Military’s top judges dismiss case against last ‘MARSOC 3’ defendant

The military’s highest appeals court dismissed the case against a special operations corpsman who had been accused of causing the 2019 death of a Green Beret veteran.

In a 5-0 decision Thursday, the Court of Appeals for the Armed Forces tossed the charges of involuntary manslaughter, negligent homicide, violation of a lawful order and obstruction of justice facing Navy Chief Petty Officer Eric Gilmet.

The judges dismissed the charges with prejudice, meaning the ruling is final and prosecutors can’t file the charges again.

Gilmet, along with two Marine Raiders, had been charged in connection with the 2019 death of a military contractor and Army vet. The pair of Marines, Gunnery Sgts. Josh Negron and Danny Draher, were acquitted in February of all charges but violation of a lawful order, for drinking while deployed to Iraq.

The unanimous opinion, written by Judge Liam Hardy, agreed with a lower court’s decision that unlawful command influence had tainted the case against Gilmet.

A top Marine judge advocate hampered Gilmet’s right to defense counsel “by creating the perception in the minds of Appellant’s defense counsel that their future in the Marine Corps would be jeopardized if they continued to zealously advocate for Appellant,” Hardy wrote.

Retired Marine Lt. Col. Colby Vokey, Gilmet’s civilian attorney, said in a statement to Marine Corps Times on Thursday that the Court of Appeals for the Armed Forces “got this opinion absolutely right.”

Marine Forces Special Operations Command said in a statement to Marine Corps Times on Monday that it was “aware” of the court’s decision and “remains committed to ensuring the fair and impartial conduct of the legal process as it continues to focus on providing high-performing, ethically sound Marine Special Operations Forces for global operations vital to national security.”

With the Court of Appeals for the Armed Forces’ decision Thursday, the winding legal saga of the so-called MARSOC 3 may have reached its end.

“This was the result of an outrageous act by a senior Marine leader in the judge advocate community and dismissal with prejudice was the only just outcome,” Vokey said in the statement. “Chief Gilmet is ecstatic and relieved that this journey is finally over.”

Death of Rick Rodriguez

The three special operators were celebrating New Year’s 2019 out at a bar in Irbil, Iraq, when retired Army Master Sgt. Rick Rodriguez became verbally aggressive with Gilmet and got booted from the bar, security footage played at the Marines’ trial appeared to show.

Outside, Rodriguez and the pair of Marine Raiders got into a brief altercation. The prosecution and defense differed on who instigated it. At one point, Rodriguez appeared to make an aggressive action toward Draher.

Draher pushed Rodriguez. Then, in what the defense argued was an action taken to protect Draher from Rodriguez’s blows, Negron punched Rodriguez, sending him to the ground.

The Marine Raiders did not take Rodriguez to a hospital and instead left him overnight with Gilmet, an experienced corpsman. When Rodriguez ceased to breathe, another military contractor who had been keeping an eye on him alerted a doctor on base, according to the contractor’s testimony at trial.

Rodriguez, a married father of four and a grandfather, was pronounced dead at a hospital in Germany days later.

Marine Corps Times did not receive a response from a member of Rodriguez’s family to a request for comment for this story by time of publication.

At the trial of Negron and Draher in January at Cherry Point, North Carolina, Gilmet testified under immunity. That would have made it difficult for the government to secure a conviction for the sailor at his own trial, because prosecutors would have had to prove none of their evidence came from Gilmet’s testimony, Vokey previously told Marine Corps Times.

In February, Negron and Draher were found not guilty of the most serious charges, including that of involuntary manslaughter, but guilty of violation of a lawful order for drinking at the bar in Iraq.

Although the jury opted not to punish the two Marines for their sole conviction, violation of a lawful order is still a felony whose consequences can carry over into civilian life.

Advocates for the two men have voiced bitterness about a subsequent decision by the MARSOC commanding general, Maj. Gen. Matthew Trollinger, not to set aside their drinking convictions.

Unlawful command influence?

The issue before the Court of Appeals for the Armed Forces was whether a senior Marine judge advocate had engaged in unlawful command influence in November 2021 by making statements at a briefing for Marine defense attorneys at Camp Lejeune, North Carolina, that Gilmet’s lawyer, Marine Capt. Matthew Thomas, interpreted as threats.

Marine Col. Christopher Shaw said in response to a question from Thomas about protections for judge advocates from outside influence that uniformed defense attorneys were “shielded” but “not protected,” according to Hardy’s summary of the events.

“Col Shaw then squared his shoulders to Capt Thomas and said ‘Capt Thomas, I know who you are and what cases you are on, and you are not protected,’” Hardy wrote.

Shaw also commented that superiors on promotion boards would know “what you did,” according to Hardy’s summary.

Thomas in December 2021 asked a lower-court judge, Navy Cmdr. Hayes C. Larsen, to release him and another uniformed defense lawyer from Gilmet’s case because the conflict of interest had caused tensions between Gilmet and his attorneys. Larsen agreed, and tossed out Gilmet’s case in February 2022 because of what he characterized as unlawful command influence.

In August 2022, however, the Navy-Marine Corps Court of Criminal Appeals reinstated the charges against Gilmet on the grounds that “any conflict of interest” his lawyers felt “was purely subjective.”

At oral argument in April at the Court of Appeals for the Armed Forces in Washington, D.C., Marine Capt. Tyler Blair argued on behalf of the government that while Shaw’s comments were “inappropriate,” they didn’t constitute unlawful command influence. He noted that the Marine Corps had taken steps to remedy the effects of Shaw’s comments, including removing Shaw from his position.

The five-judge panel asked questions that suggested they were skeptical of the government’s argument. At least four of the five judges are themselves former judge advocates, according to their online biographies.

Senior Judge Scott Stucky asked Gilmet’s appellate lawyer if, “Oh, you silly boys! You shouldn’t have believed all this stuff,” accurately characterized the Navy-Marine Corps Court of Criminal Appeals’ decision that found Gilmet’s defense attorneys hadn’t faced a real conflict of interest.

Coast Guard Lt. Cmdr. Kristen Bradley responded that it did.

“Removing Col Shaw from his position did nothing to cure the perception that other Marine Corps officers would punish military defense counsel in the promotion process,” Hardy wrote in the unanimous opinion released Thursday. “As a result, it also failed to assuage any concerns that Appellant or his counsel had about their ability to zealously advocate for Appellant at trial without fear of repercussions.”