WASHINGTON ― Three military appellate court judges will decide whether to reverse the ruling of a lower court judge who dismissed manslaughter and related charges against a Navy corpsman in the death of a U.S. contractor in Iraq in 2019, citing unlawful command influence after a top Marine attorney made statements deemed threatening to military defense lawyers.
On Wednesday, attorneys for the Navy and Marine Corps argued that military Judge Hayes C. Larsen was wrong when he dismissed charges of voluntary manslaughter, negligent homicide and others against Chief Petty Officer Eric Gilmet, a member of Marine Special Operations Command.
Gilmet had been charged along with Gunnery Sgts. Daniel Draher and Joshua Negron, both Marine Raiders with MARSOC, in the Jan. 1, 2019, death of U.S. military contractor and Army Green Beret veteran Rich Anthony Rodriguez following an off-duty altercation in Irbil, Iraq.
Gilmet was the first scheduled for trial earlier in 2022 until events at Camp Lejeune, North Carolina, involving one of the Marine Corps’ senior attorneys threw those timelines into limbo.
All three men were at an off-base nightclub. Witnesses said that Rodriguez approached the three men, claiming that they were not showing him significant respect due to the retired Army Special Forces master sergeant’s status.
The argument subsided, but Rodriguez waited outside the club after it closed, again confronting the men. A brief fight ensued, and Rodriguez was knocked unconscious. The three men checked on Rodriguez and transported him back to base, monitoring him that night. Rodriguez stopped breathing at one point. The three men began emergency medical procedures and took him to a nearby medical facility. He was transported to Landstuhl, Germany, where he died a few days later.
Though pulled from Iraq and sent home. The Marine Corps did not officially announce charges until late 2019.
Then, on Nov. 18, 2021, Marine Col. Christopher B. Shaw toured judge advocate general offices at Camp Lejeune, North Carolina, and other Marine facilities. He gave a talk to military attorneys at Camp Lejeune, North Carolina, and was asked a question by one of Gilmet’s attorneys, Capt. Matthew Thomas.
Thomas asked what was being done in the service to protect military defense counsel from political, media and general societal pressures when handling high-profile cases.
“I know your name and I know what cases you’re on and you are not protected,” Shaw told the captain. “You are shielded but not protected.”
That quote and other “threatening statements” were confirmed by multiple sworn affidavits in the court record by Thomas and other military attorneys present at the meeting. Shaw went on to detail how Marine attorneys who spent too much time on the defense side had a hard time getting promoted, especially if they’d worked high-profile cases.
Navy Lt. Megan Martino and Marine Lt. Col. Chris Blosser argued for the government, saying in the hearing and in court filings that Larsen failed to follow the correct legal steps to determine if unlawful command influence had irreparably damaged Gilmet’s chance at a fair trial. They also argued that Marine Corps JAG moves following Shaw’s comments corrected any problems that UCI might have caused.
But appellate attorneys for Gilmet said reversing Larsen’s dismissal of Gilmet’s charges would send the wrong message.
“It appears as if the government can choose which parties appear in a court-martial and suffer no consequences,” said U.S. Coast Guard Lt. Kristen Bradley, one of Gilmet’s appellate attorneys.
Martino argued Wednesday that Larsen didn’t get enough evidence, enough information to prove that what Shaw said was detrimental enough. Also, she said, Larsen didn’t show that Thomas and Capt. Keagan Riley, Gilmet’s defense attorneys, had shown that their careers were threatened or that they couldn’t provide appropriate assistance to their clients beyond Shaw’s statements.
Marine Maj. Gen. David Bligh, staff judge advocate for the commandant of the Marine Corps, removed Shaw the day after his comments from his position deputy director of community management and oversight of the judge advocate division. In a subsequent statement, Bligh said that Shaw’s comments were not indicative of how Marine leadership treated criminal defense attorneys.
In court Wednesday, Bradley had stronger words regarding the Marine legal command’s actions following Shaw’s Nov. 18, 2021, comments.
“They were trying to fix their litigation problem and not try to get at the heart of the (unlawful command influence),” Bradley said.
Shaw first denied that he knew Thomas at all and said his comments were misinterpreted. Following his denial, text messages preceding the meeting where he answered Thomas’ question show that Shaw knew who Thomas was, asking a colleague about him by name and discussing his recent assignment to a coveted advanced military education course.
Marine Corps officials have declined to grant media access to Shaw for an interview. Shaw gave statements to the prosecution specific to his comments, but then invoked his right to remain silent. He has not been questioned by the defense.
Coly Vokey, retired Marine lieutenant colonel, career JAG and private attorney for Gilmet, told Marine Corps Times Wednesday that those actions show Shaw and prosecution attorneys were “abusing the process” by using his self-serving statements without allowing him to be questioned by defense attorneys.
“There’s a huge ripple effect. This has caused shockwaves throughout the (military legal) defense communities,” Vokey said. “There is a huge distrust now that has resulted because of Shaw.”
Vokey said that Gilmet is now being represented by an Army and Air Force JAG because the Corps sought a Marine defense attorney who could work the case without a conflict and found none.
Navy-Marine Corps JAG officials declined to comment on the case.
An inspector general’s complaint immediately following Shaw’s Nov. 18, 2021, comments triggered a command investigation. Government attorneys pointed to Shaw’s removal, Bligh’s statement and the investigation as measures, that “removed the taint of those comments,” Martino and Blosser wrote in court documents.
But one of the three appellate judges had a clarifying question.
“The crux is, was (Larsen’s) relief reasonable?” asked Senior Judge Michael Holifield.
Gilmet’s appellate attorneys, Bradley and U.S. Navy Lt. Megan Horst said the dismissal was necessary for three reasons:
1 – Bligh’s statements were too little, too late. Bradley said interviews showed the two-star general didn’t have Shaw’s exact comments when he issued his statement and he didn’t categorically refute the statements.
2 – Shaw never acknowledged or apologized for his comments. He instead claimed his comments were misinterpreted.
3 – The follow-up command investigation did more harm than good. Bradley and her colleagues wrote in court documents that instead of addressing valid concerns and perceptions, investigator, Col. Peter D. Houtz said anyone reviewing the investigation should take the defense attorney’s concerns “with a grain of salt, because, well, they’re defense counsel who will do anything to benefit their client.”
That points to a larger problem of Marine attorneys investigating their colleagues, Bradley said.
“In essence, what the government has done is pointed to its own policies and procedures and said, ‘there’s nothing wrong here,’” Bradley said.
Gilmet, Draher and Negron have deferred requests for comment to their attorneys. Draher previously provided a statement on behalf of the three men to Marine Corps Times through his attorney Phillip Stackhouse. In it, they express remorse for Rodriguez’s death but state that they were acting in self-defense and were the only ones to care for Rodriguez following the altercation.
Draher and Negron’s attorneys have filed requests for the judge in their proceedings to also rule that Shaw’s comments amount to unlawful command influence and their clients also cannot receive a fair trial. A hearing on that dismissal request was held in late June at Camp Lejeune. The judge has not yet made a ruling.
Todd South has written about crime, courts, government and the military for multiple publications since 2004 and was named a 2014 Pulitzer finalist for a co-written project on witness intimidation. Todd is a Marine veteran of the Iraq War.