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Senior Marine prosecutor reassigned after judge rules 'apparent UCI' on Pendleton office raid

Jun. 12, 2014 - 06:00AM   |  
In this photo, taken by defense attorneys at Camp Pendleton, California, CID agents search their offices for a cell phone related to a drug case against a Marine. Before the photos were transmitted, faces and identifying information were blotted out.
In this photo, taken by defense attorneys at Camp Pendleton, California, CID agents search their offices for a cell phone related to a drug case against a Marine. Before the photos were transmitted, faces and identifying information were blotted out. (caaflog.com)
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In the wake of a controversial search of Camp Pendleton, California, defense attorneys’ offices by military investigators, the senior Marine prosecutor who planned the search has been ordered off a number of cases and reassigned to a new job.

Maj. Ray Slabbekorn was transferred this month from his post as senior trial counsel for Camp Pendleton to a position within the Marines’ complex trial team for the West Coast, officials said.

In a June 10 ruling, military judge Lt. Col. Chris Thielemann found that the search on defense offices, instigated and overseen by the prosecution, constituted apparent unlawful command influence, meaning that a casual observer would have reason to believe the government had unduly interfered with the legal process, creating a potential disadvantage for defendants in ongoing cases.

Thielemann also disqualified Slabbekorn from participation in the case of Sgt. Ricardo Miramontes — an unrelated sex assault case proceeding this week with casefiles kept in the searched offices — and ordered that Slabbekorn not discuss the case with his legal team. Sources said judges have handed down similar rulings in two other cases with upcoming trial dates.

The attorneys prosecuting on behalf of the U.S. government called for the May 2 search with the intent of unearthing a cell phone containing evidence in the case of Marine Sgt. Rigo Betancourt, accused of drug-related crimes. The defense team on the case provided text messages from the phone to prosecuting attorneys, but refused to turn over the phone itself without a judicial order.

The prosecutors then obtained the equivalent of a search warrant from Col. Tracy King, then-commander of Combat Logistics Regiment 15 and the designated area commander. In the ensuing two-and-a-half-hour armed search, investigators unearthed the phone in question within minutes, but continued to scour the remaining office spaces, where material for many other active cases was kept.

In the Miramontes ruling, Thielemann found no evidence that the search had affected the specifics of that case, but decided he needed to take certain steps — including removing a senior prosecutor — in order to get rid of “any taint of UCI.”

“The appearance of UCI is even more of a concern in this particular case because [the Criminal Investigative Division] conducted an extensive, overly broad, and poorly executed search of unrelated defense counsel offices, especially when it was clear to a reasonable observer that the agents had seized the phone in question prior to entering the lead defense counsel’s office,” Thielemann wrote. “Undoubtedly, such a heavy-handed and overly intrusive raid ... would further exacerbate concerns about the fairness of these proceedings.”

A Camp Pendleton spokesman, Jeffrey Nyhart, said the decision to reassign Slabbekorn was made after officials realized the restrictions on communication in these cases would make it impossible for the prosecutor to do his job.

“This constraint made it impracticable for Maj. Slabbekorn to effectively supervise subordinate judge advocates in his former billet,” he said.

Slabbekorn deferred all comment to Nyhart on the decision.

Thielemann’s ruling in the Miramontes case also contained a veiled reprimand for senior Marine defense attorney Lt. Col. Clay Plummer, who denounced the office search to The Associated Press shortly after it took place, calling it “unacceptable” and “crazy.”

The judge recommended that a decision be made on whether Plummer’s comments violated a rule prohibiting “extra-tribunal statements,” and said a ruling on the ethical propriety of any of the defense attorneys’ actions should be made by the court’s Rules Counsel or the judge presiding over the Betancourt case.

Finally, Thielemann recommended that a dedicated Marine Corps order or formal protocol be created to govern any future situations like this one. He asked that the legal team form a working group to enact such a protocol and said that the Marines’ top lawyer — the staff judge advocate to the commandant of the Marine Corps — should request a committee from the Navy’s legal professional oversight group regarding the professional behavior of attorneys surrounding the search.

Even with formal rules in place, it’s unlikely that such a search will ever happen again, sources told Marine Corps Times.

While Pendleton officials have called the office raid rare, but valid and legal, civilian defense attorney and military law expert Phil Cave said the media attention that it attracted turned the event into a public image disaster.

“You’ve got the prosecution in the defense counsel offices searching files, upending couches. That doesn’t look pretty,” he said. “The optics were not good.”

Notably, no ruling so far has found that the search requiresdismissal of an active case.

But military judges will likely consider the aftermath of the search for a long time to come. Camp Pendleton attorneys estimate the searched offices contained paperwork related to scores of cases, including that of Marine Sgt. Lawrence Hutchins III, who faces retrial in his high-profile war crimes case after his 2007 murder conviction was overturned in July 2013.

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