Senior Marine Corps Counsel Ridicules Sexual Assault Survivor at Court-Martial Hearing

Thae Ohu nervously wrung her hands as she sat in the courtroom waiting for her court-martial hearing to begin.

She has spent nearly seven months in the brig, where her access to mental health care is restricted. This comes after she reported a rape by a fellow service member and a Navy medical board recommended medical retirement because of the “severe” mental health disabilities, intense paranoia, and “gaps in thought processing” that followed.

Ohu faces a felony conviction after being charged with what her former boyfriend, the alleged victim, called a trumped-up charge of attempted murder, among other things, which could lead to a yearslong prison sentence and the revocation of her medical retirement.

Not only her freedom, but Ohu’s ability to heal hangs in the balance of this trial. Yet not every Marine in attendance displayed reverence for military standards of good order and discipline.

Cpl. Thae Ohu’s official Marine Corps photograph. Courtesy of Pan Phyu.

“This kid has her own public affairs officer?” laughed Maj. Albert L. Evans, the regional defense counsel at Marine Corps Base Quantico, Virginia, in front of three subordinate Marines, just moments before Ohu’s court-martial hearing began. He dismissively referred to Ohu being afforded a Corps spokesperson to accommodate media access, unaware that two journalists, both Marine veterans, stood nearby and witnessed his behavior.

The major’s perceived mockery was among many apparent failures during the hearing, showcasing a lack of professionalism and respect among Marine leaders that has transformed Cpl. Ohu from a Marine—innocent until proven guilty—to a courthouse laughingstock. Her defense attorneys argued in court and during interviews with The War Horse that Marine leaders have repeatedly disregarded not only Ohu’s physical and mental well-being, but her right to a fair trial. Capt. Samuel M. Stephenson, a Marine spokesman who witnessed the event alongside two other subordinate service members, described the behavior as “inappropriate,” especially for a senior commissioned officer, yet stood idly by and did not correct the behaviors. Both Marine officers declined multiple requests for comment.

Since Ohu’s court-martial hearings began, the Corps has tried to deny media access to Ohu’s case—an issue that came up in the courtroom when reporters did not have clear access to part of the hearing as a result of a poor video feed in the auxiliary room. Naval investigators didn’t perform a full investigation of her sexual assault. The Corps denied the mental health treatment Ohu needed and halted her medical retirement. The brig has denied Ohu sufficient access to her lawyers and basic legal accommodations like privacy and the recording devices they say are necessary to prepare their case. During Ohu’s latest hearing, the judge denied her lawyer’s request to bring on a private investigator. And now, Ohu’s defense team says the Corps is unnecessarily working to move Ohu’s trial more than 300 miles away from her attorneys in Washington and the journalists covering her court-martial.

Ohu (left) in a family portrait with her older sister Pan Phyu (center) and younger sister Kay Yu (right). Courtesy of Pan Phyu.

During the hearing, Ohu’s defense attorney said the staff judge advocate overseeing the case had threatened to criminally investigate the defense in retaliation for their photographing of her injuries during a visit with Ohu at an inpatient military mental health hospital after she tried to kill herself in the brig. “Their failures have led her to the circumstances that she’s confronting directly because they’re in total control over her well-being, given that she’s in confinement,” Eric Montalvo, the civilian attorney leading Ohu’s defense, said later in a phone interview. Montalvo, a 21-year Marine veteran and former judge advocate, said the photographs were “lawful” and necessary because Naval Hospital Portsmouth has repeatedly failed to properly treat Ohu’s conditions during her multiple inpatient hospitalizations.

The defense also argued in court and during phone interviews that Corps leadership ignored all of the warning signs of her decline in mental health and that her attorneys were diligently defending their client.

Ohu’s self-harm in the brig was not her first suicide attempt. During her teenage years, she underwent inpatient treatment and received a mental health waiver to join the Corps, something her sister, an active-duty sailor, said never should have happened. And throughout her military career, records show at least three other attempts to end her life before her arrest, while years of desperate cries for help went unanswered by senior Marines who time and time again chose not to assist Ohu.

