Haggis said:No different than if the police show up at your workplace and arrest you in front of your peers. That happens a lot.
Prosecutors are ordered to come up with remedy for the case to move forward
By Andrew Dyer
Nov. 15, 2019 |9:03 PM
The July arrests of 16 Camp Pendleton Marines in front of their 800-person battalion was unlawful and a violation of their rights, a Marine Corps judge ruled Friday.
The ruling was handed down at the end of an all-day motions hearing that saw the battalion commander, a sergeant major and some Camp Pendleton-based Naval Criminal Investigative Service agents testify about the decision to conduct the mass arrest during a battalion formation on July 25.
On that day, 16 Marines were called to the front of their unit — 1st Battalion, 5th Marines — and they were accused of human smuggling and arrested by a swarm of 40 to 50 law enforcement agents.
Another eight Marines suspected of unspecified drug offenses were also taken out of the formation. Some of those eight were detained by battalion personnel and taken to the Camp Pendleton brig, said Lt. Col. Eric Olson, the battalion commanding officer, during testimony from the witness stand.
The arrests were captured on video by the Marine Corps, the Union-Tribune first reported last week.
According to court testimony, the July arrests were the culmination of two separate investigations: one into human smuggling by NCIS, and one into an alleged drug ring by Marine Corps Criminal Investigation Division.
Thirteen Marines were eventually charged in the smuggling case. The number charged in the drug case has not been disclosed.
Three video clips show the July 25 arrest of Marines from 1st Battalion, 5th Marine Regiment.
Attorneys for one of the defendants, Lance Cpl. Jose Garcia, argued that the arrests amounted to “unlawful command influence” because of the effect the arrests had on those 800 battalion members who witnessed it.
Garcia was among those charged with unspecified drug offenses. The Marine Corps did not provide a charge sheet to reporters detailing those charges.
Unlawful command influence, often called the “mortal enemy of military justice,” occurs when a commander uses his position of authority to influence court proceedings. Commanders have authority over courts-martial and therefore are expected to remain impartial during the process.
However testimony from witnesses, as well as a video recorded by the 1st Marine Division, showed Olson and the battalion sergeant major, Sgt. Maj. Matthew Dorsey, ordering NCIS agents to “arrest these Marines.”
It also showed them making comments to the formation after the accused were hauled off.
Olson testified that he made general comments that the misconduct of Marines hurts the battalion’s “lethality,” and that his primary focus was making sure his unit was ready to fight at a moment’s notice.
Some Marines in the formation that day also testified, saying their commanders called the accused Marines a “cancer” on the battalion.
Olson, Dorsey and the lead NCIS agent on the case, Katelyn Thompson, all testified that the arrests were done in front of the formation to preserve evidence and ensure safety, because some Marines were suspected of weapons offenses.
However the Judge, Marine Col. Stephen Keane, rejected that argument, saying that if there was a concern about weapons being involved, then inviting 800 Marines to witness the arrests did not suggest safety.
Public affairs officers from the 1st Marine Division also testified about comments they made to the news media after the July arrests and about the decision to capture the arrests on video.
Division communications director, Maj. Kendra Motz, testified that the decision to film the arrest was an effort to avoid conflicting videos of the event coming out, causing confusion.
She cited as an example the controversy that arose over videos that some said showed Covington Catholic high school students harassing a Native American man in Washington, D.C. in January, while others said that videos showed the kids being harassed.
Motz also testified that she had not been truthful with reporters at the time about the arrest, telling an ABC reporter there were no photos or videos taken.
She also testified that she told a Task & Purpose reporter that Dorsey did not hold a red awards folder when he called out the names of the accused, though that was contrary to what witnesses testified and what the Marine Corps’ video shows.
Keane told prosecutors they have until next week to find a way to remedy what he said was actual and apparent unlawful command influence, or it could be devastating to their case against Garcia, whose attorneys asked that charges be dismissed.
“You have an uphill battle here,” Keane told the prosecutors. “The overarching concern of mine is that Garcia has a fair trial. If not, that leaves the court with one option.”
In addition to alleging unlawful command influence, Garcia’s attorneys also alleged that the arrests amounted to unlawful pretrial punishment. That issue will be taken up at a later date.
It is unclear what effect Friday’s ruling will have on the Marines’ cases. Several defense attorneys for other Marines were in the courtroom during testimony.
