Tough talk by Marine commandant complicates sexual-assault cases
WASHINGTON - The Marine Corps commandant wanted to snuff out rape in the ranks. However, his well-meaning but overly blunt talk instead complicated Marine sexual-assault cases worldwide and raised troubling questions about whether accused Marines will get a fair shake.
This week, for the second time in recent months, a Marine Corps trial judge found that Gen. James F. Amos' forceful remarks on sexual assault earlier this year presented the appearance of unlawful command influence.
Command influence can severely hinder the military justice system, where facts are found and fates determined by people who are drilled to obey their superiors.
So on Marine Corps bases from Twentynine Palms in California to Parris Island in South Carolina and beyond, defense attorneys are quietly but persistently challenging a system that they fear could be stacked against them. Already, some have secured additional trial help.
The commandant, a four-star general, has been compelled to answer a judge's written questions under oath. Conceivably, some cases could be dropped altogether, an ironic and unintended consequence of the Marine leadership's aggressive anti-rape stance.
"Our cases, particularly our sexual-assault cases, are being tried under intense scrutiny from both within and outside the Marine Corps," Col. John Baker, the chief defense counsel of the Marine Corps, said in an email Thursday.
Defense attorneys, uniformed and civilian alike, began raising the unlawful command influence challenges after Amos toured every Marine facility earlier this year. The general's springtime speeches strongly denounced sexual assault, though the general said he never intended to steer specific trial conclusions.
"To the contrary, my decisions and actions are, and always have been, founded on and consistent with the law," Amos assured a military judge in a July 31 written statement.
Nonetheless, Baker said that at least 20 unlawful command influence challenges had been raised after the commandant's speeches and "more are pending." It's a remarkable development in a military hierarchy famed for its "ooh-rah" loyalty.
"The moral courage, professionalism and effectiveness of the (entire) Marine defense counsel in these cases demonstrate the effectiveness of the Marine Corps Defense Services Organization," Baker said.
Amos undertook his so-called "Heritage Brief" tour amid intense political pressure. In Congress, lawmakers have denounced what some call an "epidemic" of military sexual assault. Multiple bills have been introduced, class-action lawsuits have been filed and a survey of 2 percent of the military has yielded a widely quoted extrapolation that 19,000 service members are raped annually.
Amos used his tour to stress his own strong feelings about the 348 reported sexual assaults in the Marine Corps last year. In a roughly 75-minute talk intended for every Marine non-commissioned officer and officer, the career aviator demanded tougher punishment for those accused of sexual misconduct.
"Why have we become so soft?" Amos asked in a speech April 19 at Parris Island.
He further described himself as "very, very disappointed" in court-martial boards that don't expel those who misbehave sexually, and he denounced as "bull----" claims that many sexual assault allegations amount to second thoughts from individuals who initially consented.
"I know fact from fiction," Amos declared, a transcript of his April 19 speech shows. "The fact of the matter is 80 percent of those are legitimate sexual assaults."
Put another way, the Marine Corps' top officer was telling his subordinates that 80 percent of those charged with sexual assault were guilty. He was demanding dismissals from the service, and suggesting that an alleged victim might be simply suffering from, as he phrased it, "buyer's remorse."
Amos later reinforced his comments, defying legal advice.
"My lawyers don't want me to talk about this, but I'm going to anyway," he said May 23 at California's Camp Pendleton, according to a defense legal filing. "The defense lawyers love when I talk about this, because then they can throw me under the bus later on and complain about unlawful command influence."
In response to questions, the Marine Corps referred to a two-page "white letter" July 12 in which Amos stressed that "the matter of whether or not a Marine committed a sexual assault, and what should happen, will be determined based on the facts presented."
"At no time did I directly or indirectly intend to dictate any course of action in any particular case or type of cases," Amos added in his July 31 court statement. "I don't believe (my audiences) misunderstood me or erroneously concluded that I was directing them to hold any particular point of view about these issues."
Nonetheless, Marine Corps Col. Daniel J. Daugherty said in a 26-page ruling quietly issued late Tuesday night that the commandant's speeches raised the appearance of unlawful command influence.
Daugherty is the chief judge of the Navy-Marine Corps Trial Judiciary. His decision doesn't bind other judges, but it could be influential as judges determine whether there's apparent or, even more seriously, actual command influence in a particular case.
Daugherty's ruling this week in a Parris Island case was the second time he had found the appearance of problems arising from the commandant's speeches. Earlier this year, at the Marine Corps base in Quantico, Va., he also identified a potential command influence problem.
Quantico authorities accuse Staff Sgt. Tarrell D. Jiles of multiple counts of sexually harassing and touching fellow male Marines.
Jiles' Fort Worth, Texas-based attorney, Brian Bouffard, and his Marine Corps co-counsel, Capt. Christina Bobb, cited damning comments from Parris Island Marines to underscore the commandant's words. One officer acknowledged that in a close case, he would side with the commandant, while a gunnery sergeant agreed with the commandant that eight out of 10 sexual assault allegations are valid.
"He basically primed them to find people guilty and kick them out," Bouffard said in an interview. "What the commandant did was not in keeping with the presumption of innocence."
Daugherty, the trial judge, concluded that the apparent unlawful command influence could be cured by steps such as giving defense attorneys additional opportunities to challenge potential jurors.
Another judge, in a sexual assault case at Twentynine Palms, has found enough evidence to require the prosecutors to prove beyond a reasonable doubt that there isn't the appearance of unlawful command influence. A final ruling will come before the trial starts in early November.
In the Twentynine Palms case, a Marine brigadier general decided to prosecute Sgt. Daniel Garcia and Sgt. Guillermo Martinez even though civilian law enforcement authorities had declined to, and had seriously questioned the alleged victim's credibility.
In the Parris Island case, Marine Corps Staff Sgt. Steve Howell is accused of sexually assaulting the mother of a potential recruit. Howell maintains that any sexual contact was consensual, which is precisely the buyer's-remorse defense that Amos dismissed as invalid.
"The problem is, Marines are not going to defy their leaders," said Erlanger, Ky.-based lawyer Ed Massey, who is helping represent Howell. "I don't think he can get a fair trial."
Daugherty took over the Howell case after the first trial judge, a Marine Corps lieutenant colonel, had rejected the unlawful command influence claim. This judge later moved off the case, and off the military bench altogether, after defense attorneys brought his harsh comments about Marine defendants to light.
"We need to go after these scumbags," the lieutenant colonel had told other attorneys, according to a defense filing that further quoted him as saying, "We need more convictions."
