Military.com

Trump's Lawyer Backs Effort to Overturn Marine Sniper Convictions

FILE PHOTO -- Marines returning from patrol depart a vehicle checkpoint. (Marine Corps Photo/ Sgt. Mark Fayloga)
FILE PHOTO -- Marines returning from patrol depart a vehicle checkpoint. (Marine Corps Photo/ Sgt. Mark Fayloga)

In the wake of an appellate court decision that overturned a Marine scout sniper's high-profile conviction and sent shock waves through the military justice community, a number of lawyers are working feverishly to determine what the implications are for other Marines who were punished.

One of those attorneys has another client: the president of the United States.

On Nov. 8, the Navy-Marine Corps Court of Criminal Appeals handed down a decision overturning the conviction of then-Staff Sgt. Joe Chamblin, who was demoted and ultimately discharged for involvement in a 2011 incident in which a number of scout snipers urinated on Taliban corpses during a combat deployment to Afghanistan, and then posted a video of the act to YouTube.

The court found that actions taken by Gen. Jim Amos, then-commandant of the Marine Corps, created the appearance of unlawful command influence in the conviction, creating a taint on proceedings that was never adequately addressed or alleviated.

According to sworn testimony cited in the opinion, Amos told the general originally in charge of the sniper cases, Lt. Gen. Thomas Waldhauser, that he wanted the Marines "crushed" for their activities.

Waldhauser, who had told Amos he didn't plan to send all the cases to general court-martial, was shortly thereafter removed as the oversight authority and replaced, a move Amos said was designed to remove any possibility of his own comments interfering with Waldhauser's discretion to act in the cases.

The court called Amos' "crushed" comment "an unusually flagrant example of [unlawful command influence]."

'It Was So Powerful'

The same day that opinion came out, John Dowd sprang into action. Dowd, then with the law firm Akin Gump, represented Capt. James Clement, one of two officers who faced punishment in connection with the sniper scandal. He now works for himself, and became part of President Donald Trump's legal team in June.

"We're going to put together a petition on behalf of everyone, all the defendants, to have them all corrected," Dowd told Military.com on Thursday. " ... The court's opinion was unbelievable. It was so powerful."

Dowd helped Clement, accused of failing to supervise snipers on a patrol during which he was manning a radio, to secure an administrative board of inquiry hearing in lieu of a court-martial.

Among those who testified in Clement's defense was Gen. John Kelly, then-commander of U.S. Southern Command. During the 2013 proceeding, Kelly said Clement should not have been held accountable for a unit whose leaders had become lax in discipline.

Kelly, who retired from the Corps in 2016, is now the White House chief of staff.

Dowd said he shared the news about the Chamblin appellate decision with Kelly while the two stood in the Oval Office. The White House hasn't taken a stance on the sniper case or publicly discussed it.

Kelly, who had no direct involvement with the sniper cases while in uniform, nonetheless followed them closely. In 2014, after the untimely death of one of the snipers, retired Sgt. Rob Richards, he contacted the Marine veteran's family to express his sympathies.

"[Kelly] just hated the way the Marines were treated," Dowd said.

Despite the testimony in his defense, the board of inquiry voted to discharge Clement from the service.

Dowd has enlisted a former Marine Corps attorney, retired Lt. Col. James Weirick, to investigate how to appeal Clement's discharge.

Weirick went public in 2013 with allegations of unlawful command influence against Amos and his legal team. He is cited in the appellate decision as the source of affidavits alleging Amos' attorneys improperly classified evidence in the sniper cases and withheld evidence from the defense.

"I haven't gotten down to the nuts and bolts of how you clean that up," Dowd said of Clement's discharge. "But I think if there's any evidence of command influence, it's discharging someone that you found the facts for."

In all, nine Marines faced varying levels of punishment, from special court-martial to letters of reprimand in relation to the urination video and other videos that were shot on the same deployment.

'An Unlevel Playing Field'

Although five years have passed and none of the Marines remains in uniform, the symbolic gesture of restoring rank and vacating convictions is important to see through, multiple attorneys said.

"It was an unlevel playing field," Florida-based attorney Ken Martin said of the sniper cases. Martin said he is representing one of the nine Marines, but declined to publicly identify him because of the stigma attached to the case.

"We're going to try to use that decision to get these guys, their records corrected," Martin said. "The ones that went to [nonjudicial punishment] might get their rank back. It's not going to restore them, but it's the best that can be done years later."

Perhaps the most famous of the sniper prosecutions was that of Richards, a sniper who had been severely wounded on a prior deployment and had been recognized for heroism during the 2011 deployment to Afghanistan, receiving a recommendation for a Bronze Star.

Richards pleaded guilty at a summary court-martial proceeding at Camp Lejeune, North Carolina, in August 2013, receiving a demotion and securing a medical retirement from the Marine Corps with full benefits.

He died tragically at age 28 in August 2014 after what was believed to be a negative reaction to one of his prescription medications.

'We'd Like to See It Corrected Now'

Guy Womack, a Texas-based attorney who represented Richards during his prosecution, told Military.com that he is still working to secure Richards' Bronze Star on behalf of Raechel Richards, his widow.

"The Bronze Star that he so richly deserved, they always wanted that, and he did too," Womack said. "We'd like to see it corrected now."

The process of renewing a recommendation for the valor award is complicated. Col. Christopher Dixon, the former commander of 3rd Battalion, 2nd Marines, who originally submitted the recommendation, must renew the paperwork, Womack said, and he has been difficult to reach.

Also unclear for Womack is the proper way forward to review Richards' summary court-martial; he is examining the possibility of appealing to the Judge Advocate General of the Navy for an evaluation of Richards' case in light of the recent Chamblin decision.

"We're looking into it and figuring out what we're going to do," Womack said. "We fully intend to file something."

All the attorneys involved with the sniper cases said they are eager to find out whether the government intends to appeal the recent decision to the next-highest court, the Court of Appeals for the Armed Forces.

If CAAF reverses the lower court's findings, hopes of overturning more convictions may be short-lived.

A spokeswoman for the office of the Navy Judge Advocate General, Patricia Babb, told Military.com the government has 30 days from the decision date to request that the Navy-Marine Corps Court of Appeals reconsider its decision. The Judge Advocate General can opt to certify the case to CAAF within 60 days of the decision or, if NMCCA reconsideration is denied, within 30 days of that denial.

Babb declined to say whether the government had made a decision.

"Given that this is a matter in litigation, it would be inappropriate to comment on any potential future actions," she said.

If efforts to correct the snipers' service records do move forward, Weirick told Military.com he suspects the high profile of some of those now interested in the cases may result in a prompter evaluation and decision by the Board for Correction of Naval Records.

"They can move very fast to correct things if they want to," he said.

-- Hope Hodge Seck can be reached at hope.seck@military.com. Follow her on Twitter at @HopeSeck.