Tori J. Ross 
One of the Marine Corps’ top attorneys accused of meddling in the case of a Navy member and two Marine Raiders who were charged with the death of a US contractor after a 2019 altercation in Iraq .
Lawyers for Chief Petty Officer Eric Gilmet, Gunnery Sgt. Daniel Draher and Gunnery Sgt. Joshua Negron demands that all charges against his clients be dismissed, citing illegal command influence.
The three men were charged with negligent homicide and other offenses after allegedly having an altercation with Rick Anthony Rodriguez on January 1, 2019. Rodriguez, a former Green Beret who worked as a contractor for Lockheed Martin, was knocked out for the fight . He was taken back to his quarters and began to have breathing problems. After being treated at a medical center on the base, Rodriguez was airlifted to Landstuhl, Germany, where he died on January 4, 2019.
Now defense attorneys for the three men argue that Col. Christopher Shaw, deputy director of the Judge Advocate Division, made not-so-veiled threats against Captain (N) Matthew Thomas, who is one of the two lawyers for the military defense representing Gilmet.
Under military law, commanders are strictly prohibited from influencing legal proceedings, for example by statements that could be interpreted by subordinates as orders as to whether to declare accused servicemen innocent or guilty. When commanders interfere with the military justice system, it is called illegal command influence.
This is precisely what defense attorneys claim Shaw did during a Nov. 18 meeting with several defense attorneys in Camp Lejeune, North Carolina, when Shaw allegedly told Thomas that it is “legal fiction” to think lawyers are protected from outside influences, Thomas later recalled in an affidavit obtained by Task & Purpose.
“Colonel Shaw then turned his shoulders and chair directly towards me and he did not break eye contact with me for a significant period of time,” Thomas said in the affidavit. During this time Colonel Shaw specifically said: ‘Captain Thomas, I know who you are and what business you are in and you are not protected. Colonel Shaw went on to say, “… the FitRep [fitness report] process may protect you, but you are not protected. Our community is small and there are promotion boards and the advocate for the promotion board will know you. ‘ Colonel Shaw reiterated comments such as “protected but not protected” on several occasions. “
Shaw then warned that defense attorneys who had represented the eight Marines accused of killing 24 Iraqi civilians in Haditha, Iraq, in November 2005 had not been promoted. One of those lawyers was retired Lieutenant Colonel Colby Vokey, who now also represents Gilmet with Thomas.
Shaw explicitly stated that ‘some of the attorneys involved in these cases were good attorneys’ and that on the promotion committee our community is small enough that the attorneys ‘know what you have done’, recalled Thomas in the affidavit of December 6. .
Vokey told Task & Purpose on Monday that Shaw’s remarks about the failure of Haditha’s court martial attorneys to be promoted clearly referred to him.
While still in the Marine Corps, Vokey was the Master Sergeant’s regional defense attorney. Frank Wuterich, the senior Marine official on the November 19, 2005 patrol that preceded the murder of Iraqi civilians. Wuterich eventually struck a plea deal with prosecutors that allowed him to avoid going to jail and receiving a general discharge on honorable terms.
“What he’s referring to – they’re defense people over there who haven’t been promoted – he’s referring to me – there’s no doubt in my mind he’s referring to me,” he said. Vokey said. “I was a lieutenant colonel. I was not selected for the post of colonel and I was in defense.
In contrast, several of the top prosecutors involved in the Haditha courts martial and the Hamdania case in 2006 were promoted, Vokey said.
“The translation of this is: Captain Thomas, you are not protected; you are on Gilmet with Vokey; and look what happened to Vokey – be careful, because it’s going to happen to you, ”Vokey said. “We have judge lawyers on the promotion panels and they know what you are doing. This is the unmistakable message that Captain Thomas received, as did all of the other Judge Advocates who were in the room.
The Marine Corps is no stranger to the illegal influence of command. In November 2017, an appeals court overturned the conviction of a Navy sniper who pleaded guilty to urinating on the corpses of Taliban fighters after finding that the commander of the Marine Corps of the At the time, James Amos, had committed an illegal influence on the command by replacing the general in charge. to oversee the case after saying he wanted the Marines involved in the scandal to be “crushed”.
Vokey and other attorneys representing the three servicemen in the Rodriguez case argue that Shaw unlawfully interfered with the proceedings.
“I think this is one of the most direct examples of illegal command influence that I have seen in several years,” Vokey said. “This goes to the heart of a military member’s defense by court martial. It wasn’t even in disguise. I’m not even sure I would call it a threat. I think it was a promise that it will have an impact on you.
In their motion to dismiss all charges, Gilmet’s attorneys noted that Shaw made it clear to attorneys at the November 18 meeting that he was responsible for finalizing their permanent change of station and permanent change of station. assignment.
As such, Colonel Shaw has direct control and influence over Captain Thomas’ career and flaunted this power during the DSO. [Defense Services Organization] meeting, ”according to the petition, which was filed on Dec. 10.
Now Thomas fears he could risk his career by continuing to represent Gilmet and other members of the service, who are accused of sexual assault, as the Judge Advocate Division decides what his future assignments will be and his permanent change of position. post, Thomas wrote in his affidavit.
Gilmet lost confidence in Thomas to serve as defense counsel because of what Shaw said, Gilmet wrote in a separate affidavit.
“I no longer believe that Captain Thomas is in a position to provide legal representation without being consciously or unconsciously influenced by Colonel Shaw’s comments about the possible impact his continued representation would have on his career progression,” Gilmet wrote. “I have lost faith and confidence in the military justice system.
As of Monday, none of the charges against Gilmet, Draher or Negron had been dismissed, said Major Hector J. Infante, spokesperson for Marine Corps Forces Special Operations Command. After several delays, Gilmet’s trial is scheduled to begin on January 10, 2022.
It was not immediately clear whether Shaw was the subject of complaints for his comments during the November 18 meeting.
“We are aware of the allegations and cannot provide any information at this time,” Marine Corps spokesman Major Jim Stenger said on Monday. “Out of respect for legal process, we will not comment on an ongoing dispute or active investigation.”
Several other attorneys who attended the meeting at Camp Lejeune expressed concern over Shaw’s comments, including Captain Steven M. Trottier, who noted in an affidavit that he inferred from Shaw’s comments that attorneys assigned to the Haditha trials had not been promoted despite their competence. to litigate because they had spent so many years in the Defense Services Organization.
“I left this meeting very concerned about Colonel Shaw’s comments regarding defense attorneys,” Trottier wrote. “To some extent, it makes me fear that my portrayal of clients, especially in cases with media attention or other searing issues, such as sexual assault, carries a negative connotation for me personally and professionally. “
Captain Michael E. Blackburn wrote in an affidavit that Shaw stated as if it was a fact that there was pervasive “deviant behavior” in the Marine Corps that defense lawyers could not. not understand unless they were judge-advocates or prosecutors.
Captain Thomas Persico was struck by Shaw’s implication that the reputation of Haditha’s court martial defense attorneys suffered as a result of their work on the cases.
And Captain Jonathan M. Bunker was concerned about Shaw’s comments about lawyers who spent “more time defending than JAD. [Judge Advocate Division] believes reasonable ”or those assigned to high profile cases.
“The meeting highlighted that those who represent the constitutional rights of the accused are, at the highest levels of this organization, viewed in a negative light and that their careers are likely to suffer,” Bunker wrote.
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