ERIC MONTALVO, FOUNDING PARTNER OF THE FEDERAL PRACTICE GROUP, SPEAKS WITH THE MILITARY TIMES ON Cpl. Thae Ohu CASE

Posted By smay || 29-Jan-2021

Bergdahl’s bigger crime: Misbehavior before the enemy

A look inside the complicated assault case the Marine Corps doesn’t want anyone talking about

Cpl-Thae-Ohu

Cpl. Thae Ohu is currently in the brig facing nine charges including attempted murder. (Photo curtesy of Michael Hinesley)

A prosecution’s push to silence those working to fight for Marine Cpl. Thae Ohu was struck down by a Marine Corps judge Monday.

“I lack sympathy to infringe on constitutional rights,” Lt. Col. Michael Zimmerman, the judge in the case, said during a hearing on Marine Corps Base Quantico in Virginia.

Ohu’s family says she was an alleged victim of sexual assault by a superior in her chain of command. She later was charged with nine violations of the Uniform Code of Military Justice, including aggravated assault on an intimate partner and attempted murder, when she allegedly attacked her boyfriend with a knife.

She claims the attack was due to trauma from her prior assault.

Her case has garnered growing media attention since she was arrested in April 2020 ― and her lawyers, family and activists say it is shining a light into how the Marine Corps is failing to handle both sexual assault and mental health issues among Marines.

“That kid has its own public affairs officer?” a Marine officer ― later confirmed to be Maj. Albert Evans, the regional defense counsel for the National Capital Region ― dismissively asked Capt. Sam Stephenson Monday morning in a room with reporters in it before Ohu’s most recent article 39 hearing.

Stephenson insists he heard the major say “case” instead of “kid,” but another reporter present corroborates that he heard “kid.” Evans declined to speak about the comment after Monday’s hearing.

Stephenson later confirmed that Evans has no connection to the case. Even so, the comment illustrates the unusual amount of public attention the Ohu case is garnering.

The gag order struck down Monday sought to keep “counsel, witnesses, or parties to this case to continue communicating with the press,” according to the Virginian-Pilot. Marine Corps Times asked for the same motion and was told to file a Freedom of Information Act Request, which has not yet been fulfilled by the Corps.

But if the prosecution had wanted to keep potential jury members ignorant of the case for the trial, Zimmerman noted, they could start the process of identifying them now and sequestering them from any articles written about Ohu.

“Many steps can be done before I constrain constitutional rights,” Zimmerman said as he ruled from the bench. “It just hasn’t been done yet.”

The Marine Corps prosecution has yet to respond from Marine Corps Times’ request for comment on the decision.

While stationed in Okinawa, Japan, in 2015, Ohu showed promise in her Marine Corps career.

That was until a night drinking with co-workers ended in the young Marine allegedly being raped as she “slipped in and out of consciousness,” the War Horse reported in early December 2020.

“I only can remember the fear of my naked body,” Ohu had written after the incident in her notebook, which was obtained by nonprofit military news outlet.

The alleged rapist is now a staff sergeant working in the Pentagon’s legal division, Marine Corps Times confirmed through releasable service information.

Years later Ohu reported the assault, launching an initial Naval Criminal Investigative Service investigation that did not result in any charges.

Ohu had struggled with mental health issues her entire life and had required a mental health waiver to enlist in the Marine Corps, her sister Pan Phyu, currently stationed in San Diego with the Navy, told Marine Corps Times in November 2020.

The active-duty culinary specialist second class petty officer sent an emailed statement Tuesday indicating that all of the views she is presenting in the case are her own, “and do not necessarily represent the view of the DoD, DON, or USMC.”

But Ohu’s alleged rape added fuel to her mental health issues, according to her family, coupled with their claims that her chain of command failed to help her get treatment. They say that’s what ultimately led to an alleged April assault.

On April 5, 2020, Ohu allegedly attacked her then-boyfriend, Michael Hinesley, with a knife she had grabbed from the kitchen, threatening to kill him.

She later allegedly violated a military protective order that restricted her from seeing Hinesley later in the month.

Hinesley was not harmed in either incident and since has argued for the Marine Corps to drop all charges against Ohu and discharge her honorably.

On Monday the judge also dismissed a request from the prosecution to have an armed guard in the courtroom whenever Ohu was there.

“We don’t believe there was any basis for that request,” one of her lawyers said. “We’re glad that the judge found that it was not necessary.”

Eric Montalvoof the Federal Practice Group, who is representing Ohu, told Marine Corps Times on Monday, “The court considered all the issues and we believe properly determined that their request adversely impacted constitutional rights. We’re glad that, that was not put in place because the government didn’t meet its burden.”

The hearing also discussed future locations Ohu’s trial.

