Camp Lejeune – On December 21, 2021, a motion hearing took place in a Camp Lejeune courtroom involving U.S. Navy Chief Petty Officer Eric Gilmet, a Special Operations Independent Duty Corpsman (SOIDC) serving with the U.S. Marine Corps Special Operations Command’s Raiders.
The hearing was in relation to a previously filed motion by Chief Gilmet’s defense team to, “dismiss all charges and specifications with prejudice due to unlawful command influence (UCI) committed by Colonel Christopher Shaw while acting in his capacity as Judge Advocate Division’s Deputy Director.”
Prior to the motion hearing, judges in Chief Gilmet’s case and the case involving the other two members of the MARSOC 3, Marine Raider Gunnery Sergeant Daniel Draher and Marine Raider Gunnery Sergeant Josh Negron, found that there was at least some proof of UCI – which shifted the burden to the government to disprove.
The original defense team for Chief Gilmet, which included Captain Matthew Thomas (USMC), Captain Keagan Riley (USMC), and Lieutenant Colonel Colby Vokey (USMC ret.), established that the statements made by Colonel Shaw, who at the time as Deputy Director was responsible for the Marine Corps’ Military Justice and Community Development, were in fact actual unlawful command influence and prejudiced the attorney-client relationship between Captain Thomas and Chief Gilmet – violating Chief Gilmet’s Sixth Amendment rights.
Colonel Shaw has since been removed from his role within the JAD office and has been reassigned. An official investigation into his actions is pending.
According to the motion filing documents, due to Colonel Shaw’s authority to control the career path for Captain Thomas, “Colonel Shaw has created a personal interest for Captain Thomas whereby Captain Thomas now has to choose between potential billet assignments and promotion opportunities – in other words, a successful Marine Corps career– and zealously representing Chief Gilmet. Such a conflict flies in the face of the American Bar Association Ethical Rules and Naval policies that guide the legal community.”
Background
Chief Gilmet, Gunnery Sergeant Draher, and Gunnery Sergeant Negron have been charged with crimes stemming from an incident that took place in Erbil, Kurdistan (Northern Iraq) on New Year’s Eve, 2018.
According to video footage and legal documents, an inebriated military contractor, initiated multiple confrontations in separate locations against individual members of the MARSOC 3. During one incident, after the contractor, a retired U.S. Army Green Beret, landed two punches and was in the process of throwing a third against one of the MARSOC 3 Raiders, one of the other Raiders quickly stepped in to defend his teammate and prevent him from sustaining additional injuries.
The contractor collapsed in the street and his friends abandoned him. Despite having been confronted by the belligerent contractor multiple times, Chief Gilmet and the MARSOC 3 felt duty bound to care for the contractor at the scene, return him to base, and to ensure he was looked after through the evening. At a certain point during the night, the contractor aspirated on his own vomit and stopped breathing. The MARSOC 3 coordinated his MEDIVAC to a hospital. However, unfortunately, four days later medical professionals confirmed that the contractor died of complications stemming from his intoxicated state and from having choked on his own vomit.
Despite the overwhelming evidence of the MARSOC 3 acting in self-defense/defense of others, the Chief Gilmet and the Marine Raiders were charged with “involuntary manslaughter, negligent homicide, obstructing justice, and violations of orders.”
If convicted Chief Gilmet faces federal felony convictions, a dishonorable discharge, and over 20 years of confinement – as do Gunnery Sergeant Draher and Gunnery Sergeant Negron.
Motion Hearing Results
Chief Gilmet’s motion hearing began with the U.S. Navy judge highlighting how heavily linked the apparent UCI was to the violation of the defendant’s 6th Amendment rights. Before allowing the government to begin their arguments, the judge addressed the apparent conflict of interest between Chief Gilmet and his military defense counsels.
As a result of the apparent UCI stemming from Colonel Shaw’s statements, both military defense counsels – Captain Thomas and Captain Riley – requested to be removed from the case for fear of reprisal and unfair treatment with the handling of their career by senior JAD officials because of their affiliation to the defense. Both had previously consulted their legal authorities and were strongly advised to step away from the case because of the irreparable damage done by Colonel Shaw.
Because of Colonel Shaw’s threats, Chief Gilmet was then forced to decide between moving forward with a compromised defense counsel, or to part ways with the defense team that he had built cohesion with for several years to avoid the effects of UCI.
While the government began by admitting that Colonel Shaw’s statements were “misguided and ignorant” and “not grounded in reality”, those statements effectively punished Chief Gilmet by forcing him to make a Sophie’s Choice type of decision.
The government prosecutors continued by arguing that Colonel Shaw’s statements that he could control defense counsel promotions were now invalid because he has since been removed from his role at the Judge Advocate Division office – despite the damage already being done to Chief Gilmet and his defense team.
While the government argued that Colonel Shaw had no axe to grind with Captain Thomas, text messages obtained by the defense team proved that was false.
On the morning of November 18, prior to the meeting where Colonel Shaw briefed those in attendance at the Camp Lejeune Defense Service Office on proposed policy changes for judge advocates to act as the referral authorities on special victim cases involving sex crimes, he made statements to the effect of, “Captain Thomas might want to re-think his next moves” via text messages to another officer.
During the briefing, Captain Thomas asked Shaw, “What is being done to protect the attorneys in that position from outside influences such as political pressures, media pressure and general societal pressures?”
In response, Colonel Shaw stated, “Captain Thomas, I know who you are and what cases you are on, and you are not protected.”
Colonel Shaw also stated that on the promotion board, “our community is small enough that the attorneys will know what you did.”
During the meeting, Colonel Shaw made comments about another case involving an officer who has been accused of a sexual assault crime but had not yet been brought to trial. That officer was in the room when Colonel Shaw made statements to the effect of, “we all know he’s guilty”, displaying his disregard for being innocent until proven guilty.
Additionally, Colonel Shaw laughed off his negligence in a situation earlier in his career when a homosexual member of the unit he once commanded was being physically beaten up and verbally abused – yet Shaw did nothing to stop it.
The wide-ranging salvo of inappropriate comments from Colonel Shaw that day highlight the disregard that a senior JAD officer can have toward active cases, and the fear from many defense counsels and defendants is that they will suffer the same bias toward their careers and cases at some point if they find themselves on the other side of an issue that the JAD community disapproves of.
Course of Action
The judge from Chief Gilmet’s motion hearing stated he had been prepared to render a decision on the UCI motion that same day or shortly after, but that he would instead need to take time to further decide on what he will rule.
The forthcoming decision from the judge will have a profound and lasting impact on the military justice system, and if he rules to dismiss the case with prejudice it will signal to Marine Corps officers that UCI will no longer be tolerated.
If the case is not dismissed in the coming days or weeks, the judge established dates for next steps.
The defense requested and was approved for a continuance to allow time for them to identify new counsel – most likely from another branch of the military due to the reach of further UCI within the Marine Corps. The judge approved a deadline to have a preliminary list of names by January 14, 2022.
A 39a hearing has been tentatively scheduled for January 21, 2022.
READ THE MOTION TO DISMISS DOCUMENTS HERE
