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Appeals court tackles unlawful command influence in commandant's Heritage Brief

Nov. 26, 2013 - 06:00AM   |  
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A Marine Corps’ appellate court will decide whether leading comments made by Commandant Gen. Jim Amos during his 2012 “Heritage Brief” tour — including his declarations that 80 percent of sexual assault accusations are “legitimate” and that the Corps should “get rid” of Marines accused of wrongdoing — constitute undue command influence.

The Navy-Marine Corps Court of Criminal Appeals heard oral arguments Tuesday morning on U.S. v.. Easterly, a sexual assault case involving a Marine sergeant. It is the first case to be heard on appeal on the basis of the Heritage Brief.

Former Sgt. Roger Easterly was sentenced to two years in the brig and a bad conduct discharge after being convicted in June 2012 of two counts of adultery and one count each of assault and false official statement. A military jury found that Easterly had committed adultery with two civilian women while stationed in Beaufort, S.C., last year and had engaged in “rough sex” that left one of the women with bruises and other injuries, but they acquitted him of rape and sexual assault charges. Easterly was released from the brig at the beginning of this month for good behavior.

Multiple sources in the Marine Corps legal community said virtually every sexual assault case since the Heritage Brief has included a defense motion claiming unlawful command influence with regard to the case. These motions are almost always granted, sources said, typically resulting in a military judge offering the defense an advantage, such as extra challenges in jury selection, to level the field. In the Easterly case, however, military judge Maj. Eric Emerich ruled against the motion, saying Amos’ comments did not constitute unlawful command influence.

Arguing on Easterly’s behalf, Marine Capt. David Peters said there is reason to believe the harshness of the Marine’s sentence and the jury’s decision to discharge him were tied to the commandant’s statements.

“If you’ve got a Marine that’s not acting right, the commandant said, you’ve got to get rid of him. It’s as simple as that,” Peters said. “This panel followed his counsel and gave him exactly what he asked for.”

The attorney for the government, Navy Lt. Cmdr. Brian Burgtorf, argued that there is no evidence the Heritage Brief influenced the outcome of Easterly’s case. Though all six jury members were aware of the brief, thanks to internal publicity and a cover story in Marine Corps Times, only two had actually sat through one of Amos’ lectures, and both said they would not be swayed by what they had heard him say. The trial judge also gave instructions to the panel members not to be influenced by the brief, and questions regarding the brief were asked in jury selection.

“(There is) no indication that the commandant said anything that was taken away by this member panel,” Burgtorf said.

The appellate court’s chief judge, Navy Capt. Moira Modzelewski, questioned Peters on how much the Heritage Brief had influenced the outcome of the case, considering Easterly was acquitted of the rape and sexual assault charges.

“Wouldn’t a disinterested member of the public look at this trial and say, ‘Maybe these people didn’t listen to the commandant?’ ” she said.

Peters noted that he was working to prove that the brief created the appearance of unlawful command influence, rather than actual unlawful influence, and later added that the brief had bigger implications than just the outcome for his client.

The court will determine in coming weeks whether the military judge erred in denying the unlawful command influence motion in the Easterly case, and publish a written decision.

A finding that Amos’ Heritage Brief did create the appearance of unlawful command influence could mean that military judges will be required to “remedy” the problem in future cases by offering advantages to the defense. Also, if the ruling is favorable for Easterly, he could be reinstated in the Marine Corps or have his sentence otherwise adjusted.

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