Defense Investigator Challenges NCIS Retaliation

September 15, 2010

SAN DIEGO – A former Marine and federal contract investigator is challenging the Naval Criminal Investigative Service (NCIS) for retaliating against her because she is an effective defense investigator for Marines and sailors in courts-martial and other proceedings.

Carolyn Martin, who served in the Marine Corps for fourteen years in intelligence and administrative capacities, was seized for hours without justification, harassed at her home, and falsely “charged” with a federal felony. A staff judge advocate has unlawfully barred her from the courtroom and defense counsel offices at the Marine Corps Recruit Depot.

“As in civilian cases, justice is always better served in military criminal proceedings when a strong defense case is presented,” said David Blair-Loy, legal director of the ACLU of San Diego & Imperial Counties. “Though the military is entitled to a certain amount of deference in civil liberties matters, it must still abide by core values of fairness and due process in the military justice system. Trying to weaken the defense attorneys’ ability to investigate and challenge charges is not American justice as we know it.”

As a military criminal defense investigator, Martin assists the defense by conducting an independent investigation of the evidence, including interviewing the accused and witnesses, investigating the scene of the alleged crime, and other tasks. She often testifies before military courts, and sometimes assists the defense in post-trial matters and separation hearings. As discussed in the complaint filed in federal court, Martin’s investigations have led to acquittal in a number of courts-martial.

Beginning in 2009, military law enforcement personnel, including an NCIS special agent, harassed and intimidated Martin, including surrounding her with multiple military police vehicles and five armed military police officers, painstakingly searching her car, questioning her about her Defense Intelligence Agency credentials for more than two hours, and ultimately confiscating her DIA credentials. A Navy commander reservist informed Martin that photos of her face and car had been posted on a “be on the lookout” board at the NCIS Field Office at Marine Corps Air Station Miramar earlier this year. An NCIS agent pounded on the front door of her home, and threw a paper at her, saying, “You’ve been served.” The document did not, however, appear to be an authentic notice to appear in court. Martin has never received a court date or further notice regarding the purported charge.

The San Diego ACLU is suing on Martin’s behalf, claiming that the NCIS retaliated against her for First Amendment-protected speech, including engaging in factual investigation and analysis, interviewing clients and witnesses, communicating her findings to her clients and defense attorneys, testifying in proceedings, and related activities, and for interfering with her access to court proceedings. The NCIS is also being charged with violating the Fourth Amendment by its unreasonable seizure, and with Fifth Amendment violations for unreasonably interfering with her ability to obtain employment. Moreover, the order barring Martin from the MCRD courtroom violates the First Amendment.

The San Diego ACLU suit calls for general, compensatory and punitive damages against several NCIS agents, a declaration that the defendants’ conduct is unlawful, and for Martin to be granted injunction against further unlawful activity, as well as costs and fees incurred in this litigation. In addition, the ACLU is filing a motion for preliminary injunction to protect Martin’s First Amendment right to attend court at MCRD. The motion will be heard on October 25, 2010, at 11:00 a.m., in San Diego federal district court, before Judge William Q. Hayes.