Smoke doesn't always mean fire Part VI

A photo that is completely unrelated to the outcome of this article

If you've been following this story you have probably been waiting for this episode for awhile. May 20th came and I was no where near that circus. However, I did request all the court documents, which to me is almost better! For your benefit I have un-redacted [dacted?] these documents the best I could. I'm confident in the names I've implanted either by context or duty title, however some I couldn't figure out so I left them redacted.

I apologize this article has taken so long to write, there was a lot of court documents and analysis [as you'll see]. I also detoured to address SECDEF's 80% fighter MC rate mandate. At the bottom of the article I will be providing the full court transcript, however my commentary will be restricted to the parts that are germane to the story. Although I have included page numbers in my comments if you wish to find the captured text in the documents.

Bold Font is indicative of a recording of the trial in April, sometimes it is presented in this 20 May text for context or evidence. For your benefit the acronyms for the text are:

MJ: Military Judge
TC: Trial Counsel [Prosecutor]
DC: Defense Counsel

Page 8

I've included the introduction to the 20 May hearing just to provide a bit of context.

Page 10

In a typical court martial, each potential jury member is screened for eliminators. Attitudes, history or general ideology that might make them unfit or biased on the jury. I don't have the court transcripts for the trial Lt Col Martin was a juror for, however a safe bet in his voir dire would be questions asking if he generally presumes people are innocent until proven guilty [I can't imagine any potential jury member would not be asked this]. However, the recording I provided caused a second voir dire of Lt Col Martin to address his statements within the recording.

Page 11

Here we see the first indication of Chief Gleesing's involvement.

Page 15

The first mention of a CDI [Commander Directed Investigation] for Lt Col Martin's breach of a lawful order.

Page 16

The 54th Fighter Group command, possibly at the direction of the 56th Fighter Wing at Luke, decided not to initiate a CDI and instead allow the contempt hearing to proceed. Of this entire process, probably the only thing anyone in a position of command did right. So thanks I guess.

Page 20

So at the very outset, you can see the prosecutor is wearing kids gloves. He has already painted Lt Col Martin as a victim of a surprise recording; describing the circumstances as 'clearly upsetting' Trial counsel continues...

Page 21

Here the prosecutor continues his opening statement itemizing all the times Lt Col Martin was told not to discuss the trial with other jury members, to include special instructions after his individual voir dire not to discuss his release.

Page 21

So while Lt Col Martin was on the jury he was barred from speaking to the JAG office, as such interactions could prejudice his decision or at the very least give the perception of prejudice. Once he was released from the jury the judge allowed Lt Col Martin to seek advice from the JAG and ask them any questions he may have about his release.

As you will see [over and over] Lt Col Martin's sole interest was in how he could 'deal' with 'his NCO.' He didn't ask questions about what he could talk about. He only wanted to know how he could punish me, legally. And those questions pull the curtains back on the seedy underside of the military justice system.

Page 23

The defense begins with quotes from Lt Col Martin and how he felt when the recording was made public. The defense goes on to say that the recording was taken out of context.

That's a pretty bold argument, as the audio was complete start to finish [ie, fully in context] and Lt Col Martin elected to expose his ideology beyond what was required to serve the LOR.

Page 23

This is still the defense attorney's opening statement. His sole focus is explaining that Lt Col Martin did not understand the instructions he was given to not speak about the case with anyone else on the jury.

In so doing [as you will see later] the defense really makes a strong case against Lt Col Martin for other things. Reading above you can see that the Staff Judge Advocate [SJA] was so concerned about Lt Col Martin's frame of mind, they actually had Security Forces on hand the day after he was relieved [23 April] in case he was violent.

Also, the defense attorney touches on a very important part at the end of the capture above. That when Lt Col Martin was confronted with the recording, and his fitness to serve on a jury was brought into doubt; it also brought into question his capacity to serve as a commander.

Commander's regularly exercise de facto judicial authority, either through referring subordinates to courts martial, Article 15s or the subtleties of adverse administrative actions.

So if Lt Col Martin was deemed unfit to serve on a military jury, where he was a single voice among many, doesn't it indicate he is even more unfit to be the deciding factor when he is operating alone as a commander?

So, clearly in this statement the defense attorney has explained that Lt Col Martin perceived his removal from the jury as a threat to his fitness to be a commander; and that is within the context of the day he was questioned about the recording. The defense attorney has framed this argument in the past tense, to justify Lt Col Martin's mental state when he was given the instruction. I'll expand more on this in a bit.