Haggis said:No different than if the police show up at your workplace and arrest you in front of your peers. That happens a lot.
tomahawk6 said:I didnt see the problem but the JAG gets to make the call.
FJAG said:The problem here is that under 10 US Code Section 825 Article 25 there is no longer a restriction that members of an accused's unit may be appointed as members of the court so long as they meet the remaining requirements set out in that article as court martial members. Accordingly there is a possibility/probability that the chain of command (i.e. the CO) tainted potential jurors by having the arrest happen in front of the whole unit.
Section 837 Article 37 restricts a convening authority or a commanding officer from exercising command (described in various ways) that could influence (amongst other things) a tribunal or member thereof. The Marine Judge found that the public arrest in front of the unit constituted such command influence and gave the prosecutors a week to find how to remedy the situation.
Personally I think that the decision was premature. Any accused has a right to challenge at trial the judge or one or more members of the court under 10 US Code Section 841 Art 41, (either for cause or peremptory) I think in a case such as this the convening authority could still avoid the problem by appointing members to the court who were not in the accused's battalion and present at the arrest. Subsequently, a challenge could still be carried out with respect to members who might have been influenced by press or other reports of the arrests.
That said the actions in this case create an unnecessary problem. Although it is easy to see that having all the accused arrested at the parade simplified the arresting process, in retrospect, equally effective and less public simultaneous arrests would have been just as possible (considering some 40 to 50 agents were there to arrest 16 accused)
The US continues to have command influence problems arise from time to time because convening authorities (who have broad general powers to review and prefer charges, select court members etc) are part of the chain of command (and are loath to give up those powers). The problems mostly arise because the CoC is frequently not as cognizant of what influence some of their actions have on their subordinates and the legal process.
Our system effectively removes most of the powers where command influence could happen from the chain of command. That doesn't mean that command influence couldn't still happen here but it would be a very blatant interference from outside the process rather than as a subtle influence from within.
Jun 22, 2018
Col. Stephen Keane
Camp Pendleton, Security and Emergency Services Battalion, U.S. Marine Corps in 2018
Colonel Stephen F. Keane, USMC
Colonel Keane was raised in the Bronx, New York and Spring Lake Heights, New Jersey. He enlisted in the Marine Corps Reserves in June 1989. In January 1990, following Boot Camp and MOS school, he was assigned to 6th Engineer Support Battalion in Tucson, Arizona. He graduated from the University of Arizona and commissioned a Second Lieutenant in May 1994.
Following The Basic School and Infantry Officer Course, Colonel Keane was assigned as an Infantry Officer with 2nd Battalion, 3rd Marines. During this tour, he served as a Rifle Platoon Commander for his first Unit Deployment to the Western Pacific and as Echo Company Commander for a second Western Pacific Deployment.
In May 1998, Colonel Keane was assigned as a Nuclear Weapons Surety Inspector for the Defense Threat Reduction Agency and conducted global nuclear surety inspections. In 1999, Colonel Keane was selected for the Funded Legal Education Program and began study at the College of William & Mary Law School in Virginia. He served as a prosecutor at Marine Corps Base Quantico during summer 2000 and at Camp Lejeune, North Carolina during summer 2001. Upon graduation from law school and Naval Justice School in October 2002, he was assigned to Legal Services Support Section, 2nd Force Service Support Group, Camp Lejeune, North Carolina, again as a prosecutor.
Colonel Keane deployed to Iraq in October 2003 with the Department of Defense Criminal Investigation Task Force, an interagency counter-terrorism task force. Upon returning from deployment in 2004, Colonel Keane assumed the duties of Senior Prosecutor and Military Justice Officer at the Legal Services Support Section, 2nd Force Service Support Group, Camp Lejeune, NC.
Colonel Keane reported to the Graduate Course at The Judge Advocate General's School in Charlottesville, Virginia in July 2005 where he was awarded a Master of Law (L.L.M.) degree with a specialty in Administrative (Labor and Employment) Law. The following year, 2006, he was assigned to Seoul, Korea as the Deputy Chief of Operational Law for U.S. Forces Korea, Combined Forces Command, and the United Nations Command. During this tour, he served concurrently as the Staff Judge Advocate of U.S. Marine Corps Forces Korea and legal advisor to the United Nations Military Armistice Commission.