Zimmerman emphasized the need for a larger court than could be found on Marine Corps Base Quantico, Virginia, or Naval Station Norfolk, Virginia. The need for a large space was stemming from increased COVID-19 social distancing protocols and the particularly large number of lawyers involved in the case.

Ohu’s defense team consists of two Marine Corps lawyers alongside two civilian defense attorneys, while the prosecution is made up of three Marine Corps lawyers.

While the judge’s main worry was the size of the courtroom, Maj. Zachary Phelps, the highest-ranking Marine on the prosecution, noted that this case may require a larger jury pool than normal, one he said could best be found at Camp Lejeune, North Carolina.

“Members selection is one of the many important factors in determining a trial location,” Stephenson said in a follow up email.

“All Marines assigned to Training Command are eligible to serve as members. Since there are numerous Training Command units in the Camp Lejeune area, there is a large pool of Marines there from which members may be selected,” he added.

‘That doesn’t mean we can’t do better’

The most substantive motion by the defense, a claim that the Corps has violated Ohu’s rights with unlawful command influence, has not yet been entirely ruled on by Zimmerman.

The argument from the defense has four parts. The first part alleges that the Corps has not allowed the defense proper access to Ohu while she has been confined at that Naval Consolidated Brig in Chesapeake, Virginia.

Montalvo took to the stand on Monday as a witness and said he had scheduled a three-hour visit with Ohu starting at 9:30 a.m., but when he arrived at the brig he was told Ohu was conducting physical training and he would have to wait until it was completed and she showered.

After waiting for 45 minutes Montalvo was able to see his client, he testified, but during the interview he was denied a phone, internet access or even a computer that would help him consult with the rest of the defense team and his notes.

Additionally, guards were present during the interview, inhibiting his ability to talk freely with his client, he said.

Montalvo called the restrictions, “clearly a very large amount of unlawful command influence” and “clearly unacceptable.”

But Phelps said the issues actually rose from the defense staff’s lack of coordination with the brig staff, along with mandatory safety requirements.

He noted that though guards were visible, the brig used a white noise machine to ensure they could not hear the conversation.

Zimmerman ruled from the bench, saying the issues did not rise to the standard of unlawful command influence, but were still unacceptable.

“There are potentially a number of reasons the brig is doing what they are doing, but that doesn’t mean we can’t do better,” Zimmerman said.

He eventually ordered that the defense team to have two eight-hour sessions with Ohu, where they can fully coordinate to develop her defense.

The defense also argued that the actions of Lt. Col. Alan Schuller, the staff judge advocate for Marine Corps Training Command, amounted to unlawful command influence. The staff judge advocate provides legal advice to support the commander’s decision on legal matters.

Photos taken of Ohu’s alleged injuries she obtained during her alleged assault while she was being treated at the Portsmouth Naval Hospital in Virginia, taken by one of her defense lawyers, Maj. Kurt Sorenson, allegedly violated policy at the Naval hospital, who seemingly sent a request to Schuller to fix the situation.

Schuller then allegedly emailed the defense team threatening them with an investigation if any further violations were reported.

Montalvo insisted that if the defense team had violated any hospital regulations the hospital should have reached out, not the staff judge advocate for the command authority in the case they are working on.

“I have never seen or heard of an SGA threatening to investigate the entire defense team,” Montalvo argued before the judge. “The thumb he placed on the scale here has us concerned.”

The prosecution argued that Schuller was simply passing on a complaint from the hospital ― that the SGA for the hospital, a lieutenant, felt too junior to handle himself.

“It was probably not the best way to go about it,” Phelps did admit to the judge.

The defense also argued that the court should enforce the pretrial agreement that the defense accepted early in the process. The agreement would have seen Ohu discharged from the Marine Corps, in the hopes that she would be able to get the treatment she needed for her mental health.

Montalvo said he sent the signed pre-trial agreement to Schuller for the TECOM commander to finalize.

“I was in contact with her father over insurance issues,” for when Ohu was released, Montalvo said about his confidence in the agreement being accepted.

But the agreement was not finalized.

“That cost us almost a month,” Montalvo said.

Phelps argued Montalvo substantially changed the pretrial agreement he initially proposed before sending it to the command. He added it ultimately depends on the commander to accept it or not.

In a written ruling the judge denied all parts of the defense’s motion, ruling that no plea agreement was reached, that the defense had not shown enough evidence for unlawful command influence and that Schuller will remain involved in the case.

“The Military Judge ruled on 29 January that the ‘defense failed to meet its burden to show that the SJA should be disqualified in this case’ and ‘failed to meet even the low bar of raising some evidence of UCI,’” Stephenson said in a later email.

“In this day and age, for us to pray for Thae to have access to a fair trial, when that should be afforded at a minimum, regardless of race, or gender; is blatant disrespect for the Constitution,” Phyu told Marine Corps Times in a Tuesday email.

About author Philip Athey

 

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