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Upholding the Constitution in Hard Cases
Just as Bill Cosby was rightly freed by the Pennsylvania Supreme Court on solid constitutional grounds, so now two Marines have been cleared of wrongdoing in a 2011 incident, where Marine snipers recorded themselves urinating on Taliban corpses. The reason for reversal of lower adverse actions? Improper command influence from the top of the Marine Corps.
The Acting Secretary of the Navy just cleared the record of a Marine officer who had be separated from service under a cloud, even though he was not at the scene. At the same time, the Navy has upgraded the rank of a senior noncommissioned officer, a senior sergeant, who had been forced into retirement at a lower rank.
It is a gross violation of military justice for a senior commander to make statements indicating the desired result of a supposedly fair process.
In a June 16 decision, the Board for Corrections of Naval Records did the next-best thing: It handed down a decision to clear Clement’s record, award him any separation pay he’d lost due to disciplinary proceedings, and push forward a recommendation that he receive the Navy and Marine Corps Achievement Medal that he’d been submitted for prior to the scandal.
The 12-page decision noted that Clement’s appeal hinged on comments from then-Commandant of the Marine Corps Gen. James Amos that appeared to prejudice prosecution of those linked to the sniper incident. Then-Lt. Gen. Thomas Waldhauser, the commander assigned to oversee the cases, testified in a 2013 sworn statement that Amos told him he wanted the snipers “crushed.” Waldhauser stated that he pushed back; Amos soon after removed him from the case.
It has taken a decade, but the wheels of justice turned until they produced the correct result for this incident.
Published in Military
Now how about freeing those young submariners who went to prison for sending selfies to their parents from the sub, while Hillary Clinton walks free.
Good post. Thank you for writing it.
As a retired Marine, I am embarrassed by the actions of Gen. Amos and fear that this type of general officer is now the norm.
You are welcome. I came across this news as I was checking on the Navy railgun story.
That should be applied to Derek Chauvin too. Except instead of a general, substitute violent protesters and one congresswoman who can’t keep her trap shut . . .
And a mayor and city council and a governor.
Didn’t Biden say something about it too?
Question: Isn’t justice adminstered to the person on trial, not the victim of a crime? I keep hearing “justice for Floyd,” but when justice is served, I think it’s service on the accused, guilty or innocent – but usually guilty . . .
I think justice is a two way street. Like the two sides of the scales in Blind Justices hand, justice for the victim, and justice for the lawbreaker.
Who?
I dis agree.To claim a verbal public statement is the policy of a goverment official when nothing is done in writing when the legislators clearly passes a law that says it has to be in writing and not verbal. This is judge making major changes to the law.
There is a reason we write our laws down. The real unconstitutional is the idea your right to silence only applies in criminal cases. Not my right to silence applies 100% of the time it a right given by God himself not man. It does not matter the circumstance I don’t have to open by big mouth ever if I don’t want to.
The decision should of been his statements were not admissible as evidence because him before forced to testily against him self was unconstitutional. That is not what it was though. I would say retry the case without the statements but then prosecutors would not have a case.
????? I don’t understand what case to which you refer or to what defendant you refer.
I once clerked for a judge who reversed the guilty plea and jail sentence on a confessed child molester because the trial court judge failed to give the required admonishment prior to the plea. My judge had served just a short time on the appellate court after many years as a trial judge. As a young clerk I was floored. The defendant had, without a reasonable doubt, committed the most awful acts against an 8 yo girl per the evidence outside of the plea. Further, my judge was risking his re-election on this reversal. He said there is no short cut thru due process and we cannot go forward on guilty pleas received improperly. The trial judge didn’t do his job. If we dump due process based on “feelings” or the unpopularity of the target, we have no due process. The defendant ultimately withdrew his guilty plea and went to trial. He got 2x the jail time at trial over what he had accepted under his plea. Don’t mess with Texas juries!!!
The Bill Cosby case. The district attorney at the time announced that Cosby wouldn’t be charged. That meant that if he was sued by the victim, he couldn’t plead the Fifth amendment against self-incrimination because he wasn’t going to be charged. The civil trial went ahead. Cosby’s testimony was incriminating. A subsequent district attorney decided that he would be charged after all, and they used the testimony in the civil trial.
A lot of people have made noises that Cosby’s money got him out of this. It did cost a pretty penny, but constitutional rights are for all Americans, even the rich ones.
If the verbal statements were designed to induce action (they were – Cosby’s civil testimony) and those verbal statements were relied upon and action taken (Cosby did testify in the Civil case) then due process and fairness require that the agreement, verbal as it is, be upheld. The verbal immunity deal wasn’t a “law”. The legislature is never involved in specific criminal case negotiations.
Once more, for clarity or something: Cosby didn’t “get off,” or “walk,” etc. He served 3 years of what could have been a 3 to 10 year sentence. That ain’t nothing.
And at his age that’s a long time. Also, he is probably pretty much out of money and not likely to go back to his earlier career.
Moreover, the deal wasn’t whispered in a courthouse hallway. It was made in public, for television cameras, and the reason the non-prosecution was explicitly given.
Agreed.
As to the military cases, it is written law or military regulation. Undue command influence, when commanders have both executive and judicial roles, is rightly prohibited. Senior officers in every U.S. military service know this. I was a lieutenant colonel, a battalion commander, and made a comment that could be taken as prejudging what should happen in a disciplinary matter. My group commander, a colonel, stopped me cold and told me never to say such a thing again, verbally or in email. He wanted to avoid having to pull my disciplinary proceedings up to him for initial action, thus dumping matters that he should review, unless a battalion commander shot his mouth off, onto the general above us. The most senior Marine, the Marine Corps Commandant, knew exactly what he was doing and that it compromised every leader below him, making them his instructed agents rather than each fairly and independently weighing the evidence and considering, with advice of their command judge advocates (trained military lawyers), the military regulations and UCMJ.
This may be deserving of clarification. I don’t know what it was about the testimony that was supposed to be incriminating. I do know that the people who tell me so also tell me that a disease with a survival rate of greater than 98% and a dropping infection rate is still a massive health concern, that the drugs that they warned us were ineffective have led to much of this success in treatment, and that The Last Jedi was an excellent movie.