This article was written by Kelsey Baker and originally published by The Crime Report on March 12, 2021. Full article available here.
UCI gnaws at the defense of the so-called “MARSOC 3” — two Marine special operations gunnery sergeants Daniel A. Draher and Joshua S. Negron, and one Navy special amphibious reconnaissance corpsman, Eric S. Gilmet.
The three are charged in connection with an incident that occurred on New Year’s Eve 2018. A contractor, a U.S. citizen, fell backwards after punching one of the Marines twice in the face, and died days later.
Now Draher, Gilmet and Negron face involuntary manslaughter, negligent homicide and obstruction of justice charges.
On the record, there are multiple problems with the case.
For one, at their preliminary hearing under Article 31, trial counsel lacked evidence whether the decedent’s injuries were survivable or not and the cause of death was debated. The Hearing Officer who heard the evidence recommended that the Convening Authority/commanding general drop the obstruction of justice charges but their former general overruled that decision– on the advice of a JAG two ranks junior to the Hearing Officer―and reinstated them.
Those are just the problems on the record. Off the record, it appears that multiple service members have tried to influence who will testify. One of the MARSOC 3 defendants, GySgt Negron, sought to bring this on the record and dismiss the charges because of it, but his motion was denied.
I know that various people have tried to influence other military staff about this case because I’ve spent 110 hours interviewing almost 60 active duty and veteran servicemembers associated with MARSOC.
But witnesses to this misconduct fear repercussions by reporting them. Some refuse to go on the record for journalistic purposes; they’re much less likely to testify in court where their identity can’t be protected.
That witnesses hesitate to come forward to report UCI should surprise no one. They’d have to jeopardize their careers to do so which is why UCI compounds itself; the very power that allows it to happen in the first place also aids it’s concealment.
UCI is a crime itself. Notably, no one has ever been prosecuted for it. But we know it happens. Sometimes commanders don’t even try to hide it.
While addressing a room full of military lawyers after 17 sailors died in two different ship collisions in 2017, then-chief of naval operations, Adm. John Richardson, publicly concluded that the accused, the ships’ captains and select crew members, were culpable, causing the case to be dismissed.
The number of comments and exhortations that happen in private spaces is unknown.
Air Force Lt. Gen. Craig A. Franklin had declined to charge Airman 1st Class Brandon T. Wright III with sexual assault. When a new secretary of the Air Force was appointed, Franklin underwent undue pressure to reinstate the charges, which he did, and then retired. Airman Wright was eventually acquitted.
In another instance, a military judge was essentially forced to recuse himself when a captain heard he was going to make a certain ruling that the captain disagreed with.
Unless someone else comes forward who’s willing to take the stand for the MARSOC 3, the defendants can’t prove UCI. The way UCI perpetuates itself hamstrings their lawyers; it keeps an effective defense just beyond their reach.
Because it harms potentially innocent defendants and enables guilty ones, UCI is a scourge on the armed forces; by definition it brings the military into disrepute.
It’s important to note that the MARSOC 3 bear an additional burden in how Congress has made it more likely that UCI can permanently affect a case.
Right before the MARSOC 3 were charged, The Sexual Trauma Ongoing Protections Act was introduced in the House of Representatives and included a change to the rules surrounding UCI. The bill got no traction, which would explain why there was no debate on it.
However, also without public discussion, the bill’s provisions were added to the FY 20 National Defense Reauthorization Act and became law on Dec. 20, 2019.
Since then, it’s not enough just to be a victim of UCI. Defendants must also prove that the outcome of their case would have been different were witnesses and jurors not unlawfully influenced. In the past, the burden fell on prosecutors to prove that the defendants weren’t prejudiced.
It sounds like a minor distinction; but it’s not. It’s virtually impossible to prove the existence of an event that never occurred under normal circumstances; it becomes even harder when the people who could testify to it are — still — actively discouraged from doing so. This change to the UCI law tilts the balance of power even further in convening authorities’ direction.
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Author Kelsey Baker is a veteran Marine officer and served on active duty for six years. She is now a freelance journalist.