Judge McMahon has issued a decision in United States v. Santiago, 13 Cr. 039(CM) (S.D.N.Y. Dec. 19, 2013), in the Southern Dist. of N.Y.

It is a 56 page decision on the accused’s motion to dismiss for prosecutorial misconduct and due process, failure to allege the elements, and a Miranda violation. It is a MEJA prosecution.  At the time of the alleged offenses Santiago was a Marine reservist serving in Iraq.  It is alleged he injured a corpsman, because he was being – my words – a cowboy with his weapon.  It is worth the read, but it is not a flattering read for Marine judge advocates, NCIS, and others – people are named.  The opinion ends with the following.

Frankly, I think Michael John Carpeso [the victim] deserved a little more “Semper Fi” than he got from the United States Marine Corps.

20 Responses to “Worth the read”

  1. Charlie Gittins says:

    And, of course, no Marine was held accountable.

  2. Phil Cave says:

    Did I see your name someone in that opinion :-)

  3. Christian Deichert says:



  4. Mark says:

    Interesting reading, thank you for posting.  Unfortunately, I think the writer’s child-like expectation that TV reflects reality in the first few pages, set the tone for the remainder of the opinion that appears at best a partially-informed observation of the military prosecutorial system.  It leaves the informed reader with many questions.  Is it possible this result was the desired outcome of some of those who touched this case?  Perhaps the dismissal was the result of friction between those who saw the case and wanted prosecution, and those who saw the case as an evidentiary loser and/or not criminal, and wanted it to go away so Santiago could go on with his life.   Perhaps some people were less than thrilled with the DOJ attorney’s persistence to prosecute.  I do not know for sure, but I am quite sure the writer’s frame of reference yields expectations of a monolothic and unified miljus decision tree.  The reality, both on paper and in execution, as evidenced here, does not conform.  Since the opinion chose to make generalized insults, I think a more accurate and informed writer would have included some of the systematic and structural components of the system (e.g. JAGs do not control NCIS), that when combined with certain individual oversights, a deployment atmosphere, and a case with little evidence, produced what looks like a comedy of errors. 

  5. RKincaid3 says:

    Need I say anything more than quote the Court.  “It is not a tale that inspires confidence in our criminal justice system.”  This 56 page opinion is eye-opening and the court does a fine job of analyzing system problems, but most eye-opening is his detailed explanation of how many moving parts there are to the UCMJ authority, accountability and prosecution process–way too many moving parts.  While efficiency and justice rarely go hand-in-hand (due process is expensive), this is a good example of why a commander’s plate is simply too full to adequately and appropriately respond to or account for “JUSTICE” matters.  Commander’s need to command (which should include only “disciplinary” matters, not crimes) and dedicated prosecutors need to prosecute crimes, which are too serious to be handled as disciplinary matters.

  6. charlie gittins says:

    Yes, Phil, I saw my name in there (albeit spelled incorrectly).  However, I don’t think I ever spoke to Santiago, let alone represented him.  I had nothing to do with the case, but I did smile ruefully when I saw that they thought I was involved.

  7. Phil Stackhouse says:

    You need one of these opinions every once in a while. Mark says – “partially informed observation of the military prosecutorial system” – like this opinion doesn’t reflect they way business is done all the time?  Come on.  The allegations are that Santiago SHOT A GUY IN THE FACE and he admitted it within a few days.  How does that work exactly.  No one ran the guy on legal hold in the Unit Diary?  How freaking hard is that.  This case gets far worse if someone with a military justice looks at it closely.
    Charlie – even if you didn’t represent him – I like that your name found it’s way into that opinion.

  8. ExTC says:

    The idea that you cannot pull off a courts-martial in Iraq is bunk. it’s a pain no doubt, but not true, happened all the time. Even passing cases back to US occured frequently. Sad to see this happen when an hour of work probalby could’ve produced justice, or at least a fair trial. 
    Victim would have been better off being shot and then had his butt grabbed, b/c then heaven and earth and VLC could’ve been moved to help resolve this case.  Shot in the face, eh…. they don’t make movies about that or complain to Senators.  Butt grabbed?!?!?! Sound the klaxon…..

  9. D Wright says:

    ExTC- sad but true.

