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Tough talk tangles anti-assault effort

Oct. 1, 2012 - 09:00AM   |   Last Updated: Oct. 1, 2012 - 09:00AM  |  
Commandant Gen. Jim Amos has taken some heat from defense attorneys over comments he made during his Heritage Briefs.
Commandant Gen. Jim Amos has taken some heat from defense attorneys over comments he made during his Heritage Briefs. (Thomas Brown / Staff)
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What’s next

Ongoing court battles over the commandant’s statements during his Heritage Briefs could be the tip of the iceberg.
Legal experts expect to see the issue of unlawful command influence raised in the case of a widely circulated video that showed Marines urinating on Taliban corpses. The Marine Corps filed criminal charges Sept. 24 against two staff sergeants at Camp Lejeune, N.C.
Sources familiar with the case told Marine Corps Times an image from that video, a clip that first aired Jan. 10 on YouTube, was shown during Gen. Jim Amos’ Heritage Brief presentations, and Amos mentioned the incident during those talks where he admonished Marines and command leaders for their lack of accountability, shameful behavior and attitudes toward misconduct including hazing and sexual assault.
On May 31, he reminded Marines at Marine Barracks Washington about General Order No. 1 that prohibits photos of dead enemy combatants. "We've got a problem with discipline," he told them.

The commandant was embarrassed. He was annoyed. A rash of scandals at home and abroad, coupled with the Marine Corps' shocking sexual assault rates, left him no doubt that accountability had slipped and the public's trust was at stake.

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The commandant was embarrassed. He was annoyed. A rash of scandals at home and abroad, coupled with the Marine Corps' shocking sexual assault rates, left him no doubt that accountability had slipped and the public's trust was at stake.

In April, Gen. Jim Amos set out on a months-long tour of the force, hitting more than 25 bases and stations across the globe to connect in person with thousands of officers and enlisted leaders and to hammer home the message that it's their responsibility to enforce the Corps' standards, to protect its reputation and to promote a safe, professional work environment anchored by order, discipline and mutual respect. That means preventing sex assault, punishing offenders and purging predators from the ranks, Amos told Marines during these presentations of his Heritage Brief.

His presentations contained passionate, fiery lectures in which he denounced Marines' bad behavior, admonished lax leadership for letting it fester and fumed about the unflattering media attention that resulted.

Marines expect tough talk from the brass. But Amos may have gone too far.

The commandant's rhetoric on sex assault breached legal bounds, according to at least four military judges ruling in four separate cases in California, Virginia and South Carolina. Amos, they determined, exerted apparent unlawful command influence, marking a significant victory for defense attorneys who claim the Corps' top general violated their clients' due-process rights by tainting jury pools and essentially guaranteeing convictions before their cases even played out in court.

The judges in these four cases did not find that Amos committed actual unlawful command influence, as defense attorneys had sought. That's a more serious finding, which could have led to the cases' dismissal. They instead offered the defense various remedies to ease the damage Amos' statements could have on prospective jurors, allowing for extended questioning and additional dismissals of those seen as potentially biased.

The Marine Corps recorded more than 330 sex assaults last year, according to data released this summer, and it's widely believed the crime is underreported. Like the other service chiefs, Amos faces immense pressure from Congress and civilian leadership at the Pentagon to get a handle on the problem. These rulings could complicate the broader effort not just these four instances.

So far, Amos' comments have been linked to about 20 cases in which unlawful command influence has been raised, though it's unclear how many other judges have ruled apparent unlawful command influence occurred, said Col. John G. Baker, the Marine Corps' chief defense counsel who oversees the Defense Services Organization. Some involve pending trials. Others involve boards of inquiry and similar administrative proceedings. Attorneys and others in the Corps' legal community anticipate a wave of command influence claims for sex assault cases and for those involving in hazing allegations and other forms of misconduct now that these judges have established a precedent.

The commandant, Baker said, "plays a pivotal role in the maintenance of good order and discipline in the Marine Corps. He can and should use that role to lawfully influence his Marines. … [But] to remain effective, our commander-driven system must not only be fair, it must be perceived as fair.

"In my view," he added, "any actions by any commander that unlawfully influences or appears to unlawfully influence the outcome of a case is the biggest danger to military justice."

Marine Corps Times submitted several questions to Amos' office. His spokesman, Lt. Col. Joseph Plenzler, released a statement in response saying "it would be inappropriate for the commandant to comment" on specifics about current command influence litigation. However, Plenzler was adamant that the intent of Amos' Heritage Brief was "to communicate his expectations for ethical behavior to his Marines."

"The commandant's intent was to change behavior," Plenzler said, "not to influence the outcomes of any particular courts-martial."

