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HOW COMMON IS IT, AND HOW MANY HAVE BEEN AFFECTED BY IT?
by Sharon Rondeau
(Sep. 8, 2013) — Charges against one of eight U.S. Marines have been abruptly dropped after a military judge granted an order to allow Marine Corps attorneys to provide testimony as to how “senior commanders had interfered in the case to get a guilty verdict.” The same order provided access to Marine Corps Commandant Gen. Jim Amos’s emails regarding the accused Marines to defense attorneys representing Capt. James V. Clement.
Amos had reportedly dismissed the officer assigned to oversee the prosecution of the Marines, Lt. Gen. Thomas D. Waldhauser, after Waldhauser indicated he would not commit to making sure that the eight were “tossed out of the [Marine] Corps” as a result of their alleged actions. Waldhauser wrote in a statement corroborated by a staff attorney/whistleblower that Amos had “manipulated the legal process” and attempted a cover-up of the evidence “after the fact.”
The Marine Corps Times reported that Amos’s explanation for removing Waldhauser from prosecuting the cases proved to be false. Clement’s main defense attorney, John Dowd, called the withdrawal of the charges an “act of cowardice” which exposed the Commandant, his attorney, and the Judge Advocate Division of the Marine Corps as colluding to hide the unlawful command influence from the public scrutiny resulting from the judge’s order.
The Washington Times reported that the Marine Corps general responsible for withdrawing the charges against Clement, Lt. Gen. Kenneth J. Glueck, did not explain his reasons for doing so.
The leader of the battalion to which the eight Marines belonged has had his career placed on hold until all of the cases have been adjudicated.
A second Marine accused in the incident, Sgt. Robert Richards, has taken medical retirement as a result of a summary court-martial, which is a less serious hearing than a special court-martial or general court-martial. Roberts was seriously wounded in Afghanistan in March 2010 by shrapnel although reportedly recovered sufficiently to deploy the following year.
Richards’ wife said that her husband accepted the summary court-martial to avoid placing the Marine Corps “in a bad light” and to protect his medical disability benefits, which would have been in play if he had undergone another form of discipline and been convicted.
Earlier this year, after a California congresswoman and others lodged a complaint about Marines’ alleged offensive postings on social media sites with the Inspector General of the division, Amos responded by stating that “he might go so far as to prohibit Marines from visiting certain sites in an effort to root out social media abuse.”
The Inspector General of the Marines is touted to be “The Eyes and Ears of the Commandant.”
Many people do not know that the Marine Corps is actually a service branch of the U.S. Navy. Marine Corps attorneys can therefore represent Navy personnel, as occurred in the court-martial of CDR Walter Francis Fitzpatrick, III, in 1990.
Last week, a Marine Corps attorney on active duty in 1992 recalled to The Post & Email some of the events surrounding Fitzpatrick’s request for a review of his court-martial. He stated that on occasion, “deals” are worked out so that the defendant does not have to serve prison time or serves a shorter sentence than he normally would. He also said that he remembered that “undue command influence” was Fitzpatrick’s chief complaint against the admiral who convened his court-martial.
The attorney related a different set of circumstances as to how Fitzpatrick’s court-martial record would have been maintained than the official story given to Fitzpatrick by Capt. Rand Pixa, who was assigned to investigate Fitzpatrick’s claim of forgery of one of the documents in his file.
Pixa stated that the file was found in a box at the bottom of a closet in a JAG attorney’s office, but the JAG attorney with whom we spoke said that there was no closet in the area where court-martial records were kept for 1-2 years after completing a review.
Fitzpatrick has accused Adm. John Bitoff of exerting undue command influence by using his own staff to populate the judicial panel which decided whether or not Fitzpatrick was guilty of the charges. An officer disqualified from prosecuting Fitzpatrick because of a conflict of interest was appointed by Bitoff to serve on the panel.
Following the court-martial, Fitzpatrick was admonished with a Letter of Reprimand for something he never did, and a response to the letter was produced with a signature he never inked.
