CAAFlog » Court-Martial News » Maj Thompson

In this post I noted news reporting about a military legal ethics inquiry connected to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016. Such ethics inquiries are notoriously opaque.

That inquiry is now over. Stars and Stripes reports here that:

The ethics probe into Navy-Marine Corps Court of Criminal Appeals Judge Cmdr. Aaron Rugh was closed after the investigation “found that the available evidence failed to support a violation” of the Rules of Professional Responsibility governing Navy lawyers, according to a memo signed by Vice Adm. J.W. Crawford III, the Navy Judge Advocate.

“Accordingly, no further inquiry will be conducted and the matter is now closed,” said the brief memo dated Monday and received Tuesday by Stars and Stripes.

The Washington Post’s Jonathan Woodrow Cox – whose reporting led to this prosecution of Major Thompson – also writes about the end of the inquiry here.

Defense counsel often tell an accused that he has one job: Keep your mouth shut. Marine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox illustrate why.

Read more »

The professional responsibility systems for military lawyers – administered separately by each Judge Advocate General – are notoriously opaque. However, this news report related to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), provides a rare glimpse into one inquiry:

The Washington Post revealed that [Navy judge advocate and appellate military judge Commander] Rugh had given false information to a board of officers deciding whether a Marine he’d prosecuted for sexual misconduct should be expelled from the service.

Now his future — and potentially dozens of criminal appeals he’s overseen — is being threatened by the fallout from the flawed investigation into Marine Maj. Mark Thompson, a former instructor at the U.S. Naval Academy convicted of having sex with two female midshipmen.

Last week, Rugh testified at an ethics hearing before a senior officer probing whether he lied under oath in 2014 about two witnesses, his attorney said. Thompson is accused of lying to the same board and faces a second court-martial because of The Post’s revelations about his case.

The claim that CDR Rugh lied arises from the Board of Inquiry convened to determine whether Major Thompson should have been separated from the Marine Corps after he was convicted of indecent conduct and fraternization with junior officers and sentenced to confinement for two months and a fine of $60,000. In a surprise move the Board decided not only to retain Major Thompson on active duty, but also determined that he did not commit any misconduct (despite the fact that the court-martial conviction is treated as conclusive proof of misconduct).

CDR Rugh was the lead prosecutor at Major Thompson’s court-martial, and he testified to the Board (via telephone) about the facts of the case. In particular, CDR Rugh told the Board that his prosecution team talked to family members of one of the junior officers and corroborated the allegation that the officer was at Thompson’s home on a particular night. This was news to Thompson’s defense counsel, and they later raised it as an issue of non-disclosure in an effort to reverse Thompson’s convictions.

In the exposé that kindled the current prosecution of Major Thompson, Washington Post reporter Jonathan Cox spoke to some of the family members that may have been contacted by the prosecution team. They told him that they were never contacted by the prosecution. That revelation led to the claim that CDR Rugh gave false information to the Board.

The Navy’s professional responsibility system is detailed in JAG Instruction 5803.1E (available here). Complaints involving professional misconduct follow a five-step process: (1) Initial screening to determine if the complaint, on its face, establishes probable cause to believe that the rules were violated; (2) Initial review by the Rules Counsel to determine if the complaint is of a minor or technical nature that may be addressed summarily; (3) An ethics investigation if the complaint is not dismissed or resolved summarily; (4) Review of the result of the ethics investigation by the Rules Counsel, and; (5) Final action by the Judge Advocate General.

The news report suggests (update: and this version clearly states) that the complaint against CDR Rugh has reached the ethics investigation stage. However, it provides the following additional details:

Rugh’s attorney, retired Rear Adm. Christian L. Reismeier, wouldn’t comment on what his client said at the ethics hearing. But he denied that Rugh, 44, had intentionally misled the board. In an email, Reismeier called the alleged misstatement an “honest mistake” based on information that Rugh believed to be true at the time.

Two recent developments in the ongoing case of Marine Major Mark Thompson (CAAFlog news page), which is currently scheduled for trial in January (according to this news report), are worthy of mention.

First, as reported here, Thompson’s attorneys assert that the recording of Thompson’s interview with the Washington Post, posted online this summer (discussed here) is incomplete:

The 45-minute audio recording of The Post’s interview with Thompson, which the newspaper published online in July, is part of the military’s case set to begin in January.

