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Attorneys for Marines accused of human smuggling call public arrests illegal

Posted at 6:03 PM, Nov 06, 2019
and last updated 2019-11-06 21:48:16-05

OCEANSIDE, Calif. (KGTV) — Defense attorneys for 15 Marines accused of human smuggling said they hope the judge dismisses the case.

The attorneys argued that the Commander illegally used his power to discipline the Marines publicly, and therefore influenced the outcome of the case.

It was a very public display of discipline.

Fifteen Camp Pendleton Marines were cuffed and taken away by NCIS agents in front of an 800-person battalion formation in July. They were accused of human smuggling and conspiracy.

But now, attorneys representing a few of the accused Marines said the public arrests violated their rights. Now, they are filing what's called an "undue command influence" motion against the Battalion Commander who led the formation.

"Anytime you have a Commander who is in a position of leadership who potentially affects a subordinate's rights to a fair trial, that can be viewed as potential 'undue command influence,'" military attorney Gary Barthel explained. "This motion for 'undue command influence' was made against the Battalion Commander for making comments and parading the 15 individuals out for what was supposed to be a recognition, and they were ultimately arrested."

Barthel is a former legal advisor to Camp Pendleton's Commanding General. He said a Commanding Officer's job is to maintain good order and discipline their command. But in military law, they also wear the prosecutor and jury selector hats.

"Those two hats can clash," Barthel said. "That's why it's important for Commanding Officers to be careful what they say with regard to their views of the military justice system, or their views of a particular individual who has been accused of an offense."

The defense team said the Commander used his power to influence the outcome of the case unfairly. But Barthel said in his experience with 'undue command influence' cases, he believes the military has likely already taken the Commander in question off the case.

"You can take the individual that allegedly made the statements involved out of the process, and that keeps the process fair and impartial," Barthel said. "I'm not sure that this is going to be a successful motion for 'undue command influence.'"

The Marine Corps responded to a 10News inquiry regarding a video of the public arrests. They said:

The video was filmed as a way to document the detainments that took place on July 25, 2019, in an unbiased, non-editorialized manner. The video was then and is now intended for official use only. We are cooperating with the judicial proceedings regarding this case. To protect the rights of the accused, the video has not been released by the government to the public, nor do we intend to release it at this time.
1stLt Cameron Edinburgh Media Officer Communication Strategy and Operations 1st Marine Division