  10. 27A says:

    It is astonishing how this case touches on so many facets of JAG practice (ad law, MJ, LA, staff work).  More amazing is how much it (fairly) indicts the day to day level of practice in our services’ JAG Corps.  As the court points out repeatedly, any junior JAG officer (or 2L) focused on their assigned task at hand could have buckled down and meaningfully contributed to avoiding this mess.  There’s no single point of failure here because almost EVERYONE failed.  
    I’ve seen brain dead JAGs sleepwalk through tragic LOD reviews, seize up in the face of ad law questions not readily answered by reference to their OBC desk books, and TCs play hot potato with odd cases with little potential to be on the cover of Army Times, and ignore case prep to go on jumps to get their master blaster wings.  While  I could do a little sister service sniping, this could easily have happened in an Army office (as it probably has without ending with a federal judge’s smack down).
    An enterprising OBC instructor needs to make this order required reading in week 1 of OBC, the grad course, any MAJ off to ILE, and probably the SJA and GOLO courses.  The judge’s conclusion section is poignant and enough motivation for any JAG to always do what a sage former SJA of mine told me and my young CPT cohorts years ago – “Don’t whine and don’t just check the block.  Saw the wood in front of you zealously because the work matters, maybe not to you but to someone who’s life may be on hold.”  “ATW! As we used to say in my neck of the JAG woods.

  11. Ed says:

    Mark I suggest you being unfair to Judge McMahon who is an extremely thorough and competent  jurist. May I also suggest that you may be offended by the truth and that any insult is well deserved. Also compliments should go to lead counsel James DeVita whose name is not mentioned in he opinion , who I have had the pleasure to work with and who is as gifted a lawyer as Judge McMahon is a judge.

  12. RKincaid3 says:

    Yes, Courts-Martial in deployed environs occur regularly without the degree of difficulty plaguing this case, but they are never smooth or easy.  Along that line, this case causes me to recall with no particular joy the footnote from a fellow Grad Course JAG in his writing assignment.  My fellow quotable JAG (we were deployed together—I as DC and he as TC) described his deployed military justice obligations (e.g., preparing for trial and actually trying a case after having been up all night handling other, more pressing—not more important, but more pressing—legal priorities for his commander)—as a significant “additional duty.”  Conventional wisdom holds that commanders hare “best suited” to handle justice matters, and as such, then it is the commander’s responsibility—even if a JAG drops the ball—to ensure that a Soldier is charged and prosecuted, or is not charged and prosecuted, depending upon the facts and law of the case.  Both this case and the debacle playing out with USAF LTG Franklin reflect the primary ongoing problem with the UCMJ—it is too easy for the outcome to be manipulated by outside forces—from commander discretion (including attention span) to panel selection to charging decisions to appellate inconsistencies and ultimately, Congressional tampering.
    Additionally, check out the latest the juicy tidbit (link below) that was just circulated TODAY, 21 Dec 13.  
    There are now Congressional calls for LTG Franklin’s removal simply (again) for doing what the rules allow.  And yet the proposed remedies for those legal actions taken by LTG Franklin are to tinker with the rules (as in the latest NDAA) amendments with a pro-prosecution bent or, now, to remove a commander for exercising the lawful discretion he is supposed to exercise.  So, in addition to Section 1744, of the latest compromise legislation in the recently passed NDAA (requiring the “creation of Service-level policies for the ‘review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense’ and requires the forwarding of cases “a staff judge advocate acting under Art. 34 recommends referral of sexual assault offenses and the convening authority refers no charges to trial” and requires forwarding to “the next superior GCMCA for review when the SJA recommends against referral and no charges are referred.”), apparently the penalty in those “Service-level policies” for a Commander’s failure to rush to the court house is that they will be removed.