The military justice system has been no different. Leading up to her latest suicide attempt, defense attorneys, family members, and advocates alike warned military leadership that the brig was not conducive to her mental health. Military officials ignored those warnings, said Ohu’s sister, Pan Phyu, speaking on behalf of their family. And as Ohu continues to be locked in jail, her sister said she is fearful that Ohu will try to kill herself again, while the alleged victim in Ohu’s attempted murder charge, an active-duty staff sergeant, continues to advocate for her release.

Ohu’s case would not be the first time that inappropriate behavior or unlawful command influence has infiltrated Marine proceedings and military courts-martial at large. The most noteworthy recent case including Marines involved a Sgt. Rob Richards, in which Gen. James Amos—then commandant of the Marine Corps—violated military law by trying to influence the actions of the general overseeing the case.

The case first began in 2012 when a video leaked of Richards, a combat-wounded Marine sniper who served in Iraq and Afghanistan, and six fellow Marines urinating on the corpses of Taliban fighters. Two years later, multiple Marines were brought to court-martial and punished. Richards’ case, as well as the case of a second Marine sniper involved, Sgt. Joseph Chamblin, would eventually be overturned because of unlawful activity during the trial by the most senior officer in the Corps. According to Guy Womack, the defense attorney in the Richards case, the ruling to overturn the case came after an extreme circumstance: A three-star general wrote an affidavit stating that the commandant said he wanted the Marines involved “crushed,” and the commandant then retaliated when the general refused to be intimidated.

On Aug. 13, 2014, at the age of 28, Richards was found dead in his home. After his death, his wife revealed to journalists that, following the highly publicized court-martial, Richards struggled with mental health issues and drug addiction–so much so that it ruined their marriage. An autopsy ruled that Richards’ death was caused by prescription drug toxicity.

The Silent Drill Platoon performs at Quantico’s Lejeune Hall. According to the Corps, the platoon “exemplifies the professionalism associated with the United States Marine Corps.” Photograph by Gunnery Sgt. Ezekiel Kitandwe

But in the case of Ohu—who is the same age as Richards during his court-martial—Womack said it appears as though there is a more passive disregard for Ohu in the courthouse. “To the public or any other person who doesn’t know the efforts these defense attorneys are making, they may think that if [Maj. Evans] thinks it’s a joke, then maybe they do too,” Womack said during a phone interview. “I wouldn’t want anyone to think that [any] attorney is not taking the case seriously. … That would be more of a problem.”

Evans, the major who made the “inappropriate” comment and a former instructor at the Naval Justice School, as well as being the 2020 academic honor graduate at the Naval War College, provided a statement through the Marine spokesman who witnessed the events, Capt. Stephenson. Both contested the quote, claiming the major had instead said, “This case has its own public affairs officer?”

“Maj. Evans wanted to make it clear that he has no supervisory duties over the case nor is he involved in the case in any way,” Stephenson wrote, but declined to comment further. The War Horse also requested comment from the major’s command, which was also declined. Instead, Capt. Joseph Butterfield, a spokesman for Headquarters Marine Corps, issued an email statement: “The Marine Corps’ focus remains on providing a fair, impartial trial to any accused Marine. We will continue to maintain transparency of the trial and any follow-on actions to the full extent allowable by law and policy,” Butterfield wrote. “We are not interested in pursuing these sensationalized interactions any further.”

Ohu (center) stands with her father Ahr Yu (left) and sister Kay Yu after she earns the title of Marine. Courtesy of Pan Phyu.

Defense attorneys and Ohu’s family disagreed with the allegation that the reporting inquiries were sensationalized and described the behavior of a major who made a joke just before her hearing as representative of the Corps’ broader treatment of Ohu. The legal system surrounding her is focused on winning the case, they said, not adhering to military ethics guidelines that would ensure a fair trial. “The decorum is not appropriate,” said Montalvo, who spent nearly two decades practicing military law.

“If this is truly about, you know, attempted murder, is this the kind of behavior that we should expect from our military?”

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Earlier on the morning of Ohu’s hearing, on Monday, Jan. 25, Ohu arrived at Lejeune Hall on Marine Corps Base Quantico in northern Virginia, in a black Chevrolet Impala wearing a cold-weather prison jumpsuit, face mask, and handcuffs. Beside the basement courtroom, feet from the door that led to Ohu’s hearing, a handmade Christmas decoration was tacked to the wall–a collage of festive reds and greens. At the top appeared the rank and last name of the Marine Ohu said raped her. The decorations had been “repurposed” from a previous Christmas, public affairs officials said, and the Marine accused of rape had worked in the building until July 2020, the month after Ohu filed a complaint to the inspector general and was thrown in the jail.

