In January 2012 a video surfaced showing four Marines urinating on the bodies of deceased insurgent fighters in Afghanistan. The following year the investigation and military prosecutions arising from that video were our #6 Military Justice Story of 2013.
When the video appeared, then-Commandant of the Marine Corps, General James Amos, withheld disposition authority over cases associated with the video, exercising a power provided in Rule for Courts-Martial (R.C.M.) 306. Amos assigned that authority to then-Lieutenant General (now General) Thomas Waldhauser, appointing him as the consolidated disposition authority (CDA) for the cases.
But Walshauser was replaced as CDA by Lieutenant General Richard Mills (since retired) in February 2012 after – according to Waldhauser – General Amos told Waldhauser that he wanted the Marines involved in the video “crushed” and kicked out of the Corps (CNN report). General Amos eventually publicly denied making that statement.
The month after replacing Waldhauser with Mills as CDA, General Amos issued White Letter 1-12, referencing “a number of recent, widely-publicized incidents [that] have brought discredit on the Marine Corps and reverberated at the strategic level.” Amos then began a tour of Marine Corps installations, giving a presentation that became known as the Heritage Brief. I discussed the Heritage Brief in depth in this post.
Ultimately, a handful of Marines were disciplined in connection with the urination video. Some accepted non-judicial punishment. Others pleaded guilty at special courts-martial with pretrial agreements.
One of the Marines who pleaded guilty at a special court-martial was Staff Sergeant (E-6) Chamblin. On Dec. 19, 2012, Chamblin pleaded guilty to willful dereliction of duty, two orders violations, and wrongfully urinating on deceased enemy combatants. The approved sentence was confinement for 30 days (suspended), forfeiture of $500 pay per month for one month (additional months suspended), and reduction to E-5. Chamblin subsequently left active duty, wrote a book about his experiences, and foiled an alleged attempted murder.
Three days ago a three-judge panel of the Navy-Marine Corps CCA reversed Chamblin’s convictions and dismissed the charges with prejudice (meaning Chamblin cannot be re-tried) based on the appearance of unlawful command influence stemming from the actions of General Amos and his legal advisers. United States v. Chamblin, No. 201500388 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.).
Writing for the unanimous panel and applying reasoning from last term’s decision in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page), Judge Fulton concludes:
the burden is on the government to show, beyond a reasonable doubt, that the UCI did not place an intolerable strain upon the public’s perception of the military justice system and that an objective disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding. We think that such an observer would share the SJA’s sense that the CMC and lawyers who reported to him “severely and systematically interfered” with this case and would harbor significant doubt about the fairness of the proceeding.
Slip op. at 16. But unlike in Boyce – where a slim majority of CAAF found that reversal with prejudice “would result in an improper windfall” in the absence of individualized prejudice, 76 M.J. at 253 n.10 (and the minority wouldn’t have reversed at all) – the NMCCA finds that:
public confidence in military justice requires dismissal with prejudice in this case. Nearly six years have passed since LtGen Waldhauser was named the CDA. Like the appellant in Salyer, this appellant had a right to a timely trial free from UCI. Col Gruter, who would have recommended that this case be disposed of nonjudicially had evidence not been withheld, has recused himself, and cannot participate further. We find lesser remedies inadequate to the harm. Dismissal of the charges and specifications with prejudice is necessary in this case to ‘“foster[ ] public confidence in the . . . fairness of our system of justice.”’
Slip op. at 17 (emphasis added) (marks in original).
It’s a remarkable conclusion not just because of the result, but because of the analysis that gets the court there.
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