  13. RKincaid3 says:

    Okay. My apologies.  I don’t know what happened above…but the last paragraph of my last post is jacked up and the conclusion is missing.  Ignore the last paragraph above.  The correct paragraph and conclusion appear below.
    There are now Congressional calls for LTG Franklin’s removal simply (again) for doing what the rules allow.  And yet the proposed remedies for those legal actions taken by LTG Franklin are to tinker with the rules (as has been done with the latest NDAA amendments codifying a pro-prosecutorial bent and, as evinced by the above link from Sen Gillibrand, to now remove a commander for exercising the lawful discretion he or she is supposed to exercise.  The amendments known as Section 1744, of the latest compromise NDAA require the “creation of Service-level policies for the ‘review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense’ and requires the forwarding of cases in two scenarios: 1) when “a staff judge advocate acting under Art. 34 recommends referral of sexual assault offenses and the convening authority refers no charges to trial” and 2) to “the next superior GCMCA for review when the SJA recommends against referral and no charges are referred.”  Based upon Sen Gillibrand’s latest comments, those “service-level policies” now must apparently include a penalty provision requiring the removal of a Commander who fails to rush to the court house.  I am at a loss to reconcile the defense of the status quo (holding that a commander is best suited to make prosecutorial decisions and is thus to be trusted when exercising UCMJ authority) and the codified implication in Section 1744 that commanders are trusted to make the right decision unless the decision is not to prosecute.
    It seems to me that there should be more outrage from this debate.  Congress was fine with commander’s discretion so long as it was out of sight and out of mind and when the only people complaining about the UCMJ were academics and those who were convicted.  Now Congress is involved to the point that their statutory dabbling holds that a commander can’t be trusted to handle justice matters to get the right result while simultaneously being trusted as the person best suited to handle justice decisions as part of their inherent command authority.  So it is now a political cause celebre and more tinkering is afoot.  This is not new.  Recall the national outrage over commanders abusing their service members which resulted in the Crowder-Ansell debates in 1916.  The only difference between then and now is that a commander’s victims today are sex assault victims.  As I stated previously in other posts, whether it is the rights of a victim of sex assault or a service members minimal and basic due process rights that are sacrificed at the altar of a commander’s discretion, it is not justice that results.  The commander’s mission is NOT justice.  The commander’s mission is to run his or her organization through discipline.  Imposing a federal conviction is not and has never been an effective and necessary command disciplinary tool and justice has evolved to a point that it is so particularly specialized that a commander is as out of place making justice decisions as a JAG is out of place deciding personnel staffing, combat strategy, tactics and mass and maneuver decisions on the battlefield.
    No justice system will ever achieve universally satisfying results and none should or can ever be objectively judged as successful simply by looking at its results.  A true justice system can and should only be judged by the fairness of its procedures, not its outcomes as it is is a process, not a result.  Apparently, Congress and a lot of the defenders of the status quo just don’t get it, despite the obvious examples like this case (and the LTG Franklin case) which are embarrassingly and publicly visible.  
    Prosecution decisions need to be made by professional prosecutors based upon the facts and the law, and independent of commander’s military obligations, just like the defense and the military judge are to make decisions for reasons having nothing whatsoever to do with the commanders needs or interests.

  14. stewie says:

    I’m curious…we are Article I courts, our entire existence is due to and continues because of “congressional tampering.”  How do you propose to get rid of that, change us into an Article III court?
    Congress is always going to tamper with our system.  Sometimes in good ways (see creation of UCMJ) and sometimes in bad ways (see pretty much everything post 2007).  And my point is that at the end of the day, the harms (and helps) to justice has come a lot more from Congress than anywhere else…but nothing we can do about it (other than to continue to try and educate members of Congress) because Congress makes the rules, and not sure how that changes.
    I wouldn’t disagree that we make military justice harder internally because we talk about it as being “our only statutory duty” that we have to do much better on but we treat it like just another leg on the well-rounded stool.  Until we start developing more specialists, we internally are doing damage to justice with self-inflicted wounds that have nothing to do with the system itself or Congress for that matter.

  15. RKincaid3 says:

    Stewie:  your point is well taken.  We cannot become an Art III court for obvious and practical insurmountable reasons. The remedy is for Congress to draft a statutory scheme establishing within the UCMJ an independent prosecution and providing statutory guidance directing the courts to quite deferring to the unique military environment.  Such deference would no longer be necessary if UCMJ courts were largely administered as civilian courts.  This is because the courts defer to Congress on how best to handle the military. Conceivably, once Congress tells the courts that the UCMJ is to be treated as a true justice system except where Congress has specifically provided that it is to receive limited deference, then the courts will treat UCMJ cases as justice cases, not commander-centric disciplinary systems.  
    Can we ever avoid congressional tinkering? Obviously not.  But doing something new will certainly be better than continuing to do the same insipid actions over and over again and expecting justice to result.
    Granted, fixing this will require something like a Cox Commissions on steroids. It will take much time and probably some significant expense along much expert testimony to make something significant happen.  And it will require testimony by the SMEs actually still practicing law in the trenches and not just from those who have NOT been in a court room in 10 or 15 years and whose clients stand to lose their command authority in justice matters by the necessary changes.
    Some of the stuff we litigate nowadays (like UCI) might actually be minimized or eliminated altogether by the imposition of a true justice system.