At a preliminary hearing at Marine Corps Base Quantico on Tuesday, Thompson’s attorneys asked a military judge to order The Post to turn over the original recording and contemporaneous notes from the reporter.

“Our contention is that there are portions of the interview missing,” Thompson attorney Kevin B. McDermott said in the courtroom in the basement of Lejeune Hall. “If the government intends to use my client’s statements against him, we believe we should have access to it.”

Second, as reported here, Thompson’s attorneys are asserting prosecutorial misconduct in connection with the immunized statement of another Marine, Major Pretus, who will be a witness against Thompson:

In a motions hearing Sept. 13 at Marine Corps Base Quantico, Virginia, defense attorney Navy Lt. Clay Bridges said the three attorneys for the prosecution engaged in misconduct by not allowing Pretus to confer with an attorney before signing the immunity offer, made by Vice Adm. Walter E. “Ted” Carter, superintendent of the Naval Academy.

At the time of the offer, Pretus made a lengthy statement in which he described his friendship with Thompson, the sexual encounter with a midshipman, and phone calls between the two on another night, in which he alleges Thompson revealed his intent to have sex with two drunken midshipmen then at his house.

“The actions of the trial team have resulted in a different testimony,” Bridges said in Wednesday’s motions hearing. “And we will never be able to get the testimony back.”

It’s not clear how Pretus’ testimony might have been different if he had been allowed to confer with an attorney, as he requested.

The Washington Post has made a significant disclosure in the ongoing case of Marine Major Mark Thompson (CAAFlog news page), who faces a second general court-martial after he invited the Post to look into his case: It published the audio of the final interview between Thompson and the Post reporter.

During a 45-minute interview in January — previously excerpted and now published in full online — reporter John Woodrow Cox showed Thompson copies of the text messages he uncovered and repeatedly asked Thompson why he had lied about Stadler’s late-night visit to his Annapolis home during her graduation weekend.

“I simply had to,” Thompson said in the recorded interview. “When they were coming after me for 41 years, I can’t begin to say, you know, how terrifying that is.”

If he’d been convicted of the rape charge, he might have faced a sentence that long. During the interview, Thompson continued to maintain that he had not had sex with either woman and offered more explanation for not divulging the text messages.

“If I were to say, acknowledge that I thought they were flirtatious, that moved me on the scale closer towards, well, it was probably a relationship,” he said. “So I avoided anything that looked like it could be unduly familiar or flirtatious.”

When Cox again pressed Thompson on why he’d lied, the Marine asserted that he was “never questioned” about his final encounter with Stadler. The reporter reminded Thompson that he had been asked about it both at the administrative hearing and “multiple times” by The Post.

“I simply wanted to distance myself,” Thompson said, “from anything that would look like there was more familiarity than there was.”

Article here. Audio here.

The audio is somewhat difficult to understand because of background noise.

The article also discusses one of the charges against Major Thompson: that he engaged in conduct unbecoming in violation of Article 133 by misleading the Post reporter.

The Washington Post reports here that:

Marine Maj. Mark Thompson — who has long ­insisted that he was falsely accused of having sex with two U.S. Naval Academy students — will face a court-martial on allegations that he lied repeatedly in an effort to prove his innocence.

Our prior coverage of the case is available here.

Marine Major Mark Thompson, who faces new charges (discussed here) after he invited the Washington Post to look into his court-martial conviction (discussed here), elected to not participate in the Article 32 preliminary hearing in his case yesterday.

The Marine Corps Time reports (here) that:

Kevin McDermott, the civilian lawyer for Marine Corps Maj. Mark Thompson, called the hearing at Quantico Marine Corps Base a “show trial.” After Thompson was advised of his rights, he and his lawyers walked out of the hearing, making themselves “voluntarily absent,” in military jargon.

Additionally, the Washington Post reports (here) that:

Marine Maj. Mark Thompson’s friends warned him to leave his case alone. But he couldn’t, a fellow Marine later told investigators.

The former U.S. Naval Academy teacher was fixated on proving that he had been unfairly convicted in 2013 of having sex with two female midshipmen. So he brought his allegations of injustice to The Washington Post — a decision that led to revelations in the case and serious new charges against Thompson.