In May 2009, Colonel Keane assumed duties as a Military Judge for the Western Judicial Circuit, Navy-Marine Corps Trial Judiciary. From 2012-2013, he completed Top Level School as the Commandant of the Marine Corps Fellow to the U.S. Department of Justice, National Security Division, Counter-Terrorism Section. From 2013-2015, Colonel Keane was the Commanding Officer of Marine Corps Security Force Battalion Bangor, Washington. Prior to his current assignment, Colonel Keane was the Regional Trial Counsel (Senior Supervisory Prosecutor) for Marine Corps Installations West.
Colonel Keane’s personal decorations include the Defense Meritorious Service Medal, Meritorious Service Medal, Joint Service Commendation Medal, Navy-Marine Corps Commendation Medal, Navy-Marine Corps Achievement Medal and other unit and service awards.
Blackadder1916 said:It would seem that USMC JAG officers, even those assigned as judges, have a chance at a much greater variety of non-legal assignments judging from the bio of the judge who made this ruling.
FJAG said:. . . After Col Keane was selected for Funded Legal Education Program (the Marines' MLTP equivalent) his employment was basically in the legal field.
dapaterson said:Similar problem to Canada: judges drawn primarily from the prosecutors.
Blackadder1916 said:Except for his command of the Marine Corps Security Force Battalion Bangor as a LCol in 2013-15 and his more recent command of the Camp Pendleton Security and Emergency Services Battalion as a Col that he relinquished earlier this year.
tomahawk6 said:US military JAG officers start their careers as 2d or 1st LT/ or LTjg depending on the branch of service.
daftandbarmy said:But the CO should get points for 'style' :nod:
Military prosecutors dropped human trafficking and drug charges against most of the two dozen Marines recently arrested in front of their Camp Pendleton battalion, days after a court ruled those arrests were an unlawful violation of their rights, Marine Corps officials confirmed Tuesday.
The Marines' cases will be dealt with administratively, outside the military court system, according to a 1st Marine Division statement. Many of them will be discharged from the Marines.
"Thirteen Marines submitted and have approved pre-trial agreements requesting separation in lieu of courts-martial or waiving administrative separation boards," the Marines statement said.
Also six Marines have pleaded guilty at courts-martial, and four still face criminal charges, the statement said.
Marine Capt. Charles Whitman, who represents a Marine charged with drug offenses, successfully argued that the arrests amounted to unlawful command influence.
Unlawful command influence, often called the "mortal enemy of military justice," occurs when a commander uses his position of authority to influence court proceedings. Commanders have authority over courts-martial and therefore are expected to remain impartial during the process.
"After that ruling, I think the government saw the writing on the wall and wanted to get this out of the court system," Whitman said in an interview Tuesday.
Whitman's client, a lance corporal originally charged with unspecified drug offenses, will be administratively processed out of the Marine Corps, Whitman said.
He added, it is up to the commanding officer to determine his client's discharge status, and he does not know what that will be ...
Colin P said:I think whatever happens he had the good of the Corp in his heart. He wanted to make it painfully clear such behaviours are not tolerated and not part of the ethos of the Corp.
You can't drop this one only in the lap of the Commander. The arrests were conducted by NCIS agents, who should have known better than to participate in something like this, and his Sgt Maj was the one who gave the "order" for the arrests to be executed.exCAFguy said:And in turn a bunch of potentially guilty men get off scott free because a commander went outside his lanes. (Yes I’m aware they will be dealt with administratively, but they were up on human trafficking charges and likely could care less about being discharged given the jail time they just avoided)
Too often I saw this in the CAF as well. For whatever reason, you give a senior officer the presiding officer course and they think they are both JAGs and NIS investigators.
The videos, obtained by The San Diego Union-Tribune, showed the Marines being handcuffed by Naval Criminal Investigative Service agents in front of their peers at parade rest. The newspaper reported that the Marines' arrests were a result of an investigation into a human smuggling ring.
Roughly 40 investigators detained the Marines, who were called in front of the formation "to be recognized," The Union-Tribune reported, citing court filings.
"NCIS, arrest these Marines," Sgt. Maj. Matthew Dorsey said.
garb811 said:You can't drop this one only in the lap of the Commander. The arrests were conducted by NCIS agents, who should have known better than to participate in something like this, and his Sgt Maj was the one who gave the "order" for the arrests to be executed.