Snow covers one of many signs aboard Marine Corps Base Quantico. Photograph by LCpl. Antwaun L. Jefferson, U.S. Marine Corps.

“I didn’t work in the prosecution office,” said the staff sergeant Ohu accused of rape, now stationed at the Pentagon, during an exclusive interview with The War Horse in November 2020. “I don’t even know half those people there. I was long gone because they moved me the moment the investigation started.”

The defense was unaware that Ohu’s alleged rapist had previously worked in the building and that former coworkers could be assigned to Ohu’s case, Montalvo said during a phone call. “I knew that there were disqualifications from Quantico, but I didn’t understand … that they were going to be celebrating him in Christmas decorations right outside the courtroom like that.”

How closely he worked with people assigned to the case is still unclear.

“SSgt Salazar did not report to any members of Trial Counsel or the Prosecution Office aboard Quantico, nor has he worked on any investigation or legal proceedings related to U.S. v. Cpl Ohu,” Capt. Stephenson wrote in an email statement from the Corps. Despite requests, the Corps did not specify whether the alleged rapist ever worked alongside the regional defense counsel or any of the support staff assigned to the case.

Shortly past 9 a.m., after the hearing began, Lt. Col. Michael Zimmerman, the military judge, detailed multiple failures in Ohu’s case. First, he denied the prosecution’s motion to enact a gag order that would restrict media access. “I lack sympathy to infringe on Constitutional rights,” he said. “Many steps can be done before I constrain constitutional rights.” Those steps have not yet been taken, he said.

Later, Zimmerman addressed allegations by the defense that Marines assigned to the brig were eavesdropping on privileged conversations and denying multiple basic legal accommodations.

“We’re bending over backward to accommodate, but there’s growing hostility toward the defense team and a lot of vitriol,” Montalvo testified. “We are simply trying to prepare … and they’re making this as complicated as possible.” As a result, the judge ruled that the Corps had not allowed Ohu to prepare her defense adequately and mandated that Ohu receive two eight-hour sessions off base with her defense team.

At approximately 10:15 a.m., the defense argued for the judge to approve a private investigator to join their team, and former FBI agent Garland E. Slate Jr. was called to testify. For more than seven minutes, due to technical issues, Slate’s justification for participating in the case was inaudible through closed-circuit televisions in the room designated for reporters. The two journalists, reporting for The War Horse and Marine Corps Times, were then taken into the basement to listen from behind a security checkpoint down the hallway from the hearing room. Despite the request for better accommodations from both journalists, the testimony remained difficult to hear over hallway traffic and office banter in the hallway.

Ohu (right) sits with her younger sister Kay Yu (middle) and older sister Pay Phyu (left) during a family visit to Fort Wayne, Indiana. Photo courtesy of Pan Phyu.

Ten minutes later, when the expert’s inaudible testimony was complete, reporters were returned to the holding area. Capt. Leonard Moffa, one of three prosecuting attorneys assigned to the case—as well as multiple legal assistants and investigators—argued that Ohu’s defense would not benefit from an experienced criminal investigator with decades of service in the FBI because the defense was already qualified and staffed to do the investigation themselves. The motion to authorize the investigator was denied, a decision the defense told The War Horse would negatively impact their efforts. Due to the technical issues in the courtroom, a summary of Slate’s testimony was requested by The War Horse. Officials confirmed the request but did not provide the summary prior to publication.

Following a lunch recess, Ohu’s military defense attorney, Maj. Kurt Sorenson—working in tandem with civilian defense counsel, a common practice in the military—presented what he described as evidence of unlawful command influence by Lt. Col. Alan L. Schuller, the staff judge advocate overseeing the court-martial, further exacerbating concerns among Ohu’s family that the Corps has repeatedly mishandled her case. According to the legal standard established in a 1986 case U.S. v. Kitts, “A staff judge advocate generally acts with the mantle of command authority,” and as a result the conduct of the judge advocate should be above reproach as it directly reflects the commanding general.

The defense provided multiple emails to the court and alleged that Schuller was making a persistent effort to intimidate Ohu and her legal team. Schuller declined multiple interview requests.

