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Judge: Quantico's DWI policy violates constitution

Sunday - 4/1/2012, 7:53am  ET

Associated Press

McLEAN, Va. (AP) - A get-tough policy on drunken drivers at the Quantico Marine Corps base backfired, and a federal judge has tossed out five DWI cases against Marines after ruling that their constitutional rights were violated.

Earlier this month, U.S. District Judge Anthony Trenga dismissed the cases against the five enlisted Marines. He said they were essentially fooled into waiving their right to a court-martial. As a result, the Marines were exposed to double punishment _ administrative sanctions from the military and a criminal conviction in civilian court.

Officials at Quantico said Friday they are changing their policies in light of the judge's ruling.

Both sides acknowledged that Quantico has been unique among Marine Corps bases across the country in pursuing what the judge called a "dual prosecution" policy. At any other Marine Corps bases, a Marine charged with drunken driving on the installation is prosecuted either through a federal court or through the military justice system, but never both. Military punishments are most often meted out through an administrative procedure called nonjudicial punishment or NJP, which occurs when a Marine waives his right to a court-martial.

At Quantico, though, the policy was to pursue both military punishment and civilian prosecution whenever possible. That can only occur when a Marine waives the right to a court-martial and agrees to accept nonjudicial punishment. Constitutional protections against double jeopardy bar a court-martial and a civilian prosecution for the same crime, but because nonjudicial punishments are administrative in nature, the double-jeopardy protections don't apply.

"The intent at Quantico was to ensure consistency for civilians and Marines charged with DWI aboard Quantico. This process also served to ensure a DWI conviction was also reflected in the Marine's driving record and criminal history off-base, something an NJP does not do," said Quantico spokesman, 1st Lt. Brian Villiard.

Indeed, one effect of the policy change is that the Virginia Department of Motor Vehicles will no longer be informed when Marines' DWI cases are processed through a nonjudicial punishment.

The change comes after an 18-month legal battle in federal court. The cases were first brought in the summer of 2010, and a federal magistrate tossed them out later that year. The government asked the magistrate to reconsider, but he upheld his ruling. The government then appealed to Trenga.

Trenga's ruling found Quantico fell woefully short of informing Marines of the legal pros and cons of waiving their right to a court-martial. Testimony revealed that the legal consultation is perfunctory. The military lawyers say they make clear at the outset that there is no attorney-client relationship and they are there only to provide general guidance. And the military lawyers acknowledged they had no idea what kind of punishment is likely in a civilian court. Trenga said the consultations were inadequate to ensure that the Marines understood what they were giving up when they waived the right to a court-martial.

Invariably, defense lawyers said, Marines made bad decisions to accept nonjudicial punishment, which can carry severe consequences that include loss of rank and pay, disqualification from future promotions and confinement to barracks for a month or more. The Marines then face prosecution in U.S. District Court. A first-time DWI conviction there typically carries fines, requirements to attend alcohol awareness programs and can occasionally carry short jail terms if a defendant had a prior convictions or an especially high blood-alcohol level.

"Only once they were provided with attorneys qualified and certified to advise them on all aspects of their case did (the Marines) learn of their fool's bargain," wrote federal public defender Brian Mizer.

Michael Nachmanoff, the chief federal public defender in the eastern district of Virginia, said it makes no sense to single out Marines for multiple punishments that would never be imposed on civilians, or for that matter, members of the military other than those at Quantico.

"It's grossly unfair. There's no other way to describe it," Nachmanoff said.

The government, though, says the Marines were informed of their rights and had the opportunity to hire a lawyer before deciding what to do. And the government argues that it's entirely rational for a Marine to accept double punishment to avoid a court-martial because of the special stigma that carries among those in the military and because the potential punishments in a court-martial could include a bad-conduct discharge.

"What if the Marine cares deeply about staying in the Marine Corps, and knows that while a court-martial conviction could end his career, he probably could recover from one NJP?" wrote special prosecutor John J. Radacsy IV in court papers defending Quantico's policy.

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