Unlawful Command Influence Behind Overturned Court Martial Conviction

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Q: What rights and remedies exist if a court-martial conviction is overturned five years later for unlawful command influence?

Appealing a court-martial conviction or having it overturned may be possible, even years later in some cases. Sometimes it takes that long for allegations and evidence of alleged unlawful command influence to come to light.

Five years after its conviction of a Marine Corps scout sniper “involved in desecrating the bodies of enemy fighters in Afghanistan” by urinating on Taliban corpses, the Navy-Marine Corps’ Court of Criminal Appeals has overturned the conviction a former staff sergeant.

The court ruled that actions taken by the then-Commandant of the Marine Corps “created the appearance of unlawful command influence in the conviction, creating a taint on proceedings that was never adequately addressed or alleviated”.

Reportedly, nine Marines were involved and subjected to various levels of punishment “from special court-martial to letters of reprimand” after a videotape of Marines urinating on Taliban corpses in 2001 was posted on YouTube.

Despite the former staff sergeant reportedly pleading guilty and receiving “a relatively light sentence under a pre-trial agreement”, the appeals court found unlawful command influence. The court also felt that “dismissal of charges, rather than retrial, was the only fair remedy” in light of the five years that has elapsed since trial. After his conviction, the Marine had reportedly received 30 days confinement, demotion in rank, and docked pay, and “left the Marine Corps shortly after his conviction”.

Unlawful command influence allegedly came from actions taken by the then-Commandant who “had attempted to interfere with the cases to ensure harsh punishments for the Marines involved” according to the court.

In a nutshell, the Commandant reportedly advised the first oversight authority for the sniper cases that the Marines involved should all be given a general court-martial and be “crushed” and discharged. When the oversight authority allegedly did not agree to give them all a general court-martial, the Commandant replaced him two days later with a new oversight authority. Affidavits from attorneys for the oversight authorities alleged unlawful control influence actions by or on behalf of the Commandant continued.

The substitute oversight authority was reportedly also questioned about which Marines he would prosecute. Other alleged actions of UCI involved reported attempts to hinder the defense teams by attempting to classify the urination photos and videos as secret, and questionable memos between the Commandant and the then-Commander of the snipers’ 11 Marine Expeditionary Force regarding “updates and recommendations” about sniper prosecutions. Collectively these alleged actions were found by the appellate court to be UCI when it ruled “the public confidence in military justice requires dismissal with prejudice” in the staff sergeant’s case.

Attorneys for some of the other Marines who were disciplined in the urination video incident are now plotting what action, if any, is available to overturn the convictions and punishments they received.

The attorney for one Marine, who had been nominated for a Bronze Star, and tragically died in 2014 at the age of 28 is examining an appeal of his client’s summary court-martial as well as a resubmission of the Bronze Star recommendation. Many of the Marines’ attorneys feel that “although five years have passed and none of the Marines remains in uniform, the symbolic gesture of restoring rank and vacating convictions is important to see through.”

This incident demonstrates why you should not trust your freedom and your future to a court-appointed military attorney from the defense counsel who may not only be inexperienced and overworked, but could be subjected to internal pressures that conflict with your best interests.

If you are or believe you might be facing a military court-martial or need assistance with a court-martial appeal, the skilled civilian military defense attorneys at Elkus, Sisson, and Rosenstein P.C. will fight for your rights and give your case the time and attention it deserves. Contact us today for a free consultation.

From our offices in Denver and Colorado Springs, we have a proven track record of defending and appealing high-profile criminal cases in any branch of the military – – anywhere in the world.

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