‘80 percent are legitimate'

Don't doubt Amos' genuine passion in trying to root out misconduct that hurts Marines and the Corps' reputation. He expressed those sentiments in a May 3 all-hands memo to the force, White Letter 2-12. It marked his "shot across the bow" to stamp out sexual assault, which he called "an ugly mark on our proud reputation."

Days later, Amos and other members of the Joint Chiefs of Staff signed a joint strategic direction on sexual assault prevention and response. Then, on June 20, he approved the Corps' new campaign plan, in part to address concerns that far too many assaults go unreported because alleged victims are afraid to speak up and, worse, because commands have the reputation of ignoring or downplaying allegations. The campaign plan includes measures to encourage more reporting, provide care for victims, independently investigate allegations and hold offenders accountable legally or administratively.

The trouble traces back to the spring, when the Heritage Brief began, according to several sources familiar with these ongoing court cases. During his April 19 presentation at Marine Corps Recruit Depot Parris Island, S.C., for instance, the commandant discussed his responsibility for the Corps' "well-being," according to a transcript of the briefing obtained by Marine Corps Times. He cited recent examples of misconduct, including rape cases, and spoke bluntly about his perceptions and concerns. As with other stops on the tour, he tackled several themes that day, including:

The number of sexual assaults. Amos told Marines that statistics alone don't show the problem's full scope. "We had 348 sexual assaults in 2011," he said, according to the transcript. "The fact of the matter is 80 percent of those are legitimate sexual assaults. We have got Marines that are predators.

"I personally believe … there are at least twice as many sexual assaults that actually happened than are reported. Could very well be three times."

Also noteworthy, sources say, is the absence of any discussion about cases in which Marines were falsely accused, wrongly charged or acquitted. Those numbers are significant. According to a Military Times analysis of Defense Department sexual assault data, the Marine Corps in 2010 had the highest percentage of sexual assault cases that went to court-martial but had the lowest rate of convictions and discharges in lieu of court-martial: 30 percent.

Nonconsensual sex. At Parris Island, Amos repeatedly dismissed the notion that some Marines lie about being assaulted because they had what he called "buyer's remorse" after having sex. "What the hell happened? Buyer's remorse. Bulls---. I know fact from fiction," he said, according to the transcript.

Why so few speak up. "Why wouldn't female Marines come forward?" Amos asked Marines at Parris Island, according to the transcript. "Because they don't trust us. They don't trust the command. They don't trust the leadership."

The lack of accountability. Here, he singled out commanding officers and senior enlisted Marines, lamenting a climate in which leaders have "become so soft" on holding wrongdoers accountable. "I am very, very disappointed," Amos said, according to the transcript. He told Marines that he watches with incredulity the results of courts-martial and administrative boards that don't throw out troublemakers. "We've got an officer that has done something absolutely disgraceful and heinous … and we elect to retain him," he said. "… Why would I want to retain someone like that? I see the same thing with staff [noncommissioned officers]."

The commandant relayed a similar message at other presentations of the Heritage Brief, and it appears he was aware that some of his language was at least close to crossing a line. In May, for instance, he told Marines at MCRD San Diego and nearby Camp Pendleton that "his lawyers had told him not to say the things he was saying but he was going to anyway," according to defense motions in a pending sex assault case at Marine Corps Base Quantico, Va. At Pendleton, Amos said "the defense lawyers love it when I talk about this because then they can throw me under the bus later on and complain about unlawful command influence."

A week later, at Marine Barracks Washington, Amos alluded to the public's perception of the Marine Corps and the pressure to fix the problem. "Members of Congress are looking at us," he told Marines, "and they're saying you're a bunch of cowboys."

Why the tough talk is problematic

Under the law and by legal practice, defendants are considered innocent until a court or jury finds them guilty. But unlawful command influence can derail a case and spoil that cloak of fairness. In 1986, the U.S. Court of Military Appeals called it "the mortal enemy of military justice," saying even the appearance of it can devastate trust in the system.

Unlawful command influence can take several forms. For instance, it can involve a commander ordering a character witness not to testify or coercing certain testimony. It can involve a convening authority considering charges based on biased legal advice or public criticism by senior officers about a defendant.

In several pretrial motions and hearings associated with these cases, defense attorneys took issue with Amos' remarks indicating at least 80 percent of sexual assault reports are legitimate. The commandant left the audience with the impression and his expectation that every Marine accused of sexual assault is at least 80 percent guilty, said Brian Bouffard, a defense attorney in Fort Worth, Texas, who is representing Staff Sgt. Tarrell Jiles in the Quantico case. Jiles is accused of sexually harassing and touching numerous male Marines inappropriately.

"All you need is a charge sheet," Bouffard said. "You are 80 percent of the way toward the conviction. He didn't say those specific words, but that is essentially what he has done."

