A military appeals court has reinstated charges against a Navy corpsman accused of playing a role in the killing of a former Green Beret working as a contractor in Iraq, adding another twist to legal proceedings that have been plagued with delays and allegations by the defendant of intimidation by Marine leaders.
Navy Chief Petty Officer Eric Gilmet was serving with the 3rd Marine Raider Battalion – part of Marine Corps Forces Special Operations Command (MARSOC) – stationed in Iraq. On Jan. 1, 2019, Gilmet allegedly had an argument with former Green Beret Rick Rodriguez at a bar in Erbil. Gilmet and three other Marines from his battalion allegedly got into a fight with Rodriguez, and one of them punched him in the head, seriously injuring him.
Although the Marines took him back to base for treatment, Rodriguez’s condition worsened and he died three days later, on Jan. 4, in Landstuhl, Germany. All three men, including Gilmet, were charged with involuntary manslaughter, among other charges, and the sailor was arraigned in February 2020. Supporters of the men have referred to them collectively as the “MARSOC 3.”
However, several delays pushed the trials and then, in December 2021, the judge in Gilmet’s case dismissed the charges against the sailor, citing unlawful command influence.
“The facts in this case can be boiled down to a simple advert: a senior judge advocate who occupied a position of authority over the futures of young judge advocates made threatening comments … creating an intolerable tension and conflict between an accused and his specifically requested military counsel,” Navy Cmdr. Hayes Larsen, the judge in Gilmet’s case, wrote in his decision to dismiss the charges.
Larsen was referring to Marine Col. Christopher Shaw, then deputy director for the Judge Advocate Division, who told Marine Capt. Matthew Thomas, one of Gilmet’s attorneys: “I know who you are and what cases you are on, and you are not protected” before adding that “our community is small and there are promotion boards and the lawyer on the promotion board will know you” at a Nov. 18, 2021, meeting with other judge advocates at Camp Lejeune, North Carolina.
Following these remarks, Thomas and another of Gilmet’s attorneys asked to be removed from the case, to which Gilmet agreed. However, according to the appellate opinion, Gilmet felt that this situation ” — a choice created by the Government — was one between two evils.”
Ultimately, the three-judge appeals panel overruled Larsen’s decision, allowing charges to be reinstated against Gilmet.
Colby Vokey, a retired lieutenant colonel and lawyer for the Marine Corps, who is now a civilian attorney representing Gilmet, told Military.com on Tuesday that he is “disappointed” in the ruling, before saying that he believes the appellate court made several mistakes in its opinion and that the entire saga highlights a deep problem with how the Marine Corps manages its judge advocates.
The opinion from the appeals court noted that, following that meeting, Shaw was removed from his position and an investigation was ordered. It found that, “while [Shaw]’s comments to defense counsel were ‘ill advised and lacked proper context and background,’ the matter did not merit further action.”
Vokey called the investigation that cleared Shaw of wrongdoing “one of the biggest whitewashes I’ve ever seen.” Instead of being done by an outside party, the investigation was conducted by Marine military Judge Col. Peter D. Houtz, who had previously worked in the same office as Shaw, creating a conflict of interest, according to Vokey.
The appeals court opinion also states that, since the early days of the case, Thomas has been promoted to major. Vokey says that is simply not true and, in fact, Thomas submitted a request to resign from active duty in January.
A spokeswoman for the Office of the Judge Advocate told Military.com in an email that “the Navy does not comment on ongoing litigation.”
The three-judge panel faulted Gilmet’s lawyers who asked to be dismissed for their “mistaken belief that they faced a choice between their careers and zealously representing their client.”
“We are convinced beyond a reasonable doubt that [Shaw’s] comments and actions at the 18 November 2021 [defense attorneys] meeting did not cause counsel to be excused. And we are similarly convinced that his comments will not otherwise affect the proceedings,” the judges concluded.
Vokey says Gilmet continues to serve in the Navy and that he is not in confinement. He is assigned to a command where he performs “menial administrative duties.”
It is not clear when the trials of Gunnery Sgts. Joshua Negron and Daniel Draher — the other two Marines involved in the fight — will proceed. They have been in postponed status since March 2021.
— Konstantin Toropin can be reached at [email protected]. Follow him on Twitter @ktoropin.
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