An attorney representing a Marine sergeant accused of disrespecting Barack Obama on social networking sites says a full court hearing is up next.
Gary Kreep of the United States Justice Foundation told WND that he returned to federal court today, just hours after a Marine tribunal recommended dismissal for Sgt. Gary Stein at the conclusion of a 15-hour hearing.
But Judge Marilyn L. Huff rejected his request for the federal courts to intervene immediately to halt Marine Corps action against his client. She had rejected the request before Thursday’s hearing, too.
The action leaves an April 17 hearing in the same court as the next action in Stein’s case. From that point, a decision could be appealed to the 9th U.S. Circuit Court of Appeals. Kreep told WND that Huff had suggested that action.
In his request to the U.S. District Court for the Southern District of California, Kreep described how the military disallowed witnesses who would have spoken on behalf of Stein.
He said the military’s legal adviser assigned to the case “failed to protect Sgt. Stein’s procedural rights, and failed to fulfill his role as the impartial adviser to the board on matters of law, and took the role of the prosecution from the outset of the hearing.”
The statement from Kreep was submitted to the federal court in a renewal of a request for a temporary restraining order that would prevent the military from continuing to act in the case until the civil dispute, already filed in federal court, is resolved.
“Issuing the temporary restraining order without notice will preserve the status quo pending a hearing on the requested preliminary injunction as, given the intent of defendants to discharge Stein from service in the Marine Corps immediately, there is insufficient time for a noticed motion and hearing thereon,” Kreep explained to the court.
“The U.S. Marine Corps has demonstrated no willingness to allow Stein to pursue judicial remedies, including an appeal to the U.S. Court of Appeals for the Ninth Circuit. Without this court’s entering a temporary restraining order, Sgt. Stein will be separated from the Marine Corps within hours.”
He noted that the district court, which also declined to issue such an order before the military hearing, had recommended that the military allow time for a review of the decision.
“At the separation hearing, plaintiff learned that Assistant United States Attorney Tom Stahl had conveyed this court’s requests to Maj. Houltz, the ‘neutral’ legal adviser to the administrative separation board, and that Maj. Houltz unilaterally, without asking the other two members of the board, refused to consider any continuance, and throughout the hearing made it clear that the board was not going to ‘make a record for the federal court,’” Kreep explained.
“The legal adviser is required to be neutral, and can be challenged for impartiality. Plaintiff made such a challenge to Col. Dowling, who summarily denied the request.”
Kreep explained that even the fact that the sergeant had sought legal counsel and filed a federal action “was used by the prosecution to argue that Sgt. Stein had behaved improperly.”
His report to the district court suggested that there was a military agenda behind the proceedings.
“Not only did the military refuse to grant any continuance as strongly suggested by the court, but it restricted voir dire, provided extensive prosecution documents to defense counsel for the first time during the hearing, limited evidentiary objections, and barring all defense witnesses … from testifying as to the standard to determine what violated ‘good order and discipline’ and ‘service discrediting’ as well as whether plaintiff’s conduct violated ‘good order and discipline’ and was ‘service discrediting’ – two of the most critical issues in this case,” he said.
Kreep noted in his request to the court that Stein’s civilian legal team had retained the services of a court reporter, but during the military hearing “she advised … defense counsel there, that, due to the manner in which the hearing was being conducted, and the way that the military counsel were ‘interacting,’ she could not perform her duties in a professional manner, and she withdrew.”
The board also restricted questions defense counsel could ask and prevented some evidence from being introduced, he said.
“Members of the board operated under several mistakes of fact and mistakes of law,” he said.
He also cited as a reason for concern that “testimony by a subordinate legal officer to Capt. John Torresala, Capt. Gavin Logan, was to the effect that when Sgt. Stein attended a tea party meeting at which he was observed, nothing Stein said was objectionable, but the prosecution argued that his presence there was inappropriate as there were people at the event who opposed the re-election of Barack Obama.”
The administrative board late yesterday recommended that Stein be given an other-than-honorable discharge, which would mean he would lose benefits and not be allowed on any military base.
Next in the process is a decision by a general, who can accept or reject the proposal.
Military defense lawyers contend Stein broke no law and argue his views are protected by the First Amendment.
Rep. Duncan Hunter, R-Calif., a former Marine, wrote a letter to Stein’s commanding officer suggesting the sergeant should not face dismissal for an opinion shared by a majority of Marines.
Hunter said he was referencing Stein’s statement that he would not obey unlawful orders. Rep. Darrell Issa, R-Calif., also support Stein.
Stein testified that a statement that he would not obey unlawful orders from Obama was part of a discussion about letting U.S. troops be put on trial for the Quran burnings in Afghanistan.
He explained he was saying he would not follow orders if they included detaining U.S. citizens, disarming them or otherwise violating the Constitution.
Kreep earlier said he believed that the military was gunning for Stein.
“I don’t think the Marine Corps has any intention of treating him fairly in any appeal,” he said. “It’s my opinion, but I believe Obama sent orders down from above to get rid of this guy.”
Obama’s Department of Justice has argued that the First Amendment has to be viewed differently for members of the military.
“These comments could fairly be characterized as undermining the command structure and do not qualify as protected speech,” federal authorities said.