An appeals court has reinstated charges against a Navy Corpsman who is one of three U.S. troops accused of killing a former Green Beret who was working as a contractor in Iraq.
The move comes just six months after a military judge had dismissed all charges against the corpsman, Chief Petty Officer Eric Gilmet, ruling at the time that a deputy director of the Judge Advocate Division had committed unlawful command influence by threatening one of Gilmet’s attorneys.
Gilmet and two Marine special operators had been charged with negligent homicide and related offenses following the death of Rick Anthony Rodriguez, who was knocked out during a fight with the three men on Jan. 1, 2019.
Rodriguez died three days later after being flown to Landstuhl, Germany for medical treatment.
The other two service members charged in connection with Rodriguez’s death are Marine Gunnery Sgt. Daniel Draher and Gunnery Sgt. Joshua Negron. Their supporters refer to them collectively as the “MARSOC 3.”
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Military judge Navy Cmdr. Hayes C. Larsen had dismissed charges against Gilmet in February, ruling that Marine Col. Christopher Shaw had committed unlawful command influence in the case.
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 an accused service member innocent or guilty.
In this case, Larsen determined that Shaw had made threatening comments to Capt. Matthew Thomas, one of Gilmet’s former attorneys, during a Nov. 18 meeting at Camp Lejeune, North Carolina. Thomas had written in a statement that Shaw had told a group of Marine attorneys during the meeting that it was a “legal fiction” to think they were protected from outside influences.
Thomas wrote that Shaw then turned directly to him and said “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.”
Based on Shaw’s comments, Thomas and another military attorney asked to be removed from the case, citing a conflict of interest. Gilmet agreed to let them withdraw.
On Monday, the U.S. Navy and Marine Corps Court of Criminal Appeals ruled that Larsen had made a mistake in finding that Shaw had committed unlawful command influence and vacated his decision, ensuring further legal proceedings against Gilmet.
Delivering the court’s opinion, Senior Judge Michael Holifield found that Shaw’s comments to Thomas were “highly disturbing,” but they were also “as shocking as they were incorrect.”
Holifield noted that Thomas had been selected to attend Expeditionary Warfare School, which is “highly valued professional military training,” so any objective observer would have no doubt of the military justice system’s fairness.
Holifield also wrote that Shaw’s comments were not the reason why Gilmet decided to fire Thomas and his other military attorney.
“Rather, it was the IMC’s [individual military counsel’s] and ADC’s [area defense counsel’s] mistaken belief that they faced a choice between their careers and zealously representing their client,” Holifield wrote. “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. And we are similarly convinced that his comments will not otherwise affect the proceedings.”
Retired Marine Lt. Col. Colby Vokey, who is now a civilian attorney representing Gilmet, told Task & Purpose on Monday that the Navy and Marine Corps Court of Criminal Appeals made a series of errors in determining that Shaw had not tried to intimidate Thomas.
Thomas had been selected to attend Expeditionary Warfare School before the Nov. 18 meeting with Shaw, Vokey said. Shaw had no role selecting Thomas for this training, but he later asked his subordinates if Thomas could take some other position that would allow him to stay at Camp Lejeune.
The court also claimed that Thomas has been selected for promotion to major, but that has not happened, Vokey said. In fact, Thomas submitted his request from active duty to resign on Jan. 27.
It’s not clear what will happen next in the Gilmet case, Vokey said. It could go back to court-martial; Gilmet could request a rehearing in front of the entire Navy and Marine Corps Court of Criminal Appeals, or he could file an appeal with the U.S. Court of Appeals for the Armed Forces.
“We have to look at this and see what our options are,” Vokey said. “We haven’t got to that part yet. There will be further legal proceedings at some location.”
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