“I knew it was stupid. There were people who tried to talk him out of the Post article, but he wouldn’t hear it,” Maj. Michael Pretus told investigators in a recording played Friday at Thompson’s preliminary hearing in Quantico, Va. “He was on an obsession course. You couldn’t get him to talk about anything else.”

Yesterday, of course, was Friday the 13th.

Washington Post reporter John Woodrow Cox – whose investigation of the court-martial prosecution of Marine Major Mark Thompson, formerly an instructor at the Naval Academy, yielded some ugly results (discussed here) – now reports that Major Thompson faces new charges:

After revelations about his case in The Washington Post, the military has now charged Thompson with one count of making a false official statement and another of conduct unbecoming an officer and a gentleman.

The full story is available here and includes this damaging admission:

Asked in January of this year why he had lied to authorities, Thompson described the immense pressure he faced after one of the women asserted that he’d raped her.

“I simply had to, when they were coming after me for 41 years,” Thompson said, “I can’t begin to say, you know, how terrifying that is.”

I noted the Washington Post’s investigation of the court-martial prosecution of Marine Major Mark Thompson, formerly an instructor at the Naval Academy, in this post, commenting that the results weren’t pretty.

The story still has legs, as reporter John Woodrow Cox wrote yesterday that the Military launches a new investigation into Marine major’s sexual misconduct case:

Following Washington Post revelations about Thompson, a Marine Corps prosecutor and an investigator met this week with one of his accusers, Sarah Stadler, to review the contents of her long-missing cellphone, she said.

“I can confirm that the Marine Corps is examining new evidence that has recently come to light as a result of the Washington Post article about Maj. Thompson’s case,” Rex A. Runyon, a Marine Corps spokesman, said in an email. “I cannot provide additional details as it is our policy not to discuss ongoing investigations.”

…and the results aren’t pretty.

https://www.washingtonpost.com/graphics/local/marine/

Our previous mentions of the case are here and here.

Virtually every media outlet has a PFC Bradley Manning court-martial preview, so I won’t list them.  WaPo here and Baltimore Sun here.

Here is an editorial from the NYT editorial board on the sexual assault issue.

Here is the Baltimore Sun’s coverage of the USNA rape allegation mentioned in the NYT editorial. And also from Annapolis, a Marine Corps Major and former USNA instructor was acquitted of rape charges stemming from an incident at the Academy, Balto Sun report here.   The major was found guilty of indecent acts and other charges/specs, and will be sentenced Monday. I am guessing the next bill in the House is one to permit higher legal authorities to overturn acquittals . .  oh wait, we’ve already seen that attempted.

And here is the Defense Report Of The Subcommittee On Military Justice In Combat Zones.  There are a series of recommendations beginning on page 28, Section 4.0 of the report.

The Superintendent of the US Naval Academy referred charges for what is alleged to be a non-consensual threesome between a Naval Academy instructor and two female Mids after the annual USNA-St. Johns croquet match in April 2011. ABC News reports, here and the Baltimore Sun, here, report that the Supe referred sexual assault and other charges against Marine Corps Major Mark Thompson to a general court-martial.

The military judge in the SSGT Robert Bales case set Sep. 3, 2013 as a trial date. See AP (via WaPo) report here. Bales’ counsel called the date “very unrealistic.” Bales is accused of murdering 16 Afghan civilians outside a US base on March 11, 2012. AP reports that Bales counsel also said:

Browne said the judge has scheduled questioning of potential jurors to begin Aug. 19,and dates for pre-trial motions to be filed and argued April 23-26 and June 4-7.

Browne and co-counsel Emma Scanlan have each traveled to Afghanistan to investigate the case,but Browne insists another trip by at least one member of the defense team would be necessary before the trial.

One hurdle to that is financial,he said. He has repeatedly noted that his firm is working for Bales for free —Bales also has appointed military defense counsel.

If Browne can’t raise the money for another trip to Afghanistan,he said,his firm might have to withdraw from the case —which,he noted,could set the trial back more than a year.

Military judge COL James Pohl put an end to remote silencing of military commission proceedings reports the NYT, here. The article also discusses efforts underway to deal with material support for terrorism and conspiracy charges in the case, which have come into question since the DC Circuit’s ruling in Hamdan and Chief Prosecutor Mark Martins statements that he thinks those charges should not be pursued by the commissions.