A Marine whose 18-year sentence on a rape conviction was overturned last year due to concerns the outcome was influenced by senior Marine leadership is back behind bars to serve a much lighter sentence.
At a Parris Island, South Carolina court-martial aboard Marine Corps Recruit Depot Parris Island, South Carolina, Staff Sgt. Stephen Howell was sentenced to nine years' confinement in late April after a jury of enlisted Marines and officers found him guilty of failure to obey lawful general regulation, abusive sexual contact and adultery. Howell faced allegations he sexually assaulted the mother of a potential recruit, but was found not guilty of the graver charges of rape, aggravated sexual assault, sodomy and assault – a significant reversal from the previous 2012 verdict that found him guilty of all those charges.
Howell's case may be the most unusual and dramatic to arise from the controversy surrounding the Heritage Brief, a series of 2012 speeches given by previous commandant Gen. Jim Amos aimed at eradicating sex assault in the ranks. In at least one of the talks, Amos asserted that 80 percent of sexual assault accusations are legitimate and disparaged the "buyer's remorse" defense in sexual assault cases as "bullsh--."
In overturning Howell's sentence, Navy chief appellate judge Capt. Moira Modzelewski noted that four members of the jury gave some evidence of being influenced by Amos' remarks. One master gunnery sergeant said the Heritage Brief might have "some bearing" in her decision-making on the case. Two other Marines said they accepted Amos's "80 percent" figure as fact. And a lieutenant colonel acknowledged that the Heritage Brief might influence jury members to support a punitive discharge for the accused.
Of the five members who were finally seated on the jury, four had personally attended a Heritage Brief lecture.
Howell's trial was further complicated by questions of fairness surrounding his trial judge, Lt. Col. Greg Palmer. While the court-martial was proceeding, Palmer held a training session for five junior officers in which he told them, "the defendant is guilty ... it is your job to prove he is guilty. You need to take him down."
Palmer also called jury members "knuckle-draggers" and "morons," and told the officers that "that Congress was 'mad' at the Marine Corps over its handling of criminal cases and that Congress wanted 'more convictions,'" according to the appeal. These remarks would prompt attorneys to appeal some dozen cases Palmer had presided over, and resulted in Palmer's stepping down from the Howell case before its completion.
In the authored appeal ruling, the Navy-Marine Corps Court of Criminal Appeals found Palmer erred in failing to address the influence the Heritage Brief might have on the judgment of jury members, and that the judge who replaced him, Col. Bill Riggs, also failed to remedy the problem.
"An objective, disinterested observer, fully informed of all these facts and circumstances, would harbor a significant doubt as to the fairness of these proceedings in which members of the panel appear influenced by the CMC's brief," Modzelewski wrote. "Lt. Col. Palmer ruled erroneously on the [unlawful command influence] motion and failed to shift the burden to the Government, and successor judges failed to cure that taint."
A retrial was ordered and Howell's sentence was set aside, which resulted in a bizarre situation: after serving a year and seven months in prison at Fort Leavenworth, Kansas, Howell was reinstated as a staff sergeant aboard Parris Island and returned to full duties on the base.
Howell's lead defense attorney, Maj. Roger Mattioli, said the Marine worked in the base's S-1 administrative shop after his release. While a judge has ordered that Howell be restored to full pay, Mattioli said, the Defense Finance and Accounting Service opted not to pay him while the second court-martial was pending. Now that deliberations have concluded, he said, the pay issue is being resolved.
Back in prison, Howell now has left a little more than seven years behind bars, adjusting for time already served. His nine-year sentence represents almost the maximum possible for the charges on which he was convicted.
"We were disappointed in the outcome. We were certainly confident that he was going to be found not guilty of all charges," Mattioli said. "To say that we were shocked would be an understatement."
The Howell saga is not over yet, however; Mattioli said the new verdict would return to NMCCA on appeal. Because an appeal was pending, he said, it wouldn't be appropriate for Howell to comment on the verdict.
Howell's verdict was one of only a handful reversed or altered on appeal due to connection to Palmer or the Heritage Brief, and by far the most dramatic change in sentencing. With the fallout from these controversies largely at an end, it may also be the most significant byproduct of the scandal.
"It will be talked about for many years," said Phil Cave, a military defense attorney who has written about the Heritage Brief and the Howell case. "It's certainly one of those apocryphal stories that will be a part of military justice history."
