Judge Hayes C. Larsen found that there was “unlawful command influence” that irreparably tainted the case against Chief Petty Officer Eric Gilmet.
That finding, the judge wrote in his Wednesday ruling, meant that Gilmet could not get a fair trial and required the charges of voluntary manslaughter, negligent homicide and other charges related to the Jan. 1, 2019, death of Army Green Beret veteran and contractor Rick Anthony Rodriguez be dismissed.
Three men were charged after a brief physical altercation between them and Rodriguez, which ended with the contractor being knocked unconscious outside an off-base bar. The two Raiders and corpsman took Rodriguez back to their on-base housing to monitor him. He died a short time later.
The unlawful command influence that resulted in the dismissal stems from “threatening” comments made by one of the Marine Corps’ top lawyers, Col. Christopher B. Shaw, at a meeting of Marine defense attorneys at Camp Lejeune, North Carolina, in mid-November 2021.
In the meeting, Capt. Matthew Thomas, then-military counsel for Gilmet, asked Shaw, who was serving as a deputy director of the Judge Advocate Division of the Marine Corps, what protections defense counsel had when defending clients in high-profile or politicized cases.
“I know your name and I know what cases you’re on and you are not protected,” Shaw told Thomas, according to at least four sworn affidavits contained within court documents obtained by Marine Corps Times “You are shielded but not protected.”
The deputy director does not officially select Marine attorneys for assignments and career progression, input from that office is considered by the job field’s monitor, according to Marine attorney statements made in court filings obtained by Marine Corps Times.
An anonymous complaint filed after that meeting triggered an investigation by the inspector general of the Marine Corps. The investigation ultimately found that while Shaw may have made the statements, they did not warrant dismissing charges and, while “unprofessional,” they “did not constitute a violation” that caused harm equivalent to unlawful command influence, said investigator Col. Peter D. Houtz, a judge on the Navy-Marine Corps Court of Criminal Appeals.
But the judge saw it differently.
When asked about Shaw at the end of January, Maj. James Stenger, Marine Corps spokesman, told Marine Corps Times in an email that out of respect for the legal process, a current investigation and Shaw’s privacy rights, the Corps would not comment on the case nor provide Shaw for an interview.
Gilmet’s two co-defendants, MARSOC Gunnery Sgts. Daniel Draher and Joshua Negron, face the same charges. Their attorneys also have filed motions to dismiss, based on the same unlawful command influence allegations.
The cases of Gilmet and the two Raiders, Draher and Negron, are being tried separately.
The judge in Draher/Negron case ruled in January that motions to dismiss based on the unlawful command influence could proceed. That case has a hearing set for Thursday on nearly identical arguments to dismiss that case.
Gilmet’s civilian attorney, Colby Vokey, told Marine Corps Times on Wednesday that the government can appeal the judge’s decision but cannot “recharge” his client because the judge, Larsen, dismissed the charges “with prejudice.”
Marine Corps Headquarters staff deferred comments to U.S. Special Operations Command representatives.
Maj. Hector J. Infante, the spokesman for MARSOC, told Marine Corps Times in an email late Wednesday that the command, “cannot comment on ongoing litigation.”
In his experience, Vokey said, the appellate courts tend to give deference to the trial judge, and appeals overturning those rulings are rare.
The ruling in this case is likely to have an effect on the related cases for Negron and Draher, he said.
Vokey, who retired as a Marine lieutenant colonel after having served as a military attorney for most of his career, called the judge’s decision and legal reason a “strong ruling.”
As recently as this week, Vokey was in the process of finding replacement military attorneys for his client and could not find a single, available Marine attorney who did not see Shaw’s comments as also creating a conflict for them, he said.
Shaw’s comments extend past this case, Vokey said, and threaten the career progression of any Marine attorney serving as defense counsel on high-profile cases that Marine leaders want to see prosecuted.
Editor’s Note: This article has been updated with a response from U.S. Marine Corps Special Operations Command.
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.