According to Maj. Sorenson’s testimony and echoed during a call with Montalvo, the retaliation by Schuller for the defense’s public scrutiny of the case has “trampled” Ohu’s access to counsel and violated her right to prepare her defense, Sorenson said in court. “Without Ohu’s assistance, especially without investigative resources, it’s only us investigating and we need Cpl. Ohu.”

The senior prosecutor, Maj. Zachary Phelps, then acknowledged that brig officials “tried to execute” and failed to make appropriate accommodations for counsel. From across the room, Ohu stared at Phelps and shook her head side to side, visibly frustrated and wringing her hands. “This is so deplorable how the prosecution is acting,” her sister said Ohu told her during a phone call to the brig. “They are aware of my medical retirement and psychological state.”

In his rebuttal, Sorenson reaffirmed that the defense repeatedly requested accommodations and that “the brig has not made any concessions. Several times they said they’re not going to allow us to do what we need to do.”

“We had more access when [Ohu] was in maximum confinement,” Sorenson said.

The trial judge, Zimmerman, described the allegations against Schuller and his behavior as “a step too far.” “We can and should do better,” Zimmerman said. Ohu’s civilian defense attorney, Montalvo, then argued that Schuller was exhibiting “pretty substantial prejudice” that is keeping Ohu locked in the brig without adequate access to mental health care.

“I have never heard of a staff judge advocate threatening to criminally investigate a defense team like this,” Montalvo said during the defense’s argument. “Any reasonable person can look at this and see this is a staff judge advocate taking this personally.” Montalvo added that he was “very concerned” about Schuller’s continued participation. “That’s why we want him removed.”

To further complicate matters for Ohu’s D.C.-based defense team, the court is considering moving Ohu’s court-martial to eastern North Carolina at either Camp Lejeune or Marine Corps Air Station Cherry Point, where the judge speculated there would be a larger jury pool of her peers who had not heard anything about her case and thus would give Ohu a more fair trial. Montalvo strongly opposed the motion and said during the hearing that doing so would further complicate access to Ohu and hinder her ability to build her defense. The capital region has an ample pool of active-duty jury candidates, he said.

Marines stand in front of the Marine Corps Memorial in Arlington, Virginia, a symbol of the Corps’ values of honor, courage, and commitment. Photo by Pfc. Preston McDonald.

Zimmerman, the trial judge, then ordered that an investigation be initiated into Schuller to assess whether he overstepped his position as staff judge advocate. “This was probably not the best way to go about things,” Zimmerman said. “There’s something to say about staying in your lane.” The judge pledged to publish a written ruling by March about whether Schuller’s behavior meets the legal burden of unlawful command influence.

When asked by the judge to explain the conduct, Maj. Phelps, the senior prosecutor, responded that he was uncomfortable speaking for the senior Marine officer but said that events could have been handled more professionally. “Was it perfect? No.”

Four days after the hearing, on a Friday evening, a Corps spokesman released a statement to The War Horse saying that the judge ruled that the “defense failed to meet its burden to show that the [staff judge advocate] should be disqualified in this case” and “failed to meet even the low bar of raising some evidence” of unlawful command influence, he wrote. “The Defense motion was therefore denied.”

Following the judge’s decision, Montalvo spoke with The War Horse by phone. The government’s failures in Ohu’s case extend much further than a single incident, he said, calling it an “accumulation” of failures among the Marines involved that he said includes:

The alleged rapist’s name on the door beside the courtroom. The threats of criminal investigation. A field-grade officer joking about a junior enlisted Marine. Denying Constitutional rights. And failing to adequately care for Ohu’s deteriorating mental health.

“This is not a competition to win something at all costs, and that’s exactly what’s being demonstrated here in their behavior,” Montalvo said.

“The fact that the Marine Corps brought her in knowing that she had mental health issues and, and now are using that against her. What’s this represent for the average lance corporal out there that may be struggling, that doesn’t know how to seek the resources?”

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This War Horse investigation was reported by Thomas J. Brennan, edited by Kelly Kennedy, fact-checked by Ben Kalin, and copy-edited by Mitchell Hansen-Dewar. Research was contributed by Kay Nguyen. Prepublication review was completed by BakerHostetler. Read the first investigation in this series.