Page 24

So after Lt Col Martin was removed from the jury he went to the SJA to ask questions. However as you can see from his defense counsel's opening statement, he only sought information on retaliation. No questions on his career, or any legal exposure he may have had. For 45 minutes  he asked what he was allowed to do legally to retaliate against me.

The defense counsel ends his opening statement.

Recordings of various instructions given to Lt Col Martin over the course of the first trial are played. The final recording is as follows (recording is in bold):

Page 28

Page 29

Page 30

I'm going to jump in here real quick. You'll notice the highlighted portion here on page 30. The military judge is saying he wants to protect the LOR recipient's [SrA Tyler Perkie's] Privacy Act rights. So the LOR is protected by the Privacy Act for the person it is served to, not the person that served it. The commander doesn't have an expectation of privacy that he is serving an LOR, that would be ridiculous.

It's an important point that will be evident in the next installment, but for now, I digress.

Page 30

Page 31

This is the first of Lt Col Martin's misleading statements [technically perjury]. SrA Tyler Perkie did not have a disciplinary board. He was released from ALS on the word and recommendation from the shirt acting as an agent of Lt Col Martin.

This is circular logic. Lt Col Martin pushes for SrA Perkie to be released from ALS, and then uses SrA Perkie's release to justify all of his 'adverse actions'

Lt Col Martin has also tipped his hand on his ideology here. He is trying to itemize suspicions, using salacious wording. However, all of his points are hollow, because they are only charges; and yet at the end of the page he cites SrA Tyler Perkie's behavior. The behavior that never existed, and at the time of the LOR was unproven.

The judge continues...

So the judge seems to get it right? He is breaking down all of Lt Col Martin's wording in the LOR audio and exposing Lt Col Martin's ideology and bias.

Lt Col Martin reinforces this when he essentially states that perception is reality [hint: it's not]. Lt Col Martin exposes that his experience has tainted his bias to presume guilt. Feels like case closed huh?

Not quite.

By now during the questioning Lt Col Martin realizes he's no longer defending his position on a jury. He is now fighting for his status as a commander. His defense counsel said as much in his opening statement, that Lt Col Martin believed his 'fitness as a commander' was being questioned.

So, in keeping with his morals, Lt Col Martin begins explaining how this trial is different than how he treated people under his command.

For the next capture, it's important to remember that this is a recording from the original trial in April. So the trial counsel in the recording is the prosecutor against someone else. Therefore, the prosecutor is 'friendly' to Lt Col Martin.

Are you curious how far Lt Col Martin will go to protect his career and command? Here he is lying under oath.

As stated before, SrA Tyler Perkie had all charges dismissed and yet the LOR stayed. But this isn't a simple oversight type of perjury where Lt Col Martin intended to dismiss the LOR in the future but forgot.

SrA Tyler Perkie had his charges dropped in January of 2016. This transcript is from April. Lt Col Martin knew full well he kept the LOR even though Tyler was innocent, and here he flagrantly lies about it to try and stay on the jury.

For those keeping score, this is Lt Col Martin's second provable perjury.

It's important to note that when Lt Col Martin wrote the LOR/UIF for SrA Tyler Perkie he was within his legal authority. AFI 36-2907 states there is not a standard of proof for an LOR:

4.1.3. Standard of Proof. While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed. A preponderance of the evidence means simply the greater weight of credible evidence. Whether such proof is available should be considered before initiating the administrative action. If such proof is lacking, administrative action is susceptible to being found to be legally unsupportable and, as a result, could be set aside. There is no requirement to prove any allegation beyond a reasonable doubt. 

It isn't a question over whether he was acting legally. It has everything to do with his state of mind and cognitive biases; and how those biases affects him as a commander and in this case, a jury member.

The recording continues...

Here the trial counsel is trying to show the differences in standard of proof, and provide Lt Col Martin a platform to showcase how his judgement will shift depending on situation.

In a healthy legal proceeding a prosecutor should want a biased juror removed just as much as a defense attorney. However, it's fairly obvious the proescutor absolutely wants to keep Lt Col Martin in spite of the damning evidence against his judgement, because his bias leans towards the prosecutors side. Moreover, Lt Col Martin is motivated to stay on the jury to preserve his reputation as a commander. So they are working together to navigate the voir dire with an unspoken shared goal of retaining Lt Col Martin.

This would be the legal equivalent of a Double Dutch Rudder.