Rand Pixa and Fitzpatrick’s defense attorney, Kevin Anderson, were acquainted and worked together at Treasure Island in San Francisco, CA. Fitzpatrick believes that Pixa warned Anderson before the NCIS arrived to question Anderson in January 1998 about the forgery in Fitzpatrick’s file.
When the NCIS discovered that the signature was indeed a forgery, it abruptly halted its investigation. Five years later, when more evidence incriminating Anderson surfaced, four NCIS agents led by James H. Connolly threatened Fitzpatrick’s life if he were to continue to seek redress for the crime.
The current Judge Advocate General of the Navy and Marine Corps is Nanette DeRenzi, who assumed the position after serving in both prosecution and defense roles early in her career and working her way through the ranks as a Navy attorney and the Judge Advocate Corps. Her current position is described as “the principal military legal counsel to the secretary of the Navy and chief of naval operations, and serves as the Department of Defense representative for Ocean Policy Affairs (REPOPA). As the JAG, she also leads the 2,300 attorneys, enlisted legalmen, and civilian employees of the worldwide Navy JAG Corps community.”
In April of last year, The Post & Email wrote to Chief of Naval Operations Jonathan W. Greenert about the forgery in Fitzpatrick’s file, including a memo written on September 5, 1997 by NCIS agent Ernie Simon to various parties observing that “…the forgery is only one allegation of many Fitz has made against the Navy. However, if you can prove the forgery, it totally supports his 10 years worth of contentions and makes the NAV look really bad…”
Greenert, who did not respond to our letter, is a former classmate of Fitzpatrick’s from the Naval Academy at Annapolis, where Fitzpatrick graduated third in his class of 1975.
Our Marine Corps contact affirmed that a court-martial “ruins” the career of anyone in the Armed Services. He described Fitzpatrick’s special court-martial as “a square peg in a round hole.” When we asked him about the potential for “undue command influence” in a court-martial, he responded, “The convening authority has a lot of power…” and appoints the members of the panel. He then explained that the staff JAG assigned to the admiral should have objected if he observed the admiral overstepping his authority. Bitoff’s staff JAG was Lt. Tim Zeller, who carried out the investigation into the allegations against Fitzpatrick alone, without contacting the NCIS.
When Fitzpatrick sought help from then-Rep. Norman Dicks, Dicks contacted Bitoff, who responded in a letter dated April 30, 1999:
“When the Article 32 investigation was completed, I was surprised to find LT Zeller had conducted the investigation, rather than the NIS. I questioned my Chief of Staff [Mike Edwards] on this point and I recall him telling me that LT Zeller had asked the NIS for assistance, but they [the NIS] were unable to provide an agent to go to sea aboard USS MARS.”
Later in the letter, Bitoff told Dicks, “…I brought the charges and I convened the court-martial…”
A commander who is the accuser, may not thereafter act as a convening authority to refer the case to a court-martial. The commander is considered to be “disqualified” to act as a convening authority and must forward the charges to a superior convening authority. A commander is considered to be an accuser when he or she:
- Formally signs and swears to the charges on the charge sheet (prefers the charges), or
- Directs that the charges be signed and sworn to by another, or
- Has an interest, other than an official interest, in the prosecution of the accused
Of the case against the eight Marines, Fitzpatrick told us, “Nanette DeRenzi is Navy and Marine Corps TJAG as we’ve discussed. The case tossed out this weekend is a Navy – Marine Corps case. This isn’t just about the Marine Corps.” Of his own case, he said, “Meanwhile, DeRenzi participates in maintaining a wrongful conviction against me in place. She’s protecting Anderson’s forgery of my name. She is an active participant in the most reviewed and troublesome court-martial case the Defense Department has ever had to wrestle with. It just grows bigger in scope and scale.”
The Post & Email has contacted several Public Affairs offices within the military, and none has responded to our statement that we have irrefutable proof that Fitzpatrick’s court-martial was tainted by undue command influence. While Bitoff and Anderson have spoken with us at length, neither agreed to go on the record.
Article 37 of the UCMJ states, in part:
(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts…
Fitzpatrick’s court-martial is the most reviewed in U.S. history, with justice still not served.