representing Gilmet eventually withdrew from the case.
Shaw provided a statement for the command investigation in which he wrote he had not threatened Thomas. Instead, Shaw meant to explain that Marine defense attorneys cannot be protected by their chain of command from media and political scrutiny.
But in February 2022, military judge Navy Cmdr. Hayes C. Larsen ruled Shaw had made threatening comments to Thomas that rose to the level of actual and apparent unlawful command influence.
“What occurred would confirm the fears of some members of the public that the military justice system is stacked against the Accused and designed to come to the result the military desires,” Larsen wrote in his opinion.
However, a military appeals court ruled in August 2022 that Larsen made a mistake in finding that Shaw had committed unlawful command influence and reinstated the charges against Shaw.
Delivering the court’s opinion, Senior Judge Michael Holifield wrote that Thomas and other attorneys had the “mistaken belief” that they would risk their careers by providing Gilmet with a zealous defense.
“We are convinced beyond a reasonable doubt that Col. [Shaw’s] comments and actions at the 18 November 2021 DSO [Defense Service Office] meeting did not cause counsel to be excused,” Holifield wrote. “And we are similarly convinced that his comments will not otherwise affect the proceedings.”
But the U.S. Court of Appeals for the Armed Forces thought otherwise. Judge Liam Hardy wrote that none of the remedial measures the Marine Corps had taken as a result of Shaw’s inappropriate comments had addressed how Shaw had harmed Gilmet’s relationship with his attorneys.
“Col. Shaw denied that his remarks were inappropriate and dismissed concerns over his actions as ‘purely [a] misunderstanding and speculative at best,” Hardy wrote. “Col. Shaw’s response to his misconduct did nothing to mitigate the effect of his comments on Appellant’s relationship with his military counsel. If anything, Col. Shaw’s actions undercut the Government’s attempt to meet its burden rather than support it.”
Hardy also wrote that although the Marine Corps had taken Shaw out of the process of assigning jobs for Marine judge advocates, that did not remove the perception among military attorneys that their careers would stall if they were assigned to defense billets.
“Because the Government failed to address or remedy the broken relationship between Appellant and his military defense counsel caused by the UCI [unlawful command influence], we conclude that the Government failed to prove beyond a reasonable doubt that UCI would not affect the proceedings.”
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