The prosecutor continues to lob softballs, allowing Lt Col Martin to re-frame his opinion into one that is more legally palatable. Excellence in all we do, except judicial conduct apparently.

I'd like to take a moment for a mental exercise.

The moment the audio was played, and Lt Col Martin was legitimately accused of bias [especially with supporting evidence] he was unfit to serve on the jury. Because that accusation alone would influence his decision as a juror. He would be more likely to find the accused innocent to prove he is not biased.

However, if he found the accused guilty, his fitness to serve on the jury could be a justification for the appeal.

It was a lose/lose scenario, with the only reasonable outcome being Lt Col Martin's removal from the jury.

Now back to our show...

The idea that Lt Col Martin can forego all of his biases because he was instructed to do so is laughable at best.

So after a lengthy explanation of how Lt Col Martin can destroy people's lives without evidence administratively; and how that is totally different from how he won't destroy someone's life in a court martial the prosecution finishes their examination.

It's important to remember that at this point in the examination Lt Col Martin is advocating for his job as a commander vicariously through the voir dire determining his fitness as a juror.

So all of his mental gymnastics to explain how in this instance he will be fair and just, is only window dressing for his career and ego.

Now for the defense (again this is the defense attorney in US v. TSgt Brown)

So it's clear that as soon as Lt Col Martin heard the audio he knew who recorded him. He also frames the LOR as a 'closed door hearing' essentially. Ironic considering he just spent a lot of time differentiating between administrative actions and legal proceedings.

Probably my only regret. I regret that the audio was played in open court. However, I believe it needed to be done so my regret is only fleeting and I certainly wouldn't change anything.

That concludes the voir dire audio from Lt Col Martin on April 22nd, 2016.

Now begins the witness testimony. First up, the SJA Lt Col Gawaran.

Skipping a few pages... [Still in Lt Col Gawaran's testimony]

And now begins Lt Col Gawaran recalling what her and Lt Col Martin spoke about after he was released. As you'll see, he spends the entire time focusing on revenge.

Page 48

This is a fairly common theme throughout the court documents. Lt Col Martin is told multiple times that he should not discuss the recording with anyone in his squadron because they might take action against me; and those actions could be perceived as retaliation for a protected communication.

It's interesting because he immediately goes back to his squadron and tells Chief Fraley. It's almost as if the SJA gave him a playbook to follow to retaliate without 'retaliating'

Page 53

Devil's advocate is fancy speak for 'here's how you can hurt that NCO'

Now the other JAG officer testifies. I didn't dig down to find out his name, so it will be Major Redacted for this article.

There is a lot to unpack here.

The first paragraph is framed as if perception or reporting of reprisal is the concern.

'Don't do X, because then he can claim reprisal'

You can clearly see there was never a discussion of 'don't do anything to this guy'; in fact it gets much, much worse soon.

Further down Major Redacted states 'we wanted to make sure the government doesn't retaliate or reprise unduly against the Master Sergeant that made the recording'

This statement implies there are acceptable forms of retaliation or reprisal. How twisted does someone have to be, to only want to avoid the perception of retaliation? I feel there is a lawyer joke in here somewhere.

Finally, it's interesting that 'removing the Master Sergeant from his position' came up as a potential form of reprisal. Just keep that nugget in the back of your head, as it will matter in the next installment.

Continuing...

Page 62

So again, Lt Col Martin is told not to discuss it with people in his unit. Such discussions would lead to indirect retaliation or reprisal. Lt Col Martin leaves the meeting and immediately goes to his unit and tells Chief Fraley, Chief Gleesing and his secretary Meredith Gleesing what happened and by whom.

Page 63

Again, the entire conversation revolved around what he could legally do to me. He was upset because he was told he could not retaliate.

Page 67

Again, the focus is not on actually not retaliating -- just not getting in trouble for retaliating. If you think I'm splitting hairs on this, just wait.

Page 68

And now we see it don't we.

'Don't do anything now'

So it's not that you can't retaliate against this Master Sergeant, just let a little time pass so it won't be attached to the protected communication, then you can fuck him over.

Am I reading too much into it?

'We're not saying you just have to drop this forever. We're trying to protect you from retaliation and reprisal complaints.'

I don't have to read into it. No need for analysis or interpretation.

Here we have a Deputy SJA conspiring with a squadron commander to workaround whistle-blower protections in order to retaliate.

