A rare glimpse into a military legal ethics inquiry
The professional responsibility systems for military lawyers – administered separately by each Judge Advocate General – are notoriously opaque. However, this news report related to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), provides a rare glimpse into one inquiry:
The Washington Post revealed that [Navy judge advocate and appellate military judge Commander] Rugh had given false information to a board of officers deciding whether a Marine he'd prosecuted for sexual misconduct should be expelled from the service.
Now his future — and potentially dozens of criminal appeals he's overseen — is being threatened by the fallout from the flawed investigation into Marine Maj. Mark Thompson, a former instructor at the U.S. Naval Academy convicted of having sex with two female midshipmen.
Last week, Rugh testified at an ethics hearing before a senior officer probing whether he lied under oath in 2014 about two witnesses, his attorney said. Thompson is accused of lying to the same board and faces a second court-martial because of The Post's revelations about his case.
The claim that CDR Rugh lied arises from the Board of Inquiry convened to determine whether Major Thompson should have been separated from the Marine Corps after he was convicted of indecent conduct and fraternization with junior officers and sentenced to confinement for two months and a fine of $60,000. In a surprise move the Board decided not only to retain Major Thompson on active duty, but also determined that he did not commit any misconduct (despite the fact that the court-martial conviction is treated as conclusive proof of misconduct).
CDR Rugh was the lead prosecutor at Major Thompson's court-martial, and he testified to the Board (via telephone) about the facts of the case. In particular, CDR Rugh told the Board that his prosecution team talked to family members of one of the junior officers and corroborated the allegation that the officer was at Thompson's home on a particular night. This was news to Thompson's defense counsel, and they later raised it as an issue of non-disclosure in an effort to reverse Thompson's convictions.
In the exposé that kindled the current prosecution of Major Thompson, Washington Post reporter Jonathan Cox spoke to some of the family members that may have been contacted by the prosecution team. They told him that they were never contacted by the prosecution. That revelation led to the claim that CDR Rugh gave false information to the Board.
The Navy's professional responsibility system is detailed in JAG Instruction 5803.1E (available here). Complaints involving professional misconduct follow a five-step process: (1) Initial screening to determine if the complaint, on its face, establishes probable cause to believe that the rules were violated; (2) Initial review by the Rules Counsel to determine if the complaint is of a minor or technical nature that may be addressed summarily; (3) An ethics investigation if the complaint is not dismissed or resolved summarily; (4) Review of the result of the ethics investigation by the Rules Counsel, and; (5) Final action by the Judge Advocate General.
The news report suggests (update: and this version clearly states) that the complaint against CDR Rugh has reached the ethics investigation stage. However, it provides the following additional details:
Rugh's attorney, retired Rear Adm. Christian L. Reismeier, wouldn't comment on what his client said at the ethics hearing. But he denied that Rugh, 44, had intentionally misled the board. In an email, Reismeier called the alleged misstatement an "honest mistake" based on information that Rugh believed to be true at the time.
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