Fifteen were ordered to stand in a line in front of the battalion “to be recognized,” according to court filings in the case. The battalion sergeant major stood nearby, carrying a red folder that usually is associated with awards.
‘Arrest these Marines’
But these men weren’t awarded. The regiment sergeant major, Sgt. Major Matthew A. Dorsey, pointed to the Marines in front and said, “NCIS, arrest these Marines.”
About 40 or so Naval Criminal Investigative Service and other military law agents swarmed toward the line of men, coming from behind and the sides. They handcuffed and searched the men before parading them, one by one, in front of their peers.
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In total, 13 Marines were charged with human smuggling and conspiracy, and eight more were taken away for questioning. Those eight, who were said at the time to be suspects in an unspecified drug activity, were escorted off but not charged.
The arrests became national news.
The Marine Corps filmed the whole thing.
That video and the public way the arrests were handled are why two attorneys, each representing one of the Marines, are publicly criticizing the arrests. One of the attorneys filed a defense motion Friday saying the public arrests tainted the jury pool in any potential trial.
Bethany Payton-O’Brien, the attorney, wrote that the public nature of the arrests and the decision to film them amount to “unlawful command influence” and illegal pretrial punishment. Unlawful command influence is when military commanders use their authority to influence the outcome of a case.
In her motion, her client, a Marine corporal, said he heard either Dorsey or the battalion commanding officer, Lt. Col. Eric M. Olson, tell the assembled Marines that the arrests are “what happens when you break the law.”
Who filmed the episode
A spokesman for the 1st Marine Division, 1st Lt. Cameron Edinburgh, told the Union-Tribune on Tuesday that the video came from the division’s communication strategy office, which serves in a public affairs capacity for the division.
The decision to film the arrests by Marine public relations did not come from division commanders, Edinburgh said.
“It was something we felt should be done for proper visibility,” Edinburgh said.
In the video, Olson addresses the battalion once the arrested Marines are hauled off. The audio is difficult to hear at some points, but Olson says “what you just saw … these Marines are a distraction to leadership and readiness.”
Olson also tells the Marines that those arrested will be held accountable.
These comments, according to Payton-O’Brien, violate the Uniform Code of Military Justice.
“The government’s actions in this battalion formation arrest and their post-arrest comments to the battalion are wholly unacceptable and inappropriate,” she said.
Many of the accused unnamed
The Marines released charge sheets for 13 Marines on Tuesday but redacted the names of the accused. Each of the Marines is being tried separately, Edinburgh said.
Because the names of those Marines have not been released, the Union-Tribune is withholding the name of Payton-O’Brien’s client.
The names of two Marines, Lance Corporals Byron Darnell Law II and David Javier Salazar-Quintero, were made public after the two were arrested by Border Patrol for allegedly picking up unauthorized immigrants July 3.
Those arrests led to the July 25 action, the Marine Corps said at the time.
After the July arrests, the Marines released a statement to the news media announcing the arrests, and Marine public affairs officers provided statements to several news outlets, including the Union-Tribune.
“1st Marine Division is committed to justice and the rule of law, and we will continue to fully cooperate with NCIS on this matter,” the Marine Corps said in the July 25 statement.
‘Shock and awe factor’
Division officials also told the Union-Tribune the public nature of the arrests was intentional.
Edinburgh told The Orange County Register the arrests were an “eye-opening thing for the battalion ... It had a shock and awe factor. The command wanted to send a message to make clear this type of behavior is not tolerated.”
According to the defense motion, those statements reveal the purpose of the public arrests was to punish the accused before their trials and influence potential verdicts.
Jeremiah Sullivan, another San Diego-based civilian defense attorney who represents one of the Marines, called the public arrests a circus.
“It is puzzling, but not surprising, why NCIS would coordinate such a circus,” Sullivan said in an email Tuesday. “The message they are sending is unlawful command influence. This was completely unnecessary and all for show.”
Sullivan said he has not yet seen the video.
Unlawful command influence
Unlawful command influence is unique to the military justice system. If military commanders use their authority to influence the outcome of a case, it has the potential to upend the process.
In one of the most well-known examples of it, in 2018, a military appellate court threw out the rape conviction of a Navy SEAL, Senior Chief Keith E. Barry, after finding that the Navy’s top lawyer illegally meddled in the case.
Edinburgh declined to comment on the allegations in the motion.
Payton-O’Brien’s client has not yet appeared at a pretrial hearing and is confined to the Camp Pendleton brig where he has been since his arrest.