I'd like to remind you this is sworn testimony that I received from a FOIA request. This isn't some fabrication or my recollection of an event. This was entered into the court records.

Page 70

Here Major Redacted indicates that Lt Col Martin generates a substantial amount of adverse administrative actions. Who'da thunk it?

Major Redacted continues with his testimony:

Now we see why the conversation was 45 minutes long.

It seems the SJA and Deputy SJA establish behavioral boundaries explaining what he could do to me, and not get in trouble for retaliation.

Now the judge decides to cross examine Major Redacted.

Page 75

So, it's fairly obvious no one in these proceedings has a high opinion of me.

The judge seems to think recording a toxic commander and protecting the legal process 'undermines unit cohesion, unit trust and commander authority'

This of course ignores the content of the recording that exposed a commander abusing his authority and destroying people's careers on hearsay and vagaries.

Court adjourned for the day and Chief Gleesing was on the schedule first thing in the morning.

Page 77

Page 84

So..

Here Chief Gleesing is claiming that he doesn't know the identity of the Senior NCO that recorded this conversation.

Chief Gleesing expects us to believe, that Lt Col Martin who we all know recognized who recorded the conversation, had elected not to disclose that information to Chief Gleesing in this conversation.

Further, Chief Gleesing is also claiming that to the day of his testimony, he still doesn't know who recorded Lt Col Martin.

That is a lie. Chief Gleesing has perjured himself.

Page 85

So he talked to Lt Col Martin directly about the recording, and claims he doesn't know the identity of the person that recorded it?

The defense cross examines Chief Gleesing and we get to learn something 'fun'

Chief Gleesing was given immunity in exchange for his testimony.

Chief Gleesing could've also been charged with Article 48 Contempt, however in exchange for his testimony he received an immunity deal. But you'll notice, the immunity doesn't cover... perjury; which Chief Gleesing committed when he claimed [under oath] to not know the identity of the SNCO that recorded Lt Col Martin.

After witness testimony Lt Col Martin elected to read a sworn statement:

This is the commander that used to berate Airmen and NCOs alike to just accept responsibility and stop making excuses. When people would say it was a mistake, he would become incensed and point out it was a choice not a mistake. Sometimes he would inject the word crime.

Now he comes [with a lawyer] and says he has made a 'mistake.' The irony is so thick here.

He goes on to say he didn't understand the instructions he was given. I wonder how well that will work?

Page 99

Once again Lt Col Martin was very cognizant that his fitness to serve on a jury had a direct correlation to his fitness to serve as a commander. Thus he would defend his position on the jury with all of his abilities. He would never admit to his bias during the inidividual voir dire

Page 101

Again Lt Col Martin states he was unable to comprehend the instructions he was given.

So what does the judge think?

Page 102

Well, for starters he thinks Lt Col Martin doesn't have a bias. He was only released because of the perception of bias.

However, the judge seems to have a very low opinion of me.

Page 103

Prosecution begins their closing arguments:

Page 114

He makes a compelling argument doesn't he?

And the defense counsel makes their closing argument:

Appears to be a Freudian slip on line 16, can you figure it out?

Translation from the judge 'TF you mean he didn't understand?'

The irony is thick. If Lt Col Martin was approached by an Airmen that said 'I didn't understand your order' he would've destroyed that Airman. And yet here, Lt Col Martin is making the most flaccid excuse for his behavior and doesn't really accept responsibility. He apologizes for misunderstanding.

The judge, quite obviously, is calling his attorney on the BS.

I think at this point the judge just doesn't want to talk about it anymore.

Saying that Lt Col Martin claimed he didn't understand the order while under oath doesn't carry a lot of weight when he has already perjured himself twice.

I skipped a few pages as the same things are repeated.

The judge deliberates for 19 minutes:

Lt Col Martin is found guilty. So what punishment does he receive?

And now we see the game is rigged. No punishment at all.

So whats the score here?

Lt Col Martin perjured himself twice, and conspired with the Deputy SJA to retaliate against a SNCO that made a protected communication.

Chief Gleesing perjured himself.

Lt Col Martin was promoted from Squadron commander to deputy group commander while this was going on.

The next installment will be the final installment[maybe] of this story, so I hope I didn't wear you out with this one. As always thanks for reading and you're welcome to follow the blog on our Facebook page, I enjoy reading the comments and answering questions.

Below, as promised, is the full transcript for the brave souls that want to read all 137 pages [If you prefer to read it full screen, click on the full screen box in the lower right corner there].