The burden of proving guilt rests with the government, and a jury is supposed to be impartial when weighing the charges against the law, evidence and testimony. Members of the jury should walk in presuming the accused is innocent, and they shouldn't be influenced by what their superiors say. That Amos directed his presentations to leadership is a huge concern to defendants, sources say. Jury panels for special and general courts-martial are composed of the accuseds' peers, but they must be in the ranks of staff sergeant and above.

Another White Letter from the commandant, No. 3-12, written in July, was addressed to only general officers, commanding officers, officers-in-charge, sergeants major and master gunnery sergeants to "reinforce a couple of key elements of our way ahead" on the sexual assault prevention campaign. In the memo, Amos reminded them of some basic legal tenets and practices, writing: "The matter of whether or not a Marine committed a sexual assault and what should happen will be determined based on the facts presented. I expect all Marines involved in the military justice process from convening authorities, to members, to witnesses to make their own independent assessment of the facts and circumstances of each case."

In August, Bouffard and other attorneys representing Jiles tried to get Amos in court to explain his communications on sexual assault. During an Aug. 31 motions hearing at Quantico, Bouffard argued that the commandant's tough talk in both the Heritage Brief and White Letter 2-12 could unfairly sway the jury against his client. The "outlandish and outrageous" things Amos said at Parris Island about stamping out sexual assault "injects the commandant in the deliberation room," Bouffard told the court. Amos should have to testify about his choices, he said, something considered highly unlikely by most legal observers.

Col. Daniel Daugherty, the Marine Corps' chief judge, who is presiding over the hearing, countered by questioning why a trial couldn't be fair if jury members were instructed to read and consider Amos' follow-up White Letter, 3-12. Daugherty, who in a July 18 ruling found that Amos committed apparent UCI, ultimately denied the request. Instead, on July 31, Amos answered sworn written questions. Defense attorneys have not been allowed to question him, and the commandant has not been ordered to testify.

Col. David Maxwell, the commanding officer at Quantico and the convening authority in Jiles' case, also was called to the stand Aug. 31. He said he took Amos' guidance to mean that "doing the right thing" included following the rule of law and making sure the justice system follows due process.

"Fair and impartial administration of justice is what we're talking about," Maxwell said.

Understanding the passion

In April, around the time the Heritage Brief presentations began, the Pentagon released its annual report on sexual assault, drawing strong rebukes from Congress. At the same time, Marines and other U.S. troops working on a Secret Service detail were swept up in a prostitution scandal in Colombia. Public pressure seemed to be intensifying.

On April 16, three House Armed Services Committee members Reps. Loretta Sanchez, D-Calif., Mike Turner, R-Ohio, and Niki Tsongas, D-Mass. met with Defense Secretary Leon Panetta at the Pentagon. That day, Panetta and Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, announced about a half-dozen initiatives to combat sexual assault, including new requirements for commands in handling allegations of actual or attempted rape, forcible sodomy and sexual assault; enhanced training on preventing sexual assaults; and the establishment of "special victims' units."

On April 18, the day before he spoke at Parris Island, Amos hosted five committee members, including Sanchez, Turner and Rep. Susan Davis, D-Calif., for breakfast at his home in Washington. Two of the five walked out after the conversation became heated, focusing on the Corps' efforts to stop sexual assault. Amos relayed portions of the exchange to Marines at the recruit depot, centering on the frustration he felt as one lawmaker, who has not been identified in transcripts from the Heritage Brief or court documents reviewed by Marine Corps Times, nearly pushed the commandant to the tipping point.

"My wife is looking like, holy smokes, my husband is going to come across the table. And by the way, I wanted to," Amos told the Marines, according to the transcript. "But I sat and listened to him and let him finish. And then I looked at him very pointedly and I said ‘Congressman, … don't sit at this table today and think that we're not going to do something about it, because we are. I am the commandant of the Marine Corps, and I'm telling you we are going to fix it.'"

It wasn't long after the Parris Island brief that alarms went off. There's nothing wrong with the commandant touring the Corps and telling Marines that sexual assault is a problem, said Colby Vokey, a retired lieutenant colonel and defense attorney in Dallas. "Where he crossed the line is when he starts talking about how he's not pleased" with the level of accountability, and of the results of courts-martial and administrative boards. Those types of statements, Vokey said, carry tremendous weight with Marines.

"The commandant of the Marine Corps, he is so revered," he said. "That is what is so offensive."

No judge has dismissed a sex-assault case because of Amos' influence, but defense attorneys continue to press their case, said Baker, the Corps' chief defense counsel. Their willingness to protect their clients' rights is "inspiring," he said. The commandant may disagree.

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