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Appeals court: Conviction 'not tainted' by Heritage Brief

Mar. 22, 2014 - 06:00AM   |  
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In a sexual assault case in which the commandant was required to answer questions about his statements related to the crime, a military appeals court has opted not to overturn the defendant’s guilty verdict.

An unpublished opinion from the Navy-Marine Corps Court of Criminal Appeals, released this month, found that although apparent unlawful command influence may have existed, Staff. Sgt. Tarrell Jiles’ sexual assault conviction and sentence were not substantially affected.

Jiles, a Marine band member, was arraigned on charges of sexual harassment and assault in May 2012. That same month, Gen. Jim Amos disseminated a white letter denouncing Marine perpetrators of sex assault amid his “Heritage Brief” tour. During at least one stop on that tour, the commandant stated that for Marines accused of such crimes, “the fact of the matter is 80 percent of those are legitimate sexual assaults.”

In June, Jiles’ defense attorney, Brian Bouffard, filed a motion for relief, alleging that Amos’ statements constituted unlawful command influence.

The following month, the military judge, Col. Daniel Daugherty, took an unprecedented step: He ordered that Amos be called to answer written questions about his Heritage Brief. In a six-page response, Amos said he was not familiar with Jiles’ case while delivering his Heritage Brief remarks and intended to appeal to Marines’ morality not dictate a course of action for the disposition of specific cases.

The judge found that while the prosecution had proved that actual UCI did not exist in the case, it had failed to prove that apparent UCI did not exist.

A “disinterested observer,” he said, could reasonably conclude the commandant’s words would influence jury members in sexual assault cases.

Daugherty awarded Bouffard three additional jury challenges and extra time interviewing the jury as a remedy for the apparent unlawful influence.

Ultimately, however, Jiles took a plea deal, going to summary court-martial on charges of simple assault in October 2012 and receiving 100 days confinement, demotion to private and a bad conduct discharge.

In a later motion, Jiles’ legal team referenced a sworn statement from Lt. Gen. Thomas Waldhauser, who said Amos removed him as the oversight authority for a set of high-profile cases involving Marine scout snipers filmed urinating on enemy corpses, after he refused Amos’ request to ensure the snipers were “crushed.”

Amos had said the he replaced Waldhauser because he did not want his comments to be seen as interfering in the cases; he has also asserted more recently that he never said he wanted the snipers crushed.

“I believe some of my comments during our recent conversation could be perceived as possibly interfering with your independent and unfettered discretion to take action in those cases,” Amos wrote in a memo informing Waldhauser of the commandant’s decision to replace him as the convening authority.

The attorney who appealed Jiles’ case, Navy Lt. Jared Hernandez, said that this statement contradicts Amos’ responses to the court in Jiles’ case and said the memo was wrongfully withheld from the defense team, which interfered with Jiles’ ability to receive a just result.

“We now know that [Amos] ... willfully made a false statement under oath,” Hernandez said in his motion last year. “By doing so, he has denied SSgt Jiles his right to a fair trial by failing to disclose recent and relevant instances of apparent/actual UCI."

The appeals court did not rule on whether information was improperly withheld, finding simply that the issue didn’t affect the case.

“Assuming, without deciding, that the government’s nondisclosure was wrongful, we are convinced, for the reasons detailed below, that there was not a reasonable probability of a different result had the material been disclosed,” Navy Capt. Jeffrey Fischer wrote for the court. Fischer also called the claim that the memo’s disclosure could have affected the case “purely speculative.”

“Simply put,” he wrote, “there is no evidence that suggests that the commandant’s unrelated statements regarding a different case would have impacted this court-martial.”

Fischer also wrote that the military judge’s remedies balanced the effect of apparent unlawful influence, noting that Jiles’ decision to plead guilty rendered the issue irrelevant in any case.

“Under the factual circumstances here, we find beyond a reasonable doubt that this case was not tainted by UCI,” he wrote.

The opinion does not decide how the Heritage Brief influenced military justice in the Marine Corps. Last month, the court reached a similar ruling in the case of former Sgt. Roger Easterly, who claimed his sexual assault conviction and sentence were affected by the appearance of UCI. That decision also avoided delving deeper into the Heritage Brief; it is now being appealed.

Hernandez did not respond to a request for comment on the case or say whether he planned to appeal the decision.■

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