Gen. Jim Amos' remarks during his Heritage Brief tour constituted apparent unlawful command influence, which should have been remedied during the trial of a Marine charged with rape, an appeals court ruled. The judges overturned the Marine's conviction and 18-year sentence. (Alan Lessig/Staff)
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A Marine staff sergeant convicted of raping a civilian will go free because a military judge failed to acknowledge apparent unlawful command influence created by the comments of the commandant of the Marine Corps, a military appeals court found this week.
Staff Sgt. Stephen Howell was originally sentenced to 18 years in October 2012 after being found guilty of sexually assaulting the mother of a prospective recruit at Parris Island, S.C. The case is the first to see a successful appeal related to Gen. Jim Amos’s 2012 Heritage Brief, a series of strongly-worded lectures geared at eradicating sexual assault in the Corps. In one such speech in April of that year, Amos disparaged the “buyer’s remorse” defense related to sex assault accusations and told his audience, “I know fact from fiction. The fact of the matter is, 80 percent of those [accusations] are legitimate sexual assault...and if you do not believe in the statistics...I am going to make a believer out of you.”
In the ruling delivered May 22, a three-judge panel at the U.S. Navy-Marine Corps Court of Criminal Appeals found that military judge Lt. Col. Robert Palmer erred in denying defense motions for relief related to the Heritage Brief and that subsequent remarks Palmer made to student military attorneys worsened the problem.
During an unrelated training discussion with five junior officers in June, while the Howell case was ongoing, Palmer called jury members “morons” and “knuckle-draggers” and remarked that “the defendant is guilty...it is your job to prove he is guilty. You need to take him down.”
A dozen cases over which Palmer had presided were appealed in the wake of those comments.
In the Howell case, the ruling notes that problems increased after Palmer denied the appearance of unlawful command influence. During a jury questioning and selection process that stretched for nine hours and filled nearly 340 pages of transcripts, one master gunnery sergeant acknowledged that Amos’s Heritage Brief remarks might have “some bearing” in her decision-making. Another lieutenant colonel said he thought it was possible that the brief might influence some panelists to hand out a punitive discharge. Two Marines said they accepted Amos’s “80 percent” statistic as factual, according to court documents.
All four were seated on the jury. Of the final panel of five members, all but one had attended the Heritage Brief, and all five had been challenged unsuccessful by Howell’s defense attorney.
Faced with allegations of unlawful command influence, Amos would later publish a “White Letter” in July 2012 clarifying that the circumstances of each case, and not his remarks, should determine the verdict. In August 2012, Palmer’s decision about the appearance of UCI was overturned by Marine judge Col. Daniel Daugherty, who had also found apparent UCI in another sexual assault case, U.S. vs. Jiles. But a subsequent judge on the Howell case, Col. Bill Riggs, who took over in October 2012, nonetheless failed to distribute the White Letter to the jury or otherwise remedy the problem of unlawful influence, the appeals court found.
“An objective, disinterested observer, fully informed of all these facts and circumstances, would harbor a significant doubt as to the fairness of these proceedings in which members of the panel appear influenced by the CMC’s brief,” wrote Navy Capt. Moira Modzelewski, the chief judge. “Lt. Col. Palmer ruled erroneously on the UCI motion and failed to shift the burden to the Government, and successor judges failed to cure that taint.”
In a concurring opinion, Marine Lt. Col. R. Quincy Ward emphasized, however, that the court acknowledged apparent, rather than actual, unlawful influence in the commandant’s comments.
The Heritage Brief represented the first in a series of legal headaches for Amos, who has since been accused by a Marine attorney of attempting to influence the outcome of the high-profile scout sniper urination case to ensure harsh punishments for the defendents. An investigation by the Inspector General for the Defense Department into elements of those accusations is still ongoing.
A spokesman for Amos did not immediately respond to a request for comment on the Howell case.
“The Marine Corps respects all decisions of the U.S. Navy-Marine Corps Court of Criminal Appeals and retains full confidence in its military justice system,” Marine Corps spokesman Capt. Tyler Balzer said.
Howell’s civilian attorney, C. Ed Massey, did not immediately respond to a Marine Corps Times phone call, but told McClatchy news that his client was being released after 1 1/2 years at the U.S. Disciplinary Barracks at Leavenworth, and would be restored to active duty as a staff sergeant, though a retrial may be ordered.
Palmer, he said, was not available for comment because he was in the midst of moving to the East Coast for his new job.