  16. stewie says:

    But why do that and not just leave it to the civilians in the entirety? Why recreate a civilian system when one already exists? All you are doing is arguing for the military justice system to go away.
    We aren’t going to agree on this obviously.  I think we had a “true justice system” as much as any flawed human justice system can be (which is to say never) prior to 07.  It was not perfect, but all-in-all, it was about as good as the civilian system.  Better in some places, worse in others, overall equivalent.
    I don’t believe we need severe systematic changes, we just need a time machine that goes back to 2006.

  17. Neutron73 says:

    THe amount of post-trial paperwork and process in the MilJus system is absolutely incredible.  I’m constantly amazed at the amount of paper, endorsements, second and third endorsements, acknowledgements, notifications, memos, and records that have to be produced for a simple court-martial.  Ridiculous.  I think it’s a system set up to create a ridiculous paper trail to keep a lot of people employed to merely…..push paper.

  18. RKincaid3 says:

    Stewie:  No, I am not arguing for the military justice system to go away.  I am arguing for its evolution into a true justice system.  Granted, there are systemic limitations which must be considered.  For example, obviously, we can’t just defer prosecution to civilian attorneys, such as the local US attorney’s office/DoJ.  They are all civilians.  There are no local USAs in deployed environs, nor any who would/could deploy with the troops to prosecute those cases where the evidence is located.  No, shoving everything off on to the civilian legal system is not the (or even an) answer.  I am talking about implementing civilian concepts of “justice” within the UCMJ, which does not require passing the prosecution buck to civilian prosecutors—it simply requires the system to evolve. 
    As I said earlier, to make such an evolutionary leap, Congress will have to empanel a Cox Commission on steroids.  Congress will have to have the courage to either vote against their political interests in favor of neutral justice, or establish a separate, independent commission to make the tough calls that it either lacks the courage or will to make (such as they did with the BRAC committee).  Such a blue ribbon commission will have to be staffed (and funded) with the best and brightest from legal academia (who have JAG and/or military backgrounds) and the JAG worlds.  And it will have to be empowered to make the tough but necessary recommendations to implement “justice.”  The legal academics are needed as the experts necessary to keep the system grounded in traditional and modern theoretical concepts of a true “justice system.”  The JAGs, provided they are currently or have been recently engaged in actually executing military justice, are needed to provide the intimate familiarity with the UCMJ in practice—not just in theory.  Between the two, a true compromise justice system—as good as any Article 1 court system can be while operating in diverse places under unique, varying deployed conditions.  Obviously, this won’t stop congressional tinkering here and there, but if Congress defers to the experts who have a goal other than politics, a system of military justice could be devised that would be as “just” (for both accuseds and victims) as the civilian federal justice system can be.
    You are correct in stating that you and I aren’t going to agree on this.  You seem stuck on the pre-2007 UCMJ, but the only major differences between then and now involve sex assault, which arguably tilted the scales of justice towards victims and away from an accused.  Such tampering is alarming and I can’t believe the amount of Congressional blindness (and that of others) on this point.  As for me, I simply cannot concede that the UCMJ has ever been a “justice” system given its history of abusing those subject to it (accuseds), and/or those affected by it (victims), simply because the result was exclusively within a commander’s “discretion.”  And, let’s not forget that currently (as with USAF LTG Franklin), the penalty for exercising command discretion in a way that is legal but politically unpopular is more Congressional tinkering, public censure/reprimand and/or removal from office.  A justice system should generally instill confidence in those subject to it (and affected by it–such as victims) even while those subject to it hope to never appear before it.  The UCMJ has never generally instilled confidence.  Even the courts have noted problems with it but have copped out by “deferring” to Congress’ authority to regulate this “unique” area and its challenges.  Such deferment would end if Congress would legislate that the UCMJ should effectuate justice, not just enable commanders.
    What should be agreeable is that the UCMJ has been evolving and needs to continue evolving towards—not away from—becoming a true justice system.  It needs to finish what started with Ansell’s proposals way back in 1916.

  19. Christopher Mathews says:

    Between this case and Salyer, it has not been a year of judicial glory for Marine Corps JAGs.

  20. Butch Bracknell says:


    Military Times about a month late, but here’s the story, airing out Marine judge advocate dirty laundry to all the services yet again.